United States v. Howard Dale Bernard, Gordon Rae Childress, Sammy Brice Brock, Roger Lee Bard, Russell Richard Cochran

The defendants-appellees are charged with conspiracy to manufacture methamphetamine, a controlled substance, in violation of 21 U.S.C. §§ 812 , 841(a)(1) and 846, and with two substantive counts relating to the manufacture and possession of methamphetamine, in violation of 21 U.S.C. §§ 812 and 841(a)(1) and 18 U.S.C. § 2 . The Government, pursuant to 18 U.S.C. § 3731 , has appealed from an order of the district court granting defendants’ motions to suppress evidence seized at the time of their arrests.

Factual Background

In October, 1977, Michael Brown, who was under arrest for manufacturing methamphetamine, told Drug Enforcement Administration (DEA) agent Michael Fredericks that he and defendant Howard Bernard had been involved in manufacturing methamphetamine during 1977. Brown further informed Fredericks that Bernard and two other persons currently operated a clandestine methamphetamine laboratory in Umatilla County, Oregon, and that through a legitimate “front” business, 1 they would be purchasing and stockpiling chemical ingredients for the manufacturing of methamphetamine sometime around March, 1978. Subsequent DEA investigation and surveillance activities corroborated…

specially concurring:

I disagree only with the majority’s view that the witness Nielsen’s testimony would not be admissible on the trial of the case. Consequently, I would not expand the rule stated in United States v. Harris, 543 F.2d 1247, 1253 (CA9 1976), and in United States v. Robinson, 546 F.2d 309 (CA9 1976), cert. denied 430 U.S. 918 , 97 S.Ct. 1333 , 51 L.Ed.2d 596 (1977), to include rough notes made by a government agent in recording his observations during a surveillance of a defendant’s activities. In my opinion, the Jencks Act, 18 U.S.C. § 3500 , was never intended to cover the type of notes prepared and later destroyed by Nielsen.

Furthermore, it is my view that neither Harris nor Robinson forecast the result here reached by the majority. For that reason, the new rule here announced by the majority should not be given retroactive application.

Otherwise, I fully concur in the majority opinion.

607 F.2d 1257 UNITED STATES of America, Plaintiff-Appellant, v. Howard Dale BERNARD, Gordon Rae Childress, Sammy Brice Brock, Roger Lee Bard, Russell Richard Cochran, Defendants-Appellees. No. 78-3033. United States Court of Appeals, Ninth Circuit. Sept. 27, 1979. Rehearing Denied Nov. 28, 1979. 1 Walter E. Schroeder, Crim. Div., Washington, D.C., for plaintiff-appellant. 2 John S. Ransom, Portland, Ore. (argued), for defendants-appellees; Michael R. Shinn, Frank Noonan, and Gerald R. Pullen, Portland, Ore., on brief. 3 Appeal from the United States District Court for the District of Oregon. 4 Before KILKENNY and ANDERSON, Circuit Judges, and JAMESON, * District Judge. JAMESON, Senior District Judge: 5 The defendants-appellees are charged with conspiracy to manufacture methamphetamine, a controlled substance, in violation of 21 U.S.C. §§ 812 , 841(a)(1) and 846, and with two substantive counts relating to the manufacture and possession of methamphetamine, in violation of 21 U.S.C. §§ 812 and 841(a) (1) and 18 U.S.C. § 2 . The Government, pursuant to 18 U.S.C. § 3731 , has appealed from an order of the district court granting defendants' motions to…