United States v. Grady Quicksey, United States of America v. Mary Jane Quicksey, United States of America v. Alfred Dumeur

HAYNSWORTH, Chief Judge

(concurring and dissenting):

I 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.

It 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.

The 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.

The 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.

Under 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 *343 element 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.

Under 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.

I 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.

For these reasons, I respectfully dissent.

SUPPLEMENTAL OPINION

PER CURIAM:

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

The United States Attorney has consented to having Grady Quicksey and *344 Mary 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 .

The 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.

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

The clerk is directed to issue the mandate forthwith.

. Section 1403 proscribes the use of a communication facility in committing or attempting to commit, or in causing or facilitating the commission of an offense or a conspiracy to commit an offense under other statutes relating to the sale and importation of narcotics and their possession on certain vessels, aircraft and vehicles on international journeys. We do not have the benefit of the testimony in Brown, but it well may be that the jury reasonably could have found him guilty of the use of a telephone in an attempt to commit an offense under one of the enumerated statutes without having been a member of a conspiracy involving the sale or importation of narcotics, to which the other statutes charged in the indictment related. This must have been so or the court would not have said it could not tell what the jury found. Here, we can.

. Our holding in Davis has been frequently followed. United States v. Bates, 429 F.2d 557 (9th Cir.), cert. denied, 400 U.S. 831 , 91 S.Ct. 61 , 27 L.Ed.2d 61 , 400 U.S. 916 , 91 S.Ct. 175 , 27 L.Ed.2d 155 (1970); Tanksley v. United States, 321 F.2d 647 (8th Cir. 1963); United States v. Galgano, 281 F.2d 908 (2d Cir. 1960), cert. denied, 366 U.S. 960 , 81 S.Ct. 916 , 6 L.Ed.2d 1253 (1961).