U.S. v. Peacock

• Decision Date: 21 May 1985
• Docket Number: Nos. 84-1007,84-1011,s. 84-1007
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harlan PEACOCK and Harold Peacock, Defendant-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1313

761 F.2d 1313

UNITED STATES of America, Plaintiff-Appellee, v. Harlan PEACOCK and Harold Peacock, Defendant-Appellants.

Nos. 84-1007, 84-1011.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 13, 1984.

Decided May 21, 1985.

Donald Cavin Hill, Asst. U.S. Atty., Reno, Nev., for plaintiff-appellee.

Jerald W. Newton, Los Angeles, Cal., for defendant-appellants.

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

Before MERRILL, KENNEDY, and ANDERSON, Circuit Judges.

KENNEDY, Circuit Judge:

The appellants challenge their convictions for the manufacture and distribution of controlled substances, conspiracy, and related offenses. First, they attack the validity of a search warrant issued for their residential property, arguing that the supporting affidavit did not set forth probable cause and that it contained a material omission. Second, appellants maintain that the consent obtained for a later search of other property was invalid because coerced. Third, they contend there was insufficient evidence to support their convictions. Fourth, they allege error as the result of the district court's delegation of voir dire to a magistrate. Finally, they argue that their convictions on both conspiracy counts were impermissible because multiplicious. Each of the first four challenges we resolve against appellants. We do conclude, however, that the conspiracy counts were multiplicious and, therefore, the convictions on the second conspiracy count must be reversed.

Harlan and Harold Peacock, father and son, were charged with: (1) conspiracy to manufacture and distribute amphetamine and phenyl-2-propanone (P-2-P) in violation of 21 U.S.C. Sec. 846; (2) transportation of chemicals and equipment in interstate commerce in violation of 18 U.S.C. Sec. 1952; (3) attempted manufacture of P-2-P in violation of 21 U.S.C. Secs. 841(a)(1), 846; and (4) manufacture of amphetamine in violation of 21 U.S.C. Sec. 841(a)(1). Defendants were found guilty on all counts following a jury trial.

The investigation leading to the arrests began with the discovery in the Nevada desert of discarded barrels containing remnants of methamphetamine. Witnesses reported a certain U-Haul truck had been in the vicinity. The truck was traced to Harlan Peacock, who had been seen driving it about the time the barrels were discarded. After its return, the truck itself had a distinctive odor associated with methamphetamine, and there were barrel imprint rings visible on the truck bed.

This information, recited in considerably more detail, was the essential basis for a search warrant issued for the Peacock residence at Cave Rock, Nevada. Contrary to appellants' contention, there was probable cause for issuance of the warrant. For probable cause to exist, a magistrate need not determine that the evidence sought is in fact on the premises to be searched, United States v. Bowers, 534 F.2d 186, 192 (9th Cir.), cert. denied, 429 U.S. 942, 97 S.Ct. 360, 50 L.Ed.2d 311 (1976), or that the evidence is more likely than not to be found where the search takes place. United States v. Taylor, 716 F.2d 701, 705-06 (9th Cir.1983). The magistrate need only conclude that it would be reasonable to seek the evidence in the place indicated in the affidavit. Taylor, 716 F.2d at 705-06 (quoting United States v. Hendershot, 614 F.2d 648, 654 (9th Cir.1980)).

In reviewing the magistrate's determination that there was probable cause, we need find only that there was a substantial basis for the conclusion. Illinois v. Gates, 462 U.S. 213, 233, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527 (1983); United States v. Seybold, 726 F.2d 502, 503 (9th Cir.1984). In doubtful cases, the reviewing court should give preference to the validity of the warrant. United States v. Ventresca, 380 U.S. 102, 106, 109, 85 S.Ct. 741, 744, 746, 13 L.Ed.2d 684 (1965); United States v. Flores, 679 F.2d 173, 176 (9th Cir.), cert. denied, 459 U.S. 1148, 103 S.Ct. 791, 74 L.Ed.2d 996 (1983). Under these standards, there was more than a sufficient showing for obtaining the warrant to search the appellants' Cave Rock residence.

Appellants contend the affidavit in support of the warrant omitted a material fact. A neighbor had told one of the officers that he had not detected chemical odors around the residence, and the officers failed to recite this fact in the affidavit. The omission was immaterial. The drug enforcement officer was experienced and determined that the lack of odor from the distance of the neighbor's house was inconclusive. Further, even if that information had been included, the magistrate reasonably could have found probable cause for issuance of the warrant.

Arlene Peacock, who is Harlan's wife and Harold's mother, consented to the search of a second residence, called the Clear Creek property. Appellants claim the consent was coerced. The contention is without merit. Discrediting Arlene Peacock's claim of coercion on the basis of her close connection to the defendants, the district court found she had voluntarily signed the consent form despite her daughter's advice against it. Based on the testimony before the district court, we cannot say the finding was clearly erroneous. See United States v. Faherty, 692 F.2d 1258, 1260 (9th Cir.1982); United States v. Lemon, 550 F.2d 467, 472 (9th Cir.1977).

The evidence is sufficient to support the convictions, except for the second conspiracy count, as noted below. Our standard of review requires us to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. In making this assessment, the crucial inquiry is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Ospina, 739 F.2d 448, 450-51 (9th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 262, 83 L.Ed.2d 198 (1984).

At trial the Government introduced substantial evidence in addition to the discarding of the barrels and to Harlan Peacock's connection to the rented truck. Experts recognized the odor of phenylacetic acid inside the Cave Rock residence. In the downstairs kitchen, the officers found filter papers that contained methamphetamine and the odor of phenylacetic acid and chemical bottles with the odor of methylamine, a chemical used in the manufacture of methamphetamine. Other substantial evidence was discovered at the Clear Creek property. It was shown that Harlan Peacock owned Clear Creek and sought immediate possession of the property following its purchase. He at once had commenced alterations to the garage, including the installation of high voltage electric lines, a hot water heater, and a large sink, all essential to the operation of a methamphetamine laboratory. Several items, including empty containers of acetic anhydride, phenylacetic acid, and phenyl acetone found during the search, indicated the lab had been used to manufacture P-2-P and methamphetamine.

Harlan Peacock's telephone bill for March indicates that he made three calls on March 1 to RJM Labs, a chemical supply house in Santee, California, which sells caustic soda, anhydrous sodium acetate, and laboratory glassware. The chemicals found at Clear Creek were of the type sold by RJM, and several of the containers bore RJM labels. RJM's management identified a variety of items photographed at the clandestine lab as originating from its company. The trier of fact could infer that the chemicals and equipment used by the Peacocks were obtained from RJM Labs and transported from California, the only state in which RJM does business.

There was also sufficient evidence to convict Harlan's son Harold. Harold was present during the negotiations for the purchase of the Clear Creek property, and, although he did not supervise, he participated in the remodeling of the house and garage to install the laboratory. Despite Harold's protestations to the contrary, there was admissible evidence before the trier of fact which proved he resided at the Cave Rock house. Defense witness Timothy McLaughlin repeatedly stated that Harold and Harlan Peacock both lived there. The search of the Cave Rock residence disclosed chemical bottles and filter papers containing traces of amphetamine in Harold's room. He accompanied his father to return the U-Haul. Finally, his pickup truck smelled of chemicals used to manufacture amphetamine.

Based on the evidence, a rational trier of fact could have found the essential elements of the charged crimes beyond a reasonable doubt. For the same reasons that there is sufficient evidence to support the convictions on the substantive counts, it was not error for the trial court to deny Harold Peacock's Rule 29 motion for judgment of acquittal.

Appellants cite as reversible error the order by the district court that a magistrate preside over selection and voir dire of the jury. As we understand the record, the magistrate did conduct voir dire and did preside over the selection of twelve jurors. The district judge reviewed the voir dire questions asked by the magistrate and asked further voir dire questions at the request of counsel. The jurors were sworn and impaneled by the district judge.

As there was a specific objection to delegation of the initial jury selection duties to the magistrate, this case is unlike the appeal to the Second Circuit in United States v. DeFiore, 720 F.2d 757, 764-65 (2d Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1684, 80 L.Ed.2d 158 (1984), where the court did not reach the merits of the argument because there had been no contemporaneous objection. We reach the substantive issue of the propriety of the delegation to the magistrate, and we find no error.

The referral of matters to a magistrate is governed by the United States Magistrates Act, 28...