965 F.

2d 887

UNITED STATES of America, Plaintiff-Appellee,

v.
Barry T. EAGAN, Defendant-Appellant.
No. 90-4158.

United States Court of Appeals,

Tenth Circuit.
May 28, 1992.

Paul M. Warner, U.S. Atty., Salt Lake City, Utah, for plaintiff-appellee.
Mary C. Corporon of Corporon & Williams, P.C., Salt Lake City, Utah,
for defendant-appellant.
Before MOORE, Circuit Judge, and ALDISERT* and McWILLIAMS,
Senior Circuit Judges.
McWILLIAMS, Senior Circuit Judge.

In a four-count superseding indictment, Barry T. Eagan was charged in the first

count with knowingly manufacturing on October 5, 1989,
methylenedioxyamphetamine (MDA), a Schedule I controlled substance, in
violation of 21 U.S.C. 841(a)(1) and 846. In a second count, Eagan was
charged with unlawfully manufacturing on October 5, 1989,
methylenedioxymethamphetamine (MDMA), a Schedule I controlled
substance, in violation of 21 U.S.C. 841(a)(1) and 846. In a third count,
Eagan was charged with knowingly distributing on October 5, 1989,
methylenedioxyamphetamine (MDA), a Schedule I controlled substance, in
violation of 21 U.S.C. 841(a)(1). In a fourth and last count, Eagan was
charged with using or carrying a firearm, a .22 caliber handgun, during and in
relation to the drug trafficking crime charged in count three of the superseding
indictment, in violation of 18 U.S.C. 924(c).

A jury convicted Eagan on counts one, two and three of the superseding
indictment, but acquitted him on count four. The district court sentenced Eagan
to incarceration for 36 months on each of the three counts on which he was

convicted, such sentences to be served concurrently, and not consecutively.

Eagan appeals the sentences thus imposed.
3

On appeal, Eagan posits four issues: (1) The district court erred in failing to
suppress his confession; (2) the guilty verdicts on the first three counts of the
superseding indictment are not supported by the evidence, and should be set
aside; (3) the district court erred in allowing certain government witnesses to
testify that the gun found on Eagan at the time of his arrest carried a "silencer";
and (4) the district court erred in failing to sentence Eagan in conformity with
the Sentencing Guidelines.

In view of the nature of the matters raised on appeal, the background facts need
not be recounted in great detail. It is sufficient to note that Eagan grew up in
Salt Lake City, Utah and later obtained a bachelor's degree in chemistry at
Princeton University. At the time of his arrest on October 5, 1989, Eagan was
employed as a chemist at a local commercial laboratory in Murray, Utah. Eagan
used his position at the laboratory to organize and conduct the manufacturing
of both MDA and MDMA, known on the street as "ecstasy." Initially, he
manufactured the drugs after working hours at his place of employment and
later on, with the help of unwitting co-workers, during business hours. In the
early development of his business enterprise Eagan ordered the necessary
precursors by using company invoices. Later on, he began to manufacture the
drugs from scratch. Eagan would then sell the MDA and MDMA in order to
support his own cocaine habit. The sale of MDA on October 5, 1989, was a
controlled sale to a police informant of 22 grams of MDA for $2,200.

The central issue in this case is Eagan's claim that as of the date of the offenses
with which he was charged, and convicted, he was legally insane because of a
severe mental disease or defect, and that the jury's verdicts finding him guilty
on the first three counts in the indictment should not be permitted to stand. We
do not agree with this argument.
18 U.S.C. 17 provides as follows:

6 17. Insanity defense

7

(a) Affirmative defense.--It is an affirmative defense to a prosecution under any

Federal statute that, at the time of the commission of the acts constituting the
offense, the defendant, as a result of a severe mental disease or defect, was
unable to appreciate the nature and quality or the wrongfulness of his acts.
Mental disease or defect does not otherwise constitute a defense.

(b) Burden of proof.--The defendant has the burden of proving the defense of
insanity by clear and convincing evidence.

At trial, Eagan called two medical doctors and a licensed clinical social worker
who testified at length about his mental condition. The prosecution called as its
witness a court-appointed doctor who had examined Eagan. We agree that
Eagan undoubtedly did have some mental problems. There was testimony that
on the date of the alleged offenses, and before, he was suffering from bipolar
disorder, also known as manic depressive disorder. A bipolar manic depressive
was described as one who experiences, on the one hand, periods of extreme
mania, and, on the other hand, periods of extreme depression. Such mood
swings generally occur cyclically, to varying degrees of severity, which may or
may not be accompanied by psychosis. All agreed that Eagan suffered from
bipolar disorder during the period he manufactured the drugs and both during
and after his arrest. Each described Eagan's erratic behavior, which included
hyperkinetic activity, pressured speech, suicidal crises, and complications
caused by substance abuse. Opinions as to the severity of Eagan's condition at
any particular time, however, varied. Drs. Culbertson and Draper described
Eagan's behavior along a spectrum of severity from outwardly normal to
severely impaired, and perhaps on occasion sufficiently removed from reality to
be considered psychotic. However, Dr. Moench, the court-appointed doctor,
described Eagan's bipolar disorder as moderate, and that it was "probably most
of the time less than that." Lay witnesses also testified, inter alia, that Eagan
seemed normal and performed his assigned duties at his place of employment
in a more than satisfactory manner, in fact receiving two job promotions to
supervisory positions within 18 months of employment.

10

All things considered, our study of the record convinces us that the issue of
whether Eagan was legally insane on the date of the alleged offenses was an
issue of fact to be resolved by the jury, and that the jury's verdict that Eagan
was guilty as charged on the first three counts of the indictment is supported by
substantial evidence. Under 18 U.S.C. 17(a), Eagan had the burden of proving
the defense of insanity by clear and convincing evidence. See United States v.
Crews, 781 F.2d 826, 830 n. 2 (10th Cir.1986). By its verdict the jury found, in
effect, that Eagan did not meet this burden. The record supports the jury's
verdict.

11

Prior to trial, Eagan moved to suppress the use at trial of incriminating

statements made by him to the arresting officers shortly after his arrest. As
ground for the motion, Eagan claimed that he was coerced into making the
confession, and he also asserted that at the time he made the statements he
lacked the requisite mental capacity to waive his Miranda rights.

12

At the hearing on the motion to suppress no medical doctors were called to

testify as to Eagan's mental condition, although Eagan himself did testify
thereto. In any event, the district court denied the motion to suppress, and
Eagan argues that this ruling constitutes reversible error.

13

On appeal, the only reason advanced for reversing the district court's order
refusing to suppress Eagan's statement to the authorities is his alleged lack of
mental capacity to waive his Miranda rights. As indicated, at the hearing on
Eagan's motion to suppress, there was no medical testimony concerning Eagan's
alleged diminished mental capacity. Eagan admitted that he was given Miranda
warnings, and that, when part way through the questioning he indicated he
wanted to see a lawyer, the interrogation was terminated. We perceive no error
in the district court's denial of Eagan's motion to suppress. There was little, or
nothing, of an evidentiary nature before the district court to indicate that Eagan
lacked the mental capacity to waive his Miranda rights. Further, our holding
that the jury's verdicts are supported by the evidence, i.e., Eagan did not sustain
his burden of proving insanity by clear and convincing evidence undercuts his
claim that he lacked the mental capacity to waive his Miranda rights.

14

Initially, Eagan was charged with using and carrying a handgun with a firearm
"silencer" in connection with a drug trafficking offense. The government later
moved to strike the reference to a "silencer." The superseding indictment made
no mention of any "silencer." Prior to trial, counsel for Eagan moved to
suppress any reference at trial to a "silencer," apparently on the basis that the
very word "silencer" had a sinister connotation and would necessarily prejudice
the jury against him. The motion was denied, and counsel asserts such denial
constitutes reversible error.

15

As indicated, Eagan suggests that he was severely prejudiced by the fact that
witnesses were allowed to testify that a loaded handgun found in a bag he was
carrying at the time of the controlled sale on October 5, 1989, bore a "silencer."
In that connection, both Eagan and the arresting officers apparently thought the
pipe was a "silencer." However, it was later discovered that what was believed
to be a "silencer" was not in fact a "silencer," and actually increased the noise
by .5 decibels! Be that as it may, the jury was advised of all this and was fully
aware that the pipe on the handgun was not a "silencer" and that it actually
increased the noise decibel. We perceive no prejudice to Eagan. As indicated,
the jury acquitted Eagan on the charge of "using and carrying" a gun, so the use
of the word "silencer" did not so prejudice the jury that it could not acquit
Eagan on the fourth count. Such being the case, it is hard to believe that the
jury convicted Eagan on the first three counts of the superseding indictment
because of reference by witnesses to the word "silencer." Indeed, at trial,

Eagan, in effect, admitted all the essential elements of the first three counts of
the indictment, and his only defense thereto was that of insanity.
16

As indicated, the district court sentenced Eagan to imprisonment for 36 months

on each of the three counts of which he was convicted by the jury, said
sentences to be served concurrently. Sentence was imposed under the
Sentencing Guidelines, and on appeal counsel asserts that the district court
misunderstood and incorrectly applied the guidelines.

17

On September 20 and 21, 1990, the district court held hearings on various
objections made by the parties to the presentence report filed by the Probation
Department. At the conclusion of the hearing on September 21, 1990, the
district court sentenced Eagan to imprisonment for 36 months on each of the
three counts of which he was convicted, said sentences to be served
concurrently.

18

On October 29, 1990, the district judge, apparently reconfirming his earlier
findings and conclusions, as well as reaffirming the sentences previously
imposed, entered the following written order:

19

This matter came before the court on September 20, 1990, on issues raised in
the Pre-Sentence Report, the Position of the United States with Respect to
Sentencing Factors, and the Position of the Defendant with Respect to
Sentencing Factors. No witnesses were called. The court announced its
determination as to approximate quantities at that time. This matter came before
the court on September 21, 1990, for imposition of sentence. Sentencing factors
were again examined and sentence was imposed. Thereafter, counsel for
defendant submitted a proposed form of order to which counsel for the United
States filed an objection. The court, after reconsideration of record, the
proposed order and objections, makes the following findings and order relative
thereto:

20

1. The Pre-Sentence Report proposes that 1,803.13 grams is the correct

quantity of controlled substance the court should approximate as the production
potential of the defendant's drug manufacturing laboratory.

21

2. The United States proposes that 6,000 grams is the correct quantity of
controlled substance the court should approximate as the production potential
of defendant's drug manufacturing laboratory. No witnesses were called.

22

3. Defendant asserts that the maximum quantity of the controlled substance

capable of being produced by the chemicals recovered from defendant's

laboratory site is 275 grams.
23

4. The court notes that 21 U.S.C. 841 and 846 prohibit certain acts regarding
the manufacturing, distribution, dispensation, or possession of a controlled
substance. The precursor chemicals found in defendant's possession are not
controlled substances under the statute, and possession of them is not unlawful.

24

5. Based upon these findings and the record before it, and the
acknowledgement and acquiescence of defendant, the court approximates the
quantity of the production potential of defendant's laboratory to be 275 grams of
the controlled substance, MDA, and further finds that this quantity of MDA
should be used for purposes of calculating defendant's base offense level.

25

6. The court finds that the remainder of the calculations, in terms of

enhancements and credits to the base offense level, contained in the PreSentence Report as modified are accurate.

26

7. The court finds that the criminal history category for defendant, as set forth
in the Pre-Sentence Report, is accurate.

27

8. Based upon the foregoing calculations, the court finds that defendant's
offense level is 16 (quantity), plus 2 (firearm), plus 2 (special skill), minus 2
(accepting responsibility), resulting in a total offense level of 18, and that his
criminal history category is "I", justifying a guideline range for defendant's
sentence of 27 to 33 months. However, because of defendant's special skill, the
large quantities of precursors in his possession and control, the laboratory
potential and the time period involved, and the other reasons set forth at time of
hearing, the court elects to depart upward to a sentence of 36 months.

28

In determining an individual's base offense level, under the Guidelines, the

quantity of controlled substances involved is an important factor. As we
understand the record, the district court accepted Eagan's calculation that only
275 grams of controlled substance were involved in his case, and, in so doing,
the district court rejected the government's contention that 6,000 grams of
controlled substance was in reality involved, and also rejected the
recommendation in the pre-sentence report that 1,803.13 grams of controlled
substance was involved.

29

The figure of 275 grams, recommended by defense counsel and accepted by the
court, included 22.76 grams of MDA which Eagan "sold" the undercover agent

on October 5, 1989 (count 3) and also included .56 grams of MDA found on
Eagan's person at the time of his arrest at the scene of the controlled sale. The
balance of the 275 gram figure, i.e., about 252 grams, "approximates the
quantity of the production potential of defendant's laboratory...." In other words,
if we read the record correctly, there was no MDA or MDMA in the finished
form found at the laboratory site, other than trace amounts detected in a waste
bottle. However, based on the quantity of precursors found at the laboratory
scene, it was estimated that such would produce approximately 252 grams of
the so-called "finished product."
30

As concerns his base offense level, Eagan makes no objection to the district
court's determination that his initial base offense level, based on the quantity of
drugs involved, i.e., 275 grams converted to 13.75 grams of heroin, is 16.
U.S.S.G. 2D1.1(c)(14), effective November 1, 1989. However, Eagan does
object to the increase of his base offense level by 2 levels (up to 18) for
possession of a firearm. He does not object to the district court's increasing his
base offense level by 2 levels (up to 20) for so-called special skills, nor does he
object to a 2-point reduction (down to 18) for his acceptance of responsibility.

31

As indicated, Eagan asserts that the district court erred in increasing his base
offense level by 2 levels for possessing a firearm. U.S.S.G. 2D1.1(b)(1) does
provide for an increase of a base offense level by 2 levels "[i]f a dangerous
weapon (including a firearm) was possessed during commission of the
offense...."

32

Eagan argues that since he was acquitted by the jury on count four of the
indictment charging him with "using and carrying" a weapon during a drug
trafficking offense, it was improper for the district court to increase his base
offense level by 2 levels for possessing a weapon during the commission of the
offense. We disagree. See United States v. Coleman, 947 F.2d 1424, 1428-29
(10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1590, 118 L.Ed.2d 307
(1992), where we held that an acquittal on a charge of using or carrying a
firearm during and in relation to a drug trafficking charge did not preclude
enhancement of a defendant's base offense level for possessing a firearm during
the commission of a drug offense. As indicated, there is no dispute that Eagan
had a loaded handgun in his bag when he sold MDA to a government
informant. Under the circumstances, the district court did not err in increasing
Eagan's base offense level by 2 levels for possessing a firearm during the
controlled sale to the undercover agent, and the district court's determination
that Eagan's final base offense level was 18 is correct.

33

A person with a base offense level of 18, which was the district court's

33

determination of Eagan's final base offense level, and a criminal history

category of I, which was Eagan's criminal history category, is subject to a
sentencing guideline range of 27 to 33 months. U.S.S.G. Sentencing Table,
effective November 1, 1989. However, as indicated, the district court
determined to make an upward departure from the guideline range and
sentenced Eagan to 36 months imprisonment. The district court indicated that it
made this upward departure because of Eagan's "special skills" and because of
the large quantities of precursors in his possession. Counsel argues that under
the circumstances neither of these matters justifies an upward departure for the
sentencing guideline range of 27 to 33 months imprisonment.

34

U.S.S.G. 3B1.3 does permit the enhancement of a defendant's base offense

level by 2 levels if "the defendant ... used a special skill, in a manner that
significantly facilitated the commission ... of the offense...." As indicated, the
district court in fixing Eagan's base offense level did add 2 levels because of
Eagan's "special skills," i.e., a chemistry degree from Princeton with resultant
special skills as a chemist. As above indicated, counsel does not object to the
enhancement of his base offense level by two levels because of Eagan's special
skills, but he does object to an upward departure from the sentencing range
based, again, on "special skills." We agree. 18 U.S.C. 3553(b) provides that a
district court shall impose a sentence within the sentencing guideline range
unless it finds that there exists aggravating or mitigating circumstances of a
kind, or to a degree, not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines. "Special skills" were factored into
the determination of Eagan's base offense level, and such may not be used a
"second time" to justify an upward departure. See United States v. Zamarripa,
905 F.2d 337, 341 (10th Cir.1990) (abuse of position of trust used to increase
base offense level could not also serve as basis for upward departure).

35

Counsel also argues that, under the circumstances, the second reason given for
an upward departure, i.e., possession of precursors, is improper, since the
district judge, in fixing the amount of controlled substances to be considered in
determining Eagan's base offense level, estimated the "potential" of Eagan's
laboratory by taking into consideration the amount of precursors then on hand.
Counsel suggests that in determining Eagan's base offense level, the district
court considered the quantity of precursors on hand in order to determine the
quantity of drugs involved, and that it would be improper thereafter to make an
upward departure from the sentencing guideline range based on the same
possession of precursors. Again we agree. An upward departure from the
applicable sentencing range on a factor that has already been considered in
establishing the guideline range is an "incorrect application" of the guidelines.
Williams v. United States, --- U.S. ----, 112 S.Ct. 1112, 117 L.Ed.2d 341

(1992).
36

Counsel also argues that the district court erred in refusing his request that there
be a downward departure from the sentencing guideline range based on Eagan's
diminished mental condition. U.S.S.G. 5K2.13 does state that, under certain
circumstances, "a lower sentence may be warranted" when the defendant is,
inter alia, "suffering from significantly reduced mental capacity." Couched in
discretionary rather than mandatory language, 5K2.13 permits the sentencing
judge to exercise discretion in departing downward for this reason. In this
connection, the district judge observed that despite Eagan's bipolar disorder he
felt that Eagan nonetheless fully understood what it was he was doing.

37

Where a district court has discretion to depart downward, and explicitly

declines to exercise that discretion, 18 U.S.C. 3742 does not grant appellate
jurisdiction to review that discretionary refusal to depart downward. See United
States v. Munoz, 946 F.2d 729 (10th Cir.1991); United States v. Spedalieri, 910
F.2d 707, 710-11 (10th Cir.1990).

38

Eagan's several convictions are affirmed. The case is remanded to vacate the
sentences imposed and for resentencing in accord with the views expressed
herein.

The Honorable Ruggero J. Aldisert, Senior Judge, U.S. Court of Appeals, Third
Circuit, sitting by designation