The opinion of the court was delivered by: BRODERICK
Defendants, Donald Taylor, Sherman Curl and James Williams, were found guilty by a jury on a two-count indictment charging all three defendants in Count I with conspiracy to manufacture and distribute methamphetamine in violation of 21 U.S.C. § 846 and charging Williams in Count II with using a communication facility in facilitating a conspiracy to manufacture methamphetamine in violation of 21 U.S.C. § 843(b). Defendant Curl filed a motion for arrest of judgment. All three defendants filed motions for judgment of acquittal and/or a new trial. Oral argument was had on the motions. The Court has considered these motions without the benefit of a transcript. For the reasons hereinafter set forth, defendants' motions will be denied.
I. Defendant Curl's Motion for Arrest of Judgment.
Defendant Curl has filed a motion for arrest of judgment, pursuant to Fed.R.Crim.P. 34,
alleging that the indictment was vague, indefinite and ambiguous, did not sufficiently set forth the alleged offenses sought to be charged against the defendant, and did not adequately apprise the defendant of the crime or crimes charged. We find that the indictment is sufficient as a matter of law to charge the offense of conspiracy under 21 U.S.C. § 846. Count I of the indictment, in which the crime of conspiracy is charged, lists the date of the offense, tracks the language of the statute under which the violation is alleged, 21 U.S.C. § 846, and cites the specific statutes which the defendant was charged with having conspired to violate. Finally, the indictment lists numerous, detailed overt acts alleged to have been committed in furtherance of the conspiracy. These overt acts are of sufficient detail to advise Curl of the offense with which he is charged. The indictment is clearly sufficient as a matter of law to charge Curl with the offense of conspiracy. United States v. Miah, 433 F. Supp. 259 (E.D.Pa.1977), aff'd, 571 F.2d 573 (3d Cir. 1978); See United States v. Hudson, 422 F. Supp. 395 (E.D.Pa.1976), Aff'd, 556 F.2d 566 (3d Cir.), Cert. denied, 431 U.S. 922, 97 S. Ct. 2194, 53 L. Ed. 2d 236 (1977). As the indictment charges the defendant with violating laws of the United States within this District, this Court has jurisdiction of the offense charged. 18 U.S.C. § 3231. Because the indictment clearly charges an offense of which this Court has jurisdiction, defendant's motion in arrest of judgment must be denied. United States v. Miah, supra; United States v. McDaniel, 75 F.R.D. 454 (W.D.Okl.1977).
II. Defendants' Motions for Judgment of Acquittal.
In support of their motions for judgment of acquittal, the defendants contend that the verdicts were contrary to the weight of the evidence and were not supported by substantial evidence.
We find that the evidence produced at trial, viewed in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 86 L. Ed. 680 (1942); United States v. Armocida, 515 F.2d 29, 46 (3d Cir.), Cert. denied, 423 U.S. 858, 96 S. Ct. 111, 46 L. Ed. 2d 84 (1975), is more than sufficient to support the verdicts. The evidence presented at trial, viewed in the light most favorable to the government, may be summarized as follows.
Around October, 1976, Alfred Moore contacted the defendant Williams in an attempt to obtain from Williams phenyl-2-propanone (P-2-P), the principal precursor chemical used in the manufacture of methamphetamine. In November of that year, Williams told Moore that he could obtain P-2-P, and an agreement was reached pursuant to which Williams would give one bottle of P-2-P to Moore, who, in return, would give Williams 8 ounces of the methamphetamine manufactured from the P-2-P. Williams gave Moore a bottle of P-2-P at Williams' store at 2349 W. Thompson Street. Meanwhile, Moore contacted defendant Taylor, who assured him that he could make methamphetamine. Taylor and Moore reached an agreement that in exchange for one bottle of P-2-P from Moore, Taylor would manufacture methamphetamine from the P-2-P and give to Moore 12 ounces of methamphetamine, 8 ounces of which Moore would give to Williams. Moore took the bottle of P-2-P he had received from Williams to Taylor, who, after smelling it, said that it was what he needed to make methamphetamine. One week later, Moore met with Taylor and the defendant Curl, and the three of them proceeded to a store in Northeast Philadelphia, where they purchased a crock pot, which Taylor stated, in Curl's presence, he would use in making the methamphetamine. Two days later, Taylor delivered to Moore three envelopes, each containing 4 ounces of methamphetamine, two of which Moore delivered to Williams, and one of which Moore sold for between $ 300 and $ 750 per ounce.
The same arrangement was followed about three weeks later: Williams gave Moore one bottle of P-2-P, which Moore delivered to Taylor, who, within a few days, gave Moore 12 ounces of methamphetamine. Moore gave Williams 8 ounces and sold the remaining 4 ounces at approximately $ 300 per ounce.
In the spring of 1977, Williams told Moore that he could get more P-2-P. They agreed on an exchange of one bottle of P-2-P for 8 ounces of methamphetamine. Moore delivered the bottle of P-2-P to Curl who gave it to Taylor. Taylor encountered some problems with drying out the methamphetamine he manufactured from this particular bottle of P-2-P, and Moore took Taylor to meet Williams at the store on Thompson Street. Moore introduced Taylor as the man who did the manufacturing and Williams as the man who supplied the P-2-P. A few days later, Curl called Moore and said that the methamphetamine was ready. Moore proceeded to the meeting place designated by Curl and found Williams, who said that he was supposed to meet Taylor there. Taylor and Curl arrived a few minutes later. Curl drove Moore around the block and gave him 3 ounces of methamphetamine, explaining that they had come up short because of the problems with drying out the methamphetamine.
Sometime in May, 1977, Moore agreed to give Officer Henry Cunningham, an undercover police officer, one ounce of methamphetamine or $ 500 for one bottle of P-2-P. Moore, having only $ 175, asked both Taylor and Curl for the ounce of methamphetamine or the $ 325 he needed to obtain the P-2-P from Cunningham. Cunningham eventually gave Moore the bottle of P-2-P in return for Moore's promise to give him 2 ounces of methamphetamine. In Curl's presence, Moore gave the P-2-P to Taylor and told Taylor to keep one half of the methamphetamine he manufactured from the P-2-P. Moore became suspicious of Cunningham and, upon Taylor's advice, did not contact him further. After three or four weeks, Taylor told Moore that the methamphetamine did not turn out.
Moore next met Taylor in February, 1978, at which time Taylor promised that he would have 8 ounces of methamphetamine up front for Moore in return for a bottle of P-2-P. Taylor did not mention where he would get the methamphetamine but told Moore that he had been coming out of the J. T. Baker Chemical Co. (J. T. Baker) in Philipsburg, New Jersey with a quantity of P-2-P when Drug Enforcement Administration (DEA) agents seized it. Taylor also told Moore that he had met with Williams, who wanted to learn how to manufacture methamphetamine.
The government introduced various work orders, receiving memos, customer purchase orders and other records maintained by J. H. Berge, Inc., the Arthur H. Thomas Company (A. H. Thomas) and J. T. Baker which indicate that orders for various chemicals, including P-2-P, tubing and a condenser were placed by the Goode & Jacobs Plastics Co., the Don Sherman Corporation, the James Williams Exterminating Co. and other companies. The phone number given by the customer ordering 5 bottles of P-2-P from J. H. Berge, Inc. on August 8, 1978 was that of Darlene Taylor, the sister of defendant Taylor. Several orders for P-2-P placed by the Goode & Jacobs Plastics Co. with A. H. Thomas from May, 1977 to April, 1978 listed the phone number of defendant Curl as that of the company placing the order. Certain of the receiving memos were signed Sherman Curl and/or Donald Taylor. Mr. Joseph Cici, the order filling department manager at A. H. Thomas, identified Donald Taylor as the man who had picked up certain of these orders. Three orders for P-2-P, methylamine and mercuric bromide were placed with A. H. Thomas by the James Williams Exterminating Co. in September, October and December of 1977. The address and phone number given for the James Williams Exterminating Co. in connection with these orders were the address and phone number of defendant Williams' store at 2349 W. Thompson Street. In connection with one of the orders which was called in, the records of A. H. Thomas reflect that the caller gave the name of James Williams. After defendant Williams picked up one of the orders at A. H. Thomas on October 28, 1977, he was stopped by DEA agents and was taken to DEA headquarters where he admitted that he was using P-2-P not for exterminating purposes but for selling it to others for the manufacture of methamphetamine.
Orders for P-2-P and two propanol placed by the Don Sherman Corp. at J. T. Baker were in the names of Donald Taylor or Sherman Curl. The records indicate that one of the orders was picked up by Donald Taylor. The telephone number listed on the orders for the Don Sherman Corp. was defendant Curl's number. No corporation was found to exist at the address given for the Don Sherman Corp. Defendant Taylor picked up one of the orders on January 9, 1978. One order for 50 bottles of P-2-P was placed with J. T. Baker in October, 1977 by Best Services Corp. and was picked up by defendant Williams on November 1, 1977.
Clarence Gardner, a confidential government informant, saw Williams in New Orleans in September, 1978. Williams told Gardner that he had made $ 300,000 selling methamphetamine, but that he was having a problem obtaining "oil", the street name for P-2-P. On September 21, 1978, Gardner spoke to Williams by telephone and arranged to deliver a case of P-2-P to Williams. On September 22, 1978, Williams phoned Gardner at the Ramada Inn in Essington, Pennsylvania, and arrangements were made for Williams to pick up six bottles of P-2-P. Williams gave Gardner $ 5400 for the six bottles of P-2-P and told Gardner that he was putting the P-2-P to work that night to make methamphetamine. Williams also told Gardner that he wanted more P-2-P and agreed to sell Gardner a pound of the methamphetamine manufactured from the six bottles of P-2-P for $ 5000. The government, with Gardner's consent, made tape recordings of the conversations between Williams and Gardner, together with a moving picture of the transfer of the P-2-P from Gardner to Williams.
Defendant Williams, after being arrested on January 19, 1979, admitted receiving the six bottles of P-2-P from Gardner and stated that he had delivered these six bottles to a Merrill Ferguson, who used the P-2-P to manufacture methamphetamine. He stated that he did not sell one pound of methamphetamine to Gardner in accordance with their agreement because the word was out that Gardner was a confidential government informant.
Agent Compton arrested Taylor on January 17, 1979, at which time he found two pieces of paper on the floor of the car Taylor was driving. These pieces of paper contained various notations, including the name Goode & Jacobs Plastic Co., the words "phenyl acetone" (another name for P-2-P), the name "Don Williams" (which was also on the purchase order for five bottles of P-2-P from J. H. Berge, Inc.), and the word "cinnamaldehyde" (which is a chemical that can be used in manufacturing methamphetamine).
Defendant Curl was arrested on January 17, 1979 at his home. At a DEA office later that morning, Curl admitted that during a certain period of time he had participated in the manufacture of methamphetamine by ordering chemicals. He also admitted that he dealt with Alfred Moore and made deliveries of methamphetamine.
The government presented the expert testimony of a forensic analytical chemist who testified that P-2-P and phenyl acetone are the same chemical and that P-2-P is the basic ingredient in the manufacture of methamphetamine. Two propanol, another name for isopropyl alcohol, mercuric bromide and methylamine are also chemicals used in the manufacture of methamphetamine. He testified further that he knew of no use for P-2-P other than the manufacture of methamphetamine and certain pharmaceuticals and that he knew of no laboratories in the Philadelphia area using P-2-P legitimately.
The government's case was strong, and there can be no doubt that the evidence was amply sufficient to support the jury's verdict as to each of the three defendants on Count I and as to Williams on Count II. We, therefore, reject the defendants' contentions that the evidence produced at trial was insufficient to support the verdicts of the jury.
III. Defendants' Motions for a New Trial.
The defendants make the following allegations of error in support of their motions for a new trial:
1. Defendant Taylor contends that the Court erred in failing to grant his motion for severance.
2. Defendant Taylor contends that the Court erred in denying his pretrial motion to suppress evidence concerning a search and seizure on January 9, 1978 by Agent Compton and statements ...