Petition — LIPPER v. UNITED STATES (Nos. 78-638, 78-591, 769)

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

NO. 7 bs - ? g

DENNIS L. LIPPER, LAWRENCE

JESS STOREY, JR., and ROGER

MARK SCHLAGER,

Petitioners,

vs.

P UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

CARL E. STEWART, ESQ.

610 Newport Center Drive

Suite 1455

Newport Beach, CA 92660

(714) 644-9450

Attorney for Petitioners

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

NO.

DENNIS L. LIPPER, LAWRENCE

JESS STOREY, JR., and ROGER

MARK SCHLAGER,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

CARL E. STEWART, ESQ.

610 Newport Center Drive

Suite 1455

Newport Beach, CA 92660

(714) 644-9450

Attorney for Petitioners

TOPICAL INDEX

Table of Authorities

OPINION BELOW

JURISDICTION

QUESTIONS PRESENTED FOR REVIEW

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS WHY THE COURT SHOULD

GRANT THE WRIT:

ADDITIONAL REASONS WHY THE

COURT SHOULD GRANT THE WRIT:

CONCLUSION

EXHIBIT A OPINION affirming the

judgment of conviction

EXHIBIT B ORDER denying petition

for rehearing

22

28

TABLE OF AUTHORITIES

BARBER v. PAGE

390 U.S. 724

88 S.Ct. 1318 (1968) 16

BRIDGER v. UNION RAILWAY COMPANY

355 F.2d 382

(6th Cir. 1966) 24, 25

BRUTON v. U.S.

390 U.S. 123

88 S.Ct. 1620 16, 18

CALIFORNIA v. GREEN

399 U.S. 149

90 S.Ct. 1930 (1970) 16, 17

DOUGLAS v. ALABAMA

380 U.S. 415

85 S.Ct, 1074 16

DUTTON v. EVANS

400 U.S. 74

91 S.Ct. 210 10-12

27 L.Ed. 213 (1970) 15, 16, 18-20

HOOVER v. BETO

467 F.2d 16 (1972) 12

PARK v. HUFF

506 F.2d 849

(Sth Cir. 1975) 12 ,

ii

Cases

POINTER v. THEE STATE OF TEXAS

380 U.S. 400

85 S.ct. 1065 (1965)

UNITED STATES v. AMARAL

488 F.2d 1148

(9th Cir. 1973)

UNITED STATES v. BARNARD

490 F.2d 907

(9th Cir. 1973)

UNITED STATES v. BROWN

557 F.2d 541

(6th Cir. 1977)

UNITED STATES v. ENRIGHT

C.A. 6th (June 20,

23 CRL 2335

UNITED STATES v. GREEN

458 F.2d 1261

(6th Cir. 1977)

UNITED STATES v. PETROZZIELLO

548 F.2d 20

Constitution

U.S. Constitution

Fifth Amendment

U.S. Constitution

Sixth Amendment

iii

16

25

26

26

13

29

14

Rules and Statutes

Federal Rules of Evidence

Rule 104 (a)

Federal Rules of Evidence

Rule 702

Federal Rules of Evidence

Rule 801(d) (2) (E)

Title 21, United States Code

Sections 952 and 963

Title 21, United States Code

Section 952 (a)

Title 21, United States Code

Section 848

Title 28, United States Code

Section 1254(1)

iv

‘peng

IN THE

SUPREME COURT OF THE UNITED STATES

October Term,

NO.

DENNIS L. LIPPER, LAWRENCE

JESS STOREY, JR., and ROGER

MARK SCHLAGER,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

The Petitioners, DENNIS L. LIPPER,

LAWRENCE JESS STOREY, JR., and ROGER

MARK SCHLAGER respectfully pray that a

writ of certiorari issue to review the

judgment and opinion of the United

States Court of Appeals for the Fifth

Circuit, entered July 5, 1978, and

the Order Denying the Petitions for

Rehearing entered on September 11, 1978.

ee

Petitioners herein would also

request leave os the Court to adopt

and incorporate by reference in this

petition the petitions for writ of

certiorari, if any, to be filed by

the co-defendants herein.

OPINION BELOW

The Court of Appeals entered its

opinion on July 5, 1978. Thereafter,

the Petitions for Rehearing were

ordered denied. Said order was

entered on September 11, 1978. A

copy of the opinion, affirming the

judgment of conviction is attached as

Appendix A and a copy of the Order

Denying the Petitions for Rehearing

is attached as Appendix B.

JURISDICTION

Jurisdiction of this Court is

invoked under Title 28, United States

Code, Section 1254(1).

QUESTIONS PRESENTED FOR REVIEW

1. Was the trial court's

qualification of de 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' right to confront the

witnesses against them as guaranteed

by the Sixth Amendment of the United

States Constitution?

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment 5 to the Constitution

of the United States states in

pertinent part:

"No person shall be held to

answer for a capital, or other-

wise infamous crime, ... nor

shall be compelled in any

criminal case to be a witness

against himself, nor be deprived

of life, liberty, or property,

without due process of law;

Amendment 6 to the Constitution

of the United States states in

pertinent part as follows:

"In all criminal prosecutions,

the accused shall enjoy the right

to a speedy and public trial,

- « « 7 to be confronted with

the witnesses against him; to

have compulsory process for

obtaining witnesses in his

favor, and to have the

Assistance of Counsel for his

defense."

3.

STATEMENT OF THE CASE

Petitioners were indicted and tried

in the United States District Court

for the Northern District of Florida

on five counts. The charges contained

in these counts were as follows:

Count 1, conspiracy to import mari-

juana in violation of 21 U.S.C. 952

and 963; Counts 2, 3 and 4 were sub-

stantive counts charging the illegal

importation of marijuana on various

occasions in violation of 21 U.S.C.

952(a). Count 5 charged the

petitioners and others with engaging

in a continuing criminal enterprise in

violation of 21 U.S.C. 848.

At the conclusion of the jury

trial, petitioners herein were con-

victed of Count 1, the conspiracy

count, and Count 3, the substantive

count charging the illegal importation

of marijuana. All petitioners were

acquitted as to Counts 4 and 5. Count

2 was dismissed on motion of the

government. The conspiracy and sub-

stantive acts alleged in connection

4.

¥

=

4

therewith were alleged to have

occurred in a period from 1971 until

approximately the end of 1973. The

trial took place in March of 1974.

No marijuana was ever recovered by

the government nor was any introduced

into evidence during the course of

the trial below.

The chief, and virtually the only,

witness for the government was one

John de Pianelli, an un-indicted co-

conspirator, who, from his testimony

allegedly participated in four of the

acts of importation. One other witness,

a Bill Lawrence, testified as to

certain efforts on the part of some

of the other alleged co-conspirators

to collect some money from de Pianelli

which occurred after the last act of

the conspiracy, as set forth in Count l.,

He further testified as to the details,

as related to him by a co-defendant,

of an alleged transaction which

occurred after the last date alleged

in the indictment. None of the

petitioners herein was present during

Ss.

this event or the later conversation.

The Court below ruled, in denying

petitioners’ appeals, that Lawrence

was a member of the conspiracy. It

is submitted that this is absolutely

contrary to the evidence at the trial.

Lawrence's participation in the

efforts to collect the money from de

Pianelli had nothing whatsoever to do

with the alleged conspiracy to import

marijuana into the United States,

During the course of the trial,

de Pianelli gave an enormous amount

of hearsay testimony which tied all of

the petitioners herein into the alleged

conspiracy. All defendants had

entered a running objection to all such

hearsay testimony and furthermore made

a motion to strike all such testimony

at the conclusion of the government's

case in chief. It is the petitioners'

major contention in this petition to

this Honorable Court that without the

use (and abuse) of the so-called

conspirator exception to the hearsay

rule that the evidence would not have

supported their conviction on either

6.

count.

A major element that had to be

proven as to the three substantive

counts of illegal importation of the

marijuana into the United States was

the source of the marijuana in question.

De Pianelli was permitted to testify,

as an “expert witness," the Court

finding that from his expertise gained

on the street in the use and handling

of marijuana that he could identify

the source of marijuana by its taste,

smell, physical appearance and "high"

(the effect upon the user). The Court,

prior to qualifying de Pianelli as an

"expert" permitted voir dire examina-

tion by defense counsel. De Pianelli

had testified on direct examination

that he had smoked marijuana hundreds

of times and had been able to "“dis-

tinguish its source" at least twenty

times without being proven wrong, No

corroboration or details of any kind

were given with respect to this self-

serving statement.

On cross-examination, the witness

Fe

conceded that he had never been in

South America, had never seen marijuana

growing outside the United States and

that the only proof or verification

as to the "source" of the marijuana

that he had smoked in the United States

had been what someone else had told

him. Counsel for all defendants

strenuously objected to the Court's

permitting the witness to testify as

an expert as to the source of the

marijuana in the face of his very

obvious lack of qualification,

In rebuttal, the defendants put on

a Dr. Loren C. Anderson, a professor

of botany from the Florida State

University at Tallahassee, who

specialized in the study of marijuana

plants all over the world. He

testified it was absolutely impossible

to identify the source of marijuana by

its taste, smell, appearance of by the

effect it would have upon the user.

He further testified that while

marijuana might vary according to the

climate, soil, and the amount of care

8.

and various other factors, that this

could vary considerably within the

geographical limits of any country,

He testified it would be absolutely

impossible to tell the source of

Marijuana by the use of any or all

of the criteria allegedly relied

upon by de Pianelli.

Other than the so-called expert

testimony of de Pianelli, there was

absolutely no direct evidence whatso-

ever as to the extra-territorial

source of the marijuana in question,

All of the petitioners herein were

sentenced to five years on each count,

to run concurrently, with a three year

special parole provision. Lawrence

is presently in federal custody;

Lipper and Schlager are on bail pending

appeal.

REASONS WHY THE COURT SHOULD

GRANT THE WRIT:

RULE 801(d) (2) (E) OF THE FEDERAL

RULES OF EVIDENCE CLEARLY VIOLATED THE

PETITIONERS' RIGHT TO CONFRONT THE

WITNESSES AGAINST THEM AS GUARANTEED

9.

BY THE SIXTH AMENDMENT OF THE UNITED

STATES CONSTITUTION,

The Court below rejected the

petitioners' contention that the ad-

mission of hearsay statements of

various alleged co-conspirators,

pursuant to Rule 801(d)(2)(E) of the

Federal Rules of Evidence, violated

their right to confront and cross-

examine the witnesses against them

as "frivolous," citing as authority

therefor this Court's decision in

Dutton v. Evans, 400 U.S. 74, 80-81,

91 S.Ct. 210, 215-216, 27 L.Ed.2d

213 (1970).

It is respectfully submitted that

Dutton v. Evans, supra, (hereinafter

"Dutton") is not dispositive of this

issue for the following reasons:

1. Dutton was a mere plurality

opinion.

2. Dutton dealth solely with

a state exception to the hearsay rule

(which was broader than the federal

rule).

3. The plurality opinion expressly

10.

refused to examine, consider or rule

upon the federal co-conspirator

exception to the hearsay rule holding

that it was a “mere court rule."

This "mere court rule" has now been

Superceded by the adoption of the

Federal Rules of Evidence and Rule

801(d) (2) (E) thereof.

Counsel for petitioners would

emphasize that Rule 801(d) (2) (E) does

not merely codify pre-existing federal

common law in this regard, Rather,

Rule 801(d)(2)(E) states flatly that

a "statement is not hearsay if (E) A

statement by a co-conspirator of a

party during the course and in

furtherance of a conspiracy,"

Rule 801(d)(2)(E) (hereinafter

"the rule") became effective on July l,

1975, some five years after Dutton

was decided,

It is counsel's contention that

this statutory "rule" changes the pre-«

existing "court-made rule" and that as

such it presents substantial questions

of Federal and Constitutional law

ll.

which should be considered and

determined by this Court.

The weight and effect to be given

the confrontation clause of the Sixth

Amendment of the Constitution of the

United States has been the source of

vast argument and discussion between

both the courts and legal scholars and,

in truth, between members of this

Honorable Court. The Fifth Circuit,

in an en banc opinion, split eight to

seven on the final Dutton opinion.

(The original panel opinion held 2 to

1, contrary to the final en banc

Opinion.) See also Hoover v. Beto,

467 F.2d 16 (1972), and Park v. Huff,

506 F.2d 849 (5th Cir. 1975), cases

dealing with the hearsay rule which

split the Fifth Circuit 8 to 7 in en

banc opinions. In Hoover v. Beto, supra,

it is interesting to note that Justice

Rives, who wrote the dissenting opinion,

stated his belief that this Honorable

Court's opinion in Dutton was not dis-

positive of the confrontation issue

with respect to the co-conspirator

12.

hearsay rule.

Now that that rule has become a

part of the statutory scheme of the

Federal Code of Evidence, what effect

does it have upon the handling cf the

issue in the court below? Need

there be a preliminary finding by the

court as to whether or not a conspiracy

existed and whether or not the party

against whom the hearsay is offered is

a member? If the court makes this

determination, does this not deprive

the defendant of his constitutionally

guaranteed right to trial by jury?

What is the quantum proof, if any,

to be applied by the court (if it

should be charged with the duty of

making the initial finding) before

the proffered hearsay is admitted?

This question aicne has resulted in

vast confusion in the various circuits

below as is illustrated in the case

of U.S. v. Enright, C.A. 6th (June 20,

1978) 23 CRL 2335, wherein the court

finds that F.R.Ev. 104(a) has changed

the standard for admitting co-

conspirators' hearsay statements, The

3.

court, after considerable discussion

of the test applied in other circuits,

adopts the "preponderance of evidence"

test and further, that this shall be

determined by the court alone, The

court recognizes in its opinion that;

"The preliminary question--

the existence of a conspiracy

and the defendant's participa-

tion in it--may also coincide

with an ultimate question of

fact for the jury, if a con-

spiracy is charged in the

indictment. Nevertheless, the

fact-finding responsibilities

of the judge and jury are

distinct . . . The trial judge

is ruling on the admissibility

of evidence, not guilt or

innocence, and should not be

bound by the reasonable doubt

standard which guides the

jury's deliberation. Citing

with approval from U.S. v

Petrozziello, 548 F.2d 20,"

It is difficult to conceive or

imagine a more perfect example of boot-

Strapping! The foundational basis

for the admissibility of hearsay of one

conspirator against his co-conspirators

has always been assumed to be on the

theory of agency, that is, each co-

conspiratory is the agent of the other

14,

and is presumed, as a matter of law, to

speak with the authority vested in him.

This, of course, is the ultimate issue

when a charge of conspiracy is being

tried. In order for the hearsay to be

admissible to prove the guilt of the

co-conspirator, you must initially

assume his guilt in order for the

agency theory to be applicable to let

in the evidence necessary to prove the

agency. This, of course, is the great

vice of the rule in any conspiracy

trial. It simply begs the question

- for the panel to say the judge is not

passing on the ultimate issue of

guilt or innocence but merely upon

the admissibility of evidence when the

evidence admitted may be determinative

as to the guilt or innocence of the

party being charged.

Counsel would further contend that

this Honorable Court's decision in

Dutton is an abberation created by the

peculiar facts and circumstances that

were before the court at that time, and

that its holding runs counter to at

15.

least to at least five prior decisions

of this Honorable Court commencing

with Pointer v. The State of Texas,

380 U.S. 400, 85 S.Ct. 1065 (1965);

Barber v. Page, 390 U.S. 724, 88

S.Ct. 1318 (1968); Douglas v. Alabama,

380 U.S. 415, 85 S.Ct. 1074; Bruton v.

U.S., 390 U.S. 123, 88 S.Ct, 1620; and

California v. Green, 399 U.S. 149, 90

S.Ct. 1930 (1970).

A reading of the majority, con-

curring and dissenting opinions in

these five cases, plus the plurality

opinions in Dutton, cannot help but

leave the reader hopelessly confused

as to what rights, if any, of the

accused are protected by the confron-

tation clause of the U.S. Constitution,

It can be said with reasonable

certainty that the use of an affidavit

or deposition, even though under oath,

or the use of testimony taken at a

preliminary hearing (again, even though

under oath) or the confession of a co-

defendant again, even though under

oath, and fully voluntary, if admitted,

16.

are all violative of the Sixth Amend-

ment right to confrontation.

California v. Green, supra, is not

to the contrary. The court is very

careful to point out that the right

of confrontation is preserved because

the prior inconsistent statement

(under the California Evidence Code)

is only admissible if and when the

declarant takes the stand and can be

cross-examined to explain, deny or

admit the prior inconsistent statement,

Throughout the opinions cited

above, there is constant reference to

the effect that the most important

right protected by the confrontation

clause is the right of the defendant

to see and cross-examine the witness

against him and to permit the jury to

observe his demeanor, manner of speak-

ing and general appearance in order

to determine for themselves whether or

not he is speaking the truth,

Throughout all of these decisions,

supra, Justice Harlan concurs but

strikes a recurring theme to the effect

that hearsay evidence of any kind should

17.

be tested under the due process

clause of the U.S. Constitution, that

is, would it deny the defendant a

fair trial to permit an absent witness

to testify against him without the

right to confront and cross-examine

this witness. And certainly it

could be argued that the trial of a

defendant by the use of affidavit,

deposition or transcripts from a

preliminary hearing could just as

easily be held to fall under the

proscription of the due process

clause as the confrontation clause,

It is interesting to note that in

every one of the cases cited above

(excepting Dutton), there is some

indicia of reliability and trustworthi-

ness offered to buttress the out-of-

court statement. Even a confession has

always been considered reliable under

common law rules of evidence as an

admission against penal interest,

However, as the dissent points in

Bruton v. U.S., supra, the co-defendant

who makes the confession may be acting

18,

in his own self-interest in naming

another party or parties to the alleged

crime.

Justice Stewart in his majority

opinion in Dutton states at page 88

as follows:

"From the viewpoint of

the confrontation clause, a

witness under oath, subject

to cross-examination, and

whose demeanor can be observed

by the trier of fact is a

reliable informant not only

as to what he has seen, but

also as to what he has

heard,"

If this is so, why then should we

have any question about hearsay

testimony? In the cases set forth

above, why not have the witness take

the stand and say he heard the

testimony of a witness at the pre-

liminary, the shorthand reporters say

that he took down the affidavit or

deposition, or the officer that he heard

the confession? All are available to

confrontation.

Justice Stewart, in conclusion,

sets forth four reasons why there was

no denial of the right of confrontation

19,

which essentially assert that under

the facts of the Dutton case, cross-

examination of the out-of-court

declarant would have served no useful

purpose for the defendant. That

simply is not the case at bar.

As shown in the dissenting opinion

in Dutton by Justice Marshall at page

lll:

"In my view, Evans (sub-

stitute petitioners herein)

is entitled to a trial in

which he is fully accorded

his constitutional guarantee

of the right to confront and

cross examine all of the

witnesses against him,"

As the prosecution of “whitecollar"

crimes becomes ever more popular, there

is an ever increasing use of the

conspiracy allegations against multiple

defendants as the basic underlying

charge in a conspiracy count, This

"darling of the prosecution" permits

a virtually unlimited recital, usually

by a biased and totally untrustworthy

witness, of the extra-judicial state-

ments of alleged co-conspirators

against which the defendant finds

20.

himself helpless, and now, under the

Evidence Code, without even 4 jury

instruction at the end which would

at least enable him to argue the issue

to the jury. Under the rule now, once

the court has made its determination

tnat there is conspiracy and the

defendant's participation therein,

whether by the "prima facie" test

or the "preponderance of the evidence”

test (either of which, of course, must

necessarily assume the defendant's

guilt) that ends the matter.

The so-called co-conspirator

exception to the hearsay rule, now not

hearsay at all, is indefensible, It

is morally wrong, legally wrong,

and logically wrong, whether a denial

of due process as Justice Harland would

view it, or as a denial of the de-

fendant's right to confront the

witness against him. Either standard,

if followed, would guarantee the

defendant the fair trial and due

process of law as guaranteed by the

Constitution of the United States,

21.

ADDITIONAL REASONS WHY THE COURT

SHOULD GRANT THE WRIT:

THE QUALIFICATION BY THE TRIAL

COURT OF THE CO-DEFENDANT, DE PIANELLI,

AS AN "EXPERT WITNESS" AS TO THE SOURCE

OF THE MARIJUANA IN QUESTION WAS SO

MANIFESTLY ERRONEOUS AS TO REQUIRE

REVERSAL.

A necessary element of the

government's case in chief with

respect to the three counts alleging

the importation of marjuana into the

United States was its extra-territorial

source. The only evidence as to this

particular fact came from the testi-

mony of the witness, de Pianelli, one

of the alleged co-conspirators, after

he had been qualified as an "expert"

on the subject of the "source" of

marijuana. This claimed "expertise"

was based solely on his self-serving

and uncorroborated statements to the

court as to his ability to identify

the country of origin of marijuana

based solely on his street experience.

On direct voir dire, de Pianelli

stated that he had smoked marijuana

22.

hundreds of times and that he had

"correctly identified Colombian mari-

juana at least ten or twenty times,"

Other than this flat statement, the

record contains absolutely no factual

corroboration of .any kind whatsoever.

On cross-examination, he admitted

that he had never been out of the

United States, had never personally

been to Colombia, had never personally

seen marijuana growing in Colombia,

or for that matter, in any other

country, and that the only evidence

or knowledge that he had as to the

source of the "Colombian marijuana"

he claimed to have correctly identified

was from what someone else had told

him, who was not identified nor was

there any evidence as to their

knowledge.

At the conclusion of voir dire

and cross examination, and over the

strenuous objection of counsel,

without making any findings of fact,

the court qualified de Pianelli as an

expert who was thereafter permitted to

23.

identify the marijuana that allegedly

came in on each of the occasions

charged in Counts 2, 3 and 4 as

being “Colombian” marijuana.

While it is conceded that the court

has wide discretion in accepting or

rejecting expert testimony and that

this discretion will not be reversed on

appeal unless abused, it is submitted

that it was abused in the case at bar,

and that the so-called expert opinion

of de Pianelli should not have been

admitted into evidence under any

standard.

In United States v. Green, 458

F.2d 1261 (6th Cir. 1977) the court

applied a four-factor test to be

satisfied before the so-called expert

witness could be qualified, stating

as follows at page 1268:

"Although our formulation

in Bridger (Bridger v. Union

Railway Company, F. 2

(6th Cir. 1966)) of the two

variables to be weighed in

assessing the propriety of

expert testimony, 355 F.2d

at 387, substantially fore-

shadows Rule 702 of the

Federal Rules of Evidence,

24.

we find it to be deficient

when applied t.o criminal cases.

It fails to include among the

factors to be balanced by the

trial court the one which is

unquestionably most important

from the point of view of the

criminal defendant: The

potential prejudicial impact

of the expert testimony upon

the substantial rights of the

accused. We share the

apprehension voiced by the

9th Circuit in U.S. v. Amaral

that, within the context of

a criminal trial, 'scientific

or expert testimony particular-

ly courts the second danger

(of undue prejudice or confusing

the issues or misleading the

jury) because of its aura of

special reliability and trust-

worthy’ 488 F.2d 1148, 1152

(9th Cir. 1973). In recog-

nition of the outcome determin-

ative impact of ‘opinion

evidence clothed with the weight

of expertise,’ Bridger, supra,

at 388, we adopt for use in

criminal appeals the four

criteria proposed in Amaral

for review of trial court

decisions concerning expert

testimony: ‘'l. qualified

expert; 2. proper subject;

3. conformity to a generally

accepted theory; and 4. pro-

bative value compared to

prejudicial effect.' 488

F.2d 1153.

25.

"When we apply this more

stringent standard to the

facts of the case before us,

we are compelled to reverse

appellant's conviction and

to remand the cause for

retrial at the discretion of

government. The record

convinces us that the trial

court clearly abused its

discretion by allowing the

government to introduce ex-

tensive expert testimony of

both dubious relevance and

cummulative prejudicial

impact. See e.g., U.S. V,

Barnard, 490 F.2d 90/7,

9th Cir. 1973); U.S. v.

Brown, 557 F.2d 541 (6th

cis. 1977} .°

Applying the test to the facts of the

case at bar compels the conclusion that

none of the four factors were met and

that the court did in fact abuse its

discretion. De Pianelli was not a

qualified expert, the subject matter

was not a proper subject for expert

opinion, and his expert opinion was not

in conformity with any generally-accepted

explanatory theory, (In this regard,

consider the value of a statement by

someone stating without any basis what-

soever that he could tell the country

where apples or oranges or hops were

grown simply by tasting them, or for

26.

% .

example, that he could tell the country

of origin of tobacco simply by smoking

it.) and, finally, the prejudicial

effect of this "expert" opinion

totally outweighed the probative value

of the testimony. One cannot help

but wonder what the trial court would

have done had the defense offered a

witness with the same or similar

qualifications to testify from his

experience that the marijuana in

question had been grown in the United

States, and not in Colombia or outside

the United States. The question

supplies its own answer.

It is submitted that the record of

the trial court below is absolutely

barren of any evidence which by any

standard would permit the court to

qualify de Pianelli as an expert, other

than his own bald, self-serving state-

ments, which were absolutely contradicted

by Dr. Loren Anderson, the botanist

from Florida State University. The

admission of this testimony entered

over the petitioners' objections was

error and was so highly prejudicial

avs

as to require a reversal of the verdict

below.

CONCLUSION

It is respectfully submitted that

this Court, in the exercise of its

supervisory powers over the Federal

courts below, and because of the

important Constitutional issues

involved, should grant the petition

and order the writ of certiorari to

issue.

AS TO RULE 801(d) (2) (E) OF THE

FEDERAL RULES OF EVIDENCE: The so-

called co-conspirator's hearsay

exception is no longer a "mere court

rule," but rather is now a matter of

statutory law which must be interpreted

by this Court. It is obvious in view

of the confusion that exists in the

various circuits below as to precisely

what procedure should be followed and

what test to be applied in and of

itself requires an examination and

clarification by this Court. [In

addition thereto, as counsel has urged,

the co-conspirator exception as used and

abused in today's courts is clearly a

28.

denial of the defendant's right

to confrontation guaranteed under the

Sixth Amendment of the Constitution

and/or the right to due process of law

as guaranteed by the Fifth Amendment

of the Constitution.

AS TO THE EXPERT OPINION TESTIMONY:

Rule 702 of the Federal Rules of

Evidence lends no standards or guide-

lines for the trial court to apply in

determining what factors are to be

evaluated and what standards are to be

applied in determining whether or not

to admit proferred expert opinion in

testimony. The case at bar is a

perfect example of this. It is

respectfully submitted that this

Court should accept and adopt the

four-factor test as set out in United

States v. Green, supra, and the cases

cited therein as a proper analytical

tool which would result in greater

consistency and fairness in evaluating

the so-called "expert" opinion.

29.

For the foregoing reasons- the

petition for writ of certiorari should

be granted.

Respectfully submitted,

CARL E. STEWART, ESQ.

Attorney for

Petitioners

30,

EXHIBIT A

UNITED STATES v. JOHNSON

UNITED STATES of America,

Plaintiff-Appellee,

Ve

Charles A. JOHNSON, Dennis Lee

Lipper, Lawrence Jess Storey,

Jr., Jesse Roscoe Storey, Roger

Mark Schlager and Brent Harelson,

Defendants~-Appellants.

No. 77-5327

United States Court of Appeals

Fifth Circuit

July 5, 1978

Appeals from the United States

District Court for the Northern

District of Florida.

Before TUTTLE, MORGAN and CLARK,

Circuit Judges.

CHARLES CLARK, 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.

A-1

Count I charged all appellants with

conspiracy to import marijuana in

violation of 21 U.S.C. Sections 952

and 963. Counts II, III, and IV

charged specific substantive acts

of importation, violations of 21 U.S.C.

Section 952(a). Count V charged all

appellants with participating ina

continuing criminal enterprise, a

violation of 21 U.S.C. Section 848,

At trial Count II was dismissed as

to all appellants for failure to

prove venue. At the close of the

government's case other counts were

dismissed as to various defendants.

The jury found Charles Johnson guilty

on all of the remaining four counts,

that is, conspiracy to import mari-

juana, two substantive acts of

importation, and continuing criminal

enterprise. Dennis Lipper was found

guilty of conspiracy to import

marijuana and one substantive count.

Larry Storey was conficted only for

conspiracy to import marijuana.

Jesse Storey was also convicted only

A-2

of conspiracy to import marijuana,

Roger Schiager was convicted of

conspiracy to import marijuana and

one act of importation. Brent Harelson

was convicted of conspiracy to import

marijuana and one substantive count.

A seventh defendant, Kenneth Vance,

was accguitted 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 arcuments, 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 testimony. 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

A-3

was discussed. Later in 1971 de

Pianelli and Harelson met with Johnson

in California to provide the necessary

"front" money for a prosepctive im-

portation venture. At that meeting

Johnson explained that through a

partner in Colombia he had arranged

for the marijuana to be shipped to the

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, telephoned

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. They 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.

A-4

Later de Painelli 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

additional front money to finance a

second importation of marijuana.

Later, Harelson telephoned de

Pianelli from California to confirm

the date for the arrival of the

marijuana. de Pianelli and Harelson

met in Tallahassee, Florida, 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

A-5

Interarity Point house would attract

attention. During the wait for the

marijuana to arrive, de Pianelli also

discussed the time of the arrival and

the 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. Some

days later, in the early afternoon,

de Pianelli saw a skiff coming toward

the Orange Beach residence. de

Pianelli and Harelson helped to pull

the skiff ashore, moor it, and cover

it. On the skiff were J. Moen, Gary

Smith, and Gary Vance. 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 Matthew Moen. After the skiff

used to make the run to shore had been

hidden, the men drove to the Interarity

A-6

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 separated, Johnson

told Schlager, Lipper, Driver, Harelson,

and de Pianelli that there would soon

be another importation. 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 identified the

vehicles in the photograph as belonging

to Johnson, Schlager, Lipper and Moen.

Later in the summer de Pianelli

met with Johnson in California to give

him additional front money to finance

A-7

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 Blan-

chard. Blanchard later testified

that Charles Storey had brought the skiff

to his boatyard and had requested

certain modifications. When asked if

could identify Charles Storey in the

courtroom, Blanchard pointed to Charles

A-8

Johnson. Blanchard also identified

the piece of paper on which the modifi-

cations had been drawn by the man

claiming to be Charles Storey.

Blanchard's records showed that the

boat had left on December 18, 1972,

without the modifications being com-

pleted. The owner of a marina at St.

Marks identified the same boat as the

one moored by Charles Johnson at the

marina from December 1972 through

August 1973. This marina owner also

correctly 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.

After the skiff arrived at St. Marks,

Schlager and Lipper 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, Driver

as well as with de Pianelli. While they

A-9

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 others formed a human chain to

unload the bales of marijuana from

the skiff. Again the marijuana was

weighed, using the same scale 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 couid

not identify him in the courtroom. He

also testified that the men on the boat

once told him that they were taking it

A-10

to St. Marks. The owner of a marina

at St. Marks identified Johnson as

the man to whom he had sold gasoline

in December of 1972,

In the spring of 1973, Johnson,

Lipper, Schlager and de Pianelli met

at the house at 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 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 another.

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

explained that Moen was having

A-11

difficulties in Colombia. During 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 Johnson's

request, de Pianelli furnished an

additional $16,000 to finance the pur-

chase 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 discuss 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 difficul-

ties with agents in Colombia and by

attempts to acquire additional mari-

juana. Before the load was shipped

A-12

frrwee

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 dis-

cussions with Johnson, Lipper, and :

Schlager, de Pianelli expected the

load could arrive. When they 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 de

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

A-13

Ay A am

that de Pianelli had rented the

trailer on November 10, i373. When

he arrived de Pianelli was told by

6 Ae ge ROPE OR ee

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 Pianelli left for

Washington. de Pianelli received

more marijuana than he had already

purchased. When he ieft for Washing-

ton he owed Johnson about $156,000

for the additional 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 trans-

porting 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

had sold the house.

A-14

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 Island ship-

ment. de Pianelli did not comply.

Three days later Johnson returned with

Bill Lawrence. Lawrence testified

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 transaction. Larry Storey,

who Lawrence identified in the court-

room, and Captain Storey were present

at that first meeting. Johnson and

Lawrence attempted to detach the

trailer from de Pianelli's car and to

attach it to Johnson's vehicle.

Upon being asked the reason for his

conduct, Johnson responded that he was

taking the trailer as payment for the

money owed him. Johnson, Lawrence,

and de Pianelli then went into de

Pianelli's motei room to discuss the

debt. Captain Storey and Larry Storey

A-15

were also present. In an attempt to

coerce de Pianelli into paying the

debt, Johnson had Lawrence begin hit-

ting and kicking de Pianelli. During

the time that Lawrence was beating

de Pianelli, Larry Storey encouraged

him, agreeing with Johnson that de

Pianelli should be killed. The

dispute over the debt was temporarily

resolved when de Pianelli's father-in-

law agreed tosign a note promising to

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 law enforcement

officials had the house under surveil-

lance. 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 government

A-16

oan

introduced the testimony of law

enforcement officials 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 Schalger's brother). Another

agent testified that he had observed

the boats described by de Pianelli 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 observations of the house

owned by Johnson on St. George Island

between October and December of 1973.

(1) 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 importa-

tion; and ten years for continuing

A-17

criminal enterprise. The sentences on

the substantive counts were to run con-

currently; the sentences for conspiracy

and for the continuing criminal enter-

prise were to be consecutive sentences.

Johnson argues that the imposition of

consecutive sentences for conspiracy

to import marijuana and for engaging in

a continuing criminal enterprise is

prohibited by Jeffers v. United States,

432 U.S. 137, 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 continal 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

concentrates his argument on his con-

viction under section 848. That section

provides:

(a) (1) any person who engages

in a continuing criminal enterprise

shall be sentenced to a term of

A-18

imprisonment which may not be less

than 10 years and which may be up

to life imprisonment, to a fine of

not more than $100,000, and to the

forfeiture prescribed in paragraph

(23) 3 «6

(b) For purposes of subsection

(a) of this section, a person is

engaged in a continuing criminal

enterprise if --

(1) he violates any pro-

vision of this subchapter or

subchapter II of this chapter

the punishment for which is a

felony, and

(2) such violation is a

part of a continuing series

of violations of this sub-

chapter or subchapter II of this

chapter--

(A) which are undertaken by

such person in concert with five

or more other persons with

respect to whom such person

occupies a position of organizer,

a supervisory position, or any

A-19

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

continuing criminal enterprise. In-

stead, he focuses his attack on the

provision in section 848(b) (2) (A) which

requires that for a person to be en-

gaged 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 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 government

misled him about the proof that it would

introduce at trial. [In particular,

Johnson contends that though the

A-20

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. He 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 responds to both of

these arguments by emphasizing that

the indictment was returned in general

terms, in fact, in the words of the

A-21

statute. As a result, the government

could provide specifics without

amending the indictment. The govern-

ment further argues that Johnson was

not prejudiced since in pretrail

proceedings it told Johnson that it

would show that he had managed others

than his codefendants.

The discussions in those pretrial

proceedings related to the original

indictment, which was returned on

January 18, 1977, and a superceding

indictment, which was filed on March

10, 1977. Count V of both indictments

charged a continuing criminal enter-

rpise as defined by 21 U.S.C. Section

848. The original indictment named

twelve persons in Count V: the seven

defendants who were tried together

and five other persons, The super-

ceding 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

A-22

ena yme A HOSE AS II TOULR LI BLONI OLIN IAP IO

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 defendants 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 the indictment." Davis'

indication 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 the defendants to learn

A-23

the identity of the supervised persons,

Davis responded to the court, "I said

that they “the Spanish-surnamed

individuals) are among the five that

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 information, the

court stated that it would grant no

more motions for a bill of particulars.

Throughout these pretrial proceed-

ings and, in fact, throughout the

presentation of its case, the govern-

ment 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 suggested

to the jury that the government had

A-24

shown that Johnson had supervised five

or more other persons. Never during

the trial were the four Spanish-sur-

named individuals mentioned. Thus,

for there to be sufficient evidence

to convict Johnson under section 848,

there must be evidence that he organized,

supervised, or managed five or more

persons other than the Spanish-sur-

named individuals. The sufficiency

of the evidence is dealt with later.

At this point, we consider only whether

there was a prejudicial variance

between the indictment and the proof

at the trial of between the bill of

particulars and the proof at the trial.

(2-4) 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 the indict-

ment;

"An indictment is required to set

forth the elements of the offense

sought to be charged ... in order

to sufficiently apprise the defendant

A-25

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 (5th Cir. 1974) (en banc), saying,

"If an indictment 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 enterrpise. See, e.g., United

States v. Strand, 566 F.2d 530, 534

(5th Cir. 1978). The proof at trial

was directed toward demonstrating that

A-26

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.

(5) A bill of particulars

amplifies the indictment by providing

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. 571, 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, 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

A-27

variance and that such surprise pre~

judiced 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 co-

defendants 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 variance,

the defendants could not have been pre-

judiced. 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

discussion during pretrial conferences of

the violations which the government

would use to show that there was a con-

tinuing criminal enterprise. Those dis-

cussions were necessitated by the fact

A-28

that courts have required that a mini-

mum of three illegal acts be proved

to establish a continuing 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 pro-

vide 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 occasions. 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,

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 gov-

ernment to amend its statement so that

the date of the violation was January

10, 1972. Although counsel for

defendants objected to the allowance

A-29

of this amendment, they made no motion

for a continuance.

(6) It is a well settled rule that

a bill of particulars “may be amended at

any time, and the decision to allow an

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 Vv. Perez,

489 F.2d 93, 95 (5th Cir. 1974). See

also United States Vv. Sherriff, 546 F.2d

604, 606 (Sth Cir. 1977). In an attempt

to show that he was prejudiced, Johnson

contends 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

could cross-examine on the 1971 date.

(7, 8) Johnson has failed to

demonstrate any actual prejudice from

A-30

this change and he has failed to

Gemonstrate 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 aileged 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 pre-

_ judicial for the government to show

other acts of the 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.

(9) 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

A-31

superficially simple statute is actually

very complex, therefore requiring care-

ful instructions for the jury to avoid

prejudice to a defendant. Johnson also

urges that in the prosecutor's closing

argument he misstated the criteria

involved in proof of a violation of

section 848. In particular, Johnson

contends that it was improper for the

prosecuting attorney 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 understanding 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 require a specific definition,

A-32

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 definition of the

words in this statute, it was not error

to refuse to do so in the straightfor-

ward context of this case.

(10) The prosecutor did not mis-

state 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. Boltz, 558 F.2d 316, 320

(Sth Cir.), cert. denied sub nom.

Hicks v. United States, A kt

98 S.Ct. 417, 54 L.Ed.2d 290 (1977);

United States v. Sperling, 506 F.2d 1323,

1344, (2d Cir. 1974), cert. denied, 420

U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 439

(1975). Moreover, the definition of

"King Pin" in Webster's Third New

International Dictionary shows the apt-

ness of the term: "One that holds a

chief or most prominent place in a group

or undertaking."

A-33

(11) Johnson's fifth argument is

that there was insufficient evidence to

convict him of a violation of section

848. He divides 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 sufficient 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 orchestrated the

activities of anyone. He interprets

the evidence as showing only that all

of the codefendants were working to-

gether 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. For the

second point, Johnson contends that

there was no evidence which demonstrated

his relationship to the other defendants.

The only evidence, according to Johnson,

is that de Pianelli occupied an inferior

A-34

AP ne NE IEEE OPO ESE eae.

position to the other defendants, From

this, Johnson contends, one cannot con-

clude that all of the other defendants

occupied an inferior position.

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 Barca,

George Driver, and William Lawrence.

Thus, even excluding the codefendants

from the computation, it is apparent

that the government proved there were

five or more persons involved in this

criminal activity. The government also

proved that Johnson acted in a super-

visory, managerial, or organizing

capacity with respect to these five or

more other persons. For each trans-

action 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 renting

A-35

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

managed the activities of other persons,

Or, in the words of de Pianelli, every-

one involved assumed that "Mr. Johnson

was our leader."

Johnson's final argument is that

because of the ineptitude 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. Johnson now argues that Stein's

first concern was to protect himself

A-36

- 09 TEAR

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 potential witness on

Johnson's behalf who would testify

concerning de Pianelli's threats

against Johnson. Thus, Johnson con-

cludes, the trial judge ought to have

inquired about this conflict of interest

and Stein should have withdrawn 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 investi-

gate 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

A-37

during trial when he failed to ask de

Pianelli about his use of LSD and when

he received unexpected answers con-

cerning 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

Johnson 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 state-

ment, that he did not know the relevant

facts and therefore asked irrelevant

questions, that he asked questions

to which he did not know the answers,

thus leading to disaster, that he could

not control de Pianelli, thus allowing

him to colunteer damaging evidence, and

that he asked questions which incorrect-

ly assumed that Johnson was present at

various occasions. Johnson concludes

by arguing that the trial court was

A-38

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 inept-

ness also demonstrates that Stein was

effective enough to preserve at least

five grounds for error on appeal. This

inconsistency, however, is not the

basis for our decision.

(12, 13) The standard for

measuring the performance of trial

counsel is reasonably effective assis-

tance. As this court has repeatedly

stated, this standard does not re-

quire errorless counsel. E.g., United

States v. Carter, 566 F,2d 1265, 1272-

1273 (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

A-39

to enhance his effectiveness with the

jury as Johnson's representative.

That was a reasonable trial tactic

under the circumstances and an equally

plausible explanation of his actions.

Johnson was entitled to have counsel

of his cpoice and that selection could

include a lawyer with whom he had

prior dealings. The evidence concerning

de Pianelli's threats to Johnson was

given by an Internal Revenue Service

agent. Thus there was no need to call

Stein as a witness to establish this

fact. On cross-examination, counsel

for defendant Lipper 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 persuaded that any prejudice

arose. Moreoever, whatever prejudice

may be contended to have arisen from ;

the diff erence between Stein's opening

A-40

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 objec-

tions at trial, and generally made his

presence effectively felt in the con-

duct 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 continu-

ing enterprise. We vacate his conviction

A-41

or conspiracy to import marijuana.

The next appellant, Dennis Lipper,

raises four points in his brief on

appeal. He first argues that it was

improper to permit de Pianelli to

testify as an expert concerning the

origin of marijuana. Appellants con-

cede that the substance with which they

were dealing was marijauna. They

contend, however, that there was no

objective evidence 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 defendants 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

A--42

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 characteris-

tics, as well as upon the smell and

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

education 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 marijuana that had been

grown in the United States and had

A-43

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 Pianelli to give opinion evidence,

Before the jury he related his experi-

ences 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 contends that it was an

error to qualify de Pianelli as an

expert because he had never been to

South America and, of course, had never

smoked marijuana there or seen it growing

in South America. Finally, Lipper

contends that de Pianelli's testimony

was conclusively rebutted by an

A-44

rere ee

associate professor of biological

science at Florida State University,

Loren C. Anderson.

(14, 15) In Crawford v. Worth,

477 F.2d 738, 740-41 (5th Cir. 1971),

we stated the principle which guides

appellate review of trial court

determinations concerning expert

testimony:

The federal rule regarding review

standards of trial court rulings on

expert opinion evidence is stringent.

"* * * the trial judge has broad

discretion in the matter of the

admission or exclusion of expert

evidence, and his action is to be

sustained unless manifestly errone-

ous." Salem v. United States Lines

Co., 370 U.S. 31, 82 S.Ct. 1119, 8

L.Bd.2a 313, . .. In this Circuit's

terms: "The expert qualifications

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

A-45

1126 (5th Cir. 1970).

"If 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.“ Stein-

berg 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 re-

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 inference will probably

aid the trier in his search for

the truth.

Pineberg v. United States, 393 F.2d 417,

A-46

LC

421 (9th Cir. 1968),

(16) Here the subject of the

inference, the source of the marijuana,

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. Section

952. Testimony which would identify

the source of the marijuana would be

of obvious assistance to the jury.

It was therefore proper for the trial

court to consider whether de Pianelli

was qualified to provide such testimony,

(17) 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

A-47

marijuana, In light of that testimony,

the trial court was within its discre-

tion in deciding to admit the testimony

for the jury's consideration.

(18) The introduction of testi-

money from an expert witness does not

foreclose the issue from consideration

by the jury, which need not accept the

expert's testimony. A defendant is

free to introduce his own expert to

challenge the prosecution's witness.

Here the defense introduced the testi-

money 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

concerning the weight it should give

to testimony. In addition, it specifi-

cally instructed the jury regarding

expert witnesses 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 be-

tween the experts was correctly

A-48

ieee eee ,

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 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 testi-

money 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 problen,

See United States v. Brown, 557 F.2d

A-49

a teyeey Hegreer ie wry Et | re ®

541, 554-59 (6th Cir, 1977). Neither

at trial nor on appeal have the appel-

lants 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

consider that objection as well. Cf.

United States v. Brown, supra, 557 F.2d

at 557 n,17.

(19) On the record before us we

cannot say that the claim of an ability

to identify Colombian marijuana is so

inherently implausible that, as a matter

of law, a jury should not be permitted

to hear testimony on the identification.

de Pianelli claimed that he could identi-

fy Colombian marijuana. Professor

Anderson disputed that claim. But

Professor Anderson admitted that clima-

tological differences could produce

differences in the marijuana plants.

Professor Anderson's testimony was based

A-50

upon the lack of scientific tests which

would demonstrate that marijuana grown

in Colombia differed from that grown

elsewhere. Tests had shown, however,

that marijuana grown in Canada differed

from marijuana grown in other locations.

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 consider 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 argument 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.

(20) 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

A-51

government to reveal the time, date, and

participants in any overt act which the

government intended to use to prove

the conspiracy, the date and place

each conspirator joined in the con-

spiracy as well as the time 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 particulars 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 judge's rulings and in

A-52

the absence of such a showing there

can be no reversible error,

(21) Lipper’s third contention

is that it was erroneous to admit the

testimony of the various law enforce-

ment agents concerning their surveil-

lance of the houses and other activities

of defendants. Lipper bases his argu-

ment upon Rule 403 of the Federal Rules

of Evidence, contending that the pre-

judicial effect of the evidence was

greater than its probative value. He

contends that the dates of the surveil-

lance 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 suggests in his brief

that the evidence was prejudicial because

it corroborated de Pianelli's testimony.

A-53

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.

(22) 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 declara-

tions of co-conspirators, is uncon-

stitutional because it violates the

confrontation clause. This argument

is frivolous. See Dutton v. Evans,

400 U.S. 74, 80-81, 91 S.Ct. 210, 216-

16, 27 L.Ed.2d 213 (1970).

(23) Jesse Storey was convicted

only on Count I, the conspiracy count.

In his brief on appeal he raises two

points. First he contends that there

was insufficient evidence to support

A-54

TTT TE

5 TON ATOM

this contention by pointing to the

fact that no one ever identified him

in the courtroom. In addition, he

contends that the only nonhearsay evi-

dence 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 hearsay

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

shew 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

A-55

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 government

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 reasonable

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, 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 Pianelli 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

A-56

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 there-

fore 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 con-

viction for lack of sufficient evidence,

we need not consider this second part.

Roger Schlager was convicted on

Count I of conspiracy to import mari-

juana and on Count III of knowing and

intentional importation at St. Marks,

His appeal, like his defense at trial,

is based upon an alibi wh’h he

developed in two parts. *irst, he

contended that his brother Robert, who

died in 1975, looked so much like him

A-57

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

contentions. She did identify the

people in photographs which 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 concluded 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 December 1972; no

A-58

definite date was given. Again, there

was no necessary inconsistency between

the testimony of the two people,

Pinally, 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 birthday 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 conspiracy.

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.

(24) Schlager's first argument on

appeal is that the trial court

A-59

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 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 wasnot present at the

time when, nor at the place where,

he is alleged to have committed the

offense charged in the indictment.

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

consideration of his guilt or

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innocence under Count III and

Count IV,

The tirst sentence of the second

paragraph which was quoted above clearly

indicates that the jury could consider

the alibi defense during its delibera-

tions on the conspiracy count, Only

after it found Schlager guilty of the

conspiracy count was it to disregard

the alibi defense. Cf. Pinkerton v.

United 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,

(25) 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

questions to the judge;

Check through the testimony of

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the marina operators Shields, Finn,

Blanchard, and Lynn and find out

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 responded 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 mentioned

‘ were specifically asked to identify

Roger Schlager in the courtroom

and none of them did identify

him.

THE FOREMAN: O.K,. That's what

we wanted to know. Schlager con-

tends that the question required

only a yes or a no answer and that

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eS ee |

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 responded 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 testimony of these four wit-

nesses, The response did not add

evidence or mislead the jury by

proving an improper inference.

The judge also consulted with trial

counsel before responding 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 the defendants

by their surnames. Since Roger and

Robert were indistinguishable, Schlager

contends that de Pianelli's references

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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,

according 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 proceedings of the

trial is evident from the early testi-

money 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

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stipulated that de Pianelli had pointed

to the defendant, Roger Mark Schlager.

Furthermore, 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, myself 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 occurred:

Q. (by the prosecutor) You

said Roger?

A. (by de Pianelli) I am sorry,

Mr. Schlager.

Q. Roger Schlager?

A. Yes sir.

Later in his testimony de Pianelli ex-

plained that he had been told that "Mr.

Roger Schlager" and "Mr. Dennis Lipper"

had been involved in the first trans-

action at Interarity Point before he

arrived. It is clear, then, from reading

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the entire transcript of de Pianelli's

testimony that his references to

"Schlager" were references to Roger

Mark Schlager. The trial court did

not err in responding to the second

question as it did.

de Pianelli's failure correctly to

identify Robert and Roger in photo-

graphs 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 identifi-

cation of the defendant as the

perpetrator of the crime. The

Government has the burden of

proving identify, 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.

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20 OR

You may take into account any

occasion in which the witness failed

to make an identification of

defendant, 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.

(26, 27) Larry Storey was convicted

only on Count I for conspiracy 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 contends 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 consider

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that point first, Storey contends

that the evidence was irrelevant and

inadmissible because the events

occurred 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

argument is that it fails to recognize

that Lawrence testified that there was

at least one if not two other importa-

tions in the planning stage at the time

the debt was to be collected. de Pia-

nelli'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, There-

fore, the collection of the money

which de Pianelli owed him had both

past and future connections. In short,

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the evidence was admissible as demon-

strating 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 returned to St. George

Island, Larry Storey was there and 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 state-

ments, 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

Marijauna. The conspiracy came to an

end not with the importation to St.

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George Island, but, according to

Lawrence's testimony, only after the

conspirators became aware of the

surveillance by law enforcement

officials. Larry Storey was an active,

knowing participant in the conspiracy

until its involuntary end; therefore

his conviction must be affirmed,

(28) The final defendant, Brent

Harelson, was convicted on two counts,

conspiracy to import marijuana and the

substantive act of importing at St.

Marks. On appeal he raises three

points. First, he contends that it was

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. Section

963. Consideration of that contention

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.2¢ 638, 641 (5th Cir,

1978); United States v. Palacios, 556

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F.2d 1359, 1364 n.9 (5th Cir, 1977).

(29) 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 Pianelli's

testimony showed that Harelson was no

more a purchaser and indeed a purchaser

who had no knowledge of the conspiracy,

Support for that contention comes from

portions of de Pianelli'ts 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 conspira-

tors, 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

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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.

(30, 31) Harelson contends also

that there was insufficient evidence to

support his conviction on Count III,

which charged a substantive act of im-

portation 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 memeber of

the conspiracy. See, e.g., United States

v. Becker, supra, 569 F.2d at 958-59.

Nevertheless, Harelson contends that

there was no proof that the St. Marks

importation was from outside the cus-

toms territory of the United States

or that any defendant involved there

had traveled outside the United States,

To support the guilty verdict he says

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gt SRE LD OTE

one must assume that the defendants

acted either as a part of a larger

conspiracy or that one of them

arranged this importation. The

latter was true according to de

Pianelli's testimony. When Storey

arrived with the 4,000 pounds of

marijuana, he came on a skiff which

Lipper and Schlager had sailed into

the Gulf to pick up a load from

another vessel. de Pianelli testi-

fied that from the markings on the bags

and from his testing of the marijuana,

it was evidence that the marijuana had

come from Colombia, "Customs territory

of the United States" is defined as

including “only the-States, the

District of Colombia, and Puerto Rico."

See Headnote 2, Revised Tariff

Schedules, 19 U.S.C. Section 1202; 21

U.S.C. Section 95l(a) (2). Although there

may be cases in which careful considera-

tion is necessary to determine if a sub-

stance was imported from outside the

customs territory, this is not such a

case. The evidence introduced at the

trial showed that the marijuana came

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from Colombia, None of the evidence

would support an inference of any other

origin. The nation of Colombia is

so clearly outside the customs terri-

tory of the United States as not to

require instruction.

(32) Harelson's final contention

is that it was an error for the trial

judge to fail to instruct the jury that

the defendants were not on trial for

conduct not alleged in the indictment.

He supports his contention by character-

izing the events which occurred in an

attempt to collect the debts from de

Pianelli as "other crimes" including

theft, extortion, kidnapping for ransom

or false imprisonment, and assault and

battery. That characterization is inap-

propriate. The purpose of introducing

the testimony concerning the debt

collection was to show that the con-

spiracy was continuing and that the

conspirators intended to import addition-

al loads of marijuana. The testimony

did not relate to "other crimes" but

instead related to the substance of the

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offense charged. The trial court

properly instructed the jury that they

were to determine the guilt or inno-

cence of each defendant based oniy 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

proceedings 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 with directions to dismiss. With

the exception of Johnson's conviction

for the conspiracy to import marijuana

all other convictions are affirmed,

Johnson's conviction on the conspiracy

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

REMANDED IN PART, AND VACATED IN PART,

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