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United States v. Brinton

filed: January 21, 1993.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, CROSS-APPELLANT,
v.
BRETT ALAN BRINTON, DEFENDANT-APPELLANT, CROSS-APPELLEE, UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, CROSS-APPELLANT, V. WILLIAM JOHN BRINTON, DEFENDANT-APPELLANT, CROSS-APPELLEE.



Appeal from the United States District Court for the Central District of California. D.C. No. CR-89-0759-TJH-2, D.C. No. CR-89-0759-TJH-1. Terry J. Hatter, District Judge, Presiding

Before: Wiggins, Kozinski, Kleinfeld, Circuit Judges

MEMORANDUM

OVERVIEW

William and Brett Brinton appeal their convictions for violations of 21 U.S.C. §§ 841(a)(1), 844, 846, & 858. Brett Brinton also appeals his separate convictions for violations of 21 U.S.C. §§ 841(a)(1) and 841(d). The government appeals the district court's departure from the Sentencing Guidelines.

The Brintons raise several issues on appeal, each of which will be treated separately. While the Brintons contend that the district court erred at nearly every turn throughout the course of the trial, after thorough review, we are convinced that the district court's only error was its complete disregard of the Sentencing Guidelines. Therefore, we affirm the convictions, vacate the sentences, and remand for resentencing.

FACTS

On March 6, 1989, an explosion occurred at an industrial complex located at 251 S. Mountain View in San Bernadino, California. At the time of the explosion, an eyewitness observed two white males wearing shorts and t-shirts dragging objects that were later revealed to contain methamphetamine from the exploded unit. The eyewitness also saw one of the individuals walk to a fence and throw a glass beaker over it. The police and fire department responded to the explosion. Officer Ken Boardman spoke to the eyewitness and recovered the glass beaker, detecting a brown substance on it and an odor consistent with methamphetamine. The officer then observed the Brintons, both wearing shorts, leave the exploded unit. The Brintons were detained and a search warrant obtained to search the exploded unit. The search revealed that the explosion had originated in a clandestine drug laboratory and exposed several signed documents connecting the Brintons to the laboratory and its operation. Having indicated that they were co-owners of the exploded business, the Brintons were arrested in conjunction with the incident.

Based upon Detective Memmott's observations of the laboratory, the Brintons' statements as to their home address, prior knowledge of the Brintons' involvement in narcotics, and the expert opinion of Detective Memmott, the government obtained a warrant to search 3276 Miramonte Street in San Bernadino. During the course of this search, officers discovered 43 grams of methamphetamine, an explosive device, and a videotape with footage of the Brintons manufacturing a substance that appeared to be methamphetamine. The Brintons' mother also advised officers that William Brinton did not live at that location but at 3125 Cactus Circle with his girlfriend.

The police obtained a search warrant for the Cactus Circle residence and in a subsequent search discovered a jar of liquid containing methamphetamine, $1,000 cash, and various explosive devices and chemicals. The government also obtained search warrants for storage sheds rented by the Brintons. Searches of the sheds uncovered 1,300 pounds of ephedrine, a chemical often used in the manufacture of methamphetamine, and glassware used in the manufacture of methamphetamine.

Some months later, a grand jury returned an eight count indictment that charged the Brintons with conspiracy to manufacture methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1); endangering human life while manufacturing methamphetamine in violation of 21 U.S.C. § 858; manufacture of methamphetamine in violation of 21 U.S.C. § 841(a)(1); possession of methamphetamine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1); manufacture of an explosive without license in violation of 18 U.S.C. § 842; and possession of ephedrine with the intent to manufacture methamphetamine in violation of 21 U.S.C.§§ 841(a)(1) and 841(d).

In August of 1990, a jury convicted the Brintons of conspiracy to manufacture methamphetamine, endangering human life while illegally manufacturing methamphetamine, manufacturing methamphetamine, and possession of methamphetamine with the intent to distribute. The jury also convicted Brett Brinton of possession of ephedrine with the intent to manufacture methamphetamine and of the lesser included offense of simple possession of 43 grams of methamphetamine.

Discussion

I.

The Brintons contend that the district court erred in denying them a Franks hearing. We disagree after considering the question de novo. United States v. ...


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