Rehearing and Rehearing En Banc Denied July 16, 1975.
HENLEY, Circuit Judge.
The defendants, Robert Kenneth Rich and Larry J. Weber, appeal from judgments of conviction entered following their conviction by a jury for conspiracy to manufacture and distribute a controlled substance in violation of 21 U.S.C. § 846.
The primary issue on appeal is whether the district court
Defendants Rich and Weber were charged along with seven other individuals in a single count indictment with conspiracy to manufacture controlled substances, to-wit: methamphetamine and 3, 4—methyledenioxy amphetamine (MDA). Severance was granted to those defendants who indicated that they would testify at trial. The remaining four defendants were tried jointly, and on August 15, 1974 the jury convicted Rich and Weber and acquitted the other two defendants.
The indictment alleged that the nine original defendants committed at least
At this time Mr. Walsh was a "cooperating individual" who had agreed to assist the government in its investigation in exchange for a promise of immunity from prosecution for his past drug violations. Besides purchasing the P-2-P from Weber, Walsh agreed in mid-March to permit the government to record his telephone conversations with some of the original nine defendants. Between March 21, 1974 and April 4, 1974, the government recorded ten such telephone conversations. These recordings were made by attaching a telephone induction coil to the receiver of the telephone and connecting a cassette tape recorder to the induction coil. All but one recording were made by Walsh making or receiving calls at the Drug Enforcement Administration headquarters at Kansas City, Missouri. Before each conversation, federal agents would secure Walsh's consent to record the conversation. During each conversation, Walsh sat beside two agents who operated the recording equipment. Only an April 3, 1974 call from Weber to Walsh at Walsh's residence was recorded outside the presence of federal agents. Transcripts were made of these recordings.
The recordings implicated not only the declarants but also other individuals alleged to have been co-conspirators, including Rich and Weber. In many instances, Rich and Weber were parties to these conversations with Walsh.
The government also recorded a conversation between Walsh and Weber through the use of a "Kel-Com" transmitter attached to Walsh's body. During this conversation on April 4, 1974 Weber sold the P-2-P to Walsh. The recording was almost inaudible and so no transcript was shown to the jury. Later that day, the grand jury returned an indictment and both Rich and Weber were arrested on April 5, 1974.
The defendants first argue that these recordings should not have been admitted into evidence because the conversations were not made during and in furtherance of the alleged conspiracy. The defendants contend that the conspiracy to manufacture drugs, if any, terminated in late January, 1974. The government contends that while the laboratory had been dismantled in January, the defendants merely secreted their laboratory equipment and fully intended to resume active manufacture as soon as a pending grand jury investigation had been completed. Thus, the government claims that the conspiracy lasted until the time of the defendants' arrest on April 5, 1974.
In reviewing a jury finding of guilt in a criminal case, an appellate court is required to view the evidence in the light most favorable to the government and to accept as established all reasonable inferences to support the conviction. United States v. Cummings, 507 F.2d 324, 329 (8th Cir. 1974); United States v. Gaskill, 491 F.2d 981, 982 (8th Cir. 1974). Applying this standard, we find that the jury reasonably could have found from the independent evidence that a conspiracy to manufacture illicit drugs was formed in 1973 between defendants Rich and Weber and the other declarants in the telephone conversations. The jury also could have concluded that this conspiracy continued into April, 1974 and that active manufacturing had been suspended only temporarily until the grand jury investigation cooled off. Thus, the recorded conversations would have been made during the existence and "in furtherance" of the conspiracy and could have been considered by the jury in deciding whether any one of the conspirators took an overt act in furtherance of the conspiracy.
While the most damaging statements were made by Weber and Rich themselves, two other original defendants made statements which incriminated Weber and Rich. These statements were properly admitted into evidence as substantial independent evidence existed that the declarants were also part of the conspiracy with Rich and Weber. Whether the jury actually considered these statements against Weber and Rich is of no consequence on appeal since the trial judge properly instructed the jury concerning the circumstances in which the statements could be considered as to the defendants.
Secondly, the defendants claim that the telephone and Kel-Com recordings were admitted into evidence in violation of their Fourth Amendment rights. This argument was rejected recently in United States v. McMillan, 508 F.2d 101 (8th Cir. 1974), and we perceive of no reason to overrule that precedent as urged by defendants. The
The fact that Walsh became a government informant in exchange for a promise of immunity from prosecution in no way diminishes the voluntariness of his "consent" to the monitoring of his conversations with the defendants and the other alleged conspirators. United States v. Dowdy, supra, at 229; see United States v. Bonanno, 487 F.2d 654, 658-59 (2d Cir. 1973).
The defendants further allege that interception and recording of their telephone conversations is prohibited by Title III of the 1968 Omnibus Crime Control Act, 18 U.S.C. § 2510 et seq. However, 18 U.S.C. § 2511(c) specifically authorizes the type of interception at issue:
Drug Enforcement Administration agents clearly were acting "under color of law" when they recorded Walsh's conversations. The only instance where federal agents failed to directly supervise the recording of a telephone conversation was when Walsh recorded a call from Weber received at Walsh's residence. Nevertheless, Walsh was acting at the direction of government investigators, and in the limited circumstances of this case we believe that this particular conversation was recorded by a person "acting under color of law."
The defendants' remaining contention that the monitoring in question violated state and federal tariff regulations because no bleeper device was attached to the telephone is frivolous as those tariffs on their face apply only to persons acting in their private capacities.
An arrest warrant was issued for defendant Weber and his girl friend, Cynthia Shinkle, following the return of the grand jury indictment on April 4, 1974. At that time, Weber and Shinkle were living together at a farmhouse located in Boone County, Missouri. At approximately 11:20 a.m. on April 5, 1974, five federal and state officers arrived at the farmhouse to execute the warrants. They noticed three cars parked outside the house. The officers split up with two agents going to the rear door and the other agents going to the front door. After announcing their identity and purpose and having received no response, the officers entered through both doors. After finding two unidentified individuals asleep in the living room, the officers moved throughout the house to ascertain whether Weber and Shinkle were present. While so doing, they observed some drug paraphernalia and chemical apparatus. Weber and Shinkle were eventually located in a bedroom. Shinkle was informed that her car was being seized pursuant to 21 U.S.C. § 881(a)(4) and that she could remove her personal possessions from the automobile. En route to pick up these items, she requested permission to pass through the garage since it was the most direct route to the car. While passing through the garage, the officers noticed several containers of chemicals in plain view. At trial the officers testified as to what they observed in plain view while executing the
The defendants' contention that the search of the farmhouse was unreasonable must fail. In executing these arrest warrants, the agents were entitled to make a quick and cursory search of the house for other occupants since they had observed three cars parked outside and had found only two persons asleep in the living room. United States v. Blake, 484 F.2d 50, 57 (8th Cir. 1973), cert. denied, 417 U.S. 949, 94 S.Ct. 3076, 41 L.Ed.2d 669 (1974); United States v. Briddle, 436 F.2d 4, 7 (8th Cir. 1970), cert. denied, 401 U.S. 921, 91 S.Ct. 910, 27 L.Ed.2d 824 (1971). Since the agents had a right to conduct a security check throughout the entire house, they could testify as to what they saw in plain view. Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).
It is clear from the evidence that officers had probable cause to believe that Shinkle's car had been used to facilitate the transportation of controlled substances or equipment used to manufacture controlled substances. Thus, they could immediately seize her car pursuant to 21 U.S.C. § 881(b)(1). Accordingly, they acted reasonably in escorting Shinkle at her request through the garage and could testify to what they saw in plain view while doing so. O'Reilly v. United States, 486 F.2d 208, 210 (8th Cir.), cert. denied, 414 U.S. 1043, 94 S.Ct. 546, 38 L.Ed.2d 334 (1973).
The defendants claim that the district court erred in failing to quash the indictment on the grounds that the indictment (1) charged three separate crimes in one count; (2) contained several typographical errors; and (3) failed to state the schedule of each controlled substance the defendants allegedly conspired to manufacture.
A review of the record convinces us that the defendants were in no way prejudiced by these alleged errors. An indictment will not be dismissed because of spelling errors unless the defendant can affirmatively show that some prejudice resulted. Failure to list the schedule of each controlled substance has no bearing on whether the indictment states an offense against the United States. Assuming that the substances mentioned are controlled substances, the schedule into which the controlled substance is classified is not relevant to the offense itself but only to the sentence that can be imposed. Finally, the record clearly shows that the jury was instructed only on the charge of conspiracy to manufacture a controlled substance and that sentence was imposed on only this charge. Thus, defendants cannot contend that they were prejudiced because the indictment was allegedly duplicitous.
The defendants' last major contention is that the special parole statute, 21 U.S.C. § 841(b)(1)(B), is unconstitutionally vague since it does not delineate the maximum limit of the special parole term and does not specify the conditions of parole.
We have considered defendants' other assignments and find no prejudicial error.
21 U.S.C. § 841(a)(1) provides: