United States v. William Boyd, James D'metri, Michael J. Lipton, Stephen Powell, George Parr

purpose keeping the wit- made “for trial”). Judge Pratt rea- away

ness from America, Appellee, UNITED STATES of soned it easier for the that to make Govern- proceeding ment to depositions use in a not involving organized activity, criminal such BOYD, D’Metri, James William Michael case, present as the illogical would be be- Powell, Lipton, Stephen J. general cause “the Congress intent of is to Parr, Appellants. tougher be organized crime than on ordi- 77-1622, 77-1623, 77-1624, Nos. Therefore, nary (A 28). criminals”. al- 77-1625 and 77-1656. though finding any proof of malicious INS, part intent on the he “deemed” Appeals, Court of purpose such have been shown from Third Circuit. deportation. fact of disagree analysis. We with this Argued Feb. 1978. enacted, when 3503 was Rule § original Resubmitted before the F.R.Cr.P., permitted only a criminal defend panel Aug. 31, 1978. ant depositions. to take When Rule 15 was Decided Oct. 1978. later amended in permit 1975 to Government also to take depositions, pro

vided requirements of Fed.R.Evid.

804(a) met, clearly were it was Congress’ expand potential

intent to for Govern depositions

ment in criminal cases. There is

therefore no apply reason not to the plain

and literal language 804(a) of Rule merely

because Congress did not also amend the

language of 3503. Whether or not 3503 § §

will be amended or impose construed to

same requirements 804(a) as Rule remains

to be seen. The issue largely is academic

for the reason that the usually Government

must decide whether a defendant is be engaged

lieved to be organized criminal

activity, rendering 3503 rather than § F.R. 804(a)

Cr.P. 15 and applicable. Fed.R.Evid.

Since there is no evidence that the

deported aliens were absent due to “the

procurement wrongdoing” or

Government purpose “for the preventing deposed] from attending testify or

[those

ing” record, contrary, to the reveals

that the Government did everything in its

power and, that, to hold the aliens failing

make their available provided as law, appealed order from is reversed.

Upon may held, such trial deposi as be question may

tions in be introduced into subject only objections to such as

may be made as to the relevance and mate

riality specific questions and answers.

No party. costs to either Marston, Atty., Walter

David W. U.S. S. Mellon, Jr., Jr., Asst. Batty, Thomas E. Pa., appellee. for Attys., Philadelphia, Bello, Pa., Philadelphia, ap- for Alvin J. pellant, Boyd. William Pa., Henss, Philadelphia, for

Norman C. appellant, James D’Metri. Riblet, Defender, alleged Asst. Defender dictment

Douglas conspiracy to manufac- methamphetamine, ture and Philadelphia, distribute Ass’n of Federal Courts Divi- substance; II Pa., Schedule controlled sion, fourteen Philadelphia, appellant, for Ste- other counts related to phen Powell. distribution.2 3The prosecuted Kennedy, City, Michael New York for appellants the five Boyd, James —William appellant, Parr. D’Metri, Lipton, George Michael Parr and Glackin, Pa., Charles Philadelphia, A. for Stephen together, along with Mar- Powell — appellant, Lipton. Michael Heyman, thana appealed who has not her conviction. GIBBONS, HUNTER, Before Circuit government’s case heavily relied on WEBER,* Judges, Judge. and District the testimony of Agent Kutney Laurence of Pennsylvania the Department Justice, of OF THE OPINION COURT Control, and Drug Love, Bureau of James a GIBBONS, Judge. Circuit government informant. Love introduced Kutney appellant to in Boyd July 1975 as a appellants In this several case raise friend and narcotics dealer from Ohio. grounds for reversal of their convictions of Through Boyd, Kutney Love and were in- conspiracy and substantive offenses relat- troduced to the appellants other on the as- ing to the manufacture and distribution of sumption that Kutney would serve as a methamphetamine in the Philadelphia area supply source of phenyl-2-propanone for Although 1975. we have reviewed (P 2—P), precursor a in involved the manu- — all of the by contentions raised appellants,1 of methamphetamine. facture Kutney first we 1) shall discuss two issues: whether to agreed supply in exchange P-2-P for a prejudicial a variance existed between the share the methamphetamine produced. conspiracy count of the indictment and the time, At group himself, the included trial; 2) adduced at and whether the Love, Boyd, D’Metri, one partner. and other judge trial in allowing erred to Appellant D’Metri functioned as a chemist illegal consider occurring acts for manufacturing process, and with the after conspiracy alleged in the indict- others, attempted assistance of to manufac- ment had terminated. we Because find ture at a laboratory lo- that the admission of postconspiracy crimes Ridge cated on Avenue in Northeast Phila- error, prejudicial was we reverse. failed; delphia. attempt Boyd himself indicated that the substance was not of I. good quality, at and evidence trial indicated This case arises from a sixteen-count in- that the produced substance was not meth- dictment by grand jury returned a Nevertheless, amphetamine. at least part Eastern of Pennsylvania naming District sold, batch through Boyd was and sixteen individuals. Count one of the in- appellant George Parr.

* Joseph Weber, government’s closing argument Honorable Gerald “The 4. con- Judge prosecutorial Chief for the Western of Penn- District stituted misconduct and denied sylvania, sitting by designation. appellants trial;” a fair and “Agent Kutney’s 5. conduct this case was following 1. Defendants have raised the addi- outrageous appellants’ right an violation of the tional contentions: process appellants to due and should have been 1. “It was error for the opportunity pre-trial prove to intro- afforded the to appel- duce evidence of criminal record allegations of their motion to dismiss because trial;” Boyd lant governmental misconduct.” government’s 2. “The failure honor its We have reviewed the record this case and pre-trial discovery agreements by abide and to find these be contentions without merit. appellants’ right to Jencks Act material was remaining 2. The count did relate to meth- error;” reversible amphetamine distribution, or manufacture 3. “The remarks made the United States appeal. is not involved in this Attorney during trial violated court’s order trial;” deprived appellants of a fair multiple the Ridge conspiracies single conspir- After failure of Avenue when a attempt drug, Boyd charged to manufacture acy is in the indictment constitutes brought Kutney into contact with Parr in rights If variance. substantial Parr, August 1975. Through Kutney might was defendants have been affected Powell, appellants Lipton variance, introduced to their convictionson the conspiracy establishing who were to assist Parr in count must determining be reversed. laboratory County. Again, occurred, in Bucks Kut- whether a variance has we must ney supply if, viewing was to serve as the source of for first ascertain the evidence in 2-P, exchange light government, for a share of the most favorable to P— methamphetamine produced. supports jury’s substantial evidence de- single guilt conspir- termination of arrangement proved This to be more suc- acy charged in the indictment. Glasser v. cessful, provided States, quantities methamphetamine apparently (1942). L.Ed. 680 laboratory manufactured at a in Bucks County. the Kutney, After deliveries to gist of a conspiracy, The criminal him, suspicious the defendants became agreement the co-conspirators, between group dropped and his involvement with the may continue over an period extended off. The defendants were later arrested. time and involve numerous transactions. grand jury’s indictment was returned may join Parties conspiracy the after its 1976, April and trial Sep- commenced on inception, may withdraw and terminate 7, tember 1976. relationship their conspiracy prior with the completion. to its See United v. II. Klein, (3d 515 1975); Cir. United Appellants question raise the of variance Lester, States v. 1960), 282 F.2d 750 Cir. between govern- the indictment and the denied, 937, 385, cert. 81 5 S.Ct. proof ment’s ways. at trial in two different (1961). conspira L.Ed.2d 368 The fact that Parr, Lipton directly challenge and Powell tors individually groups perform or in dif sufficiency single evidence of the pursuing ferent tasks in goal common conspiracy charged. D’Metri raises as error not, itself, does finding necessitate a the trial judge’s denial of his motion to several conspiracies. distinct United States sever his case from his co-defendants. Lester, supra. v. group And even if a small co-conspirators are at the heart of an agreement, unlawful knowingly A. others who participate with the core members and oth Appellants Parr, Lipton and Powell con- goal may ers to achieve a common be mem tend that their convictions should be re- single conspiracy. bers of a United States versed proof because the at trial indicated Varelli, (7th v. 1969). 407 F.2d 735 that the Ridge Avenue scheme and the Bucks County separate scheme were two principles It follows from these basic conspiracies to manufacture and distribute that government, committing without methamphetamine rather than single variance single conspiracy between a conspiracy charged in the They indictment. charged in an indictment and its at argue that under Kotteakos v. United trial, may establish the existence of a con States, 328 66 U.S. S.Ct. 90 L.Ed. tinuing conspiracy core which attracts dif (1946), prejudice inherent in elicit- ferent members at different times and ing jury before the the events surrounding sub-groups which involves different com plans and actions of the Ridge earlier mitting acts in furtherance of the overall Avenue conspiracy affected their substan- plan. As this Court stated United States rights. tial Kenny, (3d Cir.), 462 F.2d 1205 Kotteakos, supra, proof

Under at U.S. trial which establishes the existence (1972): of L.Ed.2d 176 prohibits charging multiple July On Love Agent

Kotteakos un- introduced Kut- conspiracies, pro- related but it does not meeting, ney Boyd. At that discussion charging conspiracy hibit one master comprised of partnership centered on a establishing trial that under the mas- at Love, Boyd, Kutney, D’Metri and one other conspiracy subsidiary ter more than one first, individual. After the abortive at- scheme was involved. tempt methamphetamine, to manufacture 462 F.2d 1216. also States v. See Heyman appellant Lipton Marthana Adamo, 534 F.2d 31 spoke Lip- with Love. that Love testified 50 L.Ed.2d 110 engaged ton had then someone else to take (1976). over the laboratory and run it. Love also Viewing light the evidence in the stated supply that he had discussed the government, most favorable to Glasser P—2—P July meeting with Parr after the States, supra, following testi with Kutney, Boyd and Love. mony by the informant Agent Love and Agent Kutney’s testimony confirms and Kutney is sufficient to establish that supplements Love’s account. After beyond could have found a reasonable Ridge failed, laboratory Avenue Parr told existed, single conspiracy doubt both that a Kutney that he was poor aware of the appellants, and that the albeit at different quality product manufactured times, were members of conspiracy. lab, but that he nevertheless had been able informant, Love, testified that he to sell it injected directly to users who it possibility mentioned the of obtaining P— into their Boyd Kutney veins. informed conversing 2-P while Boyd May with that he had sold three of the six ounces 1975. He stated that he met more than Parr, made at Ridge Avenue lab to and once with begin- defendant D’Metri in the that selling alleged Parr was this metham- ning of June and discussed P-2-P “connec- phetamine to “shooters.” tions.” Love testified that he had almost daily Boyd during contact with the first Later, Kutney spoke Lipton, with who June, during half of Boyd which time con- indicated provided that he had the connec- obtaining tinued to talk of a sup- source of tion for the “chemist” to take over the ply for P-2-P in order to start a “laborato- laboratory. Kutney Lipton testified that ry.” Love further testified that he met offered to introduce him to the new chem- June, Parr part prior in the latter ist, who being “brought was in” because to any involving transactions P-2-P be- Parr, Love, Boyd Kutney were dissatis- tween Kutney and the defendants. At that fied Ridge with the of the results Avenue time, questioned Parr about Love his source methamphetamine attempt. Lipton and P-2-P, quantity asked about the of the Kutney ville, proceeded then to Morris available, precursor and mentioned that Pennsylvania, they appellant where met “his lab was shut down the time.” At Powell. The three discussed the manufac- the time questioning by of the of Love ture of methamphetamine, Powell indicat- Parr, Boyd present. was Parr named a ing that he had some doubts about a formu- price per gallon precursor, for the $1000 la for the manufacture of the substance. and asked Love when it could be made Powell ques- asked to check on two available to him. concerning proper tions he had formula. Love during July stated at trial that he supports government’s This evidence Parr, had further with conversations often contention that before and the time with Boyd present, in which Parr evidenced period indictment, alleged in the Parr and displeasure “sup- with the fact that Love’s Boyd, along Kutney, with Love and were plier” yet appeared of P—2-P had not with engaged ongoing agreement in an to manu- the substance. Love Boyd remained in methamphetamine. facture and distribute contact, daily almost and D’Metri and Love scheme, During D’Metri, continued logistics to discuss the course of the methamphetamine manufacturing process. member, who early had been an was Barrow, (3d 1966), v. 363 F.2d 62 Cir. perform adequately failure to States dropped for “chemist,” denied, as a 87 S.Ct. Lipton cert. and Powell (1967). thus is faced D’Metri expertise that L.Ed.2d group to lend entered showing that “heavy with the burden” began. The lacking was when the venture the bounds of his judge the trial exceeded planned infer that Parr to utilize jury could v. discretionary authority, United States Ridge operation as a source of Avenue Sica, 560 F.2d 149 supply, apparent that when it became but (1977). unsuccessful, 54 L.Ed.2d 135 laboratory that he U.S. under for severance Concerning a a motion Boyd supply acted with to ensure with we have stated Lipton’s and Powell’s aid. Fed.R.Crim.P. is whether primary consideration Kutney, if of Love and expected to com- reasonably be jury can

believed, provided sufficient evidence for as it partmentalize the evidence relate[d] that Parr was aware of and jury to find view its vol- separate defendants Ridge attempt Avenue involved admissibility. ume and limited manufacture for distri- DeLarosa, jury bution. The could also have found States 927, 92, 1971), Lipton previ- and Powell were aware of the (1972). 30 L.Ed.2d 800 See conspiracy, knowingly ous efforts of the Somers, supra. agreement, entered the and contributed United operation. their efforts to its successful record, review of the trial From our supports finding of a Sufficient D’Metri any we do not see unfairness to single conspiracy. joinder the other de arising from his “spill D’Metri’s contention of a fendants. B. incriminating evidence is coun over” of Appellant single conspiracy D’Metri contends that the trial of a tered the evidence judge by denying played part abused his discretion the trial which he case, pursuant directing D’Metri’s motion to sever his judge’s specifically instructions guilt to Fed.R.Crim.P. from the other defend- to evaluate each defendant’s initially individually. govern ants at trial. D’Metri moved for The or innocence trial, joint conducting severance before and renewed the mo- in trials ment’s interest presentation prosecu- conspiracy tion of the count fur involving legitimate a separate tion’s case. to outweighs The basis for his motions was D’Metri’s desire ther that the establish or would had estab- from his co-defendants. See United himself 578, conspiracies lished the existence of two in- F.2d 583 Segal, 534 us, only argument 1976). Thus, stead of one. D’Metri’s in record before we on the this Court and at trial is that since all the in the trial find no abuse of discretion other save were in- judge’s defendants himself of D’Metri’s motions. denials in County group, volved the Bucks he be- “guilt came the victim of transference” III. arising testimony from the against offered is, contention appellants’ The second

his co-defendants. however, one. The indictment a substantial alleges Motions for severance are which the defendants were tried addressed on judge, conspiracy to the sound discretion of the trial to manufacture and distribute July methamphetamine his decision will not be reversed in the on or about “[f]rom absence 1975.” showing of a of abuse of that dis 1975 to on or about October Somers, occurred in alleged cretion. 496 F.2d to have United States No overt act is than conspiracy 95 later furtherance of that (1974); attempt In its to September L.Ed.2d 1975.3 Testimony, specif- which dealt 3. There ic occasions. The Goff were also substantive counts of manufacturing proc- ingredient specif- ic an distributions of on space only concepts, are relative charged conspiracy, we have establish Agent government testimony yet of point govern- offered come to the where the ment, Love that between Kutney anticipated an meeting entrap- informant the indictment contention, the dates predisposition recited ment can show with P-2-P. supplied conspirators subsequent But activity. trial court clearly was relevant to the That evidence nevertheless the testimony admitted under charge of a to manufacture conspiracy 404(b) rule Federal Rules of Evi- trial, Later in the methamphetamine. how- dence4 to show “intent or knowledge or ever, testimony the court admitted type common or scheme.” Notes of plan Goff, Trooper an undercover officer of the 10-13; Testimony also id. 10-134. The see Police, that Pennsylvania on three State government’s theory of admissi- alternative of the expiration conspiracy dates after the bility, accepted, which the court was that he charged in the indictment had discussed a subsequent Goff’s crime is evidence of purchase Lipton with defendant of P —2- prior relevant of the to the existence con- P, and that one date more than two on spiracy methamphetamine. to manufacture conspiracy months after the ended he had prior logic showing The intent or knowl- pur- met Parr for a similar with defendant edge by proof subsequent activity es- pose. government’s The intention in offer- capes how, logi- us. Nor do we understand ing Goff’s is disclosed in its brief: cally, post-conspiracy purchase of a chemi- instance, light

In the it cast first on the ingredient cal prove tends to the modus existing relationship between Michael operandi prior manufacturing opera- Lipton and Parr. Since the tion. against Lipton Government’s case The on relies Cir Second Agent Parr rested largely Kutney’s Warren, cuit case of United States v. testimony, both the existence and the na- (2d Cir.), relationship ture of this were of critical (1972), 32 L.Ed.2d for the importance Agent Kutney’s to credibility. proposition subsequent Secondly, testimony helped this establish Warren, however, crimes is admissible. in a modus operandi implicating further admissibility volved of evidence Lipton in the prior and Parr metham- obtained in a search conducted after phetamine manufacturing scheme. filing of the indictment. evidence es Lipton both circumstances and Parr were crimes, prior tablished similar and was ad willing pay money drugs to both prior mitted show intent to violate the precursor, secure phenyl-2- the needed law negate and thus to defense of en propanone. trapment. government also relies on Appellee’s The testimony Brief 13. the decision court of a divided offered, words, in other to establish that Laurelli, (3d v. 293 States F.2d 830 Cir. Lipton because Parr were willing and to 1961), denied, 961, cert. 368 82 S.Ct. purchase December, 1975, P-2-P in and 406, (1962), 7 which concededly L.Ed.2d 392

January, 1976, they must have been willing authorizes the of admission evidence of so, testified, to preced- do as some subsequent prove prior events to in ing July and August. Judge tent. But in dissent Kalodner makes The us, least, trial to logical court declined admit the tes- what is for more far timony theory. on that That ruling argument against admissibility was the of such correct. recognizing Even that time and controlling evidence. If was we Laurelli ess, crimes, way wrongs, specific in was no relevant Evidence of other to those or acts is not all, prove person distributions. If it admissible at was it was admissible to the character of a in only charge conspiracy conformity relevant to the of order to to show he that acted in however, may, manufacture. therewith. It be admissible for motive, purposes, oppor- other as such of intent, tunity, preparation, plan, knowledge, 404(b) 4. Fed.R.Evid. states: identity, of or absence mistake or accident. (b) Crimes, Wrongs, Other or Acts.

127 lished, for suggest taking example, would this case en banc and of possession the fruits is, overruling present it. But Laurelli for manufacturing opera prior illegal of the purposes, distinguishable. evidence of tion, might it been admissible well have subsequent prove offered to events was subsequent under the possession authorities. specific government to a tender of a bribe testimony But this was record Goff’s inspector. The events subsequent tended to simple. pure other crimes evidence It part show that the was bribe offer of an was not from an materially different at ongoing respect course of conduct with to tempt prove robbery August to in performance specific government of a robbery evidence of an unrelated Janu Thus, contract. in Laurelli ary. It was if the relevant could was closely analogous more to evidence of have drawn that the inference subse overt taking place during acts the course of quent prior crime propensity evidenced a a continuing conspiracy. Laurelli would be that, activity, toward criminal of more directly point if the other crimes course, is the one that inference other had performance occurred of a be government may different crimes evidence not admitted contract. to this case, ruled, the trial govern court and the support. testimony The admission of Goff’s concedes, ment conspiracy that the was over See, g., thus reversible e. error. United when the dealings Goff occurred. Dansker, (3d v. States Cir. Thus part the other were crimes of an en 1976), denied, 1038, 429 U.S. S.Ct. tirely different conspiracy. 732, (1977). 50 L.Ed.2d 748 response In a petition to the defendants’ gave trial instruction court an limit- for rehearing government also attempts ing testimony the use of to Parr Goff’s to justify the ruling trial court’s on the Lipton, purpose prov- and to the specific authority Miles, of United States v. ing they conspir- were members (3d 1972), F.2d 489-90 and United acy. Lipton Once Parr and were connected Gimelstob, States 475 F.2d however, the conspiracy, their out-of- 414 U.S. court admissions could be considered (1973). L.Ed.2d 62 The former autho jury against the codefendants. Thus the rizes admission post-crime of evidence of was, admonitory court’s instruction we be- flight, post-crime and the latter of threats lieve, wholly insulating ineffective in against potential the life of a witness. stand, Those however, prejudicial authorities codefendants from the effects of for the proposition that evidence of testimony. consciousness Goff’s guilt is admissible, just post-crime as a The judgment of the court will be district admission guilt be. would Goff’s testi defendants, reversed as to and the case all mony was not to prove offered conscious remanded for a new trial. guilt ness of conspiracy charged the indictment and does tend to do so. HUNTER, III, Judge, Circuit JAMES Finally, relies on cases concurring:

such as Kenny, 462 F.2d Cir.), cert. join Parts I and II of fully I the court in (1972) 34 L.Ed.2d 176 III, which relates opinion. As to Part Miles, supra, States v. 468 F.2d at admissibility 489—90. The former authorizes admission Goff, clear that I do Trooper I would make of evidence of unexplained sudden and ac holding that evidence as not read the court quisition wealth, and the latter of unex is, under all circum- subsequent crimes plained possession goods. of stolen In those stances, inadmissible. cases the evidence was relevant because majority However, this case the makes possession of the fruits of a theft tends to non-relevancy of argument for the show that a sound defendant was a participant Therefore, in the crime. Had I testimony. Goff’s concur. estab the Goff

Case Details

Case Name: United States v. William Boyd, James D'metri, Michael J. Lipton, Stephen Powell, George Parr

Court Name: Court of Appeals for the Third Circuit

Date Published: Oct 3, 1978

Citation: 595 F.2d 120

Docket Number: 77-1622, 77-1623, 77-1624, 77-1625 and 77-1656

Court Abbreviation: 3rd Cir.