Opposition Brief — Sewell v. United States (No. 92-6591)

Nos. 92-6291, 92-6455, 92-6484, and 92-6591

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

RECEIVED

SUPREME COURT, U.S.

JAMES SHERROD, PETITIONER POLICE DEPARTMENT

v. ic} 993

OM

UNITED STATES OF AMERICA A 10) 86 13:4506

JERRY WAYNE SEWELL II, PETITIONER ‘

We

UNITED STATES OF AMERICA

JAMES EDWIN SHERROD, PETITIONER

Vv.

UNITED STATES OF AMERICA

JERRY WAYNE SEWELL, SR., PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

KENNETH W. STARR

QUESTIONS PRESENTED IN THE SUPREME COURT OF THE UNITED STATES

1. Whether the government’s on-site destruction, because of OCTOBER TERM, 1992

contamination, of the "mixtures" containing controlled substances

No. 92-6291

and the containers holding the mixtures violated petitioners’

JAMES SHERROD, PETITIONER,

rights to due process and confrontation.

Vv.

2. Whether a solution of methamphetamine and its chemical by-

UNITED STATES OF AMERICA

products is a "mixture or substance containing a detectable amount ;

of methamphetamine” for purposes of 21 U.S.C. 841(b) and Sentencing No. 92-6455

Guidelines §2D1.1, without regard to whether the solution is JERRY WAYNE SEWELL II, PETITIONER

ingestible or marketable. Vv.

3. Whether the evidence was sufficient to convict petitioner UNITED STATES OF AMERICA

Jerry Wayne Sewell II.

No. 92-6484

4. Whether the Attorney General’s exercise of his statutory

JAMES EDWIN SHERROD, PETITIONER

authority to exempt an over-the-counter product containing

Vv.

methamphetamine from the prohibitions of the controlled substance

UNITED STATES OF AMERICA

laws denied petitioner Sherrod equal protection of the law.

5. Whether, in determining petitioner Jerry Wayne Sewell, No. 92-6591

Sr.’s, Criminal history category for sentencing purposes, three JERRY WAYNE SEWELL, SR., PETITIONER

previous convictions occurring at different times were properly Vv.

given separate scores, even though at one time the charges might UNITED STATES OF AMERICA

have been joined in a single indictment.

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

(I)

OPINION BELOW

The initial opinion of the court of appeals, Pet. App. A,' is

reported at 964 F.2d 1501. The opinion of the court of appeals on

rehearing, Pet. App. B, is not officially reported.

JURISDICTION i

The judgment of the court of appeals was entered on June 23,

1992. Petitions for rehearing were denied on August 3, 1992. The

petitions for a writ of certiorari were filed on September 21,

1992, in No. 92-6291 and on November 2, 1992 (a Monday), in

Nos. 92-6455, 92-6484, and 92-6591. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court for

the Eastern District of Texas, petitioners were convicted of

conspiring to manufacture and possess controlled substances with

the intent to distribute them, manufacturing phenylacetone, and

manufacturing a mixture containing methamphetamine, in violation of

21 U.S.C. 846 and 841(a). Petitioner Sherrod was sentenced to 240

months’ imprisonment; petitioner Jerry Wayne Sewell II was

sentenced to 60 months’ imprisonment; and petitioner Jerry Wayne

Sewell, Sr., was sentenced to 360 months’ imprisonment. Each

petitioner’s sentence was to be followed by a five-year period of

supervised release. The court of appeals affirmed.

1. Early in 1989 the Sheriff’s Department of Calcasieu

Parish, Louisiana, recruited Danny Johnson as a confidential

' "Pet. App." refers to the appendix to the petition in No.

92-6484.

2

informant to assist in identifying drug traffickers in that area.

Among the names that Johnson furnished to the authorities were that

of petitioner Jerry Wayne Sewell, Sr. (Sewell), who had been

Johnson’s exclusive supplier of methamphetamine for resale since

1987, and co-defendant Lonnie Jerrell Cooper.’ One of the primary

goals of the investigation was to locate Sewell’s source of supply.

Pet. App. A, at 1503; Gov’t C.A. Br. 3-4.

The investigation first focused upon Sewell’s connection with

"Fred," his source for methamphetamine in San Antonio, Texas.

Because Sewell was heavily indebted to Fred, he wished to avoid

contacting him and began making arrangements to manufacture his own

supply of amphetamine and methamphetamine near Orange, Texas.

Johnson attended several meetings with Sewell concerning the

venture, which were held in Cooper’s auto mechanic shop in

Mossville, Louisiana. Pet. App. A, at 1503; Gov’t C.A. Br. 5-7.

Sewell hired petitioner Sherrod, a chemist, to manufacture the

controlled substances. At a meeting on March 7, attended by Jerry

Wayne Sewell II (Jerry), Johnson told Sewell that Sherrod was

capable of manufacturing amphetamine and methamphetamine. Sewell

remarked that they would take no action until he received a call

from Cooper stating that the laboratory was set up and indicating

what items were needed for the manufacturing process. That evening

Cooper called and presented a list of missing items. Gov't C.A.

Br. 7-8.

? Cooper was tried jointly with petitioners and convicted.

His petition for a writ of certiorari, No. 92-5991, was denied on

December 14, 1992.

3

The next day Johnson, Sherrod, and two others drove to Dallas

and secured the missing items with money provided by Sewell. They

then returned to Sewell’s house. Sherrod removed the items from

their containers, examined each one, isolated the ones he could

use, and decided that he still needed a few items. The equipment

was placed in the trunk of a Cadillac furnished by one of the co-

conspirators. Jerry helped load the equipment into the car. Pet.

App. A, at 1503-1504; Gov’t C.A. Br. 8-9.

Johnson, Sherrod, and two others drove the car to Johnson's

apartment in Lake Charles, Louisiana. At some point during the

trip, Sherrod commented that Sewell would have $1,000,000 in six

months. The next morning Cooper led the four men to the labora-

tory, an abandoned school bus located on property owned by co-

conspirator Danny Gene Hill. The chemicals and glassware were

unloaded, and after a missing flask was obtained, Sherrod began the

manufacturing process. He expected the process to be done in 72

hours. Johnson kept Sewell informed of Sherrod’s progress by

telephone. He also spoke with law enforcement officers. Pet. App.

A, at 1504; Gov’t C.A. Br. 9-12.

The officers maintained a constant surveillance of Hill’s

property. On the morning of March 11 they obtained a search

warrant for the premises, together with a court order authorizing

the destruction of chemical mixtures found at the site because of

their toxicity. When the warrant was executed later that day the

officers discovered a fully operating methamphetamine laboratory.

George Lester, a DEA chemist, found methamphetamine mixtures in a

4

large baking pan, a Coca Cola syrup canister, and a mason jar.

Because Lester regarded the solutions and their containers as

contaminated, they were destroyed after samples were preserved for

analysis. DEA agent Milton Shoquist took exact measurements of the

baking pan before its destruction. At the time of the search,

Lester estimated that the three mixtures containing methamphetamine

had a combined weight of 4.5 kilograms. Pet. App. A, at 1504-1505;

Gov’t C.A. Br. 22-16.

2. Petitioners and their co-conspirators were arrested and

indicted. In preparation for trial, Agent Shoquist obtained from

the Coca Cola Company a syrup canister similar to the one that had

been found and destroyed at the laboratory site. Shoquist

ascertained that the cylinder held 22 liters when full.

Lester was advised of the calculation. Based on that

measurement, and on his observation that the canister at the

methamphetamine laboratory had been half full, Lester calculated

the weight of the mixture found in the canister as 11 kilograms.

In addition, based on the detailed measurements taken by Shoquist

of the large baking pan before it was destroyed, Laster calculated

the weight of the mixture found in the pan as 6 kilograms. Adding

the weight of the mixture in the mason jar (0.5 kilograms) to the

weight of the mixtures in the other two containers, Lester

determined that the total weight of the mixtures containing

methamphetamine was 17.5 kilograms. At trial, Lester testified

about his calculations. Pet. App. A, at 1508; Gov’t C.A. Br. 17.

5

The presentence reports credited Lester’s figure of 17.5

kilograms of methamphetamine mixture and noted certain trial

testimony that, in addition to the methamphetamine mixture, law

enforcement officers had found 4.75 liters of phenylacetone, a

methamphetamine precursor. As required by the Drug Equivalency

Table of the Sentencing Guidelines, the presentence report

converted these mixtures into 38.95 kilograms of cocaine (35

kilograms for the methamphetamine mixture and 3.95 kilograms for

the phenylacetone), a quantity that placed petitioners at base

level 34. Upward and downward adjustments were made from that base

level to reach a final offense level for each petitioner.

3. The court of appeals affirmed. The court rejected

petitioners’ claims that they were denied their constitutional

rights to due process and confrontation because the government had

destroyed the chemical mixtures (other than the retained samples)

and the containers without accurately measuring the mixtures or

allowing petitioners the opportunity to measure them. Pet. App.

A., at 1506-1507. The court noted that the quantity of drugs

involved was not an element of the offense, but only a sentencing

factor. jg. at 1507. The court also noted that, despite having

ample notice of the government’s calculation prior to sentencing,

petitioners failed to recall Lester to the stand to testify

regarding his calculation of the volumes of the canister and the

pan. Jbid. Petitioner Sherrod and co-defendant Hill had testified

about the quantity of drugs at their sentencing hearings, and the

others had relied upon that testimony on the issue of quantity.

6

The court of appeals concluded that the district court was entitled

to find the government’s evidence more credible than the

defendants’ testimony. J[bid.

The court of appeals also rejected petitioners’ challenges to

the district court’s finding on the quantity involved. The court

noted that Lester’s original on-site estimates “were not based on

any accurate measurements made at the scene, but were conservative

guesses of the amounts of the mixtures" that had later been

credibly shown by the government’s trial evidence to be signifi-

cantly understated. Id. at 1508.*° The court therefore concluded

that "(tjhe mere existence of a discrepancy between the original

estimate and the evidence introduced at trial does not render the

district court’s use of the 17.5 kilogram amount clearly

erroneous." Ibid.

In addition, the court of appeals rejected the argument that

the sentence should have been based solely upon the amount of pure

methamphetamine that could have been produced. Pet. App. A, at

1509-1511. The court noted that it was "not faced here with a

situation where a defendant discards some independently acqu.red

methamphetamine into his fishpond or stock tank. Instead, the

defendants here were convicted of manufacturing methamphetamine

> The court also noted that although petitioners relied

*"vociferously” on the apparent discrepancy between the original

estimate of 4.5 kilograms and the final calculation of 17 5

kilograms,” the Guidelines rendered the bulk of that disparity

irrelevant. Jd. at 1508 n.20. Under the Guidelines, "the same

sentencing increase would have resulted if the Government’s final

calculations had been of 5.5 kilograms of the methamphetamine

mixture, merely one kilogram (of methamphetamine mixture) more than

(Lester’s) original ‘conservative’ estimate." J[bid.

4

* * * and conspiracy to do so, and the samples tested by the

government of the mixtures found in the laboratory were in the

formative stages of the manufacturing process." Id. at 1511. In

those circumstances, the court concluded that the plain language of

the statute and Guidelines, as well as this Court’s decision in

Chapman v. United States, 111 S. Ct. 1919 (1991), required the

entire weight of the mixtures to be considered for sentencing

purposes. Pet. App. A, at 1509-1511.

Finally, the court rejected petitioners’ claim of a denial of

equal protection because the manufacturer of Rynal, an over-the-

counter product containing methamphetamine, was not subject to

prosecution. Pet. App. A, at 1512. Rynal (since removed from the

schedule of exempted controlled substances) was placed on a list of

products exempted fron the prohibitions of the controlled substance

laws pursuant to 21 U.S.C. 811(g) (1), which authorizes the Attorney

General to exclude by regulation "any non-narcotic substance from

a schedule if such substance may, under the Federal Food, Drug, and

Cosmetic Act, be lawfully sold over the counter without a

prescription." Pet. App. A, at 1512.

The court observed that petitioners never demonstrated that

their product was eligible for the exemption or that petitioners

attempted to make use of the procedure for obtaining an exemption

and were denied. Moreover, because the situation did not implicate

either a suspect classification or the exercise of a fundamental

right, the different treatment of petitioners was subject only to

a rational basis analysis. The court found that in light of the

8

medicinal benefit of Rynal and its reduced potential for abuse the

different treatment of Rynal and other substances containing

methamphetamine satisfied that standard of review. Pet. App. A, at

1512.

ARGUMENT

1. All three petitioners contend that the destruction of the

chemicals and containers found at the laboratory constituted

outrageous government conduct that violated their rights under the

Due Process and Confrontation Clauses. 92-6291 Pet. 27-35; 92*6455

Pet. 11-15; 92-6484 Pet. 9-22; 92-6591 Pet. 12-20.* The court of

appeals correctly rejected that claim. Petitioners’ claim is the

same as the argument made by their co-defendant in Cooper v. United

States, cert. denied, No.’ 92-5991 (Dec. 14, 1992). We addressed

that argument in our brief in opposition in Cooper and have

supplied a copy of our opposition in that case to petitioners. We

rely on that argument here.

Petitioner Jerry Wayne Sewell II expands his claim by citing

incidents such as the use of a non-commissioned law enforcement

officer in the investigation, Johnson’s consumption of drugs while

serving as an informant, and the failure to corroborate Johnson's

testimony implicating him. 92-6455 Pet. 12-13. Those incidents

* Two petitions on behalf of James Sherrod have been docketed.

The first, No. 92-6291, was prepared by Sherrod pro se. The

second, No. 92-6484, was prepared by appointed counsel for Sherrod.

Both petitions present questions regarding the destruction of

evidence and the calculation of the amount of the drugs. In the

pro se petition, Sherrod also alleges error arising from the

Attorney General’s exemption of Rynal from the schedule of

prohibited controlled substances.

9

were not presented to the court of appeals for review, so that

court cannot be faulted for not addressing them. In any event,

they do not reflect conduct so outrageous that it could bar the

government from prosecuting petitioner for his crimes. See United

States v. Russell, 411 U.S. 423, 432 (1973).

. Petitioners contend that the district court erred in

counting the weight of the non-marketable, non-ingestible portiow

of the methamphetamine mixture when determining their sentences.

92-6281 Pet. 19-26; 92-6455 Pet. 15-17; 92-6484 Pet. 22-30; 92-6591

Pet. 7-12. In our response in Cooper, we discussed that issue at

length; we rely on that response here. Moreover, in light of this

Court’s recent treatment of similar claims, there is no basis for

further review of petitioners’ claim. Three times last Term and

twice previously this Term this Court has declined to review that

question. See Cooper v. United States, cert. denied, No. 92-5991

(Dec. 14, 1992); Walker v. United States, 113 S. Ct. 443 (1992);

Mahecha-Onofre v. United States, 112 S. Ct. 648 (1992); Beltran-

Felix v. United States, 112 S. Ct. 955 (1992); Fowner v. United

States, 112 S. Ct. 1998 (1992). Because nothing has changed since

-

this Court denied review in those cases, there is no reason to

treat these pentesene differently.

3. Petitioner Jerry Wayne Sewell II asserts that the evidence

was insufficient to support his conviction. 92-6455 Pet. 18-25.

Because "(t]he primary responsibility for reviewing the sufficiency

of the evidence to support a criminal conviction rests with the

Court of Appeals,” Hamling v. United States, 418 U.S. 87, 124

10

(1974), that fact-bound claim does not warrant review by the Court.

In any event, when the evidence is examined in the light most

favorable to the government, see Jackson v. Virginia, 443 U.S. 307,

319 (1979); Glasser v. United States, 315 U.S. 60, 80 (1942), it

supports the jury’s verdict.

Jerry Wayne Sewell II (Jerry) was no stranger to the drug

world. Shortly before this conspiracy began, Jerry traveled with

his father, petitioner Jerry Wayne Sewell, Sr. (Sewell), to

Florida, where they sold 150 pounds of marijuana for $68,000.

Jerry also delivered a payment to one "Fred" in San Antonio and

received a half-pound of methamphetamine, which Jerry took to

Dallas. On occasion Jerry helped his father sell methamphetamine.

The evidence implicating Jerry in the conspiracy charged in the

indictment showed that Jerry was at his father’s home when Sewell

had an open discussion with three other co-conspirators, including

Sherrod, concerning the plan to manufacture methamphetamine.

Sherrod discussed the chemicals and equipment that he needed to

complete the process. Sewell directed co-conspirator Darlene

Roznovsky and Jerry to retrieve the items, and they later returned

to the house with chemicals and other equipment stored in boxes and

bags. Thereafter, Jerry helped load the boxes of chemicals and

glassware into a vehicle so that they could be driven off to the

laboratory. Pet. App. B, at 6-15; Gov’t C.A. Br. 8-9, 34-35.

With the record in that posture, Jerry’s claim of insufficient

evidence is totally unpersuasive. He does not deny that the

evidence, adduced primarily from informant Johnson, appears in the

11

record; he merely cites testimony of other witnesses who had been

present at the time Jerry assisted the conspirators and who were

not as certain as Johnson that Jerry had participated in the

activities. His claim rests, at bottom, on a challenge to the

credibility of witnesses. That is a matter for the jury, not an

ppellate court, tc determine. See United States v. Bailey, 444

U.S. 394, 414-415 (1981). The jury’s decision to credit Johnson's

9

testimony implicating Jerry deserves no further review.

4. In his pro se petition, Sherrod claims that he was denied

the equal protection of the laws because the manufacturers of Rynal

Spray, an inhalant, had been exempted from criminal liability, even

though their product contained a small amount of methamphetamine.

92-6291 Pet. 35-44. The court of appeals correctly denied relief.

In 21 U.S.C. 811(g), Congress authorized the Attorney General

to exclude by regulation any non-narcotic substance from the

schedule of controlled substances if that substance could be

lawfully sold over the counter under the Federal Food, Drug, and

Cosmetic Act, 21 U.S.C. 301 et geg. Acting under the authority

granted by that law, the Attorney General at one time exempted

Rynal Spray. The exemption was authorized only after the manufac-

turers had followed the carefully delineated administrative

procedures set forth in 21 C.F.R. 1308.21.

At the time of petitioners’ conspiracy, Rynal was still on the

list of exempt items. 21 C.F.R. 1308.22 (1988) ; Pet. App. A, at

1512. Sherrod’s claim is that he was denied equal protection

because the manufacturers of Rynal, which contained a greater

12

strength of methamphetamine than the strength of the

methamphetamine found in the pan at his laboratory, were exempt

from prosecution, but he was not. That contention is meritless.

The exemption enacted by Congress to the statute making it a

crime to manufacture methamphetamine reflects the judgment that in

certain narrow, closely monitored situations, the benefit to the

public from decriminalizing a commercial product containing a

controlled substance outweighs the harm from permitting consumption

of the product. That legislative judgment is reasonable. Sherrod,

who bore the burden of demonstrating that the exemption was

unreasonable, see New York State Club Ass’n v. New York City, 487

U.S. 1, 17 (1988), has not carried that burden. He has not shown

that he ever applied for exempt status and was rejected, or that

the societal benefit from access to his product (such as it was) is

so manifest as to make the need for seeking the Attorney General’s

approval constitutionally unfair.

The comparative strength of the methamphetamine in the

products is irrelevant. By granting an exemption for Rynal, the

Attorney General did not generally decriminalize methamphetamine

production as long as the strength of the controlled substance in

the overall product was weak.

Sherrod also has not shown that any section of the drug abuse

laws has been implemented or enforced by the Attorney General in an

arbitrary or discriminatory manner. Nor is there any indication

that individuals, including Sherrod, were actually confused by its

provisions. His obligation under the laws was clear: He could not

13

manufacture methamphetamine. He was properly tried and convicted

for violating those laws.

5. Petitioner Jerry Wayne Sewell, Sr., claims that he was

erroneously treated as a "career offender" under the Sentencing

Guidelines. 92-6591 Pet. 20-24. That claim does not warrant

review by this Court.* -°*

The presentence report (PSR) stated that Sewell had three

prior convictions for delivering controlled substances. The

convictions occurred at separate trials on separate days 14 months

apart even though, as the PSR noted, Sewell had been arrested for

two of the three violations on the same day.® The PSR assigned

three criminal history points to each conviction. As a result,

Sewell was deemed a career offender under Sentencing Guidelines §

4Bl.1, with a criminal history category of VI. Combined with a

base offense level of 38, Sewell Sr. was sentenced to imprisonment

for concurrent 360-month terms.’

* Sewell did not raise that issue in the court of appeals

until he filed his reply brief, and the court of appeals did not

address it in its opinion upholding Sewell’s conviction and

sentence. Sewell renewed his claim in a petition for rehearing.

In its order denying rehearing the Fifth Circuit said that, absent

exceptional circumstances, it does not consider matters raised for

the first time in a petition for rehearing. Nevertheless, the

panel addressed Sewell’s claim and found it meritiess. Pet. App.

B, at 2-5.

* Petitioner says that he was arrested for all three offenses

on the same day. The PSR, however, states that he was arrested for

two offenses on February 4, 1977, and for the other offense 20 days

later. PSR 7.

” The government argued that Sewell was subject to a mandatory

life sentence. The district court imposed a 360-month prison term,

however, and the court of appeals rejected the government’s

argument on cross-appeal that the sentence was unlawful.

14

In his belated argument to the court of appeals, Sewell

Claimed that all three controlled substance convictions arose out

of a common episode and therefore should have been consolidated for

purposes of calculating his criminal history score. Although he

offered no documentary support for his allegations, Sewell

maintained that he was initially charged with all three offenses in

a single indictment; that because he refused to plea bargain the

State of Texas issued separate indictments on each of the drug

distribution charges; and that consequently he was tried and

convicted separately for each of the offenses.

In denying Sewell’s petition for rehearing, the court of

_ appeals stated that Sewell had not demonstrated that the PSR was

erroneous in assessing three points for each conviction. The court

cited Sentencing Guidelines § 4Al.1lia) (1990), which directs a

court to add three points for each prior sentence of imprisonment

exceeding one year and one month; § 4A1.2(a) (2), which provides

that prior sentences in "related cases" should be treated as one

sentence; and Application Note 3 to Section 4Al.2, which defines

"related cases" as cases occurring on a single occasion, cases that

were part of a single common scheme or plan, or cases consolidated

for trial or sentencing. United States Sentencing Comm’n, Guide-

lines Manual 4.7 (1990). Relying on those provisions, the court

held that a showing merely that the three convictions all involved

controlled substances, or stemmed from what at one time were

different charges in the same indictment, did not render the cases

"related" for purposes of the career offender Guidelines.

15

s

Therefore, the court of appeals was correct in ruling that "[e])ven

had Sewell, Sr. raised this issue in his brief on appeal, we would

find that the district court’s sentencing of Sewell, Sr. on the

basis of the three prior convictions was not clearly erroneous."

Pet. App. B, at 4.

Sewell challenges the court of appeals’ ruling. He does so by

going outside the record, claiming primarily that he was entitled

to relief because the indictment that was superseded had alleged

all three offenses. Sewell once again maintains that but for his

refusal to plea bargain, he would have been tried just once. He

persists in his belief that the single indictment was enough to

allow a consolidation of the three convictions for purposes of

determining his criminal history status.

As the court of appeals observed, the indictment is not the

factor that determines whether prior convictions should be consol-

idated when calculating criminal history points. Sewell has failed

to demonstrate that the previous convictions qualified for

consideration as related cases because they occurred on the same

occasion, were part of a single common scheme or plan, or were

consolidated for trial and sentencing. Absent such a showing, the

three convictions were properly treated as unrelated.

16

CONCLUSION

The petitions for a writ of certiorari should be denied.

Respectfully submitted.

DECEMBER

1992

KENNETH W. STARR

Solici S ;

ROBERT S. MUELLER, III

Assistant Attorney General

MERVYN HAMBURG

Attorney