UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
August 14, 1985
UNITED STATES OF AMERICA
FREDERICK BISSELL, APPELLANT
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MEMORANDUM OPINION OF THE COURT
GIBBONS, Circuit Judge :
Frederick Bissell appeals from a judgment of sentence imposed following a jury verdict finding him guilty of conspiracy to manufacture methamphetamine in violation of 21 U.S.C. § 846. He contends that he is entitled to a new trial (1) because the court's charge to the jury amounted to a directed verdict, and (2) because the court admitted evidence which should have been suppressed.
Bissell was present at a barn in a rural area when police officers arrived to execute arrest warrants for Annette Nester and George Allen. Bissell was subjected to a pat down in which a vial of chemicals was discovered in his pocket. The barn contained a laboratory capable of manufacturing methamphetamine and a formula sometimes used in unsuccessful attempts to manufacture that substance. Annette Nester testified that Bissell brought the laboratory equipment to the barn intending to manufacture methamphetamine.
The court charged that if the jury believed Nester's testimony to the effect that Bissell said he was going to manufacture methamphetamine and give her some of it in payment for use of the barn, that was an attempt and conspiracy "and your verdict should be guilty," but "[i]f you don't believe it, your verdict should be innocent." Bissell claims that this instruction improperly invaded the province of the jury. We disagree. The court may comment on the evidence by drawing attention to the testimony it deems important, so long as it makes clear that all matters of fact are ultimately to be determined by the jury. The charge as a whole made this clear; the jury was free to decide that Bissell lacked the requisite criminal intent.
Bissell also contends that the court mischaracterized Nester's testimony. We find no mischaracterization.
Finally Bissell contends that the instruction deprived the jury of the option of nullification by use of the word "should." The instruction as a whole left factual determinations to the jury, and the jury appears to have nullified one charge -- attempt -- while convicting on the conspiracy charge. we find no error.
Bissell contends that his motion to suppress the vial of chemicals found in his pocket should have been granted. The trial court, after a hearing, concluded that the pat down during which the vial was discovered was reasonable under Terry v. Ohio, 392 U.S. 1 (1968). The court's findings of fact are not clearly erroneous, and it applied the correct legal standards.
The judgment appealed from will, therefore, be affirmed.
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