U.S. v. McQuisten

• Decision Date: 29 July 1986
• Docket Number: No. 85-3110,85-3110
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Douglas McQUISTEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 858

795 F.2d 858

UNITED STATES of America, Plaintiff-Appellee, v. James Douglas McQUISTEN, Defendant-Appellant.

No. 85-3110.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 6, 1986.

Decided July 29, 1986.

Thomas M. Coffin, Asst. U.S. Atty., Eugene, Or., for plaintiff-appellee.

Shaun S. McCrea, Eugene, Or., for defendant-appellant.

Appeal from the United States District Court for the District of Oregon.

Before ALARCON, REINHARDT and THOMPSON, Circuit Judges.

THOMPSON, Circuit Judge:

James Douglas McQuisten appeals his jury trial convictions for violations of federal narcotics laws arising out of a conspiracy to manufacture and distribute methamphetamine, the manufacture of P-2-P, and related offenses. On appeal he contends (1) the affidavit in support of a search warrant for his residence fails to establish probable cause for the issuance of the warrant; (2) the affidavit for the search warrant contains materially false statements and omissions; (3) the district court abused its discretion by allowing the government to reopen its case after the defense rested; (4) the district court abused its discretion by admitting into evidence a photograph of him without proper foundation and when the identification of the person in the photograph was unreliable, and (5) the district court improperly sentenced him for both the conspiracy and attempt convictions under 21 U.S.C. Sec. 846. We affirm.

FACTS

Investigation into this case began in January 1984, when DEA agents received information from a confidential informant that a methamphetamine lab was being operated in the area of Grants Pass, Oregon.

The FBI and the local sheriff's office also had information from a confidential informant that McQuisten was controlling and operating a methamphetamine lab in the area. McQuisten was present at a home in Lake Tahoe in May 1984, when a federal search warrant in an unrelated case was executed and a pound of methamphetamine was seized. McQuisten gave his home address as 1445 S.E. "N" Street, Grants Pass, Oregon to officers executing the Lake Tahoe search warrant.

On July 30, 1984, an employee of the All World Chemical Supply Company (AWCS) told DEA agents that a person named "Joe Wilson" ordered two hundred pounds of phenylacetic acid, a precursor commonly utilized in the manufacture of methamphetamine, for the Sandel Corporation, 1445 S.W. "A" Street, Portland, Oregon. A check of state records revealed that no such corporation or address existed. On August 14, 1984, McQuisten and co-defendant Ducat picked up the two hundred pounds of phenylacetic acid from AWCS. At the time, they were driving a car owned by Joseph Orrio. Agents had information from a confidential informant that Orrio was involved in the operation of a methamphetamine lab in the Grants Pass area. McQuisten and Ducat were followed to a phone booth where, as agents later learned, they used the name Joe Wilson to place an order with AWCS for twenty bottles of methylamine, also a precursor used in conjunction with phenylacetic acid to manufacture P-2-P and methamphetamine. McQuisten and Ducat were then followed back to AWCS where they placed a $500 deposit on the methylamine. The chemical was later delivered to Ducat.

Over the next several weeks McQuisten and others were frequently seen picking up chemicals and supplies from AWCS and the Nurnberg Scientific Shop. Surveillance of McQuisten's home revealed that he was frequently visited by Orrio and Gerald Kringen. Kringen had been indicted in February and August 1984 for possession of methamphetamine. Automobiles owned by co-defendant Donald Saviers were also seen at McQuisten's residence.

On October 24th, McQuisten was seen at Nurnberg's picking up supplies including six pounds of hydrochloric acid, forty feet of vacuum tubing, PH paper, and thermometers. These supplies, also used in the manufacture of methamphetamine, were loaded in McQuisten's truck, which was then driven to his residence where it remained overnight.

One week later, McQuisten purchased 100 kilograms of phenylacetic acid from AWCS. He identified himself to the store clerk as John McQuisten, representing Fertilizers Manufacturing, Inc. (Employees of AWCS were shown a photograph of McQuisten and they identified him as the purchaser of the chemical.)

In early November, agents learned that McQuisten rented a storage unit at the Foothill Mini Storage. The manager told the agents McQuisten had requested a unit large enough to hold his truck because he did not want to have to unload it. While standing in front of the storage unit, agents detected an odor similar to that produced by methamphetamine labs and suspected that a dismanteled methamphetamine lab was being stored inside. The agents then obtained a court order to install an electronic beeper in the truck in the storage facility. An alarm system was also installed in the storage unit to alert agents when the door to the unit was opened. In late November, agents followed McQuisten as he drove from the storage unit to property at 225 Greenleaf Way, owned by Harvey and Dolores Saviers and where "D.C. Saviers" had his telephone listed. The truck was unloaded the next day in a shed located on the Greenleaf Way property. During the next few days, McQuisten was frequently seen at the shed. On November 24th, search warrants were executed at the Greenleaf Way property and at McQuisten's residence. A fully operational methamphetamine lab was found in the shed at the Greenleaf Way property. At least one batch of methamphetamine and P-2-P had been manufactured and another quantity of methamphetamine McQuisten was indicted along with Donald and Daniel Saviers and Kenneth and Blaine Ducat. At the time of trial, after the jury had been empaneled and following opening statements, co-defendants Donald Saviers and the Ducats pleaded guilty to a conspiracy count. Daniel Saviers pleaded guilty to one count of attempt to manufacture methamphetamine, and the trial proceeded with McQuisten as the sole remaining defendant.

was being produced when the search warrant was executed. The search of McQuisten's residence yielded a receipt from the Nurnburg Scientific Shop for lab equipment purchased in October, 1984 and a match cover with the names "All World," "Joe Wilson," and "Sandel" written on it.

McQuisten was found guilty of all charges. He was convicted of conspiracy to manufacture methamphetamine, in violation of 21 U.S.C. Secs. 841(a)(1) and 846; manufacturing methamphetamine in violation of 21 U.S.C. Secs. 841(a)(1) and 18 U.S.C. Sec. 2; attempting to manufacture methamphetamine, in violation of 21 U.S.C. Secs. 841(a)(1) and 846 and 18 U.S.C. Sec. 2; possession with intent to distribute methamphetamine, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2; manufacturing P-2-P, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2; and interstate travel to promote the sale of methamphetamine, in violation of 21 U.S.C. Secs. 841(a)(1) and 18 U.S.C. Sec. 1952. He was sentenced to five concurrent fifteen-year terms on each of the five drug counts, a concurrent five-year term on the interstate travel count, and a five-year special parole term.

DISCUSSION

I. Search Warrant

A. Probable Cause

McQuisten contends the evidence seized at his residence pursuant to the search warrant should have been suppressed. He challenges the magistrate's determination that the affidavit in support of the search warrant established probable cause for the search. He argues the affidavit failed to show connection between his home and any criminal activity.

The affidavit at issue was prepared by DEA Agent Richard Wisenor. Wisenor also incorporated by reference two other affidavits: his affidavit used to obtain the court order to place the electronic beeper in McQuisten's truck and his affidavit used to obtain the search warrant for the Saviers's residence on Greenleaf Way.

A magistrate's determination of probable cause to issue a warrant is treated with great deference and is not reviewed de novo. United States v. Alexander, 761 F.2d 1294, 1300 (9th Cir.1985). We may not reverse a magistrate's finding of probable cause unless it is clearly erroneous. United States v. Stanert, 762 F.2d 775, 779, amended and reh'g. denied, 769 F.2d 1410 (9th Cir.1985). We need only find that under the totality of the circumstances the magistrate had a substantial basis for concluding that probable cause existed. United States v. Dicesare, 765 F.2d 890, 896, amended, 777 F.2d 543 (9th Cir.1985). In doubtful cases, preference should be given to the validity of the warrant. United States v. Peacock, 761 F.2d 1313, 1315 (9th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 139, 88 L.Ed.2d 114 (1985).

The standard to be used by a magistrate in evaluating whether probable cause has been shown for the issuance of a search warrant was recently restated by the Supreme Court in New York v. P.J. Video, Inc., --- U.S. ----, 106 S.Ct. 1610, 89 L.Ed.2d 871 (1986). There the Court stated:

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for ... conclud[ing,]' [Jones v. United States, 362 U.S. 257 271 [, 80 S.Ct. 725, 736, 4 L.Ed.2d 697] (1960),] that probable cause existed.

P.J. Video, Inc., 106 S.Ct. at 1615-16 (quoting Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332-33, 76 L.Ed.2d 527 (1983)).

We conclude the magistrate's finding of probable cause was not clearly erroneous. He had a substantial basis for concluding that probable cause existed. The affidavit in support of the search warrant established that McQuisten was known to DEA agents as a manufacturer and supplier of...