Petition — Harelson v. United States
Supreme Court brief1979
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SUPreIRR Court, U,
FILE D”
NOV ‘8 1978
I
: | Miley
IN THE SUPREME ‘COURT OF THE CL A@DAK, JR, CLER
UNITED STATES
October Term, 1978
No. 78-769.
CHARLES A. JOHNSON,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
Richard B. Maze
Pentheuse, 1231 Market Street
san r'rancisco, CA 94103
Telephone: (415) 552-6500
Attorney for Petitioner
CHARLES A. JOHNSON
IN THE SUPREME COURT OF THE
UNITED STATES
October Term, 1978
No.
CHARLES A. JOHNSON,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
RICHARD B. MAZER
870 Market St., Suite 608
San Francisco, CA 94102
Telephone: (415) 981-4141
Attorney for Petitioner
CHARLES A. JOHNSON
TABLE OF CONTENTS
TABLE OF AUTHORITIES
OPINION BELOW
JURISDICTION
QUESTIONS PRESENTED FOR REVIEW
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
STATEMENT OF THE CASE
REASONS FOR GRANTING THE WRIT
POINT ONE: THE COURT OF
APPEALS' RULING THAT NO
VARIANCE OCCURRED BETWEEN
THE IDENTITY OF THE FIVE
OR MORE OTHER PERSONS WHO
PETITIONER WAS ALLEGED TO
HAVE ORGANIZED, SUPER-
VISED OR MANAGED AS BETWEEN
THE BILL OF PARTICULARS AND
THE PROOF AT TRIAL IS SO
MANIFESTLY ERRONEOUS AS TO
REQUIRE REVERSAL OF PETI-
TIONER'S CONVICTION FOR
HAVING ENGAGED IN A CON-
TINUING CRIMINAL ENTERPRISE
-i-
>
22
POINT TWO: THE COURT OF
APPEALS' RULING THAT AN
INDIVIDUAL WHO, WITHOUT
QUESTION, DID NOT PARTI-
CIPATE IN ANY OF THE ACTS
WHICH WERE RELIED UPON TO
PROVE THE "CONTINUING
SERIES OF VIOLATIONS" MAY
NEVERTHELESS BE INCLUDED
AS ONE OF THE "FIVE OR MORE
OTHER PERSONS" WHO PETI-
TIONER ALLEGEDLY ORGANIZED,
SUPERVISED OR MANAGED IS SO
ERRONEOUS AS TO REQUIRE
REVERSAL OF PETITIONER'S
CONVICTION FOR HAVING EN-
GAGED IN A CONTINUING
CRIMINAL ENTERPRISE
POINT THREE: THE COURT OF
APPEALS' CONCLUSION THAT
THE GOVERNMENT PROVED THAT
PETITIONER ACTED IN A SUPER-
VISORY, MANAGERIAL OR OR-
GANIZING CAPACITY AS TO DI
PIANELLI, CAPTAIN STOREY,
J. MOEN, DAVID BARCA AND
GEORGE DRIVER IS NOT SUP-
PORTED BY THE EVIDENCE
JOINDER IN PETITIONS FOR WRITS
OF CERTIORARI FILED ON BEHALF
OF PETITIONER'S CO-DEFENDANTS
CONCLUSION
atte
PAGE
32
35
48
50
TABLE OF AUTHORITIES
CASES
Berger v. United States,
295 U.S. 78, 82, 55 S.Ct.
629 (1935)
People v. Lucas,
337 N.E.2d 103, 33 I11.App.3d
309 (1975)
United States v. Andrino,
501 F.2d 1393 (9th Cir. 1974)
United States v. Bolts, .
5958 F.2d 316 (5th Cir. 1977)
United States v. Cochran,
499 F.2d 380, 386 (5th Cir.)
cert. den., 419 U.S. 1124
(1974)
United States v. Cravero,
945 F.2d 406, 413 (5th Cir.
1976)
United States v. Diez,
5915 F.2d 892 (Sth Cir.) cert.
den., 423 U.S. 1052 (1975)
United States v. Lambert,
501 F.2d 943 (5th Cir. 1974)
United States v. Silverman,
449 F.2d 341 (2d Cir.) cert.
den., 405 U.S. 918 (1971)
United States v. Sisca,
503 F.2d 1337 (2d cir. 1974)
cert. den., 419 U.S. 1008
(1974)
eiii-
PAGE
30
a0, 39
30
26
23, 25
36
CASES PAGE
United States v. Sperling,
506 F.2d 1323 (2a Cir.)
cert. den., 420 U.S. 962
T1975) 36
STATUTES
21 U.S.C. §848(b) (2) (A) 32
-iv-
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, |
NO.
CHARLES A. JOHNSON,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Petitioner, CHARLES A. JOHNSON,
respectfully prays that a Writ of Cer-
tiorari issue to review the judgment
and opinion of the United States Court
Of Appeals for the Fifth Circuit,
entered on July 5, 1978.
OPINION BELOW
The Court of Appeals entered its
Opinion on July 5, 1978. A copy of
said opinion is reported sub nom.
United States v. Johnson, 575 F.2d
=
1347 (Sth Cir. 1978). .A copy of said
opinion appears herein as Appendix A.
Petitioner's timely Petition for Re-
hearing was denied by order of Court
on September 11, 1978. A copy of
said order appears herein as Appendix
B. On September 29, 1978, the Honor-
able Lewis F. Powell, Jr., Associate
Justice of the Supreme Court of the
United States entered an order ex-~
tending the time for filing a Petition
for Writ of Certiorari in this case
to and including November 10, 1978.
A copy of Justice Powell's order
appears herein as Appendix C.
JURISDICTION
Jurisdiction of this Court is
invoked under Title 28, United States
Code, Section 1254(1).
QUESTIONS PRESENTED FOR REVIEW
1. Is the Court of Appeals'
ruling that no variance occurred
between the identity of the five or
more other persons who petitioner was
oe
alleged to have organized, supervised
Or managed as between the Bill of Parti-
culars and the proof at trial so mani-
festly erroneous as to require reversal
of petitioner's conviction for having
engaged in a continuing criminal enter-
prise in violation of 21 U.S.C. §848?
2. Is the Court of Appeals' ruling
that an individual who, without question,
did not participate in any of the acts
which were relied upon to prove the "con-
tinuing series of violations" may never-
theless be included as one of the "five
Or more other persons" who petitioner
allegedly organized, supervised or
managed, so erroneous as to require
reversal of petitioner's conviction for
having engaged in a continuing criminal
enterprise in violation of 21 U.S.C.
§848?
3. Is the Court of Appeals' con-
clusion that the government proved that
petitioner acted in a supervisory, mana-
gerial or organizing capacity as to di
Pianelli, Captain Storey, J. Moen, David
Barca and George Driver supported by the
evidence?
«3a
CONSTITUTIONAL AND STATU-
TORY PROVISIONS INVOLVED
The constitutional and statutory
provisions involved in the determina-
tion of the instant case are set forth
as Appendix D.
STATEMENT OF THE CASE
On or about January 10, 1977,
petitioner and eleven other individuals
were named in a five-count indictment
returned in the United States District
Court for the Northern District of
Florida for various offenses relating
to the importation and conspiracy to
import marijuana. More particularly,
Count One alleged that all defendants
conspired to import marijuana in viola-
tion of 21 U.S.C. §§952 and 963; Count
Two, Three and Four charged all defen-
dants with substantive acts of importa-
tion of marijuana in violation of 21
U.S.C. §952(a). Count Five charged all
defendants with having engaged in a con-
tinuing criminal enterprise in violation
of 21 U.S.C. §848.
a
Subsequently and directly in res-
ponse to motions to dismiss and/or
motions for Bills of Particulars which
attacked the sufficiency of Count Five,
the prosecutor sought and obtained a
superseding indictment which was filed
on March 10, 1977, one day prior to the
hearing on the aforesaid motions which
the defendants had filed.
The prosecutor saw the superseding
indictment as amending Count Five of the
original indictment in two regards:
"One, that four co-defendants were
dropped from that Count;—// and in addi-
tion, the statutory description of the
statutory elements of the defense were
inserted, that is violation §952, a
felony, on at least four occasions and
1/
— The four defendants who were dropped
from the continuing criminal enterprise
count in the superseding indictment were
Eduardo Enrique Davila-Armenta, Raul
Alberto Davila-Jimeno, Julio Cesar Nasser-
David and Jorge Enrique Perez-Ibarra.
-5- ‘
in concert five [sic] or more persons
and during which the individuals
charged occupied the position of or-
| ganized [sic], supervisor or other
positions of management, contained [sic]
therefrom a substantial income." (T. V,
13-14).
At the pretrial conference held on
April 14, 1977, the defendants renewed
and pressed their motions for Bills of
Particulars concerning, inter alia,
Count Five of the superseding indictment.
More specifically, particulars were
sought as to what three or more inci-
dents the government would rely upon in
attempting to prove the predicate viola-
tions necessary for a conviction under
§848. Particulars were also sought as
to the identities of the five or more
persons who the charged defendants
allegedly “organized, supervised or
managed".
The government opposed providing
particulars as to the identities of the
~6<
five or more persons who the defen-
dants were charged with having or-
ganized, supervised or managed (T. VII,
48). The trial court, however, was
concerned with whether the government
intended to show that on some occasions
certain of the charged defendants were
acting as "organizers, supervisors or
managers” while on other occasions said
defendants acted as workers or whether
the government would attempt to estab-
lish that each of the defendants
charged in Count Five were "organizers,
supervisors or managers" of persons
not named in Count Five.
THE COURT: You don't know
whether they're charged with
[sic] among themselves or
people outside the indictment.
That's the problem.
MR. STEIN: —2/ That's correct.
THE COURT: Without getting
into names it could be we need
to go this far to find out a
little bit more about what you
have got here. If you're try-
ing to come in under the count
2/
— References to "Mr. Stein" are to
Phillip Stein, Esq., Petitioner's
trial counsel.
-7-
and say these seven, you've
charged them with this and
these seven will be that
either they were the organi-
zers or, if your proof fails
on some, that the five they
supervised are all part of this
transaction, without going into
people outside of it, it might
be we need to get at least that,
that much, from you, by way of
evidence without going into the
names of those who you're saying,
but if they are persons outside
of this indictment that your
going to have some evidence on,
so that we know that. (T. VII,
47)
2 22 2
THE COURT: And we need to find
Out information, I would think,
of whether this charge in effect
means that your evidence will
come forward to try to charge
each one of these as being
either a manager or worker, or
if it's going to be people out-
side of this that will be referred
to, workers with whom one or more
of them had something going:on.
We need more information without
perhaps names. (T. VII, 48)
In response to the Court's direction
that further particulars be supplied re-
garding the "five or more persons", the
prosecutor replied as follows:
-§-
MR. DAVIS :—2/ I can go this
far, to say there are four
people alleged in the indict-
ment at this point not con-
tained in that Count and that
those four would be people
who would be organized or
supervised by the seven named
in Count Five, and in addi-
tion there would be other
people not named in the in-
dictment. (T. VII, 48-49)
The Court sought further clarification
on this issue and pressed the prosecu-
tor as to whether the government would
contend at trial that any of the seven
defendants named in Count Five were
"workers". The prosecutor's responses
to the court's questions made it clear
that the seven defendants named in the
continuing criminal enterprise
count were "organizers, supervisors
Or managers", not workers.
3/
— References to "Mr. Davis" are to
Clifford A. Davis, Esq., the Assistant
United States Attorney who prosecuted
the case at trial.
-9-
THE COURT: And so the thrust
of all of it is you think that
you will be able to have evi-
dence at least going to the
establishment of each one of
these seven as an organizer
rather than as a worker?
MR. DAVIS: That is correct.
THE COURT: And that's what
you're going to try to prove?
MR. DAVIS: Yes, sir.
THE COURT: In connection with
that proof you'll have some
evidence that tends to go into
some of the other defendants
not now on trial and there
will also be some references
to some others not named on
the indictment at all.
MR. DAVIS: That is correct.
(T. VII, 49)
At trial, the government did not
produce a shred of evidence concerning
the four defendants named in the in-
dictment who were charged in Count
Five of the superseding indictment.
indeed, their names were not mentioned
at all during the trial.
At the close of the government's
case in chief, the court, with consent
@10<
of the government, dismissed Count
Five of the superseding indictment
as to all defendants save petitioner.
The trial court ruled at that time
that in light of the dismissal of
this count of the indictment as to
petitioner's co-defendants at trial,
that the co-defendants were properly
includable in computing whether peti-
tioner was an organizer, supervisor
Or manager with respect to five or
more other persons (T. XIV, 157-158).
The government relied upon proof at
trial that petitioner “organized,
supervised or managed" the co-
defendants with whom he stood trial
(T. XVI, 40-41).
On appeal, the Fifth Circuit
held that no variance occurred between
the identity of the five or more per-
sons who petitioner allegedly organ-
ized, supervised or managed as set
forth in the government's representa-
tions at the pretrial conference
which constituted the Bill of Parti-
culars and the proof at trial:
-ll-
"As the quotations from the
pretrial conference demon-
strate, the defendants were
not told that the five or
more persons would be com-
prised 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 particu-
lars and the proof at trial."
Slip Opinion, p. 5207.
At trial, all of the evidence
with regard to the importation of
marijuana as well as to the identi-
ties and roles of the various members
of the alleged conspiracy was provided
by the testimony of John di Pianelli.
These facts are set forth at length
in the Court of Appeals opinion which
is attached hereto as Appendix A. In
the interest of not being repititious,
petitioner will not repeat all such
facts herein, but instead will confine
himself to a discussion of the facts
relevant to the issues raised in the
instant petition. Thus, petitioner
«1 30
will attempt to isolate the facts as
they pertain to those individuals as
to whom the Court of Appeals concluded
petitioner cucupied the role of or-
ganizer, supervisor or manager.
In finding that there was suffi-
cient evidence to support petitioner's
conviction of having engaged in a con-
tinuing criminal enterprise, the panel
seems to have accepted petitioner's
proposition that the defendants with
whom he stood trial could not be in-
cluded in computing whether the evi-
dence sufficiently showed that he or-
ganized, supervised or managed five or
more other persons.
"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 co-
defendants from the computa-
tion, it is apparent that the
government proved there were
five or more other persons in-
volved in this criminal acti-
vity. The government also
#1 3=
proved that Johnson acted
in a supervisory, managerial,
or organizing capacity with
respect to these five or
more other persons." Slip
Opinion, p. 5209.
For the purpose of analysis,
petitioner shall consider the evi-
dence with respect to each of the
aforenamed six individuals.
WILLIAM LAWRENCE: The undis-
puted evidence was that Lawrence did
not participate in any manner in the
criminal activity until sometime in
January, 1974 when, according to
Lawrence, he was hired by petitioner
to assist in the collection of a debt
which di Pianelli owed petitioner
(T. XII, 139-143). Thereafter, peti-
tioner, Lawrence, Captain Storey and
Lawrence Storey confronted di Pianelli
at a motel in Southern California
where Lawrence resorted to a show of
force in an effort to persuade di
Pianelli to honor his financial obli-
gation (T. IX, 238-248; XII, 145-154).
-14-
Lawrence testified that he con-
tinued in petitioner's employ (T.
XIII, 7). In late summer of 1974,
petitioner told him of plans for a
further marijuana importation scheme
in which Lawrence was to participate.
Under the plan, Lawrence was to be
with Lipper and J. Moen at the St.
George Island house (T. XIII, 8-12).
But, according to Lawrence, the trans-
action was cancelled because the house
was found to be subject to surveillance
by law enforcement officers (T. XIII,
12). Thereafter, Lawrence testified
that petitioner told him that the load
of marijuana had been sold at sea to
someone else (T. XIII, 12, 16).
CAPTAIN STOREY: The evidence as
to Captain Storey's involvement may be
set forth in four categories:
1. While awaiting the arrival of
the marijuana during the Orange Beach
transaction, di Pianelli and Harelson
drove to the house at Orange Beach:
-15-
"Some days later, in the
early afternoon, di Pianelli
saw a skiff coming toward
the Orange Beach residence.
di Pianelli and Harelson
helped pull the skiff ashore,
moor it and cover it. On
the skiff were J. Moen, Gary
Smith and Gary Vance. Moen
told Harelson and di 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." Slip
Opinion, p. 5201.
2. During the negotiations for
the importation which occurred at St.
George Island, Johnson, Lipper,
Schlager, and di Pianelli met to dis-
cuss the shipment:
"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
-16<
crew and to help transfer
the marijuana from one
vessel to another." Slip
Opinion, p. 5202.
3. Subsequent to the meeting
described immediately above, problems
arose in culminating the transaction
as planned (Slip Opinion, pp. 5202-
5203). While waiting for these diffi-
culties to be resolved, according to
di Pianelli's testimony, "Johnson
telephoned Captain Storey in Colombia
to discuss the plans for shipping the
marijuana" (Slip Opinion, p. 3203). .
4. All of the foregoing evidence
was hearsay, testified to by di Pianelli
and based upon what a co-conspirator had
told di Pianelli. The evidence revealed
that di Pianelli had had contact with
Captain Storey on only one occasion.
This was the aforementioned "debt col-
lection" incident. During that inci-
dent, the Captain briefly left the room
and looked around to see whether there
was any trouble or anybody in the
-17-
bushes (T. IX, 247). After returning
to the room, the Captain prevailed upon
the others who were present not to use
further violence on di Pianelli (T. IX,
249).
J. MOEN: During the importation
which occurred at Interarity Point,
Moen told di Pianelli that he had come
from South America on board a ship
named the "Decatur". Moen was also
present at the St. Marks transaction,
at which he and petitioner together
supervised the weighing and allocation
of the marijuana (T. IX, 159-160, 165).
During the preparations for the trans-
action which culminated in the St.
George Island importation, Johnson,
according to di Pianelli, explained
that Moen was in Colombia making the
arrangements to transport the marijuana
from Colombia to the United States.
Later, Johnson told di Pianelli that
the plans had been delayed because Moen
had encountered difficulties in Colombia.
Those difficulties were apparently sur-
-18-
mounted, because eventually the mari-
juana arrived. Moen was also present
at the house located at St. George
Island prior to the arrival of the
marijuana which was the subject of
that importation. However, di Pianelli
testified that when he arrived at the
house to pick up his share of the load,
Johnson told him that Moen had already
departed.
GEORGE DRIVER and DAVID BARCA:
No direct evidence was introduced as to
the relationship between petitioner and
these two men. di Pianelli's testimony
simply indicated that they were present
and participated in the acts of impor-
tation which occurred at Orange Beach
and St. George Island.
JOHN DI PIANELLI: The general
facts concerning di Pianelli's role in
the illegal activity are set forth in
the Court's Opinion. As to his relation-
ship with petitioner, di Pianelli testi-
fied that "...nobody elected themselves
president of the operation, or under-
lying [sic] or overlying [sic] of chief-
= Oe
tain" (T. XI, 69). di Pianelli further
testified that he freely and equally
invested with petitioner and the other
defendants in the purchase of marijuana
(T. XI, 67). Each person would invest
a certain amount of money and in return
would receive a specified quantity of
marijuana (e.g. T. XI, 70, 72). Each
party owned his own vehicle which would
be used for transporting the contraband
to his own part of the country where it
would be distributed as he saw fit (see
Government Exhibits 7-13, T. XI, 200-
209, XI, 70, 134). di Pianelli testi-
fied that nobody, including Johnson,
ever informed him that he had a parti-
cular function which he had to perform
with respect to the operation.
At the close of the government's
case in chief, the trial court granted
petitioner's motion to dismiss Count
Two of the indictment on the grounds
that the government had failed to
prove proper venue. The jury found
petitioner guilty on Counts One, Three,
Four and Five. Petitioner was sen-
tenced to the custody of the Attorney
-20-
General for a period of five years each
On Counts One, Three and Four, and for
a period of ten years on Count Five.
The sentence on Count One was to run
consecutive to the sentences imposed on
Counts Three and Four; the sentences on
Counts Three and Four were to run con-
current with one another; and the sen-
tence imposed on Count Five was to run
consecutive to the sentences imposed on
Counts One, Three and Four. Thus, the
trial court sentenced petitioner to the
custody of the Attorney General for a
total of twenty years.
On appeal, the United States Court
of Appeals for the Fifth Circuit
affirmed petitioner's convictions on
Counts Three, Four and Five, but vacated
his conviction and sentence on Count One
On the grounds that petitioner's convic-
tion for conspiracy to import marijuana
constituted a lesser included offense of
his conviction for having engaged in a
continuing criminal enterprise. Slip
Opinion, p. 5204. Thus, petitioner's
-2l1-
sentences currently total fifteen
years.
Petitioner's motion for bail
pending appeal was denied by the trial
court in the instant case. Petitioner
is currently serving the sentence im-
posed in the instant case in the
Federal Correctional Institution at
Lompoc, California.
REASONS FOR GRANTING THE WRIT
POINT ONE
The Court of Appeals' Ruling
That No Variance Occurred Be-
tween the Identity of the
Five or More Other Persons
Who Petitioner Was Alleged to
Have Organized, Supervised or
Managed as Between the Bill
of Particulars and the Proof
at Trial is so Manifestly
Erroneous as to Require
Reversal of Petitioner's
Conviction for Having Engaged
in a Continuing Criminal
Enterprise
A variance occurs when the proof
at trial differs materially from the
indictment or the Bill of Particulars
provided by the government. United
-22-
States v. Andrino, 501 F.2d 1393 (9th
Cir. 1974); United States v. Silverman,
449 F.2d 341 (2d Cir.) cert. den. 405
U.S. 918 (1971). In the instant case,
the Court of Appeals ruled that no
variance between the identity of the
five or more other persons who peti-
tioner was alleged to have organized,
supervised or managed occurred between
the Bill of Particulars and the proof
at trial.
"As the quotations from the
pretrial conference demon-
strate, the defendants were
not told that the five or
more persons would be com-
prised 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 indivi-
duals as well as other per-
sons unnamed at that time.
Thus, there was no variance
between the bill of particu-
lars and the proof at trial."
Slip Opinion, p. 5207.
Petitioner does not quarrel with
the above characterization of what
occurred at the pretrial conference.
~23-
However, the Fifth Circuit opinion ig-
nores the fact that at trial the court
permitted the co-defendants with whom
petitioner stood trial to be considered
as being among the five or more persons
who petitioner organized, supervised or
managed. It was in this manner that the
trial court permitted the introduction
of evidence which varied in a material
sense from the Bill of Particulars.
It may be remembered that all of
the defendants who stood trial were
charged with having engaged in a con-
tinuing criminal enterprise. At the
close of the government's case in chief,
the trial court granted Rule 29 motions
made by all of petitioner's co-defen-
dants as to Count Five and dismissed
the continuing criminal enterprise
count as to those defendants. Then,
despite the trial court's ruling at
the pretrial conference, the court per-
mitted the prosecution to rely upon
petitioner's co-defendants at trial as
being among the five or more persons
=%24=
who petitioner organized, supervised or
managed (T. XIV, 157-158). This is
where the variance occurred.
A variance occurs when the proof
at trial differs materially from that
set forth in the Bill of Particulars.
United States v. Andrino, 501 F.2d 1393
(9th Cir. 1972); United States v. Sil-
verman, 449 F.2d 242 (26. Cir... 2978).
The variance in the instant case con-
sisted in the trial court's allowing
petitioner's co-defendants at trial to
be considered by the jury as constitu-
ting, in whole or in part, the class of
five or more persons who petitioner
Organized, supervised or managed, after
the co-defendants had been unambiguously
exl'uded from this class by the Bill of
Particulars. This ruling permitted the
introduction of proof at trial on an ele-
ment of the offense which was materially
different from that set forth in the Bill
of Particulars. The Fifth Circuit's con-
clusion that no variance occurred between
the Bill of Particulars and the proof at
trial in this regard is clearly erroneous.
-25-
Because the Appellate Court found
that no variance occurred, it did not
discuss the issue of whether the vari-
ance was prejudicial. The standard for
determining whether a variance is pre-
judicial and therefore requires reversal
is whether the defendant was taken by
surprise by the evidence adduced at trial
or prejudiced in the preparation of his
defense. Berger v. United States, 295
U.S. 78, 82, 55 S.Ct. 629 (1935); United
States v. Lambert, 501 F.2d 943 (5th Cir.
1974). For the benefit of this Court,
petitioner will demonstrate that he was
both taken by surprise and prejudiced in
the preparation of his defense by the
variance herein.
Petitioner was clearly taken by sur-
prise by the variance. The proposed jury
instructions submitted by petitioner
prior to trial reflected his understand-
ing, based upon the representations of
the government in its Bill of Particulars
that the five or more other persons would
not be derived from the co-defendants
with whom he stood trial.
-26-
"Third, that each defen-
dant undertook to commit
such offenses in concert
with five or more other
persons exclusive of any
of the defendants named
in Count Five."
Moreover, petitioner was preju-
diced in the preparation of his defense
by the variance. di Pianelli was the
only witness who testified as to the
relationship between the various defen-
dants and the roles that the various
individuals played in the illegal acti-
vity. Since it was only after the
government had rested its case in chief
that the trial court ruled the defen-
dants at trial could be considered by
the jury as constituting part or all
of the class of five or more other per-
sons, petitioner was prejudiced in that
his trial counsel had no reason to
cross-examine di Pianelli as to the
nature of the relationship between peti-
tioner and the co-defendants with whom
he stood trial. This is so because at
the time petitioner's trial counsel
cross-examined di Pianelli, the defen-
-27-
dants with whom petitioner stood trial
were not to be considered as constitu-
ting in part or whole the class of five
Or more other persons. di Pianelli was
never recalled as a witness. Thus,
petitioner was prejudiced in that he
did not have the opportunity to cross-
examine di Pianelli on an essential ele-
ment of the continuing criminal enter-
prise offense (i.e., whether the defen-
dants with whom petitioner stood trial
were organized, supervised or managed
by petitioner).
The variance further prejudiced
petitioner in the preparation of his
defense in that he was led to forego
the possibility of seeking a severance
for the purpose of obtaining the testi-
mony of some or all of the co-defendants
with whom he stood trial to the effect
that with respect to said co-defendant
or co-defendants, petitioner had not
been an organizer, supervisor or mana-
ger.
The Bill of Particulars furnished
by the government led petitioner to
-28-
believe that the government did not
intend to attempt to prove that he or-
ganized, supervised or managed any of
the defendants with whom he stood trial.
Therefore, there was no reason for peti-
tioner, in the preparation of his
defense, to approach the co-defendants
with whom he stood trial concerning
whether, in a separate trial of peti-
tioner on the continuing criminal enter-
prise charge, held after his co-defen-
dants' guilt or innocense had been
determined, his co-defendants, or any
of them, would be willing to testify
that petitioner had not been an organi-
zer, SupervisOr or manager, but rather
had simply held a position equal to
that of his co-defendants at trial.
If a co-defendant is willing to give
such exculpatory testimony, a severance
of defendants and/or counts may be
appropriate under the provisions of
Rule 14 of the Federal Rules of Criminal
Procedure to achieve the ends of justice.
See, for example, United States v.
~2Q9-
v. Cochran, 499 F.2d 380, 386 (5th Cir.)
cert. den., 419 U.S. 1124 (1974); United
States v. Diez, 515 F.2d 892 (5th Cir.)
cert. den., 423 U.S. 1052 (1975); United
States v. Cravero, 545 F.2d 406, 413
(5th Cir. 1976).
Moreover, it is extremely likely
that the jury found that petitioner had
been an organizer, supervisor or manager
with respect to the defendants with whom
he stood trial. In finding petitioner
guilty of having engaged in a continuing
criminal enterprise, the jury necessarily
found that petitioner organized, super-
vised or managed five or more other per-
sons. Yet there is no way of ascertain-
ing from its verdict which persons the
jury found to be the "five or more
other persons". The vast majority of
the teSiumony at trial concerned the
defendants who were being tried. As
discussed more fully in the following
Points of this Petition, the "six other
persons who were named as acting in con-
cert with the defendants" were scarcely
mentioned at trial. Moreover, with the
possible exception of di Pianelli, no
-30-
evidence regarding their relationship
vis-a-vis petitioner or their respec-
tive roles in the illegal activity was
introduced. Because of these circum-
stances, it is altogether likely that
the jury included some or all of the
co-defendants at trial as constitu-
ting the five or more other persons
who it found petitioner organized,
supervised or managed. A Court of
Appeals ruling that no variance oc-
curred between the identities of the
five or more other persons as pro-
vided by the government in its Bill of
Particulars and the proof at trial is
so manifestly erroneous as to require
this Court to grant certiorari so as
to prevent a substantial miscarriage
of justice.
=3l-
POINT TWO
The Court of Appeals' Ruling
That an Individual Who, With-
out Question, Did not Partici-
pate in any of the Acts Which
Were Relied Upon to Prove the
"Continuing Series of Violations"
May Nevertheless Be Included as
One of the "Five or More Other
Persons" Who Petitioner Allegedly
Organized, Supervised or Managed
Is so Erroneous as to Require
Reversal of Petitioner's Convic-
tion for Having Engaged in a
Continuing Criminal Enterprise
The Court of Appeals ruled that Wil-
liam Lawrence was one of the six indivi-
duals as to whom petitioner acted ina
supervisory, managerial or organizing
capacity. Slip Opinion, p. 5209.
21 U.S.C. §848(b) (2) (A) provides
that:
"A person is engaged in a continu-
ing criminal enterprise if he vio-
lates any provision of this sub-
chapter...the punishment for which
is a felony, and such violation
is part of a continuing series of
violations...which are undertaken
by such person in concert with
five or more other persons with
respect to whom such person occu-
pies a position of organizer, a
supervisory position, or any other
position of management...."
=32-
The statute thus makes clear that
the "five or more other persons" must
be persons with whom the defendant
acted in concert with in engaging in a
continuing series of violations. In
the instant case, the Bill of Particu-
lars identified the transactions which
the government contended proved the
continuing series of violations as the
substantive acts of importation alleged
in Counts Two, Three and Four, as well
as the importation which occurred at
Interarity Point (T. XIV, 154). This
never changed throughout the course of
the trial. Indeed, the government so
argued to the jury (T. XVI, 40-41).
There is absolutely no question that
William Lawrence did not participate
in any of the aforesaid acts of impor-
tation .in any regard whatsoever. These
acts occurred in January, 1972 (Inter-
arity Point); June, 1972 (Orange Beach
- Count Two); December, 1972 (St.
Mark's Island - Count Three); and the
latter part of 1973 (St. George Island
- Count Four) (See Slip Opinion, pp.
-33-
5201-5205). The panel's opinion does
not mention Lawrence as arriving on the
scene until some time in January, 1974.
Because Lawrence did not act in con-
cert with petitioner during any of the
acts which constituted the continuing
series of violations, he may not figure
as one of the "five or more other per-
sons" who petitioner organized, super-
vised or managed. The inclusion of
Lawrence as one of the five or more
other persons is thus not supported by
the evidence at trial and reflects a
serious misapprehension of the inter-
relationship of the "five or more other
persons" and "continuing series of vio-
lations" elements of 21 U.S.C. §848.
-34-
POINT THREE
The Court of Appeals' Con-
clusion That the Government
Proved That Petitioner Acted
in a Supervisory, Managerial
or Organizing Capacity as to
adi Pianelli, Captain Storey,
J. Moen, David Barca and
George Driver Is Not Supported
by the Evidence
The instant case presents an oppor-
tunity for this Court to examine the
nature of the evidence which must exist
in a continuing criminal enterprise
case before one may be found to be an
Organizer, supervisor or manager with
respect to five or more persons with
whom one has acted in concert. 21 U.S.C.
§848(b) (2) (A). It is petitioner's con-
tention herein that the plain meaning of
the statute requires more than a finding
that a defendant performed acts of an
Organizational, supervisional or mana-
gerial nature in the illegal activity
and that there were at least five other
persons in addition to the charged defen-
dant who participated in such activity.
Petitioner submits that before one may be
-35-
found ‘yuilty of having engaged in a
continGing criminal enterprise, the
evidence must show that he undertook
a continuing series of violations
with at least five other persons with
respect to whom the charged defendant
occupied the role of organizer, super-
visor or manager. Such evidence may
be supplied either by direct evidence
of the relationship between the
charged defendant and the five or more
other persons with whom he acted in
concert—"/ or by circumstantial evi-
dence of the respective roles of the
participants in the hierarchy of the
organization which would lead to the
inference that the charged defendant
exercised direct or indirect control 5/
over the activities of his underlings.
_4/see, e.g., United States v. Sisca,
503 F.2d 1337 (2d Cir. 1974) cert. den.
419 U.S. 1008 (1974) and United States
v. Sperling, 506 F.2d 1323 (2d Cir.
1974) cert. den. 420 U.S. 962 (1975).
/ see, e.g., United States v. Bolts,
558 F.2d 316 (5th Cir. 1977).
-26-
Regardless of whether it is direct or
circumstantial evidence, petitioner
contends that the relationship of the
parties or their respective roles in
the illicit activity must be estab-
lished before a charged defendant may
be found to be an organizer, supervi-
sor or manager with respect to five or
more other persons. In the instant
case, the Court of Appeals found that
petitioner occupied the role of or-
ganizer, supervisor or manager with
respect to the following persons: John
di Pianelli, Captain Storey, J. Moen,
David Barca, George Driver, and William
Lawrence (Slip Opinion, p. 5209). In
the preceding Point of this Petition,
it has been shown that because Law-
rence did not participate in any of the
acts which constituted the "continuing
series of violations" element of the
offense, he may not be considered as
constituting one of the "five or more
other persons" with respect to whom
petitioner occupied a position of or-
ganizer, supervisor or manager. With
-37-
regard to each of the other five indivi-
duals named by the Court, petitioner
will establish that there was no direct
evidence of the relationship between
petitioner and each of the five, and
that the evidence of the respective
roles of the parties in the criminal ac-
tivity was insufficient to support the
inference that petitioner occupied the
position of organizer, supervisor or
manager with respect to the five named
persons. For purposes of analysis,
petitioner shall consider the issue with
respect to each of the five named indi-
viduals.
CAPTAIN STOREY: As shown in the
Statement of Facts, there was no direct
evidence of the relationship between
petitioner and Captain Storey. However,
such evidence as was introduced through
di Pianelli's testimony supports the
inference that the Captain acted as the
person in charge of transporting the
marijuana from Colombia and that he had
his own crew to assist him who were,
apparently, organized, supervised or
managed by their skipper.
-38-
There is nothing inherent in this role
which makes the Captain inferior to
petitioner in the hierarchy of the
enterprise. The statute allows for
more than one person to occupy the role
of organizer, supervisor or manager.
United States v. Cravero, 545 F.2d 406,
409, n. 1 (5th Cir. 1976). Yet if two
persons are found to occupy roughly
equal positions of authority, the
statute would seem to preclude a
finding that one such person was or-
ganized, supervised or managed by the
other. Indeed, according to di
Pianelli, he only met Captain Storey on
One occasion. This occurred when peti-
tioner and Lawrence approached him at
a motel in Santa Barbara, California
and demanded payment of the debt which
di Pianelli owed petitioner. di Pia-
nelli was escorted to a motel room to
discuss payment of the debt. The Cap-
tain and Larry Storey were also present.
=~ 39—
In an attempt to coerce di
Pianelli into paying the
debt, Johnson had Lawrence
begin hitting and kicking
di Pianelli. During the
time that Lawrence was beat-
ing di Pianelli, Larry Storey
encouraged him, agreeing with
Johnson that di Pianelli
should be killed. Slip Opinion
p. 5204.
According to di Pianelli's testimony,
Captain Storey opposed the use of fur-
ther violence and his word prevailed
(T. IX, 248-250). Thus, in the only
direct contact which di Pianelli ob-
served between the Captain and peti-
tioner, it was the Captain's word which
prevailed. There was absolutely no
violence, either direct or circumstan-
tial, which pointed to the inference
that petitioner was an organizer,
Supervisor cr manager with respect to
Captain Storey. The Court of Appeals’
inclusion of the Captain as one of the
five or more other persons organized,
supervised or managed by petitioner
was Clearly erroneous.
-40-
J. MOEN: The inference to be drawn
from the evidence of J. Moen's role in
the conspiracy is that he was peti-
tioner's partner in Colombia with whom
he had arranged for the importations.
When petitioner, Lipper, Schlager
and di Pianelli met at the Interarity
Point residence in the spring of 1973
to discuss the transaction which cul-
minated in the St. George Island im-
portation, petitioner, according to di
Pianelli, told him as much:
"Johnson explained that between
five and six thousand pounds of
marijuana was in storage in
Colombia and that J. Moen was
making the necessary arrange-
ments to sent it by ship from
Colombia into the Gulf of
Mexico where it would be trans-
ferred to another vessel for
transportation to the United
States." Slip Opinion, p. 5302.
When the transaction did not take place
as scheduled, petitioner explained to
the participants "that Moen was having
difficulties in Colombia" (Slip
Opinion, pp. 5202-5203). This evidence
clearly indicates that J. Moen was the
-4]-
person to whom petitioner was referring
when in one of his initial meetings
with di Pianelli petitioner "explained
that through a partner in Colombia he
had arranged for the marijuana to be
shipped to the United States" (Slip
Opinion, p. 5200). As petitioner's
partner in the enterprise, J. Moen is
not a person with respect to whom peti-
tioner occupied a position of organizer,
supervisor or manager.
This conclusion is further supported
by the role Moen played during the St.
Mark's importation. In finding that
petitioner "organized, supervised or
managed the activities of other persons"
the panel in part relied upon its con-
clusion that petitioner "acted as a
general coordinator of the activities
at each place of importation" (Slip
Opinion, p. 5209). The evidence shows
that during the St. Mark's transaction,
Moen and petitioner together supervised
the weighing and allocation of the mari-
juana (T. IX, 159-160, 165). There
simply is no evidence in the record from
-42-
which one may reasonably conclude that
Moen occupied a position subservient to
that of petitioner in the structure of
the activity in which the two men en-
gaged.
GEORGE DRIVER AND DAVID BARCA: Ab-
solutely no direct evidence was intro-
duced as to the relationship between
petitioner and these two men. di Pia-
nelli's testimony simpiy showed that
both men were present and participated
in the importation which occurred at
Orange Beach and St. George Island
(Slip Opinion, pp. 5201-5202). Yet no
evidence of their role in the illicit
enterprise was ever introduced. There-
fore, there is no way a reasonable
trier of fact could conclude that either
Driver or Barca was organized, super-
vised or managed by petitioner.
JOHN DI PIANELLI: di Pianelli was
the only participant as to whom direct
evidence of his relationship with peti-
tioner was introduced. When asked
point-blank about the nature of his
relationship with petitioner, he stated
that "...nobody elected themselves
~43<
president of the operation, or under-
lying [sic] or overlying [sic] of chief-
tain" (T. XI, 69). di Pianelli testi-
fied that he freely and equally invested
with petitioner and the other defendants
in the purchase of marijuana (T. XI,
67). Each person would invest a speci-
fied sum and in return would receive a
particular quantity of marijuana (T. XI,
70-72). Each party owned his own vehicle
which would be used for transporting the
contraband to his own part of the coun-
try, where it would be distributed as he
saw fit. di Pianelli testified that no-
body, including petitioner, ever informed
him that he had a particular function
which he had to perform with respect to
the operation. In addition to putting
up money for the purchase of marijuana,
di Pianelli also assisted in the purchase
of capital goods necessary to carry out
the scheme. For example, during either
the Interarity Point or Orange Beach
transaction, di Pianelli put up the sum
of $800.00 towards the rental of a house
to be used in connection with the trans-
-~44-
action (T. XI, 41). di Pianelli testi-
fied that petitioner did not instruct
him to do this, but that he undertook
it on his own volition (T. XI, 7). On
another occasion, when the group needed
funds for the purchase of a boat to com-
plete the St. George Island transaction,
petitioner turned to di Pianelli for aid
because petitioner was short of funds
(T. IX, 196). Without any coaxing from
petitioner, di Pianelli came up with the
$16,000.00 necessary to purchase the
vessel and complete the transaction (T.
IX, 197).
Although there are no reported
federal decisions which discuss the
nature of the relationship which must
exist before one may be found to be an
"organizer, supervisor or manager" within
the meaning of §848, there is such a
decision by the Illinois Court of Appeals
construing a similar state statute which
provides some guidance. In People v.
Lucas, 337 N.E.2d 103, 33 I1l.App.3d 309
(1975), the court discussed this issue
in construing §405 of the Controlled Sub-
-45-
stances Act (Ill.Rev.Stat., ch. 56-1/2,
par. 1045) [engaging in a calculated
&/ The court
criminal drug conspiracy].
held that:
"In order to prove that the
defendant either organized or
directed a conspiracy to deliver
a controlled substance there
must be evidence which shows, in
substance, that the defendant
either had sufficient influence
over his co-conspirators to be
in a position to systematize
their activities or to give
orders or instructions that
would to some extent be binding."
337 N.E.2d at 107.
-/ nat section provides in relevant ——
part: <
"(h) For purposes of this section,
a person engages in a calculated crim-
inal drug conspiracy when
(1) he violates any of the pro-
visions of subsections (a)
or (b) of Section 410 or sub-
section (a) of Section 402;
and
(2) such violation is a part of
a conspiracy undertaken or
carried on with two or more
other persons; and
(3) he obtains anything of value
greater than $500 from, or
organizes, directs or finan-
ces such violation or con-
spiracy."
-46-
Thus, the statute "must be read to be
confined to those offenders who can be
said to exercise a governing or deter-
mining influence over narcotics vio-
lations". Id.
The offense of engaging in a cal-
culated criminal drug conspiracy
carries a substantially harsher poten-
tial penalty than do the offenses of
conspiracy to distribute or distribu-
tion under Illinois law. The court
found that in view of the legislative
intent of the statute Yenat:
"The statute implicitly re-
quires that before a defendant
can be convicted of the offense
of calculated criminal drug
conspiracy, the extent of his
involvement must be measured
against that of his co-con-
spirators." Id.
_/ 0 "penalize most heavily the illi-
cit traffickers or profiteers of con-
trolled substances, who propagate and
perpetuate the abuse of such substances
with reckless disregard for its consump-
tive consequences upon every element
Of -B0CIOEY 6505"
o4Fo
Under the facts of the case before it,
measuring the defendant's involvement
against that of his co-defendants, the
court found there was insufficient evi-
dence to support a finding that he exer-
cised the necessary degree of control
or influence to sustain his conviction.
337 N.E.2d at 307-308.
Using this test, it becomes clear
that di Pianelli's testimony as to his
relationship with petitioner, as well as
the role which he played vis-a-vis the
role which petitioner played in the ille-
gal activity, does not support the con-
clusion that petitioner was an organizer,
supervisor or manager with respect to di
Pianelli.
This Court should grant certiorari
to provide guidance to the lower courts
in assessing this aspect of the con-
tinuing criminal enterprise statute.
JOINDER IN PETITIONS FOR WRITS
OF CERTIORARI FILED ON BEHALF
OF PETITIONER'S CO-DEFENDANTS
As previously noted in this petition,
petitioner was jointly charged and tried
-48-
with a number of other individuals.
Petitioner's appeal to the United States
Court of Appeals for the Fifth Circuit
was consolidated with the appeals of
those defendants who had been found
guilty at trial and who had appealed
(Dennis L. Lipper, Lawrence Jesse
Storey, Jr., Roger Mark Schlager and
Brent Harelson). Petitioner is in-
formed that a Petition for a Writ of
Certiorari on behalf of Dennis L.
Lipper, Lawrence Jesse Storey, Jr.,
and Roger Mark Schlager has been
timely filed in this Court by Carl E.
Stewart, Esq., said case being docket
number 78-638. Petitioner is further
informed that a timely Petition for
Writ of Certiorari on behalf of Brent
Harelson has been filed in this Court
by John L. Pollok, Esq., said case
being docket number 78-591.
Petitioner adopts by reference here-
in the arguments and authorities which
are set forth in the aforesaid Peti-
tions for Writs of Certiorari the same
as if said arguments and authorities
-49-
were fully set forth herein.
CONCLUSION
For the reasons stated above, as
well as the reasons set forth in the
Petitions for Writs of Certiorari
filed on behalf of petitioner's co-
defendants, certiorari should be
granted in the instant case.
DATED: November » 1978.
Respectfully submitted,
RICHARD B. MAZER
870 Market St., Suite 608
San Francisco, CA 94102
Telephone: (415) 981-4141
Attorney for Petitioner
CHARLES A. JOHNSON
(Appendices Follow)
-50-
ea"
"BR"
se
" D"
APPENDICES
Opinion of the United States
Court of Appeals for the Fifth
Circuit, dated July 5, 1978
Order of the United States
Court of Appeals for the Fifth
Circuit, denying Appellants'
Petitions for Rehearing, dated
September 1l, 1978
Order signed by the Honorable
Lewis F. Powell, Jr., extending
the time inwhich petitioner may
apply for a writ of certiorari,
dated September 29, 1978
Constitutional and Statutory
Provisions relied upon in the
instant Petition
APPENDIX “A”
No. 77-5327
UNITED STATES COURT OF APPEALS,
FIFTH CIRCUIT
United States of America, |
Plaintiff-Appellee,
v.
Charles A. Johnson, Dennis Lee Lipper,
Lawrence Jess Storey, Jr., Jesse Roscoe
Storey, Roger Mark Schlager and Brent
Harelson,
~~
Defendants-A ppellants. :
. [July 5, 1978]
Appeals from the United States District Court
for the Northern District of Florida.
Before Tuttie, Morcan and Cuark, Cireuit Judges.
Cuarves CuLark, Circuit Judge:
The six appellants in this case were named in five counts
of an indictment charging them with crimes related to
marijuana transactions occurring between July 1971 and
December 1974. Count I charged all appellants with con-
spiracy to import marijuana in violation of 21 U.S.C.
§§ 952 and 963. Counts II, II], and IV charged specific
substantive acts of importation, violations of 21 U.S.C.
§ 952(a). Count V charged all appellants with participating
in a continuing criminal enterprise, a violation of 21 U.S.C.
A-2
§ 848, At trial Count IT was disinissed 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 remain-
ing four counts, that is, conspiracy to import marijuana,
two substantive acts of importation, and continuing crim-
inal enterprise. Dennis Lipper was found guilty of con-
spiracy to import marijuana and one substantive count.
Larry Storey was convicted only for conspiracy to import
marijuana. Jesse Storey was also convicted only of con-
spiracy to import marijuana. Roger Schlager was convicted
of conspiracy to import marijuana and one act of importa-
tion. Brent Harelson was convicted of conspiracy to import
marijuana and one substantive count. A seventh defendant,
Kenneth Vance, was acquitted of conspiracy after all other
counts against him had been dismissed.
Many of appellants’ arguments relate to the sufficiency
of the evidence or to evidentiary rulings made by the trial
court. To provide a foundation for our discussion of those
arguments, we will first relate the facts in the light most
favorable to the government and in some detail. At trial
the principal government witness was John de Pianelli,
though other witnesses corroborated portions of his testi-
mony. According to de Pianelli, in the late spring of 1971
a mutual friend arranged a meeting between him and
Charles Johnson at which the importation of marijuana
was discussed. Later in 1971 de Pianelli and Harelson met
with Johnson in California to provide the necessary “front”
money for a prospective importation venture. At that meet-
ing Johnson explained that through a partner in Colombia
he had arranged for the marijuana to be shipped to the
A-3
United States. They originally thought that the marijuana
would arrive in December 1971, but the arrival was delayed
until January 1972. Harelson, who was in California, tele-
phoned de Pianelli, in Maryland, to tell him of the new
date. Harelson and de Pianelli met Johnson in Pensacola,
Florida, after the load of marijuana arrived. The three
men drove to Interarity Point, Florida, where Johnson had
rented a house, using the name Charles Storey. The rental
was confirmed by the testimony of the owner of the house.
After receiving their shares of the marijuana, de Pianelli
and Harelson drove to Maryland where they distributed
the marijuana, Later de Pianelli was told that Lipper and
Roger Schlager also received shares of this marijuana.
In the spring of 1972, de Pianelli and Harelson once
again met with Johneon in California and gave him addi-
tional front money to finance a second importation of mari-
juana. Later, Harelson telephoned de Pianelli from
California to confirm the date for the arrival of the mari-
juana. de Pianelli and Harelson met in Tallahassee, Flor-
ida, and drove to the Interarity Point house where Lipper,
Schlager, George Driver, David Barca, and Johnson were
already present, de Pianelli recalled that he arrived about
five days before hurricane Agnes struck the coast, on June
19, Johnson explained that the load of marijuana was on
the way from South America by boat but that it was to be
delivered about nine miles away at a house which he had
rented in Orange Beach, Alabama, because of his fear that
repeated usage of the Interarity Point house would attract
attention. During the wait for the marijuana to arrive,
de Pianelli also discussed the timing of the arriva! and the
A-4
kind of marijuana with Lipper, Schlager, Harelson, Driver,
and Barca.
de Pianelli and Harelson drove to the house at Orange
Beach to await the arrival of the marijuana. Sone days
later, in the early afternoon, de Pianelli saw a skiff coming
toward the Orange Beach residence. de Pianelli and Harel-
son helped to pull the skiff ashore, moor it, and cover it.
On the skiff were J. Moen, Gary Smith, and Gary 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 Mathew Moen. After the skiff used to make
the run to shore had been hidden, the men drove to the
Interarity Point house to inform Schlager, Lipper, Barca,
and Driver of the boat’s arrival.
That night the men drove back to the Orange Beach
house to unload the skiff. While Johnson supervised the
weighing and allocation of the marijuana, everyone else
helped in unloading the marijuana, most of which was
packed in burlap bags. After the marijuana had been sepa-
rated, Johnson told Schlager, Lipper, Driver, Harelson,
and de Pianelli that there would soon be another importa-
tion. The individuals then left to distribute the marijuana.
As support for de Pianelli’s testimony the government
introduced aerial photographs of the house at Interarity
Point. de Pianelli testified that he recalled a plane flying
low over the house while they were there. He also identi-
fied the vehicles in the photograph as belonging to John-
son, Schlager, Lipper, and Moen.
A-5
Later in the summer de Pianelli met with Johnson in
California to give him additional front money to finance
another shipment of marijuana. In December 1972, de
Pianelli and Harelson went to Crawford’s Fishing Camp
near St. Marks, Florida, where Johnson had told Harelson
he would meet them. The owner of the camp testified that
he rented it to Charles Storey for the month of December
1972. Schlager and Lipper were at the fishing camp when
de Pianelli and Harelson arrived; Johnson, Driver, Barca,
and J. Moen arrived later. Johnson asked de Pianelli and
Driver to go to Pensacola and return with the skiff which
had been modified since its use in bringing the marijuana
ashore at Orange Beach. In the interim it had been
repainted at a boatyard and fitted with a larger gas tank.
de Pianelli recalled that the boatyard owner’s name was
Blanchard. Blanchard later testified that Charles Storey
had brought the skiff to his boatyard and had requested
certain modifications. When asked if he could identify
Charles Storey in the courtroom, Blanchard pointed to
Charles Johnson. Blanchard also identified the piece of
paper on which the modifications had been drawn by the
man claiming to be Charles Storey. Blanchard’s records
showed that the boat had left on December 18, 1972, with-
out the modifications being completed. The owner of a
marina at St. Marks identified the same board as the one
moored by Charles Johnson at the marina from December
1972 through August 1973. This marina owner also cor-
rectly identified Charles Johnson at the trial. Both marina
owners had records that listed the address. of the house
on Interarity Point which Johnson had rented as the
address of the owner of the boat.
A-6
After the skiff arrived at St. Marks, Schlager and Lip-
per took it out into the Gulf of Mexico on several nights
in an effort to contact a vessel, the Aurora, carrying the
marijuana. Lipper and Schlager discussed their intentions
with Harelson, Barea, and Driver as well as with de Pia-
nelli. While they were at Crawford’s Fishing Camp they '
often discussed the fact that the marijuana was coming
from Colombia, which they anticipated would assure a high
quality. About ten days after de Pianelli’s arrival at St.
Marks, Schlager and Lipper returned with the marijuana.
de Pianelli related how he and the others formed a human
chain to unload the bales of marijuana from the skiff.
Again the marijuana was weighed, using the same scale
as at Orange Beach, and distributed among the various
men.
The owner of a marina at Alligator Point, southwest of
St. Marks, testified that the Aurora had been docked at
his marina from December 1972 to April 1973. In court, he
identified Dennis Lipper as the man who had been the
captain of the boat. He explained that he was told that
Charles Johnson owned the boat, though he could not
identify him in the courtroom. He also testified that the
men on the boat once told him that they were taking it to
St. Marks. The owner of a marina at St. Marks identified
Johnson as the man to whom he had sold gasoline in
December 1972.
In the spring of 1973, Johnson, Lipper, Schlager, and
de Pianelli met at the house of Interarity Point to discuss
yet another shipment of marijuana. Johnson explained that
between five and six thousand pounds of marijuana was
in storage in Colombia and that J. Moen was making the
A-7
necessary arrangements to send it by ship from Colombia
into the Gulf of Mexico where it would be transferred to
another vessel for transportation to the United States.
Captain Storey and his two sons were to be the initial crew
and to help transfer the marijuana from one vessel to an-
other. Again de Pianelli provided front money for this
load of marijuana.
Later in 1973 Johnson, Schlager, Lipper, and de Pianelli
met in Fort Lauderdale. At these meetings Johnson ex-
plained that Moen was having difficulties in Colombia. Dur-
ing the ten months which passed before the marijuana
arrived, Johnson and de Pianelli had several discussions in
which the Storey brothers and their father were mentioned.
At Johnson's request, de Pianelli furnished an additional
$16,000 to finance the purchase of a boat needed to complete
arrangements. Johnson purchased a yacht, the Altair, from
a boatyard in Fort Lauderdale. Johnson, Lipper, Schlager,
and de Pianelli sailed on the Altair to Key West where
they remained for about three weeks. During this time
Johnson telephoned Captain Storey in Colombia to dis-
cuss the plans for shipping the marijuana.
The four men left Key West and sailed to the island
of Cozumel off the Yucatan Peninsula where they stayed
for several months. Johnson explained that the delay was
caused by difficulties with agents in Colombia and by at-
tempts to acquire additional marijuana. Before the load
was shipped from Colombia, de Pianelli left Cozumel and
flew to Tampa where he met his wife. They drove to a house
which Johnson had bought on St. George Island in Florida
where, from discussions with Johnson, Lipper, and Schla-
ger, de Pianelli expected the load would arrive. When they
A-8
arrived at St. George Island, J. Moen and Roger Schlager
were already there. de Pianelli and Schlager discussed the
delay in the arrival of the marijuana from Colombia. Due
to a shortage of money, however, de Pianelli left St. George
Island, and drove to Washington, D. C., to get additional
money. He drove immediately back to Florida.
Enroute to Florida de Pianelli telephoned the house at
St. George Island. Johnson answered and told di Pianelli
that the load had arrived. de Pianelli rented a U-Haul
trailer in Panama City, Florida, and drove directly to the
house on St. George Island. The receipt for the rental was
introduced at the trial to show that de Pianelli had rented
the trailer on November 10, 1973. When he arrived de Pia-
nelli was told by Johnson that Schlager, Lipper, and Moen
had already left with their shares of the marijuana. After
Johnson and de Pianelli loaded the rented trailer, de Pia-
nelli left for Washington. de Pianelli received more mari-
juana than he had already purchased. When he left for
Washington he owed Johnson about $156,000 for the addi-
tional marijuana. Three weeks later de Pianelli returned
to St. George Island to repay part of this debt. At that
time Larry Storey was present and related the difficulties
which he had encountered in transporting the marijuana
from Colombia.
In addition to de Pianelli’s testimony concerning the
events at St. George Island, the government presented the
previous owner of the house, who pointed to Johnson and
identified him as the man to whom he sold the house.
In January 1974, de Pianelli met Johnson at a motel in
Santa Barbara, California. Johnson demanded payment of
the balance that de Pianelli owed him from the St. George
A-9
Island shipment. de Pianelli did not comply. Three days
later Johnson returned with Bill Lawrence. Lawrence testi-
fied that he had been hired by Johnson to help collect the
debt. At his first meeting with Johnson, Lawrence was told
that de Pianelli owed the money from a marijuana transac-
tion. Larry Storey, who Lawrence identified in the court-
room, and Captain Storey were present at that first meet-
ing. Johnson and Lawrence attempted to detach the trailer
from de Pianelli’s car and attach it to Johnson’s vehicle.
Upon being asked the reason for his conduct, Johnson re-
sponded that he was taking the trailer as payment for the
money owed him. Johnson, Lawrence, and de Pianelli then
went into de Pianelli’s motel room to discuss the debt. Cap-
tain Storey and Larry Storey were also present. In an at-
tempt to coerce de Pianelli into paying the debt, Johnson
had Lawrence begin hitting and kicking de Pianelli. Dur-
ing the time that Lawrence was beating de Pianelli, Larry
Storey encouraged him, agreeing with Johnson that de Pia-
nelli should be killed. The dispute over the debt was tem-
porarily resolved when de Pianelli’s father-in-law agreed
to sign a note promising to pay the money to Johnson.
Lawrence, who continued to work for Johnson, testified
that he, along with Lipper and J. Moen, was to meet at the
St. George Island house. When Lipper and Moen arrived
at the house, however, they discovered that the law enforce-
ment officials had the house under surveillance. As a result,
a further proposed importation to the St. George Island
house was cancelled. Johnson later told Lawrence that the
load was sold somewhere else.
In addition to the testimony already described, the gov-
ernment introduced the testimony of law enforcement offi-
A-10
cials who had observed various houses which were used
during the transactions. One such witness described the
vehicles which he saw at the Interarity Point house in April
1973. Among the vehicles were two motor homes. One was
shown to be registered to Dennis Lipper; the other was
registered to Robert Schlager (Roger Schlager’s brother).
Another agent testified that he had observed the boats de-
scribed by dePianelli at various marinas during the period
from January 1973 to April 1973. In April 1973 he followed
Johnson and Lipper while they worked on a boat in the
vicinity of St. Marks. A third agent related his observa-
tions of the house owned by Johnson on St. George Island
between October and December of 1973.
Johnson was sentenced to a total of twenty years in
prison: five years on Count I for conspiracy to import
marijuana; five years on each of two counts of intentional
importation; and ten years for continuing criminal enter-
prise. The sentences on the substantive counts were to run
concurrently; the sentences for conspiracy and for the
continuing criminal enterprise were to be consecutive sen.
tences. Johnson argues that the imposition of consecutive
sentences for conspiracy to import marijuana and for en-
gaging in a continuing criminal enterprise is prohibited by
Jeffers v. United States, 432 U.S. 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 continual criminal enterprise, Johnson’s conviction for
conspiracy must be vacated.
Without conceding that there was sufficient evidence to
convict him on any of the other counts, Johnson concen-
A-11
trates his argument on his conviction under section 848.
That section provides:
(a)(1) any person who engages in a continuing crim-
inal enterprise shall be sentenced to a term of impris-
onment which may not be less than 10 years and which
may be up to life imprisonment, to a fine of not more
than $100,000 and to the forfeiture prescribed in para-
graph (2);...
(b) For purposes of subsection (a) of this section,
a person is engaged in a continuing criminal enter-
prise if—
(1) he violates any provision of this subchapter
or subchapter I] of this chapter the punishment for
which is a felony, and
(2) such violation is a part of a continuing series
of violations of this subchapter or subchapter II of
this chapter—
(A) which are undertaken by such person in con-
cert with five or more other persons with respect to
whom such person occupies a position of organizer,
a supervisory position, or any other position of
management, and
(B) from which such person obtains substantial
income or resources.
Johnson does not contend that the government failed to
prove that he obtained substantial income from his con-
tinuing criminal enterprise. Instead, he focuses his attack
on the provision in section 848(b)(2)(A) which requires
that for a person to be engaged in a continuing criminal
enterprise he must act “in concert with five or more other
persons” and with respect to those persons he must occupy
a “position of organizer, a supervisory position, or any
A-12
other position of management.” Johnson’s argument is
divided into five parts.
The first two parts of Johnson's argument are based
on the contention that in pretrial procedures the govern-
ment misled him about the proof that it would introduce
at trial. In particular, Johnson contends that though the
indictment was obtained on a theory that he managed five
persons other than his codefendants, the proof at trial
showed that Johnson managed his codefendants. Johnson
contends that this variance amounted to an amendment
which was prejudicial in itself and that it was a material
variance which led to prejudice. His second argument is
that there was a prejudicial variance between a bill of
particulars rendered by the government and the proof at
trial concerning the identity of the five or more persons
whom Johnson was alleged to have supervised. Johnson
contends that he was misled because the bill of particulars
caused him to believe that the government would not
attempt to prove that Johnson managed his codefendants.
As a result, Johnson neither asked his codefendants to
testify nor requested a severance. The government re-
sponds to both of these arguments by emphasizing that
the indictment was returned in general terms, in fact,
in the words of the statute. As a result, the government
could provide specifics without amending the indictment.
The government further argues that Johnson was not
prejudiced since in pretrial proceedings it told Johnson
that it would show that he had managed others than his
codefendants.
The discussions in those pre-trial proceedings related
to the original indictment, which was returned on January
A-13
18, 1977, and a superseding indictment, which was filed on
March 10, 1977. Count V of both indictments charged a
continuing criminal enterprise as defined by 21 U.S.C.
§ 848. The original indictment named twelve persons in
Count V: the seven defendants who were tried together
and five other persons. The superseding indictment deleted
from Count V the names of four persons who were not
defendants and who throughout the proceedings have been
referred to as the “Spanish-surnamed individuals.”
During one pretrial conference the parties debated
whether the government should be required to name the
five or more individuals who the government would prove
were supervised, The trial judge agreed with the de-
fendants that the government should supply additional
information. In response to the court’s request, Clifford
Davis the Assistant United States Attorney responsible
for the prosecution, said, “I can go this far, to say there
are four people alleged in the indictment at this point
not contained in that Count and that those four would be
people who would be organized or supervised by the seven
named in Count V, and in addition there would be other
people that are not named in the indictment.” Davis’ in-
dication that the four Spanish-surnamed individuals might
be included among those who were supervised created
additional problems in the minds of the attorneys for the
defendants. Those problems arose primarily because the
Spanish-surnamed individuals were fugitives and were not
available as witnesses at the trial. After further attempts
by the defendants to learn the identity of the supervised
persons, Davis responded to the court, “I said that they
(the Spanish-surnamed individuals] are among the five that
A-14
are required, the at least five that would have to be proven.
There may be five without them, there may be three of
those and two more.” After Davis had supplied that infor-
mation, the court stated that it would grant no more
motions for a bill of particulars.
Throughout these pretrial proceedings and, in fact,
throughout the presentation of its case, the government
proceeded on the theory that it could show that each of
the seven defendants on trial was an organizer of five or
more other people. At the close of the government’s case,
however, the trial court dismissed Count V against all
defendants except Johnson, because the government had
failed to prove that the other defendants had acted in a
supervisory capacity. In his closing argument Davis sug-
gested to the jury that the government had shown that
Johnson had supervised five or more other persons. Never
during the trial were the four Spanish-surnamed individ-
uals mentioned. Thus, for there to be sufficient evidence to
convict Johnson under section 848, there must be evidence
that he organized, supervised, or managed five or more
persons other than the Spanish-surnamed individuals. The
sufficiency of the evidence is dealt with later. At this
point, we consider only where there was a prejudical vari-
* ance between the indictment and the proof at the trial or
between the bill of particulars and the proof at the trial.
In United States v. Fischetti, 450 F.2d 34, 39 (5th Cir.
1971), cert. denied, 405 U.S. 1016, 92 S.Ct. 1290, 31 L.Ed.2d
478 (1972), this court explained the importance of the
indictment:
An indictment is required to set forth the elements
of the offense sought to be charged ... in order to
A-15
sufficiently apprise the defendant of the charge he
must be prepared to meet and to prevent him from
being charged with the same crime in the future. If,
therefore, an amendment goes to an essential element
of the crime, it is a substantial change and cannot be
made except by resubmission to the grand jury....
We explained the nature of a prejudicial variance which
requires reversal in United States v. Lambert, 501 F.2d
943, 947 (5th Cir. 1974) (en banc), saying, “If an indict-
ment alleges particular facts as constituting an eleiment of
a charged crime, there is a variance if the trial judge
admits evidence that makes out this element in a different
manner.” Here the indictment was sufficient because it
charged in the words of the statute that Johnson and
others had engaged in a continuing criminal enterprise.
See, e. g., United States v. Strand, 566 F.2d 530, 534 (5th
Cir. 1978). The proof at trial was directed toward demon-
strating that the elements of that crime, as defined in
vection 848(b), had occurred. In particular, the proof
showed that there were five or more persons who had been
managed by Johnson. There was thus no variance between
the indictment and the proof at trial.
A bill of particulars amplifies the indictment by pro-
viding additional information. As we said in United States
v. Martinez, 466 F.2d 679, 686 (5th Cir. 1972), cert. denied
sub nom. Berman v. United States, 414 U.S. 1065, 94 S.Ct.
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 (Sth Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 67,
A-16
50 L.Ed.2d 81 (1976), we explained that “where a fatal
variance is argued, appellant must demonstrate that he
was taken by surprise by reason of the variance and that
such surprise prejudiced the preparation of his defense.”
As the quotations from the pretrial conference demonstrate,
the defendants were not told that the five or more persons
would be comprised of the codefendants plus others.
Instead, they were told that the five or more persons would
be made up from a group comprising the four Spanish-
surnamed individuals as well as other persons unnamed at
that time. Thus, there was no variance between the bill of
particulars and the proof at trial. Since there was no vari-
ance, the defendants could not have been prejudiced. The
defendants cannot claim to have been surprised or misled
by Davis’ comments during the pretrial conference.
Johnson’s third argument is also directed toward the bill
of particulars. The basis for that argument lies in the dis-
cussion during pretrial conferences of the violations which
the government would use to show that there was a con-
tinuing criminal enterprise. Those discussions were neces-
sitated by the fact that, courts have required that a mini-
mum of three illegal acts be proved to establish a contin-
uing criminal enterprise. E. g., United States v. Bergdoll,
412 F.Supp. 1308, 1317 (D.Del.1976). The defendants
requested that the court order the government to provide
the dates of each of those occasions. In complying with that
request, Davis indicated that Counts II, III, and IV of the
indictment, the substantive counts, constituted three occa-
sions. He indicated that in addition there would be proof
of an incident on January 10, 1971, at Interarity Point.
Later in this same conference, which was held on April 14,
A-17
1977, the government attorney again mentioned the date as
being 1971. Four days later, on April 18, the day of the
trial, the trial court allowed the government to amend its
statement so that the date of the violation was January 10,
1972. Although counsel for defendants objected to the
allowance of this amendment, they made no motion for a
continuance.
It is a well settled rule that a bill of particulars “may
be amended at any time, and the decision to allow 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 v. Perez, 489 F.2d 93, 95 (5th Cir. 1974). See also
United States v. Sherriff, 546 F.2d 604, 606 (5th Cir. 1977).
In an attempt to show that he was prejudiced, Johnson con-
tends that his trial counsel had thoroughly investigated
the date in 1971 and had found at least one witness who
would testify that Johnson was somewhere other than at
Interarity Point on that date. In addition, he contends that
his counsel was prejudiced in his cross-examination of de
Pianelli, because he began by thinking that he could cross-
examine on the 1971 date.
Johnson has failed to demonstrate any actual prejudice
from this change and he has failed to demonstrate any
abuse of the district court’s discretion. The 1971 date was
outside the dates charged in the indictment. In addition, in
an analogous situation, when a conspiracy is alleged the
government is not limited to proving at trial only those
overt acts which it has stated either in the indictment or in
the bill of particulars. Thus we have held that it is not
prejudicial for the government to show other acts of the
A-18
conspirators occurring during the life of the conspiracy.
United States v. Perez, 489 F.2d 51, 70 (5th Cir. 1973), cert.
denied, 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974).
In the absence of an abuse of discretion or of demonstrated
prejudice, there was no reversible error.
Johnson’s fourth argument is that it was error for the
trial court to fail to define the terms in section 848 such as
“organizer, supervisor, or other position of management”
and “substantial income.” Johnson argues that this super-
ficially simple statute is actually very complex, therefore
requiring careful instructions for the jury to avoid preju-
dice to a defendant. Johnson also urges that in the prose-
cutor’s closing argument he misstated the criteria involved
in proof of a violation of section 848. In particular, Jobn-
son contends that it was improper for the prosecuting at-
torney to refer to the statute as the “King Pin Statute.”
Although Johnson argues that the words of the statute
are vague, this court has held in United States v. Cravero,
545 F.2d 406 (5th Cir. 1976), cert. denied, 430 U.S. 983, 97
S.Ct. 1679, 52 L.Ed.2d 377 (1977), that section 848 is not
unconstitutionally vague on its face. The words and phrases
in the statute are neither outside the common understand-
ing of a juror, see United States v. Crockett, 506 F.2d 759,
762 (5th Cir.), cert. denied, 423 U.S. 824, 96 S.Ct. 37, 46
L.Ed.2d 40 (1975), nor so technical or ambiguous as to re-
quire a specific definition, see Evans v. United States, 349
F.2d 653, 658 (5th Cir. 1965). Thus none of them required
definition by the trial court. Although situations might exist
which would indicate that a jury should be aided by defi-
nition of the words in this statute, it was not error to refuse
to do so in the straightforward context of this case.
A-19
The prosecutor did not misstate the nature of the statute
by using the term “King Pin.” This court and others jiave
used the same term to describe the statute. E. g., United
States v. Bolts, 558 F.2d 316, 320 (5th Cir.), cert. denied
sub nom. Hicks v. United States, _.. U.S. auenp G0 Ot.
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 Dic-
tionary shows the aptness of the term: “One that holds a
chief or most prominent place in a group or undertaking.”
Johnson’s fifth argument is that there was insufficient
evidence to convict him of a violation of section 848. He di-
vides this point into two parts. First, he argues that there
was insufficient evidence to show that he was an organizer,
supervisor, or manager. Second, he contends that there
was insufficient evidence to show that there were five or
more su’ ervised persons. As to the first point, he contends
that there was no evidence that he had directed or orches-
trated the activities of anyone. He interprets the evidence
as showing only that all of the codefendants were working
together and that Johnson had not occupied a position of
superiority. To support that interpretation he quotes a
portion of de Pianelli’s testimony in which he stated that
nobody elected themselves president of the operation. Of
the second point, Johnson contends that there was no evi-
dence which demonstrated his relationship to the other
defendants. The only evidence, according to Johnson, is
that de Pianelli occupied an inferior position to Johnson.
From this, Johnson contends, one cannot conclude that all
of the other defendants occupied an inferior position.
A-20
During the trial there were at least six other persons
who were named as acting in concert with the codefendants.
These persons were de Pianelli himself, Captain Storey,
J. Moen, David Barea, George Driver, and William Law-
rence, Thus, even excluding the codefendants from the
computation, it is apparent that the government proved
there were five or more other persons involved in this
criminal activity. The government also proved that
Johnson acted in a supervisory, managerial, or organizing
capacity with respect to these five or more other persons.
For each transaction Johnson accumulated front money
to finance the importation. Johnson related his contacts
with people in Colombia who would sell the marijuana
and who would transport the marijuana into the Gulf of
Mexico. Johnson was responsible for purchasing or rent-
ing houses and boats to facilitate the importation of the
marijuana. And he acted as a general coordinator of the
activities at each place of importation. The evidence may
not show that Johnson conducted the activities with the
regimentation of a G3 Section in the United States Army,
but it does show that he organized, supervised, and man-
aged the activities of other persons. Or, in the words of
de Pianelli, everyone involved assumed that “Mr. Johnson
was our leader.”
Johnson’s final argument is that because of the inepti-
tude of his appointed counsel he was denied the effective
assistance of counsel. He divides his contention into two
parts. First, he contends that his counsel, Phillip Stein,
had a conflict of interest, which was apparent to the court
after de Pianelli testified that he had sent money to Stein
to hold in escrow for Johnson to use to purchase a boat.
A-21
Johnson now argues that Stein’s first concern was to pro-
tect himself and that the pre-eminence of that concern
was demonstrated when Stein’s first questions on cross-
examination of de Pianelli related to whether they had
ever met. Johnson further argues that Stein was a poten-
tial witness on Johnson’s behalf who would testify
concerning de Pianelli’s threats against Johnson. Thus,
Johnson concludes, the trial judge ought to have inquired
about this conflict of interest and Stein should have with-
drawn from the case.
The second portion of Johnson’s contention is that
Stein’s trial technique was inept and incompetent. He
points to two general areas. First, he contends that
Stein’s opening statement showed a failure to investigate
because he contended that de Pianelli was a regular user
of LSD whose testimony would be shown to be merely a
figment of his imagination. In addition, he told the jury
that de Pianelli was a former actor who enjoyed creating
- fictional plots. Stein’s incompetence was allegedly shown
during trial when he failed to ask de Pianelli about his
use of LSD and when he received unexpected answers
concerning de Pianelli’s prior role as an actor. As a result,
Johnson now argues, Stein’s closing argument was different
from his opening statement, thus creating prejudice in the
minds of the jury. The second trial technique which John-
son contends was inadequate was Stein’s cross-examination
of de Pianelli. For specific examples, Johnson contends that
Stein did not know the procedure for impeaching a witness
with a prior inconsistent statement, that he did not know
the relevant facts and therefore asked irrelevant questions,
A-22
that he asked questions to which he did not know the an-
swers, thus leading to disaster, that he could not control
de Pianelli, thus allowing him to volunteer damaging evi-
dence, and that he asked questions which incorrectly
_ assumed Johnson was present at various occasions. John-
son concludes by arguing that the trial court was aware
of all of these shortcomings.
At the outset of this analysis, we would observe that it
appears anomalous for Johnson to base the other five con-
tentions on appeal upon grounds raised by Stein during
the trial. Thus Johnson while asserting Stein's ineptness
also demonstrates that Stein was effective enough to pre-
serve at least five grounds for error on appeal. This
inconsistency, however, is not the basis for our decision.
The standard for measuring the performance of trial
counsel is reasonably effective assistance. As this court has
repeatedly stated, this standard does not require errorless
counsel. E. g., United States v. Carter, 566 F.2d 1265,
1272-73 (5th Cir. 1978). An examination of the entire record
discloses that Stein provided reasonably effective counsel.
Stein’s initial questions to de Pianelli may be seen as an
attempt to persuade the jury that he was not associated
with de Pianelli, not to protect himself but to enhance his
effectiveness with the jury as Johnson’s representative.
That was a reasonable trial tactic under the circumstances
and an equally plausible explanation of his actions. Johnson
was entitled to have counsel of his choice and that selection
could include a lawyer with whom he had prior dealings.
The evidence concerning de Pianelli’s threats to Johnson
was given by an Internal Revenue Service agent. Thus
A-23
there was no need to call Stein as a witness to establish
this fact. On cross-examination, counsel for defendant Lip-
per asked de Pianelli about his use of LSD; de Pianelli
admitted that he had used LSD at least fifty times in the
past five or six years. de Pianelli also admitted on cross-
examination by other defendants’ counsel that he had once
been associated with theatrical groups. We are not per-
suaded that any prejudice arose. Moreover, prejudice may
be contended to have arisen from the difference between
Stein’s opening remarks and his later cross-examination
was eliminated by the questioning of co-counsel.
Stein’s cross-examination of de Pianelli, though it may
not have been of textbook quality, does not permit us to
conclude that Johnson was denied reasonably effective
assistance of counsel. de Pianelli proved to be a difficult
witness to examine for the government counsel as well as
for all defense counsel. That Stein could not contro] de
Pianelli was a problem he shared with all counsel at the
- trial. Furthermore, Stein filed numerous pretrial motions,
made repeated objections at trial, and generally made his
presence effectively felt in the conduct of the trial. The
lengthy record amply demonstrates that Johnson was not
denied effective assistance of counsel.
In summary, we affirm Johnson’s conviction on two
counts of knowing and intentional importation of marijuana
and we affirm his conviction for continuing criminal enter-
prise. We vacate his conviction for conspiracy to import
marijuana.
The next appellant, Dennis Lipper, raises four points
in his brief on appeal. He first argues that it was improper
A-24
to permit de Pianelli to testify as an expert concerning
the origin of the marijuana. Appellants concede that the
substance with which they were dealing was marijuana.
They contend, however, that there was no objective evi-
dence showing that the marijuana was imported from
outside the customs territory of the United States. Since
no marijuana was ever seized, the only nonhearsay evidence
concerning the origin of this marijuana came from de
Pianelli. When de Pianelli was first asked to state whether
the marijuana had come from Colombia, counsel for de-
fendants objected. The jury was then excused and de
Pianelli was examined on voir dire and cross-examined by
defense counsel. During voir dire, he admitted that he had
smoked marijuana over a thousand times and that he had
dealt in marijuana as many as twenty times. He also said
that he had been asked to identify marijuana over a
hundred times and had done so without making a mistake.
He based his identification upon the plant’s appearance,
its leaf, buds, stems, and other physical characteristics,
as well as upon the smell and the effect of smoking it. On
cross-examination he stated that he had been called upon
to identify the source of various types of marijuana. He
explained that characteristics such as the packaging, the
physical appearance, the smell, the taste, and the effect
could all be used in identifying the source of the marijuana.
It was stipulated that he had no special training or educa-
tion for such identification. Instead, his qualifications came
entirely from “the experience of being around a great deal
and smoking it.” He also said that he had compared
Colombian marijuana with marijuana from other places
as many as twenty times. Moreover, he had seen Colombian
A-25
marijuana that had been grown in the United States and
had found that it was different from marijuana grown
in Colombia.
After the voir dire examination, the defendants objected
to de Pianelli’s expertise for lack of authentication that he
had actually smoked it, touched it, or correctly identified
it. Despite the objection, the trial court permitted de Pia-
nelli to give opinion evidence. Before the jury he related
his experiences with marijuana and explained that he had
tested a sample of marijuana from each importation and
had verified that it came from Colombia.
Lipper contends that the source of marijuana is not a
matter requiring expert opinion and that there was no
foundation for de Pianelli’s testimony. Lipper further con-
tends that it was an error to qualify de Pianelli as an ex-
pert because he had never been to South America and, of
course, had never smoked marijuana there or seen it grow-
ing in South America. Finally, Lipper contends that de
Pianelli’s testimony was conclusively rebutted by an as-
sociate professor of biological science at Florida State
University, Loren C. Anderson.
In Crawford v. Worth, 447 F.2d 738, 740-41 (Sth Cir.
1971), we stated the principle which guides appellate re-
view of trial court determinations concerning expert testi-
mony:
The federal rule regarding review standards of
trial court rulings on expert opinion evidence is strin-
gent. “* * * the trial judge has broad discretion in the
matter of the admission or exclusion of expert evi-
dence, and his action is to be sustained unless mani-
festly erroneous.” Salem v. United States Lines Co.,
A-26
370 U.S. 31, 82 S.Ct. 1119, 8 L.Ed.2d 313, ... In this
Cireuit’s terms: “The expert qualification of a witness
is a question for the trial judge, whose discretion is
conclusive unless clearly erroneous as a matter of
law.” United States v. 41 Cases, More or Less, 420 F.2d
1126 (5th Cir. 1970).
“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.” Steimberg v.
Indemnity Insurance Company of North America, 364 F.2d
266, 274 (5th Cir. 1966). The Ninth Circuit has expressed
a similar principle in these words:
To warrant the use of expert testimony, two elements
are required. First, the subject of the inference must
be so distinctly related to some science, profession,
business or occupation as to be beyond, the knowledge
of the average layman, and second, the witness must
have such knowledge or experience in that field or
calling as to make it appear that his opinion or in-
ference will probably aid the trier in his search for
truth.
Fineberg v. United States, 393 F.2d 417, 421 (9th Cir. 1968).
Here the subject of the inference, the source of the mari-
juana, is related to the occupation of selling illegal drugs
and to the science of botany, neither of which is likely to
be within the knowledge of an average juror. For the
government to obtain a conviction it was necessary that
it prove that the marijuana came from outside the customs
territory of the United States. See 21 U.S.C. § 952. Testi-
mony which would identify the source of the marijuana
would be of obvious assistance to the jury. It was there-
A-27
fore proper for the trial court to consider whether de
Pianelli was qualified to provide such testimony.
Rule. 702 of the Federal Rules of Evidence provides
that expertise may be obtained by experience as well as
from formal training or education. de Pianelli’s testimony
during voir dire revealed that his substantial experience
in dealing with marijuana included identification of
Colombian marijuana. In light of that testimony, the trial
court was within its discretion in deciding to admit the
testimony for the jury’s consideration.
The introduction of testimony from an expert witness
does not foreclose the issue from consideration by the
jury, which need not accept the expert’s testimony. A de-
fendant is free to introduce his own expert to challenge
the prosecution’ s witness. Here the defense introduced the
testimony of Professor Anderson, who said that it was
impossible to determine the origin of a particular sample
of marijuana oy examining its physical characteristics.
The trial court instructed the jury in general terms con-
cerning the weight it should give to testimony. In addition,
it specifically instructed the jury regarding expert wit-
nesses and concluded with this admonition: “You should
consider such expert opinion received in this case and give
it such weight as you think it deserves.” Thus the conflict
between the experts was correctly presented to the jury
for resolution. Cf. United States v. Bermudez, 526 F.2d
89, 98 & n.8 (2d Cir. 1975), cert. denied, 425 U.S. 970, 96
S.Ct. 2166, 48 L.Ed.2d 793 (1976).
The only remaining challenge to de Pianelli’s status as
an expert is the argument that no one can acquire the
A-28
skill which he professed to have. That objection may be
rephrased in the words of this court in International Paper
Company v. United States, 227 F.2d 201, 205 (5th Cir.
1955): “an opinion is no better than the hypothesis or
the assumption upon which it is based.” If the hypothesis
is proved to be flawed, the witness should not be allowed
to testify. This type of objection would be directed at, for
example, the testimony of someone purporting to tell the
color of a person’s hair from fingerprints or the use of a
testing device that had not been generally accepted by
the scientific community. For a discussion of the latter
»vroblem, see United States v. Brown, 557 F.2d 541, 554-59
(6th Cir. 1977). Neither at trial nor on appeal have the
appellants directly argued that no one can distinguish
marijuana that has been grown in Colombia from other
marijuana. They have, however, done so implicitly, and
we believe that they tried to do so through the testimony
of Professor Anderson. We shall therefore briefly con-
sider that objection as well. Cf. United States v. Brown,
supra, 557 F.2d at 557 n.17.
On the record before us we cannot say that the claim of
an ability to identify Colombian marijuana is so inher-
ently implausible that, as a matter of law, a jury should
not be permitted to hear testimony on the indentification.
de Pianelli claimed that he could identify Colombian mari-
juana. Professor Anderson disputed that claim. But
Professor Anderson admitted that climatological differ-
ences could produce differences in the marijuana plants.
Professor Anderson’s testimony was based upon the lack
of scientific tests which would demonstrate that mari-
juana grown in Colombia differed from that grown else-
A-29
where. Tests had shown, however, that marijuana grown
in Canada differed from marijuana grown in other loca-
tions. Thus, there was some ambiguity in Professor
Anderson’s testimony. The issue was one that could have
been resolved by the jury. In allowing the jury to con-
sider the question and to hear the same arguments counsel
now make to us, the trial court did not err.
Lipper’s second argument is similar to Johnson’s argu-
ment concerning bills of particulars. Lipper contends that
it was prejudicial to refuse motions for bills of particulars
and to permit amendment of the bill of particulars.
We have already explained: that it was not prejudicial
to permit amendment of the bill of particulars to change
the date from 1971 to 1972. Lipper adds a challenge to
the trial court’s refusal to require the government to
reveal the time, date, place, and participants in any overt
act which the government intended to use to prove the
conspiracy, the date and place each conspirator joined
the conspiracy as well as the time during which he was a
participant, and the names of all witnesses. Lipper con-
tends that it was impossible for the defendants to be
prepared to defend their actions over the four-year period
charged in the indictment. Finally, he contends that he
was surprised by the change in the date in the bill of par-
ticulars and by Lawrence’s testimony. The function of a
bill of particulars is to inform the defendant of the nature
of the charges against him, not “to obtain a detailed
disclosure of the government’s evidence prior to trial.”
United States v. Perez, 489 F.2d 51, 71 (5th Cir. 1973),
cert, denied, 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664
(1974). Lipper has shown no actual prejudice from the
A-30
judge’s rulings and in the absence of such a showing there
can be no reversible error.
Lipper’s third contention is that it was erroneous to
admit the testimony of the various law enforcement agents
concerning their surveillance of the houses and other
activities of defendants. Lipper bases his argument upon
Rule 403 of the Federal Rules of Evidence, contending
that the prejudicial effect of the evidence was greater than
its probative value. He contends that the dates of the
surveillance do not correspond with the particular criminal
activities otherwise asserted and that there was nothing
inherently suspicious about the fact that these defendants
were gathered at one site at the same time. As a result,
he contends, the jury was permitted to string together a
series of inferences to reach their verdict of guilty. Lipper
provides the answer to his own argument when he sug-
gests in his brief that the evidence was prejudicial because
it corroborated de Pianelli’s testimony. The surveillance
evidence showed that these defendants had indeed been
present at the various sites during the course of the
conspiracy. To say that such evidence is prejudicial
because it would permit a jury to find a person guilty is
only to demonstrate its probative value. The prejudicial
effect, other than insofar as it led to a conviction, was low.
There was no error in admitting this evidence.
Lipper’s final argument is that Rule 81(d)(2)(E) of
the Federal Rules of Evidence, which permits the jury
to consider the hearsay declarations of co-conspirators, is
unconstitutional because it violates the confrontation clause.
This argument is frivolous. See Dutton v. Evans, 400 U.S.
74, 80-81, 91 S.Ct. 210, 215-16, 27 L.Ed.2d 213(1970).
A-31
Jesse Storey was convicted only on Count I, the con-
spiracy count. In his brief on appeal he raises two points.
First he contends that there was insufficient evidence to
support the conviction on the conspiracy count. He sup-
ports this contention by pointing to the fact that no one
ever identified him in the courtroom. In addition, he con-
tends that the only nonhearsay evidence which linked him
to the conspiracy was at best an equivocal identification of
him as having been present at St. Marks. Since there was
no nonhearsay evidence linking him to the conspiracy, he
concludes that it was improper for the jury to consider
hearsay evidence. The government responds by arguing
that there was sufficient evidence to show that Jesse Storey
was part of the conspiracy. The government’s position
is based upon combining the testimony of de Pianelli with
that of Lawrence. According to de Pianelli, one of the
Storey brothers, though he was not sure which, arrived
at the time the marijuana load arrived at St. Marks.
During direct examination de Pianelli stated that he
thought that it was Jesse Storey. Later in his testimony
de Pianelli said that another Storey brother was present
in Santa Barbara and that he was the same brother who
had been present at St. George Island. In Lawrence’s
testimony he said that it was Larry Storey who was
present at Santa Barbara. Combining the two, the govern-
ment contends that there was sufficient evidence to show
that Jesse Storey was a participant in the conspiracy.
Since the government is entitled to benefit from all rea-
sonable inferences which may be drawn in favor of the
jury’s verdict, we agree that the combination of testimony
shows that Jesse Storey was at St. Marks Island. Even so,
A-32
the record only shows that Jesse Storey was present. de
Pianelli testified that he was not present on the dock when
the boat with the marijuana arrived. He could not have
seen whether Jesse Storey was on board the boat. de Pia-
nelli never said that he had seen .’esse Storey participate
in the actions of the conspirators. There is no sufficient
evidence upon which to base a conviction of conspiracy.
See, e.g., Causey v. United States, 352 F.2d 203, 206-07
(5th Cir. 1965). Jesse Storey’s conviction for conspiracy
must therefore be reversed and remanded to the district
court with directions to dismiss. Burks v. United States,
— U.S. —, 98 S.Ct. 2141, 55 L.Ed.2d —— No. 76-6528
June 14, 1978).
Jesse Storey’s second argument was that the trial court
erred in responding to a question from the jury. Even if
the response was erroneous, no other defendant would have
been prejudiced. Since we have reversed Storey’s conviction
for lack of sufficient evidence, we need not consider this
second point.
Roger Schlager was convicted on Count I of conspiracy
to import marijuana and on Count III of knowing and
intentional importation at St. Marks. His appeal, like his
defense at trial, is based upon an alibi which he developed
in two parts. First, he contended that his brother Robert,
who died in 1975, looked so much like him that even their
mother often mistook them. Second, he claimed that he had
been in California at the time of the acts named in the
substantive counts of the indictment. To support his alibi
he called his mother to testify. Her testimony, however,
provided only limited confirmation of Schlager’s conten-
tions. She did identify the people in photographs which
A-33
previously had been shown to de Pianelli. Her identification
showed that in two of the three photographs de Pianelli
had mistaken Robert for Roger. She also said that Roger
was in California on Father’s Day, June 18, 1972. The
testimony of de Pianelli was that the importation at Orange
Beach occurred about five days before hurricane Agnes,
which struck on June 19. Thus, the jury could have con-
cluded that there was no inconsistency between de Pianelli’s
testimony and Mrs. Schlager’s. She also said that she was
“quite sure” that Roger had been with her for “all the
Christmases.” The events at St. Marks took place in Decem-
ber 1972; no definite date was given. Again, there was no
necessary inconsistency between the testimony of the two
people. Finally, she said that Roger always came home for
her birthday, November 10. She was not, however, able to
say positively that he had been in California on her birth-
day in 1973, the day that Johnson told de Pianelli that
Schlager was at St. George Island.
Schlager contends that the evidence of his participation
in the conspiracy was based upon his presence at St. Marks
and at St. George Island. Since his alibi proved that he was
not present at either place, he concludes that there was
insufficient evidence to support his conviction for conspir-
acy. To buttress that conclusion he points to the possibility
that de Pianelli had confused him for his brother, whose
name was on the registration of one of the mobile homes
sighted at Interarity Point.
Schlager’s first argument on appeal is that the trial
court erroneously charged the jury about the effect of his
alibi on the conspiracy charge. Schlager contends that the
court directed the jury not to consider the alibi as a defense
A-34
to the charge of conspiracy. That contention is based upon
a misreading of the charge. The trial court charged the
jury in these words:
In this case the defendant, Roger Mark Schlager, has
introduced evidence respecting an alibi which amounts
to the contention that the defendant was not present
at the time when, nor at the place where, he is alleged
to have committed the offense charged in the indict-
ment.
If you find from the evidence that he was guilty of
the offense charged under Count I [¢onspiracy] then
you wil) not consider this defense. If, however, you
find he is not guilty of the offense charged in Count I
then you should consider this defense in your consid-
eration of his guilt or innocense under Count III and
Count IV.
The first sentence of the second paragraph which was
quoted above clearly indicates that the jury could consider
the alibi defense during its deliberations on the conspiracy
count. Only after it found Schlager guilty of the conspiracy
count was it to disregard the alibi defense. Cf. Pinkerton
v. 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.
Schlager’s second argument is that the trial judge erred
in responding to questions from the jury. Schlager argues
that the trial judge provided a summary of the evidence
which differed from the evidence which was introduced at
trial. During its deliberations the jury sent these two ques-
tions to the judge:
Check through the testimony of the marina opera-
tors Shields, Finn, Blanchard, and Lynn and find out
A-35
if any of them visually identified Roger Schlager in
the courtroom.
Did John de Pianelli testify that Roger and Dennis
were going back and forth in the boat at St. Marks at
night?
After discussing the questions with counsel, the judge re-
sponded to the first question in this way:
Now, I have tried to get the full meaning of your
question. If this is not what you wanted to know, you
can tell me that, but the answer I give you is this and
if you want any of the tesftmony read back to you, I
will. None of these people whose names you have men-
tioned were specifically asked to identify Roger
Schlager in the courtroom and none of them did iden-
tify him.
THE FOREMAN: O.K. That’s what we wanted to know.
Schlager contends that the question required only a yes or
a no answer and that the judge’s answer implied that if
the witnesses had been asked to identify Schlager they
would have. Schlager’s interpretation is incorrect. The
jury’s question related to four individuals. To have re-
sponded with either “yes” or “no” could have misled the
jury and would have been an incomplete answer. The
judge accurately stated what had occurred during the testi-
mony of these four witnesses. The response did not add
evidence or mislead the jury by providing an improper
inference.
The judge also consulted with trial counsel before re-
sponding to the second question in this way: “he testified
he was told by both of them that they were going out on
the boat.” Schlager prefaces his objection to that response
with the observation that de Pianelli regularly referred to
A-36
the defendants by their surnames. Since Roger and Robert
were indistinguishable, Schlager contends that de Pianelli’s
references to “Mr. Schlager” cannot be presumed to have
been references to Roger Schlager. Thus, when the jury
asked whether de Pianelli testified that “Roger and Dennis”
were in the boat at St. Marks, the correct answer, accord-
ing to Schlager, would have been that de Pianelli said only
that “Mr. Schlager” was present at St. Marks. He contends
that by its answer, the trial court provided the only link
between Roger Schlager and the St. Marks incident.
Such an argument presumes that the entire proceedings
at the trial were to be viewed through the lens provided
by Schlager’s alibi. That the lens distorts the actual pro-
ceedings of the trial is evident from the early testimony
by de Pianelli. One of the first questions asked by the
prosecutor was whether de Pianelli knew “Roger Mark
Schlager.” de Pianelli responded that he did. Then he was
asked if he could identify Roger Schlager, which he did.
In fact, Schlager’s counsel stipulated that de Pianelli had
pointed to the defendant, Roger Mark Schlager. Further-
more, on at least three other occasions de Pianelli referred
to “Roger Schlager.” According to his testimony, when
de Pianelli arrived at the house on St. George Island, those
present were “J, Moen, Candy Davis, Roger Schlager, my-
self and my wife.” While he was at the house there was
“general conversation” with “J. and Roger and Candy and
my wife.” After that response, the following dialogue oe-
curred:
Q. [by the prosecutor] You said Roger?
A. [by de Pianelli] J am sorry, Mr. Schlager.
A-37
Q. Roger Schlager?
‘A. Yes sir.
Later in his testimony de Pianelli explained that he had
been told that “Mr. Roger Schlager” and “Mr. Dennis Lip-
per” had been involved in the first transaction at Interarity
Point before he arrived. It is clear, then, from reading the
entire transcript of de Pianelli’s testimony that his refer-
ences “Schlager” were references to Roger Mark Schlager.
The trial court did not err in responding to the second ques-
tion as it did.
de Pianelli’s failure correctly to identify Robert and
Roger in photographs created a question for the jury
as to the accuracy of de Pianelli’s identification. The trial
court, however, properly charged the jury on the issue
of identification:
Respecting Defendants Roger Mark Schlager, Jesse
Roscoe Storey and Lawrence Jess Storey, Jr., an issue
in this case is the identification of the defendant as
the perpetrator of the crime. The Government has the
burden of proving identity, beyond a reasonable doubt.
If you are not convinced beyond a reasonable doubt
that the defendant was the person who committed the
crime, you must find the defendant not guilty.
You may take into account any occasions in which
the witness failed to make an identification of defend-
ant, or made an identification that was inconsistent
with his identification at trial.
With such an instruction before it, the jury was directly
presented with the question of identification. Since the
judge did not err in responding to the jury’s questions,
Schlager’s conviction on both counts must be affirmed.
A-38
Larry Storey was convicted only on Count I for con-
spiracy to import marijuana. On appeal he raises two
points. First, he challenges the sufficiency of the evidence
to support his conviction for conspiracy; second, he con-
tends that it was an error to admit the testimony of Bill
Lawrence concerning the collection of the debt owed to
Johnson by de Pianelli. Since Storey’s challenge to the
sufficiency of the evidence is based upon the admission of
the testimony concerning the debt collection, we shall con-
sider that point first. Storey contends that the evidence
was irreievant and inadmissible because the events oc-
curred after the conspiracy had ended. He further contends
that because the testimony showed that the defendants
were “bad men” its prejudice to the defendants was greater
than its slight probative value. The flaw in Storey’s argu-
ment is that it fails to recognize that Lawrence testified
that there was at least one if not two other importations
in the planning stage at the time the debt was to be col-
lected. de Pianelli’s testimony had established that the
conspirators operated by funding successive importations
with the profits from previous transactions. Thus, for
Johnson to be able to fund future importations, which he
was planning, it was necessary that he collect the proceeds
due from the immediately past importations. Therefore,
the collection of the money which de Pianelli owed him had
both past and future connections. In short, the evidence
was admissible as demonstrating the continuing nature of
the conspiracy or of the criminal enterprise. Larry Storey
was an active participant in the attempt to collect the debt
from de Pianelli. In addition, earlier, when de Pianelli re-
turned tu St. George Island, Larry Storey was there and
A-39
told him of the difficulties of transporting the marijuana
from Colombia. All of this demonstrates that there was
sufficient direct evidence to link him to the conspirators.
Once he was linked to the conspirators, then statements
of his co-conspirators were admissible as well. From those
statements, it was established that Larry Storey had been
on the boat which brought the marijuana to Orange Beach ;
that he had been at St. George Island when de Pianelli
arrived from the District of Columbia; and that he had
related events which occurred in Colombia to delay the
arrival of the marijuana. The conspiracy came to an end
not with the importation to St. George Island, but, accord-
ing to Lawrence’s testimony, only after the conspirators
became aware of the surveillance by law enforcement of-
ficials. Larry Storey was an active, knowing participant
in the conspiracy until its involuntary end; therefore his
conviction must be affirmed.
The final defendant, Brent Harelson, was convicted on
two counts, conspiracy to import marijuana and the sub-
stantive act of importing at St. Marks. On appeal he raises
three points. First, he contends that it was an error for
the trial court not to charge the jury that the government
must prove an overt act as part of its burden of proving
a violation of 21 U.S.C. § 963. Consideration of that con-
tention is made unnecessary by two recent decisions of this
court which have held that under section 963 as well as its
parallel, section 846, proof of an overt act is not required.
United States v. Thomas, 567 F.2d 638, 641 (5th Cir. 1978) ;
United States v. Palacios, 556 F.2d 1359, 1364 n.9 (5th
Cir. 1977).
A-40
Harelson’s next contention is that there was insufficient
evidence to support the conviction on either count. On
Count I, the conspiracy count, Harelson contends that
de Pinelli’s testimony showed that Harelson was no more
than a purchaser and indeed a purchaser who had no
knowledge of the conspiracy. Support for that contention
comes from portions of de Pianelli’s testimony in which
he said that Harelson was a mere purchaser. As the
government points out in its brief, however, the testimony
taken as a whole reveals direct proof of a continuing
relationship between Harelson, de Pianelli, and Johnson
during which Harelson acted to advance the joint interest
of all the conspirators. From the start Harelson provided
front money to permit the financing of importation of
marijuana. He also relayed messages from Johnson to
de Pianelli concerning meetings in Florida. Harelson was
present during and was a participant in discussions
about the importations at Orange Beach and St. Marks.
de Pianelli’s testimony showed that Harelson was an
active, knowing participant in the conspiracy to import
marijuana.
Harelson contends also that there was insufficient evi-
dence to support his conviction on Count III, which charged
a substantive act of importation at St. Marks. Once we
have concluded that there was sufficient evidence to prove
that he was a knowing member of the conspiracy, no
additional evidence is necessary to warrant a conviction
on a substantive count which charges him with an event
which occurred while he was active as a member of the
conspiracy. See, e.g., United States v. Becker, supra, 569
F.2d at 958-59. Nevertheless, Harelson contends that there
A-41
was no proof that the St. Marks importation was from
outside the customs territory of the United States or that
any defendant involved there had traveled outside the
United States. To support the guilty verdict he says one
must assume that the defendants acted either as part of a
larger conspiracy or that one of them arranged this im-
portation. The latter was true according to de Pinelli’s
testimony. When Storey arrived with the 4,000 pounds
of marijuana, he came on a skiff which Lipper and
Schlager said had sailed into the Gulf to pick up a load
from another vessel. de Pianelli testified that from the
markings on the bags and from his testing of the mari-
Juana, it was evident that the marijuana had come from
Colombia. “Customs territory of the United States” is
defined as including “only the States, the District of
Columbia, and Puerto Rico.” See Headnote 2, Revised
Tariff Schedules, 19 U.S.C. § 1202; 21 U.S.C. § 951(a) (2).
Although there may be cases in which careful considera-
tion is necessary to determine if a substance was imported
from outside the customs territory, this is not such a case.
The evidence introduced at the trial showed that the mari-
juana came from Colombia. None of the evidence would
support an inference of any other origin. The nation of
Colombia is so clearly outside the customs territory of the
United States as not to require instruction.
Harelson’s final contention is that it was an error for
the trial judge to fail to instruct the jury that the defend-
ants were not on trial for conduct not alleged in the in-
dictment. He supports his contention by characterizing
the events which occurred in an attempt to collect the debt
from de Pianelli as “others crimes” including theft, extor-
A-42
tion, kidnapping for ransom or false imprisonment, and
assault and battery. That characterization is inappropriate.
The purpose of introducing the testimony concerning the
debt collection was to show that the conspiracy was con-
tinuing and that the conspirators intended to import addi-
tional loads of marijuana. The testimony did not relate to
“other crimes” but instead related to the substance of the
offense charged. The trial court properly instructed the
jury that they were to determine the guilt or innocence
of each defendant based only upon the evidence against
that defendant. Thus there was no error and Harelson’s
convictions are affirmed.
In summary, we have concluded that the trial court
did not commit reversible error in its conduct of the pro-
ceedings and that there was sufficient evidence to support
the conviction of all defendants except Jesse Storey. His
conviction is reversed and remanded to the trial court
for further proceedings. With the exception of Johnson’s
conviction for conspiracy to import marijuana all other
convictions are affirmed. Johnson’s conviction on the con-
spiracy count is vacated because it was a lesser included
offense to the charge of engaging in a continuing criminal
enterprise.
AFFIRMED IN PART, REVERSED AND RE-
MANDED IN PART, AND VACATED IN PART.
A-43
APPENDIX “B”
In the United States Court of Appeals
for the Fifth Circuit
No. 77-5327
United States of America, t
Plaintiff-A ppellee,
versus
Charles A. Johnson, Dennis L. Lipper,
Jesse Roscoe Storey, Roger Mark
Schlager, Lawrence Jess Storey, Jr.,
and Brent Harrelson,
Defendants-A ppellants.
[Filed September 11, 1978]
Appeals from the United States District Court for the
Northern District of Florida
ON PETITIONS FOR REHEARING
(September 11, 1978)
Before: TUTTLE, MORGAN and CLARK, Circuit
Judges.
PER CURIAM:
IT IS ORDERED that the petitions for rehearing filed
on behalf of all appellants, except Jesse Roscoe Storey,
A-44
in the above entitled and numbered cause be and the
same are hereby denied.
ENTERED FOR THE COURT:
/s/ CHARLES CLARK
United States Circuit Judge
A-45
Appendix "C"
§ 848. Continuing criminal
tures
Cnterprise—Penalties: forfei-
FU) C1) Any person Who engages jn t continuing criminal enter:
Prise shall be ~enfenced to a term of MMpPrisonMent 4 hich may not be
less thin 10 vears and which may be Up to life imprisonment. to a fine
of not more thian SIM0,000, and te the forfeiture prescribed in para
Kraph (2). exeent that if uy
One or more prior
SL TL tt Ut ge ge
POrSON Chaves in’ such activity after
CONVICHIONS of him under this seetion have become §
final, he shall hie Orbe neg to
aterm of IMpPrisonment which May net
he less than 21
ears and which may be Up to life imprisonment, to
a fine of NOL more than S200000. ind to the forieiture prescribed in:
paravraph (2)
196 7
May ty ater: mee,
A-46
ch. 13 DRUG ABUSE—PREVENTION, CONTROL 21 § 848
.2) Any person who is convicted under paragraph (1) of engaging
ina continuing criminal enterprise shall forfeit to the United States—
(A) the profits obtained by him in such enterprise, and
(B) any of his interest in, claim against, or property or con-
tractual rights of any kind affording a source of influence over,
such enterprise.
Continuing criminal eaterprise defined
(b) For purposes of subsection (a) of this section, a person is en-
gaved in a continuing criminal enterprise if—
(1) he violates any provision of this subchapter or subchapter
Il of this chapter the punishment for which is a felony, and
(2) such violation is a part of a continuing series of violations
of this subchapter or subchapter [IL of this chapter—
(A) which are undertaken by such person in concert with
five or more other persons with respect to whom such person
occupies a position of organizer, a supervisory position, or
any other position of management, and
(#3) from which such person obtains substantial income or
resources.
Suspension of sentence and probation prohibited
-e) In the case of any sentence imposed under this section, imposi-
won or execution of such sentence shall not be suspended, probation
saa] not be granted, and section 4292 of Tithe 18 and the Act of July
13. 1082 (D.C Code, sees. 24-205 to 24-207), shall not apply.
Jurisdiction af courts
.d) The district courts of the United States ‘including courts in
the territories or possessions of the United States having jurisdiction
ander subsection (a; of this section) shall have jurisdiction to enter
seh vestraining orders or prohibitions, or to take such other actions,
including the acceptance of satisfactory performance bonds, in connec-
von with any property or other interest subject to forfeiture under
reiz section, as they shail deem proper.
Pub.L. 91-514, Title TI. § 408, Oct. 27, 197, $4 Stat. 1205.
Historical Note
Keferenees ie Tene Wheres Ue ccf Jest W1 SE. whieh was approved on Get, 27,
yours chee tevete sees DE Det tee Se VENTED, Sores weretacree TOE oof Dude tel Si, Net
reterresdd tee tie sittesen set, ts Geel out as a tete ander seetinn SOL of this ti
* ceatival te Chis Cede the
Hifective Date Sec Ciei elbertive en the Legishautive Mistery. For legishitive his
eect hay vel the sewertetle toletuae toeoth tery viel purpose of Pub. Ob S15, ser
oe fengites alter the day inonedtiateiy pre INT UNS thade Cong and Adm News, (0.
‘ the elites cel etauetrnett of ited. iw
A-47
Appéndix "D"
SUPREME COURT OF THE UNITED STATES
No. A-293
CHARLES A. JOHNSON,
Petitioner,
-
UNITED STATES
ORDER EXTENDING TIME TO FILE PETITION
FOR WRIT OF CERTIORARI
UPON CONSIDERATION of the application
of counsel for petitioner, IT IS
ORDERED that the time for filing a
petition for writ of certiorari in
the above-entitled cause be, and the
same is hereby, extended to and in-
cluding November 10, 1978.
/s/ Lewis F. Powell, Jr.
Associate Justice of
the Supreme Court of
the United States
Dated this 29
day of September, 1978.
CERTIFICATE OF SERVICE
I, RICHARD B. MAZER, certify
as follows:
My business address is 870 Market
Street, Suite 608, San Francisco,
California.
On November , 1978, I served
the within Petition for Writ of Cer-
tiorari by placing three true copies
thereof in a sealed envelope with pos-
tage thereon fully prepaid, in the
United States mail at San Francisco,
California, addressed as follows:
SOLICITOR GENERAL
Department of Justice
Washington, D.C. 20530
I declare under penalty of per-
jury that the foregoing is true and
correct, and that this declaration
was executed on November , 1978 at
San Francisco, California.
RICHARD B. MAZER
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.