Petition — Bailey v. United States
Supreme Court brief1978
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Supieme Court, U. 8,
FILED
} JUN 29 1978
\ ,
IN THE | MICHAEL RODAK, JR., CLERK
SUPREME COURT OF THE UNITED STATES
'
October Term 1977
No.
77-1855
Petitioner,
SAMUEL G. BAILEY,
vs.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD G. SHERMAN
Attorney at Law
6420 Wilshire Boulevard
Sixth Floor
Los Angeles, CA 90048
(213) 658-6800
Attorney for Petitioner
«et
IN THE
SUPREME COURT OF THE UNITED STATES
October Term 1977
No.
4
SAMUEL G. BAILEY,
2 Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD G. SHERMAN
Attorney at Law
6420 Wilshire Boulevard
Sixth Floor
Los Angeles, CA 90048
(213) 658-6800
Attorney for Petitioner
ee a er ee
TOPICAL INDEX
Table of Authorities
CITATIONS TO OPINIONS BELOW
JURISDICTION
QUESTIONS PRESENTED
CONSTITUTIONAL PROVISIONS
STATEMENT OF THE CASE
STATEMENT OF FACTS
REASONS FOR GRANTING THE WRIT
I THE COURT SHOULD GRANT CERTI-
ORARI TO DETERMINE WHETHER
UNSUPPORTED CONCLUSORY STATE-
MENTS CAN BE USED TO UPHOLD A
SEARCH WARRANT THAT WOULD BE
INSUFFICIENT WITHOUT THEM
II THE COURT SHOULD GRANT CERTI-
ORARI TO DETERMINE WHETHER
THE TESTIMONY OF AN IMPEACHED
WITNESS CAN BE THE PRIMARY
BASIS OF A CONVICTION
55
55
77
a i
Page TABLE OF AUTHORITIES
Cases Page
III THE COURT SHOULD GRANT CERTI- soul eg
ORARI TO DETERMINE WHETHER Aguilar v. Texas
EXIGENT CIRCUMSTANCES, SUCH 378 U.S. 108 (1964) 55, 59, 60
A WARRANTLESS VERICEE seamen 68, 75
VEHI
WHEN THE EXECUTING OFFICERS Angello v. United States
HAD A CONSIDERABLE AMOUNT OF 202, 0.8. 20 (1925) 83
TIME IN WHICH TO APP
SEARCH WARRANT, TO an 4 Carroll v. United States
ENTIRE DAY, DURING WHICH THE eer Eeme ASS LA9EC) sah
teitics — = Chambers v. Mahoney
399 U.S. 42 (1970) 88
CONCLUSION
ai Coolidge v. New Hampshire
403 U.S. 443 (1971) 86, 88
APPENDIX A MEMORANDUM
United States Court of Corngold v. United States
Appeals for the Ninth 367 F.2d 1 (9th Cir. 1966) 85
Circuit
Filed May 18, 1978 Giordenello v. United States
‘ 357 U.S. 480 (1958) 55, 57
: 64, 68, 70, 74
Jones v. United States
357 U.S. 493 (1958) 85
Nathanson v. United States
290 U.S. 41 (1933) 59, 74
Preston v. United States
376 U.S. 363 (1964) 85
Rice v. Wolff
513 F.2d 1280 (8th Cir. 1975) 61
Spinelli v. United States
393 U.S. 410 (1969) 60-62, 75
ii. iii.
Stoner v. California
376 U.S. 483 (1964)
United States v. Bailey |
458 F.2d 408 (9th Cir. 1972)
United States v. Harris
403 U.S. 573 (1971)
United States v. Office No. 508
Ricou-Brewster Bldg., 119 F.
Supp. 24 (LA 1954)
United States v. Ventresca
380 U.S. 102 (1965)
Whiteley v. Warden
401 U.S. 560 (1971) 59, 62
Statutes
18 U.S.C. § 2
21 U.S.C. § 843(b)
21 U.S.A. § 846
21 U.S.C. § 846 (a) (1)
Rules
Rule 29, Federal Rules of Crim. Pro
Constitution
United States Constitution
Fourth Amendment
Due Process Clause of the Fifth
Amendment printed in 1 U.S.C.
XLVI
iv.
- 44
- ee
IN THE
SUPREME COURT OF THE UNITED STATES
October Term 1977
No.
SAMUEL G. BAILEY,
" Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Petitioner prays that a Writ of Certio-
rari issue to review the judgment of the
Ninth Circuit Court of Appeals entered in
the above-entitled case on May 18, 1978.
CITATIONS TO OPINIONS BELOW
The Judgment of the Court of Appeals is
not yet reported. Said Opinion is printed
and attached hereto and made a part hereof
as Appendix A.
JURISDICTION
The Ninth Circuit Court of Appeals af-
firmed the conviction of petitioner on
May 18, 1978,
All questions raised in this instant
petition were raised in the Court below
and on appeal to the Ninth Circuit Court
of Appeals.
QUESTIONS PRESENTED
1. Whether unsupported conclusory
statements can be used to uphold a search
warrant that would be insufficient with-
out them.
2. Whether the testimony of an impeach-
ed witness can be the primary basis of a
conviction,
3. Whether exigent circumstances, such
as public safety, can justify a warrant-
less vehicle search, when the executing
officers had a considerable amount of
time in which to apply for a search war-
rant, to wit, an entire day during which
the alleged hazard existed.
x on hee se
CONSTITUTIONAL PROVISIONS
¢
The Constitutional provisions involved
in the instant case are the Fourth Amend-
ment to the United States Constitution
and the Due Process Clause of the Fifth
Amendment printed in 1 U.S.C. XLVI.
STATEMENT OF THE CASE
On May 18, 1977, an indictment was
filed in the United States District Court
for the District of Idaho charging the
petitioner, Samuel G. Bailey, and co-
defendants Jon Keith Vander Pauwert (here-
inafter referred to as Vander Pauwert)
and Bernard Michael Stipa (hereinafter
referred to as Stipa) with violations of
21 U.S.C. § 846, conspiracy to manufac-
ture methamphetamine, a controlled sub-
stance (C.T. 1)¥/ 21 U.S.C. § 843 (b),
willful use of a communication facility
to facilitate acts constituting a felony
(C.T. 5-7); and 21 U.S.C. §§ 846 and 846
(a) (1) and 18 U.S.C. § 2, attempt to manu-
facture a measurable amount of methamphet-
amine (C.T. 8).
1/ C.T. refers to the Clerk's Transcript.
3.
On May 24, 1977, the petitioner was
arrested pursuant to warrant (C.T. 10),
and bond was set at Five Thousand Dollars
($5,000). Bond was furnished and the pe-
titioner was released (C.T. 23)
On May 26, 1977, the petitioner was
arraigned and pled not guilty to the char-
ges (C.T. 22). A Motion for Bill of Par-
ticulars was filed on June 13, 1977
(C.F. 31).
On July 1, 1977, Richard Gc. Sherman
was associated with Thomas Jones for the
representation of the petitioner i
44). A Motion for the Suppression of
Evidence was filed in the District Court
on behalf of the petitioner on July 12,
1977 (C.T. 86). The government's response
was’ filed on July 15, 1977 (C.%. 160).
On July 18, 1977, Thomas Jones with-
drew from representation of the petitioner
(C.T. 179). On that date, the Court
heard and denied the petitioner's Motion
to Suppress. Trial by jury was waived,
and a Court trial began (C.T. 180).
On July 21, 1977, at the Close of the
government's case-in-chief, the petitioner
4.
an
moved for judgment of acquittal. The mo-
tion was denied. At the close of the pe-
tioner's case, the motion was renewed.
The motion was denied. The petitioner
was found guilty as charged (C.T. 189).
On August 8, 1977, the petitioner
filed the Affidavit of Richard G. Sherman
in Support of Defendant's Motions for New
Trial and Judgment of Acquittal (C.T.
199). The motions were denied and the
petitioner was sentenced to three (3)
years in the custody of the Attorney Gen-
eral and a two (2) year special parole
term for each of the three counts, the
sentences to run concurrently (C.T. 202).
On August 9, 1977, the petitioner filed
a Notice of Appeal (C.T. 211). The peti-
tioner was released on bond pending ap-
peal (C.T. 209).
The Court of Appeals for the Ninth Cir-
cuit affirmed the judgment of the District
Court on May 18, 1978. On June 7, 1978,
the petitioner filed a Petition for Re-
hearing and Suggestion for Appropriateness
of Hearing En Banc. The Court of Appeals
for the Ninth Circuit has not yet ruled
on the petitioner's request for rehearing.
Se
STATEMENT OF FACTS
In the case at bench, four search war-
rants were issued on March 26, 1977. One
of the warrants was issued for the home of
co-defendant Stipa's parents (C.T. 98);
one was issued for the mobile home trailer
belonging to a Ralph Nydegger (cC.T. 99);
one was for a 12' x 12" shed (c.T. 100) ;
and one was issued for the home of the pe-
titioner (C.T. 101). The search warrants
were based upon a Single affidavit of Spe-
cial Agent William Cornell (hereinafter
referred to as’Cornell) of the U.S. Depart-
ment of Justice Drug Enforcement Adminis-
tration (C.T. 102-106).
In substance, the affidavit states that
On March 3, 1977, affiant observed Stipa
at a freight depot in Boise, Idaho, Picking
up three cardboard boxes (the dimensions
of each box were Particularly described).
Affiant and other officers observed Stipa
take a very circuitous route from the de-
pot to a tavern (particularly described)
in Eagle, Idaho. The affidavit then con-
tained the following unsupported state-
ments:
1. That the cardboard boxes contained
monomethey lamine;
2. That the boxes were carried into a
described shed;
3. That since that time, one bottle
was observed being removed from the
tavern shed;
4. That on March 25, 1977, two boxes
were removed from the shed and taken to
the mobile home belonging to a Ralph
Nydegger;
5. That Stipa used a false name, John
Hansen, W.R. Inc.; and
6. That Jay Ingleby, owner of the Chem
Shop in Salt Lake City, told him how much
monometheylamine Stipa purchased; that
Stipa used the name John Hansen of W.R.
Inc.; and that the monometheylamine sent
to Stipa was packed in three cardboard
boxes.
That affiant then gave the location of
P.I.E. Freight Depot and explained how
Stipa paid for the delivery, without stat-
ing the source of this information.
The affidavit then contained the
Be
following statement unsupported by per-
sonal knowledge: Affiant spoke with an
employee of Aldrich Chemical House, Phyl-
lis Kratzer, who tol¢ him that a male
identifying himself as Stipa telephoned
Aldrich Chemical House and attempted to
Order phenylacetone. As phone orders
were unacceptable, a letter and money or-
ders were sent. The chemical was packed
in a metal drum enclosed in a cardboard
box, and Shipped. It was to arrive in
Boise the same day, March 22, 1977.
Affiant saw Stipa pick up the metal
drum and pay Shipping costs on March 24,
1977. He followed Stipa to the residence
of Samuel Bailey and observed the box car-
ried into the house. The affidavit con-
tinued as follows:
1. The metal drum was taken to the mo-
bile home;
2. At the same time monometheylamine
and other items were taken into the mobile
home ;
3. On March 26, 1977, officers smelled
the odor of PoP eminating from the mobile
home;
8.
4. Stipa was observed carrying a box
from the mobile home into a pickup truck
and driving to the Bailey residence;
5. Later on March 26, 1977, officers
smelled the odor of ether around the mo-
bile home and observed the air vent on
the mobile home completely open;
6. Stipa and an unkonwn female were
followed to a drug store and then back
to the Bailey residence;
7. At the drug store Stipa attempted
to purchase a ring-stand for a bunson bur-
ner, and did purchase litmus paper; and
8. When Stipa drove to the Bailey resi-
dence he loaded many items in the pickup
truck and drove to his parents' home,
where he lived.
Affiant spoke with a qualified foren-
sic chemist who gave the opinion that the
manufacture of methamphetamine was going
on in the mobile home.
On July 18, 1977, an evidentiary hear-
ing was held on the petitioner's Motion to
to Suppress (R.T. 16)2/,
2/ R.T. refers to the Reporter's Tran-
~ geript. 9
Counsel for the petitioner stated that
the search warrant affidavit was conclu-
sory (R.T. 17) because many times the ob-
server was not identified (R.T. 18), and
because there was no information con-
tained within the four corners of the af-
fidavit on how these observations were
reported to the affiant (R.T. 19). Coun-
sel for the petitioner cited various ex-
amples in the affidavit to support this
position (R.T. 20).
The Court stated that the insufficient
portions were irrelevant as long as there
was enough factual material in the affida-
vit to support a warrant (R.T. 24-25).
The affiant, Cornell, testified that
a United States Attorney assisted him in
the preparation, drafting and review of
the affidavit (R.T. 27).
The Court denied that portion of the
Motion to Suppress that was based on the
insufficiency of the affidavit supporting
the warrant, finding:
"It is not a model, but I think
it adequately advises a judicial of-
ficer of a series of factual matters
sufficient so that he could exercise
10.
SHE
Er
his judicial discretion and deter-
mine it was a legal warrant to
search." (R.T. 31)
Counsel for the petitioner then moved
to suppress the warrantless vehicle
search.
The government's first witness was
Cornell, who testified that he is an
agent of the Drug Enforcement Administra-
tion (DEA), and was on official duty on
February 8, 1977.
On that date, Cornell was advised by
Special Agent Orve Hendrix (hereinafter
referred to as Hendrix) that Hendrix had
received a phone call from the Chem Shop
in Salt Lake City. The shop had informed
Hendrix that it received an order for
seventy eight (78) kilograms of monomethey-
lamine from a Jay Hansen, representing W.
R. Incorporated (R.T. 36). No such busi-
ness was listed in the Idaho State Busi-
ness Records. Hansen had not given an
FDA number (R.T. 63). Hendrix found that
the phone number Hansen gave was listed
to a Ralph Nydegger, Roundy's Trailer
Court, Eagle, Idaho.
On March 3, 1977, the monometheylamine
Bie
was shipped by the Chem Shop and picked
up in Boise, Idaho (R.T. 37) by an indi-
vidual later identified as Stipa.
Cornell followed Stipa's automobile as
it traveled from Boise to a tavern in
Eagle, Idaho (R.T. 38).
On March 15, 1977, Special Agent Mike
Ebert (hereinafter referred to as Ebert),
of the Milwaukee office of the Drug En-
forcement Administration, informed Cornell
that he had received a letter sent to Al-
drich Chemical House requesting six and
a half (6-1/2) kilograms of phenylacetone.
The letter was signed by a B. Michael
Stipa of 9260 Cory Lane, Boise, Idaho,
and included money orders in the sum of
Four Hundred Eighty One Dollars ($481.00).
Cornell and Ebert planned a controlled
delivery (R.T. 39).
Hendrix okayed a controlled shipment
of the chemicals (R.T. 65). Cornell, act-
ing undercover, pretended to be an employ-.
ee of the Transfer Company. He called
the Stipa residence and informed Stipa's
father that the package had arrived (R.T.
82).
12.
—————s
On March 24, 1977, Stipa picked up the
package sent from Aldrich. He wanted to
pay by check, but the company policy was
cash only. He returned in less than an
hour with a cash payment. Cornell helped
him carry the box out to his pickup.
Stipa left the area and Cornell joined in
the surveillance.
Stipa drove to 4186 Tamarack Drive,
Boise, and took the box into the residence
(R.T. 41). He exited the residence in
about five minutes, and left the area
without the box (R.T. 42).
The chemical companies had contacted
the Drug Enforcement Administration to
make certain that the orders were legiti-
mate (C.T. 43).
Cornell was informed by the Idaho Bu-
reau of Narcotics and Special Agent Jones
that on March 25, 1977, Stipa removed a
lightweight box from his pickup and went
into the shed behind the Kennel Club Tav-
ern near Eagle, Idaho. He made two trips
with the box from the shed to the pickup.
Stipa then returned to his residence (R.T.
43).
13.
At 4:25 p.m., Stipa drove to 4186 Tam-
arack Drive under surveillance. The pe-
titioner was not there. He arrived in a
Capital Roofing truck at 6:30 p.m. (R.T.
89).
On March 26, 1977, Stipa and Vander Pau-
wert purchased two bags of ice, then drove
up Highway 21 to a camping area (R.T. 45)
Cornell personally followed Stipa and
Vander Pauwert from the market, down High-
way 21, to the camping area (R.T. 95).
Cornell was advised that the lights to
the camper were on all night long. The
next morning Stipa and Vander Pauwert
drove westbound on Highway 21. Earlier
that day, Stipa had been observed remov-
ing items from the camper and taking them
to the mobile trailer home of Ralph Ny-
degger in Eagle, Idaho. Other officers
advised Cornell that they were able to
smell phenylacetone and ether (R.T. 46).
Stipa was next observed at the Cory
Lane residence, and then in a pickup,
proceeding to the residence at Tamarack
Drive. Later, Stipa, Vander Pauwert, and
a Deborah Moss went to a drugstore (R.T.
14.
47), where they inquired about purchasing
a ring stand. They proceeded to a bio-
logical supply house, returned to the
Tamarack Drive residence, and Stipa then
left for the Cory Lane residence (R.T.
48).
Later that day, Vander Pauwert and
Deborah Moss purchased a bunson burner, a
centigrade thermometer, a ring stand sup-
port, and two plastic containers (R.T. 48).
They then returned to the Tamarack Drive
residence.
At approximately the same time, Stipa
returned to the mobile home, loaded boxes
and grocery bags into the pickup, and re-
turned to the Cory Lane residence (R.T.49).
That evening, Stipa picked Vander Pau-
wert up and went to the Tamarack Drive
residence. Approximately twenty (20) min-
utes later, they exited the residence and
went to a camp site (R.T. 50). They re-
turned to 4186 Tamarack Drive at approxi-
mately 6:58 a.m. in the morning of March
27, 1977 (R.T. Sl).
An arrest warrant for Stipa only, and
search warrants for the residences of
15.
i
4
Stipa, Nydegger, and Bailey, and for the
Kennel Club shed, were the only warrants
obtained. Cornell went to the Tamarack
Drive residence, arrested Stipa and
Vander Pauwert, and executed a search war-
rant for the residence. Stipa's vehicle
was placed under seizure and a forensic
chemist was contacted (R.T. 52). Cornell
testified that he placed the vehicle un-
der seal under authority of the Controlled
Substance Act, as a vehicle used in the
commission of a felony, and because he be-
lieved the chemicals inside the vehicle
to be volatile (R.T. 53).
When Cornell and the chemist entered
the camper, they observed a gray metal
drum, a homemade ring stand, a cello bag
containing different pieces of glassware,
and miscellaneous items. An odor was
emitted from beakers containing an oily-
type solution and chopped up tin foil
(R.T. 54).
The petitioner was not arrested until
a month and a half later because at the
time his house was searched, there was
insufficient evidence to arrest him (R.T.
104).
16.
The evidence of criminal activity that
Cornell had with regard to the petitioner
at the time of the search of his house on
March 26, 1977, was as follows:
1. The other defendants had been ob-
served going to and coming from the peti-
tioner's residence;
2. Phenylacetone was brought into his
residence overnight; and
3. Vander Pauwert was living at the
petitioner's residence (R.T. 105), shar-
ing a room with the petitioner's son
(R.T. 110).
There was a twelve (12) hour delay be-
fore the search warrants were executed
(R.T. 106).
As soon as the search of March 27,
1977 was initiated, Cornell requested
Stipa's car keys. The camper was searched
simultaneous to the search of the resi-
dence.
Although the camper was allegedly
searched because of a safety factor, dur-
ing the twelve (12) hours between the is-
Suance of the arrest warrant and Stipa's
arrest, the camper was being driven
17.
through the streets. The road had dips
and rocks. Cornell could have stopped
the vehicle when it was moving, or when
it was at the camp site (R.T. 114).
Phenylacetone is not a controlled sub-
stance (R.T. 117).
Cornell testified that he believed
phenylacetone and metheylamine were in
the vehicle (R.T. 126). The arrest was
delayed because "it became clear to us
they were going to perform a similar func-
tion and we just thought it was better to
wait until they did something." (R.T. 127).
Robert W. Lawson, hereafter referred
to as Lawson, who was qualified as an ex-
pert in forensic chemistry (R.T. 135),
testified that by itself, phenylacetone
cannot become a controlled substance (R.
T. 135). Phenylacetone is not volatile
under normal circumstances, and is shipped
through the mails. It can only blow up
if ignited. Metheylamine, however, is
highly volatile (R.T. 136).
The Motion to Suppress was then argued
by counsel for the petitioner (R.T. 139).
The motion was denied (R.T. 143).
18.
Trial then commenced.
The government's first witness was
Donald P. Andrews (hereinafter referred
to as Andrews) whose credibility was later
seriously questioned. Andrews testified
as follows:
He is a self-employed hairdresser liv-
ing in Twin Falls, Idaho (R.T. 148). On
December 17, 1976, Stipa, the appellant
and Bob Moore visited him (R.T. 149) and
he accompanied them to a restaurant. At
the restaurant Andrews and Stipa discussed
the process by which methamphetamine is
made (R.T. 150). Stipa told Andrews he
had studied chemistry (R.T. 151) and An-
drews explained to Stipa what ingredients
were necessary (R.T. 152-153).
The petitioner and Stipa asked Andrews
to make a list of the chemicals. Andrews
made a list, including phenylacetone, tin
foil, benzine, methyle-ethyl-ketone and
phenytendiamine crystals (R.T. 154).
Andrews put chemicals on the list which
would not produce methamphetamine because
he wanted to discourage them (R.T. 155).
The petitioner told Andrews he would re-
ceive ten percent (10%) of the gross profit
19.
for his help (R.T. 155). Two or three
weeks later, the petitioner telephoned
Andrews and stated that Stipa was having
problems (R.T. 157).
On February 19, 1977, Andrews, his
wife and Mrs. Bailey traveled from San
Francisco to Boise, Idaho. They were met
at the airport by Andrews' parents-in-
law, the petitioner and Vander Pauwert
(R.T. 158). The petitioner introduced
Andrews to Vander Pauwert at that time
(R.T. 159).
Andrews and the petitioner then had a
private conversation at which time the
petitioner indicated to Andrews that Stipa
had all of the chemicals on the list ex-
cept methylamine and that Stipa would be
contacting Andrews (R.T. 161).
Between February 19 and March 5, 1977,
there were numerous telephone calls be-
tween Andrews and Stipa (R.T. 162). On
March 4, 1977, the petitioner asked An-
drews to come to Boise to help him do
some roofing. The petitioner mentioned
that Stipa had gotten all the chemicals
necessary to make methamphetamine (R.T.
164).
20.
ete! Bite ow
ae
On March 5, 1977, Stipa picked Andrews
up and drove him to Boise. When they ar-
rived in Boise, they stopped at a grocery
store and at a drugstore, purchasing such
things as glass tubing, surgical hose,
flasks and stoppers. They then went to
the petitioner's residence on Tamarack
Drive (R.T. 165), arriving at approxi-
mately 9:30 p.m. Stipa left the house
and did not return until after midnight.
At that time, Andrews and Stipa went out
to get a drink (R.T. 166) at Bailey's
suggestion.
Andrews and Stipa went to the Kennel.
Club Tavern in Eagle, Idaho. Stipa had
forgotten his key, so they drove back to
Stipa's residence and Stipa found his
key. When they arrived back at the Ken-
nel Club, Stipa walked around the build-
ing and returned to the truck with a
bottle (R.T. 168).
They drove to a telephone booth and
Stipa made a telephone call. They then
went to a small trailer house in Eagle
(R.T. 169). Andrews thought he saw a DEA
car go by them and told Stipa that they
were being watched (R.T. 170).
21.
Inside the trailer they chatted and
had a beer or two. Andrews tried to find
out what chemicals Stipa had in the truck
(R.T. 171). He helped Stipa carry a bot-
tle of methylamine, a can of methyl-ethyl-
ketone, phenylenediamine crystals, flasks,
rubber stoppers, glass tubing, surgical
tubing and foil into the trailer (R.T.
172). They then tried to run a reaction
(R.T. 173). Stipa told Andrews that the
methamphetamine would be delivered in
Las Vegas by Bailey and Vander Pauwert
(R.f. era PB
Between 6:00 a.m. and 6:30 a.m. they
loaded the equipment and chemicals back
in the truck and drove to the appellant's
house (R.T. 178). Andrews, Bailey, Stipa
and Vander Pauwert went out to breakfast
and then returned to the petitioner's
house.
After breakfast, Stipa left the peti-
tioner's house and Andrews went to sleep.
When he awoke, Vander Pauwert was cutting °
up tin foil at the kitchen table (R.T. 179)
Stipa returned that afternoon (R.T. 180).
At that time, Andrews, Stipa and Vander
Pauwert went to Stipa's house to pick up
22.
ee
a bottle of methyl-ethyl-ketone (paint
thinner) and they then drove to the Ken-
nel Club. Stipa and Vander Pauwert went
around the side of the building and re-
turned with a burlap bag (R.T. 181) con-
taining three bottles of methylamine (R.T.
182).
They drove to the trailer house and
there removed the chemicals and equipment
from the pickup and placed them in the
trailer house (R.T. 183). They attempted
to titrate the substance they had begun
the night before. The substance did not
crystalize. It evaporated. Andrews said
that maybe they needed PoP (R.T. 184).
Stipa left and returned with Benzine.
Andrews said that Benzine would not work
although he had listed it as a substitute
for P2P. Stipa asked Andrews questions
regarding how he could acquire some P5P
(R.T. 188). They placed everything back
in the truck and returned to the petition-
er's house (R.T. 189). Stipa left, and
Andrews, the petitioner and Bob Moore
played cards until about 11:30 p.m.
The petitioner then wrote Andrews a
check for Sixty Dollars ($60) as
23.
compensation (R.T. 190). The petitioner
and Bob Moore drove Andrews to the bus
Station and Andrews rode the bus home.
On March 25, 1977, Stipa telephoned
Andrews (R.T. 194) and told him that he
was having problems and wanted Andrews to
come to Boise (R.T. 195). Andrews told
him to heat the substance with a bunson
burner.
At the close of his testimony on di-
rect examination, Andrews testified that
he has been convicted of and has served
time for the felony of forgery (R.T. 196).
On cross-examination of Andrews by
counsel for Bailey, the following informa-
tion was elicited:
1. Andrews has known Bailey for approxi-
mately three and one half years and they
have been good friends during that time.
Bailey was best man at Andrews' wedding.
They have never engaged in criminal ac-
tivity together (R.T. 281-282).
2. Andrews stated that Bailey first ap-
proached him regarding the making of meth-
amphetamine on December 17, 1976. Andrews
had originally told the government that
24.
the first meeting was in January (R.T.
282-285).
3. Bailey, his brother-in-law, Bob
Moore, and Stipa stopped in Twin Falls on
their way to the Teton Dam sale with An-
drews to purchase vehicles and to speak
with George Kinzel, Andrews' father-in-
law, about the sale (R.T. 286-288).
4. After Bailey, Bob Moore, Stipa, and
Andrews returned from the restaurant, An-
drews made the list of chemicals (R.T.
280). He wrote two formulas down - - one
for methylamine and one for P9P. Methyl-
amine plus P5P is not the formula for
methamphetamine (R.T. 291).
5. Andrews has had no experience with
the manufacture of methamphetamine; he has
never assisted in the making of that drug;
but he did tell Bailey that he could make
the drug (R.T. 292) when they were in the
Idaho State Penitentiary (R.T. 293).
6. Andrews wished to discourage Bailey
when he wrote down the formulas. He did
not even know if he was writing down cor-
rect formulas (R.T. 295). He just picked
names out of the air as chemicals of some
25.
sort and wrote them down (R.T. 297).
7. On direct examination Andrews had
testified that in order to discourage
them he had written down a list of sub-
stitutes. On cross-examination, he testi-
fied as follows:
"Q. Which items on this list are
substitutes?
"A. None of them. It is garbage.
"Q. In other words, to the best of
your recollection, then, this entire
list was garbage?
"A. That's right." (R.T. 298).
8. On March 6, 1977, when Andrews went
to the Kennel Club with Stipa, he saw a
bottle of phenylenedramine crystals in
the car. Thus, he had written down on
the list at least one Substance that did
exist, although, to his knowledge, the
crystals have no use in the manufacture
of methamphetamine (R.T. 299-300).
9. Methylamine is an item used in the
creation of methamphetamine (R.F. 301).
10. Andrews has never been involved with
methamphetamine laboratories, and has
never acted as an informant in regard to
26.
Wn oh BET
oe al.
methamphetamine laboratories before this
case (R.T. 304).
11. When he told Cornell or Hendrix
that he knew of a methamphetamine lab
that was producing methamphetamine, he
was not talking of the alleged lab in the
case at bench. He was talking about a
"non-existent one" (R.T. 305).
12. On May 18, 1977, Andrews gave the
government a written statement in which
he stated that on March 6, 1977 he drove
with Stipa to the trailer, carried the
equipment into the trailer, and told
Stipa that he would not participate. On
cross-examination, Andrews admitted that
this statement was not true (R.T. 306).
13. In his statement of May 18, 1977,
Andrews stated that he refused to help the
defendants (R.T. 313). That statement
was not true (R.T. 314).
14. Andrews' initial statement to the
authorities was made orally on May l,
1977. Andrews made a written statement on
May 18, 1977. He made no other statements
to the law enforcement authorities (R.T.
321).
27.
15. Since his release from prison, An-
drews has not been involved in drug traf-
fic (R.T. 324), but has acted as an in-
formant for state agencies in drug re-
lated transactions and has worked with
Hendrix in that regard (R.T. 325).
16. Andrews denied that he intended to
inform the government of the defendants'
activities, and denied that he stated the
contrary to any government agent (R.T.
326). He did admit that he knows State
Narcotics Agent Glen Ford (hereinafter
referred to as Ford) and that he has
acted for him as an informant on six dif-
ferent occasions (R.T. 327).
17. TAPE OF MARCH 15, 1977.
On March 15, 1977, Ford telephoned An-
drews. Andrews thought that Ford might
be recording the conversation. The re-
cording was Played for the Court. In the
conversation, Andrews stated that he was
working on a "big" speed transaction in-
volving Las Vegas, Washington and Oregon.
He stated that he would not tell Ford any-
thing until he was ready and that he had
been working on the case for four months
28.
© (30 uns wet ee
(R.T. 334). He would not give Ford the
information until he was assured that he
would be paid (R.T. 335). He stated
that the transaction would happen if he
wanted it to (R.T. 336), and that he
wanted to be paid by both the state ana
federal agencies (R.T. 337). On May l,
1977 Andrews found out that his telephone
conversation had in fact been recorded
(R.T. 345).
Cross-Examination
On cross-examination, Andrews testi-
fied that he told Ford that he was work-
ing on “something big", referring to
this case, because he decided that the
reason Ford called was because he and
the defendants were under surveillance.
Andrews wanted to give Ford some indica-
tion that he knew something was going on
and that he was acting as an informant
rather than as a criminal participant
(R.T. 350). Andrews stated that he was
lying when he told Ford that he had been
working on the case for four months (R.T.
352). He just picked a number out of
the air.
29.
18. TAPE OF MARCH 16, 1977
Hendrix and Ford telephoned Andrews on
March 16, 1977 and again recorded the con-
versation. This conversation was not
played for the Court but the Court, the
witness and counsel had copies of the
transcript of the conversation.
Cross-Examination
Andrews testified that he did not want
to tell the government anything at that
time because he did not think he had yet
acquired the kind of information that the
government wanted (R.T. 355), although he
had already met the defendants in Twin
Falls, had observed that Stipa had chemi-
cals, and had participated in the attempt
to make something (R.T. 363).
Defense counsel asked Andrews if the
real reason he did not give Hendrix and
Cornell information was that he wanted
money from the government up front. An-
drews replied that it was (R.T. 364).
Defense counsel asked Andrews if he was
was truthful when he told Hendrix that he
was working on a case involving "pounds
of speed." Andrews said that it was not
30.
- noel ate
C~ iw
true (R.T. 368). He also lied when he
told Ford that the suspects were manu-
facturing "about three a week." (R.T.
369) °
Andrews lied when he told Hendrix and
Cornell that the transaction was going
on “right now" (R.T. 370).
Andrews also lied when he told the
agents that the transaction was now in
Idaho but that it was going across the
border (R.T. 374). He told the agents
that he was not investigating this job
for the pleasure. He had not been in-
vestigating the defendants at all (R.T.
378).
When Andrews told the agents that he
had the whole plan, he was not being
truthful (R.T. 381).
19. TAPE OF MARCH 28, 1977
The final telephone call was made by
Hendrix to Andrews on March 28, 1977 (R.
T. 384), one day after the arrests of
Stipa and Vander Pauwert had taken place
(R.T. 385).
In the phone conversation of March 28,
Andrews stated that his involvement in
31.
the transaction was that the Suspects had
come to him for information. He knew how
to make methamphetamine and they wanted
to know how (R.T. 389). He did not show
them anything, but he did give them infor-
mation. He further stated that he was
afraid to let the names of the suspects
go (R.T. 390) because he did not know
how to uninvolve himself and because he
did not want to testify in Court (R.T.
394). He stated he would not divulge
information unless it would be profitable
to him (R.T. 395),
Andrews said he would be ready to talk
to Hendrix in a week at the most (R.T.
397), and that he was not ready at the
time because the Operation had been moved
(R.T. 398), and that he was not exactly
Sure where it was (R.T. 399).
Andrews theh told Hendrix that the sus-
pects were dealing out of state, such as
Las Vegas, and that the substance was
leaving Idaho in powder form (R.T. 402).
He said that the Suspects had a lot of
chemicals (R.T. 404).
Cross-Examination
On cross-examination, Andrews stated
32.
ee
that he did not know how to produce meth-
amphetamine, contrary to what he had told
Hendrix. Andrews stated that he did pre-
tend to show the suspects how to make
methamphetamine, contrary to what he had
told Hendrix (R.T. 417).
Andrews was just making double-talk
when he told Hendrix that he could put
things together but would not do so until
he received payment from the government.
He could never have made the lab a func-
tional operation (R.T. 420).
20. Andrews made a deal with the gov-
ernment that he would not be prosecuted
for the offense in this instant case as a
result of his testimony (R.T. 427).
21. On direct-examination, the govern-
ment counsel asked Andrews questions
about dates, conversations and detailed
moves, and Andrews was able to describe
what occurred and when (R.T. 430). On
cross-examination, Andrews answered that
he did not know to the same questions
(R.T. 429).
22. Andrews spoke with the petitioner
one week prior to the arrest of Stipa and
33.
Vander Pauwert regarding some roofing
(R.T. 431). Andrews said he had done
roofing for the petitioner before, and
that he had received Sixty Dollars
($60.00) for materials, not for illegal
activities (R.T. 432).
23. On March 28, 1977, Andrews told
the agents that the lab had been moved.
This was not truthful. There was only a
possibility that the lab might be moved
into the woods if the reaction were suc-
cessful (R.T. 433).
24. Andrews never intended to tell Hen-
drix the truth about anything that he
did not want to tell him (R.T. 434-435),
At this point in the cross-examination
the following colloquy occurred:
"The Court: It's so obvious, it
sort of sticks out. I dare say that
you know and I know that this is not
unusual in this kind of a game, the
undercover game. It's a way of life
and you know it and I know it, so it
doesn't surprise you. However, you
are entitled to make your record in
this matter and you may proceed.
"Mr. Sherman: Thank you.
"The Court: However, I think we
are wasting our time again and again
inquiring as to when he is and when he
is not telling the truth." (R.T 435)
34.
on eh Ree ;
~ ‘
Cross-examination continued as follows:
25. After the conversation of March 28,
1977, Andrews did not speak to Hendrix
until he came to Boise, Idaho at the re-
quest of the Drug Enforcement Administra-
tion (R.T. 436).
26. After Stipa and Vander Pauwert were
arrested, the petitioner called Andrews
to inform him of the arrests. Andrews
contacted an attorney (R.T. 436) after
he called Ford. Ford had told him to
get an attorney (R.T. 437), and would
not talk to Andrews (R.T. 439).
On cross-examination by counsel for
Stipa, Andrews testified that when he
told Agent Ford that the transaction
would happen if he wanted to, he felt
that he had control, because the govern-
ment knew nothing (R.T. 446).
Andrews gave the defendants informa-
tion in order to get them off his back
(R.T. 450). He had no agreement with
anyone (R.T. 451). He did not really
have anything to do with the defendants
except to lead them astray (R.T. 453).
On redirect-examination by the
35.
government, Andrews testified that at the
December 17th meeting, Stipa brought up
the subject of manufacturing amphetamines
(R.T. 455). He further testified that he
had obtained knowledge about manufactur-
ing methamphetamine from people he had
met in the Vietnam War and from a lot of
reading that he had done (R.T. 456). An-
drews does not know exactly and precisely
how to chemically manufacture methampheta
mine, but he does have a general idea of
the process involved (R.T. 458).
On recross-examination by counsel for
Stipa, Andrews testified that he does not
know how to manufacture any drugs (R.T.
462).
The government called three witnesses
to establish that co-defendant Stipa had
requested chemicals from their companies
and that these chemicals are on a list as
being ingredients for methamphetamine.
The first of those witnesses was a Mrs.
Kathleen Ingleby, who is the owner, with
her husband, of the Chem Shop in Salt Lake
City, Utah. Mrs. Ingleby testified that a
man identifying himself as John Hansen of
W.R. Incorporated ordered twenty-six (26)
36.
;
kilogram bottles of methylamine (R.T.
202-206). Hansen telephoned several
times regarding his delivery and to say
that he was sending in the payment (R.T.
207-209).
Mrs. Ingleby was suspicious of Hansen
and phoned the Drug Enforcement Adminis-
tration and spoke with Hendrix. She ex-
plained that there was no Boise listing
for W.R. Incorporated and the drug was
paid for in money orders rather than in
company checks. Before shipping the or-
der, she waited for instructions from
Hendrix (R.T. 210-211).
The second witness was Howard Jay
Ingleby (hereinafter referred to as
Ingleby), Mrs. Ingleby's husband and co-
owner of the Chem Shop. Ingleby testi-
fied that Hansen called many times about
his order (R.T. 224), stated that the
drug would be used for a water bath with
ketones (R.T. 226), and that he would
have someone call the Chem Shop with his
FDA number, which he never did (R.T. 227).
The third witness was Phyllis Kratzer
(hereinafter referred to as Kratzer), who
testified that she is an employee of
37.
Aldrich Chemical House and was so em-
ployed on March 14, 1977 (R.T. 233).
On that date Kratzer received a mail
order for six and one half (6-1/2) kilos
of phenylacetone from a B. Michael Stipa
(R.T. 234). Kratzer notified the Drug
Enforcement Administration because the
drug was listed in the company's computer
as a precursor to a controlled substance
(R.T. 235).
On March 17, 1977, Stipa telephoned
Aldrich Chemical House and asked Kratzer
if his order had been shipped. She
stated that it would be shipped as soon
as possible (R.T. 236). The DEA con-
trolled the shipment (R.T. 241) and sup-
plied the containers (R.T. 244).
After cross-examination of Andrews,
Ralph Nydegger (hereinafter referred to
as Nydegger), resident of a trailer court
in Eagle, Idaho, was called by the gov-
ernment and testified that numerous calls
were made from his phone to Salt Lake
City in February and March, 1977. Nydeg-
ger stated that he does not know the pe-
titioner and never heard of him until he
Saw his name on the subpoena (R.T. 256).
38.
% si rts. ‘
A William T. O'Brien (hereinafter re-
ferred to as O'Brien), terminal manager
of Pacific International Express Truck-
lines, testified that he received the
Salt Lake-City package and contacted the
DEA as he ‘iad been advised to do (R.T.
258-259). O'Brien recognized Stipa as
the person who picked up the package (R.T.
261). He had never seen the petitioner
before and had heard of his name only on
the subpoena (R.T. 262).
The government then called two wit-
nesses to testify that the defendants had
purchased equipment to set up the metham-
phetamine lab. The first witness, a
Janice Hart, was an employee at a hobby
store and testified that on March 26,
1977, someone, who she later identified
as Stipa, had purchased a centigrade
thermometer, a bunson burner and a sup-
port stand (R.T. 266). The second wit-
ness, a Ronald R. Carpentier, was a phar-
macist and testified that on March 6,
1977, Stipa had asked to purchase benzine
(R.T. 272) and had returned that evening
with two people, asking for PH paper and
a tripod, which Carventier did not have.
39.
The petitioner was not among those at the
pharmacy (R.T. 273-274).
James Look (hereinafter referred to as
Look), who was qualified as an expert
forensic chemist, works for the DEA (R.T.
464), Look added two ingredients to the
substance found in Stipa's vehicle: mer-
curic chloride and steam heat. This pro-
duced methamphetamine (R.T. 466). Look
testified that it is possible to make
other things with P5P besides methampheta-
mine (R.T. 473). He was shown the list
of chemicals made by Andrews and stated
that the symbols and characters set forth
were written by someone who knew the chem-
ical formula for methamphetamine (R.T.
475). The average chemist would know
that he would not get methamphetamine from
this combination of chemicals unless he
were to use a reducing agent (R.T. 480).
The second qualified expert forensic
chemist called by the government was
Robert Dews (hereinafter referred to as
Dews).
Dews was shown the same list of chemi-
cals and stated that a layman could not
have written it -- only someone with at
40.
least two years of college chemistry
could have written it (R.T. 663).
Methamphetamine could be made from those
chemicals (R.T. 664).
The government counsel also called a
series of government agents to testify to
the overt acts alleged to have been com-
mitted by the defendants. None of these
witnesses saw the petitioner commit il-
legal acts.
On March 26, 1977 Cornell executed
the search warrant for the petitioner's
residence and arrested Stipa pursuant to
an arrest warrant (R.T. 590).
In the petitioner's bedroom, Cornell
seized a piece of paper on which was |
written the name and address of a chemi-
cal firm and the word phenylacetone be-
neath it (R.T. 591). Packing for a sup-
port ring was found in the fireplace (R.
T. 592). Other items were seized from
the bathroom and the other bedroom, in
which Vander Pauwert was living (R.T.
595).
Cornell also searched the camper trail-
er that was parked outside the house
41.
(R.T. 595), and seized flasks, an Oily
substance, tubing, a gray metal drum,
glassware and methylamine (R.T. 596).
Cornell was aware that Vander Pauwert
was living in the petitioner's house (R.
T. 611). When Cornell observed Stipa
enter the Petitioner's residence with a
box on March 24, 1977, neither the peti-
tioner nor Vander Pauwert were at the
house. They arrived there approximately
ten minutes later and unloaded roof shin-
gles from the Capital Roofing Truck (R.
Ze GER)
Cornell never saw the petitioner en-
gage in criminal activity, but as far as
involvement with people who were so en-
gaged, the petitioner was observed in
Stipa's company (R.T. 614), although Cor-
nell could not recall when he saw the pe-
titioner and Stipa in the petitioner's
home in the absence of Vander Pauwert
(R.T. 615).
When Stipa and Vander Pauwert were ar-
rested, on March 26, 1977, the United
Stateg Attorney did not feel there was
sufficient probable cause to arrest the
petititioner (R.T. 623).
42.
:
4
3dr ES
On May 18, 1977, an indictment was
filed against the petitioner and the pe-
titioner surrendered the same day.
Cornell spoke with Andrews on May 1
and May 18 (R.T. 624) and on the 18th,
Andrews prepared a written statement. In
that statement Andrews declared that he
was telling the truth (R.T. 625).
At the end of the government's case-
in-chief, the State of Idaho moved to
quash and modify a subpoena served by the
defendants upon the State of Idaho and
Bureau of Narcotics Enforcement relating
to investigative materials regarding the
involvement of Donald Andrews in a number
of other cases of the Idaho Bureau of
Narcotics, or to submit them to the Court
in camera, on the grounds that the records
might tend to compromise on-going investi-
gations and that they were not relevant
to this instant case (R.T. 669).
Counsel for the petitioner agreed that
the materials should be looked at by the
Court in camera, but stated that they
were necessary to further impeach Andrews,
who stated that he was not involved in any
on-going state investigations (R.T. 670).
43.
The Court granted the motion to
quash, stating:
"The Court: Of course, I would
think any further impeachment of that
witness would be redundant. I think
his veracity has been put in a rather
severe issue here." (R.T. 671)
The petitioner moved to strike the
testimony of those witnesses who related
conversations outside of the petitioner's
presence. The motion was denied. The
petitioner then moved under Rule 29 of
the Federal Rules of Criminal Procedure
for a judgment of acquittal (R.T. 674)
on the grounds that (1) any acts committed
were facilitated, aided and abetted by
the United States of America in giving
permission to the chemical companies to
deliver these chemicals to the defendants
and (2) that there was insufficient evi-
dence connecting the petitioner to the
alleged criminal acts without the testi-
mony of Andrews, which was false and per
jurous (R.T. 676).
The government responded that there
was an insufficient showing of entrapment
(R.T. 680) and the Court agreed. The
44,
Court and the government continued as
follows:
"The Court: Well, let me ask ats
this question, then, orang 1 | ee
drews' testimony, and you rie gon
to agree if you totally exclu e “ge
Counsel's promise and ee ne
well, you would have to find tha °
Bailey's case is pretty flimsy, i
wouldn't you? The first thing yo a
would have to do, if you didn't nil
lieve Andrews you would have ceo
clude the conspiracy, which mig
mean that the evidence against ~~ eS
wouldn't be admissible. I'm no io
ing I look at it that way, but wil
out it, his argument, I would say,
would have a good deal of merit.
"Mr. Biehl: Well, I think the
case against (R.T. 681) Mr. ggg aN
standing on its own, without as
drews' testimony 1S very slim. <n
will agree with you there, Sir. page
is, I think, enough that, perhaps .
jury trial it would get past agp
tion, but just barely, and I do rene
to admit that, although there y ll
evidence against Mr. Bailey an an
portant part is that Mr. ae om
testimony, which was independen Pages
the investigation of this case, :
was independent, until the page
and when you put them pes agg ee
fit together like a puzzle, I 1
those two things together do prove
the involvement of Mr. Bailey.
(R.T. 682).
45.
~
The Court denied the Petitioner's mo-
tion for acquittal, making the following
findings:
"I think I should say here that
while the witness Andrews' testimony
certainly was impeached, and ought to
be viewed with caution, at the same
time, there is a rather considerable
amount of extrinsic and other evi-
dence that tends to Support much of
what he said. Therefore, as a finder
of the facts, I have determined to
give weight to his evidence and to
consider it, but look at it somewhat
cautiously, and on that basis, I am
Satisfied that there is enough evi-
dence at this time to indicate a guilt
on behalf of Mr. Bailey. The motion
for judgment of acquittal has to be
denied." (R.T. 684)
The Court stated that different stan-
dards do not exist on a Motion for Acquit-
tal than exist after submission of all
the evidence in the case to the Court
when there has been a waiver of jury,
and that if the petitioner were not to
offer any evidence, the Court would con-
vict (R.T. 686).
Bailey testified in his own behalf,
stating that he has been convicted of
theft of goods in interstate commerce and
46.
te as Eee a
of four or five burglaries and that his
last conviction was in March or April of
1971. He was released from jail on June
11, 1974 (R.T. 698) and was employed by
United Roofing Company for seven or eight
months. He then formed a partnership
with Alinda Roofing Company, which he
sold over a year later (R.T. 699).
Bailey started his own roofing company,
Capital Roofing and Construction, several
months later, working for United Roofing
in the interim (R.T. 700).
His business is incorporated, and his
wife, brother-in-law and himself each
own one share.
Bailey has eight employees (R.T. 701),
excluding his wife, who watches the office
about three hours per day. Business has
been good for the last six months, for a
new company, grossing close to One Hun-
dred Thousand Dollars ($100,000.00),
netting about Thirty Thousand Dollars
($30,000.00) (R.T. 702).
The petitioner met Andrews in the
Idaho State Penitentiary and once out of
prison, Andrews renewed the acquaintance
47.
ie
with the petitioner. Bailey knows Mr.
Kinzel (R.T. 703) who, when passing
through Boise with Andrews, told him
that a friend of his got a good buy on
some damaged equipment out of the Teton
Dam disaster. This generated the peti-
tioner's interest in the Teton Dam sale.
The petitioner eventually went to the
sale in Rexberg with Bob Moore and Mike
Stipa (R.T. 705). The petitioner knew
Stipa through the construction business
(R.T. 706). They stopped in Twin Falls,
Idaho to see George Kinzel because it
was on the way. At Kinzel's house, they
discussed the auction at Rexberg (R.T.
708). While in Twin Falls, they went to
a restaurant with Andrews. The subject
of drugs was not discussed (R.T. 709).
The next day, Bailey, Stipa and Moore
went to Rexberg (R.T. 710). On the way
home, they spent the night in Twin Falls.
While they were there, Andrews cut
Moore's hair. There was no illegal ac-"
tivity discussed, to his knowledge (R.T.
711).
The next time the petitioner saw An-
drews was when he came to town with his
48.
4
:
:
‘
"|
ae soe
wife and father-in-law to do Christmas
shopping. The petitioner was friends
both with Kinzel and with Andrews (R.T.
71:2).
The petitioner saw Andrews on Christ-
mas or the day after when Andrews and his
wife took the petitioner's oldest boy on
a ski trip as his Christmas present (R.T.
713).
Bailey saw Andrews a few times in Jan-
uary or February, 1977. When Andrews
came to Boise to buy supplies, he would
stop by the Bailey's residence and cut
his family's hair.
At that time, the petitioner was work-
ing hard and long hours to make his busi-
ness work (R.T. 714).
The petitioner had met Vander Pauwert
a few years ago in California and in De-
cember or January of 1977, he brought
vander Pauwert to Idaho to get him away
from his old friends in California (R.T.
716) .
The petitioner never put money into
the purchase of drugs, and did not know
any drugs were ordered (R.T. 718).
49.
Andrews told the petitioner that he
needed a reason to stay away for the week-
end and asked the petitioner to write him
a check. The petitioner did so, and was
never paid back (R.T. 719). Andrews
never did any work for the petitioner.
The petitioner did not know that any-
thing illegal was going on at this time.
Vander Pauwert was always out late at
night with women. Stipa and Andrews acted
Similarly (R.T. 720).
The petitioner has never liked drugs
and has never taken them.
The petitioner was not aware that any
box was in his house (R.T. 721). He was
beginning to get suspicious of Vander
Pauwert and Stipa, but why, he did not
know (R.T. 724).
On cross-examination of the petitioner
by the government, the petitioner testi-
fied that when his house was searched he
told officers that drugs were not his
thing and that he was not involved.
When the petitioner went to Rexberg
for the Teton Dam Sale, he had no other
50.
|
q
4
;
reason for stopping in Twin Falls (R.T.
727). The merchandise was open for in-
spection before the auction and Bailey
found nothing he wanted (R.T. 728).
He denied having taken boxes from
the camper trailer on March 26, 1977,
and did not see Stipa bring phenylacetone
into his house on March 24, 1977 (R.T.
729).
The petitioner then called Robert G.
Moore, referred to herein as Moore, who
testified that he is Bailey's brother-in-
law and lives at his residence. Moore
has never been convicted of a crime (R.T.
744).
Moore accompanied the petitioner and
Stipa to Twin Falls on their way to Rex-
berg, on December 17, 1976. There was
no discussion of drugs (R.T. 742).
The government called Cornell to the
stand as a rebuttal witness. Cornell
testified that when the petitioner's
house was being searched, and Stipa and
Vander Pauwert were arrested, the peti-
tioner had stated that drugs were not his
thing but that he was caught in the
$i.
fringe of his friends' activities (R.T.
749).
After all the evidence was taken, the
petitioner's Motion for Acquittal was re-
newed. The motion was denied (R.T. 757).
The Court found the petitioner guilty
as charged (R.T. 757-759).
Court convened on August 8, 1977, for
the purpose of sentencing. The petitioner
then moved for a new trial on the grounds
that the search warrant affidavit was con-
clusory, that a hearing was held without
the petitioner and his counsel, and that
the evidence against the petitioner came
from the testimony of a perjured, im-
peached witness (R.T. 774).
The motion was denied (R.T. 777). The
petitioner was sentenced to three (3)
years imprisonment and to a special parole
term of two (2) years (R.T. 786-787).
The pétitioner was released on bond
pending appeal (R.T. 789).
On appeal, the petitioner contended
that the search warrant affidavit was in-
sufficient, that the Court erred in using
52.
%
=
<e
. eb
A
5
4
y
the testimony of Andrews to convict pe-
titioner, and that there was no probable
cause to search the pickup truck.
In its opinion affirming the judgment
of the District Court, the Court of
Appeals for the Ninth Circuit determined
the following:
1. That there was support for the
conclusory statements in that certain
hearsay statements to the affiant were
corroborated "when he personally observed
Stipa receive, transport and store the
boxes containing chemicals used in the
manufacture of methamphetamine;" and
that the affiant also observed the boxes
moved to the house subject to search,
and that probable cause therefore
existed;
2. That the Court's measure of
Andrews' credibility and decision that
there was extrinsic evidence to support
his testimony, would not be disturbed;
and
3. That Bailey lacked standing to
challenge the vehicle search, but that
the search was proper because of the
53.
immediate threat to the safety of the
officers and neighbors, and that evidence
in plain view was properly seized.
On June 2, 1978, petitioner filed a
Petition for Rehearing before the Ninth
Circuit Court of Appeals. The petitioner
requested a rehearing on the grounds
that the Court should not have considered
the conclusory statements of the affida-
vit nor the testimony of an impeached
witness, and that the warrantless vehicle
search was not justitied by a safety
hazard.
54.
"EASONS FOR GRANTING THE WRIT
I
THE COURT SHOULD GRANT CERTIORARI
TO DETERMINE WHETHER UNSUPPORTED
CONCLUSORY STATEMENTS CAN BE USED
TO UPHOLD A SEARCH WARRANT THAT
WOULD BE INSUFFICIENT WITHOUT THEM
The warrant provision of the Fourth
Amendment to the United States Constitu-
tion requires that before a magistrate
can issue a search warrant, there must
be "probable cause, supported by oath
or affirmation." When the affidavit
submitted in application for a search
warrant is conclusory in its terms,
Aguilar v. Texas, 378 U.S. 108 (1964),
Giordenello v. United States, 357 U.S.
480 (1958), or it is unclear whether the
allegations are within the applicant's
personal knowledge or are unsubstantiated
hearsay, United States v. Ventresca, 380
U.S. 102 (1965), then no warrant may
constitutionally issue.
"Rule 41 stipulates that such
‘probable cause' shall be made to
appear from an affidavit, which
of and by itself must set forth
facts sufficient to justify the
55.
ii
Commissioner in believing that
appropriate grounds exist for
issuance of a search warrant.
Which is to say that facts--
not mere conclusions of the
affiant--must appear within
the four corners of the affi-
davit so as to justify a
reasonable and ordinarily
prudent person in believing
that there is 'probable cause'
to conclude that a violation
of the law has occurred, or is
occurring, in the premises to
be searched. The facts set
forth need not be sufficient
to support a verdict of guilt
beyond a reasonable doubt.
They must establish, however,
something more than mere sus-
picion or possibility of
criminal activity.
"No hard and fast rule can
be followed in determining the
sufficiency of the alleged facts
to constitute 'probable cause’,
and each case must be determined
upon its own particular merits
or demerits. It may be said,
however, as a general proposition,
that mere conclusions of the
affiant, unsupported by concrete
facts, or facts alleged upon bare
belief or information, unsup-
ported by other reliable facts
affirmatively averred, are in-
adequate in the eyes of the law
to save the affidavit, and the
warrant based upon it, from the
court's condemnation, if genuine
56.
"probable cause' is not shown."
United States v. Office No. 508
Ricou-Brewster Bldg., 119 F.Supp.
24 (LA. 1954).
In Giordenello v. United States,
supra, the issue before the Supreme
Court was whether the complaint suffi-
ciently set forth the probable cause
necessary to support an arrest warrant.
Preliminarily, the Court stated that the
Fourth Amendment requirement applied
both to search and arrest warrants.
The Court held that in neither case
should the magistrate rely upon an offi-
cer's mere conclusions.
In Giordenello, supra, "the complaint
contain[ed] no affirmative allegation
that the affiant spoke with personal
knowledge of the matters contained there-
in; it [did] not indicate any sources for
the complainant's belief; and it [did]
not set forth any other sufficient basis
upon which a finding of probable cause
could be made. We think these deficien-
cies could not be cured by the Commis-
sioner's reliance upon a presumption that
the complaint was made on the personal
knowledge of the complaining officer."
ae
~s
In the affidavit in question, the
affiant makes numerous statements with-
Out stating whether he personally ob-
served the occurrences, whether he had
personal knowledge of them, the basis
for his conclusions, or the sources of
his beliefs. How did the affiant know
whether the three opaque cardboard boxes
that he observed Stipa pick up contained
memometheylamine? Who observed the
cardboard boxes being carried into the
shed? Who observed a bottle being re-
moved from the shed? How did the af-
fiant come to the conclusion that John
Hansen, W.R. Incorporated was a false
name used by Stipa? Why did the informa-
tion given the affiant by Ingleby appear
credible and reliable? Why was the in-
formation given by Phyllis Kratzner
considered as true? How did the affiant
know that 4186 Tamarack Drive was the
petitioner's house? How did the affiant
know that monometheylamine was taken into
the mobile home? What was the source of
all this information? A few times in the
affidavit, the affiant states that he
personally observed something. Yet, in
the places where probable cause might
58.
have been established if specific facts
had been alleged, the affiant does not
state who observed what allegedly occur-
red or how he knew of a "fact." Most of
the language in the affidavit is totally
conclusory in nature.
It is well settled that an affidavit
must sufficiently disclose "raw facts"
to permit a magistrate to make an —"
pendent determination of the siinenssieal
ness of facts tending to the conclusion
that the specified items are located in
the place to be searched, Whiteley v.
Warden, 401 U.S. 560 (1971); Nathanson
v. United States, 290 U.S. 41 (1933),
and that the individual supplying the
information as well as the information
itself are dependable and reliable.
Aguilar v. Texas, supra.
"The law is plain that an
affidavit is insufficient con-
stitutionally to support a
warrant if it merely states the
affiant's conclusion as to the
ultimate fact in issue."
Aguilar v. Texas, supra.
The affiant and his unnamed sources
could have obtained the alleged informa-
tion through overheard conversations,
59.
rumors, Or by way of sheer speculation.
The affidavit sets forth no fact from
which the magistrate could have deter-
mined how the information was received.
Thus, there was no way for the magistrate
to assess the dependability of such
information.
"(T]he magistrate must be
informed of some of the under-
lying circumstances from which
the informant concluded that
the narcotics were where he
Claimed they were." Aguilar
v. Texas, 398 U.S. at 114,
There is no statement within the four
corners of the affidavit in the case at
bench which would indicate that the
"source" acquired his information from
personal knowledge or in a dependable or
reliable way of any sort. Aguilar v.
Texas, supra, at 113, Spinelli v. United
States, 393 U.S. 41qQ (1969).
"Aguilar requires that a ma-
gistrate’s determination of
probable cause justifying the
issuance of a warrant must be
supported by an affidavit that
discloses the underlying cir-
cumstances from which the af-
fiant has concluded that his
information is reliable and
that it must contain a
60.
TUE ig 8
statement of the underlying
circumstances ‘to enable the
magistrate independently to
judge of the validity’ of
the affiant's conclusion that
the things to be seized are
where he says they are.
(393 U.S. at 413, 89 S.Ct.
at 587.)" United States v.
Bailey, 458 F.2da 408, 411
(Hinth Circuit 1972); see
Rice v. Wolff, 513 F.2d 1280
(Eighth Circuit 1975).
In Spinelli v. United States, supra,
at 416, the Court applied the Aguilar
test to an affidavit similar to that in
the case at bench, and found the affi-
davit insufficient:
"The tip does not contain
a sufficient statement of the
underlying circumstances from
which the informer concluded
that Spinelli was running a
bookmaking operation. We are
not told how the FBI's source
received his information--it
is not alleged that the infor-
mant personally observed
Spinelli at work or that he
had ever placed a bet with him.
Moreover, if the informant came
by the information indirectly,
he did not explain why his
sources were reliable. Cf.
Jaben v. United States, 381
U.S. 214, 85 8.Ct. 1365, 14
L.Ed.2d 345 (1965). In the
61.
absence of a statement detail-
ing the manner in which the
information was gathered, it
is especially important that
the tip describe the accused's
criminal activity in sufficient
detail that the magistrate may
know that he is relying on
something more substantial than
a casual rumor circulating in
the underworld or an accusation
based merely on an individual's
general reputation."
Once a warrant has been executed,
the affidavit cannot be rehabilitated
by information known to the affiant but
not disclosed to the magistrate.
Whiteley v. Warden, supra, at 565.
It is respectfully submitted that
disregarding the conclusory statements
herein, Spinelli v. United States,
supra, the affiant's personal observa-
tions do not provide probable cause.
A. “After arriving at the Kennel Club
Tavern, Eagle, Idaho, the three card-
board boxes containing the bottles of
Monometheylamine were carried into a
shed. . . . [shed described] ."
62.
eget A, SS ee Fe
This allegation does not indicate
that the action described was personally
observed by the affiant or by another
law enforcement officer. The allegation
that the cardboard boxes contain monome-
theylamine is conclusory because there
is no indication of how the affiant knew
or learned what the boxes contained.
B. “Since that time, one bottle has
been observed being removed from the
tavern shed, until March 25, 1977, late
in the afternoon when two boxes were re-
moved from the tavern shed and eventually
taken to a stationary mobile home trailer
located at Roundy's Trailer Park, Space
No. 9, Eagle, Idaho, described as being
painted primer gray on either end and
approximately 30' to 35' long, being the
residence of Ralph Peter Nydegger, loca-
ted on the South side of Idaho Highway
44 (hereinafter called the Nydegger
mobil home)."
This allegation does not indicate
that the action described was personally
observed by the affiant or by another
law enforcement officer. The allegation
that the mobile home is the residence of
63.
a Ralph Nydegger does not indicate how
the affiant knew or learned the identity
of the occupant of the mobile home, and
is therefore conclusory.
Cc. "Stipa used a false name, John
Hansen, W-.R. Inc." This allegation is
merely a conclusion. In order to have
met the test in Giordinello v. United
States, supra, the affiant would have
had to indicate the source of this be-
lief, and the reason for this belief.
D. "Jay Ingleby, owner of the Chem
Shop, Salt Lake City, Utah, told me that
Stipa originally ordered 78 kilograms of
Monometheylamine and he has paid for
that quantity, however, to date he has
only received the three cardboard boxes,
that is, 36 kilograms; that Stipa used
the name of John Hansen of W.R. Inc.;
that the Monometheylamine sent to Stipa
was shipped in three cardboard boxes,
brown in color and approximately 15" x
15" x 15" in dimension and that each box
contained four 3 kilogram bottles of
Monometheylamine, according to the infor-
mation received by affiant from Jay
Ingleby, Chem Shop, Salt Lake City, Utah,
the sellor."
64.
to eae TS = ‘
This allegation does not indicate
how the affiant came to speak with Jay
Ingleby, or what Jay Ingleby's role
herein was so that his credibility or
reliability might be determined. Thus,
the information received by the affiant
from him cannot be used to determine the
sufficiency of the warrant. Once again,
the names Stipa and Hansen are used
interchangeably, and the allegation
appears to state that Jay Ingleby told
the affiant that Hansen and Stipa were
the same person. This allegation is
hearsay upon hearsay that cannot be
credited because the informant was not
proven credible or reliable. If, in
fact, the affiant did not mean to state
that Ingleby told him that the purcha-
ser's real name was Stipa, this is but
another conclusory allegation left
unexplained.
E. “Stipa paid by means of Western Union
money order. . ."
This allegation, which continues on
to state that the money orders are
attached as an exhibit, does not explain
how the affiant gained this information
65.
and how he obtained the money orders, nor
is there any indication that the affiant
personally observed the transaction.
F. "That affiant has talked with Phyllis
Kratzer, an employee of the Aldrich Chemi-
cal House in Milwaukee, Wisconsin, and
been told that on March 11, 1977, a male
individual telephoned Aldrich Chemical
House in Milwaukee, Wisconsin, identify-
ing himself as B. Michael Stipa, tele-
phone number 208-375-2974, and attempted
to order Phenylacetone, but was advised
that no orders for Phenylacetone are
accepted over the telephone; that on
March 15, 1977, Aldrich Chemical House
in Milwaukee, Wisconsin received a certi-
fied letter No. 010508, ordering approxi-
mately 6.5 kilograms of Phenylacetone
at the price of $481.00, which sum was
paid by five Buttrey Food Store money
orders, Nos. 5930904, 5930905, 9530906,
5930907, and 5930908, and requesting
that the Phenylacetone be shipped to the
buyer, B. Michael Stipa, via United Air
Lines to Boise, Idaho; that the Pheny-
lacetone so ordered was contained ina
metal drum with a five gallon capacity,
66.
— — —
which drum was inside a cardboard box
approximately 16" x 16" x 20", which box
had shipping markings on the outside
thereof, indicating Aldrich as sender
and Stipa as receiver; that such card-
board box with the metal drum containing
the Phenylacetone was shipped by Aldrich
Chemical House on March 22, 1977, to
arrive on that day at the Boise Airport
via United Air Lines."
This allegation does not indicate
how the affiant came to speak with
Phyllis Kratzer or what Phyllis Kratzer's
role herein was so that her credibility
or reliability might be determined. Nor
does it state whether Phyllis Kratzer's
information was within her personal
knowledge or whether she was repeating
what she was told. For instance, was it
Kratzer who spoke with the caller who
allegedly identified himself as Stipa,
or did another employee of Aldrich Chemi-
cal House speak with that caller. Did
Kratzer observe how the phenylacetone
was allegedly packed and shipped? Clear-
ly, there are no facts here indicating
that this employee should be believed.
67.
The standards set forth in Giordinello
v. United States, supra, and Aguilar v.
Texas, supra, were not met herein be-
cause although the allegation shows that
the affiant had a conversation with a
Phyllis Kratzer, the facts of which are
not within the affiant's personal know-
ledge, there is nothing indicating that
Phyllis Kratzer was a reliable informant
and that the information that she gave
him was of her own personal knowledge
and credible; and the source of the
affiant's belief in the truth of these
assertions is not indicated.
Nowhere in the affidavit does the
affiant state that Jay Ingleby and
Phyllis Kratzer reported to the Drug
Enforcement Administration large orders
of chemicals necessary for the manufac-
ture of methamphetamine. Nowhere in
the affidavit does the affiant state
that Jay Ingleby and Phyllis Kratzer
knew neither the affiant nor the
defendants.
Additionally, their information can-
not be said to be reliable because of
68.
what the affiant allegedly saw -- he only
saw Stipa picking up opaque boxes. Wheth-
er the contents of the boxes were methey-
lamine and phenylacetone, or something
else, appears from the conclusory lan-
guage of the affidavit to be speculation
rather than personal knowledge.
G. "Affiant then followed Stipa to a
residence on Tamarack described as a
green one-store wood frame house with
attached garage situated at 4186 Tamarack
Drive, Boise, Idaho, and being the se-
cond house south of Hill Road on the
east side of Tamarack Drive being the
residence of Samuel Gayle Bailey (here-
inafter called the Bailey residence),
and observed the cardboard box being
carried into the house."
This allegation concludes, without
citing support therefor, that 4186
Tamarack Drive is the residence of the
petitioner. How this information was
acquired is not indicated. Thus, it is
conclusionary. Nor is it clear when
"then followed Stipa" is, or who carried
the cardboard box into the house.
69.
H. "Late in the afternoon of March 25,
1977, the five gallon metal drum was
taken from the Bailey residence and
taken by very circuitous route to the
Nydegger mobile home arriving at appro-
ximately 10:00 am.m on March 26, 1977,
whereupon the metal drum was taken into
the Nydegger mobile home. This was the
same time that the Monometheylamine and
other items were taken into that mobile
home."
These allegations do not indicate
that the actions described were person-
ally observed by the affiant or by
another officer. Furthermore, both the
terms "Bailey residence" and "Nydegger
mobile home" are conclusory in that the
source of such information has not been
disclosed. Thus, these allegations do
not meet the standard applied in
Giordinello v. United States, supra, to
determine whether an affidavit is suffi-
cient to establish probable cause.
I. “Officers passed by the Nydegger
mobile home and observed from a distance
of about 5' to 10' a very distinct and
pungent odor of Phenyl-2-propanone and
70.
the officers who observed such odor had
smelled that odor before and recognized
it as being Phenyl-2-propanone (a neces-
sary precursor to manufacture of
Methamphetamine) ."
This allegation is insufficient in
part because the nature of the odor
"observed" is conclusory. The affiant
has been given information by officers
which includes their opinions that the
oljior they smelled is PoP. * The mere fact
that the affiant has been told by offi-
cers that they had smelled the substance
before and now recognize it is not suf-
ficient to show that the officers posses-
sed expertise in the area of detecting
PoP, a legal chemical.
Furthermore, the source of the af-
fiant's knowledge of the properties of
methamphetamine, or particularly, whether
PoP is a necessary precursor to the manu-
facture thereof, should have been reveal-
ed. Thus, the supported part of this
allegation is as follows: ". . .officers
passed by the. . .mobile home and ob-
served from a distance of about 5' to
10' a very distinct and pungent odor and
the
—
the officers who observed such odor had
smelled that odor before and recognized
¢. . *
J. “A very strong odor of ether was
observed by officers who were about 5'
to 10' from the Nydegger mobile home.”
For the reasons set forth above, the
definition of the odor as "ether" is
conclusory.
K. "That Stipa lives with his parents
in a room at 9260 Cory Lane, Boise,
Idaho, described as a one-story wood
frame single family dwelling, rust
colored wood stain in color."
This statement is conclusory because
it does not state that it is based upon
personal knowledge or another reliable
source.
Finally, it is clear that as the
opinion of William Gowan was based upon
the allegations set forth in the affida-
vit, the opinion itself was based upon
conclusions and is therefore insufficient
to support probable cause. For example,
in the affidavit, the affiant concludes
that certain boxes contained methylamine
Fas
and phenylacetone. The opinion of
William Gowan is therefore in part based
upon the alleged fact that the boxes did
contain these substances. As the alleged
contents of the boxes cannot be used to
support a finding of probable cause be-
cause they are not alleged to be within
the personal knowledge of the affiant or
otherwise reliable, the opinion of
William Gowan, based upon the alleged
fact that the boxes contained methylamine
and phenylacetone, cannot support a find-
ing of probable cause.
Without the above conclusory allega-
tions, the affidavit may be summarized
as follows:
On March 3, 1977, the affiant ob-
served Stipa picking up three packages
at the freight depot in Boise, Idaho.
Each box was 15" x 15" x 15" in dimensions
and was brown in color. The affiant and
other officers observed Stipa drive from
the depot to the Kennel Club Tavern in
Eagle, Idaho, on a very circuitous route.
At a later date, the affiant observed
Stipa receive the shipment of another box, |
which box Stipa took to 4186 Tamarack
Drive, Boise, Idaho. |
736
On March 26, 1977, officers observed
Stipa arrive at a mobile home at 10:00
a.m. and leave at 12:15 p.m., carrying a
cardboard box approximately 16" x 16" x
16", which was placed in a pick up truck.
The officers observed Stipa drive with
an unknown male to a residence, leaving
the box in the vehicle. At approximately
12:35 p.m., officers at the cite of the
mobile home observed a strong odor and
observed that the air vent on the mobile
home was open.
It is clear that these allegations
taken as a whole do not support a find-
ing of probable cause. The mere fact
that cardboard boxes, possibly contain-
ing chemicals, were received by Stipa,
could not provide cause to believe that
a crime was being committed. For that
reason, the Court erred in denying the
petitioner's motion to suppress.
In finding the affidavit sufficient
"as a whole", the District Court and the
United States Court of Appeals miscon-
ceived the basic thrust of the Supreme
Court's decisions in Nathanson v. United
States, supra; Giordenello v. United
74.
States, supra; Aguilar v. Texas, supra;
Spinelli v. United States, supra; and
Whiteley v. Warden, supra.
"The central proposition common
to each of these decisions is that
the determination of probable cause
is to be made by the magistrate,
not the affiant. That the agent-
affiant determined the informer to
be prudent cannot be a basis for
sustaining this warrant unless
Magistrates are entitled to dele-
gate their responsibilities to law
enforcement officials. Nathanson
held that an affidavit to the effect
that the affiant ‘has cause to sus-
pect and does believe' that illicit
liquor was located on certain premi-
ses did not sufficiently apprise the
issuing magistrate of the underly-
ing 'facts or circumstances' from
which 'he can find probable cause.'
209 U.S., at 47, 54 S.Ct., at 13
(emphasis added). In Aguilar, a
sworn assertion that the informant
was 'a credible person' was held in-
sufficient to enable the magistrate
to assess that conclusion for him-
self. Only two Terms ago, we held
a warrant constitutionally defective
because '[t]hough the affiant swore
that his confidant was "reliable",
he offered the magistrate no reason
in support of this conclusion.'
Spinelli v. United States, 393 U.S.,
at 416, 89 S.Ct., at 589. Reading
the assertion that the informer in
this case was 'prudent' i:; the broad-
est conceivable commonsense fashion,
73.
it does no more than claim he was II
‘credible’ or ‘reliable’, i.e.,
that he was likely telling the truth.
Such an assertion, however, is no
more than a conclusion which the Con-
stitution requires must be drawn inde-
pendently by the magistrate. What
this portion of the affidavit lacks
are any of the underlying ‘facts or
circumstances' that informed the were called to the stand to testify re-
agent's conclusion and whose presenta-
tion to the magistrate would enable
him to assess the probability that dants' activities. On cross-examination
“ee page mage tei a Sapenenently of each of these officers, the officers
plausible to justify authorizing a
search of respondent's premises." stated that they did not observe the pe-
United States v. Harris, 403 U.S. 573,
590-591 (Harlan, J. Dissenting, 1971)
THE COURT SHOULD GRANT CERTIORARI
TO DETERMINE WHETHER THE TESTIMONY
OF AN IMPEACHED WITNESS CAN BE THE
PRIMARY BASIS OF A CONVICTION
In the case at bench, several officers
garding their surveillance of the defen-
titioner engaged in criminal activitv.
They observed him at work, and going to
It would be in the public interest for and from his roofing jobs.
the Court to set to rest the above un- | On the date when the petitioner alleg-
certainty in the law as to the way in
which conclusory statements in a search
warrant affidavit should be used or
edly asked Andrews to explain how to make
methamphetamine, the testimony of Andrews'
father-in-law, Mr. Kinzel, makes clear
regarded. that the defendants were in Twin Falls,
MOE PUR t MRD OD. Wa et Behl
Idaho, only because it was on their way
to an auction; and that the defendants
spoke with Kinzel about the auction, no
mention*being made of illegal activities.
This fact was verified by Robert Moore.
In each instance in which the govern-
ment offered evidence of overt acts of
76. 77.
a
STS) | eee
conspiracy and proof that an attempt to
manufacture methamphetamine was made,
the witnesses testified that it was co-
defendant Stipa who called, etc., or
co-defendant Vander Pauwert who purchased,
etc.
What was the evidence against the pe-
titioner? Vander Pauwert lived in the
petitioner's house. The Petitioner was
friendly with Stipa and Stipa was ob-
served at his house. Stipa was observed
carrying a container into the petitioner's
house. In the course of the search of
the petitioner's house, a slip of paper
with the name of a chemical company writ-
ten on it was found. The handwriting was
not identified or authenticated. The age
of the paper was not tested. Ownership
was assumed. Ashes were found in the
petitioner's fireplace that were attribu-
ted to the wrappers from some of the
equipment allegedly purchased by Stipa or
Vander Pauwert. No evidence was offered
that the petitioner burned the wrappings,
or that Vander Pauwert did not burn them
while the petitioner was at work. Finally,
one officer testified that he thought he
78.
saw the petitioner help Stipa carry a box
into his residence. The problem with
that testimony was that it was dark out-
Side at the time.
Yet, it was not this testimony that
convicted the petitioner -- it was the
testimony of Andrews, the "unindicted co-
conspirator", who stated "facts" on di-
rect examination and in police statements,
and who blantantly admitted, on cross-
examination, that those "facts" were all
lies. As the District Court stated on
one occasion when the petitioner at-
tempted to offer impeachment evidence of
Andrews, "Of course, I would think any
further impeachment of that witness would
be redundant. I think his veracity has
been put in a rather severe issue here."
(R.f. G71).
Both the Court and the government
agreed that without the testimony of
Andrews, the case against the petitioner,
in the words of the Court, was "pretty
flimsy".
"THE COURT: Well, let me ask you
this question, then, excluding Andrews
testimony, and you will have to agree
79.
if you totally excluded his Counsel's
promise and his argument -- well, you
would have to find that Mr. Bailey's
case is pretty flimsy, wouldn't you?
The first thing you would have to do,
if you didn't believe Andrews, you
would have to exclude the conspiracy,
which would mean that the evidence
against him wouldn't be admissible.
I'm not saying I look at it that way,
but without it, his argument, I would
say, would have a good deal of merit.
"MR. BIEHL: Well, I think the
case against (R.T. 681) standing on
its own, without Mr. Andrews' testi-
mony is very slim. I will agree with
you there, sir." (R.T. 682)._
The Court admitted that Andrews' credi-
bility had been impeached, and told coun-
sel for the petitioner, who was ready
to offer extrinsic evidence to further
impeach Andrews, that such would be un-
necessary and redundant.
"THE COURT: It's so obvious, it
sort of sticks out. I dare say that
you know and I know that this is not
unusual in this kind of a game, the
undercover game. It's a way of life
and you know it and I know it, so it
doesn't surprise you. However, you
are entitled to make your record in
this matter and you may proceed.
"MR. SHERMAN: Thank you.
80.
"THE COURT: However, I think we
are wasting our time again and again
inquiring as to when he is and when
he is not telling the truth." (R.T.
435).
As counsel for the petitioner stated
in. his Affidavit in Support of Motion
for Acquittal, "Your affiant considers
himself to be an experienced defense at-
torney and while he does not contend that
the Court intended to mislead him, the
Court's comments did cause defense coun-
sel to believe that further cross-
examination and impeachment of Mr.
Andrews was unnecessary and that the
Court only wished an explanation by Mr.
Bailey in order to acquit him of the
charges in this case." (C.T. 200). Yet,
in denying the petitioner's Motion for
Acquittal, the Court stated:
"I think I should say here that
while the witness Andrews' testimony
certainly was impeached, and ought to
be viewed with caution, at the same
time, there is a rather considerable
amount of extrinsic and other evidence
that tends to support much of what he
said. Therefore, as a finder of the
facts, I have determined to give
weight to his evidence and to consider
it, but look at it somewhat cautiously,
8l.
and on that basis, I am satisfied that
there is enough evidence at this time
to indicate a guilt on behalf of Mr.
Bailey. The motion for judgment of
acquittal has to be denied." (R.T.
684).
While it is true that the trier of
fact ordinarily has discretion to believe
or disbelieve a witness, it is clear that
the purpose of impeaching a witness is
clearly diminished when a witness, proven
to lie on the stand so many times that
his testimony could just as well be con-
sidered perjurous, is given consideration
because other testimony "tends to support”
much of his testimony. Such is to pre-
tend that cross-examination and credibili-
ty of witnesses are inconsequential to a
trial. Perjured testimony. should be ex-
cluded as a matter of law.
On cross-examination of Andrews by
counsel for the petitioner, Andrews testi-
fied that he did not want to give the
defendants the formula for methamphetamine
end that he did not know the formula. He
testified that he picked names out of the
air as chemicals and wrote them down
82.
(R.T. 287). The government called two
forensic chemists, each who testified
that the list of chemicals was written
by someone who knew the formula for
methamphetamine; and who testified that
if a catylist were added, the chemicals
on the list would create methamphetamine.
Andrews had testified that the entire
list was garbage (R.T. 298).
Andrews lied to Drug Enforcement Ad-
ministration agents Ford and Hendrix
throughout the investigation (R.T. 381).
He did not want to divulge any informa-
tion unless it would be profitable to
him (R.T. 395).
It is clear from the testimony of An-
drews and from the comments made by the
Court, such as: "It's so obvious, it
sort of sticks out." (R.T. 435), that
Andrews would say anything that would
benefit his interest or be profitable.
It is apparent from the DEA tapes that
Andrews spoke to the agents, truthfully
or not, for one admitted reason: payment.
It is also clear that Andrews took the
witness stand because he did not want to
83.
be charged as a participant in the al-
leged crime.
It is therefore respectfully submitted
that the Court erred in considering An-
drews' testimony and in giving it enough
weight that the petitioner was found
guilty as charged, when both the Court
and the government admitted that without
Andrews' perjurous testimony there would
have been insufficient evidence upon
which to base a conviction.
It is respectfully requested that this
Court grant Certiorari to determine
whether impeached testimony should ever
be the primary basis of a conviction.
III is
THE COURT SHOULD GRANT CERTIORARI TO
DETERMINE WHETHER EXIGENT CIRCUM-
STANCES, SUCH AS PUBLIC SAFETY, CAN
JUSTIFY A WARRANTLESS VEHICLE SEARCH,
WHEN THE EXECUTING OFFICERS HAD A
CONSIDERABLE AMOUNT OF TIME IN WHICH
TO APPLY FOR A SEARCH WARRANT, TO
WIT, AN ENTIRE DAY, DURING WHICH THE
ALLEGED HAZARD EXISTED
It has long been held that a vehicle
cannot be searched without a warrant
84.
incident to an arrest when the search is
remote in time and place to the arrest,
absent exigent circumstances. Preston
v. United States, 376 U.S. 363, 368 (1964).
Whenever a search is effected without a
warrant or consent, the burden is upon
the prosecution to put the search into
the exception category. Stoner v. Cali-
fornia, 376 U.S. 483, 486 (1964); Jones
v. United States, 357 U.S. 493, 499 (1958);
Corngold v. United States, 367 F.2d 1, 3
(9th Cir. 1966); Angello v. United States,
269 U.S. 20 (1925).
In the case at bench, the petitioner's
house was searched, pursuant to a search
warrant, at the time of his co-defendants'
arrests. Simultaneous thereto, a vehicu-
lar search was being conducted outside
the residence.
At the Motion to Suppress hearing,
Agent Cornell testified that he searched
the vehicle because its contents were
suspected to be explosive. He admitted,
however, that the vehicle had been fol-
lowed for an entire day and could have
been seized while in motion on bumpy
roads, where the risk of explosion, if
85.
existent, was greater.
The facts herein are similar to those
in Coolidge v. New Hampshire, 403 U.S. 443
(1971).
In Coolidge v. New Hampshire, supra,
"Coolidge was arrested inside his house;
his car was outside in the driveway. The
car was not touched until Coolidge had
been removed from the scene. It was then
seized and taken to the station, but it
was not actually searched until two days
later." Id. at 456.
In that case, the following observations
were made:
"In circumstances virtually identi-
cal to those here, Mr. Justice Black's
opinion for a unanimous Court held
that '[o]nce an accused is under arrest
and in custody, then a search [of his
car] made at another place, without a
warrant, is simply not incident to the
arrest.' Id., at 367, 84 S.Ct., at
883. Dyke v. Taylor Implement Mfg.,
Co., 391 U.S. 216, 88 S.Ct. 14/72, 20
L.Ed.2d 538. Cf. Chambers v. Maroney,
399 U.S. 42, 47, 90 S.Ct. 1975, 1979,
26 L.Ed.2d 419. Search-incident doc-
trine, in short, has no applicability
to this case." Id., at 457.
3
"The underlying rationale of Carroll—
3/ Carroll v. United States, 267 U.S. 132
~ (1924) 86
and of all the cases that have fol-
lowed it is that there is
"a necessary difference between
a search of a store, dwelling
house, or other structure in re-
spect of which a proper official
Warrant readily may be obtained
and a search of a ship, motor boat,
wagon, or automobile for contra-
band goods, where it is not prac-
ticable to secure a warrant, be-
cause the vehicle can be quickly
moved out of the locality or jur-
isdiction in which the warrant
must be sought.' 267 U.S., at
a33, 68 B.66.4: Gt 265. (Emphasis
supplied.)" Id., at 460.
"In this case, the police had known
for some time of the probable role of
the Pontiac car in the crime. Cool-
idge was aware that he was a suspect
in the Mason murder, but he had been
extremely cooperative throughout the
investigation, and there was no indi-
cation that he meant to flee. He had
already had ample opportunity to de-
stroy any evidence he thought incrimi-
nating. There is no suggestion that,
on the night in question, the car was
being used for any illegal purpose,
and it was regularly parked in the
driveway of his house. The opportuni-
ty for search was thus hardly 'fleet-
ing.'" Id., at 460.
In the case at bench, not only was
there ample opportunity to obtain a
87.
search warrant when the warrant to search
the petitioner's house was procured, but
there was a lack of emergency at the time
the search took place. The vehicle was
stationary. There had already been ample
time to destroy incriminating evidence.
The vehicle was less explosive than when
it was driven around throughout the day.
In its Opinion, the Court of Appeals
for the Ninth Circuit stated that exigent
circumstances, i.e., volatile chemicals
that posed an immediate threat of harm,
justified the failure to obtain a warrant,
citing Chambers v. Maroney, 399 U.S. 42
(1970). Yet, the vehicle in question con-
taining the chemicals was followed for an
entire day before it was searched. During
that entire period of time, the officers
-uspected that it contained explosive
chemicals.
Certainly, if the circumstances were
exigent, a search should have commenced
at the beginning of the day. If the offi-
cers could take an entire day to watch
the vehicle, they had an entire day to ob-
tain a warrant. Here, as in Collidge v.
New Hampshire, 403 U.S. 443, 460 (1971),
88.
the opportunity for search was hardly
"fleeting."
It is therefore respectfully requested
that this Court determine whether a war-
rant is required when there is sufficient
time to obtain one.
CUNCLUSION
WHEREFORE, for all of the reasons and
upon all of the considerations set forth
above, the petitioner respectfully
prays that a Writ of Certiorari issue
in the within case to review the decision
of the Court of Appeals below.
Respectfully submitted,
RICHARD G. SHERMAN
Counsel for Petitioner
89.
APPENDIX A
FILED
MAY 18, 1978
EMIL E. MELFI, JR.
CLERK
U.S. COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
vs.
SAMUEL G. BAILEY,
Defendant-Appellant,
JON KEITH VANDER PAUWERT; and
BEHRNARD MICHAEL STIPA,
Defendants.
i el
No. 77-2892
MEMORANDUM
Appeal from the United States District
Court for the District of Idaho
Before: DUNIWAY, SNEED and TANG, Circuit
Judges.
Bailey appeals from criminal convic-
tions after trial to the court for viola-
tions of 21 U.S.C. § 846, conspiracy to
manufacture methamphetamine, a controlled
A-l.
substance; 21 U.S.C. § 843(b), willful
and knowing use of a communication facili-
ty, to facilitate acts constituting a
felony; and 18 U.S.C. § 846, 841(a) (1)
and 21 U.S.C. § 2, attempt to manufacture
a measurable amount of methamphetamine.
Bailey asserts four errors. Upon review,
we affirm.
Bailey's first challenge is that the
District Court erred in denying his mo-
tion to suppress based upon flaws in the
search warrant affidavit. The specific
attack is that the affidavit is based up-
on conclusions not supported by facts and
when facts are presented, the sources are
not identified nor within the affiant's
personal knowledge. Aguilar v. Texas,
378 U.S. 108 (1964).
Affidavits for search warrants must be
tested and interpreted by magistrates and
courts in a commonsense and realistic
fashion. United States v. Ventresca, 380
U.S. 102 (1965). Reading the questioned
affidavit in such a commonsense fashion,
we find support for the conclusory state-
ments in that certain hearsay statements
to the affiant were corroborated when he
A-2.
oe SEOs ee
at ee ens ae mae
personally observed co-defendant Stipa
(previously identified to him) receive,
transport and store the boxes containing
chemicals used in the manufacture of
methamphetamine. The affiant also ob-
served the movement of the boxes to the
house that was the subject of the search.
Taking the affidavit within its four cor-
ners, it provided sufficient facts for a
magistrate to determine that probable
cause existed.
Bailey's second argument is that the
court should not have believed the testi-
mony of the unindicted co-conspirator.
This argument is based upon the co-
conspirator's impeachment at trial.
The credibility of a witness is de-
termined by the fact finder and the rule
is that an appellate court will assume
that the lower court correctly measured
credibility. DeWelles v. United States,
378 F.2d 37, 39 (9th Cir. 1967) cert.
denied 389 U.S. 996 (1967). -
The court found that although the wit-
ness's testimony certainly was impeached,
there was extrinsic evidence to support
A-3.
his testimony. We are not persuaded that
the court erred in choosing to believe the
government's witness and the finding will
not be disturbed.
Bailey's third contention is that his
motion to suppress the evidence seized
from the vehicle was improperly denied.
To have standing to contest the search,
Bailey must show that he was on the prem-
ises at the time of the contested search,
allege a proprietary or possessory inter-
est in the premises or be charged with an
offense that includes as an essential ele-
ment, possession of the seized evidence
at the time of the contested search and
seizure. United States v. Prueitt, 540
F.2d 995 (9th Cir. 1976) cert. denied
429 U.S. 1063 (1977).
Bailey was at his residence where the
searched vehicle was parked but was not
in the vehicle when it was searched. The
vehicle belonged to the father of a co-
defendant, not to Bailey, and he had
neither a proprietary nor a possessory
interest in the vehicle. Finally, Bailey
was charged and convicted of conspiracy,
the use of a telephone to facilitate acts
A-4.
——————
constituting a felony and attempt to manu-
facture methamphetamine. Possession of
the seized evidence is not an essential
element of any of these crimes. There-
fore, Bailey lacks standing to contest
the search of the vehicle.
Even if Bailey had standing to contest
the search, it was proper because exigent
circumstances justified the failure to
obtain a warrant. Chambers v. Maroney,
399 U.S. 42 (1970).
The agents had reason to believe from
their surveillance that the camper con-
tained volatile chemicals that posed an
immediate threat to the safety of the of-
ficers and neighbors. Because of that
fear it was reasonable that the agents
search the vehicle and attached trailer
to eliminate the safety hazard. The evi-
dence in plain view was properly seized.
Coolidge v. new Hampshire, 403 U.S. 443
(1971).
Bailey's final contention is that it
was error for the court to hold a pre-
trial conference at which neither he nor
his counsel were present. This issue was
not raised below and is not properly
A-5.
before us. Evans v. Valley West Shopping
Center, Inc., No. 75-3780 (9th Cir. Janu-
ary 6, 1978); Rothman v. Hospital Service
of Southern California, 510 F.2d 956,
960 (9th Cir. 1975).
However, we have nevertheless reviewed
the record and we find the meeting did
not result in prejudice. Bailey's coun-
sel had one day's notice of this meeting
and relied upon a co-defendant's counsel
to keep him informed of matteres deter-
mined in the pre-trial conference. They
included notice of a motion to suppress,
possibility of jury waiver, adequacy of
discovery, anticipated testimony of a
government informant and a statement by
the court that a continuance would be
granted, if needed. We find no preju-
Gicial error.
AFFIRMED.
THE BRIEF SHOP
LAWYERS BRIEF SERVICE
LEGAL & COMM. PRINTING
10844 VENTURA BOULEVARD
NORTH HOLLYWOOD, CA. 91604
(213) 877-8620 763-2965
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