Petition — Harelson v. United States
Supreme Court brief1979
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/ FILED
In the Supreme Court
OCT 1d}
OF THE \
“MIGHAEL
United States —~
OctoBer TERM, 1978
78-591
Brent HARELSON,
Petitioner,
vs.
Unitep States oF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
To the United States Court of Appeals
For the Fifth Circuit
Joun L. Potiox,
HorrMan Po.ioKk Mass &
GASTHALTER,
477 Madison Avenue
New York, New York 10022
Telephone: (212) 688-7788
Attorneys for Petitioner
Brent Harelson.
——
BOWNE-PERNAU WALSH ¢ 104" SANSOME S&%. © S.F,.CA 94111 © (415) 981-7882
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SUBJECT INDEX
Page
SI coe S93
Jurisdiction
Question presented
Statutory provisions involved .
Statement of the case...
Reasons for granting the writ .
A Prenar yarar split among the various Circuit Courts of
ppeal exists as to whether in prosecutions for conspiracy
+ the Comprehensive Drug Abuse and Control Act of
1970, the Trial Court must, upon request, instruct the jury
that an overt act is an essential aamnent of the offense
which it must find has been proven beyond a reasonable
doubt before a verdict of guilty may be returned |
Joinder in petitions for Writ of Certiorari filed on behalf of
petitioners co-defendants . -
SSSR CD re by
TABLE OF AUTHORITIES CITED
Cases
Ewing v. United States, 386 F.2d 10 (9th Cir. 1967)
Grunewald v. United States, 353 U.S. 391 (1957)
United States v. Beasly, 519 F.2d 233 (5th Cir. 1975)
United States v. Bermudez, 526 F.2d 89 (2d Cir. 1975) 4,
United States v. Black, 19 Cr.L.Rptr. 2030-2031 (U.S.Ct.Mil.
App. 1976) ..... 4,
United States v. ie: 455 F.2d 1181 (1st Cir. 1972)
United States v. Britton, 108 U.S. 199 (1883) .
United States v. Clayton, 450 F.2d 16 (1st Cir. 1971)
United States v. DeLazo, 497 F.2d 1168 (3rd Cir. 1974)
United States v. Harms, 272 F.2d 478 (4th Cir. 1959)
United States v. Hutchinson, 488 F.2d 484 (8th Cir. 1973)
United States v. King, 521 F.2d 61 (10th Cir. 1975)
United States v. Morelio, 250 F.2d 631 (2d Cir. 1957)
United States v. Singer, 208 F.2d 477 (6th Cir. 1953)
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ii
TABLE OF AUTHORITIES CITED
CASES |
Page
United States v. Spock, 416 F.2d 165 (1st Cir. 1969) ......... 6
United States v. Tramunti, 513 F.2d 1087 (2d Cir.1975) ...... 4
United States v. Umentium, 547 F.2d 987 (7th Cir. 1976) ...... 4
United States v. Williams, 503 F.2d 50 (6th Cir. 1974) ....... 4
Constitution
United States Constitution, Sixth Amendment a ee
Rule
Federal Rules of Evidence, Rule 801(d)(2)(E) .............. 7
Statutes
Comprehensive Drug Abuse and Control Act of 1970
21 U.S.C::
Section 952 33
Section 952(a) 3
Section 963 2, 3,5
28 U.S.C.:
Section 1254(1) 2
Texts
Arens, Conspiracy Revisited 3 Buffalo L.Rev. 247, 250 (1954) 5
Harno, Intent in Criminal Conspiracy 89 U.Pa.L. Rev. 624, 635
(1941)
Perkins, Criminal Law 544 (1957) we 5
ut
In the Supreme Court
OF THE
United States
OctToBEeR TERM, 1978
No.
Brent HaRELSON,
Petitioner,
vs.
Unitep States oF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
To the United States Court of Appeals
For the Fifth Circuit
Brent Harelson, the petitioner in the above-captioned
case, respectfully prays that a Writ of Certiorari issue
to review the judgment and opinion of the United States
Court of Appeals for the Fifth Circuit entered on July 5,
1978.
OPINIONS BELOW
The opinion of the United States Court of Appeals for
the Fifth Circuit was filed on July 5, 1978 and is reported
sub nom. United States v. Johnson, 575 F.2d 1347 (5th Cir.
2
1978). A copy of said opinion appears herein as Appendix
“A”. Petitioner’s timely Petition for Rehearing was denied
by order of court on September 11, 1978. A copy of said
order appears herein as Appendix “B”. A copy of the Judg-
ment and Probation/Commitment Order of the United
States District Court for the Northern District of Florida,
Tallahassee Division, is set forth as Appendix “C”.
JURISDICTION
Jurisdiction of this Court is invoked pursuant to 28
U.S.C. § 1254(1).
QUESTION PRESENTED
In a prosecution for conspiracy to import a controlled
substance under the Comprehensive Drug Abuse and Con-
trol Act of 1970, 21 U.S.C. §§ 952 and 963, must the trial
court, upon request, instruct the jury that an overt act is
an essential element of the offense which must be found
beyond a reasonable doubt before a verdict of guilty may
be returned?
STATUTORY PROVISIONS INVOLVED
The relevant statutory provisions are set forth in Appen-
dix “D” of this Petition.
STATEMENT OF THE CASE
In January of 1977, petitioner and eleven others were
indicted in the United States District Court for the North-
ern District of Florida, Tallahassee Division, for various
3
h
offenses relating to the importation of marijuana.’ More
specifically, petitioner was convicted of one count of con-
spiracy to unlawfully import marijuana into the United
States in violation of 21 U.S.C. §§ 952 and 963, and one
count of importation of marijuana into the United States
in violation of 21 U.S.C. § 952(a). Petitioner was sentenced
to the custody of the Attorney General for four years on
each count, said sentences to run concurrent with one an-
other.
REASONS FOR GRANTING THE WRIT
A long-standing split among the various Circuit Courts of
Appeal exists as to whether in prosecutions for con-
spiracy under the Comprehensive Drug Abuse and
Control Act of 1970, the Trial Court must, upon re-
quest, instruct the jury that an overt act is an essential
element of the offense which it must find has been
proven beyond a reasonable doubt before a verdict of
guilty may be returned.
Prior to trial, petitioner and his co-defendants moved
to dismiss the count of the indictment charging a con-
spiracy to import marijuana on the grounds that it failed
to allege an overt act in furtherance of the conspiracy. The
‘The 11 individuals are Charles A. Johnson, Dennis Lee Lipper,
Kenneth Everett Vance, Matthew M. Moen, Lawrence Jess Storey,
Jr., Jesse Roscoe Storey, Roger Mark Schlager, Eduardo Enrique
Davila-Armenta, Raul Alberto Davila-Jimeno, Julio Cesar Nasser-
Davis, and Jorge Enrique Perez-Ibarra. Petitioner was tried jointly
with Johnson, Lipper, Vance, the Storeys and Schlager. Vance was
acquitted by the jury on all counts. All other defendants were con-
victed in the trial court and appealed. Upon appeal, the convictions
of all said defendants were affirmed, save that of Jesse Roscoe
Storey, which was reversed on grounds of insufficient evidence.
Matthew M. Moen, Eduardo Enrique Davila-Armenta, Raul Al-
berto Davila-Jimeno, Julio Cesar Nasser-Davis, and Jorge Enrique
Perez-Ibarra were never apprehended.
4
trial court denied this motion on the authority of United
States v. Beasly, 519 F.2d 233, 247 (5th Cir. 1975), ruling
that the government “need neither allege nor prove overt
acts under 21 U.S.C. Section 963” (V. III 602). Despite pe-
titioner’s request, the trial court refused to charge the jury
that an overt act was an essential element of the conspiracy
which the government must prove beyond a reasonable
doubt (V. XIV 182 et seq. and V. XV 152 et seq.).
The several Circuit Courts of Appeals which have
considered this issue are not in harmony. The Fourth,
Sixth, Eighth, and Tenth Circuits as well as the United
States Court of Military Appeals expressly require that
the trial court instruct the jury that proof of an overt
act is an essential element of the offense. United States
v. Harms, 272 F.2d 478 (4th Cir. 1959); United States v.
Singer, 208 F.2d 477 (6th. Cir. 1953); United States
v. Williams, 503 F.2d 50 (6th Cir. 1974); United States v.
Hutchinson, 488 F.2d 484 (8th Cir. 1973); United States
v. King, 521 F.2d 61 (10th Cir. 1975); United States v.
Black, 19 Cr.L.Rptr. 2030-2031 (U.S.Ct.Mil.App. 1976). The
Seventh and Ninth Circuits have specifically held that the
jury need not be instructed that proof of an overt act
is required. See Ewing v. United States, 386 F.2d 10 (9th
Cir. 1967) and United States v. Umentium, 547 F.2d 987
(7th Cir. 1976).
The First Circuit has specifically declined to rule on the
issues of whether an overt act need be proved. United States
v. Clayton, 450 F.2d 16 (1st Cir. 1971). The Second Cir-
cuit, despite dicta indicating that proof of an overt act is
not required, has not specifically ruled. See United States
v. Tramunti, 513 F.2d 1087 (2d Cir. 1975) and United
5
States v. Bermudez, 526 F.2d 89 (2d Cir. 1975). The
Third Circuit has held only that the failure to charge the
requirement of an overt act is not “plain error.” United
States v. DeLazo, 497 F.2d 1168 (3rd Cir. 1974). Thus,
certiorari should be granted to settle the clear conflict
which exists among those Circuits which have specifically
ruled on this issue and to provide guidance to those Cir-
cuits in which the law is not yet settled.
Moreover, an analysis of the issue reveals that the more
persuasive authority is that an overt act in furtherance
of the conspiracy must be charged and proven before a
conviction may be obtained. Failure to charge and prove
an overt act is in violation of the well-established rule
that a conspiracy to violate the narcotics laws requires
specific intent. See Perkins, Criminal Law 544 (1957);
Arens, Conspiracy Revisited 3 Buffalo L.Rev. 247, 250
(1954); Harno, Intent in Criminal Conspiracy 89 U.Pa.L.
Rev. 624, 635 (1941); and United States v. Bradley, 455
F.2d 1181 (1st Cir. 1972). While it is true that an agreement
to violate the law is the gist of the offense of conspiracy, a
mere agreement is not sufficient for conviction where
specific intent to violate the law is also required.’ In short,
although the common law crime of conspiracy centered
around the agreement, an overt act is required to complete
*Some examples may be appropriate. Assume A and B have a
conversation in which they agree to smuggle marijuana into the
Un.ted States from a foreign country. B then leaves A’s presence
and they never meet again nor is anything further done to effect
their prior agreement. If one subscribes to the notion that no
overt act is required, A and B could still be prosecuted and con-
victed for conspiracy to violate section 963. Similarly, suppose A
and B agree to — marijuana and, as B leaves A’s home, he
is hit by a truck and dies. Despite B’s death, A could be prosecuted
and convicted.
6
the offense. Failure to charge that an overt act is required
expands the concept of conspiracy to cover crimes solely
of the mind. See, e.g., Grunewald v. United States, 353
U.S. 391, 402 (1957) (Harlan, dissenting); and United
States v. Spock, 416 F.2d 165 (1st Cir. 1969). As stated
by the United States Court of Military Appeals in United
States v. Black, a narcotics importation prosecution:
While it is true, as the government argues, that the
“heart” of a conspiracy allegation is the charged
agreement, it is beyond cavil that a purported con-
spiracy is not criminally punishable as complete until
an overt act occurs in furtherance of accomplishing
the substantive offense. 19 Cr.L.Rptr. at p. 2030.
By this, petitioner does not argue that a substantive
offense need be completed before a defendant may be
convicted of conspiracy, but merely that the jury must be
charged that it must find some act in furtherance of the
agreement which takes the matter beyond mere speech.
United States v. Morello, 250 F.2d 631, 635 (2d Cir. 1957).
Petitioner respectfully submits that this Court should
grant the instant Petition to settle the division among the
various Cireuit Courts of Appeals and to provide guidance
to the lower courts on this issue.
Finally, assume A and B agree to import marijuana, but before
either party takes a step to carry out their agreement, B calls A
and attempts to withdraw inten he plan. He could still be prose-
cuted. In other words, without the requirement of an overt act,
there would be locus poenitentiae for a putative conspiracy de-
fendant. See United States v. Britton, 108 U.S. 199, 204 (1883).
7
JOINDER IN PETITIONS FOR WRIT OF CERTIORARI
FILED ON BEHALF OF PETITIONER’S CO-DE-
FENDANTS
As previously noted in this Petition, petitioner was
jointly charged and tried with a number of other individ-
uals. Petitioner’s appeal to the United States Court of
Appeals for the Fifth Circuit was consolidated with the
appeals of those defendants who had been found guilty
at trial and who had appealed (i.e., Charles A. Johnson,
Dennis L. Lipper, Lawrence Jesse Storey, Jr., and Roger
Mark Schlager). Petitioner is further informed that a
Petition for a Writ of Certiorari on behalf of Dennis L.
Lipper, Lawrence Jesse Storey, Jr., and Roger Mark
Schlager will be filed in timely fashion in this Court by
Carl EK. Stewart, Esq. Said Petition will present the
following questions:
1. Was the trial court’s qualification of di Pianelli as
an “expert witness” so manifestly erroneous as to require
reversal?
2. Did Rule 801(d) (2) (E) of the Federal Rules of
Evidence violate defendants’ rights to confront the witness
against them as guaranteed by the Sixth Amendment to
the United States Constitution?
Petitioner adopts by reference the above arguments and
authorities which will be set forth in the Petition for a
Writ of Certiorari filed on behalf of petitioners Lipper,
Storey and Schlager the same as if said arguments and
authorities were set forth at length herein. Counsel for
petitioner has not yet received a printed copy of the
co-petitioners’ Petition for a Writ of Certiorari, and upon
8
receipt of same and upon being informed of the number
assigned to that Petition by the Clerk of this Court,
counsel for this petitioner shall immediately notify this
Court and counsel for the government of the number of
the co-petitioners’ case and if desired by this Court shall
serve counsel for the government with the appropriate
number of copies of the Petition for a Writ of Certiorari
filed on behalf of petitioners Lipper, Storey and Schlager.
CONCLUSION
For the reasons stated above, as well as those reasons
set forth in the Petition for a Writ of Certiorari filed on
behalf of petitioners Lipper, Storey and Schlager, the
instant Petition for a Writ of Certiorari should be
granted.
Dated: October 6, 1978.
Respectfully submitted,
JouN L. PoLiok,
HorrMan Po.uok Mass &
GASTHALTER,
477 Madison Avenue
New York, New York 10022
Telephone: (212) 688-7788
Attorneys for Petitioner
Brent Harelson.
(Appendices Follow)
_ ot.
APPENDIX “A”
No. 77-5327
UNITED STATES COURT OF APPEALS,
FIFTH CIRCUIT
United States of America, |
Plaintiff-A ppellee,
v.
Charles A. Johnson, Dennis Lee Lipper, >
Lawrence Jess Storey, Jr., Jesse Roscoe
Storey, Roger Mark Schlager and Brent
Harelson,
Defendants-A ppellants.
5
[July 5, 1978]
Appeals from the United States District Court
for the Northern District of Florida.
Before TutrLe, Morgan and Cuiark, Circuit Judges.
Cuarces Cuark, Circuit Judge:
The six appellants in this case were named in five counts
of an indictment charging them with crimes related to
marijuana transactions occurring between July 1971 and
December 1974. Count I charged all appellants with con-
spiracy to import marijuana in violation of 21 U.S.C.
§§ 952 and 963. Counts II, II, and IV charged specific
substantive acts of importation, violations of 21 U.S.C.
§ 952(a). Count V charged all appellants with participating
in a continuing criminal enterprise, a violation of 21 U.S.C.
A-2
§ 848. At trial Count II was dismissed as to all appellants
for failure to prove venue. At the close of the government’s
ease other counts were dismissed as to various defendants.
The jury found Charles Johnson guilty on all of the remain-
ing four counts, that is, conspiracy to import marijuana,
two substantive acts of importation, and continuing crim-
inal enterprise. Dennis Lipper was found guilty of con-
spiracy te import marijuana and one substantive count.
Larry Storey was convicted only for conspiracy to import
marijuana. Jesse Storey was also convicted only of con-
spiracy to import marijuana. Roger Schlager was convicted
of conspiracy to import marijuana and one act of importa-
tion. Brent Harelson was convicted of conspiracy to import
marijuana and one substantive count. A seventh defendant,
Kenneth Vance, was acquitted of conspiracy after all other
counts against him had been dismissed.
Many of appellants’ arguments relate to the sufficiency
of the evidence or to evidentiary rulings made by the trial
court. To provide a foundation for our discussion of those
arguments, we will first relate the facts in the light most
favorable to the government and in some detail. At trial
the principal government witness was John de Pianelli,
though other witnesses corroborated portions of his testi-
mony. According to de Pianelli, in the late spring of 1971
a mutual friend arranged a meeting between him and
Charles Johnson at which the importation of marijuana
was discussed. Later in 1971 de Pianelli and Harelson met
with Johnson in California to provide the necessary “front”
money for a prospective importation venture. At that meet-
ing Johnson explained that through a partner in Colombia
he had arranged for the marijuana to be shipped to the
eee
A-3
United States. They originally thought that the marijuana
would arrive in December 1971, but the arrival was delayed
until January 1972. Harelson, who was in California, tele-
phoned de Pianelli, in Maryland, to tell him of the new
date. Harelson and de Pianelli met Johnson in Pensacola,
Florida, after the load of marijuana arrived. The three
men drove to Interarity Point, Florida, where Johnson had
rented a house, using the name Charles Storey. The rental
was confirmed by the testimony of the owner of the house.
After receiving their shares of the marijuana, de Pianelli
and Harelson drove to Maryland where they distributed
the marijuana. Later de Pianelli was told that Lipper and
Roger Schlager also received shares of this marijuana.
In the spring of 1972, de Pianelli and Harelson once
again met with Johnson in California and gave him addi-
tional front money to finance a second importation of mari-
juana. Later, Harelson telephoned de Pianelli from
California to confirm the date for the arrival of the mari-
Juana. de Pianelli and Harelson met in Tallahassee, Flor-
ida, and drove to the Interarity Point house where Lipper,
Schlager, George Driver, David Barca, and Johnson were
already present. de Pianelli recalled that he arrived about
five days before hurricane Agnes struck the coast, on June
19. Johnson explained that the load of marijuana was on
the way from South America by boat but that it was to be
delivered about nine miles away at a house which he had
rented in Orange Beach, Alabama, because of his fear that
repeated usage of the Interarity Point house would attract
attention. During the wait for the marijuana to arrive,
de Pianelli also discussed the timing of the arrival and the
A-4
kind of marijuana with Lipper, Schlager, Harelson, Driver,
and Barca.
de Pianelli and Harelson drove to the house at Orange
Beach to await the arrival of the marijuana. Soine days
later, in the early afternoon, de Pianelli saw a skiff coming
toward the Orange Beach residence. de Pianelli and Harel-
son helped to pull the skiff ashore, moor it, and cover it.
On the skiff were J. Moen, Gary Smith, and Gary ‘“’ance.
Moen told Harelson and de Pianelli that they had come
from South America on board a vessel named “Decatur,”
which was captained by Larry Storey, Sr., and had a crew
of one or both of his sons, Larry Storey, Jr., and Jesse
Storey, and Mathew Moen. After the skiff used to make
the run to shore had been hidden, the men drove to the
Interarity Point house to inform Schlager, Lipper, Barca,
and Driver of the boat’s arrival.
That night the men drove back to the Orange Beach
house to unload the skiff. While Johnson supervised the
weighing and allocation of the marijuana, everyone else
helped in unloading the marijuana, most of which was
packed in burlap bags. After the marijuana had been sepa-
rated, Johnson told Schlager, Lipper, Driver, Harelson,
and de Pianelli that there would soon be another importa-
tion. The individuals then left to distribute the marijuana.
As support for de Pianelli’s testimony the government
introduced aerial photographs of the house at Interarity
Point. de Pianelli testified that he recalled a plane flying
low over the house while they were there. He also identi-
fied the vehicles in the photograph as belonging to John-
son, Schlager, Lipper, and Moen.
A-5
Later in the summer de Pianelli met with Johnson in
California to give him additional front money to finance
another shipment of marijuana. In December 1972, de
Pianelli and Harelson went to Crawford’s Fishing Camp
near St. Marks, Florida, where Johnson had told Harelson
he would meet them. The owner of the camp testified that
he rented it to Charles Storey for the month of December
1972. Schlager and Lipper were at the fishing camp when
de Pianelli and Harelson arrived; Johnson, Driver, Barca,
and J. Moen arrived later. Johnson asked de Pianelli and
Driver to go to Pensacola and return with the skiff which
had been modified since its use in bringing the marijuana
ashore at Orange Beach. In the interim it had been
repainted at a boatyard and fitted with a larger gas tank.
de Pianelli recalled that the boatyard owner’s name was
Blanchard. Blanchard later testified that Charles Storey
had brought the skiff to his boatyard and had requested
certain modifications. When asked if he could identify
Charles Storey in the courtroom, Blanchard pointed to
Charles Johnson. Blanchard also identified the piece of
paper on which the modifications had been drawn by the
man claiming to be Charles Storey. Blanchard’s records
showed that the boat had left on December 18, 1972, with-
out the modifications being completed. The owner of a
marina at St. Marks identified the same board as the one
moored by Charles Johnson at the marina from December
1972 through August 1973. This marina owner also cor-
rectly identified Charles Johnson at the trial. Both marina
owners had records that listed the address of the house
on Interarity Point which Johnson had rented as the
address of the owner of the boat.
A-6
After the skiff arrived at St. Marks, Schlager and Lip-
per took it out into the Gulf of Mexico on several nights
in an effort to contact a vessel, the Aurora, carrying the
marijuana. Lipper and Schlager discussed their intentions
with Harelson, Barca, and Driver as well as with de Pia-
nelli. While they were at Crawford’s Fishing Camp they
often discussed the fact that the marijuana was coming
from Colombia, which they anticipated would assure a high
quality. About ten days after de Pianelli’s arrival at St.
Marks, Schlager and Lipper returned with the marijuana.
de Pianelli related how he and the others formed a human
chain to unload the bales of marijuana from the skiff.
Again the marijuana was weighed, using the same scale
as at Orange Beach, and distributed among the various
men.
The owner of a marina at Alligator Point, southwest of
St. Marks, testified that the Aurora had been docked at
his marina from December 1972 to April 1973. In court, he
identified Dennis Lipper as the man who had been the
captain of the boat. He explained that he was told that
Charles Johnson owned the boat, though he could not
identify him in the courtroom. He also testified that the
men on the boat once told him that they were taking it to
St. Marks. The owner of a marina at St. Marks identified
Johnson as the man to whom he had sold gasoline in
December 1972.
In the spring of 1973, Johnson, Lipper, Schlager, and
de Pianelli met at the house of Interarity Point to discuss
yet another shipment of marijuana. Johnson explained that ;
between five and six thousand pounds of marijuana was
in storage in Colombia and that J. Moen was making the
A-7
necessary arrangements to send it by ship from Colombia
into the Gulf of Mexico where it would be transferred to
another vessel for transportation to the United States.
Captain Storey and his two sons were to be the initial crew
and to help transfer the marijuana from one vessel to an-
other. Again de Pianelli provided front money for this
load of marijuana.
Later in 1973 Johnson, Schlager, Lipper, and de Pianelli
met in Fort Lauderdale. At these meetings Johnson ex-
plained that Moen was having difficulties in Colombia. Dur-
ing the ten months which passed before the marijuana
arrived, Johnson and de Pianelli had several discussions in
which the Storey brothers and their father were mentioned.
At Jolinson’s request, de Pianelli furnished an additional
$16,000 to finance the purchase of a boat needed to complete
arrangements. Johnson purchased a yacht, the Altair, from
a boatyard in Fort Lauderdale. Johnson, Lipper, Schlager,
and de Pianelli sailed on the Altair to Key West where
they remained for about three weeks. During this time
Johnson telephoned Captain Storey in Colombia to dis-
cuss the plans for shipping the marijuana.
The four men left Key West and sailed to the island
of Cozumel off the Yucatan Peninsula where they stayed
for several months. Johnson explained that the delay was
caused by difficulties with agents in Colombia and by at-
tempts to acquire additional marijuana. Before the load
was shipped from Colombia, de Pianelli left Cozumel and
flew to Tampa where he met his wife. They drove to a house
which Johnson had bought on St. George Island in Florida
where, from discussions with Johnson, Lipper, and Schla-
ger, de Pianelli expected the load would arrive. When they
A-8
arrived at St. George Island, J. Moen and Roger Schlager
were already there. de Pianelli and Schlager discussed the
delay in the arrival of the marijuana from Colombia. Due
to a shortage of money, however, de Pianelli left St. George
Island, and drove to Washington, D. C., to get additional
money. He drove immediately back to Florida.
Enroute to Florida de Pianelli telephoned the house at
St. George Island. Johnson answered and told di Pianelli
that the load had arrived. de Pianelli rented a U-Haul
trailer in Panama City, Florida, and drove directly to the
house on St. George Island. The receipt for the rental was
introduced at the trial to show that de Pianelli had rented
the trailer on November 10, 1973. When he arrived de Pia-
nelli was told by Johnson that Schlager, Lipper, and Moen
had already left with their shares of the marijuana. After
Johnson and de Pianelli loaded the rented trailer, de Pia-
nelli left for Washington. de Pianelli received more mari-
juana than he had already purchased. When he left for
Washington he owed Johnson about $156,000 for the addi-
tional marijuana. Three weeks later de Pianelli returned
to St. George Island to repay part of this debt. At that
time Larry Storey was present and related the difficulties
which he had encountered in transporting the marijuana
from Colombia.
In addition to de Pianelli’s testimony concerning the
events at St. George Island, the government presented the
previous owner of the house, who pointed to Johnson and
identified him as the man to whom he sold the house.
In January 1974, de Pianelli met Johnson at a motel in
Santa Barbara, California. Johnson demanded payment of
the balance that de Pianelli owed him from the St. George
A-9
Island shipment. de Pianelli did not comply. Three days
later Johnson returned with Bill Lawrence. Lawrence testi-
fied that he had been hired by Johnson to help collect the
debt. At his first meeting with Johnson, Lawrence was told
that de Pianelli owed the money from a marijuana transac-
tion. Larry Storey, who Lawrence identified in the court-
room, and Captain Storey were present at that first meet-
ing. Johnson and Lawrence attempted to detach the trailer
from de Pianelli’s car and attach it to Johnson’s vehicle.
Upon being asked the reason for his conduct, Johnson re-
sponded that he was taking the trailer as payment for the
money owed him. Johnson, Lawrence, and de Pianelli then
went into de Pianelli’s motel room to discuss the debt. Cap-
tain Storey and Larry Storey were also present. In an at-
tempt to coerce de Pianelli into paying the debt, Johnson
had Lawrence begin hitting and kicking de Pianelli, Dur-
ing the time that Lawrence was beating de Pianelli, Larry
Storey encouraged him, agreeing with Johnson that de Pia-
nelli should be killed. The dispute over the debt was tem-
porarily resolved when de Pianelli’s father-in-law agreed
to sign a note promising to pay the money to Johnson.
Lawrence, who continued to work for Johnson, testified
that he, along with Lipper and J. Moen, was to meet at the
St. George Island house. When Lipper and Moen arrived
at the house, however, they discovered that the law enforce-
ment officials had the house under surveillance. As a result,
a further proposed importation to the St. George Island
house was cancelled. Johnson later told Lawrence that the
load was sold somewhere else.
In addition to the testimony already described, the gov-
ernment introduced the testimony of law enforcement offi-
A-10
cials who had observed various houses which were used
during the transactions. One such witness described the
vehicles which he saw at the Interarity Point house in April
1973. Among the vehicles were two motor homes. One was
shown to be registered to Dennis Lipper; the other was
registered to Robert Schlager (Roger Schlager’s brother).
Another agent testified that he had observed the boats de-
scribed by dePianelli at various marinas during the period
from January 1973 to April 1973. In April 1973 he followed
Johnson and Lipper while they worked on a boat in the
vicinity of St. Marks. A third agent related his observa-
tions of the house owned by Johnson on St. George Island
between October and December of 1973.
Johnson was sentenced to a total of twenty years in
prison: five years on Count I for conspiracy to import
marijuana; five years on each of two counts of intentional
importation; and ten years for continuing criminal enter-
prise. The sentences on the substantive counts were to run
concurrently; the sentences for conspiracy and for the
continuing criminal enterprise were to be consecutive sen-
tences. Johnson argues that the imposition of consecutive
sentences for conspiracy to import marijuana and for en-
gaging in a continuing criminal enterprise is prohibited by
Jeffers v. United States, 432 U.S. 187, 97 S.Ct. 2207, 53
L.Ed.2d 168 (1977). The government concedes that those
consecutive sentences were improper. Since conspiracy to
import marijuana is a lesser included offense to engaging
in a continual criminal enterprise, Johnson’s conviction for
conspiracy must be vacated.
Without conceding that there was sufficient evidence to
convict him on any of the other counts, Johnson concen-
A-11
trates his argument on his conviction under section 848.
That section provides:
(a)(1) any person who engages in a continuing crim-
inal enterprise shall be sentenced to a term of impris-
onment 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 para-
graph (2);...
(b) For purposes of subsection (a) of this section,
a person is engaged in a continuing criminal enter-
prise if—
(1) he violates any provision of this subchapter
or subchapter Il 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 con-
cert 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 substantial
income or resources.
Johnson does not contend that the government failed to
prove that he obtained substantial income from his con-
tinuing criminal enterprise. Instead, he focuses his attack
on the provision in section 848(b)(2)(A) which requires
that for a person to be engaged in a continuing criminal
enterprise he must act “in concert with five or more other
persons” and with respect to those persons he must occupy
a “position of organizer, a supervisory position, or any
A-12
other position of management.” Johnson’s argument is
divided into five parts.
The first two parts of Johnson's argument are based
on the contention that in pretrial procedures the govern-
ment misled him about the proof that it would introduce
at trial. In particular, Johnson contends that though the
indictment was obtained on a theory that he managed five
persons other than his codefendants, the proof at trial
showed that Johnson managed his codefendants. Johnson
contends that this variance amounted to an amendment
which was prejudicial in itself and that it was a material
variance which led to prejudice. His second argument is
that there was a prejudicial variance between a bill of
particulars rendered by the government and the proof at
trial concerning the identity of the five or more persons
whom Johnson was alleged to have supervised. “Johnson
contends that he was misled because the bill of particulars
caused him to believe that the government would not
attempt to prove that Johnson managed his codefendants.
As a result, Johnson neither asked his codefendants to
testify nor requested a severance. The government re-
sponds to both of these arguments by emphasizing that
the indictment was returned in general terms, in fact,
in the words of the statute. As a result, the government
could provide specifics without amending the indictment.
The government further argues that Johnson was not
prejudiced since in pretrial proceedings it told Johnson
that it would show that he had managed others than his
codefendants.
The discussions in those pre-trial proceedings related
to the original indictment, which was returned on January
A-13
18, 1977, and a superseding indictment, which was filed on
March 10, 1977. Count V of both indictments charged a
continuing criminal enterprise as defined by 21 U.S.C.
§ 848. The original indictment named twelve persons in
Count V: the seven defendants who were tried together
and five other persons. The superseding indictment deleted
from Count V the names of four persons who were not
defendants and who throughout the proceedings have been
referred to as the “Spanish-surnamed individuals.”
During one pretrial conference the parties debated
whether the government should be required to name the
five or more individuals who the government would prove
were supervised, The trial judge agreed with the de-
fendants that the government should supply additional
information. In response to the court’s request, Clifford
Davis the Assistant United States Attorney responsible
for the prosecution, said, “I can go this far, to say there
are four people alleged in the indictment at this point
not contained in that Count and that those four would be
people who would be organized or supervised by the seven
named in Count V, and in addition there would be other
people that are not named in the indictment.” Davis’ in-
dication that the four Spanish-surnamed individuals might
be included among those who were supervised created
additional problems in the minds of the attorneys for the
defendants. Those problems arose primarily because the
Spanish-surnamed individuals were fugitives and were not
available as witnesses at the trial. After further attempts
by ihe defendants to learn the identity of the supervised
persons, Davis responded to the court, “I said that they
[the Spanish-surnamed individuals] are among the five that
A-14
are required, the at least five that would have to be proven.
There may be five without them, there may be three of
those and two more.” After Davis had supplied that infor-
mation, the court stated that it would grant no more
motions for a bill of particulars.
Throughout these pretrial proceedings and, in fact,
throughout the presentation of its case, the government
proceeded on the theory that it could show that each of
the seven defendants on trial was an organizer of five or
more other people. At the close of the government’s case,
however, the trial court dismissed Count V against all
defendants except Johnson, because the government had
failed to prove that the other defendants had acted in a
supervisory capacity. In his closing argument Davis sug-
gested to the jury that the government had shown that
Johnson had supervised five or more other persons. Never
during the trial were the four Spanish-surnamed individ-
uals mentioned. Thus, for there to be sufficient evidence to
eonvict Johnson under section 848, there must be evidence
that he organized, supervised, or managed five or more
persons other than the Spanish-surnamed individuals. The
sufficiency of the evidence is dealt with later. At this
point, we consider only where there was a prejudical vari-
ance between the indictment and the proof at the trial or
between the bill of particulars and the proof at the trial.
In United States v. Fischetti, 450 F.2d 34, 39 (5th Cir.
1971), cert. denied, 405 U.S. 1016, 92 S.Ct. 1290, 31 L.Ed.2d
478 (1972), this court explained the importance of thie
indictment:
An indictment is required to set forth the elements
of the offense sought to be charged .. . in order to
A-15
sufficiently apprise the defendant of the charge he
must be prepared to meet and to prevent him from
being charged with the same crime in the future. If,
therefore, an amendment goes to an essential element
of the crime, it is a substantial change and cannot be
made except by resubmission to the grand jury... .
We explained the nature of a prejudicial variance which
requires reversal in United States v. Lambert, 501 F.2d
943, 947 (Sth Cir. 1974) (en bane), saying, “If an indict-
ment alleges particular facts as constituting an element of
a charged crime, there is a variance if the trial judge
admits evidence that makes out this element in a different
manner.” Here the indictment was sufficient because it
charged in the words of the statute that Johnson and
others had engaged in a continuing criminal enterprise.
See, e. g., United States v. Strand, 566 F.2d 530, 534 (5th
Cir. 1978). The proof at trial was directed toward demon-
strating that the elements of that crime, as defined in
section 848(b), had occurred. In particular, the proof
showed that there were five or more persons who had been
managed by Johnson. There was thus no variance between
the indictment and the proof at trial.
A bill of particulars amplifies the indictment by pro-
viding additional information. As we said in United States
v. Martinez, 466 F.2d 679, 686 (5th Cir. 1972), cert. denied
sub nom. Berman v. United States, 414 U.S. 1065, 94 S.Ct.
O71, 38 L.Ed.2d 469-(1973), “The purposes of a Bill of
Particulars are to inform the defendant of the nature of the
charge against him with sufficient precision to enable him
to prepare his defense, and to avoid or minimize the danger
of surprise at trial.” In United States v. Horton, 526 F.2d
884, 887 (5th Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 67,
A-16
50 L.Ed.2d 81 (1976), we explained that “where a fatal
variance is argued, appellant must demonstrate that he
was taken by surprise by reason of the variance and that
such surprise prejudiced the preparation of his defense.”
As the quotations from the pretrial conference demonstrate,
the defendants were not told that the five or more persons
would be comprised of the codefendants plus others.
Instead, they were told that the five or more persons would
be made up from a group comprising the four Spanish-
surnamed individuals as well as other persons unnamed at
that time. Thus, there was no variance between the bill of
particulars and the proof at trial. Since there was no vari-
ance, the defendants could not have been prejudiced. The
defendants cannot claim to have been surprised or misled
by Davis’ comments during the pretrial conference.
Johnson’s third argument is also directed toward the bill
of particulars. The basis for that argument lies in the dis-
cussion during pretrial conferences of the violations which
the government would use to show that there was a con-
tinuing criminal enterprise. Those discussions were neces-
sitated by the fact that courts have required that a mini-
mum of three illegal acts be proved to establish a contin-
uing criminal enterprise. E..g., United States v. Bergdoll,
412 F.Supp. 1308, 1317 (D.Del.1976). The defendants
requested that the court order the government to provide
the dates of each of those occasions. In complying with that
request, Davis indicated that Counts II, III, and IV of the
indictment, the substantive counts, constituted three occa-
sions. He indicated that in addition there would be proof
of an incident on January 10, 1971, at Interarity Point.
Later in this same conference, which was held on April 14,
A-17
1977, the government attorney again mentioned the date as
being 1971. Four days later, on April 18, the day of the
trial, the trial court allowed the government to amend its
statement so that the date of the violation was January 10,
1972. Although counsel for defendants objected to the
allowance of this amendment, they made no motion for a
continuance.
It is a well settled rule that a bill of particulars “may
be amended at any time, and the decision to allow a
amendment is within the discretion of the trial court, which
decision will be reversed only on a showing of prejudice
or clear abuse of discretion by the trial court.” United
States v. Perez, 489 F.2d 93, 95 (5th Cir. 1974). See also
United States v. Sherriff, 546 F.2d 604, 606 (5th Cir. 1977).
In an attempt to show that he was prejudiced, Johnson con-
tends that his trial counsel had thoroughly investigated
the date in 1971 and had found at least one witness who
would testify that Johnson was somewhere other than at
Interarity Point on that date. In addition, he contends that
his counsel was prejudiced in his cross-examination of de
Pianelli, because he began by thinking that he couid cross-
examine on the 1971 date.
Johnson has failed to demonstrate any actual prejudice
from this change and he has failed to demonstrate any
abuse of the district court’s discretion. The 1971 date was
outside the dates charged in the indictment. In addition, in’
an analogous situation, when a conspiracy is alleged the
government is not limited to proving at trial only those
overt acts which it has stated either in the indictment or in
the bill of particulars. Thus we have held that it is not
prejudicial for the government to show other acts of the
A-18
conspirators occurring during the life of the conspiracy.
United States v. Perez, 489 F.2d 51, 70 (Sth Cir. 1973), cert.
denied, 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974).
In the absence of an abuse of discretion or of demonstrated
prejudice, there was no reversible error.
Johnson’s fourth argument is that it was error for the
trial court to fail to define the terms in section 848 such as
“organizer, supervisor, or other position of management”
and “substantial income.” Johnson argues that this super-
ficially simple statute is actually very complex, therefore
requiring careful instructions for the jury to avoid preju-
dice to a defendant. Johnson also urges that in the prose-
cutor’s closing argument he misstated the criteria involved
in proof of a violation of section 848. In particular, John-
son contends that it was improper for the prosecuting at-
torney to refer to the statute as the “King Pin Statute.”
Although Johnson argues that the words of the statute
are vague, this court has held in United States v. Cravero,
545 F.2d 406 (5th Cir. 1976), cert. denied, 430 U.S. 983, 97
S.Ct. 1679, 52 L.Ed.2d 377 (1977), that section 848 is not
unconstitutionally vague on its face. The words and phrases
in the statute are neither outside the common understand-
ing of a juror, see United States v. Crockett, 506 F.2d 759,
762 (5th Cir.), cert. denied, 423 U.S. 824, 96 S.Ct. 37, 46
L.Ed.2d 40 (1975), nor so technical or ambiguous as to re-
quire a specific definition, see Evans v. United States, 349
F.2d 653, 658 (5th Cir. 1965). Thus none of them required
definition by the trial court. Although situations might exist
which would indicate that a jury should be aided by defi-
nition of the words in this statute, it was not error to refuse
to do so in the straightforward context of this case.
‘
A-19
The prosecutor did not misstate the nature of the statute
by using the term “King Pin.” This court and others have
used the same term to describe the statute. E. g., United
States v. Bolts, 558 F.2d 316, 320 (5th Cir.), cert. denied
sub nom. Hicks v. United States, ........ US. —...., 98 S.Ct.
417, 54 L.Ed.2d 290 (1977); United States v. Sperling, 506
F.2d 1328, 1344 (2d Cir. 1974), cert. denied, 420 U.S. 962, 95
S.Ct. 1351, 48 L.Ed.2d 439 (1975). Moreover, the definition
of “King Pin” in Webster’s Third New International Dic-
tionary shows the aptness of the term: “One that holds a
chief or most prominent place in a group or undertaking.”
‘ Johnson’s fifth argument is that there was insufficient
evidence to convict him of a violation of section 848. He di-
vides this point into two parts. First, he argues that there
was insufficient evidence to show that he was an organizer,
supervisor, or manager. Second, he contends that there
was insufficient evidence to show that there were five or
more supervised persons. As to the first point, he contends
that there was no evidence that he had directed or orches-
trated the activities of anyone. He interprets the evidence
as showing only that all of the codefendants were working
together and that Johnson had not occupied a position of
superiority. To support that interpretation he quotes a
portion of de Pianelli’s testimony in which he stated that
nobody elected themselves president of the operation. Of
the second point, Johnson contends that there was no evi-
dence which demonstrated his relationship to the other
defendanis. The only evidence, according to Johnson, is
that de Pianelli occupied an inferior position to Johnson.
From this, Johnson contends, one cannot conclude that all
of the other defendants occupied an inferior position.
A-20
During the trial there were at least six other persons
who were named as acting in concert with the codefendants.
These persons were de Pianelli himself, Captain Storey,
J. Moen, David Barea, George Driver, and William Law-
rence. Thus, even excluding the codefendants from the
computation, it is apparent that the government proved
there were five or more other persons involved in this
criminal activity. The government also proved that
Johnson acted in a supervisory, managerial, or organizing
capacity with respect to these five or more other persons.
For each transaction Johnson accumulated front money
to finance the importation. Johnson related his contacts
with people in Colombia who would sell the marijuana
and who would transport the marijuana into the Gulf of
Mexico. Johnson was responsible for purchasing or rent-
ing houses and boats to facilitate the importation of the
marijuana. And he acted as a general coordinator of the
activities at each place of importation. The evidence may
not show that Johnson conducted the activities with the
regimentation of a G3 Section in the United States Army,
but it does show that he organized, supervised, and man-
aged the activities of other persons. Or, in the words of
de Pianelli, everyone involved assumed that “Mr. Johnson
was our leader.”
Johnson’s final argument is that because of the inepti-
tude of his appointed counsel he was denied the effective
assistance of counsel. He divides his contention into two
parts. First, he contends that his counsel, Phillip Stein,
had a conflict of interest, which was apparent to the court
after de Pianelli testified that he had sent money to Stein
to hold in escrow for Johnson to use to purchase a boat.
A-21
Johnson now argues that Stein’s first concern was to pro-
tect himself and that the pre-eminence of that concern
was demonstrated when Stein’s first questions on cross-
examination of de Pianelli related to whether they had
ever met. Johnson further argues that Stein was a poten-
tial witness on Johnson’s behalf who would testify
concerning de Pianelli’s threats against Johnson. Thus,
Johnson concludes, the trial judge ought to have inquired
about this conflict of interest and Stein should have with-
drawn from the case.
The second portion of Johnson’s contention is that
Stein’s trial technique was inept and incompetent. He
points to two general areas. First, he contends that
Stein’s opening statement showed a failure to investigate
because he contended that de Pianelli was a regular user
of LSD whose testimony would be shown to be merely a
figment of his imagination. In addition, he told the jury
that de Pianelli was a former actor who enjoyed creating
fictional plots. Stein’s incompetence was allegedly shown
during trial when he failed to ask de Pianelli about his
use of LSD and when he received unexpected answers
concerning de Pianelli’s prior role as an actor. As a result,
Johnson now argues, Stein’s closing argument was different
from his opening statement, thus creating prejudice in the
minds of the jury. The second trial technique which John-
son contends was inadequate was Stein’s cross-examination
of de Pianelli. For specific examples, Johnson contends that
Stein did not know the procedure for impeaching a witness
with a prior inconsistent statement, that he did not know
the relevant facts and therefore asked irrelevant questions,
A-22
that he asked questions to which he did not know the an-
swers, thus leading to disaster, that he could not control
de Pianelli, thus allowing him to volunteer damaging evi-
dence, and that he asked questions which incorrectly
assumed Johnson was present at various occasions. John-
son concludes by arguing that the trial court was aware
of all of these shortcomings.
At the outset of this analysis, we would observe that it
appears anomalous for Johnson to base the other five con-
tentions on appeal upon grounds raised by Stein during
the trial. Thus Johnson while asserting Stein’s ineptness
also demonstrates that Stein was effective enough to pre-
serve at least five grounds for error on appeal. This
inconsistency, however, is not the basis for our decision.
The standard for measuring the performance of trial
counsel is reasonably effective assistance. As this court has
repeatedly stated, this standard does not require errorless
counsel. E. g., United States v. Carter, 566 F.2d 1265,
1272-73 (5th Cir. 1978). An examination of the entire record
discloses that Stein provided reasonably effective counsel.
Stein’s initial questions to de Pianelli may be seen as an
attempt to persuade the jury that he was not associated
with de Pianelli, not to protect himself but to enhance his
effectiveness with the jury as Johnson’s representative.
That was a reasonable trial tactic under the cireumstances
and an equally plausible explanation of his actions. Johnson
was entitled to have counsel of his choice and that selection
could include a lawyer with whom he had prior dealings.
The evidence cuncerning de Pianeili’s threats to Johnson
was given by an Internal Revenue Service agent. Thus
A-23
there was no need to call Stein as a witness to establish
this fact. On cross-examination, counsel for defendant Lip-
per asked de Pianelli about his use of LSD; de Pianelli
admitted that he had used LSD at least fifty times in the
past five or six years. de Pianelli also admitted on cross-
examination by other defendants’ counsel that he had once
been associated with theatrical groups. We are not per-
suaded that any prejudice arose. Moreover, prejudice may
be contended to have arisen from the difference between
Stein’s opening remarks and his later cross-examination
was eliminated by the questioning of co-counsel.
Stein’s cross-examination of de Pianelli, though it may
not have been of textbook quality, does not permit us to
conclude that Johnson was denied reasonably effective
assistance of counsel. de Pianelli proved to be a difficult
witness to examine for the government counsel as well as
for all defense counsel. That Stein could not control de
Pianelli was a problem he shared with all counsel at the
trial. Furthermore, Stein filed numerous pretrial motions,
made repeated objections at trial, and generally made his
presence effectively felt in the conduct of the trial. The
lengthy record amply demonstrates that Johnson was not
denied effective assistance of counsel.
In summary, we affirm Johnson’s conviction on two
counts of knowing and intentional importation of marijuana
and we affirm his conviction for continuing criminal enter-
prise. We vacate his conviction for conspiracy to import
marijuana.
The next appellant, Dennis Lipper, raises four points
in his brief on appeal. He first argues that it was improper
A-24
to permit de Pianelli to testify as an expert concerning
the origin of the marijuana. Appellants concede that the
substance with which they were dealing was marijuana.
They contend, however, that there was no objective evi-
dence showing that the marijuana was imported from
outside the customs territory of the United States. Since
no marijuana was ever seized, the only nonhearsay evidence
concerning the origin of this marijuana came from de
Pianelli. When de Pianelli was first asked to state whether
the marijuana had come from Colombia, counsel for de-
fendants objected. The jury was then excused and de
Pianelli was examined on voir dire and cross-examined by
defense counsel. During voir dire, he admitted that he had
smoked marijuana over a thousand times and that he had
dealt in marijuana as many as twenty times. He also said
that he had been asked to identify marijuana over a
hundred times and had done so without making a mistake.
He based his identification upon the plant’s appearance,
its leaf, buds, stems, and other physical characteristics,
as well as upon the smell and the effect of smoking it. On
cross-examination he stated that he had been called upon
to identify the source of various types of marijuana. He
explained that characteristics such as the packaging, the
physical appearance, the smell, the taste, and the effect
could all be used in identifying the source of the marijuana.
It was stipulated that he had no special training or educa-
tion for such identification. Instead, his qualifications came
entirely from “the experience of being around a great deal
and smoking it.” He also said that he had compared
Colombian marijuana with marijuana from other places
as many as twenty times. Moreover, he had seen Colombian
A-25
marijuana that had been grown in the United States and
had found that it was different from marijuana grown
in Colombia.
After the voir dire examination, the defendants objected
to de Pianelli’s expertise for lack of authentication that he
had actually smoked it, touched it, or correctly identified
it. Despite the objection, the trial court permitted de Pia-
nelli to give opinion evidence. Before the jury he related
his experiences with marijuana and explained that he had
tested a sample of marijuana from each importation and
had verified that it came from Colombia.
Lipper contends that the source of marijuana is not a
matter requiring expert opinion and that there was no
foundation for de Pianelli’s testimony. Lipper further con-
tends that it was an error to qualify de Pianelli as an ex-
pert because he had never been to South America and, of
course, had never smoked marijuana there or seen it grow-
ing in South America. Finally, Lipper contends that de
Pianelli’s testimony was conclusively rebutted by an as-
sociate professor of biological science at Florida State
University, Loren C. Anderson.
In Crawford v. Worth, 447 F.2d 738, 740-41 (5th Cir.
1971), we stated the principle which guides appellate re-
view of trial court determinations concerning expert testi-
mony:
The federal rule regarding review standards of
trial court rulings on expert opinion evidence is strin-
gent. “* * * the trial judge has broad discretion in the
matter of the admission or exclusion of expert evi-
dence, and his action is to be sustained unless mani-
festly erroneous.” Salem v. United States Line» Co.,
A-26
370 U.S. 31, 82 S.Ct. 1119, 8 L.Ed.2d 313, ... In this
Cireuit’s terms: “The expert qualification of a witness
is a question for the trial judge, whose discretion is
conclusive unless clearly erroneous as a matter of
law.” United States v. 41 Cases, More or Less, 420 F.2d
1126 (5th Cir. 1970).
“Tf the question is one which the layman is competent to
determine for himself, the opinion is excluded; if he reason-
ably cannot form his own conclusion without the assistance
of the expert, the testimony is admissible.” Steinberg v.
Indemnity Insurance Company of North America, 364 F.2d
266, 274 (5th Cir. 1966). The Ninth Circuit has expressed
a similar principle in these words:
To warrant the use of expert testimony, two elements
are required. First, the subject of the inference must
be so distinctly related to some science, profession,
business or occupation as to be beyond, the knowledge
of the average layman, and second, the witness must
have such knowledge or experience in that field or
calling as to make it appear that his opinion or in-
ference will probably aid the trier in his search for
truth.
Fineberg v. United States, 393 F.2d 417, 421 (9th Cir. 1968).
Here the subject of the inference, the source of the mari-
juana, is related to the occupation of selling illegal drugs
and to the science of botany, neither of which is likely to
be within the knowledge of an average juror. For the
government to obtain a conviction it was necessary that
it prove that the marijuana came from outside the customs
territory of the United States. See 21 U.S.C. § 952. Testi-
mony which would identify the source of the marijuana
would be of obvious assistance to the jury. It was there-
A-27
fore proper for the trial court to consider whether de
Pianelli was qualified to provide such testimony.
Rule 702 of the Federal Rules of Evidence provides
that expertise may be obtained by experience as well as
from formal training or education. de Pianelli’s testimony
during voir dire revealed that his substantial experience
in dealing with marijuana included identification of
Colombian marijuana. In light of that testimony, the trial
court was within its discretion in deciding to admit the
testimony for 'the jury’s consideration.
The introduction of testimony from an expert witness
does not foreclose the issue from consideration by the
jury, which need not accept the expert’s testimony. A de-
fendant is free to introduce his own expert to challenge
the prosecution’s witness. Here the defense introduced the
testimony of Professor Anderson, who said that it was
impossible to determine the origin of a particular sample
of marijuana by examining its physical characteristics.
The trial court instructed the jury in general terms con-
cerning the weight it should give to testimony. In addition,
it specifically instructed the jury regarding expert wit-
nesses and concluded with this admonition: “You should
consider such expert opinion received in this case and give
it such weight as you think it deserves.” Thus the conflict
between the experts was correctly presented to the jury
for resolution. Cf. United States v. Bermudez, 526 F.2d
89, 98 & n.8 (2d Cir. 1975), cert. denied, 425 U.S. 970, 96
S.Ct. 2166, 48 L.Ed.2d 793 (1976).
The only remaining challenge to de Pianelli’s status as
an expert is the argument that no one can acquire the
A-28
skill which he professed to have. That objection may be
rephrased in the words of this court in International Paper
Company v. United States, 227 F.2d 201, 205 (5th Cir.
1955): “an opinion is no better than the hypothesis or
the assumption upon which it is based.” If the hypothesis
is proved to be flawed, the witness should not be allowed
to testify. This type of objection would be directed at, for
example, the testimony of someone purporting to tell the
color of a person’s hair from fingerprints or the use of a
testing device that had not been generally accepted by
the scientific community. For a discussion of the latter
problem, see United States v. Brown, 557 F.2d 541, 554-59
(6th Cir. 1977). Neither at trial nor on appeal have the
appellants directly argued that no one can distinguish
marijuana that has been grown in Colombia from other
marijuana. They have, however, done so implicitly, and
we believe that they tried to do so through the testimony
of Professor Anderson. We shall therefore briefly con-
sider that objection as well. Cf. United States v. Brown,
supra, 557 F.2d at 557 n.17.
On the record before us we cannot say that the claim of
an ability to identify Colombian marijuana is so inher-
ently implausible that, as a matter of law, a jury should
not be permitted to hear testimony on the indentification.
de Pianelli claimed that he could identify Colombian mari-
juana. Professor Anderson disputed that claim. But
Professor Anderson admitted that climatological differ-
ences could produce differences in the marijuana plants.
Professor Anderson’s testimony was based upon the lack
of scientific tests which would demonstrate that mari-
juana grown in Colombia differed from that grown else-
A-29
where. Tests had shown, however, that marijuana grown
in Canada differed from marijuana grown in other loca-
tions. Thus, there was some ambiguity in Professor
Anderson’s testimony. The issue was one that could have
been resolved by the jury. In allowing the jury to con-
sider the question and to hear the same arguments counsel
now make to us, the trial court did not err.
Lipper’s second argument is similar to Johnson’s argu-
ment concerning bills of particulars. Lipper contends that
it was prejudicial to refuse motions for bills of particulars
and to permit amendment of the bill of particulars.
We have already explained that it was not prejudicial
to permit amendment of the bill of particulars to change
the date from 1971 to 1972. Lipper adds a challenge to
the trial court’s refusal to require the government to
reveal the time, date, place, and participants in any overt
act which the government intended to use to prove the
conspiracy, the date and place each conspirator joined
the conspiracy as well as the time during which he was a
participant, and the names of all witnesses. Lipper con-
tends that it was impossible for the defendants to be
prepared to defend their actions over the four-year period
charged in the indictment. Finally, he contends that he
was surprised by the change in the date in the bill of par-
ticulars and by Lawrence’s testimony. The function of a
bill of particulars is to inform the defendant of the nature
of the charges against him, not “to obtain a detailed
disclosure of the government’s evidence prior to trial.”
United States v. Perez, 489 F.2d 51, 71 (5th Cir. 1973),
cert. denied, 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664
(1974). Lipper has shown no actual prejudice from the
A-30
judge’s rulings and in the absence of such a showing there
ean be no reversible error.
Lipper’s third contention is that it was erroneous to
admit the testimony of the various law enforcement agents
concerning their surveillance of the houses and other
activities of defendants. Lipper bases his arguinent upon
Rule 403 of the Federal Rules of Evidence, contending
that the prejudicial effect of the evidence was greater than
its probative value. He contends that the dates of the
surveillance do not correspond with the particular criminal
activities otherwise asserted and that there was nothing
inherently suspicious about the fact that these defendants
were gathered at one site at the same time. As a result,
he contends, the jury was permitted to string together a
series of inferences to reach their verdict of guilty. Lipper
provides the answer to his own argument when he sug-
gests in his brief that the evidence was prejudicial because
it corroborated de Pianelli’s testimony. The surveillance
evidence showed that these defendants had indeed been
present at the various sites during the course of the
conspiracy. To say that such evidence is prejudicial
because it would permit a jury to find a person guilty is
only to demonstrate its probative value. The prejudicial
effect, other than insofar as it led to a conviction, was low.
There was no error in admitting this evidence.
Lipper’s final argument is that Rule 81(d)(2)(E) of
the Federal Rules of Evidence, which permits the jury
to consider the hearsay declarations of co-conspirators, is
unconstitutional because it violates the confrontation clause.
This argument is frivolous. See Dutton v. Evans, 400 U.S.
74, 80-81, 91 S.Ct. 210, 215-16, 27 L.Ed.2d 213(1970).
E
if
t
i
|
4
A-31
Jesse Storey was convicted only on Count I, the con-
spiracy count. In his brief on appeal he raises two points.
First he contends that there was insufficient evidence to
support the conviction on the conspiracy count. He sup-
ports this contention by pointing to the fact that no one
ever identified him in the courtroom. In addition, he con-
tends that the only nonhearsay evidence which linked him
to the conspiracy was at best an equivocal identification of
him as having been present at St. Marks. Since there was
no nonhearsay evidence linking him to the conspiracy, he
concludes that it was improper for the jury to consider
hearsay evidence. The government responds by arguing
that there was sufficient evidence to show that Jesse Storey
was part of the conspiracy. The government’s position
is based upon combining the testimony of de Pianelli with
that of Lawrence. According to de Pianelli, one of the
Storey brothers, though he was not sure which, arrived
at the time the marijuana load arrived at St. Marks.
During direct examination de Pianelli stated that he
thought that it was Jesse Storey. Later in his testimony
de Pianelli said that another Storey brother was present
in Santa Barbara and that he was the same brother who
had been present at St. George Island. In Lawrence’s
testimony he said that it was Larry Storey who was
present at Santa Barbara. Combining the two, the govern-
ment contends that there was sufficient evidence to show
that Jesse Storey was a participant in the conspiracy.
Since the government is entitled to benefit from all rea-
sonable inferences which may be drawn in favor of the
jury’s verdict, we agree that the combination of testimony
shows that Jesse Storey was at St. Marks Island. Even so,
A-32
the record only shows that Jesse Storey was present. de
Pianelli testified that he was not present on the dock when
the boat with the marijuana arrived. He could not have
seen whether Jesse Storey was on board the boat. de Pia-
nelli never said that he had seen Jesse Storey participate
in the actions of the conspirators. There is no sufficient
evidence upon which to base a conviction of conspiracy.
See, e.g., Causey v. United States, 352 F.2d 203, 206-07
(5th Cir. 1965). Jesse Storey’s conviction for conspiracy
must therefore be reversed and remanded to the district
court with directions to dismiss. Burks v. United States,
— U.S. —, 98 S.Ct. 2141, 55 L.Ed.2d No. 76-6528
June 14, 1978).
Jesse Storey’s second argument was that the trial court
erred in responding to a question from the jury. Even if
the response was erroneous, no other defendant would have
been prejudiced. Since we have reversed Storey’s conviction
for lack of sufficient evidence, we need not consider this
second point.
Roger Schlager was convicted on Count I of conspiracy
to import marijuana and on Count IIT of knowing and
intentional importation at St. Marks. His appeal, like his
defense at trial, is based upon an alibi which he developed
in two parts. First, he contended that his brother Robert,
who died in 1975, looked so much like him that even their
mother often mistook them. Second, he claimed that he had
been in California at the time of the acts named in the
substantive counts of the indictment. To support his alibi
he called his mother to testify. Her testimony, however,
provided only limited confirmation of Schlager’s conten-
tions. She did identify the people in photographs which
A-33
previously had been shown to de Pianelli. Her identification
showed that in two of the three photographs de Pianelli
had mistaken Robert for Roger. She also said that Roger
was in California on Father’s Day, June 18, 1972. The
testimony of de Pianelli was that the importation at Orange
Beach occurred about five days before hurricane Agnes,
which struck on June 19. Thus, the jury could have con-
cluded that there was no inconsistency between de Pianelli’s
testimony and Mrs. Schlager’s. She also said that she was
“quite sure” that Roger had been with her for “all the
Christmases.” The events at St. Marks took place in Decem-
ber 1972; no definite date was given. Again, there was no
necessary inconsistency between the testimony of the two
people. Finally, she said that Roger always came home for
her birthday, November 10. She was not, however, able to
say positively that he had been in California on her birth-
day in 1973, the day that Johnson told de Pianelli that
Schlager was at St. George Island.
Schlager contends that the evidence of his participation
in the conspiracy was based upon his presence at St. Marks
and at St. George Island. Since his alibi proved that he was
not present at either place, he concludes that there was
insufficient evidence to support his conviction for conspir-
acy. To buttress that conclusion he points to the possibility
that de Pianelli had confused him for his brother, whose
name was on the registration of one of the mobile homes
sighted at Interarity Point.
Schlager’s first argument on appeal is that the triai
court erroneously charged the jury about the effect of his
alibi on the conspiracy charge. Schlager contends that the
court directed the jury not to consider the alibi as a defense
A-34
to the charge of conspiracy. That contention is based upon
a misreading of the charge. The trial court charged the
jury in these words:
In this case the defendant, Roger Mark Schlager, has
introduced evidence respecting an alibi which amounts
to the contention that the defendant was not present
at the time when, nor at the place where, he is alleged
to have committed the offense charged in the indict-
ment. .
If you find from the evidence that he was guilty of
the offense charged under Count I [conspiracy] then
you will not consider this defense. If, however, you
find he is not guilty of the offense charged in Count I
then you should consider this defense in your consid-
eration of his guilt or innocense under Count III and
Count IV. ;
The first sentence of the second paragraph which was
quoted above clearly indicates that the jury could consider
the alibi defense during its deliberations on the conspiracy
count. Only after it found Schlager guilty of the conspiracy
count was it to disregard the alibi defense. Cf. Pinkerton
v. Umted States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed.
1489 (1946); United States v. Becker, 569 F.2d 951, 958-59
(5th Cir. 1978). There was no error in the charge to the
jury with respect to the conspiracy count.
Schlager’s second argument is that the trial judge erred
in responding to questions from the jury. Schlager argues
that the trial judge provided a summary of the evidence
which differed from the evidence which was introduced at
trial. During its deliberations the jury sent these two ques-
tions to the judge:
Check through the testimony of the marina opera-
tors Shields, Finn, Blanchard, and Lynn and find out
A-35
if any of them visually identified Roger Schlager in
the courtroom.
Did John de Pianelli testify that Roger and Dennis
were going back and forth in the boat at St. Marks at
night?
After discussing the questions with counsel, the judge re-
sponded to the first question in this way:
Now, I have tried to get the full meaning of your
question. If this is not what you wanted to know, you
can tell me that, but the answer I give you is this and
if you want any of the testimony read back to you, I
will. None of these people whose names you have men-
tioned were specifically asked to identify Roger
Schlager in the courtroom and none of them did iden-
tify him.
THE FOREMAN: O.K. That’s what we wanted to know.
Schlager contends that the question required only a yes or
a no answer and that the judge’s answer implied that if
the witnesses had been asked to identify Schlager they
would have. Schlager’s interpretation is incorrect. The
jury’s question related to four individuals. To have re-
sponded with either “yes” or “no” could have misled the
jury and would have been an incomplete answer. The
judge accurately stated what had occurred during the testi-
mony of these four witnesses. The response did not add
evidence or mislead the jury by providing an improper
inference.
The judge also consulted with trial counsel before re-
sponding to the second question in this way: “he testified
he was told by both of them that they were going out on
the boat.” Schlager prefaces his objection to that response
with the observation that de Pianelli regularly referred to
A-36
the defendants by their surnames. Since Roger and Robert
were indistinguishable, Schlager contends that de Pianelli’s
references to “Mr. Schlager” cannot be presumed to have
been references to Roger Schlager. Thus, when the jury
asked whether de Pianelli testified that “Roger and Dennis”
were in the boat at St. Marks, the correct answer, accord-
ing to Schlager, would have been that de Pianelli said only
that “Mr. Schlager” was present at St. Marks. He contends
that by its answer, the trial court provided the only link
between Roger Schlager and the St. Marks incident.
Such an argument presumes that the entire proceedings
at the trial were to be viewed through the lens provided
by Schlager’s alibi. That the lens distorts the actual pro-
ceedings of the trial is evident from the early testimony
by de Pianelli. One of the first questions asked by the
prosecutor was whether de Pianelli knew “Roger Mark
Schlager.” de Pianelli responded that he did. Then he was
asked if he could identify Roger Schlager, which he did.
In fact, Schlager’s counsel stipulated that de Pianelli had
pointed to the defendant, Roger Mark Schlager. Further-
more, on at least three other occasions de Pianelli referred
to “Roger Schlager.” According to his testimony, when
de Pianelli arrived at the house on St. George Island, those
present were “J. Moen, Candy Davis, Roger Schlager, my-
self and my wife.’ While he was at the house there was
“general conversation” with “J. and Roger and Candy and
my wife.” After that response, the following dialogue oc-
curred:
Q. [by the prosecutor] You said Roger?
A. [by de Pianelli] J am sorry, Mr. Schlager.
A-37
Q. Roger Schlager?
A. Yes sir.
Later in his testimony de Pianelli explained that he had
been told that “Mr. Roger Schlager” and “Mr. Dennis Lip-
per” had been involved in the first transaction at Interarity
Point before he arrived. It is clear, then, from reading the
entire transcript of de Pianelli’s testimony that his refer-
ences “Schlager” were references to Roger Mark Schlager.
The trial court did not err in responding to the second ques-
tion as it did.
de Pianelli’s failure correctly to identify Robert and
Roger in photographs created a question for the jury
as to the accuracy of de Pianelli’s identification. The trial
court, however, properly charged the jury on the issue
of identification:
Respecting Defendants Roger Mark Schlager, Jesse
Roscoe Storey and Lawrence Jess Storey, Jr., an issue
in this case is the identification of the defendant as
the perpetrator of the crime. The Government has the
burden of proving identity, beyond a reasonable doubt.
If you are not convinced beyond a reasonable doubt
that the defendant was the person who committed the
crime, you must find the defendant not guilty.
You may take into account any occasions in which
the witness failed to make an identification of defend-
ant, or made an identification that was inconsistent
with his identification at trial.
With such an instruction before it, the jury was directly
presented with the question of identification. Since the
judge did not err in responding to the jury’s questions,
Schlager’s conviction on both counts must be affirmed.
A-38
Larry Storey was convicted only on Count I for econ-
spiracy to import marijuana. On appeal he raises two
points. First, he challenges the sufficiency of the evidence
to support his conviction for conspiracy; second, he con-
tends that it was an error to admit the testimony of Bill
Lawrence concerning the collection of the debt owed to
Johnson by de Pianelli. Since Storey’s challenge to the
sufficiency of the evidence is based upon the admission of
the testimony concerning the debt collection, we shall con-
sider that point first. Storey contends that the evidence
was irrelevant and inadmissible because the events oc-
curred after the conspiracy had ended. He further contends
that because the testimony showed that the defendants
were “bad men” its prejudice to the defendants was greater
than its slight probative value. The flaw in Storey’s argu-
ment is that it fails to recognize that Lawrence testified
that there was at least one if not two other importations
in the planning stage at the time the debt was to be col-
lected. de Pianelli’s testimony had established that the
conspirators operated by funding successive importations
with the profits from previous transactions. Thus, for
Johnson to be able to fund future importations, which he
was planning, it was necessary that he collect the proceeds
due from the immediately past importations. Therefore,
the collection of the money which de Pianelli owed him had
both past and future connections. In short, the evidence
was admissible as demonstrating the continuing nature of
the conspiracy or of the criminal enterprise. Larry Storey
was an active participant in the attempt to collect the debt
from de Pianelli. In addition, earlier, when de Pianelli re-
turned to St. George Island, Larry Storey was there and
A-39
told him of the difficulties of transporting the marijuana
from Colombia. All of this demonstrates that there was
sufficient direct evidence to link him to the conspirators.
Once he was linked to the conspirators, then statements
of his co-conspirators were admissible as well. From those
statements, it was established that Larry Storey had been
on the boat which brought the marijuana to Orange Beach;
that he had been at St. George Island when de Pianelli
arrived from the District of Columbia; and that he had
related events which occurred in Colombia to delay the
arrival of the marijuana. The conspiracy came to an end
not with the importation to St. George Island, but, accord-
ing to Lawrence’s testimony, only after the conspirators
became aware of the surveillance by law enforcement of-
ficials. Larry Storey was an active, knowing participant
in the conspiracy until its involuntary end; therefore his
conviction must be affirmed.
The final defendant, Brent Harelson, was convicted on
two counts, conspiracy to import marijuana and the sub-
stantive act of importing at St. Marks. On appeal he raises
three points. First, he contends that it was an error for
the trial court not to charge the jury that the government
must prove an overt act as part of its burden of proving
a violation of 21 U.S.C. § 963. Consideration of that con-
tention is made unnecessary by two recent decisions of this
court which have held that under section 963 as well as its
parallel, section 846, proof of an overt act is not required.
United States v. Thomas, 567 F.2d 638, 641 (5th Cir. 1978) ;
United States v. Palacios, 556 F.2d 1359, 1364 n.9 (5th
Cir. 1977).
A-40
Harelson’s next contention is that there was insufficient
evidence to support the conviction on either count. On
Count I, the conspiracy count, Harelson contends that
de Pinelli’s testimony showed that Harelson was no more
than a purchaser and indeed a purchaser who had no
knowledge of the conspiracy. Support for that contention
comes from portions of de Pianelli’s testimony in which
he said that Harelson was a mere purchaser. As the
government points out in its brief, however, the testimony
taken as a whole reveals direct proof of a continuing
relationship between Harelson, de Pianelli, and Johnson
during which Harelson acted to advance the joint interest
of all the conspirators. From the start Harelson provided
front money to permit the financing of importation of
marijuana. He also relayed messages from Johnson to
de Pianelli concerning meetings in Florida. Harelson was
present during and was a participant in discussions
about the importations at Orange Beach and St. Marks.
de Pianelli’s testimony showed that Harelson was an
active, knowing participant in the conspiracy to import
marijuana.
Harelson contends also that there was insufficient evi-
dence to support his conviction on Count III, which charged
a substantive act of importation at St. Marks. Once we
have concluded that there was sufficient evidence to prove
that he was a knowing member of the conspiracy, no
additional evidence is necessary to warrant a conviction
on a substantive count which charges him with an event
which occurred while he was active as a member of the
conspiracy. See, e.g., United States v. Becker, supra, 569
F.2d at 958-59. Nevertheless, Harelson contends that there
A-41
was no proof that the St. Marks importation was from
outside the customs territory of the United States or that
any defendant involved there had traveled outside the
United States. To support the guilty verdict he says one
must assume that the defendants acted either as part of a
larger conspiracy or that one of them arranged this im-
portation. The latter was true according to de Pinelli’s
testimony. When Storey arrived with the 4,000 pounds
of marijuana, le came on a skiff which Lipper and
Schlager said had sailed into the Gulf to pick up a load
from another vessel. de Pianelli testified that from the
markings on the bags and from his testing of the mari-
juana, it was evident that the marijuana had come from
Colombia. “Customs territory of the United States” is
defined as including “only the States, the District of
Columbia, and Puerto Rico.” See Headnote 2, Revised
Tariff Schedules, 19 U.S.C. § 1202; 21 U.S.C. § 951(a) (2).
Although there may be cases in which careful considera-
tion is necessary to determine if a substance was imported
from outside the customs territory, this is not such a case.
The evidence introduced at the trial showed that the mari-
juana came from Colombia. None of the evidence would
support an inference of any other origin. The nation of
Colombia is so clearly outside the customs territory of the
United States as not to require instruction.
Harelson’s final contention is that it was an error for
the trial judge to fail to instruct the jury that the defend-
ants were not on trial for conduct not alleged in the in-
dictment. He supports his contention by characterizing
the events which occurred in an attempt to collect the debt
from de Pianelli as “others crimes” including theft, extor-
A-42
tion, kidnapping for ransom or false imprisonment, and
assault and battery. That characterization is inappropriate.
The purpose of introducing the testimony concerning the
debt collection was to show that the conspiracy was con-
tinuing and that the conspirators intended to import addi-
tional loads of marijuana. The testimony did not relate to
“other crimes” but instead related to the substance of the
offense charged. The trial court properly instructed the
jury that they were to determine the guilt or innocence
of each defendant based only upon the evidence against
that defendant. Thus there was no error and Harelson’s
convictions are affirmed.
In summary, we have concluded that the trial court
did not commit reversible error in its conduct of the pro-
ceedings and that there was sufficient evidence to support
the conviction of all defendants except Jesse Storey. His
conviction is reversed and remanded to the trial court
for further proceedings. With the exception of Johnson’s
conviction for conspiracy to import marijuana all other
convictions are affirmed. Johnson’s conviction on the con-
spiracy count is vacated because it was a lesser included
offense to the charge of engaging in a continuing criminal
enterprise.
' AFFIRMED IN PART, REVERSED AND RE-
MANDED IN PART, AND VACATED IN PART.
a
ane nice
Ah Ane
Ae ela Sa ate peter &
A-43
APPENDIX “B”
In the United States Court of Appeals
for the Fifth Circuit
No. 77-5327
United States of America, ;
Plaintiff-A ppellee,
versus
Charles A. Johnson, Dennis L. Lipper,
Jesse Roscoe Storey, Roger Mark
Schlager, Lawrence Jess Storey, Jr.,
=~
and Brent Harrelson,
Defendants-A ppellants.
[Filed September 11, 1978]
Appeals from the United States District Court for the
Northern District of Florida
ON PETITIONS FOR REHEARING
(September 11, 1978)
Before: TUTTLE, MORGAN and CLARK, Circuit
Judges.
PER CURIAM:
IT IS ORDERED that the petitions for rehearing filed
on behalf of all appellants, except Jesse Roscoe Storey,
A-44
in the above entitled and numbered cause be and the
same are hereby denied.
ENTERED FOR THE COURT:
/s/ CHARLES CLARK
United States Circuit Judge —
Se eds
A-45
APPENDIX “C”
United States District Court
for the Northern District of Florida
Tallahassee Division
Docket No. TCR 77-703-01
,
United States of America,
Plaintiff,
vs. .
Charles A. Johnson,
Defendant.
JUDGMENT AND PROBATION/COMMITMENT
ORDER
In the presence of the attorney for the government the
Month Day Year
defendant appeared in person on this date 5 / 25 / 77
COUNSEL
XXX WITH COUNSEL PHILLIP STEIN, ESQUIRE
(Name of counsel)
PLEA
XXX NOT GUILTY
There being a verdict of
XXX GUILTY.
A-46
FINDING & JUDGMENT
Defendant has been convicted as charged of the of-
fense(s) or from on or about July 1, 1971, up to and in-
cluding December 31, 1974, in the Northern District of
Florida, knowingly and intentionally combining, conspiring,
agreeing and having a tacit understanding with others to
import marijuana in violation of Title 21, U. S. Code, Sec-
tions 952 and 963, as charged in Count One (1); knowingly
and intentionally importing and aiding and abetting in
importing marijuana in violation of Title 21, U. S. Code,
Section 952(a) and Title 18, U. S. Code, Section 2, as
charged in Counts Three (3) and Four (4); wilfully en-
gaging in continuing criminal enterprise defined in Title
21, U. S. Code, Section 848, in violation of Title 21, U.S.
Code, Section 952(a), as charged in Count Five (5) of the
Indictment.
SENTENCE OR PROBATION ORDER
The court asked whether defendant had anything to say
why judgment should not be pronounced. Because no suf-
ficient cause to the contrary was shown, or appeared to
the court, the court adjudged the defendant guilty as
charged and convicted and ordered that: The defendant
is hereby committed to the custody of the Attorney General
or his authorized representative for imprisonment for a
period of five (5) years on Count One of the Indictment;
and that he be so committed for a period of five (5) years
on Count Three of the Indictment, with the sentence im-
posed herein as to Count Three of the Indictment to run
consecutively to the sentence imposed herein as to Count
One of the Indictment; and that he be so committed for a
A-47
period of five (5) years on Count Four of the Indictment,
with the sentence imposed herein as to Count Four of the
Indictment to run concurrently with the sentence imposed
herein as to Count Three of the Indictment; and that he
be so committed for a period of ten (10) years on Count
Five of the Indictment, with the sentence imposed herein as
to Count Five of the Indictment to run consecutively to the
sentences imposed herein as to each of Counts One, Three
and Four of the Indictment; and that the defendant shall
become eligible for parole under Title 18, U. S. Code, Sec-
tion 4205(b)(2) on Counts One, Three and Four of the
Indictment, at such time as the U. S. Parole Commission
may determine.
SPECIAL CONDITIONS OF PROBATION
It is Further ORDERED and ADJUDGED that pursu-
ant to and as provided by Title 21, U. S. Code, Section
841(b(1)(A), there is also hereby imposed a special parole
term of three (3) years each as to each of Counts One,
Three and Four of the Indictment, in addition to the afore-
said terms of imprisonment as to Counts One, Three and
Four of the Indictment.
ADDITIONAL CONDITIONS OF PROBATION
In addition to the special conditions of probation
imposed above, it is hereby ordered that the general condi-
tions of probation set out on the reverse side of this judg-
ment be imposed. The Court may change the conditions
of probation, reduce or extend the period of probation, and
at any time during the probation period or within a maxi-
mum probation period of five years permitted by law, may
A-48
issue a warrant and revoke probation for a violation oc-
curring during the probation period.
COMMITMENT RECOMMENDATION
The court orders commitment to the custody of the Attor-
ney General and recommends.
It is ordered that the Clerk de-
liver a certified copy of this
judgment and commitment to
the U.S. Marshal or other qual-
ified officer.
CERTIFIED A TRUE COPY
MARVIN A. WAITS, CLERK
By /s/ Anne A. Busse
Deputy Clerk
SIGNED BY
XXX U.S. District Judge
/s/ WINSTON E. ARNOW, Chief Judge
Date May 25th, 1977
A-49
APPENDIX “D”
STATUTORY PROVISIONS
21 U.S.C. $952. Importation of controlled substances—
Controlled substances in schedules I or II and
narcotic drugs in schedules III, IV, or V; ex-
ceptions
(a) It shall be unlawful to import into the customs
territory of the United States from any place outside
thereof (but within the United States), or to import into
the United States from any place outside thereof, any
controlled substance in schedule I or II of subchapter I
of this chapter, or any narcotic drug in schedule III, IV,
or V of subchapter I of this chapter, except that—
(1) such amounts of crude opium and coca leaves
as the Attorney General finds to be necessary to pro-
vide for medical, scientific, or other legitimate pur-
poses, and
(2) such amounts of any controlled substance in
schedule I or II or any narcotic drug in schedule III,
IV, or V that the Attorney General finds to be neces-
sary to provide for the medical, scientific, or other
legitimate needs of the United States—
(A) during an emergency in which domestic
supplies of such substance or drug are found by
the Attorney General to be inadequate, or
(B) in any case in which the Attorney General
finds that competition among domestic manu-
facturers of the controlled substance is inadequate
and will not be rendered adcquate by the regis-
tration of additional manufacturers under section
823 of this title,
A-50
may be so imported under such regulations as the Attorney
General shall prescribe. No crude opium may be so imported
for the purpose of manufacturing heroin or smoking opium.
Nonnarcotic controlled substances in schedules III, IV, or V
(b) It shall be unlawful to import into the customs
territory of the United States from any place outside
thereof (but within the United States), or to import into
the United States from any place outside thereof, any
nonnarcotic controlled substance in schedule III, IV, or V,
unless such nonnarcotic controlled substance—
(1) is imported for medical, scientific, or other
legitimate uses and
(2) is imported pursuant to such notification or
declaration requirements as the Attorney General may
by regulation prescribe.
Coca leaves
(c) In addition to the amount of coca leaves anthorized
to be imported into the United States under subsection (a)
of this section, the Attorney General may permit the im-
portation of additional amounts of coca leaves. All cocaine
and ecgonine (and all salts, derivatives and preparations
from which cocaine or ecgonine may be synthesized or
made) contained in such additional amounts of coca leaves
imported under this subsection shall be destroyed under
the supervision of an authorized representative of the
Attorney General.
Pub.L. 91-513, Title IIT, § 1002, Oct. 27, 1970, 84 Stat. 1285.
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21 U.S.C. § 963. Attempt and conspiracy
Any person who attempts or conspires to commit any
offense defined in this subchapter is punishable by im-
prisonment or fine or both which may not exceed the maxi-
mum punishment prescribed for the offense, the commis-
sion of which was the object of the attempt or conspiracy.
Pub.L. 91-513, Title III, § 1013, Oct. 27, 1970, 84 Stat. 1291.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.