IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________________________________
No. 91-4098
_________________________________________
United States of America
Plaintiff/Appellee,
versus
Jimmy Beaumont, Alvin Paul Brevell, Jr., a/k/a "Junior", Gerald Daniel Beaumont and Johnie Fae Beaumont, a/k/a Johnie R. Meyers
Defendants/Appellants. _________________________________________________________________
Appeals from the United States District Court for the Eastern District of Texas
__________________________________________________________________ (September 3, 1992)
Before GARZA, REYNALDO G., DAVIS AND BARKSDALE, Circuit Judges.
PER CURIAM:
In this multiple defendant appeal, appellants variously
challenge their convictions for conspiracy to manufacture
methamphetamine in violation of 21 U.S.C. § 846, possession of
precursor chemicals with intent to manufacture methamphetamine in
violation of 21 U.S.C. § 841(d)(1) and use of a telephone to
facilitate a conspiracy to manufacture methamphetamine in violation
of 21 U.S.C. § 843. Finding no reversible error, the convictions
and sentences of appellants are in all respects AFFIRMED.
THE FACTS Appellants Jimmy Beaumont (Beaumont) and his wife Johnie Fae
Beaumont (Johnie) regularly purchased chemical glassware and
precursor chemicals1 for use in manufacturing methamphetamine
between 1987 and 1989. The purchases were made at a chemical
distribution store in Houston, Texas.2 The owner of the store
reported the purchases and, in 1989, agents of the Drug Enforcement
Administration (DEA) began an investigation. DEA agent Ed Collins
(Collins) instructed the store owner to provide Beaumont with
Collins' phone number on his next visit, requesting that the owner
inform Beaumont that the number belonged to an individual who could
provide large quantities of precursor chemicals.
On December 13, 1989, Beaumont phoned Collins and offered to
purchase 440 pounds of phenylacetic acid and 50 gallons of
methylene for $9,200.00. The next day, Beaumont phoned Collins to
discuss the delivery of the precursor chemicals and the market
conditions of the availability of other precursors. Finally, on
December 15, 1989, Beaumont again phoned Collins and asked to meet
him at a truck stop near Houston. Collins suggested the two should
meet on the following Monday. The meeting, however, never
transpired as Collins was reassigned to another investigation. In
his stead was placed DEA Agent Rene Castaneda (Castaneda) and Sgt.
1 The particular precursor chemicals purchased included phenylacetic acid, methylene and sodium acetate. There is no contention by the appellants that these chemicals are not used in the processing of methamphetamine. 2 Jimmy and Johnie were occasionally accompanied on the purchases by appellant Gerald Beaumont, Jimmy's brother, and appellant Alvin Brevell.
2 Investigator Howard Jake Smith (Smith) of the Texas Department of
Public Safety.
On March 13, 1990, Smith and Castaneda met with appellant
Alvin Paul Brevell, Jr. (Brevell) at a restaurant in Orange, Texas.
Castaneda posed as a seller of precursor chemicals while Smith
adopted the identity of a manufacturer of methamphetamine. Smith
and Castaneda offered to sell Brevell 110 pounds of phenylacetic
acid in exchange for $4,500.00 and a percentage of the subsequently
manufactured methamphetamine. Brevell responded that any deals
would have to be approved by Beaumont. He was informed by
Castaneda that word of Beaumont's approval of the deal should be
transmitted to Smith. Upon completion of this meeting, the parties
left the restaurant and, in the parking lot, Castaneda revealed
some glassware used in the manufacture of methamphetamine to
Brevell. Brevell commented, after smelling the residue contained
in the glassware, that he enjoyed the chemical odor.
In April of 1990, appellant Gerald Daniel Beaumont (Gerald),
Beaumont's brother, phoned Smith and offered to purchase 440 pounds
of phenylacetic acid and 50 gallons of methylene for the price of
$16,200.00. Gerald phoned Smith again on April 9, 1990, to arrange
a meeting. That same afternoon, Smith, Gerald and Brevell
discussed the offer in the parking lot of a grocery store in
Orange. During this meeting, Gerald delivered to Smith a piece of
paper bearing the name "Jimmy" and containing Beaumont's phone
number.
On April 10, 1990, the day after the meeting at the grocery
3 store parking lot, Smith phoned Gerald and informed him that the
seller of the chemicals, Castaneda, would contact him shortly to
discuss the transaction. Later that same day, Castaneda phoned
Gerald and agreed to Gerald's offer. Gerald was informed at this
time that Castaneda's younger brother, in actuality DEA Agent
Miguel Villafranca (Villafranca), would deliver the chemicals along
with Smith. The transaction was later discussed by Smith and
Gerald on April 30, 1990 and, on May 1, 1990, Gerald was informed
by Smith that the deal had been delayed.
On May 2, 1990, Smith phoned Gerald and informed him the
seller had not produced the chemicals. Smith offered to further
discuss the purchase with Gerald and the two met that same
afternoon at a nightclub owned by Gerald. Smith demanded proof of
payment for the chemicals and after Gerald made several phone
calls, Beaumont arrived on a motorcycle and displayed before Smith
$8,000.00 in cash. Beaumont smelled of precursor chemicals upon
presentation of the money. Further discussions between Smith and
Gerald occurred on May 3, 1990, and on May 7, 1990, Smith phoned
Gerald to inform him the chemicals would arrive the following day.
On May 8, 1990, Smith informed Gerald of a minor delay and, later
that same afternoon, phoned Gerald again informing him the seller
had arrived with the chemicals. Gerald was told to return the call
at approximately 5:00 P.M.. At approximately 5:15 P.M., Smith told
Gerald to meet him at a mini-storage facility in Groves, Texas.
Later that same day, Smith and Villafranca sold 110 pounds of
phenylacetic acid and two five gallon drums of methylene to Gerald
4 and Brevell at the mini-storage facility.3
Subsequent to the purchase of the chemicals, Gerald and
Brevell transported the goods to a storage facility in Orange.
After the two left the area, a search warrant was executed for the
warehouse and the chemicals were seized. On May 9, 1990, a search
warrant was executed for Beaumont's residence at 705 Suduth Drive,
Bridge City, Orange County, Texas. Beaumont was arrested during
the execution of the warrant. In addition, agents seized
$12,300.00 in cash, various precursor chemicals,4 drug
paraphernalia,5 chemical glassware and laboratory equipment. That
same afternoon, Gerald was arrested in Louisiana and his tote bag
was found to contain glassware used in the manufacturing of
methamphetamine.
II. DISCUSSION
The appellants raise a variety of issues in this appeal. We
address them individually. Any error claimed by any appellant
which is not addressed has been held to be completely without merit
and is overruled.
A. Rule 41 Compliance
All appellants challenge the validity of the search warrant
3 During the sale, Villafranca explained that, due to car trouble, the rest of the phenylacetic acid could not be provided. Villafranca additionally discussed future purchases of chemicals with Gerald as well as purchases of cocaine. Gerald explained to Villafranca that Beaumont would have to approve all deals. 4 The chemicals seized at Beaumont's home included acetic anhydride, methylene, mercuric chloride and sodium acetate. 5 The paraphernalia included a scale, various weights and measures, cutting agents and various catalogs or shopping lists, some of which smelled of precursor chemicals.
5 executed at the home of Beaumont. As an initial matter, we note
that Gerald and Brevell have not alleged that they owned or
occupied Beaumont's home such that they could establish an
expectation of privacy necessary to confer standing under the
Fourth Amendment. See Rakas v. Illinois, 439 U.S. 128, 133-34
(1978) (defendant lacks standing under Fourth Amendment where
defendant has no expectation of privacy in area searched). Thus,
we do not address their contentions vis-a-vis the constitutional
validity of the warrant.
Beaumont and Johnie raise several issues regarding the
validity of the warrant. First, they contend the warrant did not
comply with the requirements of Federal Rule of Criminal Procedure
41. This contention is premised upon two assertions: 1) the state
judge issuing the warrant, although a judge within the Eastern
District of Texas, was not a judge in Orange County, Texas and thus
lacked the authority, under the language of Rule 41, to issue the
warrant and 2) the agent requesting the warrant was not a "federal
agent" as that term is contemplated under Rule 41.
Rule 41, as it existed at the time of the issuance of the
warrant in this case, provided, in relevant part:
(a) Authority to Issue Warrant. A search warrant authorized by this rule may be issued by a federal magistrate or a judge of a state court of record within the district where the property or person sought is located, upon request of a federal law enforcement officer or an attorney for the government.
1. Rule 41 Is Confusing
Beaumont and Johnie contend that the language of Rule 41
6 mandates that if a warrant is to be issued by a state court judge,
the judge must be a judge in the state district where the property
or person sought is located. It is undisputed that the issuing
judge in this case was not from the same state district where
appellants Beaumont and Johnie and their home were located. It is
also undisputed, however, that the issuing state court judge was in
the federal district where the property and persons were located,
namely the Eastern District of Texas.
The government, not surprisingly, argues that the language of
former Rule 41 refers to the federal district in which the property
or person is located. We agree with the government's position.
The current version of Rule 41 provides:
(a) Authority to Issue Warrant. ...a search warrant authorized by this rule may be issued (1) by a federal magistrate, or a state court of record within the federal district, for a search of property or for a person...
There could not be a more plain statement of the state court's
authority under the current version of Rule 41. Were the current
rule applicable, this matter would be open and shut. We must,
however, look beyond this current version to illustrate the
conclusion we reach regarding former Rule 41.
The notes of the Advisory Committee on Rules regarding the
adoption of the current version of Rule 41 suggest that it
represents a clarification of the former rather than a change in
the rule. The notes provide:
Te [90 aedet [o Rl 4] i itne t mk cer ta jde o sae cut o rcr wti a fdrl h 19] mnmn t ue 1 s nedd o ae la ht ugs f tt ors f eod ihn eea district may issue search warrants for persons or property located within that district.
7 This passage in the Committee's notes reveals that the amendment is
a clarification, not a substantive change in the law. The
government's conclusion that the proper interpretation of the
former wording of the rule authorized the state judge to issue a
warrant if the property or person sought was located in the same
federal district that the state judge was in is the correct
interpretation.
2. Rule 41 Is Not Confusing
The second Rule 41 challenge presented by Beaumont and Johnie
presents a different issue entirely. Unlike their contention that
the language of Rule 41 is uncertain as it relates to a state
judge's authority to issue a warrant, they contend now that the
language of Rule 41 as it relates to the authority of a person to
request a warrant is as plain as day. The government does not
seriously challenge this literal reading of the rule and we find
ourselves in agreement with Beaumont and Johnie: Rule 41 authorizes
the issuance of a warrant only upon request of a federal law
enforcement officer or an attorney for the government.6 As the
facts of this case amply demonstrate, however, appellants' argument
that because Smith was not a federal law enforcement officer when
he requested the warrant does not end our inquiry but rather is its
6 Although changes to Rule 41 resulting from the adoption of the 1990 amendments affected the language regarding the class of persons authorized to request warrants, these changes serve only to make clear that the requirement that the requesting party be a federal law enforcement officer (or an attorney for the government) is still as firm as ever. The Committee notes make plain that "[t]he amendment is not intended to expand the class of persons authorized to request a warrant...."
8 starting point.
At the hearing on the motion to suppress the evidence seized
at the home of Beaumont and Johnie, Smith testified that he had
been sworn in as a federal deputy "[b]ack on May the 12th or
16th[,] [1990]." He was sworn in as an FBI officer and his office
was to expire on May 31, 1990.7 The difficulty presented by
Smith's testimony is that the warrant was requested on May 8, 1990
and actually issued in the early morning hours of May 9, 1990.
Thus it is clear that Smith was not a federal law enforcement
officer at the time the warrant was requested.8 Nevertheless, we
find that the warrant was validly requested because it was
requested by an attorney for the government in compliance with Rule
41.
In United States v. Massey, 687 F.2d 1348 (10th Cir. 1982),
Massey argued that a warrant had been issued in violation of Rule
41 because the requesting officer was an agent of the Oklahoma
Narcotics Bureau. 687 F.2d at 1356. Affirming the district court's
7 Although the record does not affirmatively so indicate, it seems apparent to us that Smith was sworn in as a federal officer for the limited purpose of the investigation of the current case. 8 As we have indicated, Smith was not a federal officer at the time the warrant was issued despite his beliefs to the contrary as may be reflected in the testimony presented at the supression hearing; it appears such testimony was the result of some confusion on the part of Smith as to the question asked of him. We additionally find no basis for what might be to some the logical outcome of this finding, namely that the fact that Smith was not a federal officer indicates that Smith acted in bad faith when he requested the warrant. As we discuss infra, the record is absolutely devoid of any basis from which a determination of bad faith could be made.
9 denial of Massey's motion to suppress, the Tenth Circuit observed:
The evidence presented below establishes that although the warrants were issued upon the affidavit of an agent of the Oklahoma Narcotics Bureau, they were requested by an assistant United States Attorney who telephoned the state judge in advance and accompanied the state agent when the affidavit was presented to the judge. This method of obtaining a search warrant satisfies the requirement of Rule 41(a) that the warrant be issued "upon the request of ... an a t t o r n e y for the government." See United States v. Carra, 604 F.2d 1271, 1273 (10th Cir.), cert. denied, 444 U.S. 994, 100 S.Ct. 529, 62 L.Ed.2d 425 (1979).
Massey, 678 F.2d at 1356 (emphasis added). See United States v.
Ventresca, 380 U.S. 102, 108 (1965) (search warrant should not be
reviewed under hypertechnical standard) (cited in Carra, 604 F.2d
at 1273).
At the time the agents concluded that a warrant should be
sought, they contacted the United States Attorney's Office.
Assistant United States Attorney Malcolm Bales (Bales) made the
initial telephone calls to the state judge and accompanied the
state agent, Smith,9 to the home of the state judge. These facts
are virtually identical to those found in Massey and, adopting its
understanding of what is required to satisfy the strictures of Rule
41(a) as it relates to this issue, we reject Beaumont and Johnie's
contentions that Rule 41 has been violated. Having addressed the
challenges to the form of the warrant, we now consider the
allegation that the warrant was substantively deficient.
9 Accompanying Smith and Bales to the late-night rendezvous at the state judge's home were federal agents Villafranca and Hoffman, both of the DEA.
10 B. Fourth Amendment Compliance
1. Probable Cause
Beaumont argues the warrant did not recite sufficient probable
cause. A warrant must be based on probable cause to pass
constitutional muster. The Fourth Amendment plainly requires that
a warrant issue only "upon probable cause, supported by oath or
affirmation..." U.S.Const. Amendment IV. Our review of an
allegation that probable cause is lacking is limited to an inquiry
of whether the issuing magistrate had a substantial basis for
finding the existence of probable cause. See United States v. Wake,
948 F.2d 1422 (5th Cir. 1991) (quoting Illinois v. Gates, 462 U.S.
213, 238-39, 1428 (1983)). As we recited in Wake, a substantial
basis for probable cause will be found if,
given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
948 F.2d at 1428 (quoting Gates at 238-39).
The affidavit presented to the state judge recited that Smith
was experienced in conducting investigations of methamphetamine
laboratories and those who operate them, that Beaumont had been
involved in negotiations for the purchase of precursor chemicals
with Collins, that Gerald had informed Smith that Beaumont
manufactured methamphetamine, that Gerald and Brevell drove to
Beaumont's residence following the purchase of precursor chemicals10
10 It is true that Gerald and Brevell were seen placing the containers of precursor chemicals in a mini-warehouse before
11 and that agents had observed methamphetamine being sold from
another residence owned by Beaumont. The affidavit facially
provides a substantial basis for probable cause permitting the
state judge to determine that "there [was] a fair probability that
contraband or evidence of a crime [would] be found" at Beaumont's
house. This point of error is without merit.
2. Alleged False Statements in the Affidavit
Beaumont suggests the affidavit itself is invalid because it
contains an alleged intentional untruth. Specifically, he contends
that because the transcripts of the phone calls with Collins and
Collins' testimony reveal that the individual seeking to purchase
the precursor chemicals identified himself only as "Jim", the
statement in the affidavit that the caller identified himself as
"Jimmy Beaumont" was false. Our review of the record, however,
indicates that this mistake is of no consequence as ample evidence
exists permitting the inference that "Jim" was in fact "Jimmy
Beaumont". Even were this not the case, we would reject Beaumont's
contention because absent the statement regarding the
Collins/Beaumont negotiations, the affidavit is sufficient to
support a finding of probable cause. See Wake, 948 F.2d at 1429
(quoting Franks v. Delaware, 438 U.S. 154, 171-72 (1978) (where
affidavit sufficient following removal of false statement, finding
venturing to Beaumont's house. However, the record does not disparage the government's suggestion that chemicals may nevertheless have been taken to Beaumont's house. While we refuse to speculate that such was in fact the case, the record reveals that this theory was implicitly presented to the issuing state judge and supported by inferences drawn from the affidavit and statements made by Smith.
12 of probable cause affirmed).
3. Lack of Particularity
Beaumont finally argues that the warrant lacks the required
specificity to meet the Fourth Amendment's requirement of
particularity in describing the items to be seized. See U.S.Const.
Amendment IV (warrant must "particularly describ[e] the place to be
searched and the persons or things to be seized). The test that is
applied requires a court to ask if the description in the warrant
would permit an executing officer to reasonably know what items are
to be seized. See Steele v. United States, 267 U.S. 498, 503-04
(1925) (warrant must allow searcher to reasonably ascertain and
identify thing sought). The warrant contained only a generalized
statement that "evidence of the commission of a criminal offense as
well as contraband abd [sic] the fruits of crime" were to be
seized. It was, however, accompanied by Smith's affidavit which
contained a detailed description of the items sought. The United
States argues that the mere accompaniment of the Smith affidavit is
sufficient to permit this court to find the warrant in compliance
with the requirements of the Fourth Amendment. We disagree.
General warrants have long been abhorred in the jurisprudence
of both England and the United States. See generally United States
v. Riley, 906 F.2d 841, 847-50 (2nd Cir. 1990) (Weinstein, District
Judge, dissenting) (providing concise and cogent historical
analysis of abhorrence of general warrants in England and United
States). "[P]hysical entry of the home is the chief evil against
which the wording of the Fourth Amendment is directed." United
13 States v. Unites States District Court, E.D. Mich., S. Div., 407
U.S. 297, 313 (1972). In order to have this court uphold the
seizures here, the government invokes the general propositions that
a warrant must be read as a whole and that the particularity
requirement may be satisfied by reference to the affidavit. These
propositions are no doubt true, yet examination of the cases cited
by the government in their support indicate the propositions do not
apply to the facts of this case. In United States v. Cook, 657
F.2d 730, 736 (5th Cir. Unit A Sept. 30, 1981), the search warrant
particularly described some evidence but did not so describe other
evidence. We upheld the partial validity of the warrant because
the warrant had referred to the affidavit and was accompanied by
it. Id.; See United States v. Womack, 509 F.2d 368, 382 (D.C. Cir.
1974) ("The warrant incorporates by express reference the
underlying affidavit attached thereto which quite specifically
details the records and documents to be obtained in the search.")
(emphasis in parenthetical added). In United States v. Haydel, 649
F.2d 1152 (5th Cir. Unit A July 8, 1981), cert. denied, 455 U.S.
1022 (1982), a warrant was challenged on appeal due to an alleged
generality in the description of the place to be searched. 649 F.2d
at 1156.11 Finding the warrant sufficient, we held:
If an objective reading of the description contained on the face of the warrant did not fairly direct attention to the place actually
11 We observe that the abhorrence of generality in a warrant is applicable to descriptions of places as well things to be searched. See Riley, 906 F.2d at 849 (Weinstein, District Judge, dissenting) (citing Marron v. United States, 275 U.S. 192, 195-96 (1927)).
14 searched, we would be compelled to hold the search illegal without further discussion. An insufficient warrant cannot be cured by the most detailed affidavit. If, as is the case here, the warrant is ambiguous, but fairly directs attention to the place actually searched, and, if the affidavit supporting the warrant is attached to the warrant when issued, the affidavit may be considered to clarify an ambiguity on the face of the warrant. [citation omitted]. The affidavit must be attached to the warrant so that the executing officer and the person whose premises are to be searched both have the information contained in the affidavit in addition to what is said on the face of the warrant.
Haydel, 649 F.2d at 1157. Finally, the government misreads the
facts of Andresen v. Maryland, 427 U.S. 463 (1976). In Andresen,
the Supreme Court reasoned that the inclusion of a generalized
descriptive phrase did not invalidate a seizure where such a phrase
"appears in each warrant at the end of a sentence containing a
lengthy list of specified and particular items to be seized...."
427 U.S. at 480 (emphasis added).
From the above discussion, it is clear the cases require that
in order for a warrant to meet the particularity requirement of the
Fourth Amendment, the warrant itself must, at a minimum, contain
something more than the absolute generality appearing on the face
of the warrant at issue here. Moreover, although there is arguably
some conflict between Cook and Haydel on this point, we feel the
better rule, in agreement with the District of Colombia Circuit,
see Womack, supra, as well as other circuits,12 is to require that
12 See United States v. Johnson, 690 F.2d 60, 64-65 (3rd Cir. 1982), cert. denied, 459 U.S. 1214 (1983); In re Property Belonging to Talk of the Town Bookstore, Inc., 644 F.2d 1317,
15 the warrant contain, at the very least, a cursory reference to the
affidavit upon which an executing officer may have to rely. This
requirement is far from burdensome, and in light of the importance
of the protections safeguarded by the Fourth Amendment, we hold
that where a warrant contains only the barest of generalized
statements the particularity requirement is satisfied by reliance
on an affidavit when the affidavit is incorporated by reference
into the warrant. We do not hold, however, that absent such an
incorporation the warrant must necessarily fail. Were we to so
rule, we would be creating a technical, bright-line rule of Fourth
Amendment jurisprudence. This we decline to do.
In United States v. Leon, 468 U.S. 897 (1984), the Supreme
Court held that where a warrant lacked sufficient probable cause to
satisfy the requirements of the Fourth Amendment, good faith
reliance upon the warrant by the executing officer precludes the
necessity of suppressing the evidence seized pursuant to the
exclusionary rule. 468 U.S. at 922. The Court noted that "the
officer's reliance on the magistrate's probable-cause determination
and on the technical sufficiency of the warrant he issues must be
objectively reasonable." Id. (citation omitted). On the same day
that Leon was decided, the Court issued its opinion in
Massachusetts v. Sheppard, 468 U.S. 981 (1984). In Sheppard, the
respondent argued that a general warrant authorizing a search for
1318-19 (9th Cir. 1981); United States v. Johnson, 541 F.2d 1311, 1315-16 (8th Cir. 1976).
16 "controlled substances"13 violated the particularity requirement of
the Fourth Amendment. 468 U.S. at 987. The warrant was accompanied
by a detailed affidavit indicating that items relating to a
homicide were to be searched for.14 Id. at 985. The issuing
magistrate and the executing officers knew the contents of the
affidavit and thus knew what was to be searched for. United States
v. Leon, 468 U.S. 897, 964-65 (Stevens, J. concurring as to
Sheppard and dissenting as to Leon). Relying on its decision in
Leon, the Court reasoned that the only issue before it was "whether
the officers reasonably believed that the search they conducted was
authorized by a valid warrant." Sheppard, 468 U.S. at 988. Because
none of the parties disputed the belief of the officers that the
warrant was valid, the Court stated "the only question [remaining]
is whether there was an objectively reasonable basis for the
officers' mistaken belief." Id. Finding the belief that the
warrant was valid to be an objectively reasonable belief, the Court
noted that the affidavit had been approved by the U.S. Attorney,
13 The warrant in Sheppard
directed the officers to "search for any controlled substance, article, implement or other paraphernalia used in, for, or in connection with the unlawful possession or use of any controlled substance, and to seize and securely keep the same until final action...."
Sheppard, 468 U.S. at 986 n.2. This language is essentially as general as that contained in the warrant before us today. 14 The affidavit did include a statement that two bags of marijuana were to be searched for, but this appears to have been incidental to the search for evidence of the actual homicide. Sheppard, 468 U.S. at 985 n.1.
17 the issuing magistrate had made a probable cause determination and
that the magistrate had assured the officers the warrant would be
made valid on its face by the insertion of minor corrections. Id.
at 989 Significantly, the Court observed:
Indeed, Sheppard admits that if the judge had crossed out the reference to controlled substances, written "see attached affidavit" on the form, and attached the affidavit to the warrant, the warrant would have been valid. [citations omitted].
Sheppard, 468 U.S. at 990 n.7.
In the instant case, there was a probable cause determination
made by the state judge, the affidavit provided specific
information of the objects of the search, the executing officer was
the affiant,15 the additional officers making the search knew what
was to be searched for, and, finally, the warrant could easily have
been made valid by the insertion of the phrase "see attached
15 This factor was also significant to the majority in Sheppard. The Court noted:
Normally, when an officer who has not been involved in the application stage receives a warrant, he will read it in order to determine the outcome of the search. In this case, Detective O'Malley, the officer who directed the search, knew what items were listed in the affidavit presented to the judge, and he had good reason to believe the warrant authorized the seizure of those items. Whether an officer who is less familiar with the warrant application or who has unalleviated concerns about the proper scope of the search would be justified in failing to notice a defect like the one in the warrant in this case is an issue we need not decide.
Sheppard, 468 U.S. at 989 n.6.
18 affidavit." The Supreme Court's decision in Sheppard, applying
the holding of Leon in the context of a general warrant, leads us
to conclude that, under the facts of this case, the officers good
faith reliance16 upon the warrant was objectively reasonable. The
motion to suppress evidence seized pursuant to the warrant and
attached affidavit was properly denied. Thus endeth the Fourth
Amendment issues.
C. Modification of the Indictment
Count Two of the superseding indictment originally charged
Beaumont and Johnie with possession of phenylacetic acid and acetic
anhydride. Prior to trial, over appellants' objection, the
district court granted the government's motion to strike the term
"phenylacetic acid" from Count Two after the government explained
that the forensic analysis of chemicals seized from Beaumont's
house showed no such chemical. Appellants claim that this
elimination deprived them of their right to a grand jury. The
Supreme Court has rejected the argument that a defendant is
deprived of the right to a grand jury if the proof at trial
indicates that the defendant is guilty of a narrower, but included
offense. United States v. Miller, 471 U.S. 130, 134-38 (1985). The
Court refused to accept the notion that a deprivation of rights had
occurred simply because a grand jury might not have delivered a
narrower indictment. Id. We find no error here, where, had the
16 We note that here, as in Sheppard, there is no allegation that the executing officers did not act in good faith.
19 district court refused the government's motion and the jury found
that the appellants were guilty only of the possession of the
acetic anhydride, the appellants would have had no basis for appeal
under Miller. That is, the actions of the district court only
alleviated the necessity of the appellants' making a motion to
acquit as to the charge of possession of phenylacetic acid. We
find no error here.
D. Sufficiency of the Evidence
All appellants challenge the sufficiency of the evidence to
sustain their convictions. We address their arguments
individually, viewing the evidence in the light most favorable to
the verdict. United States v. McKnight, 953 F.2d 898, 901 n.3 (5th
Cir. 1992).
1. Beaumont
Beaumont begins his brief with the assertion that the evidence
was insufficient to convict him. He fails, however, to make any
argument whatsoever to support this contention. Failure of an
appellant to properly argue or present issues in an appellate brief
renders those issues abandoned. United States v. Lindell, 881 F.2d
1313, 1325 (5th Cir. 1989), cert. denied, 496 U.S. 926 (1990)
(citing Fed.R.App.P. 28(a)(4)).17
2. Johnie
17 Had Beaumont presented an argument regarding the sufficiency of the evidence against him, we would nevertheless reject it for our review of the record indicates ample evidence exists to support his convictions for conspiracy, possession, and illegal use of a telephone.
20 Johnie was convicted of the conspiracy offense and the
substantive offense of possession. She suggests that the record
reflects nothing more than that she provided the use of information
contained on her driver's license for identification purposes when
the precursor chemicals were purchased at the chemical supply
store. We disagree.
In United States v. Sanchez, 961 F.2d 1169 (5th Cir. 1992) we
observed:
To establish guilt of a drug conspiracy, it must be proven that an agreement with intent to [manufacture methamphetamine] existed, that the defendant had knowledge of the agreement, and that the defendant voluntarily participated in the conspiracy. United States v. Lewis, 902 F.2d 1176, 1180 (5th Cir. 1990). An agreement may be inferred from a concert of action, participation from a "collocation of circumstances," and knowledge from surrounding circumstances. United States v. Espinoza-Seanez, 862 F.2d 526, 537 (5th Cir. 1988). Mere presence at the scene and close association with those involved are insufficient factors alone; nevertheless, they are relevant factors for the jury. United States v. Simmons, 918 F.2d 476, 484 (5th Cir. 1990).
Sanchez, 961 F.2d at 1174 (emphasis in original).
In Sanchez, we held that the defendant-spouse of a principal
conspirator could be convicted upon evidence that she used a false
name while making airline reservations for her husband and another
coconspirator, discussed the conspiracy with her brother and lived
with a principal of the conspiracy. Sanchez, 961 F.2d at 1178. In
the case before us, the record indicates that Johnie repeatedly
supplied false information on the sales invoices regarding the
proper address and proper reasons for purchasing the chemicals.
21 These actions could permit a reasonable jury to infer that Johnie
knew of the conspiracy and, particularly due to the fact that these
actions were repeated, that she agreed to, and voluntarily
participated in, the conspiracy. Moreover, Johnie lived in the
same home as Beaumont, the principal conspirator, and accompanied
him, together with Gerald and Brevell on occasion, to purchase the
chemicals. With these facts in the record, we cannot say that
there was insufficient evidence to support the jury's verdict as to
the conspiracy count.
Johnie also challenges her conviction for the substantive
offense of possession with intent to manufacture methamphetamine.
It is well settled that "[a] conspirator is liable for the
substantive offenses of his coconspirators while he is a member of
the conspiracy." Sanchez, 961 F.2d at 1176 (citing United States v.
Garcia, 917 F.2d 1370, 1377 (5th Cir. 1990)). Any analysis that
turns on the lack of evidence directly implicating Johnie in the
substantive offense of possession is unnecessary in light of the
principal recited above. The jury was instructed that it could
find Johnie guilty of the substantive offense based on the
coconspirator liability theory; our inquiry need proceed no
further.18 Johnie's contentions are without merit.
18 Lest there be any question regarding the issue, we observe that the evidence was overwhelming that Beaumont was guilty of the substantive offense of possession. The house where the chemicals, glassware and paraphernalia were seized was used as a residence by Beaumont. There is virtually no question that he exercised dominion and control over the premises. See Sanchez, 961 F.2d at 11756 (discussing law of possession). Furthermore, we discern no serious dispute that the items seized were intended to be used for the manufacture of methamphetamine.
22 3. Gerald
Gerald suggests the evidence of his participation in the
conspiracy failed to prove his guilt beyond a reasonable doubt.
Like his brother Beaumont, Gerald fails to show how the evidence
was insufficient, merely making the bland assertion that the
evidence was insufficient.19 See Lindell, supra. Even were he to
have properly presented this issue, however, we nonetheless affirm
his conviction. The evidence demonstrated that Gerald participated
in purchases of precursor chemicals from the chemical supply store
as well as from DEA and State agents. Moreover, Gerald negotiated
these deals at length and the negotiations were tape recorded.
These recordings were presented to the jury. Gerald's challenge to
his conviction for conspiracy must fail.
4. Brevell
Brevell challenges his conviction for conspiracy. He recites
in his brief both the inculpating and exculpating evidence
introduced at trial. He concludes that, when contrasted, the
exculpating evidence precludes a finding of guilt. We disagree.
The evidence at trial showed that Brevell participated in the
purchases of chemicals at the chemical store and accompanied Gerald
in the purchases of chemicals from the DEA and State agents.
Additionally, the evidence showed the Brevell participated in the
19 It appears Gerald does not challenge the sufficiency of the evidence as to his conviction for illegal use of the telephone. We fail to see how he could, given the strength of the evidence against him on these counts. We note that it is refreshing to see an appellant and his counsel refraining from raising meritless issues on appeal.
23 transportation and unloading of the chemicals. Moreover, the
evidence demonstrated that the warehouse where the chemicals were
unloaded was in Brevell's name and paid for by Beaumont. Finally,
the evidence showed that Brevell inspected glassware for the
manufacture of methamphetamine and stated, upon sniffing the
residue on the glassware, that he liked the smell of the chemicals.
This evidence was more than sufficient to permit the jury to
convict Brevell of conspiracy.
E. Miscellaneous Allegations of Error
The appellants contend a variety of legal error occurred in
the admission of certain testimony and evidence. We disagree.
1. Coconspirators' Statements
At trial, Castaneda testified that Brevell had stated Beaumont
was the head of the conspiracy and Smith testified that Gerald also
admitted that Beaumont was the head of the conspiracy. The
district court, over the objections of appellants, admitted the
testimony upon condition that the government demonstrate the
existence of a conspiracy. See Fed.R.Evid. 801(d)(2)(E)
(coconspirators' statements not hearsay). The district court, at
the close of the government's case-in-chief, determined that the
government had satisfied its threshold burden of demonstrating by
a preponderance of the evidence that a conspiracy existed. See
Bourjaily v. United States, 483 U.S. 171, 175-181 (1987)
(discussing admission of coconspirators' statements under Rule
801(d)(2)(E)); see also United State v. James, 590 F.2d 575, 582-83
24 (5th Cir.), cert. denied, 422 U.S. 917 (1979) (district court may
conditionally admit coconspirators' statements). We find no error
in the admission of the statements.
2. Expert Opinion
The United States presented the testimony of its expert
witness, Dr. Joseph Prall (Dr. Prall). During direct examination,
Dr. Prall expressed his opinion that the chemicals, glassware and
various paraphernalia seized at Beaumont's home were being used in
a large scale methamphetamine manufacturing operation. Appellants
failed to object to this testimony. On cross-examination,
appellants inquired as to whether a person who merely sold
precursor chemicals and owned glassware was a manufacturer of
methamphetamine. Without objection, Dr. Prall responded that such
a person was either directly manufacturing methamphetamine or
engaged in a conspiracy to manufacture methamphetamine. On
redirect-examination, the government asked Dr. Prall what activity
persons were engaged in when such persons sold precursor chemicals,
kept formulas for methamphetamine, and sold precursor chemicals
without keeping records of such sales. Appellants objected to this
line of questioning but the district court permitted Dr. Prall to
answer when the government explained that it was only trying to
follow up on Dr. Prall's opinion given during cross-examination.
Dr. Prall testified that the individuals described in the
government's question would be involved in a methamphetamine
conspiracy.
Because the term "conspiracy" was first used by Dr. Prall
25 during cross-examination, and because appellants did not then
object to its use, their complaint as to its subsequent use during
redirect-examination will be upheld only if it constitutes plain
error. See United States v. Nixon, 918 F.2d 895, 904-05 (11th Cir.
1990) (failure to object to use of term "conspiracy" by expert
witness when elicited on cross examination rendered complaint about
later use of term reviewable under plain error standard).
Moreover, we note Federal Rule of Evidence 704 provides that expert
"testimony in the form of an opinion or inference otherwise
admissible is not objectionable because it embraces an ultimate
issue to be decided by the trier of fact." Fed.R.Evid. 704. After
reviewing the transcripts of Dr. Prall's testimony, we feel that in
the context given, the testimony was a factual rather than a legal
conclusion. See Nixon, 918 F.2d at 905 (officer's use of
"conspiracy" factual, not legal determination).20
F. The Sentences
Appellants challenge their sentences based upon alleged error
in the testimony of Dr. Prall as to the amount of methamphetamine
which could have been produced and the presentence report's
reliance on that testimony. Appellants failed to object to the
testimony when given and failed to object to the presentence report
when presented. Appellants have preserved nothing for review.
20 Appellants additionally contend that the failure of the government to adequately identify certain glassware introduced at the trial requires reversal. Our review of the record indicates that any failure in identification of the glassware went to the weight of the evidence and not its admissibility. See United States v. Casto, 889 F.2d 562, 569 (5th Cir. 1989), cert. denied, 110 S.Ct. 1165 (1990).
26 Furthermore, our review of the law and the record in this case
suggests that even had the issue been preserved for appeal, we
would nevertheless affirm appellants' sentences.
CONCLUSION
We have exhaustively reviewed the record in this case and the
relevant law. Finding no error in the convictions and sentences of
appellants, the district court is in all respects
AFFIRMED.