# Petition — Bailey v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1237%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 439 U.S. 837 ## Text 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.