United States v. Quicksey

¶7BUTZNER, Circuit Judge:

¶8Grady Quicksey, Mary Jane Quicksey, and Alfred Dumeur appeal from a judgment convicting them in Count I of a multicount indictment of conspiring to violate the Travel Act, 18 U.S.C. § 1952, and the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§ 841 and 846. With respect to this count, we shall withhold judgment for thirty days to allow the government to consider whether to consent to a re-sentencing. Should the government not consent, we shall vacate their convictions and remand for a new trial on Count I.

¶9I

¶10Title 21 U.S.C. § 841(a)(1) provides in part that it is unlawful to distribute narcotics or to possess these drugs with intent to distribute them. Section 846 punishes a conspiracy to violate § 841(a)(1) by a maximum sentence of fifteen years’ imprisonment or a maximum fine of $25,000, or both, for a first offender, and by more severe penalties for repeating offenders.

¶11Title 18 U.S.C. § 1952 forbids interstate travel with intent to' “promote, manage, establish, carry on, or facilitate” any business enterprise involving narcotics. A conspiracy to violate § 1952 is punishable under the general conspiracy statute, 18 U.S.C. § 371, by a maximum term of five years’ imprisonment or a maximum fine of $10,000,. or both.

¶12*340Count I of the indictment charged that the defendants conspired to violate both 18 U.S.C. § 1952 and 21 U.S.C. § 841(a)(1). In a bill of particulars the government indicated that Count I charged a violation of only the narcotics conspiracy statute, 21 U.S.C. § 846, but during trial the district attorney insisted that both this statute and 18 U.S.C. § 371 were applicable. The district court accepted this expanded interpretation of the indictment and denied the defendants’ motion to require the government to elect at the conclusion of its case whether it was proceeding under the general conspiracy statute, § 371, or the special conspiracy statute, § 846. Thus, the law of the case allowed the jury to convict for either a general conspiracy or a narcotics conspiracy, but it was not required to return a special verdict. The court instructed the jury that it could convict if it believed the defendants engaged in a conspiracy involving interstate travel in connection with the possession of narcotics.1

¶13The jury found all the defendants guilty under Count I without specifying whether they were guilty of a general conspiracy under § 371 or a special conspiracy under § 846. Before sentencing, the defendants argued that they could not be punished under a general verdict on Count I, or at most they were subject to a five-year sentence and a $10,000 fine under § 371. The court, however, rejected their contentions and imposed prison terms under § 846 in excess of five years and fines in excess of $10,000.

¶14On appeal the defendants reiterate that Count I must be dismissed because it charged them with violating two separate conspiracy statutes; alternatively, they contend that they cannot be sentenced under a general verdict or at the most they can be sentenced only under the general conspiracy statute, § 371, and not under the special narcotics conspiracy statute, § 846. The government contends that the evidence was sufficient to justify conviction for a conspiracy to violate the drug laws and that consequently the sentences authorized by § 846 were proper.

¶15We find no reason to dismiss Count I, for it was not duplicitous. The essential element of a conspiracy is an agreement, and it may embrace the commission of several substantive offenses. The reference to different conspiracy statutes does not necessarily charge more than one agreement, but it causes confusion by authorizing inconsistent penalties. See United States v. Amato, 367 F.Supp. 547, 549 (S.D.N.Y.1973); 8 Moore, Federal Practice H 8.03. It is clear that the evidence is sufficient to sustain a conviction for conspiracy under § 371 to violate the Travel Act, and it *341may well be, as the government suggests, that the evidence was sufficient to convict for a conspiracy to violate the Drug Act. But the court refused the defendants’ motion to require the government to elect which statute it was. relying on, and the jury was instructed that it could find guilt under Count I if it believed the defendants conspired to violate the Travel Act with intention of facilitating a business involving narcotics. Indeed, the court’s charge may have led the jury to believe this was the gravamen of Count I. In any event, in the absence of a special verdict, it is not possible to ascertain whether the jury intended to find the defendants guilty of conspiracy to violate the Travel Act or the Drug Act, or both Acts.

¶16Because of this ambiguity, we withhold our judgment as to Count I for thirty days. If the government within that time consents to a resentencing under § 371 by notifying this court, we shall affirm the convictions on that count and remand for sentencing. If, on the other hand, the government does not consent, we shall vacate the convictions and remand for a new trial.2See Brown v. United States, 112 U.S.App.D.C. 57, 299 F.2d 438 (1962).

¶17II

¶18Grady Quicksey, the only defendant charged with substantive offenses, contends that there was a fatal variance between the dates of the offenses alleged in the indictment and the dates disclosed by the evidence in Counts II, IV, V, and VI. He also complains of "a variance in Count IX which charged he violated the Travel Act in July 1972 by having an accomplice travel between New York and West Virginia to promote a narcotics business involving heroin. The principal witness to this transaction was the accomplice, who testified that the drug she transported for Quicksey was cocaine, not heroin. No other witness identified the drug.

¶19Rule 52(a) of the Federal Rules of Criminal Procedure requires us to disregard a variance which does not affect substantial rights of the accused. The test of substantiality is found in Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935), which requires:

“(1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.”

¶20Berger also teaches that if, upon examination of the entire record, the variance does not appear to have caused prejudice, the error must be regarded as harmless.

¶21The record discloses no prejudice. The transactions mentioned in Counts II, IV, V, and VI could be readily identified from other allegations without reference to the exact dates. Thus, Quicksey was fairly apprised of the charges. Furthermore, the record depicts the offenses in such unique detail that he is protected from subsequent prosecutions for the same crimes. The district judge committed no error by denying motions for a judgment of acquittal because of the variance in the dates. Cf. United States v. Covington, 411 F.2d 1087 (4th Cir. 1969).

¶22Similarly, we find no prejudice in the variance between the allegation of heroin and proof of cocaine in Count IX. *342Both drugs are narcotics. The gist of the charge in Count IX is engaging in interstate travel to promote a narcotics business. The type of narcotics is immaterial, unless Quicksey was misled and taken by surprise or unless he could not be protected against subsequent prosecution.

¶23Count IX fully informed Quicksey of the specific offense with which he was charged by allegations that named his accomplice and described the interstate travel as taking place between West Virginia and New York. The evidence disclosed that this was the only trip of this nature made by the accomplice, that heroin and cocaine in the form in which they were transported are similar in appearance, and that Quicksey did not even mention the name of the drug when he commissioned its transportation for his narcotics business.3 Thus, it is apparent that Quicksey was fully informed of the material details of the interstate travel for which he was charged, and that the trip was so unique that he could not be prosecuted again for the same offense. We conclude, therefore, that no prejudice has been shown and that no error was committed in denying his motion for a judgment of acquittal on Count IX because of the variance. Cf. United States v. Ramirez, 482 F.2d 807, 817 (2d Cir. 1973); United States v. Schrenzel, 462 F.2d 765, 769 (8th Cir. 1972).

¶24We find no cause for reversal in Grady Quicksey’s other assignments of error to the substantive counts.

¶25Entry of judgment is temporarily withheld.

¶30HAYNSWORTH, Chief Judge

¶31(concurring and dissenting):

¶32I concur in Part II of the court’s opinion but dissent from the conditional requirement of resentencing or, in the alternative, a remand for a new trial.

¶33It is unfortunate, of course, that the indictment contained any reference to the Travel Act and § 371. It is still more unfortunate that the District Attorney insisted upon, and the court granted, instructions based upon those statutes. We do not proceed in a vacuum, however, and it seems to me to be our duty to look at the evidence and the instructions actually given to determine whether the confusion engendered creates any substantial doubt that the jury found the defendants guilty under the Drug Act or whether the confusion otherwise disadvantaged the defendants. I think it did neither.

¶34The prosecution was based upon evidence that the defendants were engaged in a conspiracy to purchase at wholesale large quantities of heroin and to distribute it at retail in West Virginia. The proof included interstate transactions in connection with the purchase and importation of drugs into West Virginia, but there was no proof that the defendants were engaged in any other unlawful conspiracy which was not violative of the Drug Act but which was a violation of the Travel Act and § 371.

¶35The instructions to the jury, while including a requirement of interstate travel, made it perfectly clear and explicit that the purpose of the conspiracy was the importation and distribution of heroin. Indeed, the judge quoted that part of the indictment which charged that the purpose of the conspiracy, at least for a time, was accomplished by the actual importation and distribution of heroin.

¶36Under these circumstances, the jury could not have found the defendants guilty of a violation of the Travel Act or § 371 without having found the defendants guilty under § 846, the special narcotics conspiracy statute. No other conspiracy was charged or proven. The charge did require the jury to find not only a violation of § 846 but interstate travel as well, but that requirement simply increased the prosecution’s burden. It could not have prejudiced the defendants in their defense, nor did it inject an *343element of unfairness to them in the judge’s submission to the jury. The only party hurt by the confusing references to the extraneous statutes was the United States, and it asked for it and may not complain.

¶37Under these circumstances, Brown v. United States, 112 U.S.App.D.C. 57, 299 F.2d 438, is simply inapplicable. There the indictment charged a conspiracy to violate four separate statutes, one of which was punishable only under § 371 while the other three had their own conspiracy prohibitions with higher maximum penalties. There was a general submission to the jury and a general finding of guilt, and, from the court’s opinion, it appears entirely possible that the jury may have found the defendants guilty of a conspiracy to violate only 18 U.S.C.A. § 1403, the one punishable only under § 371.1 Here, on the other hand, as I have attempted to demonstrate, the jury simply could not have found that the defendants were innocent of a conspiracy to violate the Drug Act but guilty of a conspiracy to violate the Travel Act. The jury was not told of any differences in the penalties or varying consequences which might flow from a conviction of one offense rather than the other, so that there is no possibility that it made a distinction or undertook to exercise its discretion to convict of a lesser offense, though convinced beyond a reasonable doubt of the defendants’ guilt of a greater offense. Indeed, the jury was told the indictment charged only a single offense, a conspiracy to distribute heroin in which interstate travel was also involved. Since the jury must have found every element of the offense under the Drug Act to have brought in any verdict of guilty, there is no room for speculation that the jury may not have thought the defendants guilty of that offense.

¶38I would treat the references to the Travel Act and the general conspiracy section as mere surplusage. We did that in Davis v. United States, 4th Cir., 279 F.2d 576, where there was a miscitation of the general conspiracy statute in the indictment. We held that the miscitation did not preclude sentencing under •the harsher narcotic laws.2 Here there was more than a miscitation in the indictment, for the matter got into the judge’s instructions to the jury. When the charge, in light of the evidence, however, leaves no room for speculation that the jury brought in its verdict of guilty without having found the defendants guilty of a conspiracy under the Drug Act, I think the principle of Davis controls rather than the principle of Brown, which depends upon real uncertainty as to what the jury did find, an uncertainty not present here.

¶39For these reasons, I respectfully dissent.

¶40SUPPLEMENTAL OPINION

¶41PER CURIAM:

¶42This opinion supplements the opinion of the court filed July 25, 1975.

¶43The United States Attorney has consented to having Grady Quicksey and *344Mary Jane Quicksey resentenced. Accordingly, their sentences for conspiring to violate the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§ 841 and 846, are vacated. Their convictions of conspiring to violate the Travel Act, 18 U.S.C. §§ 1952 and 371, as charged in Count I of the indictment, are affirmed. The case is remanded for the resentencing of Grady Quicksey and Mary Jane Quicksey under 18 U.S.C. § 371.

¶44The United States Attorney has not consented to the resentencing of Alfred Dumeur. Accordingly, his conviction for conspiracy, as charged in Count I of the indictment, is vacated, and his case is remanded for a new trial.

¶45Judge Haynsworth specially concurs in this supplemental opinion without modifying the views that he expressed in his concurring and dissenting opinion filed July 25, 1975.

¶46The clerk is directed to issue the mandate forthwith.