Petition — Quicksey v. United States

OS lh ee

7

IN THE

Supreme Court of the United States

GRADY QUICKSEY

Petitioner,

VS.

UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

William L. Lonesome

507 Dickinson Street

Charleston, West Virginia

Attorney for Petitioner

TABLE OF CONTENTS

Page

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Basis for Federal Jurisdiction in the

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Argument-Reasons for Granting the Writ ......... 6-12

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TABLE OF CITATIONS

Dutton v. Evans, 400 U.S. 74 (1970) ................ 6

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Sendejas v. U.S., 428, Fed. 2d 1040................. 6

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ue Wy Ga GE I, BM occ cdccocccceccs 10

U.S. vy Decavalcante, 440 Fed. 2d. 1264............. 7

U.S. v. Geaney, 417 Fed. 2d. 1116 ................ 6-7

U.S. v. Maniredi, 488 Fed. 2d 588................. 10

Se Oe ee sc ee esesbaceaes 6

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U.S. Vo Meneame, STS FOG. BB. S7b. ccc ccccccccccess 7

U.S. v. Soames, 462 Fed. 26. 1982... cc cccccccvccces 6

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No.

IN THE

Supreme Court of the United States

GRADY QUICKSEY

Petitioner,

vs.

UNITED STATES OF AMERICA

To the Honorable Chief Justice and Associate Justices of

the Supreme Court of the United States

Your petitioner, Grady Quicksey, prays that a writ of

| certiorari issue to review the judgment of the United

States Court of Appeals for the Fourth Circuit, entered

in this cause on July 25, 1975.

OPINION BELOW

The opinion of the Court of Appeals is reported in Fed.

| (2nd) . A copy of the opinion and judgment of

the Court of Appeals is appended as Exhibit I.

JURISDICTION

Jurisdiction to review by writ of certiorari the judgment

of said Court of Appeals entered July 25, 1975, is invoked

under the provisions of 28 U.S.C.A., Section 1254.

BASIS FOR FEDERAL JURISDICTION IN THE

UNITED STATES DISTRICT COURT

The basis for Federal jurisdiction in the United States

District Court was by virtue of an indictment returned

against Petitioner by the Grand Jury charging Petitioner

with violations of Section 846, Title 21 of the United

States Code; Section 1952, Title 18, of the United States

Code; Section 841 (a) (1), Title 21 of the United States

Code; Section 812, Title 21 of the United States Code and

Section 848, Title 21, of the United States Code.

STATEMENT OF THE CASE

Petitioner was indicted in a ten count indictment,

however, Count 3 was later dismissed. The first count

charged him, along with three others, with violation of

Title 18, Section 1952; Title 21, Section 812; Title 21,

Section 841 and Title 21, Section 846 in that they con-

spired and traveled through interstate in the heroin selling

business.

The rer.aining eight counts charge Petitioner alone.

Count two charged Petitioner with a violation of Title 21,

Section 841, to-wit: interstate travel with intent to obtain

and promote an unlawful narcotics business enterprise

and knowingly performing such acts to facilitate the

carrying on said unlawful activity; in violation of Title 18,

Section 1952, United States Code. Count three was dis-

missed by the trial judge. Counts 4, 5, and 6 charge

Petitioner with violation of Title 21, Section 841 (a) (1),

United States Code by knowingly and unlawfully pos-

sessing and distributing heroin. Counts 7, 8 and 9 charge

the Petitioner with violating Title 21, Section 841 and Title

18, Section 1952, United States Code, by causing travel in

interstate commerce with intent to promote and carry on

an unlawful narcotics business and thereafter did unlaw-

fully and knowingly perform such acts facilitating the

carrying on of said unlawful activity. Count 10 charges

Petitioner with violation of Title 21, Section 848, United

States Code, by carrying on a illegal narcotics enterprise

and from which continuing series of violations, the

Petitioner obtained substantial income and resources.

On Tuesday, February 5, 1974, Petitioner was adjudged

guilty on all nine counts (count 3 dismissed), and was

sentenced on the first count to fifteen years imprisonment,

with a special parole term of three years, in addition to

such term of imprisonment, and fined the sum of twenty-

five thousand dollars ($25,000), to five years on the second

count and fined ten thousand dollars ($10,000), which

sentence runs concurrently with the fifteen year sentence

under the first count, to fifteen years, on the fourth count,

with a special parole of three years in addition to such

term of imprisonment and fined twenty-five thousand

dollars ($25,000), said sentence to run consecutively to the

sentence imposed under count one, to fifteen years on the

fifth count, with a special. parole term of three years in

addition to such term of imprisonment, and fined twenty-

five thousand dollars ($25,000), said sentence to run

concurrently with the sentence imposed under count four,

to fifteen years on the sixth count, with a special parole

term of three years in addition to such term of imprison-

ment, fined twenty-five thousand dollars ($25,000), said

sentence to run concurrently with the sentence imposed

under count one, to five years on the seventh count, fined

ten thousand dollars ($10,000) under the provisions of

Section 1952 of Title 18 of the United States Code, said

sentence to run concurrently with the sentence imposed

under count one, to five years on the eighth count under

the provisions of Section 1952 of Title 18 of the United

States Code, fined ten thousand dollars ($10,000), said

sentence to run concurrently with the sentence imposed

under count one, to five years on the ninth count, fined

ten thousand dollars ($10,000) under the provisions of

Section 1952 of Title 18 of the United States Code. said

sentence to run concurrently with the sentence imposed

under count one, to thirty years on count ten, fined the

sum of one hundred thousand dollars ($100,000) with all

heretofore imposed sentences to run concurrently with this

sentence, with a special provision that Section 4202, Title

18, (parole) not apply. Petitioner thereafter filed a Notice

of Appeal to the Circuit Court. The Petitioner is presently

incarcerated in the Federal Penitentiary in Springfield,

Missouri.

The evidence taken in the trial of this case, over the

objection of the defendant, was largely hearsay. It will be

the contention of the Petitioner that such hearsay

admitted into evidence was improper, prejudicial,

inflammatory and inadmissible. Petitioner concedes that

while hearsay based on the co-conspirators exception to

the hearsay rule is admissible, the conspiracy itself and

Petitioners participation in it must prima facie be shown.

This, Petitioner contends was not done prior to the ad-

missibility of the hearsay. Hearsay was initially admitted

to show a conspiracy which showing would make hearsay

admissible. As is evident, this was circuitous, allowing

hearsay by its own bootstraps, to bring itself to the level of

admissible evidence. Here the Court instructed the jury

that evidence that would otherwise be hearsay that was

made by a co-conspirator may be considered by the jury

only after the jury have first found that there was

conspiracy beyond a reasonable doubt. Petitioner contends

the determination of the existence of a conspiracy is a

matter of law and not a matter of fact, and as such, it was

for the Court to determine the existence of a conspiracy

and not the jury.

A Government witness, Julia Jean Monroe, who is also a

confessed drug addict, testifying in regard to count nine,

emphatically denied the subject in question was heroin.

Her testimony was based on actual experience, having

used some of the same substance in question. However,

the court instructed the jury that it (jury) could infer that

the substance in question was heroin. That instruction

placed the burden of deciding whether the substance in

question was or was not heroin, squarely on the shoulders

of the lay jury, in the face of conflicting testimony from

the Governments only witness as to count nine.

The Government claimed on count ten that the

Petitioner violated Title 21, Sections 841 (a), 843 (b) and

846, United States Code, which violations were a part of a

continuing series of violations and from which the

appellant obtained substantial income and resources.

However, no testimony was offered by the Government,

(appellant did not testify), as to the total amounts of

money appellant received from the alleged violation nor

was any evidence offered as to appellant's yearly gross

adjusted income. The Government did offer speculative

testimony as to money amounts involved in isolated overt

acts, but nothing the Government offered could prove, nor

could the jury infer from such testimony so offered by the

Government, that Petitioner received substantial income

or resources from said violations. Therefore, the very heart

of the statute under which count ten is based, ie “‘from

which such person obtains substantial income or

resources,” was never put in issue by the Government and

consequently, no evidence was introduced as to, 1. Petiti-

tioner’s gross adjusted .income and, 2. the income

Petitioner derived from the alleged violation of Title 21,

Section 848 of the United States Code. Consequently,

Petitioner assigns error to his conviction on Count ten

because of insufficient evidence.

QUESTIONS PRESENTED

FIRST: DID THE COURT ERR IN ADMITTING

HEARSAY PRIOR TO HIS DETERMINATION,

BASED ON PROOF ALIUNDE, THAT A CONSPIRACY

EXISTED AND APPELLANT WAS PART OF THAT

CONSPIRACY?

SECOND: DID THE COURT ERR IN REFUSING

PETITIONER’S MOTION TO DISMISS COUNT NINE

BASED ON THE GOVERNMENTS FAILURE TO

PROVE A MATERIAL ELEMENT?

THIRD: DID THE COURT ERR BY REFUSING

PETITIONERS MOTION TO DISMISS COUNT TEN,

BASED ON INSUFFICIENCY OF EVIDENCE?

STATUTES INVOLVED

Involved herein are Title 18, 371; Title 21, Section 812:

Title 21, Section 841 and Title 21, Section 848.

ARGUMENT

REASONS FOR GRANTING THE WRIT

FIRST: DID THE COURT ERR IN ADMITTING

HEARSAY PRIOR TO HIS DETERMINATION?

Evidence admitted at the trial on all counts was for the

most part hearsay; while appellant concedes that evidence

amounting to hearsay relating to the furtherance of the

conspiracy and made by a co-conspirator, may be

admissible, Dutton v Evans, 400 U.S. 74 (1970), appellant

contends that the existence of a conspiracy and his

participation in it must be established before any evidence

of conversation of co-conspirators outside appellants

presence is admissible against him, U.S. v Plata, 361 F2d

958 (7th Cir., 1966), and evidence that a conspiracy

existed, must be restricted to proof aliunde. U.S. v

Spanas, 462 F2d, 1012 (9th Cir. 1972); Sendejas v U.S..

428 F3d 1040 (9th Cir. 1970); U.S. v Geaney, 417 F2d

1116 (2nd Cir., 1969); U.S. v Nall, 437 2d 1177 (2nd Cir.,

1971). While the appellant concedes that independent

evidence linking declarant to appellant need not be so

clear and convincing as to compel, in absence of con-

tradiction a finding of fact sought to be proved, U.S. v

Ragland, 375 f2d 471 (2nd Cir., 1967), appellant does

contend that here the independent evidence offered to the

existence of a conspiracy is remarkably insufficient to

establish a prima facie conspiracy in fact, hence hearsay

statements which are admissible after the conspiracy has,

by proof aliunde, been shown were here improperly

admitted.

In assessing evidence of existence of conspiracy and

each defendant's connection with it, hearsay statements of

other alleged co-conspirators must be excluded from

consideration; only when the trial court finds that there is

enough evidence of conspiracy to connect a particular

person with it may hearsay statement made by co-

conspirators be used against him. U.S. v DeCavalcante,

440 f2d 1264 (3rd Cir., 1971). But these declarations are

admissible only where there is proof aliunde that the

conspiracy exists and appellant is connected with the

conspiracy. Otherwise, hearsay would lift itself by its own

boot straps to the level of competent evidence. Glasser v

U.S.. 315 (U.S. 60, 1942). The existence of the conspiracy

charged cannot be established against an alleged

conspirator by evidence of the acts or declarations of his

alleged co-conspirator done or made in his absence.

Thomas v U.S. 57 f2d 1039 (10th Cir., 1932).

Courts have generally agreed that the trial judge must

believe that a conspiracy has been proven before hearsay

declarations of co-conspirators are submitted for the

juror’s consideration. The court in U.S. » Geaney, 417 f2d

1116, (2nd Cir. 1969), held that standard to be ‘‘whether

the proof other than the hearsay declaration afforded

reasonable grounds to find that the appellant participated

in a common venture with the declarant.” Here, it is

contended that the trial court made no such determination

prior to allowing the hearsay evidence in, nor did he,

except in a few instances, allow such hearsay evidence in

“subject ‘to connection.” Hence, appellant was severely

prejudiced by the ‘flooding’ of inadmissible hearsay

evidence prior to the trial judge’s determination, based on

proof aliunde, that reasonable grounds existed for the

belief of a conspiracy, and the belief that Petitioner was a

part of that conspiracy.

Several times during this trial, the trial court gave

cautionary instructions to the jury as to the admissibility

of hearsay evidence. But here it is obvious that hearsay

evidence was the majority of the evidence allowed in, and

as the court in Geaney, supra, stated, “when hearsay

evidence is so large a portion of the proof as to render a

cautionary instruction of doubtful utility, the trial court

upon appellant’s request, must declare a mistrial.

On September 30, 1975, in the United States District

Court for the Southern District of West Virginia, the

United States Attorney presented a motion to dismiss

Count One against the Defendant, Grady Quicksey. The

reasons cited for the motion were the critical medical

conditions of the Defendant and the prohibitial cost in

transporting the Defendant to Charleston, West Virginia,

from Springfield, Missouri.

It is contended that the above reasons lack merit, the

Defendants state of health is the same as it was when he

was forced to stand trial in January, 1974, over his ob-

jections and those of his personal physicians. Also, the

cost of Two Thousand Dollars ($2,000.00) as mentioned by

the United States Attorney, is not a great price at all when

weighed against the rights afforded one in a criminal trial

under the American system of justice.

Defendant has contended all the while, that the con-

spiracy charge under Count One allowed inadmissible

hearsay evidence to be admitted at the trial, which in-

admissible evidence contributed greatly to Defendant's

being found guilty on the remaining eight counts.

Count One was the heart of the prosecutor's case, and

now after placing such heavy emphasis on Count One, the

Government now wishes to dismiss this very charge.

However, it should be noted that this motion to dismiss

a

comes only after the Government successfully prosecuted

the other eight counts.

Seemingly, the question is “‘what is to prevent tire Gov-

ernment from prosecuting under a conspiracy statute, ob-

taining convictions on other related counts, and later

dismissing the conspiracy charge, which charge allowed

inadmissible evidence to be admitted at trial and without

which charge, the evidence would have been inadmissible?”

The only possible answer is the integrity of the Govern-

ment prosecutor; but in this day and time, American

citizens need more protection from spurrious criminal

charges than the integrity of ambituous men in Govern-

ment.

Therefore, Defendant prays that if this motion to dismiss

is granted, then the remaining eight counts should also be

dismissed.

SECOND: DID THE COURT ERR IN REFUSING

PETITIONERS MOTION TO DISMISS COUNT NINE

BASED ON THE GOVERNMENT’S FAILURE TO

PROVE A MATERIAL ELEMENT?

The court in his charge to the jury said that the identity

of heroin may be proved circumstantially and it need not

be proven directly. However, Julia Monroe, a confessed

drug addict, testifying for the government stated em-

phatically several times that it was not heroin but cocaine

that she bought back. And the fact that Mrs. Monroe

tried some of the same substance in question and based

on experience, described the difference in effects of heroin

and cocaine, should have left no room for the jury to infer

that the substance was heroin rather than cocaine as Mrs.

Monroe testified. Therefore, there was no way for the jury

to infer from the circumstances that the substance in

question was heroin. Also, the trend toward recognizing

experts based on experience as well as education would

make Mrs. Monroe’s statement that the substance was

cocaine and not heroin, expert testimony.

As Mrs. Monroe’s testimony is the only evidence offered

10

on Count 9 (transporting Heroin interstate), which testi-

mony proved the substance in question to be different

than that alleged in the indictment, the appellant respect-

fully prays that the conviction on count 9 be reversed, for

failure to prove a material element of the offense.

Though the sentence under Count 9, of 5 years, is to run

concurrently with Count 1, and issues concerning ap-

pellant’s conviction of a count where the sentence is to run

concurrently with that of a valid conviction have been

found by the Courts to be moot, U.S. v Tager, 479 f2d 120

(1973), U.S. v Crouch, C.A. Cal. 1971, 442 f2d 427, here

the appellant prays for reversal because of a separate

imposition of a Ten Thousand Dollar ($10,000) fine.

THIRD: DID THE COURT ERR BY REFUSING

PETITIONER’S MOTION TO DISMiSS COUNT TEN,

BASED ON INSUFFICIENCY OF EVIDENCE.

Appellant was convicted on count ten under Title 21,

Section 848, continuing criminal enterprise. One of the

essential elements of Title 21, Section 848, is that the

activity must be one from which the appellant secures a

substantial amount of income or resources. The Legisla-

tive history of Pl. 91-513, on which count 10 is based,

defines a substantial source of income as a source of income

which for any period of one year or more exceeds the

minimum wage, determined on the basis of a forty-hour

week and fifty-week year...... , and which for the same

period exceeds fifty percent of the appellants declared

adjusted gross income under Section 62 of The Internal

Revenue Code of 1959. (Adjusted gross equals gross

income minus deductions.)

Title 21, Section 848 (b) defines continuing criminal

enterprise and subsection (b) (2) (B) has in the conjunctive

“from which such person obtains substantial income or

resources.’’ Cases interpreting this section are practically

non-existent. However, in U.S. v Manfredi, 488 f2d (2nd

Cir. 1973), the defendant Manfredi was convicted on Title

ee |

11

21. Section 848, and on appeal the conviction was

affirmed. But there, evidence was introduced to show the

defendant a drug dealer, received an estimated one million

dollars from one of several narcotic distributors within a

seventeen month period. That evidence in and of itself was

enough to prove necessary element in Title 21, Section 848,

(b) (2) (B), ‘‘substantial income or resources.”” But in this

case, the government offered no such evidence and did not

show or prove that appellant's acts fell within the purview

of Title 21, Section 848. Evidence must be offered on each

separate element of a crime and in this case, this

important element was totally ignored by the government.

The conviction must not be allowed to stand when the

evidence on which the conviction is based is insufficient.

It is impossible to determine why the government did

not put into evidence appellant’s previous years adjusted

gross income. With the tremendous weight and power of

the government it would have been a simple matter to

subpoena both appellant’s tax records and his accountant.

But instead, the government chose to ignore his previous

years adjusted gross income. But Title 21, Section 848, on

which count ten is based, states that the substantial

amount of income or resource must exceed fifty per cent

of the appellant's adjusted gross income. Appellant

concedes that some money amounts were put in evidence

but appellant contends that it is logically impossible to

détermine whether these sums mentioned exceeded fifty

per cent of his gross adjusted income, when no one knew

his adjusted gross income. In any event, even if the jury

did so infer, the conviction on count ten must be reversed

because there was no logical base for so inferring.

While a reversal on the count will not numerically

reduce the sentence, it will reduce the fine appellant is to

pay and it will remove the prohibition of the application of

Title 18, Section 4202, thereby making appellant eligible

for parole.

Therefore, the appellant prays the conviction on count

12

ten be overturned because of the government’s failure to

submit evidence as to an important element of the crime

from which the jury could logically infer guilt on that

particular count.

CONCLUSION

Petitioner was convicted by a jury on inadmissible

hearsay testimony of unindicted co-conspirators. This

testimony was allowed in evidence prior to the court’s

determination, based on proof aliunde, that a conspiracy

in fact existed and of Petitioner being a part of that

conspiracy. This ‘‘opening of the flood gates’’ allowed

inadmissible testimony which eventully resulted in

Petitioners conviction on the counts. Petitioner was not

convicted on admissible evidence. Petitioner therefore

prays that this Petition for a Writ of Certiorari be granted.

By William L. Lonesome

Attorney for Petitioner

507 Dickinson Street

Charleston, West Virginia

13

APPENDIX I

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 74-1559

United States of America, Appellee,

-y-

Grady Quicksey, Appellant.

No. 74-1560

United States of America, Appellee,

Mary initia Appellant,

No. 74-1561

United States of America Appellee,

Alfred Sena Appellant.

Appeal from the United States District Court for the

Southern District of West Virginia, at Bluefield. K. K.

Hall, District Judge.

Argued January 10, 1975. Decided July 25, 1975

Before HAYNSWORTH, Chief Judge, and BUTZNER

and WIDENER, Circuit Judges.

14

William L. Lonesome for Grady Quicksey; Chester Lovett

(James T. Cooper on brief) for Mary Jane Quicksey;

Hertbert H. Henderson [Court-appointed counsel] for

Alfred Dumeur; John A. Field, III, United States Attorney

for the Southern District of West Virginia (Robert B. King,

Ray L. Hampton, II, and Frank E. Jolliffe, Assistant

United States Attorneys, on brief) for Appellee.

BUTZNER, Circuit Judge:

Grady Quicksey, Mary Jane Quickesy, 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 gover-

ment to consider whether to consent to a resentencing.

Should the government not consent, we shall vacate their

convictions and remand for a new trial on Count I.

I

Title 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.

Title 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.

Count I of the indictment charged that the defendants

oo ee ee ee ee ae |

15

conspired to violate both 18 U.S.C. § 1952 and 21 U.S.C.

§ 841 (a) (1). In a bill of particulars the government in-

dicated 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 defendant’s motion to require the govern-

ment 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.’

The jury found all the defendants guilty under Count I

without specifying whether they were guilty of a general

‘Instructing the jury, the district court explained the charge of conspiracy as follows:

“Count one of the indictment charges [that] all four of the defendants . . . engaged in

an unlawful activity — a conspiracy involving interstate travel in connection with the

possession and distribution of Narcotic Drug Controlled Substance, in this case heroin.

The indictment in part contains the following language:

“It was a part of said conspiracy that the said defendants and co-conspirators would

and did unlawfully, knowingly, and intentionally distribute and possess with the intent

to distribute . . . heroin . . . in violation of Title 21, United States Code, Sections 812

and 841 (a) (1).

“It was further a part of said conspiracy — and | am still reading from the indict-

ment — that the said defendants and co-conspirators would and did, intentionally and

knowingly, travel and cause travel between the Southern District of West Virginia and

New York City, and elsewhere beyond the State of West Virginia, with intent to

promote, manage, establish, and carry on and to facilitate the promotion, management,

establishment, and carrying on of an unlawful activity, said unlawful activity being a

business enterprise involving . . . heroin; in violation of Title 18, United States Code,

Section 1952.”

Later in the charge, the district court said:

“If the jury should find beyond a reasonable doubt from the evidence in the case that

existence of the conspiracy charged in the indictment has been proved, and that during

the existence of the conspiracy one of the overt acts alleged was knowingly done by one

of the conspirators in furtherance of some object or purpose of the conspiracy, then

proof of the conspiracy offense charged is complete.”

16

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.

On 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 con-

viction for a conspiracy to violate the drug laws and that

consequently the sentences authorized by § 846 were

proper.

We 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 agree-

ment, 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 4 8.03.

It is clear that the evidence is sufficient to sustain a con-

viction for conspiracy under § 371 to violate the Travel

Act, and it may 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 con-

spired to violate the Travel Act with intention of facili-

tating a business involving nacotics. 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

17

jury intended to find the defendants guilty of conspiracy to

violate the Travel Act or the Drug Act, or both Acts.

Because 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 their convictions on that count

and remand for sentencing. If, on the other hand, the

government does not consent, we shall vacate their con-

victions and remand for a new trial.’ See Brown v. United

States, 299 F.2d 438 (D.C. Cir. 1962).

Grady 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.

Rule 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 substaniality

is found in Berger v. United States, 29S U.S. 78, 82 (1935),

which requires:

‘“(1) that the accused shall be definitely in-

formed 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.”

*In view of our ruling, we need not decide Dumeur's protest that the government's

failure to comply with 21 U.S.C. § 851 precluded sentencing him as a second offender

under 21 U.S.C. § 841 (b) (1) (A). See United States v. Noland, 49S F.2d 529 (Sth Cir.

1974). If Dumeur's conviction for conspiring to violate the Travel Act is not disturbed

and he is sentenced under the general conspiracy statute, 18 U.S.C. § 371, he cannot be

subjected to the enhanced penalty provided by 21 U.S.C. § 841 (b) (1) (A) as a second

offender. On the other hand, if the government elects to retry him for violating the

narcotics conspiracy statute, 21 U.S.C. § 846, the information required by 21 U.S.C. §

8S1 has already been timely filed.

18

Berger 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.

The 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 com-

mitted 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).

Similarly, we find no prejudice in the variance between

the allegation of heroin and proof of cocaine in Count IX.

Both 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.

Count 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.’ 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

*The accomplice decided that the drug was cocaine after taking some of it. No other

evidence identified it.

— Fe ee ee a

=

|

19

F.2d 807, 817 (2d Cir. 1973); United States v. Schrenzel,

462 F.2d 765, 769 (8th Cir. 1972).

We find no cause for reversal in Grady Quicksey’s other

assignments of error to be substantive counts.

Entry of judgment is temporarily withheld.

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 con-

tained 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 con-

fusion engendered creates any substantial doubt that the

jury found the defendants guilty under the Drug Act or

whether the confusion otherwise disadvantaged the de-

fendants. 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 im-

portation 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 require-

ment of interstate travel, made it perfectly clear and

explicit that the purpose of the conspiracy was the im-

portation 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 ac-

20

complished 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 element of unfairness to them in the judge’s

submission to the jury. The only party hurt by the con-

fusing 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,

D.C. Cir., 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 pro-

hibitions 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.' 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 con-

spiracy to violate the Travel Act. The jury was not told of

any differences in the penalties or varying consequences

‘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 im-

portation 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.

21

which might flow from a conviction of one offense rather

than the other, so that there is no possiblility 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.? 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.

*Our holding in Davis has been frequently followed. United States v. Bates, 429

F.2d 557 (9th Cir.), cert. denied, 400 U.S. 831, 916 (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 (1961).

APPENDIX II

Title 18, Section 371. Conspiracy to commit offense or

to defraud United States

22

If two or more persons conspire either to commit any

offense against the United States, or to defraud the United

States, or any agency thereof in any manner or for any

purpose, and one or more of such persons do any act to

effect the object of the conspiracy, each shall be fined not

more than $10,000 or imprisoned not more than five years,

or both.

If, however, the offense, the commission of which is the

object of the conspiracy, is a misdemeanor only, the

punishment for such conspiracy shall not exceed the

maximum punishment provided for such misdemeanor.

June 25, 1948, c.645, 62 Stat. 701.

Title 21, Section 812. Schedules of controlled substance-

Establishment

(a) There are established five schedules of controlled

substances, to be known as schedules I, II, III, IV and V.

Such schedules shall initially consist of the substances

listed in this section. The schedules established by this

section shall be updated and republished on a semi annual

basis during the two-year period beginning one year after

the date of enactment of this sub-chapter and shall be

updated and republished on an annual basis thereafter.

(b) Except where control is required by United States

obligations under an international treaty, convention, or

protocol, in effect on the effective date of this part, and

except in the case of an immediate precursor, a drug or

other substance may not be placed in any schedule unless

the findings required for such schedule are made with

respect to such drug or other substance. The findings

required for each of the schedules are as follows:

(1) Schedule I. —

(A) The drug or other substance has a high po-

tential for abuse.

(B) The drug or other substance has no currently

accepted medical use in treatment in the United

States.

(2)

(3)

(4)

(S)

23

(C) There is a lack of accepted safety for use of

the drug or other substance under medical

supervision.

Schedule II. —

(A) The drug or other substance has a high

potential for abuse.

(B) The drug or other substance has a currently

accepted medical use in treatment in the United

States or a currently accepted medical use with

severe restrictions.

(C) Abuse of the drug or other substances may

lead to severe psychological or physical de-

pendence.

Schedule III. —

(A) The drug or other substance has a potential

for abuse less than the drugs or other substances

in schedules I and II.

(B) The drug or other substance has a currently

accepted medical use in treatment in the United

States.

(C) Abuse of the drug or other substance may

lead to moderate or low physical dependence or

high psychological dependence.

Schedule IV. —

(A) The drug or other substance has a low po-

tential for abuse relative to the drugs or other

substances in schedule III.

(B) The drug or other substance has a currently

accepted medical use in treatment in the United

States.

(C) Abuse of the drug or other substance may

lead to limited physical dependence or psy-

chological dependence relative to the drugs or

other substances in schedule III.

Schedule V. —

(A) The drug or other substance has a low po-

tential for abuse relative to the drugs or other

substances in schedule IV.

(B) The drug or other substance has a currently

24

accepted medical use in treatment in the United

States.

(C) The abuse of the drug or other substane

may lead to limited physical dependence or psy-

chological dependence relative to the drugs or

other substances in schedule IV.

(c) Schedules I, Il, Il], IV and V shall, unless and

until amended pursuant to section 811 of this title consist

of the following drugs or other substances, by whatever

official name, common or usual name, chemical name, or

brand name designated:

SCHEDULE |

(a) Unless specifically excepted or unless listed in

another schedule, any of the following opiates, including

their isomers, esters, ethers, salts, and salts of isomers,

esters and ethers, whenever the existence of such isomers,

esters, ethers, and salts is possible within the specific

chemical designation:

(1) Acetylmethadol.

(2) Allylprodine.

(3) Alphacetylmathadol.

(4) Aliphameprodine.

(S) Alphamethadol.

(6) Benzethidine.

(7) Betacetylmethadol.

(8) Betameprodine.

(9) Betamethadol.

(10) Betaprodine.

(11) Clonitazene.

(12) Dextromoramide.

(13) Dextrorphan.

(14) Diampromide.

(15) Diethylthiambutene.

(16) Dimenoxadol.

(17) Dimepheptanol.

(18) Dimethylthiambutene.

(19) Dioxaphetyl butyrate.

(20) Dipipanone.

(21) Ethylmethylthiam butene.

(22) Etonitazene.

vas nm ee ma aaa ae

25

(23) Etoxeridine.

(24) Furethidine.

(25) Hydroxypethidine.

(26) Ketobemidone.

(27) Levomoramide.

(28) Levophenacylmorphan.

(29) Morpheridine.

(30) Noracymethadol

(31) Norlevorphanol.

(32) Normethadone.

(33) Norpipanone.

(34) Phenadoxone.

(35) Phenampromide.

(36) Phenomorphan.

(37) Phenoperidine.

(38) Piritramide.

(39) Proheptazine.

(40) Properidine.

(41) Racemoramide.

(42) Trimeperidine.

(b) Unless specifically excepted or unless listed in

another schedule, any of the following opium derivatives,

their salts, isomers, and salts of isomers whenever the

existence of such salts, isomers, and salts of isomers is

possible within the specific chemical designation:

(1) Acetorphine.

(2) Acetyldihydrocodeine.

(3) Benzylmorphine.

(4) Codeine methylbromide.

(S) Codeine-N-Oxide.

(6) Cyprenorphine.

(7) Desomorphine.

(8) Etorphine.

(9) Dihydromorphine.

(10) Heroin.

(11) Hydromorphinol.

(12) Methyldesorphine.

(13) Methylhydromorphine.

(14) Morphine methylbromide.

(15) Morphine methylsulfonate.

(16) Morphine-N-Oxide.

(17) Myrophine.

(18) Nicocodeine.

26

(19) Nicomorphine.

(20) Normorphine.

(21) Pholcodine.

(22) Thebacon.

(c) Unless specifically excepted or unless listed in

another schedule, any material, compound, mixture, or

preparation, which contains any quantity of the following

hallucinogenic substances, or which contains any of their

salts, isomers, and salts of isomers whenever the existence

of such salts, isomers, and salts of isomers is possible

within the specific chemical designation:

(1) 3,4-methylenedioxy amphetamine.

(2) 5S-methoxy-3, 4-methylenedioxy amphetamine.

(3) 3,4, 5-trimethoxy amphetamine.

(4) Bufotenine.

(S) Diethyltryptamine.

(6) Dimethyltryptamine.

(7) 4-methyl-2, S-dimethoxyamphetamine.

(8) Ibogaine.

(9) Lysergic acid diethylamide.

(10) Marihuana.

(11) Mescaline.

(12) Peyote.

(13) N-ethyl-3-piperidy! benzilate.

(14) N-methyl-3-piperidy! benzilate.

(15) Psilocybin.

(16) Psilocyn.

(17) Tetrahydrocannabinols.

SCHEDULE II

(a) Unless specifically excepted or unless listed in

another schedule, any of the following substances whether

produced directly or indirectly by extraction from sub-

stances of vegetable origin, or independently by means of

chemical synthesis, or by a combination of extraction and

chemical synthesis:

(1) Opium and opiate, and any salt, compound

derivative, or preparation of opium or opiate.

(2) Any salt, compound, derivative, or prepara-

tion thereof which is chemically equivalent or identical

27

with any of the substances referred to in clause (1), except

that these substances shall not include the isopuinoline

alkaloids of opium.

(3) Opium poppy and and poppy straw.

(4) Coca leaves and any salt, compound, deri-

vative, or preparation of coca leaves, and any salt, com-

pound, derivative, or preparation thereof which is chem-

ically equivalent or identical with any of these substances,

except that the substances shall not include decocainized

coca leaves or extraction of coca leaves, which extractions

do not contain cocaine or ecgonine.

(b) Unless specifically excepted or unless listed in

another schedule, any of the following opiates, including

their isomers, esters, ethers, salts and salts of isomers,

esters and ethers, whenever the existence of such isomers,

esters, ethers, and salts is possible within the specific

chemical designation:

(1) Alphaprodine.

(2) Anileridine.

(3) Bezitramide.

(4) Dihydrocodeine.

(S) Diphenoxylate.

(6) Fentanyl.

(7) Isomethadone.

(8) Levomethorphan.

(9) Levorphanol.

(10) Metazocine.

(11) Methadone.

(12) Methadone-Intermediate, 4-cyano-2-dimethy-

lamino-4, 4-diphenyl butane.

(13) Moramide-Intermediate, 2-methyl-3-mor-

pholino-1, 1-diphenylpropane-carboxylic

acid.

(14) Pethidine.

(15) Pethidine-Intermediate-A, 4-cyano-l-methyl-

4-phenylpiperidine.

(16) Pethidine-Intermediate-B, — ethyl-4-phenyl-

piperidine-4-carboxylate.

(17) Pethidine-Intermediate-C, 1-methyl-4-phenyl-

iperidine-4-carboxylic acid.

(18) Dicosunine.

(19) Piminodine.

28

(20) Racemethorphan.

(21) Racemorphan.

(c) Unless specifically excepted or unless listed in

another schedule, any injectable liquid which contain any

quantity of methamphetamine, including its salts, isomers,

and salts of isomers.

SCHEDULE III

(a) Unless specifically excepted or unless listed in

another schedule, any material, compound, mixture, or

preparation which contains any quantity of the following

substances having a stimulant effect on the central

nervous system:

(1) Amphetamine, its salts, optical isomers, and

salts of its optical isomers.

(2) Phenmetrazine and its salts.

(3) Any substance (except an injectable liquid)

which contains any quantity of methamphetamine, in-

cluding its salts, isomers, and salts of isomers.

(4) Methylphenidate.

(b) Unless specifically excepted or unless listed in

another schedule, any material, compound, mixture, or

preparation which contains any quantity of the following

substances having a depressant effect on the central

nervous system.

(1) Any substance which contains any quantity

of a derivative of barbituric acid, or any salt of a

derivative of barbituric acid.

(2) Chorhexadol.

(3) Glutethimide.

(4) Lysergic acid.

(S) Lysergic acid amide.

(6) Methyprylon.

(7) Phencyclidine.

(8) Sulfondiethylmethane.

(9) Sulfonethylmethane.

(10) Sulfonmethane.

(c) Nalorphine.

29

(d) Unless specifically excepted or unless listed in

another schedule, any material, compound, mixture, or

preparation containing limited quantities of any of the

following narcotic drugs, or any salts thereof:

(1) Not more than 1.8 grams of codeine per 100

milliliters or not more than 90 milligrams per dosage

unit, with an equal or greater quantity of an isoquino-

line alkaloid of opium.

(2) Not more than 1.8 grams of codeine per 100

milliliters or not more than 90 miligrams per dosage

unit, with one or more active, nonnarcotic ingredients in

recognized therapeutic amount.

(3) Not more than 300 milligrams of dihydro-

codeinone per 100 milliliters or not more than 15 milli-

grams per dosage init, with a fourfold or greater

quantity or an isoquim line alkaloid of opium.

(4) Not more than 300 milligrams of dihydrocodei-

none per 100 milliliters or not more than 15 milligrams

per dosage unit, with one or more active, nonnarcotic

ingredients in recognized therapeutic amounts.

(S) Not more than 1.8 grams of dihydrocodeine

per 100 milliliters or not more than 90 milligrams per

dosage unit, with one or more active, nonnarcotic in-

gredients in recognized therapeutic amounts.

(6) Not more than 300 milligrams of ethylmor-

phine per 100 milliliters or not more than 15 milligrams

per dosage unit, with one or more active, nonnarcotic

ingredients in recognized therapeutic amounts.

(7) Not more than S00 milligrams of opium per

100 milliliters or per 100 grams, or not more than 25

milligrams per dosage unit, with one or more active

nonnarcotic ingredients in recognized therapeutic

amounts.

(8) Not more than SO milligrams of morphine per

100 milliliters or per 100 grams with one or more active,

nonnarcotic ingredients in recognized therapeutic

amounts.

30

SCHEDULE IV

(1) Barbital.

(2) Chloral betaine.

(3) Chloral hydrate.

(4) Ethchlorvynol.

(S) Ethinamate.

(6) Methohexital.

(7) Meprobamate.

(8) Methylphenobarbital.

(9) Paraldehyde.

(10) Petrichloral.

(11) Phenobarbital.

SCHEDULE V

Any compound, mixture, or preparation containing any

of the following limited quantities of narcotic drugs, which

shall include one or more nonnarcotic active medicinal

ingredients in sufficient proportion to confer upon the

compound, mixture, or preparation valuable medicinal

qualities other than those possessed by the narcotic drug

alone:

(1) Not more than 200 milligrams of codeine per

100 milliliters or per 100 grams.

(2) Not more than 100 milligrams of dihydroco-

deine per 100 milliliters or per 100 grams.

(3) Not more than 100 milligrams of ethyl-

morphine per 100 milliliters or per 100 grams.

(4) Not more than 2.5 milligrams of diphenoxy-

late and not less than 25 micrograms of atropine sul-

fate per dosage unit.

(S) Not more than 100 miligrams of opium per

100 milliliters or per 100 grams.

(d) The Attorney General may by regulation except

any compound, mixture, or preparation containing any

depressant or stimulant substance in paragraph (a) or (b)

of schedule III or in schedule IV or V from the application

of all or any part of this subchapter if (1) the compound,

mixture, or preparation contains one or more active

31

medicinal ingredients not having a depressant or stimu-

lant effect on the central nervous system, and (2) such

ingredients are included therein in such combinations,

quantity, proportion, or concentration as to vitiate the

potential for abuse of the substances wiicn do have a

depressant or stimulant effect on the central nervous

system.

Pub. L. 91-513, Title II, Section 202, Oct. 27, 1970, 84

Stat. 1247.

Title 21, Section 841. Prohibited acts A-Unlawful acts

(a) Except as authorized by this subchapter, it shall

be unlawful for any person knowingly or intentionally —

(1) to manufacture, distribute, or dispense, or

possess with intent to manufacture, distribute, or dis-

pense, a controlled substance; or

(2) to create, distribute, or dispense, or possess

with intent to distribute or dispense, a counterfeit

substance.

(b) Except as otherwise provided in section 845 of this

title, any person who violates subsection (a) of this section

shall be sentenced as follows:

(1) (A) In the case of a controlled substance in

schedule I or II which is a narcotic drug, such person shall

be sentenced to a term of imprisonment of not more than

1S years, a fine of not more than $25,000, or both. If any

person commits such a violation after one or more prior

convictions of him for an offense punishable under this

paragraph, or for a felony under any other provision of

this subchapter or subchapter II of this chapter or other

law of the United States relating to narcotic drugs,

marihuana, or depressant or stimulant substances, have

become final, such person shall be sentenced to a term of

imprisonment of not more than 30 years, a fine of not

more than $50,000, or both. Any sentence imposing a term

of imprisonment under this paragraph shall, in the ab-

sence of such a prior conviction, impose a special parole

term of at least 3 years in addition to such term of

imprisonment and shall, if there was such a prior con-

|

32

viction, impose a special parole term of at least 6 years in

addition to such term of imprisonment.

(B) In the case of a controlled substance in schedule

I or II which is not a narcotic drug or in the case of any

contolled substance in schedule III, such person shall be

sentenced to a term of imprisonment of not more than 5

years, a fine of not more than $15,000, or both. If any

person commits such a violation after one or more prior

convictions of him for an offense punishable under this

paragraph, or for a felony under any other provision of

this subchapter or subchapter II of this chapter or other

law of the United States relating to narcotic drugs, mari-

huana, or depressant or stimulant substances, have

become final, such person shall be sentenced to a term of

imprisonment of not more than 10 years, a fine of not

more than $30,000, or both. Any sentence imposing a term

of imprisonment under this paragraph shall, in the

absence of such a prior conviction, impose a special parole

term of at least 2 years in addition to such term of im-

prisonment and shall, if there was such a prior conviction,

impose a special parole term of at least 4 years in addition

to such term of imprisonment.

(2) In the case of a controlled substance in schedule

IV, such person shall be sentenced to a term of imprison-

ment of not more than 3 years, a fine of not more than

$10,000, or both. If any person commits such a violation

after one or more prior convictions of him for an offense

punishable under this paragraph, or for a felony under

any other provision of this subchapter or subchapter II of

this chapter or other law of the United States relating to

narcotic drugs, marihuana, or depressant or stimulant,

substances, have become final, such person shall be

sentenced to a term of imprisonment of not more than

6 years, a fine of not more than $20,000, or both. Any

sentence imposing a term of imprisonment under this

paragraph shall, in the absence of such a prior conviction,

impose a special parole term of at least one year in

addition to such term of imprisonment and shall, if there

Ce TT Ae —

33

was such a prior conviction, impose a special parole

term of at least 2 years in addition to such term of

imprisonment.

(3) In the case of a controlled substance in schedule

V, such person shall be sentenced to a term of imprison-

ment of not more than one year, a fine of not more than

$3,500.00 or both. If any person commits such a violation

after one or more convictions of him for an offense pun-

ishable under this paragraph, or for a crime under any

other provision of this subchapter or subchapter II of this

chapter or other law of the United States relating to

narcotic drugs, marihuana, or depressant or stimulant

substances, have become final, such person shall be

sentenced to a term of imprisonment of not more than

2 years, a fine of not more than $10,000, or both.

(4) Notwithstanding paragraph (1) (B) of this sub-

section, any person who violates subsection (a) of this

section by distributing a small amount of marihuana for

no remuneration shall be treated as provided in sub-

sections (a) and (b) of section 844 of this title.

(c) A special parole term imposed under this section

or section 845 of this title may be revoked if its terms and

conditions are violated. In such circumstances the original

term of imprisonment shall be increased by the period of

the special parole term and the resulting new term of

imprisonment shall not be diminished by the time which

was spent on special parole. A person whose special parole

term has been revoked may be required to serve all or part

of the remainder of the new term of imprisonment. A

special parole term provided for in this section or section

845 of this title shall be in addition to, and not in lieu of,

any other parole provided for by law.

Pub. L. 91-513, Title II, Section 401, Oct. 27, 1970, 84

Stat. 1260.

Title 21, Section 848. Continuing criminal enterprise —

Penalties; forfeitures

(a) (1) Any person who engages in a continuing

criminal enterprise shall be sentenced to a term of im-

34

prisonment which may not be less than 10 years and which

may be up to life imprisonment, to a fine of not more than

$100,000, and to the forfeiture prescribed in paragraph

(2); except that if any person engages in such activity after

one or more prior convictions of him under this section

have become final, he shall be sentenced to a term of

imprisonment which may not be less than 20 years and

which may be up to life imprisonment, to a fine of not

more than $200,000, and to the forfeiture prescribed in

paragraph (2).

(2) Any person who is convicted under paragraph (1)

of engaging in a continuing criminal enterprise shall

forfeit to the United States:

(A) the profits obtained by him in such enter-

prise, and

(B) any of his interest in, claim against, or

property or contractual rights of any kind affording 4

source of influence over, such enterprise.

(b) For purposes of subsection (a) of this section, a

person is engaged in a continuing criminal enterprise if:

(1) he violates any provision of this subchapter

or subchapter II of this chapter the punishment for

which is a felony, and

(2) such violation is a part of a continuing series

of violations of this subchapter or subchapter II of this

chapter:

(A) which are undertaken by such person

in concert with five or more other persons with

respect to whom such person occupies a position

of organizer, a supervisory position, or any other

position of management, and

(B) from which such person obtains sub-

stantial income or resources.

(c) In the case of any sentence imposed under this

section, imposition or execution of such sentence shall

not be suspended, probation shall not be granted, and

section 4202 of Title 18 and the Act of July 15, 1932 (D.C.

Code, secs. 24-203 to 24-207), shall not apply.

eee wee aes ee ota tne.

ee Td

35

(d) The district courts of the United States (including

courts in the territories or possessions of the United States

having jurisdiction under subsection (a) of this section)

shall have jurisdiction to enter such restraining orders or

prohibitions, or to have such other actions, including the

acceptance of satisfactory performance bonds, in con-

nection with any property or other interest subject to

forfeiture under this section, as they shall deem proper.

Pub. L. 91-513, Title Il, Section 408, Oct. 27, 1970, 84

Stat. 1265.

APPENDIX III

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF WEST VIRGINIA

BLUEFIELD

UNITED STATES OF AMERICA

v. Criminal No. 73-67-BL

GRADY QUICKSEY, also known

as **Son”’

MOTION TO DISMISS

Now comes the United States of America and moves

this Honorable Court for an Order dismissing Count One

of the indictment as it applies to Grady Quicksey, and in

support of said motion, sets forth and alleges as follows:

(1) That on February 5, 1974, Grady Quicksey was

found guilty on nine separate counts of conspiracy to dis-

tribute heroin, travel in interstate commerce in futher-

ance of an illegal narcotics business enterprise and illegal

distribution of heroin in the Southern District of West

Virginia, as well as a violation of engaging in a continuing

criminal enterprise as the kingpin of said enterprise.

(2) During the sentencing in this case the Court

sentenced Grady Quicksey to fifteen years imprisonment

on Count One, the conspiracy count of the indictment.

36

The Court also sentenced Grady Quicksey on Count Six

to fifteen years imprisonment concurrent with Count One

of the indictment.

(3) By Order of the United States Court of Appeals

for the Fourth Circuit, Mr. Quicksey was ordered re-

sentenced under Count One to a term of imprisonment

not to exceed five years.

(4) Grady Quicksey is currently serving his sentence at

the Federal Medical Facility at Springfield, Missouri, and

is in critical condition suffering from heart disease,

arteriosclerosis, and a lung ailment.

(S) The United States is advised that Mr. Quicksey

cannot be returned to Charleston except on a private

plane with doctor and nurse in attendance for the entire

trip, and that such transportation will cost the United

States in excess of Two Thousand Dollars ($2,000).

(6) Inasmuch as the resentencing does not affect in

any way the time to be served by Quicksey, the return of

Quicksey cannot be justified for the resentencing.

Accordingly, the United States moves this Court to

dismiss said Count One of the indictment as it applies to

Grady Quicksey.

UNITED STATES OF AMERICA

By:

JOHN A FIELD, III

United States Attorney

DATE: September 30, 1975