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United States v. Maurtz

February 3, 2009

UNITED STATES OF AMERICA, RESPONDENT,
v.
DONALD F. MARUTZ, MOVANT.



FINDINGS & RECOMMENDATIONS

Movant, Donald F. Marutz, seeks an order vacating his conviction and sentence in this case pursuant to 28 U.S.C. § 2255.*fn1 On December 12, 1994, Marutz was convicted of conspiracy to manufacture methamphetamine, 21 U.S.C. §§ 846, 841(a)(1), attempted manufacture of methamphetamine, 21 U.S.C. § 841(a)(1), possession of a listed chemical, 21 U.S.C. § 841(d)(2), and failure to appear, 18 U.S.C. § 3146(a)(1). A judge of this court sentenced him to serve 360 months in prison. Marutz appealed and the Ninth Circuit affirmed the convictions, but remanded for resentencing on the ground that Marutz had been denied the right of allocution. United States v. Marutz, 77 F.3d 491 (9th Cir. 1996). Marutz thereafter filed this collateral challenge to his conviction and sentence claiming that his counsel was ineffective throughout the pre-trial proceedings, trial, sentencing proceedings, and on appeal. Marutz also claims that his sentence was enhanced beyond the statutory maximum without the factual basis for the enhancement being submitted to the jury for determination under the reasonable doubt burden of proof, in violation of his Fifth Amendment right to due process and his Sixth Amendment right to trial by jury.

I. Facts

A. Background

According to the Criminal Complaint and supporting affidavit filed December 2, 1992, the Placerville, California Police Department was notified of a suspicious fire at a motel involving Marutz. The room that caught fire contained a five gallon gas container holding an unknown liquid, a five gallon plastic can and several other five gallon containers--some of which contained a white powder substance. This room had been rented to Donald Marutz. The fire department personnel at the scene discovered an adult male at the room with burns on his head and hands. The man, later determined to be Marutz, refused medical treatment and left the scene. The motel management reported that the man had been paying for the room by check with an account at a bank in Lebanon, Oregon. Inquiry with the Lebanon Police Department revealed that Marutz was under investigation for suspected involvement in manufacturing methamphetamine. Officers removed from the room indicia of occupancy and samples of the contents of the containers. Among the indicia taken was a storage locker receipt for a locker in the Placerville area. A search warrant was obtained for the locker and the search revealed methamphetamine lab equipment, chemicals and numerous items bearing the name Donald Marutz, including his college diploma.

Following further investigation Marutz was indicted and ultimately convicted at jury trial of conspiracy to manufacture methamphetamine, 21 U.S.C. §§ 846, 841(a)(1), attempted manufacture of methamphetamine, 21 U.S.C. § 841(a)(1), possession of a listed chemical, 21 U.S.C. § 841(d)(2), and failure to appear, 18 U.S.C. § 3146(a)(1).

Although not charged jointly, the case involves three individuals: the movant, Donald Marutz, and his co-conspirators Linda Sevey and Martin Bracamonte. Together, they manufactured methamphetamine, primarily for sale. Bracamonte faced lesser charges of transportation and possession of a clandestine lab in exchange for his cooperation and testimony and Sevey was given immunity in exchange for her assistance and testimony. Reporter's Transcript of Jury Trial ("RT") 641, 837.

At trial the government relied heavily on the lab equipment, chemicals, chemical analysis and testimony about how methamphetamine is manufactured.

B. The Process of Manufacturing Methamphetamine

The government presented testimony of a forensic chemist describing the process Marutz and his co-conspirators used. Initially, ephedrine, which is a precursor to methamphetamine, was obtained. When, as here, ephedrine is obtained from over-the-counter medications, a solvent like methanol, i.e., methyl alcohol, is commonly used. RT 969. Methanol is mixed with the pills and either is stirred gently or left to sit until the methanol evaporates, leaving a layer of ephedrine. RT 969. The ephedrine is mixed with red phosphorous and hydroiodic acid and heated for a period ranging from 12 up to 72 hours. RT 968. Thereafter, the red phosphorous is filtered out of the mixture, and water and sodium hydroxide (i.e., lye) are added. RT at 968. This causes methamphetamine to separate out as an oil, at which point Freon is stirred into the mixture. RT 968. The methamphetamine dissolves in the Freon, and these two separate out from the water. RT 968. The Freon/methamphetamine layer is drawn off and subjected to a reaction with hydrogen chloride so as to crystalize the methamphetamine and separate it from the Freon. RT 968. The crystal methamphetamine is then "washed" in acetone in order to "remove some of the impurities." RT 968. Sodium bisulfite is used to make the final product truly white. RT 976. Equipment used in this process includes crock pots, heating mantles, flasks, jugs, buckets, large garbage bins and vacuum pumps.

C. Marutz and Bracamonte Get Started

At the time of Marutz's arrest on December 4, 1992, he had not known Bracamonte for long. The two met in July 1992, during a blackjack game in Newport, Oregon. RT 783. Bracamonte testified that after the game they chatted, only to discover that they had a mutual interest in manufacturing methamphetamine. RT 784-86. Bracamonte described a manufacturing process that would produce a higher yield of the drug, thereby garnering a higher profit than the process Marutz had been using. RT 786-87. Thus, the two discussed the possibility of meeting in California, where Bracamonte lived. RT 788. Marutz testified that he was not involved with the manufacture of methamphetamine. RT 1182. He asserted that he was traveling around Oregon and California looking for a location to open a restaurant and seeking investors for that enterprise.

Marutz and Bracamonte eventually met in California. Marutz testified that around the first of October 1992, he took his wife B.J., who for health-related reasons required ongoing care and attention, to see Lake Tahoe. RT 1095. While there, he called Bracamonte to discuss the restaurant business. RT 1096. According to Bracamonte, however, he met Marutz at Harrah's, where they discussed manufacturing methamphetamine, including details such as the ephedrine yield of pills, the market for methamphetamine and purchase prices for their product. RT 789-792. The two did not quite trust each other and accused each other of being undercover officers. RT 790. Bracamonte testified that ultimately, Marutz gave him a piece of manufacturing equipment as a token of his good faith. RT 793. Marutz also told Bracamonte that he sometimes stayed at the Brigadoon Motel in Vacaville under the name of "Buster Page." RT 793.

About a week after their meeting at Lake Tahoe, Marutz and Bracamonte met again in Dixon, California. RT 793-94. Bracamonte testified that Marutz gave him $2,000.00 worth of money orders to purchase 300,000 "stay-alert" tablets. RT 794, 798. Bracamente ordered the pills using the name "Ken Sanderson." RT 798. The pills were delivered under that name to Marutz's home in Oregon, where Marutz successfully extracted ephedrine from a large number of them. RT 799.

Bracamonte admitted that in mid-October 1992, he ordered tablets and began extracting ephedrine from them in the Sacramento apartment where he lived. RT 800. However, before the extraction process was completed, state officials obtained a search warrant. Crim. Compl., Dckt. No. 1, Attach. (11/3/92 Report of Investigation); RT 802. On October 27, 1992, federal and state agents went to Bracamonte's apartment and executed the warrant. RT 802. They found an active methamphetamine laboratory in the apartment and Bracamonte was arrested. RT 804-05. However, he was released the same day. RT 804-05. From Bracamonte's apartment, law enforcement officials seized chemicals and equipment used to manufacture methamphetamine. Amongst the items seized were containers with a white powder residue, containers with a moist white powder, a propane canister, large plastic garbage cans, bags containing about nine pounds of a white powder that tested positive for ephedrine, over 100 grams of different powders that tested positive for ephedrine and amphetamine, a firearm, a condenser column, other laboratory equipment, a rental car receipt, and an address book. Crim. Compl., Attach.; RT 472-76; 973-75.

D. Linda Sevey Meets Marutz

Sometime in that same month, October 1992, Sevey met Marutz and his friend Rita Heimbuch in a Vacaville tavern. RT 564. Marutz introduced himself to her as "Buster Page." RT 565. Sevey and Marutz both testified that Marutz hired Sevey to drive Heimbuch to the airport the next day. RT 567-68, 1105. Sevey testified that she mentioned to Heimbuch that her boyfriend was in prison for manufacturing methamphetamine. RT 565. She also testified that Marutz and Heimbuch questioned her about her knowledge of manufacturing methamphetamine, a contention that Marutz disputes. RT 565-66. In that regard, Heimbuch was prepared to testify that Sevey and Marutz did not discuss Sevey's imprisoned boyfriend or the manufacture of methamphetamine, in contradiction to Severy's testimony. RT 930-31. However, following a hearing outside the presence of the jury regarding the scope of permissible cross examination of Heimbuch, Marutz' counsel decided not to call her. Counsel indicated that doing so would have opened the door for impeachment on the charge of failure to appear. RT 916, 927-930.

Soon after meeting her, Marutz hired Sevey to care for B.J, Marutz's wife. RT at 574. Sevey and Marutz traveled to Placerville. According to Marutz, Sevey was helping him with various tasks, such as finding someone to replace a blown gasket in the motor home and preparing to move household items from Marutz's house in Oregon to California. RT 1110-1124. Marutz rented a storage locker at the Queens Storage Rental Units, located in Placerville, RT 575- 583, where, he testified, he intended to store his household items from Oregon. RT at 1127. He testified that he gave Sevey a key to the locker because she was caring for his wife, B.J. RT 1127. Sevey testified that she believed that the storage unit was for personal belongings from Oregon, but denied that Marutz gave her a key. RT 583. While Sevey and Bracamonte maintained that the equipment and chemicals in the locker belonged to Marutz, Marutz testified that they were not his and he did not put them there. RT 1170-71. To explain the presence of his fingerprints on some of the equipment, Marutz testified that he arrived at the locker one day to find the equipment covered by an orange tarp. He said that he moved the tarp out of the way to access his own belongings. RT 1171.

A few days after Bracamonte was released from custody, Marutz and Bracamonte discussed processing their remaining 100,000 tablets in order to recover some of the losses sustained as a result of law enforcement learning of Bracamonte's home laboratory. RT at 806. Thus, according to Bracamonte, on October 27, 1992, he and Marutz met in the parking lot of an automotive equipment store in Sacramento. RT at 807. Marutz had facilities for the extraction of ephedrine in his motor home, which he drove to the parking lot. RT at 807-08. Bracamonte waited in the motor home while Marutz purchased methanol. RT at 807-08. When Marutz returned, Bracamonte dumped the pills into a five-gallon container, and the two poured methanol over them and sealed the containers. RT at 808-09. Around this time, Marutz asked Sevey to go to her home in Vacaville to collect a package delivered to "Jamie Gibson," and told her to destroy the UPS labels. RT 589. While Sevey was in Vacaville on this errand, Marutz, in the company of Bracamonte, rented three rooms at the Brigadoon Lodge, also located in Vacaville. RT 593, 809-10.

E. The Brigadoon Lodge Laboratory

Joyce Tuitile, the manager of the Brigadoon Lodge, testified that she knew Marutz as "Buster Page," who had rented rooms at the Brigadoon Lodge on several occasions. RT at 882. Bracamonte testified that he and Marutz moved the equipment from the motor home into Marutz's room, where they completed manufacturing the batch of methamphetamine they had begun in the Sacramento parking lot. RT at 593, 808-817, 819, 821. In the kitchen, they boiled off the methanol. They took the resulting ephedrine to the bathroom and placed it under a heat lamp to dry. RT at 811-12. Marutz unloaded from the motor home the equipment necessary for the remainder of the process and set it up in the kitchen, where he mixed the ephedrine, red phosphorous and hydrioidic acid. RT 812.

Sevey arrived at the Brigadoon the same day as Marutz and Bracamonte and set up a lab. The evening after the laboratory was established, Sevey heard a "pop" from inside Marutz's room. She described this as the sound of glass breaking and said that she noticed "a real strong odor of red phosphorus." She said that she recognized the smell from having been around it before while making methamphetamine. RT 598-99. Sevey went down stairs to find out what happened and saw the door of Marutz's room open. She went in and saw "Don [Marutz] and Martin [Bracamonte] were in hysteria trying to clean up a mess that was on the floor. There was glass, the smell of chemical. There was red stuff on the carpet." RT 598-99. When she asked what was going on Marutz responded: "We're maufacturing methamphetamine. What do you think?" RT 599. Sevey went back up stairs and sometime shortly thereafter Marutz went up and asked her if there was any place she could get a boiling flask because of the one that had broken in the room. She contacted a source who had a "triple neck" flask available for $200. She said that Marutz and Bracamonte discussed whether it would work and "bickered over who was going to pay for it." RT 600. Eventually, Bracamonte gave her the $200 and she left. Id.

In contrast, Marutz testified that he was not there at the time of this incident and was in Placerville, instead. RT 1155. He testified that Bracamonte called him to say that a glue gun had been dropped on the floor and burnt a hole in it. RT 1156-57. According to Marutz, when he arrived at the Brigadoon, Bracamonte was in the bathroom and the tub was full of what Bracamonte identified as ephedrine. RT 1151.

Sevey testified that in addition to obtaining a new flask for Marutz she also retrieved, as instructed, other replacement equipment from Marutz's Placerville storage locker, where she saw bottles of freon, rubbing alcohol, and several large boxes. RT 599, 602-04. Sevey returned to Vacaville with the equipment and helped repair the laboratory. RT 605. When the product was finished, Bracamonte and Sevey sampled it, but Marutz did not. RT 825. Bracamonte verified that it was methamphetamine. Id. He and Marutz cut the product with caffeine to add weight and then packaged it for delivery. RT at 826. Then, at Marutz's direction, Sevey drove to Redding, California, and delivered to a customer one pound of the methamphetamine in exchange for $2,800, which Sevey gave to Marutz. RT at 611. Bracamonte later met Marutz at Lake Tahoe, where Marutz paid him. RT 827-28. Meanwhile, Marutz had ordered another shipment of pills to be delivered to Sevey's home in Vacaville under the name "Jamie Gibson." RT 613.

A federal Drug Enforcement Agency ("DEA") agent testified to having found an acetone can in Marutz's room at the Brigadoon Lodge. RT 941-42. The parties stipulated to the fact that Sevey's fingerprint was on this can. RT 1002.

F. The Hangtown Laboratory

Following the broken flask incident in the Brigadoon Lodge in Vacaville, Marutz went to Placerville, where he had rented two adjoining rooms at the Hangtown Motel in Placerville. RT 613. Sevey testified that, on Marutz's instructions, she collected the package of pills that had been delivered to her home under the name of Jamie Gibson, purchased 15 gallons of methanol at an automotive store, and met Marutz at the Hangtown Motel. RT 613. When she arrived there on November 20, 1992, Marutz gave her a key to the room next to the one he had been staying in. RT 616. Sevey put the pills and methanol in that room. Marutz arrived sometime thereafter, bringing with him equipment from the motor home, including a kitchen garbage can, buckets and more methanol, and together they opened the pills. RT 614. They cut the bottoms off the pill bottles with a knife, and Sevey, again on Marutz's order, went to purchase more methanol. RT 615. She returned to find Marutz was stirring pills and methanol in buckets in the motel room kitchen. RT 615. Marutz left the room for about half an hour, and Sevey stirred the mixtures in the buckets. RT 615-16. When Marutz returned, Sevey left to get pizza. RT 616. When she returned about twenty minutes later, the room in which they had been stirring the chemical mixtures was on fire. RT 616. Marutz's face and hands were singed, and he said something about having lit a candle. RT 616. Bracamonte explained that when fumes from burned methanol make contact with oxygen, the combination is explosive. RT 829.

After extinguishing the fire, which took about 15 minutes, police and firefighters entered and began removing things from the room to ensure the fire would not reignite. RT at 538. Police found five-gallon metal gas containers. RT 544. Firefighters found the buckets containing the methanol mixture, but did not know what it was. RT 540. They called a hazardous materials team, which could determine only that the contents of some containers had a high Ph balance and the contents of others had a low Ph balance. RT at 540; RT of August 30, 1993 Proceedings, at 44. The government's lab results showed that the chemical composition of the substances was consistent with flour or starch. ER 22.

A fire captain found a small hole above the toilet leading to the adjoining room, which Marutz also had rented. RT 538-40. He showed Detective Lindholm of the Sparks Police Department. RT 539-40, 544. Lindholm entered this adjoining room to search for chemicals and while doing so saw a storage locker rental receipt on a night stand. RT 545. This receipt was later the focus of a suppression motion. At an evidentiary hearing on Marutz's motion to suppress the evidence seized from the storage locker, Lindholm testified that the documents on the night stand were "fanned out" and that he did not move, lift, or touch anything to see the receipt.*fn2 RT of August 30, 1993 Proceedings, at 46, 62-63. Lindholm asserted that he seized the receipt, along with other papers, because they contained the name of the occupant of the room. Id. at 46, 56, 63. Lindholm later testified that he gave the storage receipt to his superior officer because he knew from experience that methamphetamine manufacturers often rent units to store chemicals and equipment. Id. at 56.

When Marutz determined that they had to leave the scene of the fire he told Sevey to take B.J. in the Porsche and to meet him down the road. RT 617. Sevey did as she was told, and parked in front of a laundrymat a short distance from the Hangtown Motel. RT 617. Marutz met them about 15 minutes later and gave Sevey money to pay for rooms at a different motel. RT 618. At Sevey's suggestion, they agreed to rent rooms at a Super 8 in Cameron Park. RT 618. Driving the Porsche, Sevey left for the hotel without B.J. and Marutz, who arrived while Sevey was registering for their rooms. RT 618.

Apparently on the night of the fire, i.e., November 20, 1992, Sevey called Bracamonte to explain what happened. RT 829. Bracamonte and Marutz got together about two or three days later, and Marutz asked Bracamonte to help retrieve equipment from the storage locker. RT 831. Marutz also requested financial assistance, and Bracamonte gave him $300.00 to cover some of the losses from the fire. RT 830. Two or three days later Marutz called Bracamonte from Reno, Nevada and said that he needed to start the extraction process again because he had a deadline to meet. Id. Marutz asked Bracamonte to retrieve equipment from the Queens Storage Locker in Placerville and meet him in Reno. Id. Marutz left for Nevada, telling Sevey that another package of pills would be arriving at her home in Vacaville, and that she should collect them and then meet him at Lake Tahoe. RT 619.

G. The Search of Bracamonte's Truck

On November 25, 1992, while Marutz and Sevey were preparing to manufacture methamphetamine in Nevada, Bracamonte went to the Queens Storage Locker and loaded equipment from Marutz's unit into his pick-up truck. RT 834. As he finished loading, he noticed two sheriff's department cars on the premises about 50 yards away from him. RT 127. Bracamonte saw one deputy go to the business office. RT 128. Bracamonte assumed that the deputies were there for him, but since they did not stop him, he left. RT 128. Shortly after leaving the storage unit, a deputy sheriff (who had not been at the storage facility) stopped Bracamonte based on a traffic violation. Crim. Compl., Attach.; RT 127-28. During the stop, Bracamonte told officers that he was moving personal belongings from a storage locker in Placerville to Lake Tahoe as a favor to someone named "Jamie." Crim. Compl., Attach.; RT 131-32. One of the officers discovered that there was an outstanding misdemeanor arrest warrant for Bracamonte, and arrested him. Id.; RT 505, 834-35. Based on this arrest, officers had Bracamonte's truck impounded and they conducted an inventory search. Crim. Compl., Attach.

During the search, officers found beakers, vacuum flasks, hydrioic acid, heating mantles, filters, funnels, flasks, red powder, alcohol wash, large plastic garbage cans, laboratory equipment, a .22 caliber semi-automatic pistol with a magazine and seven rounds, a sawed-off shotgun loaded with two 20 gauge rounds, six 20 gauge rounds in a box, and a book explaining how to create a foolproof new identity. Id. Samples from various pieces of equipment tested positive for methamphetamine or ephedrine, or for chemicals used in the manufacturing process. RT 945, 975-979. They also found a postcard from the Brigadoon Lodge signed, "Buster." RT 507-23. Marutz's fingerprints were found on two flasks, three beakers and an amber colored jug seized from Bracamonte's truck. RT 1001-02.

Marutz and Sevey did not immediately learn of Bracamonte's arrest. Thus, according to Sevey, Marutz continued to direct Sevey in their enterprise. Sevey went to Vacaville to collect pills that Marutz had said would be delivered to her house. RT 619. But the package had not arrived. Id. Sevey therefore decided to meet Marutz at Lake Tahoe. RT 619-20. When they met, Marutz told Sevey that the pills would arrive at her house within a few days. RT 620. Thus, Sevey returned to Vacaville, collected the pills and returned to Nevada, where she again met Marutz, this time in Minden. RT 620-21. It was when Marutz and Sevey began processing the pills in a room at the Carson Valley Inn in Minden, Nevada, that they learned of Bracamonte's arrest. RT 622. Apparently fearing that police would learn of Martuz's activities either from the items in Bracamonte's truck or from Bracamonte himself, Marutz panicked. RT 622. To avoid detection and arrest, Sevey and Marutz drove to Reno, where they rented rooms at the Western Village Inn. RT 623, 625.

H. The Search of the Storage Locker

Based primarily on the receipt Lindholm seized from the Hangtown Motel, federal agents obtained a warrant to search Marutz's storage locker. Crim. Compl., Attach. On December 2, 1992, police searched the locker and seized flasks, rubber gloves, a heating mantle, six cans of acetone, cans of sodium hydroxide, a 100-pound container of Freon and about 10 pounds of a red powder, photographs, and a college diploma in the name of Donald Frederick Marutz. Crim. Compl., Aff. in Support. They also seized documents bearing Marutz's name, a photograph of Marutz, a box of lye containing an Oregon shipping address, a cloth testing positive for Dmethamphetamine and a precursor substance, several glass flasks and boiling stones testing positive for D-methamphetamine, and a plastic fitting with yellow stained residue testing positive for D-methamphetamine. RT 937-40, 945, 952-54. The government introduced the drug-related evidence (i.e., the chemicals, containers and results of chemical analyses of residues on the equipment) at trial. RT 945, 979-981. It also relied on the documents and photograph. RT 938-39.

I. The Western Village Inn Laboratory

After the fire at the Hangtown Motel, Marutz, his wife B.J. and Sevey moved to and stayed at several different motels. As noted, Sevey brought the pills she had collected from Vacaville to the Carson Valley Inn, in Nevada, where she and Marutz began the process of extracting ephedrine from pills, RT 620, and it was while staying at the Carson Inn that Marutz and Sevey learned of Bracamonte's December 2, 1992, arrest. RT 622. They could not complete the batch of methamphetamine they had begun without the laboratory equipment. RT 623. However, they again feared detection. Therefore, they put the barrels and jugs of chemicals and mixtures from their rooms at the Carson Inn into Marutz's motor home. Two days later they rented three rooms in the Western Village Inn in Nevada, where they continued the extraction process. RT 624-25, 628. Marutz stated that he feared law enforcement officers were tracking the licence plate numbers for his Porsche and motor home. Thus, at his direction, Sevey stole different license plates for both vehicles. RT 628. She stole only one for the Porsche and placed it on the rear of the car, leaving the front without a plate.

Not surprisingly, on the morning of December 4, 1992, a Sparks Police Department officer noticed that the Porsche had no front license plate. RT 429. Suspicious, he checked the number on the rear plate, and discovered that the plate was stolen. RT 429. Unable to locate the owner of the Porsche, the police towed it. RT 432. Within a day or two of placing the stolen license plate on the Porsche, Sevey noticed that the Porsche was missing. She inquired about it at the front desk and a security officer told her that a Porsche had been towed. RT 630. At this point, Marutz and Sevey moved the motor home and parked it at a different location. When they returned to the Western Village in a different vehicle, they saw that several police vehicles were present. Because of the presence of the police cars Marutz took Sevey to a nearby restaurant and left her there to wait. Id.

Officers of the Sparks Police Department learned by tracking the vehicle identification number that the Porsche was registered to Marutz. RT 429. Thus, they consulted with hotel security staff about the suspicious Porsche, and Detective Michael Cardella of the Sparks Police Department was assigned to conduct surveillance of the rooms Marutz was using. RT 431-32. After receiving information about hazardous materials from Detective Depoale, Cardella searched the rooms for anything that might pose a health hazard. RT 433. From two of the rooms at the Western Village Inn, law enforcement officers seized a heating plate, a jug and crock pot with a white powdery residue, and samples of a white powdery residue found in various locations within the rooms. RT 501-502. The jug, heating mantle and crock pot are items used in the manufacture of methamphetamine. RT 501-502. The white powder tested positive for ephedrine. RT 954-958.

Federal agents found Marutz leaving the hotel's casino and approached and questioned him. RT 443-444. Captain Robert Cowman of the Sparks Police Department interrogated him and Captain Cowman testified that Marutz confessed to there being about 15 pounds of ephedrine in the motor home, explaining that he was transporting the ephedrine to a friend so that it could be used in the manufacture of methamphetamine. RT 759-60. When Captain Cowman expressed safety concerns about chemicals Marutz assured him that the motor home was well-ventilated. RT at 759. During this discussion, Marutz consented to federal agents searching the motor home.*fn3 RT 763-64; ER 74-76. DEA Special Agent Croslin searched the motor home and found dark-colored plastic bags containing a approximately 30 pounds of a white powdery substance that he suspected to be ephedrine. RT 461-62. He also found electric heating elements, a crock pot, spatulas, knives, a small shovel, a small wood bowl and small pots and pans with white powder on them.*fn4 RT 462. He also found two 15-gallon buckets full of a methanol-white powder solution. RT 463-64. There were two five-gallon cans labeled "methanol," and an unloaded .32 caliber Derringer gun. RT 461-72.

Meanwhile, other federal agents approached and questioned Sevey at the restaurant where Marutz had left her. RT 637. She admitted to knowing and working with Marutz to extract ephedrine for sale. RT 637-39. She also admitted at trial that she had used either methamphetamine or cocaine every day during her association with Marutz and that her memory could have been faulty because of the drug use. RT 646, 650.

J. Marutz's Initial Appearances in Court

Marutz appeared before a Magistrate Judge of the United States District Court for the District of Nevada on December 4, 1992, on charges of conspiracy to manufacture methamphetamine, attempted manufacture of methamphetamine, and possession of a listed chemical. See 21 U.S.C. §§ 846, 841(a)(1), 841(d)(2). At that initial appearance, the magistrate judge noted that DEA agents delayed about six hours after arresting Marutz before bringing him before the federal court. Hearing Transcript, 12-4-92, at 7-9. She admonished the agents regarding the delay, but did not make any finding of specific misconduct. Id. Nor did she specifically find that any of Marutz's rights had been violated. At the detention hearing three days later, Marutz's counsel alleged that DEA agents had abused Marutz and his wife, but no evidence was presented in support of these accusations. Excerpt of Record, filed June 29, 1999, ("ER") 167. Marutz apparently mentioned these allegations to his attorney, as evidenced by a memorandum of an assistant federal public defender speculating that the alleged abuse was the reason that Marutz initially was released pending trial. ER 17.

K. The Motion to Suppress Evidence

Marutz's counsel filed a motion to suppress evidence, but Marutz failed to appear for the hearing on the motion. Def.'s Mot. to Supp., filed February 17, 1993; Hearing Minutes, Dckt. No. 18. A bench warrant was issued and the government filed a superseding indictment, adding a count for failure to appear.*fn5 Hearing Minutes, Dckt. No. 18; Superseding Indictment, Dckt. No. 28.

The suppression motion sought to suppress the evidence seized from the storage locker. Counsel argued that this evidence was the fruit of an illegal, warrantless search of the defendant's rooms at the Hangtown Motel in Placerville.*fn6 The court found that the need to ensure the rooms were free of hazardous materials, the knowledge that Marutz had rented both rooms, and the presence of a hole in the wall between the two rooms presented exigent circumstances justifying the warrantless entry. RT of September 20, 1993 Proceedings, at 6. The court further found that the receipt was in plain view and that Lindholm had understood its potential significance. Id. at 8-9. As discussed below, Marutz argues that his counsel had reason to believe that the receipt was not in plain view and should have made this argument before the trial court.

Although counsel successfully moved to suppress Marutz's statements to Special Agent Smith of the DEA, he did not move to suppress Marutz's statement to Captain Cowman. Id. at 9-10. Thus, the statements to Smith were excluded and the statements to Cowman were admitted into evidence.

L. The Destruction of Sevey's Statement to Police

Counsel moved to dismiss the indictment on the ground that the government had destroyed the statement that Sevey had given to officers of the Sparks Police Department. RT of November 8, 1993 Proceedings, at 12. Officials of that department turned the taped statement over to the Drug Enforcement Agency, which destroyed it while attempting to transcribe it. Id.; ER at 59. Marutz conceded before the trial court that Sevey's statement exculpated herself and inculpated him. RT of November 8, 1993 Proceedings, at 9; ER at 59. With the present motion, Marutz has submitted a supplemental report made by Detective Depoale of the Sparks Police Department, who originally obtained Sevey's statement. ER at 69. In it, Detective Depoale described what he recalled of the interview, which was not much. He stated that Sevey simultaneously denied awareness of any wrongdoing on the part of Marutz and admitted to knowing that Marutz was engaged in the manufacture of methamphetamine. ER at 96. Marutz has not submitted declarations or other evidence suggesting that Sevey's statement would have tended to exculpate him. Other than the fact that the destruction occurred during an attempt to transcribe it, there is no other evidence of the circumstances of the destruction.

M. The Destruction of Bracamonte's Statement to Police

Counsel also filed a written motion to dismiss on the ground that the government had destroyed recordings of radio communications amongst deputies of the El Dorado County Sheriff's department concerning their surveillance of the area around Marutz's storage locker. ER at 59. Counsel did not allege before the trial court what information the transmissions contained. The court denied the motion on the ground that Marutz had not demonstrated either bad faith or a likelihood that the recordings contained exculpatory evidence. RT ...


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