U.S. v. Noll, 78-5740

• Decision Date: 13 August 1979
• Docket Number: No. 78-5740,78-5740
• Citation: 600 F.2d 1123
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul Arthur NOLL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1123

600 F.2d 1123

UNITED STATES of America, Plaintiff-Appellee, v. Paul Arthur NOLL, Defendant-Appellant.

No. 78-5740.

United States Court of Appeals, Fifth Circuit.

Aug. 13, 1979.

J. Cheney Mason, Orlando, Fla., for defendant-appellant.

John E. Lawlor, III, Asst. U. S. Atty., Jacksonville, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before WISDOM, AINSWORTH and RONEY, Circuit Judges.

AINSWORTH, Circuit Judge:

Paul Arthur Noll appeals his conviction on one count of unlawful attempt to manufacture the controlled substance phencyclidine (PCP) hydrochloride, ¹ in violation of 21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. § 2. ² Noll asserts that delays in his indictment and trial violated the Speedy Trial Act (18 U.S.C. § 3161 Et seq.) and the sixth amendment, contends that the district court erred in admitting hearsay statements of an alleged coconspirator into evidence and argues that the conduct of government agents constituted entrapment and a denial of due process. He also claims that the admission into evidence of a codefendant's guilty plea denied him a fair trial, challenges the sufficiency of the evidence and avers that his sentence was unconstitutional. We find these contentions meritless and therefore affirm.

According to the testimony at trial, a confidential informant arranged a meeting on March 3, 1978 between Carl Harrell, an agent in the Drug Enforcement Administration's (DEA) Baltimore office, and Barry Mullins, an alleged coconspirator of appellant Noll. Mullins told Harrell that he wished to purchase, at $1,000 per gallon, a quantity of phenyl magnesium bromide (PMB), with which his associates planned to manufacture PCP. After this meeting, Harrell bought five gallons of PMB for $124 from a Colorado manufacturer and obtained another five gallons that the DEA had used in a previous investigation. Before turning the PMB over to Mullins, the DEA installed an electronic beeper beneath the false bottom of a specially manufactured can. Harrell then delivered the can, holding five gallons of the PMB, and another drum, containing an equal amount, to Mullins and codefendant Raymond Lurz on March 31; he received in return $5,000 in cash and agreed also to accept, once manufactured, $5,000 worth of liquid PCP to complete payment.

DEA Agent Joseph Boykevich monitored the beeper following delivery of the PMB. The two cans were placed in the back of a tow truck and taken to the home of codefendant Lurz, where they were stored from March 31 through April 24. On the evening of April 24, Agent Boykevich observed that the can containing the transmitter was moving in a van driven by Lurz, accompanied by one passenger, out of Baltimore south on Interstate 95. When the van stopped at a coffee shop in North Carolina, Boykevich and other agents identified appellant Noll as the passenger, Lurz and Noll proceeded to the residence of codefendant Dennis Witt, a trailer located in a park in Sorrento, Florida. On April 25, Roy Kelsey, an agent in the DEA's Orlando, Florida office, saw the three men unload the van and watched Noll pour the contents of various cans and bottles into a large garbage can, periodically stirring the mixture. Kelsey and several other agents maintained surveillance for approximately five hours and then moved in to arrest Noll, Lurz and Witt for attempted manufacture of PCP. DEA chemist Dr. William Beazley later analyzed the various chemicals found at the scene and identified the substance piperidinocyclo hexanecaronitrile (PCC) and other chemicals used to make the PCP. According to Dr. Beazley, PCC "is the immediate compound necessary to make PCP"; to produce that drug, the PCC must be dried, dissolved in benzene and mixed with PMB. Dr. Beazley said that quantities of both benzene and PMB were present at the Sorrento site.

A complaint filed with a magistrate in the United States District Court for the Middle District of Florida on April 26, the day after the arrest, charged Noll with attempted manufacture of PCP, in violation of 21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. § 2. On May 25, the magistrate entered an order dismissing this complaint on the Government's motion. Meanwhile, Noll was indicted in the United States District Court for the District of Maryland for conspiracy to manufacture PCP, in violation of 21 U.S.C. § 841(a)(1) and for violating the Hobbs Act, 18 U.S.C. § 1952(a)(3). ³ Both charges involved the same course of alleged criminal conduct that ended with Noll's arrest in Sorrento, Florida. The indictment brought in Maryland federal court was dismissed on the Government's motion on July 12. On June 7, Noll had also been indicted in the Middle District of Florida, Ocala Division, on one count of manufacturing PCP, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. A magistrate dismissed this indictment on the Government's motion on July 10. Finally, on August 15, another indictment was filed in the Middle District of Florida, Ocala Division, charging Noll with one count of conspiracy under 21 U.S.C. § 846 to manufacture PCP, in violation of 21 U.S.C. § 841(a)(1), one count of interstate travel to promote an unlawful activity, in violation of 18 U.S.C. §§ 1952(a)(3) and 2 and one count of attempt to manufacture PCP hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. § 2.

After a four-day trial ending October 19, 1978, the jury acquitted Noll on the conspiracy and Hobbs Act counts but convicted him of attempt to manufacture PCP hydrochloride. The district judge sentenced Noll to three years' imprisonment.

Noll first alleges that the delay between his arrest and trial violated the Speedy Trial Act (Act) and the Sixth Amendment. Noll and the Government contest the manner in which time should be computed under the Act, but we need not resolve that dispute or decide whether the Act was violated in this case, since the Act's sanctions, which require dismissal for unjustified violations of the statute's time limits, do not become effective until July 1, 1979. ⁴ See 18 U.S.C. §§ 3161(f), (g), 3163(c); ⁵ United States v. Phillips, 5 Cir. 1978, 569 F.2d 1315, 1316; United States v. Bullock, 5 Cir., 1978, 551 F.2d 1377, 1381. Until those sanctions take effect, we first look to the interim plan of each district court, adopted pursuant to Fed.R.Crim.P. 50(b), ⁶ to determine whether a case must be dismissed for pretrial delay. See United States v. Phillips, supra, 569 F.2d at 1316; United States v. Bullock, supra, 551 F.2d at 1381. "(F)ailure to comply with the time limits prescribed" by the interim plan of the Middle District of Florida does not require dismissal of a case. Section 10(d), Plan to Minimize Undue Delay and Further Prompt Disposition of Criminal Cases, United States District Court, Middle District of Florida. ⁷ Cf. United States v. Bullock, supra, 551 F.2d at 1382.

Under Fed.R.Crim.P. 48(b), ⁸ "if there is unnecessary delay in bringing a defendant to trial," the district court "may dismiss the indictment." To decide whether a delay is either "unnecessary" and thus warrants dismissal of the indictment under Rule 48(b), or constitutes a violation of the Sixth Amendment right to a speedy trial, we must apply the " balancing test" announced by the Supreme Court in Barker v. Wingo, focusing on four factors: "Length of delay, the reason for the delay, the defendant's assertion of his right (to a speedy trial), and prejudice to the defendant." 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972). Here, we do not regard the pretrial delay as excessive. Noll was first arraigned on May 19, 1978. The provisions of the Act applicable when the original indictment was filed required Noll's trial to start within 120 days of arraignment by September 17. The trial actually began on October 16, only 29 days late. Also, the delay was apparently not occasioned by either negligence or bad faith on the part of the Government. Instead, it was caused by the good faith filing and dismissal of several indictments, a process that reflected the Government's attempts to identify the appropriate venue. The criminal activities of Noll and his associates and the investigation leading to their arrest began in Baltimore; as the investigation continued, it was conducted largely by agents from the DEA's Baltimore office. All of the defendants except Witt lived in the Baltimore area. However, the actual attempt to manufacture PCP occurred in the Middle District of Florida, making that district the only one in which Noll and his codefendants could be prosecuted for all the offenses arising from their criminal conduct. Further, Noll did not assert his right to a speedy trial until after the filing of the last indictment in the Middle District of Florida. Finally, in our view, the pretrial delay involved here did not prejudice Noll's rights. In Barker, the Supreme Court said that prejudice " should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect" and identified three such interests: "(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired." 407 U.S. at 532, 92 S.Ct. at 2193. As Noll has been free on an unsecured $5,000 bond since his arraignment on the June 7, 1978 indictment, he has not suffered "oppressive pretrial incarceration." An accused will always experience some anxiety and concern and the delay here may have worsened those feelings for Noll. However, the primary interest underlying the right to a speedy trial is the desire to avoid impairment of the accused's defense. Id. Noll has not alleged, nor does the record indicate, that he lost any witness or evidence because of the pretrial delay. Under these circumstances, we conclude that there was no unnecessary delay within the meaning of Rule 48(b) and...