United States v. Barnett

Citation: Not availableDocket: 91-1890

Court: Court of Appeals for the First Circuit; April 16, 1993; Federal Appellate Court

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Michael Barnett and Barry Jordan were charged with conspiracy and possession with intent to distribute methamphetamine, along with possession of a listed chemical, violating 21 U.S.C. § 846 and § 841(a)(1) and (d)(1). Barnett was convicted on all counts, while Jordan pleaded guilty. Both received a thirty-year prison sentence and ten years of supervised release. 

The case arose from a DEA investigation initiated in March 1990, focusing on suspected methamphetamine manufacturing and distribution in Scituate, Massachusetts. Surveillance targeted the residences of Barnett, Jordan, and their co-defendant Timothy Fitzgerald. A significant element involved a trailer delivered to Fitzgerald's property, which Barnett later rented. 

In a recorded meeting, undercover DEA Agent John Kelly offered stolen hydriodic acid to Jordan, who indicated his "chemist" needed it to produce methamphetamine. Jordan claimed he could produce forty pounds of methamphetamine if provided with the necessary chemicals and described his plan for manufacturing and selling the drug. 

The court affirmed the convictions and addressed challenges raised by Barnett regarding his conviction and the drug quantity determined at sentencing.

Jordan reassured Kelly about the safety of their methamphetamine production, citing his chemist's decade of experience and his own involvement in preparing batches. On May 16, 1990, Kelly delivered two boxes of hydriodic acid to Jordan. Subsequent surveillance by the DEA included aerial fly-overs of the Fitzgerald residence. A May 27 observation revealed an electrical power cord from the main house to a trailer, crucial for the ephedrine reduction process. Infrared fly-overs on May 28 indicated no heat emission from the trailer. However, on May 30, Trooper Welby mistakenly interpreted the infrared data, believing the trailer was emitting heat. Later that day, a DEA agent followed Barnett to the Fitzgerald property, observing him inside the trailer engaging in suspicious activities involving blue buckets and filtering substances. After Barnett left, the agent noted Jordan was in the vehicle with him. Agent Lemon later compiled the surveillance findings, including the misinterpreted heat data, into an affidavit to support a search warrant application for the trailer and associated residences. The investigation concluded with the execution of search warrants, revealing a partially assembled methamphetamine laboratory in the trailer, along with various chemicals and equipment.

Three ounces of methamphetamine crystals and a bucket containing about one pound of methamphetamine in an acetone/freon solution were found during a DEA investigation. The methamphetamine in the bucket was determined to be 90-100% pure. Jordan and Fitzgerald were arrested at their homes, where agents seized a mixture of heroin and methamphetamine, a valium tablet, hypodermic needles, and publications on methamphetamine manufacturing at Jordan's residence. Fitzgerald's home contained notes on chemical ingredients for methamphetamine production. Barnett, who had moved from the residence associated with the fourth search warrant, was arrested at his new location. After being read his Miranda rights, he disclosed that remaining equipment and chemicals were in a storage bin. A subsequent search revealed about fifteen pounds of red phosphorus, a drum of hydriodic acid, and chemicals associated with methamphetamine production.

In discussions at DEA headquarters, Barnett claimed he was the "chemist" and described his high-purity methamphetamine production process. Five days into their trial, Jordan pleaded guilty, while Barnett was convicted, and Fitzgerald was acquitted. Barnett and Jordan challenged the sentencing court's determination that they were responsible for twenty-nine kilograms of pure methamphetamine, with Jordan contesting the drug purity ruling. The district court's findings, based on presentence reports, indicated the capacity to produce this full amount using a 50-kilogram drum of pseudoephedrine. The drug quantity findings supported a base offense level of 40, despite the appellants' claims that the court overestimated their manufacturing operation and should have based sentences solely on the seized quantity.

Sentencing guidelines stipulate that a defendant convicted of conspiracy or attempt related to a controlled substance is assigned a base offense level as if the crime was completed, per U.S.S.G. § 2D1.4. In cases with no drug seizure or insufficient amounts seized, judges must estimate the drug quantity, considering factors like market price, financial records, the defendant's past transactions, and available laboratory equipment. The appellants claimed the court did not establish a specific drug quantity for their responsibility, but the court indicated its adoption of the presentence report's findings. Seizures included three ounces of methamphetamine crystals and a bucket with an additional pound. The district court determined that these amounts did not reflect the offense's scale, supported by Jordan's admissions regarding the potential production of forty pounds of methamphetamine and the precursor chemicals found. The court's estimation was based on the amount of pseudoephedrine that could yield fifty kilograms of methamphetamine, despite the seized drum containing only twenty-three kilograms. Jordan contended that the approximation was flawed due to insufficient quantities of other necessary precursor chemicals. However, the court may consider available precursor chemicals in its estimation. Although the court must be cautious in choosing among plausible drug-quantity estimates, it is not required to have every precursor chemical present for an approximation.

U.S.S.G. § 2D1.4 allows the assessment of a laboratory's size or capability in determining drug quantities for sentencing. Courts have upheld drug-quantity estimates based on the potential yield from seized precursor chemicals and laboratory capacity, even in the absence of certain chemicals. The determination of the appellants' responsibility for drug quantities hinges on the government's ability to provide reliable information. For the assigned base offense level of 40, applicable to offenses involving 10 to 30 kilograms of methamphetamine, a DEA chemist testified that 50 kilograms of pseudoephedrine could yield 29 kilograms of methamphetamine. Based on the seized 23 kilograms of pseudoephedrine, it was estimated that approximately 13 kilograms of methamphetamine could be produced, satisfying the base offense level criteria. Additionally, although the exact amount of hydriodic acid was unclear, evidence indicated approximately 10 liters were seized, along with other containers. The appellants acknowledged having the necessary ingredients to manufacture methamphetamine, minus the hydriodic acid. A chemical list showed sufficient quantities to produce at least 29 kilograms of methamphetamine, with related chemical evidence seized at their locations. Barnett had previously produced methamphetamine, and no counter-evidence was presented by the appellants at sentencing. The district court found sufficient reliable information to conclude that both were responsible for at least 10 kilograms of methamphetamine, justifying the base offense level of 40. An explanatory note clarifies that the weight of methamphetamine includes the entire weight of any mixture containing the substance unless specified otherwise.

"Methamphetamine (actual)" refers to the specific weight of the pure controlled substance in a mixture. According to U.S.S.G. § 2D1.1(c), a base offense level of 40 is assigned for offenses involving 10 to 30 kilograms of pure methamphetamine, while the same quantity of adulterated methamphetamine is assigned a level of 36. Jordan claims for the first time that the record lacks evidence of the methamphetamine's purity, arguing that his offense level should be based on adulterated methamphetamine. However, issues not raised in the district court cannot be addressed on appeal, as established in United States v. Haggert. Although defense counsel referenced the lower offense level for adulterated methamphetamine, he did not specifically raise the drug purity issue at sentencing, leading to the conclusion that this argument is waived.

In a separate matter, Barnett's pretrial motion to suppress evidence based on a claim of involuntary consent to a warrantless search was denied by the district court, which decision is reviewed for clear error. A warrantless search is constitutionally permissible only under specific exceptions, with the voluntariness of consent determined by the totality of circumstances, including the consenting party's characteristics and awareness of their rights. Barnett contends his consent was coerced due to the presence of multiple armed officers at his home. Although he asserts he was not informed of his right to refuse consent and believed a search warrant was present, written consent is not mandatory for a valid consensual search. Oral consent can suffice, and a refusal to sign does not negate the finding of voluntariness.

Knowledge of the right to withhold consent is a relevant factor in assessing the voluntariness of consent given to law enforcement, but officers are not required to inform the consenting party of this right beforehand. In this case, Barnett's assertion that he believed the agents had a search warrant was contradicted by his statement indicating he understood they required his consent. Barnett was familiar with law enforcement due to multiple prior arrests and convictions, which suggests he was less likely to be intimidated by the officers' presence. Furthermore, the officers had holstered their weapons and informed Barnett of his Miranda rights before seeking consent, mitigating any claim of coercion. The court found no evidence of threats or pressure, concluding that Barnett's consent was voluntary.

Barnett also argued that the district court erred by not suppressing evidence obtained from a search warrant supported by an allegedly false affidavit. He claimed that erroneous heat-imaging test data in the affidavit was materially false or included with reckless disregard for the truth, rendering the affidavit insufficient to establish probable cause. The district court held a Franks hearing to assess Barnett's claims regarding the affidavit's integrity. The court's findings will be reviewed for clear error, focusing on whether Barnett proved the affidavit was perjurious or recklessly false and whether it was inadequate for establishing probable cause without the disputed material. Barnett contended that Trooper Welby, who provided the heat-imaging data, lacked the necessary training and failed to verify the device's operational mode prior to the flyover.

The district court's determination that Welby did not act in bad faith is upheld, as there is no evidence of intentional misinterpretation of infrared equipment data. Instead, Welby genuinely, though mistakenly, believed the equipment was in the "white-hot" polarity mode during a flyover. There is also no indication that Lemon was aware of any inaccuracies in the heat-imaging data. Barnett contends that Lemon's affidavit omitted Welby’s inexperience with the heat-imaging equipment, characterizing it as a significant and intentional omission. However, the court did not directly address this issue, and it deemed the affidavit sufficient even without the disputed data. A warrant is valid if probable cause remains when disregarding any false statements, as established in United States v. Veillette and supported by Fourth Amendment standards, which require a substantial basis for concluding a search may yield evidence of wrongdoing.

Key points from the affidavit that established probable cause include: 

1. In March 1990, an informant reported that Barry Jordan and "Barney" were producing methamphetamine in the South Shore area, having manufactured ten pounds previously.
2. Jordan indicated to a DEA agent that he had 160 pounds of chemicals and needed hydriodic acid to produce forty pounds of methamphetamine, which the agent subsequently supplied in exchange for methamphetamine.
3. Photographs showed a "black bordered area" in the trailer, which Lemon speculated was a trapdoor or vent for a clandestine lab.
4. Unusual electricity consumption patterns suggested the operation of a clandestine lab, coinciding with the time of methamphetamine production.
5. DEA agents observed a power cord linking the trailer to a house during aerial surveillance.
6. On May 30, a DEA agent saw Barnett mixing a "yellow, slushy mixture" at the trailer.
7. The trailer's remote location was conducive for clandestine activities.

Barnett's objection regarding Bruton grounds does not present a confrontation clause violation, as no specific objection was raised, and no limiting instruction was requested regarding the testimony involving Fitzgerald.

A hearsay objection was raised during court proceedings, which was sustained in part, but testimony regarding Michael Barnett was allowed to continue. Barnett's argument claimed that the court's comments regarding Fitzgerald's status as a "fact witness" constituted reversible error under the Bruton doctrine. However, the court found this argument baseless, noting that Fitzgerald's statements did not directly implicate Barnett and were merely factual observations corroborated by independent evidence. Furthermore, even if the jury inferred a connection between Fitzgerald and Barnett, the statements did not possess the "powerfully incriminating" nature needed to violate Bruton principles, as Fitzgerald did not confess any guilt or knowledge regarding Barnett's actions. 

The court also highlighted that potential prejudice from the joint trial was mitigated by pretrial stipulations that prevented any reference to Barnett by name in Fitzgerald's testimony and by the court's strict admonitions against such mentions. Barnett's claim that the court erred by not providing a limiting instruction on Fitzgerald's extrajudicial statements was deemed waived, as he failed to request or object to such an instruction during the trial. 

Barnett further contended that severance was necessary to avoid cumulative prejudice from Fitzgerald's statements and testimony from Sheryl Fitzgerald. The standard for reviewing severance rulings is abuse of discretion, requiring a showing that the defendant was denied a fair trial, which Barnett did not establish. The court noted that while some incidental prejudice is unavoidable in joint trials, it must rise to the level of manifest abuse to warrant reversal.

The trial court is likely to view the defense counsel's decision not to request a jury instruction regarding Lemon's testimony as a reasonable tactical choice. Courts have been cautious about imposing additional burdens on trial judges by requiring them to intervene in strategic decisions made by counsel. There was no plain error identified, as the lack of a limiting instruction did not undermine the fairness or integrity of the trial. Barnett claims two aspects of Sheryl Fitzgerald's testimony were prejudicial: his presence at her house and the discovery of a piece of paper with handwriting different from her husband's. However, Barnett did not object to her testimony at trial nor did he seek any limiting instructions, which undermines his claim of unfair prejudice. 

Barnett's appeal regarding the dismissal of his motion to correct sentence under Fed. R. Crim. P. 35(a) for a downward departure due to diminished mental capacity was also unsuccessful. Although he cited short-term memory loss, mental and emotional conditions do not generally justify a downward departure under sentencing guidelines. The district court dismissed the motion, stating it could not grant relief under Rule 35(a) without a remand from the appellate court. Additionally, Rule 35(c), which allows for corrections of clear sentencing errors, was not in effect at the time of Barnett's motion. Consequently, as there were no unlawful or unreasonable aspects to his sentence, the dismissal of his motion was deemed proper.

Federal Rule of Criminal Procedure 35(a) allows a court to correct a sentence determined on appeal to have been legally improper, incorrectly applied under sentencing guidelines, or unreasonable, upon remand for a new sentence or further proceedings. Barnett argues for indictment dismissal based on due process due to Agent Kelly's sale of hydriodic acid to Jordan, claiming it amounted to outrageous government conduct. A violation of the Due Process Clause occurs when law enforcement actions are fundamentally unfair and shocking to justice. The Supreme Court has indicated that even significant government participation in a crime may not violate due process if the defendant is predisposed to commit the offense. The court found no due process violation in this case, as drug conspiracies often require more government involvement, and such infiltration does not constitute outrageous conduct. Agent Kelly's actions were justified as part of a legitimate investigation, and evidence indicated that Barnett had a history of methamphetamine production. Consequently, the district court properly denied Barnett's motion to dismiss. Furthermore, Barnett's claims of cumulative error were dismissed, affirming the notion that a fair trial does not necessitate perfection. The convictions and sentences for both Jordan and Barnett were upheld.