U.S. v. Roark
| Citation | 924 F.2d 1426 |
| Decision Date | 30 January 1991 |
| Docket Number | No. 90-1334WM,90-1334WM |
| Parties | UNITED STATES of America, Appellee, v. William Clinton ROARK, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Irl B. Baris, St. Louis, Mo., for appellant.
Michael A. Jones, Springfield, Mo., for appellee.
Before ARNOLD and BEAM, Circuit Judges, and BOGUE, * Senior District Judge.
William Clinton Roark was convicted of the following in violation of 21 U.S.C. Secs. 841(a)(1) and 846: (1) Conspiracy to manufacture and possession with intent to distribute methamphetamine and phenyl-2-propanone, commonly known as "P2P" (Sec. 846); (2) manufacture of P2P (Sec. 841(a)(1)); and attempt to manufacture methamphetamine (Secs. 846 and 841(a)(1)). Appellant raises three issues on appeal. First, that Appellant was not properly indicted and tried because Methamphetamine and Phenyl-2-Propanone [P2P] are and were not lawfully proscribed under Schedule II of the Federal Controlled Substances Act. (This issue was not raised in the district court). Second, that the court erred in refusing to instruct the jury as to multiple conspiracies. Finally, that the court erred in refusing to declare a mistrial after rescinding its order to produce material under the Jencks Act.
I. BACKGROUND:
Appellant's indictment resulted from the discovery on May 22, 1987, of an extensive, operating clandestine drug lab on rural property in Missouri. The drug operation, which had been operating since March of 1985, involved several co-defendants, all of whom belonged to the Hells Angels Motorcycle Club. Four of the co-defendants were arrested in June of 1986, and Appellant, who remained a fugitive for two years, was not arrested until May 20, 1989, after a car-motorcycle chase in California.
Ultimately, Appellant was tried and convicted, and sentenced to concurrent terms of 20 years imprisonment on each count, a three year special parole term on Count II, and $150 mandatory penalty. (Sentencing was not under the Sentencing Reform Act of 1984). Other defendants charged in the superseding indictment were either tried or pleaded guilty prior to Appellant's trial.
The issue of the reclassification of methamphetamine was not raised in district court and is not open for normal review. United States v. Bear Runner, 502 F.2d 908, 910 (8th Cir.1970). This is the kind of point that is so fundamental, however, that it would be open for plain-error review on appeal. Therefore, we will address it on its merits.
Appellant urges that methamphetamine is not a controlled substance and, therefore, should be excluded from the controlled substance schedule because under the Food and Drug Act, it may be sold over the counter without a prescription. See 21 U.S.C. Sec. 811(g)(1). To support this conclusion, Appellant argues that both Rynal and Vicks Inhaler nose sprays contain isomers of methamphetamine. 1
In other words, Appellant concludes that because Vicks Inhaler contains a diluted isomer of methamphetamine and is sold over-the-counter, the Drug Enforcement Administration (DEA) or Bureau of Narcotics and Dangerous Drugs (BNDD) cannot classify Methamphetamine as a controlled substance. This analysis is erroneous. Section 811(g)(1) requires exclusion of any substance from the schedules of controlled substances if it can be lawfully sold over the counter without a prescription:
(g)(1) The Attorney General shall by regulation exclude any non-narcotic substance from a schedule if such substance may, under the Federal Food, Drug, and Cosmetic Act, be lawfully sold over the counter without a prescription.
The FDA has not approved methamphetamine for sale over-the-counter, but rather has approved a combination of ingredients found in inhalers containing a diluted isomer of methamphetamine. 2 Obviously, such a combination of ingredients does not create the potential for abuse and harm that the controlled forms of methamphetamine present. We therefore reject Appellant's contentions, and conclude that methamphetamine is properly classified as a Schedule II controlled substance pursuant to 21 C.F.R. 1308.12(d). See United States v. Kendall, 887 F.2d 240 (9th Cir.1989); United States v. Schrock, 855 F.2d 327 (6th Cir.1988).
The issue as to whether the Attorney General, the BNDD or the Drug Enforcement Administration (DEA) followed the correct procedures and made the findings necessary to reschedule methamphetamine has been presented to and ruled upon by the Ninth Circuit Court of Appeals. See Kendall, supra. We believe the findings and conclusions in that case relative to rescheduling of methamphetamine fully apply to that issue in the present case.
On May 26, 1971, the director of the Bureau of Narcotics and Dangerous Drugs (BNDD) published a notice in the Federal Register of the proposed transfer of amphetamine and methamphetamine, their salts, optical isomers, and salts of their optical isomers from Schedule III to Schedule II. (36 Fed.Reg. 9653 (1971)) Addendum, pp. 1-2.) The director further stated that the proposed transfer was based upon the investigation of his agency "... and upon the scientific and medical evaluation and recommendation of the Secretary of Health, Education and Welfare, received pursuant to Sec. 210(b) of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. Sec. 811(b))."
The director then enumerated his findings as required by Sec. 812(b)(2): that methamphetamine has a high potential for abuse; that it has a currently accepted medical use, with severe restrictions; and, that the abuse of this substance might lead to severe psychological dependence.
The statute further provides that the Attorney General, after proceedings required by 21 U.S.C. Secs. 811(a) and 812(b), may add substances to Section 812 schedules or transfer substances between these schedules. 21 U.S.C. Sec. 811(b). Under the authority of Section 871(a) and 28 U.S.C. Sec. 510, the Attorney General properly delegated this authority to the Director of the Bureau of Narcotics and Dangerous Drugs (BNDD). 28 C.F.R. 0.100 (1971). In 1971, BNDD followed the procedures and made the findings required to reschedule methamphetamine. Accordingly, an order was made by the director and published on July 7, 1971, in the Federal Register transferring methamphetamine from Schedule III to Schedule II, 36 Fed.Reg. 12734 (1971) Addendum, pp. 3-5.
Notwithstanding the conclusion by Appellant Roark that the procedures mandated by Congress to precede rescheduling were ignored, we conclude otherwise and further conclude that methamphetamine was and is a Schedule II controlled substance as alleged in the indictment.
Appellant's second contention--that the jury should have been instructed on multiple conspiracies--is also without merit. The essence of a conspiracy is an agreement to commit an illegal act. United States v. Boone, 641 F.2d 609, 611 (8th Cir.), cert. denied, 454 U.S. 831, 102 S.Ct. 129, 70 L.Ed.2d 109 (1981); United States v. Cohen, 583 F.2d 1030, 1039 (8th Cir.1978). The problem is to determine whether one overall agreement binds all of the participants or whether distinct groups of individuals are engaged in "separate adventures of like character." See Kotteakos v. United States, 328 U.S. 750, 769, 66 S.Ct. 1239, 1250, 90 L.Ed. 1557 (1946); United States v. Jackson, 696 F.2d 578, 582-583 (8th Cir.1982), cert. denied, 460 U.S. 1073, 103 S.Ct. 1531, 75 L.Ed.2d 952 (1983). Multiple groups and the performance of separate crimes or acts do not rule out the possibility that one overall conspiracy exists. See United States v. Semek, 634 F.2d 1159, 1167 (9th Cir.1980), cert. denied, 452 U.S. 905, 101 S.Ct. 3031, 69 L.Ed.2d 406 (1981). See United States v. Alvarez, 755 F.2d at 848. 3 A variance occurs only when a single conspiracy is alleged, but multiple conspiracies are proven.
Thus, we will reverse Appellant's conviction only if the failure of the trial court to give a multiple conspiracy instruction results in substantial prejudice to Appellant. See Kotteakos, 328 U.S. at 752, 66 S.Ct. at 1241-42, n. 3. Viewing the evidence in the light most favorable to the verdict, 4 we are convinced that a jury could not reasonably infer that Appellant was involved in more than one conspiracy. Although various defendants entered the alleged conspiracy at different times and performed different functions, there was sufficient evidence for the trial court to have determined that if there was a conspiracy of any kind among the various defendants, including the Appellant, it was a conspiracy that had one criminal objective: to sell large quantities of methamphetamine or other drugs. We agree with the trial court that insufficient evidence existed in the record to support an alternative instruction on multiple conspiracies.
Appellant was a member of the Hells Angels Motorcycle Club. Unfortunately, during voir dire and opening statement the Hells Angels organization--and its general reputation for drug-related activities--was injected into the trial over defense counsel's objection. The Assistant U.S. Attorney in his opening statement referred to "the Hells Angels group out of California--to manufacture not in California but here in southwest Missouri in the hills of the Ozarks, in a remote setting, drugs."
The government's first witness, DEA Agent Sparks, testified generally about the Hells Angels and their activities. The next day, the government called DEA Agent Heald, who had no involvement in this case or with Appellant, to testify as an expert on the Hells Angels organization. He explained the organization of the group and its numerous chapters, including the Richmond Club to which Appellant belonged. Heald claimed he had sources of information about the Richmond Club and received information almost on a daily basis. Further, he testified he had been in at least 100 methamphetamine labs and had written reports about the Hells Angels'...
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