U.S. v. Passaro

• Decision Date: 13 December 1980
• Docket Number: No. 79-1354,79-1354
• Citation: 624 F.2d 938
• Parties: 6 Fed. R. Evid. Serv. 943 UNITED STATES of America, Plaintiff-Appellee, v. Alan David PASSARO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 938

624 F.2d 938

6 Fed. R. Evid. Serv. 943

UNITED STATES of America, Plaintiff-Appellee, v. Alan David PASSARO, Defendant-Appellant.

No. 79-1354.

United States Court of Appeals, Ninth Circuit.

Dec. 13, 1980.

Decided Aug. 4, 1980.

Victor D. Vertner, San Jose, Cal., for defendant-appellant.

Donald B. Ayer, Asst. U.S. Atty., San Jose, Cal., for plaintiff-appellee.

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

Before CHOY and WALLACE, Circuit Judges, and GRANT, ^* District Judge.

GRANT, Senior District Judge:

This is an appeal from a conviction for manufacturing and conspiracy to manufacture a controlled substance.

On June 7, 1978, Defendant Passaro was indicted along with three others, on charges of manufacturing and conspiracy to manufacture methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 846. On February 9, 1979, Co-defendants Lopez and Prince entered pleas of guilty to Count I of the indictment, charging conspiracy to manufacture, while Co-defendant Stefenel entered a plea to a misdemeanor charge of possession of amphetamine following a plea agreement pursuant to which he agreed to testify at Passaro's trial.

On February 26, 1979, before the commencement of trial, the court heard an in limine motion to suppress a photocopy of a document removed from Passaro's wallet after his arrest on March 26, 1978, for assault and battery of police officers who had stopped him for a speeding violation. After denial of the motion, the ten-day trial began and on March 13, 1979, the jury returned a guilty verdict on both counts. During the jury deliberations the court heard argument on and denied defendant's motion for mistrial, alleging prosecutorial comment on defendant's failure to testify. Passaro was sentenced under each count to concurrent sentence of five years' imprisonment followed by a ten-year special parole term.

The prosecution's case can be summarized as follows: First, the Government presented evidence that a complete and operational methamphetamine laboratory was found by agents of the Drug Enforcement Administration (DEA) on March 9, 1978, in an unoccupied house at 140 Figone Lane, Ben Lomond, California. This evidence included a great deal of glassware and mechanical equipment, chemical precursors for manufacture of methamphetamine, and powdered and liquid residues which contained methamphetamine. Among the equipment found was a very large, heavy tableting press, and several sets of punches to be used with it in producing tablets. In addition to the testimony of two agents who participated in the consent search and seizure of the laboratory, the Government offered the expert testimony of a chemist who identified the chemicals that were found there. Finally, the Government offered the testimony of the Director of the San Francisco DEA laboratory, who also participated in the seizure and who gave his expert opinion, based on the evidence presented to that point, that the items found constituted an operational methamphetamine laboratory.

Second, the Government presented evidence concerning another house several miles away from the laboratory, at 12180 Alba Road, Ben Lomond, including a cabin behind the main residence. Through the testimony of the owner and landlord of that house, and of the lead investigative agent, it was shown that some time between September 22, 1977, and March 1, 1978, modifications were made in the cabin which suggested that it was being used for illicit chemical experiments of some sort. A search of the cabin during March 1978 revealed a warped and stained dressing table which had formerly been in good condition, blower vents mounted over the table to remove fumes to the outside, black-out shades on all the windows, an intercom system, and a variety of objects and chemicals consistent with laboratory activities. The landlord testified that none of these objects had been in the cabin when he rented it in September 1977.

Third, by introducing articles found at the laboratory and at the cabin, the Government demonstrated a clear connection between the activities going on at the two places. Found at the Figone Lane laboratory were a newspaper with the mailing sticker address "12180 Alba Road"; empty bottles of the essential precursor P-2-P which had been delivered on December 11, 1977, to the area of 12180 Alba Road; and styrofoam packing material identical to that found in the drawer of the dressing table in the cabin. Found at the Alba Road cabin were a piece of laboratory glassware, instructions for a Marvac vacuum pump of which two were found at the Figone Lane laboratory, and a quantity of the chemical dimethylamphetamine which had also been found at the laboratory and which the chemist had testified was a rare product of a reaction very similar to that for making methamphetamine.

Fourth and last, the Government presented a wide range of evidence tying Passaro to the illicit laboratory at Figone Lane, to the house and cabin at 12180 Alba Road, and to a conspiracy to manufacture methamphetamine. The testimony of three experts clearly showed that Passaro had left two fingerprints on a piece of glassware found at the laboratory. The testimony of the owner and landlord of the Alba Road house, and of the lessee, Ron Stefenel, established that Passaro resided at 12180 Alba Road throughout the period of October 1, 1977, to March 1, 1978.

Evidence was presented that all of Passaro's co-defendants had purchased laboratory equipment and chemicals during the period in issue, and especially that Lopez and Prince had purchased P-2-P in Arizona and had been followed with that essential precursor, on December 11, 1977, to the immediate vicinity of 12180 Alba Road. Telephone toll records were introduced which showed calls between 12180 Alba Road and the Livermore residence of Lopez and Prince, and one call in particular was made on December 10, 1977, from Arizona to the Alba Road address and charged to the Livermore residence.

A photocopy of a document found on Passaro's person in the course of a custodial arrest was admitted after hearing and over his continuing objection. This document set forth three relationships between specific Milliliter ("ML") and pound and ounce quantities. The forensic chemist testified that these particular relationships were consistent with the yield of methamphetamine from P-2-P which one might reasonably expect from the usual method of production.

The Government also presented the testimony of one Donna Mae Estes, which was admitted only after a lengthy hearing out of the jury's presence and which the witness gave only after an order of compulsion upon a grant of immunity. She testified first that she was presently incarcerated for possession with intent to distribute methamphetamine, and identified a government exhibit as the tablets in her possession when arrested on May 4th or 5th, 1977. Previous testimony by a ballistics expert had indicated unequivocally that the tablets thus identified had been produced by press punches found at the laboratory at 140 Figone Lane.

After stating that she had received the tablets from one Gary Plowman, she related the substance to a meeting between Plowman and Passaro during April 1977, where she observed them go through a catalogue of laboratory glassware and saw Passaro pick out certain items to be purchased. She stated that she, at Plowman's request, later ordered the selected equipment. She testified that she did this knowing full well that the equipment was for use in a methamphetamine laboratory.

In opening statement at final argument, the prosecutor referred to all of the above evidence and made the additional argument that guilt was indicated by the very manner in which defense counsel had tried the case. In so asserting, he specifically argued that defense counsel had contested all aspects of the government's proof, including appellant's residence at 12180 Alba Road and the fingerprint evidence, both of which were established by substantial proof. He argued that this tactic was necessary because defense counsel could not offer any interpretation of the facts as proved which was consistent with innocence.

In his closing argument, defense counsel referred to his client's tactical decision to present no evidence in his own defense and denied that Passaro had lived at 12180 Alba Road.

In that closing argument, the prosecutor referred at some length to the failure of defense counsel in argument to acknowledge the proven facts and present an innocent interpretation of them. On one occasion near the end of this discussion, the prosecutor referred to "the defendant" rather than to "defense counsel" or "Mr. Vertner", as was otherwise his consistent practice, in asking why it had not been acknowledged that Passaro lived at 12180 Alba Road. We quote from his argument:

And where's the contradictory evidence? You are not barred in this trial, in this deliberation that you're about to undertake, from using your common sense, and you're not barred from asking the question, where is the person if indeed Passaro was living somewhere else, where are the witnesses who would have seen him? They certainly would have seen him. There would have been a landlord, perhaps, at the house. Where are these people? Why aren't they in court?

Mr. Vertner's made a lot of the fact that the Government has the burden of proof, and indeed it does have the burden of proof. But that burden of proof doesn't mean that you're prohibited from using simple, ordinary, everyday reasoning.

Where are these people? Why aren't they here saying "Alan Passaro was living at No. 5 Elmtree Lane"? Why aren't they here saying that? Because he wasn't, that's why.

And the next question, of course, is it's a bit redundant, so I'll be quick why can't the defendant just come out and say "I was living at Alba Road, and the circumstances were A, B, C and D"? Why can't his attorney present this interpretation...