U.S. v. Marques

Citation600 F.2d 742
Decision Date14 May 1979
Docket NumberNos. 78-1800,78-1801 and 78-3011,s. 78-1800
Parties4 Fed. R. Evid. Serv. 816 UNITED STATES of America, Plaintiff-Appellee, v. Spencer MARQUES, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Mark Reason BELCHER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Harry LEROY, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Marcus S. Topel, Harry L. Hellerstein (argued), Lawrence Callaghan (argued), San Francisco, Cal., for defendants-appellants.

Sanford Svetcov, Chief, Asst. U.S. Atty. (argued), San Francisco, Cal., for the United States.

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

Before CARTER, BRIGHT * and CHOY, Circuit Judges.

JAMES M. CARTER, Circuit Judge:

All three appellants were convicted of conspiracy to manufacture methamphetamine in violation of the Controlled Substances Act, 21 U.S.C. § 846 (1976). They were acquitted of charges of manufacturing methamphetamine and possession with intent to sell (21 U.S.C. § 841(a)(1) (1976)). They raise a variety of claims regarding alleged improprieties in the investigation and arrests, and in the manner in which the trial was conducted. We affirm their convictions.

I. FACTS

Sometime in October, 1976, Spencer Marques contacted chemical companies in the San Francisco Bay area and tried to purchase certain chemicals used as precursors in the manufacture of methamphetamine, a controlled substance listed in 21 U.S.C. § 812 (1976) as having a high potential for abuse, some current medical usefulness, but lending itself to psychological dependence. The companies which he contacted told him he could not legally purchase them unless he obtained a "number" from the federal Drug Enforcement Administration (DEA). To that end, he contacted Ann Carter, a compliance investigator with the DEA, to obtain a number. She allegedly warned him that possession of such chemicals was illegal under California law, but she did not otherwise discourage him from trying to obtain them. She also made notes of her discussions with him, but they were destroyed prior to the trial. Subsequent to Ms. Carter's first contact with Spencer Marques, she contacted a clandestine laboratory investigating unit and told it of Marques' interest in the chemicals. That unit in turn contacted various chemical supply houses in the Bay area and asked to be kept informed of further attempts by Marques to obtain the chemicals. It appears that the unit gave certain supply houses permission to sell the chemicals and marked equipment to Marques between November, 1976, and May, 1977.

During this same time period, one DEA agent, Ron Davis, posed as a potential methamphetamine purchaser and insinuated himself into Marques' confidence. Davis observed chemicals and various items of chemistry equipment in Marques' possession and being delivered to the home of his brother, William Marques, in Menlo Park, California. Also, in discussions with Davis, Spencer Marques portrayed himself as a big-time manufacturer capable of producing up to 100 pounds of methamphetamine per month, and as a major supplier of that drug to the Hell's Angels. However, there was no direct evidence that Spencer Marques ever actually produced any Methamphetamine.

On May 23, 1977, Spencer Marques informed Davis that he was about ready to sell and that Davis should call him the next day to arrange delivery. Also on the 23d, other DEA agents assigned to the investigation followed William Marques (previously mentioned by Spencer Marques as a potential dealer) and Daniel Stewart (a frequent associate of William Marques). On May 24th, the agents observed Stewart leaving a Lake Tahoe hotel carrying a brown suitcase and a black attache case. He drove a Rambler automobile to a secluded area in Alpine Meadows, continued up a country road to an unidentified house, and was temporarily lost from the view of the DEA agents. He reappeared shortly and was followed back to Lake Tahoe where he met William Marques in a parking lot, removed the black attache case from the trunk of his car, showed the contents to Marques and placed the case in the back seat of his car. Agents were unable to see inside the attache case. Both Stewart and William Marques then left the Lake Tahoe area and returned to Menlo Park.

Meanwhile, agent Davis had called Spencer Marques as requested and had been told to call back in half an hour. When he called back, Spencer told him he suspected he was being watched by narcotics agents and called off the sale. Shortly thereafter, he was arrested and consented to a search of his residence. Incriminating evidence but no methamphetamine was seized.

A warrant to search William Marques' home in Menlo Park was also executed, and equipment and precursors were found. While that search was still in progress, William Marques and Stewart drove up in the Rambler, having arrived from Lake Tahoe. William Marques was arrested and searched, and a small package of methamphetamine was found on his person. The car was then searched. Inside the black attache case were found two large packages of methamphetamine. This gave the agents probable cause to arrest and search Stewart, and in his wallet was found a note which read: "Danny call Harry at Ricks at Tahoe 916-583-6553." This information was relayed the next day to agents in Lake Tahoe, who traced the phone number to a house in the secluded area in Alpine Meadows to which agents had earlier followed Stewart. One of the agents went to the door, asked for "Harry", and obtained a sample of methamphetamine from Harry Leroy, one of the appellants here. He was arrested. Agents then obtained a warrant and searched the house. Paraphernalia and small amounts of drugs were found, but no laboratory equipment. Among the items seized were chemistry books, recipes for the manufacture of methamphetamine, and a jacket belonging to appellant Belcher on which methamphetamine residue was found. Persons in the house, including Belcher, were arrested.

En route back to the Lake Tahoe police station, the agents came upon a parked van about one-quarter mile from the house. Observing through the windows, they saw what appeared to be laboratory equipment and chemicals inside. The next day, the van was searched pursuant to a warrant and large amounts of methamphetamine were found in addition to equipment, much of which had been marked by DEA agents prior to its delivery to Spencer Marques. The van had been rented by Harry Leroy about one week earlier.

Convictions and these appeals followed. In a separate trial growing out of the same set of facts, Daniel Stewart was convicted of possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a) (1). William Marques pled guilty at the same trial. Stewart's conviction was affirmed by this court in United States v. Stewart, 595 F.2d 500 (9th Cir. 1979), No. 78-1787, West p. 1163, April 19, 1979.

II. ISSUES

The following issues are raised by one or more of the appellants:

A. Was the search of the car and of the attache case found therein, without a warrant, improper, so as to require suppression of evidence seized in that search, and evidence seized as fruits of that search?

B. Does evidence of a compromise verdict and evidence of possible improper influence on one or more jurors require that the verdict be set aside.

C. Did destruction of Ms. Carter's notes violate United States v. Harris, 543 F.2d 1247 (9th Cir. 1976), and if so, does this require reversal?

D. Did the trial judge's questioning of certain witnesses constitute impermissible judicial interference so as to deny appellants a fair trial? Was there prosecutorial misconduct which denied appellant Marques a fair trial?

E. Does the fact that the trial judge gave one jury instruction arguably out of sequence constitute reversible error?

F. Was evidence obtained from appellant Marques through his cooperation and after he allegedly dropped out of the conspiracy improperly admitted against him?

G. Was testimony regarding "Harry" unfairly prejudicial to appellant Harry Leroy, and was testimony regarding his prior criminal activity irrelevant and unduly prejudicial, thus requiring reversal?

H. Did the seizure of Belcher's chemistry books and his jacket exceed the scope of the search warrant so as to require suppression?

III. DISCUSSION
A. The Search

Both Marques and Leroy argue that the warrantless search of the attache case found in the Rambler automobile did not fall within any exception to the Fourth Amendment prohibition against such searches, and they argue therefore that the methamphetamine found in the case should have been suppressed, along with all the fruits of that search. The fruits included: (1) the note found in Stewart's wallet, which led to (2) the confrontation with "Harry" and his arrest, followed by (3) the warranted search of the Alpine Meadows house, wherein were found paraphernalia and drug residue, and (4) the discovery of the van with large amounts of methamphetamine and the laboratory.

The validity of this same search has already been upheld by another panel of this court. United States v. Stewart, 595 F.2d 500 (9th Cir. 1979). Neither Marques nor Leroy has provided us with any compelling reasons for distinguishing that decision on doctrinal or factual grounds. We therefore adopt the reasoning in that opinion and hold that both the evidence seized in that search, and evidence obtained as a result of that search, were properly admitted.

B. Jury Misconduct and Improper Influence

Following the trial, one of the jurors swore in an affidavit that (1) the jury had reached a compromise verdict as to appellants Belcher and Leroy, and (2) another (unnamed) juror had observed all four defendants getting into a car together during the trial period. This latter assertion allegedly constituted...

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