United States v. Lace, Crim. No. 79-44-1 to 79-44-9.

Decision Date30 October 1980
Docket NumberCrim. No. 79-44-1 to 79-44-9.
Citation502 F. Supp. 1021
PartiesUNITED STATES of America v. David LACE. UNITED STATES of America v. Roger DUCHARME. UNITED STATES of America v. Gary BUTTS. UNITED STATES of America v. Patricia ECKMAN. UNITED STATES of America v. David SOUTHAM. UNITED STATES of America v. Daniel LACE. UNITED STATES of America v. John RADZIKOWSKI. UNITED STATES of America v. Paul RYZEWIC. UNITED STATES of America v. Glenn POLLACK.
CourtU.S. District Court — District of Vermont

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William B. Gray, U. S. Atty., Karen McAndrew, Asst. U. S. Atty., Burlington, Vt., Peter W. Hall, Asst. U. S. Atty., Rutland, Vt., for plaintiff.

Clifford J. Steele, Atlanta, Ga., James P. Carroll, Carroll, George, Hill & Pratt, Rutland, Vt., for defendant David Lace.

Paul J. Cambria, Jr., Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo, N. Y., Joseph M. O'Neill, Rutland, Vt., for defendant Ducharme.

Robert G. Fierer, Atlanta, Ga., Stephen A. Dardeck, Tepper & Dardeck, Rutland, Vt., for defendant Butts.

Ellen Mercer Fallon, Langrock, Sperry, Parker & Stahl, Middlebury, Vt., for defendant Eckman.

Harry R. Ryan, III, Ryan, Smith & Carbine, Rutland, Vt., for defendant Southam.

Robert P. McClallen, Rutland, Vt., for defendant Daniel Lace.

Saul L. Agel, Agel, Carroll & Sussman, Burlington, Vt., for defendant Pollack.

FINDINGS OF FACT AND CONCLUSIONS

HOLDEN, Chief Judge.

The indictment filed in this court on December 6, 1979, charges that on or about May 16, 1979, in the District of Vermont, the defendants David F. Lace, Roger R. Ducharme and Gary Butts did unlawfully possess, with intent to distribute, approximately 457 pounds of hashish and approximately 100 pounds of marijuana, Scheduled I controlled substances, in violation of 21 U.S.C. § 841. The first count charges the defendant Patricia Eckman with aiding and abetting in the commission of this offense.

Count 2 charges the same persons named in Count 1, together with the defendants David Southam, Daniel Lace, John D. Radzikowski, Paul Ryzewic and Glenn Pollack, with conspiracy to violate Sections 841 and 846 of Title 21 of the United States Code during the period from October 1, 1975 to the date of the indictment.

The third count of the indictment charges the defendants David F. Lace and Roger R. Ducharme with a series of violations of 21 U.S.C. §§ 841 and 846, as organizers of a continuing criminal enterprise in violation of 21 U.S.C. § 848, deriving profit and property interests which it is alleged are subject to forfeiture under the provisions of 21 U.S.C. § 848(a)(2).

The defendants Radzikowski and Ryzewic have not been found and are in fugitive status.

Following their arraignments and the entry of not guilty pleas, the several defendants presented in the aggregate, more than eighty pretrial motions individually and collectively. Those motions not advanced by a particular defendant have been adopted by the remaining defendants in a blanket effort to obtain any and all relief to be derived from the related motions by their codefendants. In response to the combined motions to suppress, the court conducted protracted evidentiary hearings during a period of more than fourteen days.

Upon consideration of the evidence presented and the oral and written submissions of counsel, the court finds the facts as reported below.

FINDINGS OF FACT

During the hours of darkness on May 16, 1979, an armed detachment of Vermont State Police executed a search warrant on premises rented to the defendant Gary Butts, located in Sharon, Vermont. The search warrant was issued on May 15, 1979, by the Honorable Charles Bristow, a judge of the district court of the State of Vermont. The subject premises were jointly owned by Mr. and Mrs. John C. Heine and Mr. and Mrs. Frank Berkman, all of whom were residents of the Commonwealth of Massachusetts.

The Subject Premises

Butts came to occupy the property as a result of his response to an advertisement that was published in the Valley News, a newspaper with circulation in the Sharon area. The advertisement offered the property to include "70 acres of land" at $325.00 a month. Negotiations for leasing the property were conducted by Mr. Heine and Mr. Butts in late August and early September 1978. The property consisted of a frame dwelling house with two wooden barns and approximately 70 acres of land and included a one acre pond nearby the dwelling that the owners used for fishing and swimming. There is a frontage of 1,400 feet on an unimproved town road, known as Beaver Brook Road, that intersects a portion of the property. The larger barn was used by the Heines and Berkmans as a two car garage with an attic overhead. The smaller barn served as a single car unit. The premises were shown to the defendant Butts on his first visit in August. Rental terms were discussed. Butts indicated he was not prepared to make a firm commitment, but would call the owner later.

While Mr. Heine was occupying the property on a subsequent weekend, Mr. Butts came to see him to further discuss a renting arrangement. Heine informed Butts that the owners proposed to rent the house and the small barn for the tenant's exclusive use; however, the owners proposed to use the remainder of the property for recreation as they desired during the tenancy. Butts requested and received permission to use the large barn for installation and use of woodworking machinery. Heine also informed Butts that the owners had granted permission to use the pond to some of their neighbors and that permission would continue. The rental discussion included a showing of the area adjacent to the dwelling house, around the lawn and the pond. It was understood that the owners and tenant would share in the use of all the property except the dwelling and small barn. The term of one year at a monthly rent of $310 was agreed and one month rental was advanced as security at this meeting. The owners understood the property was to be rented and occupied by Butts, and from time to time-his invited guests. There was no discussion by Butts that the premises would be occupied by any of the other defendants and they were unknown to the owners.

Although Butts undertook to rent the leased premises for the period of one year from September 1978, a dispute developed with the owners in May 1979 concerning the payment of rent. No rent was paid for the months of June, July and August 1979. During Butts' occupancy the owners did not visit the premises from September through May.

During Butts' occupancy the front and west side of the residence faced Beaver Brook Road. The larger of the two barns is situated slightly to the south and east of the residence, at a distance of approximately 30 feet. The southeast corner of the larger barn is nearly contiguous to the northwest corner of the smaller garage unit. A gravel driveway extends east from Beaver Brook Road to the barns, where it widens into a parking area. Easterly from the barns, a pathway or trail extends from the parking area to the east, a distance of approximately 60 yards, where the trail forms a T with an old logging road that extends north and south in the wooded area, about 75 yards from the residence. The pond lies southeasterly of the residence and outbuilding, a distance of approximately 50 yards over an open grassy area.

The logging road is upgrade from the dwelling house. View of the house from Beaver Brook Road is somewhat limited since it is at a higher elevation from the roadway. The barns and parking area are entirely visible from the road. Access to the residence and outbuildings from the north and east can only be gained by traveling through the wooded area to the east,- and more easily by way of the logging road.

Near the southeast corner of the house is a back door with a half window. North of the door are two elevated small windows and two regular sized ten pane windows, all facing the east.

Of the seven defendants who have all joined in the motion to suppress, only the defendant Butts occupied the premises as a lessee. Butts informed Heine during the leasing negotiations that he wanted a quiet place in the country where he could invite his parents to come and stay with him. Heine testified that while Butts was not restricted from having guests, the owners did not intend that to mean roommates.

A sign stating "No Trespassing, Hunting or Fishing," designating the owner of the property to be L. W. Brooks, was found lying on the ground under leaves by the witness Burchard, who surveyed the property in December 1979. The premises were not posted by owners Heine and Berkman and during the seven or eight years of their ownership the property was open to anyone who chose to hunt there.

At the time of the surveillance David Lace resided with his wife in Quechee, Vermont. David Lace testified that he understood Butts lived in the Beaver Brook Road house and he visited the premises to fish from time to time, but his visits were infrequent.

Roger Ducharme was observed at the Sharon property from time to time and was with David Lace when the search warrant was executed. Ducharme maintained a residence on West Hartford Road in the Town of Quechee. He was known by Lace to have dated Patricia Eckman prior to May 16, 1979. Ms. Eckman was at the Ducharme residence on the night of May 16.

Of the persons observed at the Sharon property during the period of surveillance, only Butts was shown to have resided or lived at that location. Butts was the only person known to be present at the premises other than the officers who executed the search warrant. No evidence was presented to establish that any of the other defendants lived in the Sharon house during the time it was under surveillance. During this same period numerous cars and light trucks were observed entering the driveway and parking areas, but they remained at the location for relatively brief...

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    ...v. House, 604 F.2d 1135, 1141 (8th Cir.1979), cert. denied, 445 U.S. 931, 100 S.Ct. 1320, 63 L.Ed.2d 764 (1980); United States v. Lace, 502 F.Supp. 1021, 1046 (D.Vt.1980). These courts recognize, however, that the omitted fact must be material--that is, if the fact were included, the affida......
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