United States v. Barnett

• Decision Date: 04 February 1981
• Docket Number: CR. F-80-125-EDP.
• Citation: 507 F. Supp. 670
• Parties: UNITED STATES of America, Plaintiff, v. Gary BARNETT, Defendant.
• Court: U.S. District Court — Eastern District of California

507 F. Supp. 670

UNITED STATES of America, Plaintiff, v. Gary BARNETT, Defendant.

CR. F-80-125-EDP.

United States District Court, E. D. California.

February 4, 1981.

William B. Shubb, U. S. Atty., Sacramento, Cal., Brian C. Leighton, Asst. U. S. Atty., Fresno, Cal., for plaintiff.

Donald R. Schechter, Forest Hills, N. Y., for defendant.

MEMORANDUM DECISION ON MOTION TO DISMISS, TO SUPPRESS EVIDENCE SEIZED PURSUANT TO SEARCH WARRANT, and PRELIMINARY RULING RE. ADMISSIBILITY OF EVIDENCE.

PRICE, District Judge.

FACTUAL BACKGROUND

The following was gleaned from oral and written arguments of counsel:

Pursuant to a Federal Search Warrant, on June 1, 1980, a search was made of the premises at 2113 Potter, Modesto, California, this being the residence of one Donald Eugene Hensley. Seized from Hensley's residence were, among other things, 20 chemical exhibits, 104 items of glassware and apparatus, notes, ledgers, formulas, Postal Money Order receipts, brochures relating to methods for the production of controlled substances, instructions for the manufacturing of PCP and other controlled substances, copies of a chemistry text, chemical supply house catalog, purchase order forms, and other documents relating to drug manufacture. In the course of the aforesaid search and seizure, Donald Eugene Hensley was arrested for violation of federal narcotics laws.¹ Subsequent to being fully advised of his rights, Hensley freely admitted that he was attempting to manufacture PCP; that he was using a formula that he had purchased from United News Service, P.O. Box 333, Bay Station, Brooklyn, New York. Hensley further stated that he first became aware of the United News Service through an advertisement published in High Times magazine. In responding to that advertisement, he received from the United News Service a catalog of available drug manufacture instructions. He then forwarded $10.00 via Postal Money Order to United News Service for instructions pertaining to the manufacture of PCP as well as the name and address of Merrill Scientific as a reliable supply house to obtain chemicals. He further stated that he followed the advice of the United News Service and ordered from Merrill Scientific those chemicals used in his illicit laboratory.

Based on this information, the United States Drug Enforcement agents applied for and received a search warrant to search the premises occupied by the defendant at 2313 East 24th Street, Brooklyn, New York. This search warrant was executed on August 21, 1980, and is the subject of the defendant's Motion to Suppress the evidence seized in that search.

Subsequent to the arrest of Hensley on June 1, 1980, an agent of the United States Drug Enforcement Administration, using an assumed name, also responded to the advertisement of United News Service in High Times and obtained material similar to that received by Hensley.

On August 27, 1980, the United States Grand Jury for the Eastern District of California returned a three count indictment against the defendant, as follows:

1. Aiding and abetting Hensley in the attempted manufacture of phencyclidine (PCP), a violation of 21 U.S.C. §§ 846 and 841(a)(1), and 18 U.S.C. § 2.

2. The use of the United States mail to facilitate the commission of a felony by Hensley, a violation of 21 U.S.C. §§ 846 and 841(a)(1), and 21 U.S.C. § 843(b).

3. A third count was based on defendant's response to the order placed with him by the government drug enforcement agent. The United States Attorney moved to dismiss the third count at the time of oral argument on defendant's Motion to Dismiss. The government's motion for dismissal was based upon the fact that since the drug enforcement agent did not attempt to manufacture the drug in question, no crime was committed. The government's motion to dismiss was granted, so we are only concerned with counts one and two.

DEFENDANT'S MOTION TO DISMISS

The defendant based much of his written and oral argument in support of his motion to dismiss upon constitutional grounds. However, this underpinning was cut from under him by the government's concession that the defendant's act of advertising the various materials in the High Times magazine is and was a constitutionally protected activity. The government argues that the crime occurs only when a customer solicited by the ad actually attempts to manufacture the drug from the formulae furnished by the defendant. This being the case, the government argues, it rests with the trier of fact to determine whether the defendant possessed the requisite criminal intent in placing the advertisement, and therefore, the court cannot grant the defendant's Motion to Dismiss as a matter of law.

THE AUTHORITY OF THE DISTRICT COURT IN DECIDING A MOTION TO DISMISS UNDER FED.R.CRIM.P. 12(b)

From the court's research, it would indicate that this case would fall within the proscription contained in United States v. King, et al., 581 F.2d 800 (10th Cir. 1978).

In King, as here, defendants urged that their motion to dismiss should be granted because their conduct did not constitute a violation of the statutes under which they were charged. The district court granted the motion, and the court of appeals reversed, stating, at page 802:

"Although the district judge did not articulate his reasons for granting the motion, the inescapable conclusion from examination of the record is that he did so upon the basis that appellees' conduct did not constitute a violation of the statute charged. No other ground was asserted on the motion or in argument, and no other ground was inquired into by the district judge.

"Rule 12(b), Fed.R.Crim.P., provides in part, `Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion.' The matter raised by appellees' motion was not `capable of determination without the trial of the general issue.' It was the general issue. Until the matter is put to trial before the trier of fact, the district court has no jurisdiction to decide a defendant's innocence or guilt. The Supreme Court so held in Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 supra:

`Under our cases jeopardy had not yet attached when the District Court granted petitioner's motion to dismiss the indictment. Petitioner was not then nor has he ever been, "put to trial before the trier of facts." The proceedings were initiated by his motion to dismiss the indictment. ... In such circumstances, the District Court was without power to make any determination regarding petitioner's guilt or innocence.'²

"Certainly an information or indictment may be dismissed if it is insufficient to charge an offense. But it may not be properly challenged by a pretrial motion on the ground that it is not supported by adequate evidence."

It should be indicated that the government has made substantial concessions during oral argument, specifically:

1. Defendant's act of advertising his catalogs and drug formulae is a legal and constitutionally protected activity.

2. The government has no evidence that there ever was any contact between the defendant and Hensley, other than the correspondence which resulted from the defendant filling Hensley's order for catalog, the chemical formula and other information.

3. That the government has no evidence that the defendant knew Hensley was going to attempt to formulate the drug.

4. That the government will ask the jury to draw an inference of "guilty knowledge" from the nature of the advertising, the nature of the publication in which the advertising took place; further, from the fact that the defendant did not advertise his wares in "certain recognized scientific magazines" such as Scientific American.³

Just as a district court cannot receive evidence in support of a Rule 12(b) motion to dismiss (see United States v. Mann, 517 F.2d 259 (5th Cir. 1975), cert. denied 423 U.S. 1087, 96 S.Ct. 878, 47 L.Ed.2d 97), neither can the court rely on factual statements as to the probable evidence to be introduced at trial from the lips of counsel. See United States v. King, supra, at 802:

"Appellees in the present case made no contention that the information did not charge an offense against the United States. Although the district judge did not receive evidence, he dismissed the information on the basis that appellees' conduct, as explained by counsel, did not constitute the violation charged. The dismissal was in effect a determination of guilt made at a point in the proceedings when the district judge was without jurisdiction to render it."

However, there are other points which must be addressed even if they might be viewed as the court's gratuitous statement of opinion.

The offense of aiding and abetting is of ancient origin and has evoked much discussion, not only within this circuit, but throughout the circuits of the United States. Since the critical problem facing the government in the successful prosecution of this case is the requisite state of mind of the defendant at the time he supplied Hensley with the requested material, the United States Attorney might well consider the following:

"The mens rea of aiding and abetting is `guilty knowledge'. Grant v. United States, 291 F.2d 746, 749 (9th Cir. 1961). Barbara, in order to be found guilty, must at least have assisted Ulysses in the transportation of the firearms knowing that he was transporting firearms. We said recently that one acting with `criminal intent and design to assist the perpetrators' is guilty of aiding and abetting. United States v. Lane, 514 F.2d 22, 27 (9th Cir. 1975). A defendant to be an aider and abettor must know that the activity condemned by the law is actually occurring and must intend to help the perpetrator. R. Perkins, Criminal Law 645 (1969)." (emphasis added)

United States v. McDaniel, 545 U.S. 642 (9th Cir. 1976).

Likewise, the United States Attorney might well consider admonitions contained in ...