and because the government presented evidence at trial of more than one conspiracy.
8. Defendant Williams contends that a new trial should be granted based on newly discovered evidence.
1. Defendant Taylor's Motion for Severance.
The defendant, Taylor, claims that the Court erred in denying his pretrial motion for severance pursuant to Rule 14 of the Federal Rules of Criminal Procedure. Specifically, Taylor claims that he suffered actual prejudice as a result of his being implicated by a post-arrest statement of defendant Curl
and by the quantum of evidence introduced against his codefendants. The Court denied Taylor's pretrial motion inasmuch as the conspiracy alleged did not appear so complex nor the actors so numerous that the evidence against each defendant could not be kept separate in the minds of the jurors, because the defendant had not made a showing of the likelihood of a codefendant testifying on his behalf, and because judicial economy weighed heavily in favor of trying all of the defendants in a single trial. Order, P 4, Cr.No. 79-13-1 (April 3, 1979); See United States v. Boscia, 573 F.2d 827 (3d Cir.), Cert. denied, 436 U.S. 911, 98 S. Ct. 2248, 56 L. Ed. 2d 411 (1978); United States v. Rosa, 560 F.2d 149 (3d Cir. 1977), Cert. denied, 434 U.S. 862, 98 S. Ct. 191, 54 L. Ed. 2d 135 (1978). Having heard the evidence at trial, and having carefully instructed the jury concerning the admissibility of certain evidence,
the Court finds that its pretrial ruling was correct. That the jury acquitted the defendant Reid of the conspiracy charged in Count I of the indictment is an indication that the jurors were in fact able to compartmentalize the evidence introduced at trial. Therefore, the defendant Taylor's contention that the Court erred in denying his pretrial motion for severance is without merit.
2. Defendant Taylor's Motion to Suppress Evidence and Statements of January 9, 1978.
Prior to trial, defendant Taylor moved to suppress evidence seized from the trunk of the vehicle in which he was a passenger on January 9, 1978.
The testimony at the pretrial suppression hearing can be summarized as follows: On January 9, 1978, DEA agents, pursuant to surveillance at J. T. Baker, observed Taylor purchasing certain chemicals and placing them in the trunk of the vehicle. The agents followed the vehicle on Route 22 from New Jersey into Pennsylvania. Agent Compton stopped the vehicle and asked the driver for identification and proof of ownership. The driver produced an expired driver's license in the name of Donald Wilson and related that the car was a leased vehicle. Shortly thereafter, the driver stated that his name was Charles Ragin. Taylor produced no identification. Agent Compton instructed Ragin to follow him to the nearest Pennsylvania State Police barracks, where Agent Compton verified the identity of Charles Ragin and Donald Taylor and confirmed that Ragin had been given permission to use the vehicle by the lessee, Karen Lester. Agent Compton thereafter seized the chemicals from the trunk of the vehicle and permitted Ragin and Taylor to proceed. The total elapsed time from the original stop of the vehicle was less than 1 1/2 hours.
Defendant Taylor contends that the seizure of the chemicals from the trunk of the vehicle violated his right under the Fourth Amendment to be free from unreasonable searches and seizures and, consequently, moved to suppress such chemicals. The government contends that defendant Taylor lacked standing to contest the search and seizure and that there were both probable cause and exigent circumstances justifying the seizure.
We agree with both contentions of the government.
Until recently, a defendant had standing to contest searches and seizures where he was legitimately on the premises at the time of the search; where he had a legitimate proprietary or possessory interest in the premises searched, or where he was charged with an offense that includes as an essential element possession of the item seized. E.g., Brown v. United States, 411 U.S. 223, 230, 93 S. Ct. 1565, 36 L. Ed. 2d 208 (1970); Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960). The Supreme Court, in the recent case of Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), re-examined the standing doctrine in the context of a passenger in an automobile. In Rakas, the Court stated that the phrase "legitimately on the premises" creates too broad a gauge for measurement of Fourth Amendment rights and should not be applied in that case with respect to Fourth Amendment claims of automobile passengers. Id. at 132, 99 S. Ct. at 424. Specifically, the Court held that passengers who asserted neither a property nor a possessory interest in the automobile searched nor an interest in the property seized and who failed to show that they had any legitimate expectation of privacy in the glove compartment or area under the seat of the car in which they were passengers, were not entitled to challenge a search of these areas. Id. at 134, 99 S. Ct. 425.
In the case presently before the Court, defendant Taylor was merely a passenger in a car leased and driven by other people. He claims neither a property nor a possessory interest in the automobile. Although Taylor purchased the chemicals seized from the automobile, possession of those chemicals is not an essential element of the offense charged conspiracy to distribute and manufacture methamphetamine. Thus, Taylor does not claim an interest in the property seized sufficient to confer standing to contest the search. Finally, Taylor has not demonstrated any legitimate expectation of privacy in the trunk of the automobile in which he was a passenger. In fact, the Supreme Court, in discussing whether the petitioners in Rakas had any legitimate expectation of privacy in the glove compartment or area under the seat of the car in which they were merely passengers, stated that "Like the trunk of an automobile, these are areas in which a passenger Qua passenger simply would not normally have a legitimate expectation of privacy." Id. The defendant, Taylor, did not present any evidence at the pretrial hearing showing that he had a legitimate expectation of privacy in the trunk of the car. Thus, under the recent Supreme Court pronouncement in Rakas, it is clear that Taylor lacks standing to contest the search of the automobile in which he was a passenger and the seizure of the chemicals from the trunk in connection therewith. Therefore, the defendant Taylor's motion to suppress was properly denied.
Even if Taylor has standing to challenge the search of the automobile, his motion to suppress was nevertheless properly denied because the search and seizure were reasonable under the Fourth Amendment.
The Supreme Court in Chambers v. Maroney, 399 U.S. 42, 51, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970), relying on Carroll v. United States, 267 U.S. 132, 153, 45 S. Ct. 280, 69 L. Ed. 543 (1925), held that where probable cause exists to seize an automobile, a search may be made without a warrant where the car is movable and the evidence sought may be lost in the time it would take to secure a warrant. Chambers extended the exigent circumstances doctrine to include a later search at the police station. 399 U.S. at 52 and n.10, 90 S. Ct. 1975. However, warrantless searches permissible under the doctrine of exigent circumstances are not without limits. As stated by the Third Circuit in United States v. Valen, 479 F.2d 467, 471 (3d Cir. 1973), Cert. denied, 419 U.S. 901, 95 S. Ct. 185, 42 L. Ed. 2d 147 (1974), "Chambers makes clear that the right to search which attaches at the time of seizure, continues to exist for a reasonable time after the seizure." See United States v. Vento, 533 F.2d 838, 866 (3d Cir. 1976); United States v. Dento, 382 F.2d 361, 366 (3d Cir.), Cert. denied, 389 U.S. 944, 88 S. Ct. 307, 19 L. Ed. 2d 299 (1967); Cf. Mincey v. Arizona, 437 U.S. 385, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978). Thus, we are faced with two separate determinations, first whether exigent circumstances existed to permit the warrantless seizure, and second, whether pursuant to this doctrine the warrantless search was conducted within a reasonable time after the seizure. See United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 2486, 53 L. Ed. 2d 538 (1977).
The Third Circuit in Valen established a two-prong test for a warrantless search and seizure under exigent circumstances: (1) probable cause to make the search; and (2) reasonable possibility of the agent's loss of dominion and control over the object to be searched and the consequential loss of the contraband. 479 F.2d at 470.
In the instant case probable cause existed for the DEA agents to believe that the automobile contained chemicals that were intended to be used in the illegal manufacture of methamphetamine. At the suppression hearing, Agent Compton testified that he commenced surveillance of J. T. Baker in the morning of January 9, 1978. He saw Taylor and Ragin arrive in a Chevrolet Monte Carlo and later load three cardboard boxes into the trunk of that vehicle. From information received from Bruce Frace, an employee of J. T. Baker, Agent Compton was aware that these boxes contained 10 bottles of P-2-P and quantities of methylamine and two propanol, which Taylor had previously ordered in the name of Don Sherman Corp. Agent Compton had earlier been notified by a Mr. Norton Euart, head of security at J. T. Baker, concerning this order, and arrangements had been made for the surveillance of the pickup of the order. Prior to January 9th, Agent Compton determined that the Don Sherman Corp. was not located at the address given for that company by Taylor in connection with the order. Furthermore, the phone number given for Don Sherman Corp. was really that of a Claudette Brown, who, Agent Compton had been informed by another officer, had been investigated by a Philadelphia narcotics unit in the summer of 1976 which seized an illegal methamphetamine manufacturing unit from an apartment rented by Ms. Brown. During the search of that apartment, the name and address of a Donald Jackson, believed to be the same person as Donald Taylor, were found on a telephone bill. In addition, Agent Compton testified that he had seen Taylor on a previous occasion, on June 24, 1977, in connection with negotiations between Officer Cunningham and Alfred Moore for the exchange of P-2-P for methamphetamine. On that day, Officer Cunningham gave Moore a bottle of P-2-P for $ 175 and Moore's promise to deliver a certain quantity of methamphetamine. Agent Compton saw Moore, with the bottle of P-2-P, enter an automobile in which Taylor was a passenger and subsequently leave the car without the bottle. Agent Compton followed the car to several locations, including the address of the apartment rented in Claudette Brown's name the address to which the phone number given by Taylor as the phone number for the Don Sherman Corp. was registered. Agent Compton had also been informed by a confidential informant in May, 1977 that a clandestine laboratory chemist active in the illegal manufacture of methamphetamine, whose girlfriend was Claudette Brown, was named Donald "Duck", the nickname of defendant Taylor.
When Ragin and Taylor arrived at J. T. Baker on January 9, 1978, Agent Compton testified they signed in using their correct names, although Ragin wore a nameplate with the name of Donald Wilson. Dennis Euart, a security guard at J. T. Baker, informed Agent Compton that Taylor had visited J. T. Baker on January 6, 1979 and, when signing in on that date, provided an incorrect license tag and used the name William Brown.
The circumstances related above clearly gave Agent Compton probable cause to search the automobile for the chemicals contained in the trunk.
Therefore, the first prong of the two-prong test set forth in United States v. Valen, supra, for a warrantless search and seizure under exigent circumstances is satisfied, inasmuch as there was probable cause to make the search. The second prong that there be a reasonable possibility of the agent's loss of dominion and control over the object to be searched and the consequential loss of the evidence is also satisfied. The evidence was in the trunk of an automobile. As in Chambers, supra, the car was movable and the evidence sought could be lost in the time it would take to secure a warrant. Thus under the Valen test there were exigent circumstances justifying the warrantless seizure of the chemicals.
The fact that the search was conducted at the police station does not invalidate the search, for Chambers extended the exigent circumstances doctrine to include a later search at the police station. 399 U.S. at 52 and n.10, 90 S. Ct. 1975. We find that the search and seizure in the instant case, which took place within 1 1/2 hours of the initial stop, occurred within a reasonable time. United States v. Vento, 533 F.2d 838, 866 (3d Cir. 1976).
Taylor also contends that because the chemicals seized from the trunk of the automobile could be legally purchased by anyone, they were not contraband and, therefore, they were not subject to seizure. The Supreme Court, however, in Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967), stated:
(I)t is reasonable, within the terms of the Fourth Amendment, to conduct otherwise permissible searches for the purpose of obtaining evidence which would aid in apprehending and convicting criminals. The requirements of the Fourth Amendment can secure the same protection of privacy whether the search is for "mere evidence" or for fruits, instrumentalities or contraband. There must, of course, be a nexus automatically provided in the case of fruits, instrumentalities or contraband between the item to be seized and criminal behavior. Thus in the case of "mere evidence," probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction. Id. at 307, 87 S. Ct. at 1650.
In the instant case, the nexus between the chemicals and the illegal manufacture of methamphetamine was clearly provided by Agent Compton's knowledge of Taylor's connection with the controlled delivery of P-2-P by Officer Cunningham to Alfred Moore on June 29, 1977 and the intended exchange of that P-2-P for methamphetamine, by Taylor's connection with Claudette Brown, in whose apartment an illegal laboratory used for the illicit manufacture of methamphetamine had been seized by narcotics agents, by Taylor's use of a false address and the phone number of Claudette Brown for the Don Sherman Corp., by his use of an incorrect license plate and false name during his January 6, 1978 visit to J. T. Baker, and by Agent Compton's knowledge that the chemicals purchased were all precursor chemicals in the manufacture of methamphetamine. Thus, it is clear from the record that the initial stop of the automobile and the subsequent search and seizure at the police barracks were proper. Taylor's motion to suppress the chemicals seized, therefore, was properly denied. Inasmuch as Taylor's motion to suppress the statements he made at the police station on January 9, 1978 was based solely on his contention that such statements were the fruits of an illegal stop, search and seizure, that motion was likewise properly denied. Thus, defendant Taylor's contention that the Court erred in denying these pretrial motions to suppress is without merit.
3. Defendant Taylor's Motion to Suppress Evidence Seized on January 17, 1979.
Defendant Taylor contends that the Court erred in denying his motion to suppress certain pieces of paper seized by Agent Compton from the floor of the automobile which Taylor was driving at the time Agent Compton arrested him on January 17, 1979. Testimony at the pretrial hearing concerning this seizure can be summarized as follows: On January 17, 1979, Agent Compton stopped Taylor, who was driving an automobile, approached him and, with a warrant for his arrest, placed him under arrest. After placing Taylor, handcuffed, in the back of the police vehicle, Agent Compton, in attempting to move Taylor's car, which was blocking a driveway, noticed two pieces of paper folded together on the floor in front of the passenger seat. Upon seeing the words "cinnamaldehyde" and "phenyl acetone" on the pieces of paper, Agent Compton seized the papers.
Under Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), if there is a prior justification for an intrusion, an officer may seize any article of incriminating character if he comes upon it inadvertently and it is in plain view. There can be no question that Agent Compton's intrusion into the car was justified by his arrest of Taylor and his need to move the car so that it did not block the driveway. It is also clear from the testimony that Agent Compton discovered the pieces of paper inadvertently and that the papers were in plain view on the floor of the car in front of the passenger's seat. Taylor's principal contention is that Agent Compton had no reason to believe that the papers were articles of incriminating character. We disagree. Agent Compton saw the words "cinnamaldehyde" and "phenyl acetone" on the pieces of paper. These words denote chemicals that Agent Compton knew were used in the manufacture of methamphetamine. Given that Agent Compton arrested Taylor pursuant to an indictment charging Taylor with conspiracy to manufacture and distribute methamphetamine, pieces of paper containing the words of precursor chemicals certainly were articles of incriminating character. Therefore, Taylor's contention that the Court erred in denying his pretrial motion to suppress these pieces of paper is without merit.
4. Defendant Taylor's Motions for a Mistrial.
Defendant Taylor contends that the Court erred in denying his oral motions for a mistrial made during the course of the trial. The only such motion that Taylor specifically refers to is his motion in connection with the testimony of Agent Compton which summarized a post-arrest statement made to him by defendant Curl.
Agent Compton testified that on January 17, 1979, subsequent to Curl's arrest, Curl told Agent Compton at a DEA office that Curl had been part of an organization which manufactured methamphetamine, that he had ordered chemicals used in the manufacture of methamphetamine, that he had been to two chemical companies, that bogus names had been used at the companies, that he had met with Alfred Moore, and that he had carried drugs. In testifying before the jury concerning Curl's statements to him, Agent Compton never mentioned the name of defendant Taylor and did not in any way implicate defendant Taylor. This was not "a limited redaction" in violation of the Bruton rule. United States v. DiGilio, 538 F.2d 972, 982-83 (3d Cir. 1976), Cert. denied, 429 U.S. 1038, 97 S. Ct. 733, 50 L. Ed. 2d 749 (1977). Furthermore, immediately following Agent Compton's testimony concerning the statements made by Curl, the Court carefully instructed the jury that Agent Compton's testimony concerning the post-arrest statements made by Curl on January 17, 1979 should be considered only as to defendant Curl and not as to any other defendant. In the charge to the jury, the Court again instructed the jury to consider testimony concerning post-arrest statements as evidence against only the defendant who allegedly made the statement and against no other defendant. Thus, defendant Taylor's contention that the Court erred in denying his motion for a mistrial in connection with the post-arrest statement of defendant Curl is without merit.
5. Defendant Williams' Motions to Suppress Tapes.
Defendant Williams contends that the Court erred in denying his pretrial motions to suppress evidence of taped conversations between him and Clarence Gardner. Williams contends that Gardner's consent to the taping of the conversations was not voluntary because the government made certain promises to Gardner conditioned upon Gardner's cooperation. Having heard testimony from Gardner, the Court determined that his participation was voluntary. The test is whether the consent to the recording is voluntarily given; consent is not rendered involuntary merely because the person who consents expects some benefit therefrom. United States v. Moskow, 588 F.2d 882, 891 (3d Cir. 1978). Therefore, the fact that Gardner was cooperating with the government in the hope of receiving favorable treatment for himself does not render his consent involuntary. Thus, our pretrial ruling was without error.
6. Defendant Curl's Motion to Suppress His Post-Arrest Statement.
Defendant Curl contends that the Court erred in denying his pretrial motion to suppress his post-arrest statement on January 17, 1979 on the ground that Curl did not receive adequate Miranda warnings and did not waive his constitutional rights prior to making the statement.
The testimony at the pretrial hearing in connection with this motion can be summarized as follows: DEA Agent McGinn testified that he participated in the arrest of defendant Curl at Curl's home at approximately 8:00 a.m. on January 17, 1979. After being awakened and placed under arrest, Curl, in his living room, was advised of his constitutional rights and acknowledged that he understood them. He was taken to the Philadelphia office of the DEA, where Agent Compton asked him if he had been advised of his rights. Curl replied that he had been so advised, that he understood his rights and that he wished to cooperate without his attorney being present. Curl then made the statements which we discussed earlier in connection with defendant Taylor's motion for a mistrial.
Both Agent McGinn and Agent Compton testified that Curl was neither threatened, coerced nor struck at any time and that he appeared to be coherent and not under the influence of any alcohol or drugs. The Court finds that the defendant Curl was given his full Miranda warnings, that he understood them, and that his statements were given willingly and voluntarily after a valid waiver of his rights. Defendant's contention that we committed error by denying his pretrial motion to suppress is without merit. See North Carolina v. Butler, 441 U.S. 369, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979); Biddy v. Diamond, 516 F.2d 118 (5th Cir. 1975), Cert. denied, 425 U.S. 950, 96 S. Ct. 1724, 48 L. Ed. 2d 194 (1976); United States v. Stuckey, 441 F.2d 1104 (3d Cir. 1971); United States v. Kinsey, 352 F. Supp. 1176 (E.D.Pa.1972).
7. The Motions of the Defendants Alleging Multiple Conspiracies.
All three defendants contend that the Court erred in denying their pretrial motions to dismiss the indictment because multiple conspiracies were charged and because the government presented evidence at trial of more than one conspiracy. Count I of the indictment charged all of the defendants with conspiracy to distribute and manufacture methamphetamine while Count II charged only defendant Williams with using a communication facility to facilitate a conspiracy to manufacture methamphetamine. The evidence adduced at trial by the government concerned the conspiracy charged against all defendants in Count I and a separate conspiracy underlying the charge against Williams alone in Count II that he used a communications facility to facilitate a conspiracy. Defendants have demonstrated no prejudice resulting from the introduction of evidence concerning more than one conspiracy. In fact, the Court finds that neither of the two conspiracies was so complex nor the actors so numerous that the evidence concerning each conspiracy could not be kept separate in the minds of the jurors. As we discussed above in connection with the defendant's motions for judgment of acquittal,
the government's case was strong and the evidence was clearly sufficient to establish (as the jury found beyond a reasonable doubt) that all three defendants conspired as charged in Count I and that Williams used the telephone as charged in Count II to facilitate a conspiracy with others who were not defendants.
To ensure that the defendants would not be prejudiced by the introduction of evidence of more than one conspiracy, the Court gave cautionary instructions to the jury not to consider any of the evidence of the conspiracy charged as the underlying felony in Count II in connection with the conspiracy charged in Count I. The jury was also instructed not to draw any inferences from such evidence in connection with the conspiracy charged in Count I. Such cautionary instructions were given not only during the course of the trial at each point when the government introduced evidence of the conspiracy charged as the underlying conspiracy in Count II, but were also given to the jury in the Court's closing charge. For instance, in its closing charge, the Court told the jury:
You have heard testimony in this case which may be considered as evidence of several conspiracies. In this trial you are being asked to determine whether the evidence shows beyond a reasonable doubt the existence of two conspiracies and two conspiracies only. There is one conspiracy charged in connection with Count I and one conspiracy charged in connection with Count II. Count I charges a conspiracy among all four defendants, Alfred Moore and others to manufacture and distribute methamphetamine, which conspiracy allegedly existed from November, 1976 to September, 1978. Count II charges a conspiracy in connection with the use of the telephone by the defendant, Williams. You are not to consider evidence concerning any other conspiracies. Evidence of any conspiracy other than the conspiracy charged in Count I is not to be considered by you as evidence of the existence of the conspiracy charged in Count I or as evidence that any defendant was a member of the conspiracy charged in Count I, and you must not draw any inferences from such evidence or consider such evidence as making it likely that the conspiracy charged in Count I existed or that any defendant was a member of that conspiracy. Similarly, any evidence of any conspiracy other than the conspiracy charged in Count II in connection with the defendant Williams' alleged use of the telephone is not to be considered by you as evidence of the existence of the conspiracy charged in Count II or as evidence that the defendant Williams was a member of the conspiracy charged in Count II, and you must not draw any inferences from such evidence or consider such evidence as making it likely that the conspiracy charged in Count II existed or that the defendant, Williams, was a member.
There was testimony concerning conversations with Williams in New Orleans, recorded conversations with Williams, and transactions involving the defendant, Williams, and P-2-P in September, 1978, which alleged happenings are set forth in Count I of the indictment as overt acts 29 through 32. The testimony concerning these events in September, 1978 are not to be considered by you as evidence against any defendant other than defendant Williams, nor should any unfavorable inferences be drawn therefrom against any defendant other than Williams. As to defendant Williams, this evidence is to be considered by you only in connection with Count II of the indictment, which alleges the use of the telephone in facilitating a conspiracy to manufacture methamphetamine and no unfavorable inferences should be drawn from this evidence against Williams in connection with the conspiracy charged in Count I of the indictment. The evidence of the events in September, 1978 is not to be considered by you as evidence of the existence of the conspiracy charged in Count I or any defendant's membership in the conspiracy charged in Count I. It is to be considered by you only as to Count II.