Drug Manufacturing Convictions Result in Life, 30-year Sentences; 10th Rejects Speedy Trial, Suppression, Sentencing Arguments

U.S. v. Apperson, --- F.3d ----, 2006 WL 775152 (10th Cir. March 28, 2006)

Convicted of LSD possession with intent and manufacture, one D sentenced to life and the other to 30 years. According to informant, operation began in 1996 until it was busted in 2000, and operated in Colorado, Taos, and finally in Kansas. (1) Speedy Trial Act 18 U.S.C. § 3161(C)(1): while 10th’s calculation of excludable days differed from district court’s, no more than 70 non-excludable days elapsed between indictment and trial. The statutory exclusion of time for disposition of pre-trial motions includes court continuance of hearing on motions without an “ends of justice” determination; time needed for a James hearing (admissibility of co-conspirator’s statements) on severance motion excludable; READ OPINION for other facets of the 10th’s totting up of the time periods. (2) Suppression: (a) reasonable suspicion–probable cause--supported stop of Ds’ vehicle in which they had the disassembled lab, chemicals, a recipe, based on informant’s info and DEA seeing the lab in place at missile silo site in Kansas where lab had last been set up before it was disassembled and moved; informant who had been co-conspirator could consent to DEA entry into the lab; (b) search warrant affidavit established PC to search silo, warrant was sufficiently particular. Court also found Ds lacked privacy interest in site (informant was titled owner); (c) video surveillance warrant also supported by same PC, and supported by conclusion that Ds had no privacy interest in silo. (3) Although “[T]he grand jury process is abused when the prosecutor uses it ‘for the primary purpose of strengthening the Government's case on a pending indictment or as a substitute for discovery” there was no evidence such was the case in the second superseding indictment brought by the government. (4) No abuse of discretion in not granting severance of Ds; no gross disparity in evidence against two Ds; nothing to show that co-Ds testimony if separate trials would be exculpatory to D moving for severance; (5) no denial of discovery rights (read opinion); (6)there was no denial of pretrial conference pursuant to Classified Information Procedures Act (one D said he thought he was involved in a secret program with the government alleging Afghan warlords, etc.). Conference was held, D’s claims meritless. (7) limits on cross examination of government witness upheld (no questions on drugs, crime of violence, firearms, past work as government informant, failed polygraph; questions on fraudulent activity and other crimes allowed. Court did not absolutely preclude inconsistent testimony questions. (8) no judicial misconduct (read opinion) (9) no abuse of discretion in evidentiary rulings : admitting incomplete tape omitting one D’s exculpatory statements; excluding hearsay E-mails; allowing government to play the same tape multiple times; allowing informant to testify that handwriting was a D’s under Rule 701; not admitting defense witnesses which would have required delaying trial and whose testimony was cumulative, and witnesses who had taken the 5th; (10) no abuse for not granting use immunity to witnesses–no showing that government’s refusal to grant immunity was to distort the fact-finding process. (11)no error in refusing D’s jury instructions on entrapment by estoppel, public authority, because insufficient evidence to support (12) no abuse in limiting closing to 90 minutes each D (10th approvingly cites 5th cir. Case where D got only 10 minutes close for case involving 6 year conspiracy, 40 witnesses, 12 count conspiracy etc.!) (13) no prosecutorial misconduct (14) D #1: guidelines correctly calculated and no Booker plain error D#2 all sentencing issues moot because subject to mandatory life because of two prior felony drug convictions.