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UNITED STATES v. THROWER

November 29, 1977

UNITED STATES OF AMERICA
v.
EMMETT FLOYD THROWER



The opinion of the court was delivered by: FOGEL

 Following a non-jury trial, this Court found defendant Emmett Thrower guilty of distribution of methamphetamine, possession with intent to distribute methamphetamine, and conspiracy to distribute methamphetamine, in violation of federal drug laws, 21 U.S.C. §§ 841(a)(1), 846. Thrower has appealed his conviction.

 During the pretrial stages of this case, we denied without written opinion certain pretrial motions submitted by Thrower. Accordingly we will at this juncture fully set forth for the record the grounds for our denial of those motions.

 Defendant Thrower and two other individuals, Charles Alexander and Vera Davis, were charged in a seven-count indictment with violations of federal statutes governing the distribution and possession of methamphetamine, a Schedule II non-narcotic controlled substance. Vera Davis pleaded guilty to Count I (charging her with distribution of methamphetamine, 21 U.S.C. § 841(a)(1)), and to Count VII (charging her with conspiracy to distribute methamphetamine, 21 U.S.C. §§ 846, 841). Both Thrower and the remaining co-defendant, Alexander, waived their right to a jury trial and were then tried by the Court.

 We found defendant Thrower guilty of four counts: Count II, charging distribution of methamphetamine, 21 U.S.C. § 841(a)(1); Count III, charging distribution of methamphetamine, 21 U.S.C. § 841(a)(1); Count V, charging possession with intent to distribute methamphetamine, 21 U.S.C. § 841(a)(1); and Count VII, charging conspiracy to distribute methamphetamine, 21 U.S.C. §§ 841, 846.

 Defendant Alexander was convicted on two counts: Count IV, charging him with aiding and abetting the distribution of methamphetamine, 18 U.S.C. § 2, 21 U.S.C. § 841; and Count VI, charging him with possession of methamphetamine, 21 U.S.C. § 844(a). On two other counts, Alexander was acquitted; namely, Count V, charging him with possession with intent to distribute methamphetamine, 21 U.S.C. § 841(a)(1), and Count VII, charging him with conspiracy to distribute methamphetamine, 21 U.S.C. §§ 841, 846.

 During the trial, both counsel for Thrower and counsel for Alexander stated that they would not request specific findings of fact; therefore, our findings as to each defendant were general findings, in accordance with the requirements of F.R.Crim.P. 23(c).

 A. Pretrial Motions

 Prior to trial, certain motions were filed by defendant Thrower and by the Government; no pretrial motions were submitted by defendant Alexander. Defendant Thrower filed three motions: (1) a Motion for a Bill of Particulars; (2) a Motion to Compel Election Between Substantive Counts and the Conspiracy Count; and (3) a Motion to Suppress Evidence. The Government filed only one motion: A Motion for the Use of Tape Recordings and Transcripts of Consensually Monitored Conversations.

 On February 8, 1977, we heard argument in open court on the pending motions, and we conducted an evidentiary hearing as to the issues raised by defendant Thrower's Motion to Suppress Evidence. At that time we denied defendant Thrower's Motion for a Bill of Particulars; *fn1" we also denied his Motion to Compel Election Between Substantive and Conspiracy Counts. *fn2" After hearing testimony directed to the Motion to Suppress Evidence, we took that motion under advisement.

 We also reserved our decision on the Government's Motion for the Use of Tape Recordings and Transcripts of Consensually Monitored Conversations; since that motion was subsequently withdrawn by the Government, a decision on the merits of the Government's Motion was never required.

 On March 9, 1977, we made our findings of fact of record denying defendant Thrower's Motion to Suppress.

 B. Post-Trial Motions

 Following our adjudication of guilt, which we made on March 11, 1977, defendant Thrower filed a timely Motion for New Trial and/or Arrest of Judgment. We denied that Motion, for the reasons set forth in our Memorandum and Order of April 21, 1977, *fn3" and then sentenced Thrower to four concurrent terms of imprisonment of ten years on each of the four counts, and to four concurrent four year special parole terms on each of the counts.

 After the period for appeal had expired, defendant Thrower submitted a Motion to File an Appeal Out of Time. We granted that motion, for the reasons expressed in our Memorandum and Order of May 19, 1977, United States v. Thrower, 431 F. Supp. 892 (E.D. Pa. 1977).

 After carefully reviewing the entire record in this case we believe that only one of our rulings requires any further comment at this stage; namely, our denial of Thrower's Motion to Suppress Evidence.

 II. DENIAL OF DEFENDANT THROWER'S PRETRIAL MOTION TO SUPPRESS

 In his pretrial Motion to Suppress Evidence, defendant Thrower requested the suppression of the following evidence: first, the methamphetamine and drug paraphernalia found by government agents in the trunk of a Cadillac automobile; and second, the envelope containing $1800, seized from Thrower during a search of his person following his arrest conducted at the Federal Drug Enforcement Administration (D.E.A.) Headquarters, in Philadelphia. As to each type of evidence, Thrower claimed that the evidence was obtained in ...


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