United States v. Pees

• Decision Date: 01 October 1986
• Docket Number: No. 86-CR-153.,86-CR-153.
• Citation: 645 F. Supp. 697
• Parties: UNITED STATES of America, Plaintiff, v. Martin Bradford PEES and Maura Beth McNeill, Defendants.
• Court: U.S. District Court — District of Colorado

645 F. Supp. 697

UNITED STATES of America, Plaintiff, v. Martin Bradford PEES and Maura Beth McNeill, Defendants.

No. 86-CR-153.

United States District Court, D. Colorado.

October 1, 1986.

James Bredar, Asst. U.S. Atty., Denver, Colo., for plaintiff.

Scott H. Robinson and Harold Haddon, Denver, Colo., for defendants.

MEMORANDUM OPINION AND ORDER

KANE, District Judge.

The defendants in this case are two eighteen year old students who have no previous convictions. They are charged with two felony counts of conspiring to sell and selling two ounces of MDMA (Ecstasy) to a Drug Enforcement Agent in violation of 21 U.S.C. §§ 841(a)(1) and 846. Each of the defendants has moved to suppress evidence, to sever trials, and to dismiss. On one point, there is no existing authority in this circuit so I deem it appropriate to issue a written opinion.

Defendant Beth McNeill sold one-eighth ounce of 3.4 methylenedioxymethamphetamine, MDMA, commonly known as "Ecstasy," for $120.00 to a DEA agent on May 15, 1986. McNeill informed the agent at that time that if he wished to purchase more of the drug, he would have to do so immediately since her "supplier was leaving town". A second deal was then arranged by telephone on May 20, 1986. During the course of this telephone conversation, McNeill continually relayed communications between the agent and a friend there with her. The agent asked to speak directly to the friend (the friend identified himself as "Brad" who, allegedly, is the defendant Pees). The agent and Brad made final arrangements for completion of the deal. The agent then went to McNeill's residence.

At defendants' residence, the agent, along with Pees and McNeill, walked to the backyard where Pees obtained two plastic baggies from a pair of pants hanging on a clothes line. The baggies contained a white powdery substance. Pees handed the baggies to McNeill and walked into the residence. The agent followed Pees and McNeill to a bedroom on the northwest side of the residence. In the bedroom, Pees and McNeill offered the agent a line of white powder on a piece of glass for his consumption. The agent declined.

McNeill handed the two plastic baggies to the agent. The agent weighed them and asked if he could test the drug using his test kit in his car. The three went to the car where the agent determined the substance to be Ecstasy-MDMA. The agent told Pees and McNeill his money ($4,500) to purchase the two ounces of the drug was located in the trunk of his car. Upon exiting the car, Pees and McNeill were arrested.

In addition to confiscating the two ounces of Ecstasy-MDMA, searches incident to arrest were conducted. Approximately 23 grams of suspected Ecstasy-MDMA were seized from McNeill's person and approximately 23 grams of suspected cocaine were seized from Pees. Following the arrest, a search of the house was conducted. Another 23 grams of Ecstasy-MDMA were seized from Pees' bedroom.

Defendants were indicted on one count of knowingly and willfully conspiring to distribute approximately two (2) ounces of a Schedule I controlled substance in violation of 21 U.S.C. § 846. Defendants were also indicted on one count of knowingly and willfully distributing two (2) ounces of Ecstasy-MDMA in violation of 21 U.S.C. § 841(a)(1).

In May, 1985, the Administrator of the DEA, allegedly under authority of the attorney general, placed Ecstasy-MDMA in Schedule I¹ of the Controlled Substances Act pursuant to 21 U.S.C. § 811. Usually, to be placed in Schedule I of a controlled substance, a drug must be tested and certain findings made according to 21 U.S.C. § 812(b)(1) which sets forth the requirements for permanent scheduling of controlled substances in Schedule I.

There is, however, an emergency provision (§ 811(h)—Temporary Scheduling To Avoid Imminent Hazards To Public Safety) which allows the attorney general to place drugs in certain schedules before satisfying the requirements of § 812(b)(1).² This emergency provision (subsection 811(h)) was a 1984 amendment to the Comprehensive Drug Abuse Prevention and Control Act of 1970 contained in the Controlled Substances Act of 1970.³ Ecstasy-MDMA was not scheduled in the original bill. Moreover, § 811(h) does not explicitly state the DEA has the authority to employ independently these emergency proceedings. Such powers are expressly given only to the attorney general, who may subdelegate those powers to the DEA. In 1973, the then acting attorney general subdelegated the powers vested in him under the Comprehensive Drug Abuse Prevention and Control Act provisions to the DEA.⁴ The current U.S. Attorney General, however, has never expressly subdelegated the 1984 amendment to the 1970 act (§ 811(h)—temporary scheduling in Schedule I for emergency purposes) to the DEA.

In addition to scheduling Ecstasy-MDMA under the emergency provisions, the DEA also sought to obtain permanent scheduling of Ecstasy-MDMA in Schedule I pursuant to § 812(b)(1). On June 6, 1984, the Secretary of Health and Human Services reported to the DEA that Ecstasy-MDMA had a high potential for abuse, presented a significant risk to public health, and should be placed in Schedule I on a permanent basis. Public hearings before an Administrative Law Judge were commenced in July 1984 and continued until early 1986.

On May 22, 1986, (two days after defendants allegedly committed the crimes but one day before the original indictment was filed) Administrative Law Judge Francis L. Young ruled Ecstasy-MDMA could neither: (1) be permanently placed in Schedule I (because it does have "a currently accepted medical use in treatment and it does not lack accepted safety for use under medical supervision"); nor (2) be permanently placed in Schedule II (because "it does not have a high potential for abuse"). Therefore, the ALJ ruled Ecstasy-MDMA must be categorized as a Schedule III substance. See In The Matter of MDMA Scheduling, Opinion and Recommended Ruling, Findings of Fact, Conclusions of Law, and Decision of Administrative Law Judge, No. 84-48 (May 22, 1986 at pp. 65-66, 68).

While these proceedings were in progress during 1985, the DEA continued to gather information concerning the harm and abuse of Ecstasy-MDMA. In April, 1985, the 22nd Expert Committee of the World Health Organization recommended that Ecstasy-MDMA be controlled in Schedule I. 50 Fed.Reg. 23118 (May 31, 1985).

Based on this information, and recognizing the permanent scheduling procedures for Ecstasy-MDMA were likely to continue until the end of 1985, the DEA gave notice of its intent to invoke the emergency scheduling procedures of § 811(h) to classify Ecstasy-MDMA in Schedule I on an interim basis. The notice was published on May 31, 1985.⁵ The DEA notified the Secretary of Health and Human Services of its planned scheduling of Ecstasy-MDMA. The order scheduling the drug as such became effective in July of 1985. Pursuant to 21 U.S.C. § 811(h)(2), the DEA extended the temporary emergency scheduling to January 1, 1987. 51 Fed.Reg. 21911 (June 17, 1986).

On August 7, 1986, a hearing was held in order to resolve all pending motions. A list of those motions follows:⁶

(1) Motion For Severance of Defendants and For Relief From Prejudicial Joinder,

(2) Motion To Suppress For Use As Evidence All Items Seized in the Search on May 20, 1986,

(3) Motion To Dismiss (I) For Failure To Charge an Offense and Lack of Jurisdiction, and,

(4) Motion To Dismiss (II).

These motions consolidate the separate motions filed by each of the two defendants.

(1) MOTION FOR SEVERANCE OF DEFENDANTS AND FOR RELIEF FROM PREJUDICIAL JOINDER

Both defendants requested separate trials because: (1) each may be antagonistic toward the other; and, (2) the quantity and quality of the evidence against defendants is substantially different.

Rule 8(a) of the Fed.R.Crim.P. authorizes joinder of offenses if the offenses "are of the same or similar character or are based on the same act or transaction or on two or more acts connected together or constituting parts of a similar scheme or plan". Defendants' actions clearly fit within this description. They both arranged the deal over the telephone, were both present during the whole transaction, and, generally, acted jointly pursuant to a common scheme or plan.

Defendants must show clear prejudice resulting from joinder, United States v. Strand, 617 F.2d 571, 575 (10th Cir.) cert. denied 449 U.S. 841, 101 S.Ct. 120, 60 L.Ed.2d 48 (1980). The decision to grant a severance is within the sound discretion of the trial court and will not be reversed in the absence of a strong showing of prejudice —the fact that severance would improve chances for aquittal is not sufficient. Defendants fail to make this showing since: (1) the fact that their defenses may be antagonistic is purely speculative and "mere conflicting defenses do not, standing alone, constitute the showing of prejudice necessary for judicial severance", United States v. McClure, 734 F.2d 484, 488 (10th Cir.1984); and, (2) disparity in the quantity and quality of evidence does not justify severance, United States v. Dill, 693 F.2d 1012, 1014 (10th Cir.1982), "the fact the prosecution may have a stronger case against one defendant does not entitle either defendant to a separate trial." Most importantly, the evidence to be used against defendants is the same two ounces of Ecstasy-MDMA defendants jointly sold to the agent. The motion is denied.

(2) MOTION TO SUPPRESS FOR USE AS EVIDENCE ALL ITEMS SEIZED IN THE SEARCH OF MAY 20, 1986

A. McNeill's Motion To Suppress

McNeill states that on May 20, 1986, her home was searched, 23.34 grams of Ecstasy-MDMA were seized, and her person was searched on the same date and 23 grams were seized. She argues the searches and seizures were not pursuant to a search warrant, nor did the government have an arrest warrant. She further asserts no probable cause existed nor were exigent circumstances present to justify the searches and seizures. There...