The opinion of the court was delivered by: CURTIN
Defendant Steve Price and four codefendants were indicted in the Western District of New York for conspiracy to manufacture methamphetamine and phenyl-2-propanone (P-2-P), Schedule II controlled substances, on July 22, 1981. A little over a year earlier in the Northern District of California, Price was indicted for conspiracy to manufacture and possess with intent to distribute methamphetamine. On April 16, 1980, he pled guilty to the California indictment. He now moves to dismiss the subsequent New York indictment on the ground it encompasses the same offense he was charged with in California, thereby violating his rights under the Double Jeopardy Clause. Whether the government is entitled to press the second indictment against him depends on the relationship between the offenses underlying each indictment.
The California Indictment-"Price I"
On February 13, 1980, Price and James W. Elrite were indicted for conspiracy to manufacture and possess with intent to distribute methamphetamine in violation of 21 U.S.C. § 846.
The indictment alleged the following three overt acts. On January 10, 1980, Price bought 38 kilograms of methylamine in Houston, Texas. Eight days later, Cynthia Simone purchased 36 bottles of P-2-P
in Pasadena, Texas, at Price's direction and with his money. Finally, on January 30, 1980, Price and Elrite purchased 54 bottles of P-2-P in Houston, Texas, and had them shipped to California. The conspiracy purportedly existed from June 19, 1979, through February 5, 1980.
Because Price pled guilty, there was no opportunity to develop the facts at trial. Nevertheless, the materials before the court reveal the extent of Price's participation in the conspiracy.
The record shows that the Price I conspiracy embraced the following activity.
As early as May 1979, Price was instrumental in an operation to buy P-2-P and methylamine from sellers in Texas and California and resell these chemicals for a substantial profit in California. According to the evidence, several other people worked with Price in this operation. Price was tied to the May 18, 1979, purchase of P-2-P by a black man using the named Jesse Jackson, Jr., in Houston, Texas. Price and an unidentified white man were seen picking up a large quantity of methylamine in Houston on January 10, 1980. Four days later, the same white man was seen picking up two and one-half times that amount of methylamine from the same Houston chemical house.
On January 18, 1980, Drug Enforcement Administration agents stopped and detained Teresa Perrone and Cynthia Simone after they purchased a large amount of P-2-P in Texas
for Price. This purchase was made on Simone's fifth trip to Texas to buy chemicals for Price, who paid her $ 1,000 per trip. Various people accompanied her on these trips, including Price, a man she knew as "John," her husband Frank, and, on her last flight, Perrone.
On January 30, 1980, Price and a man later identified as James Elrite bought a large quantity of P-2-P in Houston, Texas, and had it shipped to Sunnyvale, California. Elrite was arrested as he picked up the boxes of P-2-P from the Federal Express Office in Sunnyvale on February 5, 1980. Price was arrested several days later after Sergeant W. J. Martin of the Drug Enforcement Administration filed a complaint against Price and Elrite.
There was no evidence that Price was directly involved in the actual production of methamphetamine. In fact, at his federal parole hearing, Price expressly disclaimed any connection to any illicit methamphetamine laboratory. Nevertheless, Price was indicted and convicted, inter alia, for conspiracy to manufacture methamphetamine. As explained to the grand jury by a Drug Enforcement Administration forensic chemist, the reason inheres in the nature of the chemicals Price admittedly bought.
Methylamine and P-2-P are the two key chemical ingredients of methamphetamine, a Schedule II controlled narcotic. At the time Price was buying methylamine and P-2-P, neither was itself a controlled substance, although the latter became a Schedule II controlled drug on February 11, 1980. However, methylamine is used primarily to produce methamphetamine, while P-2-P is used exclusively to produce methamphetamine. Someone who possesses both P-2-P and methylamine is therefore necessarily implicated in the illegal production of methamphetamine. As such, the evidence of Price's chemical purchases was amply sufficient to support the methamphetamine production indictment.
The Western District of New York Indictment-"Price II"
The indictment filed in the Western District of New York accuses Price, Petar Kuburovich, Goyko Kuburovich, Eric Weyand, Lee-Ann Knox, and "other persons unknown" of conspiracy to manufacture methamphetamine and P-2-P at a clandestine laboratory on Gravel Run Road in Canisteo, New York, in violation of 21 U.S.C. § 846.
The four-count indictment also charges Price with the manufacture of methamphetamine and P-2-P in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1). Because this action is only in its initial stages, determining the scope of Price's involvement becomes somewhat complicated. The evidence now before the court consists of the indictment, various exhibits submitted by both Price and the government, and minutes of Terri Smith's grand jury testimony.
In addition, Price testified in court on December 16, 1981.
Price has also moved to produce and examine the government's witness, Terri Smith, regarding her testimony before the grand jury. Although the government agreed to let Price's attorney review Smith's testimony, see footnote 7, Price renewed his motion at oral argument. He maintains that Smith's testimony is essential to substantiate his double jeopardy claim.
Even if Smith's testimony would corroborate his own, Price is not entitled to have Smith testify in court before trial. His right to present evidence in support of his double jeopardy claim does not simultaneously entitle him to evidence normally unavailable to a criminal defendant before trial. United States v. Stricklin, 591 F.2d 1112, 1118 (5th Cir.), cert. denied, 444 U.S. 963, 100 S. Ct. 449, 62 L. Ed. 2d 375 (1979). See also United States v. Rivera, 465 F. Supp. 402, 414 (S.D.N.Y.), aff'd, 614 F.2d 1292 (2d Cir. 1979). In any event, I have reviewed Terri Smith's grand jury testimony and am satisfied for the present that her in-court testimony would not add anything of substance to the record. Defendant's request to produce Terri Smith is therefore denied.
Proceeding to the underlying allegations, the record reveals that the government expects to prove the following facts. Sometime in January 1980, Price and his friend, Petar Kuburovich, agreed to establish an illegal laboratory to produce methamphetamine using the "PAA" process. With the PAA process, phenylacetic acid (PAA) is chemically transformed into P-2-P. The P-2-P is then combined with methylamine to produce methamphetamine, the final product. According to the government, Price bankrolled the drug enterprise from California through Petar Kuburovich. On January 17, 1980, Price wired $ 5,200 to ...