Opposition — Umentum v. United States

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APR 7 1977

No. 76-886 MICHAEL RODAK, JR, CLERK

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In the Supreme Court of the United States

OCTOBER TERM, 1976

CLARK J. UMENTUM, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Wape H. McCree, JR.,

Solicitor General,

BENJAMIN R. CIVILETTI,

Assistant Attorney General,

JEROME M. Felt,

FREDERICK EISENBUD,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

In the Supreme Court of the Hnited States

OCTOBER TERM, 1976

No. 76-886

CLARK J. UMENTUM, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-13a) is

reported at 547 F. 2d 987. The opinion of the district court

(Pet. App. 33a-35a) is reported at 401 F. Supp. 746.

JURISDICTION

The judgment of the court of appeals was entered on

November 24, 1976. The petition for a writ of certiorari was

filed on December 27, 1976. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

|. Whether petitioner was prejudiced by a count in the

indictment that charged both possession of a controlled

substance with intent to distribute and the distribution of

a controlled substance.

(1)

2

2. Whether the jury must find the ¢ommission of an

overt act to support a conspiracy conviction under 2]

U.S.C. 846.

STATEMENT

_ Following a jury trial in the United States District Court

for the Eastern District of Wisconsin, petitioner was

convicted on one count of conspiring to possess and dis-

tribute cocaine, a Schedule II controlled substance, in vio-

lation of 21 U.S.C. 841(a)(1) and 846 and 18 U.S.C. 2, and

on one count of possessing with intent to distribute and

distributing 878.5 grams of cocaine, in violation of 21

U.S.C. 841(a)(1) and 18 U.S.C. 2. He was sentenced to

concurrent terms of seven years’ imprisonment on each

count, to be followed by a three-year term of special parole.

The court of appeals affirmed (Pet. App. la-13a).

Following two telephone conversations in April 1975

between a special agent of the Drug Enforcement Admini-

stration and one of petitioner’s co-defendants, a meeting

was arranged for the purpose of purchasing 25 ounces of

cocaine for $40,625. Two special agents thereafter met with

petitioner and other co-conspirators at a restaurant. Fol-

lowing initial negotiations for the purchase of cocaine, the

men went to the parking lot of the restaurant. There,

petitioner opened the trunk of a car and showed the agents a

plastic bag of white powder that petitioner represented to be

cocaine. Petitioner and his confederates were then placed

under arrest and the bag of white powder was seized! (Tr.

229-270, 372-375). ;

'Petitioner premised his defense at trial upon the theory that the tests

performed by the government chemist were insufficient to establish the

identity of the material involved as a controlled substance (Brief for

Appellant, p. 2). He does not now repeat this challenge.

3

ARGUMENT

1. Petitioner contends (Pet. 4, 5-6) that count II of the

indictment is duplicitous because it charges separate

offenses, i.e., possession of a controlled substance with

intent to distribute and distribution of a controlled sub-

stance. The court of appeals rejected this claim on the

ground that possession and distribution of a controlled

substance are different means of violating the same statute

(Pet. App. 4a, 31a-32a; see Turner v. United States, 396 U.S.

398, 420).3 We recognize that there is an apparent

disagreement among the circuits whether possession with

intent to distribute and distribution should be charged in

separate counts or a single count.’ But there is no need to

resolve the issue in this case.

2Count II charged that petitioner and others “did knowingly, wil-

fully, and unlawfully possess with intent to distribute and did distribute

approximately 878.5 grams (gross weight) of cocaine, a Schedule II

Narcotic Drug Controlled Substance, all in violation of Title 21, United

States Code, Section 841(a)(1) and Title 18, United States Code, Section

_

‘The court instructed the jury that in order to convict under count II,

it must find, inter alia, that the government established that “the

defendants distributed or possessed with intent to distribute a con-

trolled substance * * *” (Tr. 1188; see Tr. 1226).

‘The Fifth Circuit has held that possession with intent to distribute

and distribution may be charged in separate counts and may constitute

separate offenses. United States v. Horsley, 519 F. 2d 1264, 1265-1266

(C.A. 5), certiorari denied, 424 U.S. 944; see also United States v.

Costello, 483 F. 2d 1366, 1368 (C.A. 5); cf. United States v. Gonzalez,

(C.A. 2), certiorari denied, January 10, 1977 (No. 76-5555). The Sixth

and Fourth Circuits have also adopted this position, although those

circuits have held that, where there is no evidence of possession apart

from the actual distribution, the offenses merge for purposes of sentenc-

ing. United States v. Stevens, 521 F. 2d 334, 337(C.A. 6); United States

v. Curry, 512 F. 2d 1299, 1306(C.A. 4); United States v. Atkinson, 512

F. 2d 1235, 1240 (C.A. 4).

The court of appeals here, on the other hand, appears to have aligned

itself with the Tenth Circuit, which takes the position that possession

4

The principal vice of duplicity is that it may not be clear

whether a general verdict of guilty represents the unanimous

view of the jury that the defendant committed one or more

of the acts charged (see Pet. App. 30a). That vice is not

present in this case. The evidence here showed that the

cocaine was in the trunk of a car and that petitioner removed

the cocaine from the car in the agent’s presence. Given the

preexisting agreement that petitioner was going to sell the

cocaine to the agent, the jury had a sound basis to conclude

that petitioner possessed the drug with intent to distribute.»

Moreover, as the district court found (Transcript of

proceedings upon imposition of sentence, p. 45):

[U]nder the evidence presented in this case, no

member of the jury could have found the defendant

guilty of distribution without [also] believing the

evidence which itself established possession with

intent to distribute. * * *

Thus, the verdict in this case necessarily represented the

unanimous view of the jury that petitioner possessed

and distribution of a controlled substance are merely different means of |

violating the same statute and thus must be charged in a single count.

United States v. Herbert, 502 F. 2d 890 (C.A. 10), certiorari denied, 420

U.S. 931. Accord, United States v. Hobbs, 392 F. Supp. 444(D. Mass.):

United States v. DiLaura, 394 F. Supp. 770 (D. Mass.).

In our brief in opposition in United States v. Gonzalez, supra, acopy

of which we are sending to counsel for petitioner, we took the position

that possession and distribution of a controlled substance may properly

be charged as separate offenses. (It should be noted, however, that in

Gonzalez there was substantial evidence of possession other than at the

time of the actual distribution, whereas here the charges of posses-

sion and distribution both involve the arrangement to sell cocaine

described above.)

‘Correspondingly, there was little, if any, evidence to sustain the

charge that the cocaine had been distributed to the agents. Petitioner

and his co-conspirators were arrested before either the purchase money

or the cocaine changed hands.

i. ee?

5

cocaine with the intent to dictribute it. Cf. United States v.

Gaddis, 424 U.S. 544, 549. A the district court stated

(Transcript of proceedings upon imposition of sentence, p.

45): “there was no opportunity for the defendant to be

prejudiced by a non-unanimous conviction * * *.” Ac-

cordingly, petitioner suffered no prejudice by inclusion of

both charges in count II, whether or not the count was

duplicitous. See also United States v. Natelli, 527 F.2d 311,

325 (C.A. 2).

2. Petitioner also contends (Pet. 7) that it was error

for the district court to fail to instruct the jury that it had

to find the commission of an overt act in furtherance of

the conspiracy in order to convict on the conspiracy

charge. Unlike the general conspiracy statute (18 U.S.C.

371), however, 21 U.S.C. 846 by its terms requires neither

allegation nor proof of an overt act in furtherance of the

conspiracy.°®

At common law, an overt act was not an essential

element of the crime of conspiracy, and this Court has

long recognized the power of Congress to adopt a con-

spiracy statute that does not require the commission of

such an act. Fiswick v. United States, 329 U.S. 211, 216;

Singer v. United States, 323 U.S. 338, 340; Nash v.

United States, 229 U.S. 373, 378. Those courts that have

considered the issue under the statute that .preceded

Section 846 (21 U.S.C. (1964 ed.) 174) have uniformly

ruled that it did not require any allegation or proof that

*21 U.S.C. 846 states in relevant part: “Any person who

attempts or conspires to commit any offense defined in this sub-

chapter is punishable * * *.” 18 U.S.C. 371, by contrast, reads in

relevant part, “If two or more persons conspire * * * and one or

more of such persons do any act to effect the object of the con-

spiracy, each shall be fined * * * or both.”

6

overt acts were committed in furtherance of the con-

spiracy.’ As there is no indication that Congress intended

to change this interpretation in reenacting that provision

as 21 U.S.C. 846 (see United States v. Beasley, 519 F. 2d

233, 247 (C.A. 5), and cases there cited), the court of

appeals here properly followed the preexisting approach

in declining to impose a requirement of proof of an overt

act. As the court said (Pet. App. 7a):

An overt act * * * need not be charged in a § 846

conspiracy. If an overt act need not be charged, it

need not be proved. If an overt act need be neither

charged nor proved, there remains nothing about

which to instruct on that issue.

Accord, United States v. DeJesus, 520 F. 2d 298, 301

(C.A. 1), certiorari denied, 423 U.S. 865; United States

v. Beasley, supra; United States v. Miller, 387 F. Supp.

1097, 1100 (D. Conn.);. United States v. DeViteri, 350

F. Supp. 550, 551-552 (E.D. N.Y.). See also United

States v. De Lazo, 497 F. 2d 1168, 1171 (C.A. 3).

We agree with petitioner (Pet. 7) that the Tenth Circuit’s

brief per curiam decision in United States v. King, 521 F.2d

61, 63, (C.A. 10), conflicts with the holding of the court of

appeals here. In King, the Tenth Circuit recognized that “an

indictment under section 846 need not allege overt acts,” but

the court nevertheless held that the jury must be instructed

that the government must prove such acts to make out a

‘United States v. Murray, 492 F. 2d 178, 192 (C.A. 9), certiorari

denied, 419 U.S. 942; Hopkins v. United States, 405 F. 24 770, 772

n. 2 (C.A. 9); United States v. Garfoli, 324 F. 2d 909 (C.A. 7); see

United States v. Beasley, 519 F. 2d 233. 247 (C.A. 5).

7

conspiracy under that statute.* However, this case is not an

appropriate one in which to resolve the conflict, since there

is no possibility that petitioner was prejudiced by failure to

follow the Tenth Circuit’s view. The evidence at trial showed

that petitioner possessed and attempted to sell cocaine.

Those acts, which the government necessarily must have

proved to obtain the conviction on count I of the

indictment, also constitute the overt acts that petitioner

claims must be proved to support his conspiracy conviction.

Thus, even if the instructions on the conspiracy charge were

insufficient, the defect was a technical one that could not

have affected the verdict.

Moreover, we note that petitioner received equal con-

current sentences on both counts of the indictment, and

petitioner’s claim regarding the conspiracy charge does

not impugn the integrity of the conviction on the sub-

stantive count. Thus, as a matter of judicial convenience

the Court need not reach this issue. Barnes v. United

States, 412 U.S. 837, 848 n. 16==—"

*In reaching that result the Tenth Circuit did not consider the

contrary holdings of the other circuits; moreover, it relied on two earlier

decisions in which the issue was not in fact before the courts. In United

States v. Jackson, 482 F. 2d 1167(C.A. 10), certiorari denied, 414 U.S.

1159, the only issue regarding the conspiracy count (which was brought

under 21 U.S.C. 963, not Section 846), was whether the district court

should have instructed the jury on multiple conspiracies. In United

States v. Thomas, 468 F: 2d 422 (C.A. 10), the court assumed the need

for proof of an overt act in ruling that the evidence was sufficient to

establish that the defendants were part of an ongoing conspiracy under

21 U.S.C. 174.

8

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WapeE H. McCregE, Jr.,

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

JEROME M. FEIT,

FREDERICK EISENBUD,

Attorneys.

APRIL 1977.

DOJ-1977-04