U.S. v. Lewis

• Decision Date: 25 July 1980
• Docket Number: No. 79-5182,79-5182
• Citation: 621 F.2d 1382
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Bradley LEWIS, Jr., Kenneth Brooks, a/k/a James Earl Brooks, Homer Lee Hicks, Robert Charles Terry and Ray Charles Jackson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1382

621 F.2d 1382

UNITED STATES of America, Plaintiff-Appellee, v. John Bradley LEWIS, Jr., Kenneth Brooks, a/k/a James Earl

Brooks, Homer Lee Hicks, Robert Charles Terry and

Ray Charles Jackson, Defendants-Appellants.

No. 79-5182.

United States Court of Appeals,

Fifth Circuit.

July 25, 1980.

Walter R. Krousel, Baton Rouge, La., M. Gabriel Nahas, Jr., Houston, Tex., for Lewis.

Nathan S. Fisher, Baton Rouge, La., for Brooks.

Lewis O. Unglesby, Baton Rouge, La., for Hicks.

James E. Boren, Baton Rouge, La., for Terry.

Bryan E. Bush, Jr., Baton Rouge, La., for Jackson.

Donald L. Beckner, U. S. Atty., Shelly C. Zwick, Asst. U. S. Atty., Baton Rouge, La., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Louisiana.

Before VANCE, POLITZ and RANDALL, Circuit Judges.

POLITZ, Circuit Judge:

Kenneth Brooks, Homer L. Hicks, Ray C. Jackson, John B. Lewis, Jr., and Robert C. Terry were convicted after a bench trial in the Middle District of Louisiana of: (1) conspiracy to manufacture, possess with intent to distribute, and distribute phencyclidine (PCP), in violation of 21 U.S.C. § 846; (2) the manufacture of PCP, in violation of 21 U.S.C. § 841(a)(1); and (3) possession of PCP with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). On appeal they claim that the evidence leading to their convictions should have been suppressed because of Fourth Amendment violations. We affirm the convictions.

The Facts

In July, 1978, Hicks and Lewis arranged to purchase a large quantity of chemicals from the McKesson Chemical Company (McKesson) of Houston, Texas, in order to make PCP. Lewis placed an order for 55 gallons each of piperidine, cyclohexanone, and bromobenzine, 100 pounds of magnesium turnings, 120 pounds of sodium cyanide, two cases of hydrochloric acid, 220 gallons of anhydrous ethyl ether and 110 gallons of petroleum ether. McKesson did not have the piperidine in stock and had to order it from the Wyandotte Corporation (Wyandotte) in New Jersey. Since piperidine was then on a "watch list," Wyandotte notified the Drug Enforcement Administration.

In response to McKesson's inquiries, the defendants gave assurances that the drugs were being purchased for Tulsa Metal Processing Company, and that the chemicals would not be used for making illegal drugs. Tulsa Metal Processing Company did not exist. It was a cover.

The purchase price for the chemicals was slightly in excess of $6,000. It was understood that the entire purchase price was to be paid in cash, before delivery. On August 8, 1978, Hicks gave an associate $5,000 which was delivered to McKesson in the form of a cashier's check. Testimony at the Upon being advised of the order by Wyandotte, the DEA began an investigation in Houston, headed by Agent Ronald Gospodarek. DEA agents and officials of McKesson decided that the 55 gallon drum of piperidine would be shipped from Wyandotte to Gospodarek for use in the investigation. Wyandotte agreed to this plan. Gospodarek then secured from DEA inventory a specially made 55 gallon drum, with a built-in tracking device known as a beeper. The beeper had a range of about one and one-half miles. Gospodarek had the beeper drum painted to look like the drum containing the piperidine and transferred the piperidine into it. He then brought the beeper drum containing the piperidine to McKesson. After doing so Gospodarek tested the beeper. The test was done before delivery of the drum to Lewis, and before Lewis was told the order was ready for delivery.

suppression hearing indicated that Terry was to reimburse Hicks for a portion of this deposit. The balance of the purchase price was to be paid at time of delivery. A dispute exists as to when title passed. The magistrate found that the parties intended that title would not pass until the purchase price was paid in full. The defendants urge that title passed earlier, or at least that a property interest in the chemicals vested before delivery.

After taking the drum to McKesson, Gospodarek and an assistant United States Attorney appeared before a United States Magistrate in Houston and sought an order authorizing use of an electronic tracking device. Gospodarek's affidavit filed with the motion did not mention that the beeper drum was already prepared and ready for use. On September 5, 1978, the magistrate found probable cause and authorized the installation and use of the beeper.

Two days later Lewis and another man came to the McKesson premises and paid the balance of the purchase price. They took possession of the chemicals and drove them to a remote farm in Livingston Parish, Louisiana, where the chemicals were taken to a "laboratory" in the woods. DEA agents followed the progress of the chemicals visually and by use of the beeper.

The farm was located in an area of roughly 52 acres, composed primarily of piney woods, with some cleared portions that were cultivated or formerly under cultivation. About two-thirds of the area was uninhabited. The laboratory site where the PCP was made was located over 800 feet from a tree line behind the Lewis family home. A more detailed description of the site is found infra.

During the night of September 12 or 13, 1978, DEA agents trekked through the woods and visited the laboratory site. They seized nothing, leaving the site after seeing the set-up and smelling what appeared to be PCC (a precursor chemical of PCP).

On September 14, 1978, the agents applied to United States Magistrate (now judge) Polozola in Baton Rouge for search warrants for the farm, including the laboratory site in the woods, and two vehicles. The magistrate issued these warrants on September 15, 1978.

After securing the warrants the agents visited the laboratory site on several occasions, but did not find it propitious to execute them. They continued their surveillance of the operations and of the comings and goings of the defendants. On September 18, 1978, the agents decided to execute the warrants because Hicks had suddenly departed and they could not locate two of the other defendants. At about 5:30 p. m., the agents searched the farm and the laboratory site, including a tent and a tarpaulin-covered pile found at the site.

Shortly thereafter, the five defendant-appellants and three others were charged with (1) conspiracy to manufacture, to possess with intent to distribute, and to distribute PCP, in violation of 21 U.S.C. § 846; (2) possession of PCC with intent to manufacture PCP; (3) manufacture of PCC; (4) manufacture of PCP; and (5) possession of The defendants filed motions to suppress the evidence gained from use of the beeper and seized during the search of the lab site. The motions were heard by the magistrate, who rejected them in a comprehensive 38-page opinion. All of the defendant-appellants except Jackson objected to the report and asked the district court for a de novo determination. The district court adopted the magistrate's findings without a hearing and without having a complete transcript of the suppression hearings.

PCP with intent to distribute. Each of the last four charges involved violations of 21 U.S.C. § 841(a)(1).

The defendants sought to plead guilty conditioned on an appeal of their Fourth Amendment claims. This request was denied. As a result, three of the defendants pleaded guilty and did not appeal. Lewis, Hicks, Jackson, Brooks and Terry elected to go to trial. The trial was brief: the government and the parties stipulated the facts and agreed that counts (1), (4) and (5) would be tried without a jury. The district judge found the defendants guilty on counts (1), (4) and (5). The other counts were dismissed after the trial, pursuant to an understanding between the government and the defendants. The defendants were sentenced to 5 years on each count with the sentences to run consecutively. Lewis, Brooks, Terry and Jackson were sentenced to concurrent special parole terms of 25 years, and Hicks was sentenced to a concurrent special parole term of 50 years.

Untimely Reply Brief

On the day before oral argument Lewis filed a reply brief which was untimely under Fed.R.App.P. 31(a). Permission to file was neither sought nor granted. Much of this brief discusses an issue not raised in earlier briefs. We do not consider it.

Magistrates, De Novo Review and Appealability

Under 28 U.S.C. § 636(b)(1)(B), a district judge can designate a magistrate to make findings of fact and recommendations for disposition on a motion to suppress evidence in a criminal case. If any party objects to the findings and recommendations, the judge must conduct a de novo review. Section 636(b)(1)(B) provides:

(A) judge may . . . designate a magistrate to conduct hearings . . . and to submit to a judge of the court proposed findings of facts and recommendations for the disposition, by a judge of the court, of (motions to suppress evidence in a criminal case) . . .

Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions.

Jackson did not object to the magistrate's report and recommendations on the suppression motions. His failure to object is a waiver of his right to appeal the recommendations contained in the report. The Second Circuit recently reached the same conclusion. John B. Hull, Inc. v. Waterbury Petroleum Prod., Inc., 588 F.2d 24 (2d Cir. 1978), cert. denied, 440 U.S. 960, 99 S.Ct. 1502, 59 L.Ed.2d 773 (1979). Jackson's appeal is, accordingly, dismissed.

Brooks, Hicks, Lewis...