United States v. Donald Wesley Taylor, United States of America v. Steven Wayne Pressler, and Donald Wesley Taylor

Donald Wesley Taylor and Steven Wayne Pressler were convicted of conspiracy to manufacture amphetamines and attempt to manufacture amphetamines. The Government and both defendants appeal. Taylor contends that the search of his residence was illegal because the information contained in the affidavit offered in support of the warrant failed to establish probable cause. Pressler contends that: (1) the trial court erred in denying his motion to suppress because his arrest was based on less than probable cause, (2) his trial should have been severed from Taylor’s trial, (3) the district court committed reversible error by allowing certain questions during cross-examination, and (4) the evidence was insufficient to support his convictions. Both defendants contend that: (1) the trial court erred in allowing the Government to comment on the contents of two chemical bottles that were labeled but never analyzed, and (2) under the facts of this case, the jury instruction on attempt was inadequate. The Government appeals the dismissal of the “Dangerous Special Drug Offender” notice it filed against Taylor.

FACTS

The essence of the Government’s case was that Taylor was operating, or…

concurring:

I concur in the result, and I join all of the majority opinion except Part VIL I write separately on the effect of conviction of both attempt and conspiracy under 21 U.S.C. § 846 . Although I agree that the sentences imposed for attempt must be vacated, I rest my conclusion on a different reason.

21 U.S.C. § 846 (1976) provides that

The statute thus prescribes punishment for one who “attempts or conspires” to commit any offense defined in the subchapter. Based on a given course of conduct, a defendant may be convicted of the section 846 offense if a jury unanimously agrees that the Government has proven the elements of either attempt or conspiracy. But a defendant may not be punished for both attempt and conspiracy based on a single course of conduct merely because the elements of both offenses are present.

To be sure, there will be situations where multiple punishments under section 846 will be proper. Such instances will arise when a defendant “attempts or conspires” to violate the drug laws on two completely separate occasions. For example, a defendant who engages in a conspiracy to manufacture and sell amphetamines that ends, and who later separately attempts…

716 F.2d 701 14 Fed. R. Evid. Serv. 218 UNITED STATES of America, Plaintiff-Appellant, v. Donald Wesley TAYLOR, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellee, v. Steven Wayne PRESSLER, and Donald Wesley Taylor, Defendant-Appellants. Nos. 81-1769, 81-1770 and 81-1785. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 17, 1982. Decided Sept. 23, 1983. Gary V. Scales, Asst. U.S. Atty., Phoenix, Ariz., for plaintiff-appellant. George F. Klink, David M. Heller, McGroder, Pearlstein, Peppler & Tryon, Phoenix, Ariz., for defendant-appellee. On Appeal from the United States District Court for the District of Arizona. Before FLETCHER and BOOCHEVER, Circuit Judges, and KENYON, * District Judge. BOOCHEVER, Circuit Judge: 1 Donald Wesley Taylor and Steven Wayne Pressler were convicted of conspiracy to manufacture amphetamines and attempt to manufacture amphetamines. The Government and both defendants appeal. Taylor contends that the search of his residence was illegal because the information contained in the affidavit offered in support of the warrant failed to establish probable cause. Pressler contends that: (1) the trial court erred in denying…