U.S. v. Leed, No. 91-1434

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before POLITZ, Chief Judge, GARWOOD and DAVIS; W. EUGENE DAVIS
• Citation: 981 F.2d 202
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roy Lee LEED, Defendant-Appellant.
• Docket Number: No. 91-1434
• Decision Date: 04 January 1993

Page 202

981 F.2d 202 UNITED STATES of America, Plaintiff-Appellee,
v.
Roy Lee LEED, Defendant-Appellant. No. 91-1434. United States Court of Appeals,
Fifth Circuit. Jan. 4, 1993.

Page 203

Robert H. Rogers, Cooper & Rogers, Dallas, Tex. (Court-appointed), for Leed.

Delonia A. Watson, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Dallas, Tex., for U.S.

Appeal from the United States District Court for the Northern District of Texas.

Before POLITZ, Chief Judge, GARWOOD and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge.

Roy Lee Leed (Leed) appeals his conviction and sentence on charges of possession of a listed chemical with intent to manufacture a controlled substance and conspiracy to commit the same offense. Leed argues primarily that the government produced insufficient evidence to support his conviction. He also argues that the district court erred when it used U.S.S.G. § 2D1.1 in calculating the appropriate sentencing guideline range. We find sufficient evidence to support the jury's verdict and find that the district court correctly applied the sentencing guidelines. We therefore affirm Leed's conviction and sentence.

I.

In August 1990, a confidential informant, Jerry Pierce (Pierce), informed the DEA that John Watkins (Watkins) wished to purchase a 110-pound keg of phenylacetic acid, a federally regulated chemical used in the manufacture of amphetamine and methamphetamine. Pierce then worked under DEA supervision in attempting to negotiate a sale of the chemical to Watkins. Pierce permitted DEA agents to record telephone negotiations he had with Watkins for this purpose. Agents identified John Watkins as the subscriber of the telephone number Pierce called.

On August 17, DEA agents recorded several conversations that failed to produce a definitive agreement. In the first telephone call, Watkins stated that he was interested in making a deal, but that he needed an hour to obtain assistance. During this conversation, Watkins agreed to provide an "eight ball" or a "quarter" of "powder" as a portion of the purchase price. When Pierce telephoned Watkins about one hour later, Watkins stated that he would be ready to make a deal as soon as he heard from "her." Two hours later, Watkins still had been unable to reach his contact. In a later conversation that day, Watkins arranged to go forward with the purchase on Monday, August 20, 1990.

During a conversation on August 20, Watkins expressed relief when Pierce stated that he could deliver a 110-pound keg of the chemical rather than a 55-gallon barrel. During a subsequent conversation in which Pierce and Watkins discussed a meeting place, Watkins stated his concern about some unusual police activity in a parking lot near his house. After Watkins tested his telephone lines and was satisfied that he was not under surveillance, he agreed to proceed with the deal. In an unrecorded telephone call, Watkins and Pierce agreed that the transaction would take place in the parking lot of a boot store. Watkins agreed to pay $5,500 and to provide "powder" in exchange for the 110-pound keg. Watkins told Pierce to expect an individual in a white-over-gold Cadillac and to wait for the individual to give the signal by wiping

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his brow. Pierce expected that Watkins would drive the Cadillac.

Later, on August 20, Pierce and DEA agent William Bryant (Bryant) drove to the meeting place in a white cargo van containing the unmarked keg of phenylacetic acid. The phenylacetic acid had a strong, distinctive odor, so strong that it could be smelled outside of the cargo van. The driver of the white-over-gold Cadillac, later identified as Leed, then drove near the cargo van, looked around the parking lot, and wiped his brow with his hand. Pierce and Bryant wiped their brows in reply. Leed exited the Cadillac, approached the cargo van, and handed a plastic grocery bag to Bryant. Leed stated that the bag contained $5,500 and asked Bryant if he wanted to load the phenylacetic acid into the Cadillac. Bryant asked Leed to get inside of the van while he counted the money.

Inside the grocery bag, Bryant found a number of cracker packages and a package wrapped in white freezer paper. Leed stated that he had wrapped the money in the freezer paper to make the package look like a sandwich. Bryant asked Leed if he had brought any powder with him, but Leed stated that they didn't have any powder "at that time." Also, when Bryant asked Leed if his people would be interested in making future purchases, Leed replied that "I was just sent here to pick up the package, but I'm sure my people would want to buy all they could get their hands on." Leed provided Bryant with a knife to cut the package open, and Bryant counted the money. After Bryant, Pierce, and Leed loaded the phenylacetic acid into the trunk of the Cadillac, Leed was arrested.

DEA agents searched the Cadillac and found a notebook in a briefcase. The notebook contained the name John and the same phone number that Pierce had used to make telephone calls to John Watkins. The agents also found a spiral notebook in the briefcase containing a list of things to do, one of which was to call "Pappy" at Watkins' telephone number.

In an attempt to also arrest Watkins, Pierce telephoned Watkins and informed him that no one had come to pick up the phenylacetic acid. Watkins told Pierce that he would come himself. When Watkins arrived, he drove alongside the cargo van and stated that he was hunting for a lost sheep. Bryant stated that he was tired of sitting on the "drum." Watkins complained that police were all over his neighborhood and suggested that they relocate to a nearby K-Mart store. Bryant insisted that they complete the transaction in the parking lot. Bryant asked Watkins if he had any powder, but Watkins said no. Watkins was then arrested.

At the time of his arrest, Watkins possessed a slip of paper reading "73 cad. four door gold-over white" on one side and "Jerry Pierce, white van, BLM30" on the other side. Agents also found a packet containing 1.72 grams of amphetamine with a potency of 93 percent. A strength of 93 percent indicates that the amphetamine came directly from a laboratory.

A grand jury indicted Leed on one count of possession of phenylacetic acid, a listed chemical, with intent to manufacture amphetamine, in violation of 21 U.S.C. § 841(d)(1), and on one count of conspiring to commit the same offense, in violation of 21 U.S.C. § 846. Following trial, the jury found Leed guilty on both counts. Watkins was charged solely with conspiracy, and in a joint trial with Leed, he was found guilty. Leed's motion for judgment of acquittal was denied.

The district court sentenced Leed under U.S.S.G. § 2D1.1 to imprisonment for consecutive terms of 120 months on the conspiracy count and 60 months on the substantive count, three years supervised release, and $100 in special assessments. Leed timely appealed.

II.

A.

Leed contends first that the district court erred in denying his motion for judgment of acquittal, and argues that the evidence is insufficient to support his conviction on either the conspiracy or the...