United States v. Howard Dale Bernard, United States of America v. Ralph Maurice Comstock, Jr.

Bernard and Comstock appeal from judgments of conviction of conspiring to manufacture methamphetamine, a violation of 21 U.S.C. §§ 841 and 846. They were separately indicted and tried together. An un-indicted co-conspirator, one Richard May, was the major witness to criminal activity on the part of the appellants.

We reverse and remand for a new trial.

I. The Facts.

In December 1977, on behalf of an agricultural research firm, Bernard ordered from the Physicians and Surgeons Supply House in Spokane, Washington some me-thylamine, a chemical that it is not unlawful to order, sell or possess, but that is used in the manufacture of methamphetamine, a controlled substance. The Drug Enforcement Administration (DEA) learned of the order and furnished the Supply House with a can in which a radio transmitter had been installed. The can was to be used as a container of Bernard’s methylamine. No warrant was obtained for surveillance of the can. No evidence produced at trial involved Comstock in the ordering of the methylamine. No Supply House witnesses could identify Comstock at trial.

Two individuals, one of whom was identified as Bernard, retrieved the order in the can containing the…

concurring:

While I concur generally with the majority, I add a cautionary note. May, who testified against Bernard and Comstock, was an accomplice to their activities, a paid informant for the government, and a drug addict. Part II of the majority opinion suggests that it would have been “better” for the district judge to give a jury instruction mentioning all of these characteristics of May and suggesting that each might affect his credibility. I agree that in certain cases, such an instruction might be appropriate. But, I caution that our comments should not be construed to require the giving of such an instruction in this or any other case. The formulation of jury instructions is a matter within the discretion of the trial judge and, in my judgment, the majority’s suggestion should not circumscribe the exercise of that discretion.

It appears to me that we best carry out our appellate function by determining whether it was error to give or not to give a particular jury instruction in a particular case. Advice as to a “better practice” seems to me to be ordinarily outside our appellate responsibility. Prudence urges awaiting a concrete controversy on the particular issue.

625 F.2d 854 UNITED STATES of America, Plaintiff-Appellee, v. Howard Dale BERNARD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ralph Maurice COMSTOCK, Jr., Defendant-Appellant. Nos. 79-1356, 79-1357. United States Court of Appeals, Ninth Circuit. July 30, 1980. Carroll D. Gray, Asst. U. S. Atty., Spokane, Wash., for plaintiff-appellee. Robert H. Whaley, Winston & Cashsat, David W. Henault, Henault & Hancock, Spokane, Wash., for defendants-appellants. Appeal from the United States District Court for the Eastern District of Washington. Before DUNIWAY and WALLACE, Circuit Judges, and JAMESON, * District Judge. DUNIWAY, Circuit Judge: 1 Bernard and Comstock appeal from judgments of conviction of conspiring to manufacture methamphetamine, a violation of 21 U.S.C. §§ 841 and 846. They were separately indicted and tried together. An unindicted co-conspirator, one Richard May, was the major witness to criminal activity on the part of the appellants. 2 We reverse and remand for a new trial. 3 I. The Facts. 4 In December 1977, on behalf of an agricultural research firm, Bernard ordered from the Physicians and Surgeons Supply House in Spokane,…