Petition — Michel v. United States

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Suprome Gourt, 0. 8

EILED

MAR 30 1979

79-1498

IN THE |

Supreme Court of the United S

October Term, 1978

LEWIS DAVIS MICHEL

and

JOHN HANDY JONES,

, Petitioners,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRUDER, COOPER, McCOLL

& PRESTON

706 Main Street

Suite 300

Dallas, Texas 75202

By: MELVYN CARSON BRUDER

Counsel for Petitioners

—————$——————— LL SSS

ENDS, IRAE MERON CLARA RNC RESEARCH CE.

THE CASILLAS PRESS, INC.-1717 K Street. N W.—Weshington, D. C..-223-1220

(i)

INDEX

OPINION BELOW .

. JURISDICTION .

QUESTION PRESENTED

CONSTITUTIONAL PROVISIONS INVOLVED .

STATEMENT OF THE CASE .

REASONS FOR GRANTING THE WRIT .

PRAYER

APPENDIX A

Opinion of the Court of Appeals in

United States v. Michel

APPENDIX B

Order Denying Rehearing in

United States v. Michel

LIST OF AUTHORITIES

Cases:

Ashe v. Swenson,

397 U.S. 436 (1970) .

Benton v. Maryland,

395 US. 784 (1969) .

reg?

32a

Page

- 10,11, 12

(ii)

Coolidge v. New Hampshire,

403 U.S. 443 (1971) .

Delaware v. Prouse,

No. 77-1571, U.S.Sup.Ct., March 26, 1979

Dutton v. Evans,

400 U.S. 74 (1970)

Fiswick v. United States,

329 U.S. 211 (1946) .

Kitchell v. United States,

345 F.2d 715 (lst Cir. 1966) .

Kotteakos v. United States,

328 U.S. 750 (1946) .

Krulewitch v. United States,

336 U.S. 440 (1949) .

Rinaldi v. United States,

434 U.S. 22 (1977)

Sibron v, New York,

392 US. 392 U.S. 40 (1968) .

United States v. Bledsoe,

531 F.2d 888 (8th Cir. 1976) .

United States v. Diharce-Estrada,

526 F.2d 637 (Sth Cir. 1975) .

United States v. Fearns,

501 F.2d 486 (7th Cir. 1974) .

United States v. Freeman,

514 F.2d 1314 (D.C. Cir. 1975)

United States v. Gamberg,

410 F.2d 383 (4th Cir. 1969) .

» 89

Foe

: ta 8

(iii)

United States v. Gonzalez,

488 F.2d 883 (2nd Cir. 1973) .

United States v. Krol,

518 F.2d 1134 (8th Cir. 1975)

United States v. Leon,

534 F.2d 667 (6th Cir. 1975) .

United States v. Michel,

588 F.2d 986 (Sth Cir. 1979) .

United States v. Martinez,

514 F.2d 334 (9th Cir. 1975) .

United States v. Perez,

493 F.2d 1339 (10th Cir. 1974) .

United States v. Small,

443 F.2d 497 (3rd Cir. 1971) .

United States v. Varelli,

407 F.2d 735 (7th Cir. 1969) .

Waller v. Florida,

397 U.S. 387 (1970) .

Wong Sun v. United States,

371 U.S. 471 (1963) .

Constitutions:

United States:

Amendment IV .

Amendment V_.

Amendment VI .

Statutes:

28 U.S.C. $1254(1) .

li, 12

2, 3, 14, 16

. ee

IN THE

Supreme Court of the United States

October Term, 1978

LEWIS DAVIS MICHEL

.and

JOHN HANDY JONES,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Lewis Davis Michel and John Handy Jones, petitioners,

pray that a Writ of Certiorari issue to review the judgment

and opinion of the United States Court of Appeals for the

Fifth Circuit entered in this case on February 1, 1979.

OPINION BELOW

The final opinion of the United States Court of Appeals

for the Fifth Circuit is reported at 588 F.2d 986, and is

reproduced as Appendix A of this Petition.

JURISDICTION

The judgment of the Court of Appeals herein was entered

on February 1, 1979. The petitioners’ motion for rehearing,

which was filed on February 13, 1979, was denied without

written opinion on March 2, 1979. See Appendix B of this

Petition.

This Petition was filed within thirty (30) days of the de-

nial of the motion for rehearing.

The jurisdiction of this Court is invoked pursuant to 28

U.S.C. $1254(1).

QUESTIONS PRESENTED

1. Whether the introduction into evidence of proof of

other crimes (extraneous offenses) violated the petitioners’

right to due process of law, as guaranteed by the Fifth

Amendment.

2. Whether the petitioners’ convictions were barred by

the Double Jeopardy Clause of the Fifth Amendment.

3. Whether this Court should enforce the procedural

requirements and/or substantive content of the Department

of Justice’s ‘Petite policy’.

4. Whether the introduction of evidence against the pe-

titioner Jones violated the Fourth Amendment prohibition

against unreasonable searches and seizures.

5. Whether the prosecutor’s final argument in which he

asserted facts not adduced during the trial violated the Due

Process Clause of the Fifth Amendment and/or the Confron-

tation Clause of the Sixth Amendment.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourth Amendment to the United States Constitu-

tion provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against un-

reasonable searches and seizures, shall not be vio-

lated, and no Warrants shall issue, but upon prob-

able cause, supported by Oath or affirmation, and

particularly describing the place to be searched,

and the persons or things to be seized.

The Fifth Amendment to the United States Constitution

provides, in pertinent part:

No person shall . . . be subject for the same

offense to be twice put in jeopardy of life or

limb; . . . nor be deprived of ... liberty ...

without due process of law; .. . rc

The Sixth Amendment to the United States Constitution

provides, in pertinent part:

In all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses

against him;...

STATEMENT OF THE CASE

Petitioners were convicted of conspiracy to import mari-

juana into the United States from the Republic of Mexico

(Count 1) and of importing marijuana (Count 10 as to both

petitioners; Counts 13 and 14 as to petitioner Jones).

Factual details of this case will be related only as they

relate to the issues presented for review.

Proof of Other Crimes

The petitioners and others, headed up by Robert Belmares,

engaged in a marijuana smuggling operation during 1975 and

1976. This group (who will collectively be referred to as

the ‘Dallas conspiracy’) purchased high grade marijuana in

Oaxaca, Mexico and transported it to the Dallas, Texas area

by flying it from Mexico into Texas in small private aircraft.

In May 1976 Belmares met Douglas Spitler, who was then

working for individuals who were importing commercial (or

low grade) marijuana from northern Mexico into New Mexico

and west Texas. Although Belmares unsuccessfully attempted

to recruit Spitler as a pilot for the Dallas conspiracy, Bel-

mares did meet Spitler’s employers, Wood and McVey, and

from them learned of their conspiracy (referred to herein-

after as the ‘New Mexico/west Texas conspiracy’). Wood

elected to join Belmares and the Dallas conspiracy, but McVey

declined to do so. At this juncture McVey and Wood

terminated their relationship and ended the activities of the

New Mexico/west Texas conspiracy. Thereafter, Wood and

two of his New Mexico/west Texas conspiracy employees

worked for Belmares and tltus became a part of the Dallas

conspiracy. However, after Wood joined the Dallas conspi-

racy, the operations of the New Mexico/west Texas conspi-

racy stopped. The sources of marijuana in Mexico for the

commercial, low grade marijuana were never used by the

Dallas conspiracy; the routes of importation and points of

delivery in the United States used by the New Mexico/west

Texas conspiracy were never used by the Dallas conspiracy;

in short, the Dallas conspiracy continued its illicit activities

just as before with the exception that Wood and his two

former employees were not working for Belmares and were

a part of the Dallas conspiracy.

During the trial of this case the prosecution was permit-

ted to elicit, over the petitioners’ objection, details of the

importation activities of the New Mexico/west Texas con-

spiracy prior to May 1976. Petitioners contended at trial

and on appeal that such evidence constituted proof of other

crimes (extraneous-offense evidence), that it was therefore

irrelevant, and that it was prejudicial because of the ‘spill-

over’ effect it had.

Double Jeopardy /Petite Policy

As a result of their involvement in the Dallas conspiracy,

both petitioners were charged in Texas state courts with

marijuana-related offenses. Petitioner Michel was acquitted

of bribery for the purpose of importing marijuana, whereas

petitioner Jones was convicted of such offense. Both peti-

tioners were convicted of possessing marijuana. The state

offenses referred to all grew out of and were a part of the

activities of the Dallas conspiracy, and the facts supporting

the state charges were adduced during the trial of this case.

The trial court denied motions to dismiss based on double

jeopardy considerations.

During the trial of this case the prosecutor was ques-

tioned by defense counsel regarding the Petite policy and

its application to this case. The prosecutor candidly ad-

mitted that he had not secured approval to prosecute pe-

titioners from a superior in the Justice Department even

though such approval was required pursuant to the Petite

policy.

Search and Seizure

Petitioner Jones’ conviction on Count 13 rests upon the

seizure of marijuana by Dallas County sheriff's deputies in

May 1976.

‘

Sometime prior to the seizure in question, the manager

of the Lancaster, Texas airport reported his suspicion to

the Dallas County sheriffs office that the Lancaster airport

was being used after hours as a landing strip for smuggling

marijuana. This suspicion was founded upon the discovery

of some marijuana in a small plane at the airport. Nothing

eventful occurred after such discovery until the seizure in

question. On May 21, 1976 the airport manager observed

a U-Haul bob-tail truck parked near the airport runway,

with its lights on, after the airport had closed. As a small

plane began circling the runway the truck proceeded through

a parking lot toward the runway. As the truck approached

the runway the truck lights were turned off. The small

plane landed and was met at the end of the runway farthest

from the manager’s vantage point where approximately three

people off-loaded packages from the airplane into the truck.

The truck then departed the airport across an open field in

an easterly direction. These observations were reported by

the manager to a sheriff's deputy who broadcast an order

via police radio to stop a U-Haul bob-tail truck travelling

eastbound in the vicinity of the Lancaster airport. Shortly

after the broadcast, a U-Haul bobtail truck travelling in a

west-bound direction was stopped by sheriff's deputies in

the general vicinity of the airport. The driver and lone oc- :

cupant of the truck, Michael Rush, was arrested for driving

without a valid driver’s license. The truck was seized by

the deputies and transported to the Dallas County Sheriff’s

office where, after a warrant was secured setting out the

aforementioned facts, it was searched. The truck contained

1,000 pounds of marijuana.

The marijuana seized from the truck and testimony rela-

ting to the stopping of the truck and all subsequent activi-

ties were admitted in evidence at the trial of this case.

The Improper Argument

The petitioners’ conviction under Count 10 were supported

solely by the testimony of William White, an immunized co-

conspirator. The petitioners’ convictions on the other counts

also turned on White’s testimony, although not exclusively

as with regard to Count 10. Accordingly the credibility of

White was of crucial importance in determining the guilt or

innocence of the petitioners. During his direct testimony,

White stated that he had flown with petitioner Michel to

south Texas to aid petitioner Jones in one of the acts of

importation. He specifically testified that he and Michel de-

livered a small private plane to Jones and that they (he and

Michel) returned to Dallas via commercial airlines, to-wit:

on Southwest Airlines. Michel’s courisel argued to the jury

that White was not worthy of belief; that the only portion

of his testimony that could be corroborated by independent

evidence was his testimony that he and Michel flew from

south Texas to Dallas on a Southwest Airlines flight; and

that the prosecution had not presented any evidence from

Southwest Airlines records to corroborate White’s testimony.

Following this argument, during the prosecutor’s final argu-

ment, the prosecutor advised the jury, over the petitioner’s

objection, that “Southwest Airlines destroys their tickets

after six months and they are not available.”” The Court

of Appeals did not respond to this issue, though raised in

the briefs, in the court’s opinion in this case.

REASONS FOR GRANTING THE WRIT

Proof of Other Crimes

Certiorari should be granted to enforce and apply the

oft-repeated holding of this Court that the acts and decla-

tations of co-conspirators are admissible against all conspi-

rators when such acts and declarations occur in furtherance

of or during the life of the conspiracy to determine the ad-

missibility of extraneous-offense evidence in a conspiracy

case. The court of appeals has rejected application of this

rule in this case, in contradiction to the holdings of other

courts of appeals.

In Krulewitch v. United States, 336 U.S. 440 (1949), the

Court discussed the admissiblity of a co-conspirator’s state-

ment made out of the accused’s presence and after the of-

fense had been completed. The statement was held inad-

missible for the following expressed reasons:

This hearsay declaration, attributed to a co-

conspirator, was not made pursuant to and in

furtherance of objectives of the conspiracy

charged in the indictment, because if made, it

was after those objectives either had failed or

had been achieved. Under these circumstances,

the hearsay declaration attributed to the alleged

co-conspirator was not admissible on the theory

that it was made in furtherance of the alleged

criminal transportation undertaking.

Id., at 442-443. The Court in Krulewitch followed the strict

rule announced in Fiswick v, United States, 329 U.S. 211

(1946), that “the act of one partner in crime is admissible

against the others where it is in furtherance of the criminal

undertaking”. /d, at 217. See also Wong Sun v. United

States, 371 U.S. 471, 490-91 (1963), and Dutton yv, Evans,

400 U.S. 74 (1970), where the Court said, “It is settled

that in federal conspiracy trials the hearsay exception that

allows evidence of ar out-of-court statement of one conspi-

rator to be admitted against his fellow conspirators applies

only if the statement was made in the course of and in

furtherance of the conspiracy ...” 400 U.S. at 81.

Although petitioners based their attack on the admissi-

bility of the extraneous-offense evidence upon the cases

cited above,! the court of appeals ignored petitioners’ ar-

gument in disposing of the issue. The court began their

analysis of the issue by considering the right of conspira-

tors to a severance, which was not an issue raised by peti-

tioners! The court went on to conclude that the extraneous-

offense evidence was admissible under the rule that “[w] hen

one knowingly joins a conspiracy in progress he is responsi-

ble for acts of the conspiracy occurring before or after his

association with it.” 588 F.2d at 1002. While the court’s

statement of the law is undoubtedly true, it is subservient

tc the rule announced in Fiswick and Krulewitch. The ac-

tions of a conspirator which are not done in furtherance

of the conspiracy cannot be charged to his fellow conspi-

rators.

The court of appeals properly evaluated the factual situ-

ation when it said, “This alliance [between Wood and Bel-

mares] is best viewed as a merger of two independent smug-

gling groups with identical illegal purposes.”” 588 F.2d 1002.

The court of appeals erred in deducting from such ‘alliance’

that the acts of each group prior to such ‘merger’ were done

in furtherance of the conspiracy which resulted from the

‘merger’. The evidence negates any notion that Wood’s ac-

tions prior to joining forces with Belmares were done in fur-

therance of or contributed anything to the Dallas conspiracy.

Both groups were operating independently of the other prior

to the merger, and without knowledge of the other’s existence.

When Wood and Belmares joined forces, Wood disbanded his

organization and his conspiracy effectively ceased operations.

Thus, although it is highly arguable that Wood is chargeable

with the acts of Belmares’ group prior to the merger inas-

l See Appellant’s Brief 5 - 7, filed in this case in the court of

appeals by petitioners.

much as it is the Dallas conspiracy that survived the merger,

it is factually impossible to conclude that any of the pre-

merger activities of Wood contributed to and thus were done

in furtherance of the Dallas conspiracy. The reasoning of

the court of appeals .n this case conflicts with the reason-

ing of the United States Court of Appeals for the Seventh

Circuit in United States v. Varelli, 407 F.2d 735 (7th Cir.

1969), in that the merger of Wood and Belmares either re-

sulted in a separate, new conspiracy or was a continuation

of the existing Belmares’-Dallas conspiracy with new mem-

bers; in no way did the merger represent a continuation of

Wood’s conspiracy so that his acts could be charged to mem-

bers of the Dallas conspiracy. See also Kotteakos v, United

States, 328 U.S. 750 (1946). The reasoning and holding of

the court of appeals in this case also conflicts with the rea-

soning of the Court of Appeals for the Eighth Circuit in

United States v. Krol, 518 F.2d 1134 (8th Cir. 1975), in

that Spitler’s testimony concerning events and acts that oc-

curred prior to the Wood-Belmares merger were not admissi-

ble against petitioners in the absence of evidence that at the

time of the events and acts which Spitler related Spitler was

a member of, or was acting in furthernace of the conspiracy

to which petitioners belonged.

For the foregoing reasons this Court should issue a writ

of certiorari and resolve the disputes inherent in the opinion

of the court of appeals in this case.

Double Jeopardy/Petite Policy

Certiorari should be granted in this case to resolve two

issues which fall within the ambit of the Double Jeopardy

Clause. First, whether adherence to the ‘dual sovereignty’

concept is tenable in light of Benton v. Maryland, 395 US.

784 (1969). Second, whether the Petite policy should be

enforced as a corrollary of either the Double Jeopardy Clause

or the Due Process Clause.

This Court has steadfastly adhered to the ‘dual sovereignty’

concept when faced with claims of double jeopardy that flow

from convictions in federal or state courts after the accused

had been tried for the same offense in, respectively, a state

or federal court. The reasoning behind the ‘dual sovereignty’

concept is that every citizen of the United States owes alle-

giance to both the federal government and to the state gov-

ernment wherein he is located; thus, punishment by: both

governments for an offense against their laws, albeit the

acts giving rise to the offense against the laws of each gov-

ernment are the same, is not barred by the Double Jeopardy

Clause. Bartkus y. Illinois, 359 U.S. 121 (1959). Inextri-

cably tied to this reasoning was the conclusion that the Dou-

ble Jeopardy Clause did not apply to the states. /d, at 124-30.

In Benton v. Maryland, supra, this Court “recognize[d]

the inevitable” and held the Double Jeopardy Clause appli-

cable to the states in the same manner as it applied to the

federal government. As a consequence of Benton and Wal-

ler v. Florida, 397 U.S. 387 (1970), citizens of the United

States may expect the protection of the Double Jeopardy

Clause to apply to state prosecutions just as the protection

applies to federal prosecutions. But, so long as the ‘dual

sovereignty’ concept remains a part of the law, citizens can

expect the Double Jeopardy Clause to apply only in a hori-

zontal fashion, that is, in state courts and in federal courts,

but not in a vertical situation where prosecution occurs in

both a state and a federal forum. Such a situation is an

anomaly in that a citizen can expect to be free from dupli-

citous prosecution or punishment at the hand of the states

in precisely the same manner as are his expectations when

he is prosecuted and/or punished by the federal government;

but the very protections accorded him by the federal consti-

tution when in state or federai hands evaporate when he is

charged by both governments.

The decision in Ashe v, Swenson, 397 U.S. 436 (1970),

portends the demise of the ‘dual sovereignty’ concept. In

Ashe this Court incorporated into the protection afforded

by the Double Jeopardy Clause the long-standing eviden-

tiary doctrine of collateral estoppel, and made the doctrine

applicable to the states. It is inconceivable that collateral

estoppel does not apply vertically, that is, across the line

separating state prosecution and federal prosecution. A

citizen accused of a violation of both federal and state

laws grounded upon the same facts is surely protected

from prosecution by both ‘sovereigns’ where the elements

of both offenses are identical and the accused is acquitted

in one of the forums. No other reasonable conclusion is

possible from the reasoning and logic of Ashe.

This Court should grant certiorari to consider whether

the ‘dual sovereignty’ concept should be overruled, as it

should since it is a fiction which cannot be reconciled with

Benton, Waller and Ashe.

Certiorari should also be granted in this case to consider

this Court’s role vis-a-vis the Department of Justice’s Petite

policy. In Rinaldi v. United States, 434 U.S. 22 (1977),

this Court gave recognition to the policy and enforced its

application. The Court described the procedural require-

ments of the policy thusly:

The Petite policy is most frequently applied

against duplicating federal-state prosecutions. As

stated by the Department of Justice, under that

policy a federal trial following a state prosecution

for the same act or acts is barred ‘unless the rea-

sons are compelling.” A United States Attorney

contemplating a federal prosecution in these cir-

cumstances is required to obtain authorization

from an appropriate Assistant Attorney General.

In this case, the Justice Department official who

instructed trial counsel to insist upon a retrial

had not obtained the requisite approval.

Id, at 24, n.5.

The prior-authorization requirement in the Pe-

tite policy ensures that the Department of Justice

will normally make the ‘compelling reasons’ de-

termination prior to commencement of the fed-

eral prosecution. On occasion, however, a prose-

cution is initiated and a conviction obtained in

violation of the policy. When the Solicitor Gen-

eral has discovered such a violation in a case pen-

ding before this Court, he has sought to remedy it

by moving to have the case remanded to allow the

Government to dismiss the indictment.

Id, at 25, n. 8.

The Assistant United States Attorney who prosecuted this

case candidly admitted that he had not sought nor secured

prior authorization to prosecute the petitioners pursuant to

the requirements of the Petite policy, although he knew of

their state trials, acquittal and convictions. Hopefully, the

Solicitor General, when he reads this Petition, will take the

action described by the Court in Rinaldi at footnote 8 and

move to have the case remanded. But in the event he does

not, this Court must squarely face the responsibility of up-

holding the prior-authorization requirement of the Petite

policy as a matter of due process. If, as in Rinaldi, this

Court is going to enforce the Petite policy when the Gov-

ernment acknowledges its failure to comply with the prior-

authorization requirement of the policy, the same result is

mandated where, as here, the record affirmatively establishes

the Government’s failure to comply with the same require-

ment.

If the Solicitor General moves to have this case remanded,

and this Court grants the motion, the issues presented in this

Petition will be mooted. However, if such a motion is not

filed by the Solicitor General, certiorari should be granted

to consider this Court’s responsibility to enforce the Petite

policy, as suggested by Mr. Justice Rehnquist in his dissent-

ing opinion in Rinaldi.

The Search Issue

The court of appeals correctly noted that if the justifica-

tion for the stop of the U-Haul truck is insufficient to ren-

der the stop lawful, the subsequent acts (including the seiz-

ure of the marijuana in the truck) were fruits of the poiso-

nous tree. The court of appeals bottomed justification for

the stop upon two theories: the right of a police officer

to stop a vehicle and request production of a driver’s license,

and his right to stop a vehicle if he has reasonable grounds

to suspect that the vehicle or its occupants are involved in

criminal activity.

The first reason relied upon by the court of appeals —

the right to stop vehicles to check for driver’s licenses — is

clearly an unconstitutional predicate for police invasion of

a citizen’s right to privacy guaranteed by the Fourth Amend-

ment. Delaware v. Prouse, No. 77-1571, U.S.Sup.Ct., March

26, 1979.

The second reason relied upon by the court of appeals —

reasonable grounds to suspect criminal activity — has no ap-

plication to this case under the facts. Given the unusual na-

ture of the events witnesses at the airport by its manager,

nothing was seen to suggest criminal activity. Although sev-

eral planes were under surveillance at the airport because of

a suspicion that they might be involved in smuggling activi-

ties, the plane in question was not identified as being one

of the planes under suspicion. More critically, though, is

the lack of any connection between the U-Haul that was

stopped by the sheriff's deputies and the activities at the

airport. The airport manager reported that a U-Haul bob-

tail truck was seen at the airport under unusual circum-

stances. That truck was not identified more specifically

so as to distinguish it from any other U-Haul bobtail truck.

Additionally, the truck was last seen travelling in an easterly

direction, and the ‘pick up’ or ‘stop’ order specified a U-Haul

truck travelling east. The truck in question was stopped tra-

velling west and was stopped at a distance from the airport

which rendered it unlikely that it could have been the same

truck which the airport manager reported to the deputies.

The court of appeals took no note of these last two factors

in their factual summary leading to their conclusion that

“(t] hese facts, viewed as a whole, amgunted to suspicion

sufficient to warrant an investigative stop.” 588 F.2d at

998.

The facts of this case parallel the facts in Sibron v. New

York, 392 U.S. 40 (1962). In Sibron a police officer ob-

served Sibron to converse with six or eight persons who

he knew to be narcotics addicts. The officer followed Si-

bron to a restaurant where Sibron spoke with three other

known addicts. Sibron sat down, ordered some pie and

coffee, at which time the officer approached him and or-

dered him outside. Outside the restaurant the officer told

Sibron, “You know what I am after’, at which juncture

Sibron reached into his pocket wherein the officer found

heroin. In this case the airport manager was suspicious of

the activity involving the truck and the plane because of

other previous incidents which were not connected to the

incident in question. He related his suspicious observations

to the sheriff's department, and based on such information,

coupled with the further suspicion that the airport had pre-

viously been used as a landing strip for marijuana smuggling,

the stop of the truck was effected. The combined knowl-

edge of the sheriff's deputies at the time of the stop of

the truck was no greater than the arresting officer in Sibron

insofar as there being articulable facts from which it could

reasonably be concluded that the truck was involved in any

criminal activity. This Court made it clear that merely be-

cause an automobile is involved in a challenged search and

seizure, the requirements of the Fourth Amendment are not

relaxed or suspended. Coolidge v. New Hampshire, 403 U.S.

443, 461 (1971). Absent some fact tending to connect the

U-Haul truck in question with the activities at the Lancaster

airport, there was no constitutionally adequate, :easonable

grounds for stopping the truck. All that was demonstrated

is that the airport manager had some suspicion that the un-

usual activities he witnessed at the airport involved marijuana

smuggling, and that the deputies who stopped the truck had

some suspicion that the truck was the same truck observed

earlier at the airport. Two parts of suspicion, without more,

is not constitutional justification for the invasion of a citi-

zen’s Fourth Amendment right to privacy and liberty.

Certiorari should be granted because the court of appeals

failed to apply the Fourth Amendment standards established

by this Court in resolving the search question in this case.

Improper Argument

(Confrontation)

Certiorari should be granted to consider the propriety of

a prosecutor’s jury argument consisting of assertions of facts

which are not developed during the trial, and the applica-

tion of the Confronation Clause to such conduct. It is es-

pecially important that this issue be considered in this case

because, although raised in the petitioners’ briefs filed in

the court of appeals, the court of appeals failed to address

the issue.”

As previously noted, William White, an immunized co-

conspirator, gave the most damaging testimony against the

petitioners. White’s testimony formed the sole basis for

the petitioners’ convictions under Count 10; it was the sub-

stantial basis for the petitioner Michel’s conviction under

Count 1; and it was a substantial basis fo rthe petitioner

Jones’ other convictions. That White’s credibility was cru-

cial as to the jury’s determination of the petitioners’ guilt

or innocence is borne out by the fact that White’s testimony

formed the exclusive basis for the charges in Counts 11 and

12, of which the petitioners were acquitted. With respect

to White’s testimony relating to Counts | and 10, the only

portion of his testimony that was susceptible of corrobora-

tion by an independent source or by independent testimony

was his assertion that he and Michel transported a small

plane to south Texas and delivered it to Jones to further

Jones’ flight to Mexico to secure some marijuana. The in-

dependent corroboration available to the prosecution was

in the form of tickets or a passenger manifest from the

commercial airline — Southwest Airlines — which White tes-

tified he and Michel used to return from south Texas to

Dallas. Petitioner’s counsel, in his argument to the jury,

2 Appellant’s Brief 11-14.

pointed out that this fact was the only part of White's tes-

timony that the prosecution could have corroborated by

unimpeachable independent evidence, but that the prosecu-

tion had not produced such evidence, Over petitioners’ ob-

jections, the prosecutor advised the jury during his final ar-

gument that Southwest Airlines destroys their tickets after

six months and that the independent evidence alluded to

by defense counsel was therefore not available to the pro-

secution for introduction. No evidence adduced at the

trial supported the prosecutor's assertion made in his ar-

gument.

The complained of argument was improper because it

was not based on any facts established during the trial and

it asserted as a fact a matter which was not shown to be

true. It was prejudicial because the jury could reasonably

conclude, in light of the trial court’s ruling on the petition-

ers’ objections to the argument, that his assertion was true

and that White’s testimony respecting the trip to South

Texas was entitled to greater credibility than was the re-

mainder of his testimony, a conclusion not too remote

from what the jury’s verdicts reflect.

The prosecutor’s assertion of fact during his jury argu-

ment was not subject to cross-examination by the petitioners.

The trial court, by his ruling on the petitioners’ objections,

effectively admitted the asserted facts as evidence in the

ease. This combination was an effective denial of the peti-

tioners’ right to confront the witnesses whose testimony

serves as the basis for their convictions. Pointer v. Texas,

380 U.S. 400 (1965), and cases therein cited.

Virtually every court of appeals has condemned the type

of improper jury argument used by the prosecutor in this

case. See, e.g., United States v. Leon, 534 F.2d 667 (6th

Cir. 1975); United States v. Bledsoe, 531 F.2d 888 (8th

Cir, 1976), United States v. Diharce-Estrada, 526 F.2d 637

(5th Cir, 1975); United States v. Freeman, 514 F.2d 1314

(D.C.Cir. 1975); United States v. Martinez, 514 F.2d 334

(9th Cir. 1975); United States v Fearns, 501 F.2d 486

(7th Cir, 1974); United States v. Perez, 493 F.2d 1339

(10th Cir, 1974); United States v. Gonzalez, 488 F.2d 833

(2nd Cir, 1973); United States v. Small, 443 F.2d 497 (3rd

Cir, 1971), United States v. Gamberg, 440 F.2d 383 (4th

Cir. 1969); and Kitchell v. United States, 354 P.2d 715

(Ist Cir, 1966). In order to implement what appears to

be a unanimous attitude concerning improper jury argu-

ment and properly adjust the concomitant confrontation

claim, this Court should grant certiorari in this case.

PRAYER

For the reasons stated herein the petitioners pray that this

Court issue a writ of certiorari to review the judgment and

opinion of the court of appeals in this case.

Respectfully submitted,

BRUDER, COOPER, McCOLL & PRESTON

706 Main Street, Suite 300

Dallas, Texas 75202

(214) 742-3224

By: |

MELVYN CARSON BRUDER

20 la

CERTIFICATE OF SERVICE APPENDIX A

OPINION OF THE

I, Melvyn Carson Bruder, a member of the Bar of the UNITED STATES COURT OF APPEALS

Supreme Court of the United States and counsel for the

petitioners in the aforegoing case, hereby certify that on FOR THE FIFTH CIRCUIT

this the 30th day of March, 1979, I served upon the Soli- UNITED STATES v. MICHEL

citor General of the United States one (1) copy of the

aforegoing Petition for Writ of Certiorari by placing the 588 F.2d 986

same in the United States mail in Washington, D.C., ad-

dressed as follows: The Honorable Wade H. McCree, Jr.,

Solicitor General of the United States, Department of Jus- Al

tice, Washington, D.C., with sufficient prepaid postage af-

fixed thereto, UNITED STATES of America,

Plaintiff-Appellee,

Vv.

MELVYN CARSON BRUDER

Lewis Davis MICHEL, Robert Joseph Belmares, John Handy

Jones, Daniel Stewart Henshaw and Ted Ray Hines,

Defendants-Appellants.

No. 77-5518.

United States Court of Appeals,

Fifth Circuit

Feb. 1, 1979.

Appeals from the United States District Court for the

Northern District of Texas.

Before GEWIN, RONEY and GEE, Circuit Judges.

GEE, Circuit Judge:

Facts

This case arose out of a two-year scheme to import large

quantities of marijuana into the United States from the Re-

public of Mexico. The scheme, more notable for its spec-

tacular failures than for its successes, was at last brought to

a halt by various law enforcement agencies following the

importation of two plane loads of marijuana into South

Texas from Mexico. Count | of the 17-count indictment

charged a conspiracy among 19 named defendants and others

to acquire marijuana in the Republic of Mexico and to

transport it to Dallas, Texas, and other areas of the United

States in violation of 21 U.S.C. § 963.! In count 2, appel-

lant Belmares was charged with the conduct of a continuing

criminal enterprise in violation of 21 U.S.C. § 848.2 Counts

4 and 5 charged Belmares and others with importation of

1-31 U.S.C. 6 963 provides:

Any person who attempts or conspires to commit any of-

fense defined in this subchapter is punishable by imprisonment

or fine or both which may not exceed the maximum punish-

ment prescribed for the offense, the commission of which was

the object of the attempt or conspiracy.

2 21 U.S.C. § 848 provides in part:

(a1) Any person who engages in a continuing criminal en-

terprise shall be sentenced to a term of imprisonment which

may not be less than 10 years and which may be up to life im-

prisonment, to a fine of not more than $100,000, and to the

forfeiture prescribed in paragraph (2)

. . * * * .

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

is engaged in a continuing criminal enterprise if—

(1) he violates any provision of this subchapter or subchapter

II Of this chapter the punishment for which is a felony, and

marijuana in violation of 21 U.S.C. 8 952(a)>? and 960.4

Counts 10, 11 and 12 charged appellants Michel, Belmares

and others with importation offenses. Count 13 charged

an importation offense against Belmares and Jones. In

count 14, Jones and another defendant were charged with

an additional act of importation.

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

ions of this subchapter or subchapter II of this chapter—

(A) which are undertaken by such person in concert

with five or more other persons with respect to whom such

person occupies a position of organizer, a supervisory posi-

tion, or any other position of management, and

(B) from which such person obtains substantial income

or resources.

3 21 US.C. § 952(a) provides in part:

It shall be unlawful . . . to import into the United States

from any place outside thereof, any controlled substance in

schedule I or II of subchapter I of this chapter, or any nar-

cotic drug in schedule III, [V, or V of subchapter I of this

chapter....

4 21 US.C. 8 960 provides in part:

(a) Any person who—

(1) contrary to section 952 ... of this title, knowingly

or intentionally imports or exports a controlled substance .. .

shall be punished as provided in subsection (b) of this section.

(b\1) In the case of a violation under subsection (a) of

this section with respect to a narcotic drug in schedule I or

Il, the person committing such violation shall be imprisoned

not more than fifteen years, or fined not more than $25,000,

or both. If a sentence under this paragraph provides for impri-

sonment? the sentence shall include a special parole term of not

less than three years in addition to such term of imprisonment.

(2) In the case of a violation under subsection (a) of this

section with respect to a controlled substance other than a nar-

Appellant Michel was acquitted on counts 11 and 12

and was convicted on counts | (conspiracy) and 10 (impor-

tation). Belmares was acquitted on counts 11 and 12 and

convicted on counts | (conspiracy), 2 (continuing criminal

enterprise), 4, 5, 10 and 13 (importation). Appellant Jones

was acquitted on counts 11 and 12 and convicted on count

1 (conspiracy) and counts 10, 13 and 14 (importation). Ap-

pellants Henshaw and Hines were convicted on count | (con-

spiracy).>

The evidence adduced by the government at trial estab-

lished the existence of a loosely organized group of people

who, during a period of approximately two years, partici-

pated in the importation of marijuana from the Republic

of Mexico into the United States. Most of the testimony

came from witnesses who were actual participants in the

cotic drug in schedule I or II, the person committing such vio-

lation shall be imprisoned not more than five years, or be fined

nor more than $15,000, or both. If a sentence under this

paragraph provides for imprisonment, the sentence shall, in ad-

dition to such term of imprisonment, include (A) a special pa-

role term of not less than two years if such controlled substance

is in schedule I, II, III, or (B) a special parole term of not less

than one year if such controlled substance is in schedule IV.

5 Appellant Michel was sentenced to concurrent terms of five

years’ imprisonment to be followed by a three-year special parole term.

Belmares was sentenced to consecutive five-year terms of imprison-

ment on counts 1, 4 and 10, to be served concurrently with conse-

cutive five-year terms on counts 5 and 13 and with a fifteen-year term

on count 2. In addition, Belmares was assessed a three-year special

parole term. Appellant Jones was sentenced to concurrent five-year

terms of imprisonment on counts 10 and 13, and they were made

consecutive to the concurrent five-year terms imposed on counts |

and 14. He was also sentenced to serve three years of special pa-

role. Henshaw received a sentence of five years’ imprisonment and

a three-year special parole term, and Hines was sentenced to two

years’ imprisonment and three years of special parole.

purchase, importation, and transportation of the marijuana

and who were testifying pursuant to plea bargains or in ex-

change for immunity from prosecution. In order to pro-

vide an evidentiary foundation for our discussion of the

claimed errors and to better identify the “cast of thou-

sands,”® we shall set out the facts in some detail.

The central figure of the group was appellant Robert Bel-

mares. In early 1975 Belmares, who had been engaged in

smuggling marijuana from Mexico by backpack, sought to

expand and modernize his operation and to increase his

profits by flying the marijuana from Mexico into Texas.

Belmares and his associate, Ronnie Dyer, joined forces with

Robert Potter, who had a connection for the purchase of

marijuana, and T. Michael Powell, who was a pilot for their

combined venture. Also joining the group during this period

was Allan Wilkes, who helped locate a landing site in Texas.

In February of 1975, Powell, Belmares, and Potter flew to

Mexico in a private airplane to familiarize themselves with

the problems to be encountered in flying across the bor-

‘der. Potter characterized this trip as a “recognizance” mis-

sion.

In March of 1975, Potter began purchasing marijuana in

Oaxaca, Mexico, using money furnished by himself and Bel-

mares. The Mexican “connections,” or sources of the mari-

juana, were Oscar Gracia de Anda and Geronimo Rodriguez.

Potter handled the Mexican end of the venture, and Belmares

was responsible for the return flight to the United States

and for transportation of the load and distribution in the

United States. Powell flew the load of marijuana from

Oaxaca, but the venture ended in disaster when he landed

ate of the Yale Law School, a real estate salesman, a real estate de-

veloper, a combat decorated ex-Air Force captain, and a minister.

the plane on a beach in Tampico and damaged the landing

gear, stranding the cargo. Belmares engaged Thomas Waldon

to replace Powell as pilot and to pick up the beached mari-

juana, which was returned safely to the United States in

April with the help of Belmares and a number of his asso-

ciates.’ Belmares and Potter then returned to Mexico with

funds to begin a month-long series of marijuana purchases.

This marijuana was flown by Waldon in May to Addison,

Texas, where Wilkes had arranged for the flight to be met.®

Between late spring and summer 1975, the same group

made additional flights with marijuana. During this time

they paid a Mexican official named Luis Garza to provide

protection at a landing site in northern Mexico. Belmares

became less active in the physical acts of importation but

continued to retain a financial interest in the ventures. Bel-

mares and Wilkes had a disagreement concerning some mari-

juana which vanished in transit;? Potter dropped out, but

the group continued to use the source introduced to them

by Potter at the inception of the plan. Powell continued

to fly for the enterprise, and Wilkes was a distribution

agent in the United States.

By January 1976, additional people had become involved

in Belmares’ operation. Appellant John Handy Jones was a

pilot for the group and referred to Belmares and Dyer as

his partners. Appellant Lewis Davis Michel served as a go-

7 This act of importation was the basis for count 4 of the indict-

ment.

8 This act of importation was the basis for count 5 of the indict-

ment.

9 The confederates were told that a dog had run off with a duffel

bag of the marijuana. No one was totally convinced by this explana-

tion of why the load was forty pounds light.

between for Jones and Belmares and performed various serv-

ices on the ground, including meeting the flights when they

landed in the United States. William C. White had been re-

cruited as a pilot, and on one evening in early 1976 he re-

ceived a call from Michel asking him to mect Jones at Love

Field in Dallas. Michel explained that he had planned to meet

Jones at their clandestine airstrip near Cleburne but that

Jones passed over the landing site in the darkness and was

proceeding to Love Field. White went to the airport as re-

quested and met Jones, who announced that he had just

flown in a load of marijuana trom Mexico. White later

watched as Jones and Michel loaded the marijuana into a

van, and Michel drove it away. !0

Powell continued to fly for the Belmares organization,

but in April 1976, a load which Powell had been scheduled

to transport from Mexico several weeks earlier was flown

by Waldon instead. The marijuana had been purchased with

the aid of Oscar Garcia de Anda and Geronimo Rodriguez,

the group’s Mexican sources. Waldon was forced by weather

conditions to land at Temple, Texas, where he was met by

Wilkes and another man. The marijuana was unloaded but

was transported only as far as the gate of the airport, where

all three men were arrested. In May of 1976, Powell was

arrested in Mexico, and Belmares, in his attempt to recruit

another pilot, was introduced to Douglas Spitler. At this

time Spitler was an employee of Jim Wood and was en-

gaged in a separate operation flying marijuana from Mexico

into West Texas and New Mexico for Wood and his partner,

‘McVey, using aircraft supplied by James Malone. Neither

Belmares nor White was successful in recruiting Spitler to

fly for their organization, but White recruited Robert Cross

10 This act of importation was the basis for count 10 of the indict-

ment.

to accompany Jones to Mexico, where a marijuana purchase

was made and loaded on their airplane. Cross flew the load

to Lancaster, Texas, and transferred it to a U-Haul truck,

but this load was seized after delivery."

In the meantime, Belmares succeeded in obtaining an in-

troduction to Jim Wood. Each ‘had something the other

needed. Belmares had excellent connections for high-grade

marijuana through Oscar Garcia de Anda and Oaxaca but

needed money, planes and a pilot. Wood and McVey had

all of these but lacked a source of high-grade marijuana.

In late spring of 1976, Belmares and Wood agreed to join

forces to their mutual benefit. McVey left the expanded

operation at this point because he wished to avoid southern

Mexico.

Meanwhile, John Handy Jones, in order to secure a pro-

tected landing site in the United States, had offered a bribe

to the chief of police of Addison, Texas. In return for the

money, Jones expected noninterference with landings at the

Addison airport and tipoffs in the event of an impending

drug bust. The Addison airport was used in May and June,

1976, for several trips in which Jones, Michel, and Wilkes

were involved. In fact, however, the Addison police chief

had only pretended to accept the offer and was cooperating

with other law enforcement agents. In late June 1976, Mi-

chel, Jones, and others were arrested at the Addison airport

following a flight from Mexico,!2 In July of 1976, Belma-

res, Mike Lallier and Wilkes arranged for a landing site and

ground crew at Horsehoe Bay in Central Texas, and Belmares

11 This act of importation was the subject of count 13 of the in-

dictment.

12 The flight on this occasion was the basis for count 14 of the

indictment.

then went to Mexico to buy marijuana. One load of mari-

juana was successfully flown to Horseshoe Bay from Tam-

pico, with Wood assisting at the landing site, but later in

the month two of Belmares’ ground personnel. were arrested

at Horsehoe Bay with 200 pounds of marijuana. In Sep-

tember of ‘1976, Lallier flew a load of marijuana from Oa-

xaca to a landing strip in South Texas for refueling and on

to Dallas, where Wood again helped transport the marijuana

when the plane landed.

In October 1976, Spitler, under the direction of Wood

and Malone, flew 1,300 pounds of marijuana from Oaxaca

to the vicinity of Cotulla and Freer in South Texas. Appel-

lant Henshaw showed Spitler the runway in Mexico, and

Oscar Garcia de Anda was there when Spitler arrived. Wood

met the loaded flight at its return destination in South Texas.

At about this time the group recruited Dueal Ray Hulsey,

who had become acquainted with Jones while he was in

jail following his arrest at Addison in June. The two had

discussed marijuana smuggling in their cell, and Hulsey had

represented himself to be a pilot. Belmares, in October

1976, asked Hulsey to go to Mexico and to a location in

Texas to look at a damaged plane to determine whether it

could be safely flown. Upon arriving in Mexico, Hulsey

was greeted by Henshaw and Oscar Garcia de Anda, but Hul-

sey refused to fly the damaged plane back to the United

States. Although Hulsey was recruited as a pilot and rep-

resented himself to be one, he was not a licensed pilot and

was in fact cooperating with law enforcement agencies dur-

ing this period. In November 1976, Hulsey was sent by

Jones to check a prospective landing site in the Cotulla-Freer

vicinity. Belmares told Hulsey that he (Belmares) was in

charge of the details and scheduling of the trips.

10a

During this November 1976 time frame, two meetings

were held at which a future importation trip was discussed.

Spitler attended both meetings; at the first he met with

Wood and Malone and was introduced to appellant Hines.

Wood explained to Spitler that Hines owned a motor home

and was considering driving marijuana for the group. At

the second meeting, Spitler met with Wood, Belmares, Jones,

Henshaw and others. Also in November 1976, Belmares

and Lallier had purchased an airplane registered in the name

“G. Oscar Andan,” whose address was listed as 3710-A Ce-

dar Springs in Dallas. The plane, an Aero Commander with

the identification number N344V, was used in November

and early December for various smuggling trips.

As a result of Spitler’s November meetings, a trip was

planned for December 9, 1976. Spitler and Jones flew to

Oaxaca in separate planes. Spitler’s aircraft had been ob-

tained by Wood and Malone; Jones flew N344V. In Me-

xico, both planes were loaded with marijuana and prepared

for the return trip to the Cotulla-Freer area. On the mor-

ning of December 9, Henshaw was observed in Dallas mov-

ing airplane seats from one automobile to another and was

joined shortly thereafter by Belmares and Oscar Garcia de

Anda. Later that morning Henshaw drove to 3710 Cedar

Springs and was observed attaching a radio antenna to a

van truck. That evening, on Farm Road 624 in the Cotulla-

Freer vicinity, the truck was observed meeting a motor home

and an automobile. Two of the vehicles were placed some

distance apart facing another on the road. As the aircraft

flew overhead without lights, the headlights of the two ve-

hicles were turned on for a short period of time, illuminat-

ing the makeshift landing strip.

The pilots of the aircraft overhead were Spitler and

Jones, who had kept each other in sight and had maintained

lla

radio contact on the flight from Mexico. Spitler landed on

the farm road first, and Wood and others unloaded the air-

craft. Spitler and Wood then flew to San Antonio, where

they were arrested by Customs pilots and the plane seized.

Near the landing site, Bennet was arrested in his automo-

bile and Hines was arrested in the motor home, which was

loaded with marijuana. Two other men fled, abandoning

the marijuana-loaded van truck. Jones’ plane, N344V,

crashed in Beeville, Texas, but Jones salvaged 200 pounds

of marijuana. This contraband was driven to Austin around

December 11, 1976. Following the ill-fated December 1976

trip, the group was effectively broken up, and arrests, trials

and convictions followed.

Conspiracy to Import Marijuana

All appellants except Jones attack the sufficiency of the

evidence to sustain their convictions on count 1, the con-

spiracy count. Appellants Belmares and Henshaw attack

the proof of a single conspiracy and argue that all that was

shown was a series of unrelated flights. Appellants Michel,

Henshaw, and Hines contend that the evidence is not suffi-

cient to link them to a conspiracy to import marijuana.

[1-7] In reviewing the sufficiency of the evidence to sus-

tain appellants’ convictions, we must view the evidence in

the light most favorable to the government, Glasser v. United

States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), and

reverse only if reasonable jurors could not find the evidence

inconsistent with every hypothesis of the accuseds’ innocence.

United States v. Ragano, 520 F.2d 1191, 1203 n. 16 (Sth

Cir. 1975), cert. denied, 427 U.S. 905, 96 S.Ct. 3192, 49

l2a

L.Ed.2d 1199 (1976). The government must prove, either

by direct or circumstantial evidence, an agreement or com-

mon purpose to violate the law. United States v. Warner,

441 F.2d 821, 830 (5th Cir.), cert. denied, 404 U.S. 829,

92 S.Ct. 65, 30 L.Ed.2d 58 (1971). The proof, whether

direct or circumstantial, must establish beyond a reasonable

doubt that a conspiracy existed between knowing partners.

United States v. Duckett, 550 F.2d 1027, 1030 (Sth Cir.

1977). For a conspiracy under 21 U.S.C. $ 963, there is

no need to allege or to prove overt acts. United States v.

Thomas, 567 F.2d 638, 641 (Sth Cir. 1978). That the sin-

gle conspiracy charged in the case at bar existed is clear.

The government presented overwhelming proof of the illegal

agreement or common purpose: Belmares and the other

agreed to fly marijuana from Mexico into Texas; protected

landing strips in both countries were located and secured;

pilots and ground crews were recruited; a source for high-

grade Mexican marijuana was recruited and engaged; mari-

juana was purchased in Mexico and flown into Texas to

be picked up and distributed by members of the group.

The division of labor under Belmares’ direction and the

continuing nature of the operation are further indicia of

the underlying agreement. United States v. Becker, 569

F.2d 951, 959 (Sth Cir.), cert. denied, US. ,99

S.Ct. 188, 58 L.Ed.2d 174 (1978). Whether a scheme is

one conspiracy or several is primarily a question for the

jury, United States v. Rodriguez, 509 F.2d 1342, 1348 (Sth

Cir. 1975), and we believe their conclusion here is supported

by substantial evidence. That each flight was a random, se-

parate venture discrete from the others defies belief. The

group’s effurts to maintain protected landing sites and the

continuous planning and cooperation between the persons

involved convinces us that this was one scheme to import

marijuana which envisioned as many flights as could safely

13a

be made. The plan necessarily required the assistance of

many persons performing varied functions; yet there was

still only one overall agreement bet'veen the parties to per-

form functions necessary to and in furtherance of the ille-

gal common purpose, This makes out one conspiracy.

United States v. Becker, supra; United States v. Perez,

489 F.2d 51, 62 (Sth Cir. 1973), cert. denied, 417 U.S.

945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974). The plan

does not become several plans simply because some mem-

bers were cast in more vital roles than others or because

certain members performed only a single function. United

States v. Becker, supra, Neither does it become several

' plans because of internal personnel changes. United States

v. Scott, 555 F.2d 522 (Sth Cir.), cert. denied, 434 US.

985, 98 S.Ct. 610, 54 L.Ed.2d 478 (1977). The govern-

ment’s substantial proof of overlapping membership and

activities directed toward a common goal is sufficient to

support the jury verdict reflecting a single conspiracy.

United States v. Scott, supra; United States v. Perez, supra;

United States v. Morado, 454 F.2d 167 (Sth Cir.), cert. denied,

406 U.S. 917, 92 S.Ct. 1767, 32 L.Ed.2d 116 (1972).

[8-10] To establish that each individual defendant was

a culpable member of the conspiracy, the government must

prove that the defendant knew of the agreement and, with

that knowledge, voluntarily participated in it. United States

v. White, 569 F.2d 263, 267 (Sth Cir. 1978); United States

v. Caro, 569 F.2d 411, 416 (Sth Cir. 1978). The evidence

must be sufficient to show that each defendant had a gen-

eral knowledge of the overall purpose and scope of the con-

spiracy, but it is not necessary that the conspirators know

each other or the details of each enterprise making up the

conspiracy. United States v. Becker, supra. Once we have

determined that the conspiracy existed and that each defend-

ant committed acts that furthered its unlawful purpose, we

14a

must satisfy ourselves that each defendant possessed the

requisite knowledge of the general purpose of the agreement.

United States v. Brasseaux, 509 F.2d 157, 160 & n. 3 (Sth

Cir. 1975). It is in our review of the sufficiency of the

evidence of the element of knowing participation that this

circuit’s "slight evidence”’ rule is used.

Once it has been established that a conspiracy exists

and that a particular defendant was clearly connected

to the conspiring group or acted in a manner which

unmistakably forwarded the conspiracy, then only

slight additional evidence suffices to permit an appel-

late court to find that the jury could reasonably in-

fer that one shown beyond a reasonable doubt to be

a participant was in fact a knowing participant.

United States v. Becker, 569 F.2d at 961. See also United

States v. Duckett, supra; United States v. Alvarez, 548 F.2d

542, 544 (Sth Cir. 1977).

{11] Government witnesses, who were themselves parti-

cipants in the venture, clearly established the existence of

an ongoing conspiracy to import marijuana, which employed

many persons. Belmares’ role in the venture cannot be con-

tested. He was the plan’s central figure from its inception

until the final flight into South Texas some two years later.

Government evidence also showed that Michel provided ex-

pense money for one flight into Mexico and arranged for

a second flight to be met at the Addison, Texas, airport.

Government witnesses testified that Henshaw boarded a

plane in Mexico flown by one of the group’s pilots and

directed him to a landing field so that a load of marijuana

could be picked up and flown back to South Texas. Hines

was arrested in a motor home full of marijuana a short dis-

tance from the clandestine landing site of the group’s final

trip. Jones was a pilot for Belmares’ operation and flew

15a

several of the marijuana flights himself. All appellants

clearly committed acts to further the importation scheme.

Far more than the slight additional evidence necessary

was adduced. Belmares’ knowledge and intent is beyond

argument; indeed, he does not directly challenge this aspect

of the jury verdict. Government evidence showed that Mi-

chel arranged for an airplane in late 1975 and accompanied

the pilot to deliver it to Jones in South Texas so that Jones

could pick up a load of marijuana stashed in Mexico. In

1976 Michel telephoned the supposedly-bribed Addison,

Texas, police chief to deliver a pre-arranged coded message

regarding an incoming flight of marijuana. Henshaw was

placed, by a government witness, at a November meeting

in Dallas between Belmares, Jones (pilot), Spitler (pilot),

and Wood (ground operations) at which the December

1976 importation trip was planned. Earlier Henshaw and

Oscar Garcia de Anda, the group’s ‘“‘Mexican connection,”

met Hulsey at the Oaxaca, Mexico, airport and took him

to a downed plane for the purpose of determining whether

the plane could be repaired so that a load of marijuana

could be flown into the United States.

Hines argues most strenuously that no evidence supports

the jury’s conclusion that he had knowledge of the group’s

importation purpose. We disagree. In November 1976,

Hines was introduced to government witness Spitler (pilot)

by Malone (aircraft procurer) as one who had a motor home

and was “thinking about doing some driving for us.” Spit-

ler was told by Wood (ground operations) that the motor

home would be used to transport marijuana. ‘‘Aspects of

the marijuana”’ were discussed in Hines’ presence during a

20-minute car ride to Wood’s apartment in Oklahoma City.

This meeting was held about two weeks before the Decem-

ber 9, 1976, trip of the group — an importation trip in

which Wood and Spitler were involved. On the evening of

l6a

December 9 the motor home and two other vehicies were

rendezvoused in the Cotulla-Freer vicinity and proceeded

to FM 624 where two of the vehicles illuminated a make-

shift runway by facing each other and briefly turning on

their headlights. Later, after a landing had been made at

this clandestine border site and the plane had again become

airbonre, the automobiles were followed from the scene,

and Hines was arrested a short distance away in a motor

home crammed with marijuana. Spitler flew one of the

planes from Mexico to this landing site, and Wood assisted

in loading the marijuana from the plane into the ground

vehicles. The evidence against appellant Hines, as well .

that against appellants Belmares, Michel, and Henshaw, is

sufficient to support their convictions for conspiracy to im-

port marijuana. Jones did not challenge the evidence to

support his count | conviction.

Importation of Marijuana

Appellants Belmares, Jones and Michel assert that their

convictions on count 10 (importation) must be reversed

for want of sufficient evidence. Belmares and Jones also

attack their convictions on count 13 (importation); the for-

mer complains that no evidence was introduced to link him

to this trip, and the latter contends that his conviction on

this count was obtained by the use of marijuana illegally seized

following a detention and search of a U-Haul truck without

probable cause.

{12] The government proved count {0 through the testi-

mony of William C. White, an immunized witness who for a

time participated in the scheme. He testified that Michel

called him from Cleburne, Texas, one evening in late Decem-

ber 1975 or early 1976 and asked him to go to Love Field

in Dallas to meet Jones, who was flying a load of marijuana

17a

in from Mexico. Michel was waiting for him at a secret

landing strip, but darkness had forced Jones to overfly the

runway and to proceed to Love Field. White did as he was

asked and later watched as Jones and Michel transferred the

marijuana from the airplane into a van. Michel drove away

with the marijuana. This flight was the basis for count 10

on which Jones, Michel and Belmares were convicted.

[13, 14] Jones and Michel do not contend that this tes-

timony is insufficient to sustain their convictions. They ar-

gue that White’s testimony must be disregarded because the

jury rejected his testimony concerning two other acts of im-

portation alleged in counts 11 and 12 by returning not

guilty verdicts on those two counts. We disagree. The

jury did not have to credit White’s entire story in order to

believe a part of it. United States v. Edwards, 488 F.2d

1154, 1158 (Sth Cir. 1974). It was within their province

to accept as true that the act of importation charged in

count 10 occurred as White testified and to reject his story

as it related to counts 11 and 12. Where a multi-count ver-

dict appears inconsistent, the appellate inquiry is limited to

a determination whether the evidence is legally sufficient to

support the counts on which a conviction is returned. What

the jury did with the remaining counts is immaterial. United

States v. Fuiman, 546 F.2d 1155, 1157-58 (Sth Cir.), cert.

denied, 434 U.S. 856, 98 S.Ct. 176, 54 L.Ed.2d 127 (1977).

The jury’s verdict on count 10 against Jonés and Michel is

based on ample evidence, and their convications are affirmed.

Jones further argues that his conviction for importation

of marijuana on count 13 must be reversed for failure to

suppress marijuana seized by Dallas County sheriffs deputies

in May of 1976. After Deputy Sheriff Oxford, investigating

a call from the Lancaster, Texas, airport, went to the airport

to get further information, a radio call was dispatched to stop

18a

a U-Haul bobtail truck observed traveling east away from the

airport. The truck was stopped a few minutes later, and

Rush was arrested for driving without a license. Deputy Ox-

ford arrived at the scene moments after the stop and, while

passing within two feet of the padlocked rear of the truck,

detected the odor of marijuana. The truck was driven to

the sheriff's office where a search of the truck, after a war-

rant was obtained, revealed 62 bundles containing approxi-

mately 1,000 pounds of marijuana. By motion to suppress,

Rush unsuccessfully challenged the stop and search. Jones

adopted this motion by filing a general “Motion to Adopt

Motions of Co-Defendants”’ but did not file such a written

motion of his own. Jones’ attorney did not participate in

the suppression hearing except to adopt an objection, made

by yet another co-defendant, to the admission of any tes-

timony concerning the arrest of Rush and seizure of the ma-

rijuana. Jones now complains that the initial stop of the

U-Haul was without probable cause and that the seized evi-

dence was inadmissible as “fruit of the poisonous tree.”’ He

further contends that the subsequent search of the truck was

also without probable cause. The government argues on ap-

peal that Jones has no “standing” to challenge this search

and seizure because he has not asserted that his own fourth

amendment rights were violated. See Rakas v. Illinois, _

U.S. , 99 S.Ct. 421, 58 LEd.2d 387 (1978). Although

we might agree with the government were this issue prop-

erly presented, we note that Jones’ standing to raise a

fourth amendment claim was not challenged below and the

matte: was never litigated. We find it unnecessary, however,

to remand for a factual determination of Jones’ interest in

the place searched or property seized. We hold that the

initial stop of the U-Haul truck was legal and that the sub-

sequent search was made upon probable cause.

[15-17] We must begin by examining the justification

for the stop because, if it was illegal, the subsequent acts

19a

were fruits of the poisonous tree. Wong Sun v. United

States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

We recognize the general rule that a police officer may stop

a vehicle and request production of a driver’s license on

“somehwat less” than probable cause. Dell v. Louisiana, 468

F.2d 324, 326 (Sth Cir. 1972), cert. denied, 411 U.S. 938, 93

S.Ct. 1904, 36 L.Ed.2d 400 (1973); United States v. Marlow,

423 F.2d 1064 (Sth Cir. 1970); see Tex. Rev.Civ.Stat.Ann. art.

6687b, § 13 (1977). Police officers may also stop an indivi-

dual if the officer has reasonable grounds to suspect that the

particular individual is involved in criminal activity. United

States v. McDaniel, 550 F.2d 214, 217 (Sth Cir. 1977);

United States v. McCann, 465 F.2d 147, 158 (Sth Cir. 1972),

cert. denied sub nom. Kelly v. United States, 412 U.S. 927,

93 S.Ct. 2747, 37 L.Ed.2d 154 (1978). In determining

whether reasonable suspicion existed, we must examine the

facts known to the officer at the time of the stop. United

States v. Rias, 524 F.2d 118, 121 (Sth Cir. 1975). We can,

of course, consider the cumulative knowledge of the offi-

cers working on the case, rather than only the knowledge

possessed by the officer who made the stop, where there

has been some degree of communication between them. Mo-

reno-Vallejo v. United States, 414 F.2d 901, 904 (Sth Cir.

1969), cert. denied, 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 76

(1970).

[18] The airport manager called Deputy Oxford at his

home sometime after midnight and asked him to come to

the airport because something was being transferred from

an airplane to a truck at the far end of the runway. The

two men had been working together for some months to

determine whether the small airport was being used after

closing hours as a landing strip for smuggling operations.

Their investigation began when the manager found what la-

boratory tests identified as marijuana in a plane based at

the airport. The manager had alerted Deputy Oxford to

20a

the possibility of smuggling and began watching the move-

ments of certain private aircraft. After receiving the phone

call, the deputy went to the airport and, on the basis of

the information he received from the manager, initiated a

radio broadcast to stop the U-Haul truck. At the time of

the stop, the Dallas County Sheriff's Office had knowledge

of the following facts: the Lancaster airport closed at 10:00

p.m. and was seldom used after that hour; the U-Haul truck

had been parked beyond the runway with its lights on when

the plane began circling the field to land; the truck pro-

ceeded through the parking lot with its lights on but drove

down the taxiway past the terminal with its lights off; the

truck and the plane met at the far end of the runway to be-

gin the transfer of cargo; approximately three people loaded

packages into the truck for several minutes; the area where

the transfer occurred is not the normal place at this airport,

even in daylight hours, for unloading cargo or luggage; simi-

lar occurrences at this hour were not common at this airport;

the plane took off immediately after the loading ceased; the

truck left the airport by driving across open fields away from

the terminal rather than by using a paved road which would

have taken him past the terminal; the truck was travelling

away from the airport in an easterly direction, which was the

only direct route to Interstate 635. In addition, Deputy Ox-

ford knew from past experience that small country airports

were often used by marijuana smugglers to fly loads in af-

ter the airfield is closed and that the Lancaster airfield had

likely been used for that purpose in the recent past. These

facts, viewed as a whole, amounted to suspicion sufficient

to warrant an investigative stop. See United States v. Wor-

thington, 544 F.2d 1275 (Sth Cir.), cert. denied, 434 UJS.

817, 98 S.Ct. 55, 54 L.Ed.2d 72 (1977); United States v.

Maslanka, 501 F.2d 208 (Sth Cir. 1974), cert. denied, sub

nom. Knight v. United States, 421 U.S. 912, 95 S.Ct. 1567,

43 L.Ed.2d 777 (1975); United States v. Rollerson, 491

2la

F.2d 1209 (Sth Cir. 1974); United States v. McCann, supra.

Compare United States v. Robinson, 535 F.2d 881 (Sth Cir.

1976).

[19-21] Having determined the initial stop to be legal,

we turn to the remaining sequence of events. When stopped

and asked to produce his driver’s license, Rush admitted he

did not have it with him. Therefore, his arrest was based on

probable cause. Dell v. Louisiana, 468 F.2d at 326. More-

over, when Deputy Oxford arrived at the scene shortly there-

after to begin his investigation of the airport incident and

smelled the marijuana, probable cause clearly existed for a

warrantless search of the truck. Carroll v. United States,

267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); United

States v. Mitchell, 538 F.2d 1230 (Sth Cir. 1976) (en banc),

cert. denied, 430 U.S. 945, 97 S.Ct. 1578, 51 L.Ed.2d 792

(1977); United States v. Walker, 522 F.2d 194 (Sth Cir. 1975).

The officers, however, obtained a warrant, and we fail to see

how the legality of the search can be seriously questioned.

No error was committed in overruling the motion to suppress,

and Jones’ conviction on cout 13 is affirmed.

[22-26] Appellant Belmares’ convictions on counts 10

and 13 must also be affirmed. He argues that no evidence

connected him directly with these flights, and thus the con-

victions must be reversed. Again we must disagree. We have

held that sufficient evidence existed for the jury reasonably

to conclude that Belmares was a knowing participant in a

continuing conspiracy to import marijuana from Mexico.

Jones did not appeal his conviction for belonging to the

same conspiracy, and his convictions for counts 10 and 13,

two substantive importation offenses, today have been af-

firmed. Well settled is the principle that a party to a con-

tinuing conspiracy may be responsible for a substantive of-

fense committed by a co-conspirator in furthernace of the

conspiracy, even though that party does not participate in

the substantive offense or have any knowledge of it. Pinker-

ton v. United States, 328 U.S. 640, 647, 66 S.Ct. 1180, 90

22a

L.Ed. 1489 (1946). Once the conspiracy and a particular

defendant’s knowing participation in it has been established

beyond a reasonable doubt, the defendant is deemed guilty

of substantive acts committed in furtherance of the conspiracy

by any of his criminal partners. United States v. Sullivan,

578 F.2d 121, 122-23 (5th Cir. 1978). This principle has

been repeatedly applied by this circuit in cases involving

drug conspiracies and substantive drug violations. F.g.,

United States v. Sullivan, supra; United States v. Decker,

543 F.2d 1102, 1103-04 (Sth Cir. 1976), cert. denied sub

nom. Vice v, United States, 431 U.S. 906, 97 S.Ct. 1700,

52 L.Ed.2d 390 (1977); United States v. Apollo, 476 F.2d

156, 162 (Sth Cir. 1973). It should be no less strictly ap-

plied to hold the organizer or supervisor of a criminal enter-

prise responsible for the acts of his co-conspirators done in

furthernace of the operation he manages. The Pinkerton

vicarious-liability rationale is based upon an agreement or

common purpose shared by co-conspirators; they are part-

ners in crime, and the act of one in furtherance of the un-

lawful plan is the act of all. Pinkerton v, United States,

328 U.S. at 646-47, 66 S.Ct. 1180. This element is also

present in the offense set out in 21 U.S.C. § 848 — conduct-

ing a continuing criminal enterprise — of which Belmares was

convicted. The statute requires that a defendant must act

“in concert” with five or more persons. The Supreme Court

and this court have interpreted this to encompass the agree-

ment required to prove a conspiracy. Jeffers v. United States,

432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977); see

United States v. Johnson, 575 F.2d 1347 (Sth Cir. 1978).

Therefore, we hold Pinkerton and its progeny equally appli-

cable to defendants charged with either conspiracy to violate

the drug laws or a section 848 continuing criminal enter-

prise. The appellate inquiry is whether the government of-

fered sufficient proof that a jury might reasonably conclude

23a

that an agreement or common purpose to violate the Drug

Control Act existed. If this concert of action has been

proved, all members of the enterprise, including the organ-

izer, manager, or supervisor, are responsible for the substan-

tive offenses committed by each member during the course

of and in furtherance of the plan. Appellant Jones’ two im-

portation offenses charged in counts 10 and 13,’ convictions

we today affirm, were unquestionably committed to further

the group’s illegal scheme. Belmares, as supervisor, shares

equal responsibility for those offenses, and we likewise af-

firm his two convictions for the two acts of importation

alleged in counts 10 and 13.8

Conducting a Continuing Criminal

Enterprise

{27} Appellant Belmares complains that his conviction

for conducting a continuing criminal enterprise in violation

of 21 U.S.C. 8 848 cannot be affirmed because the evidence

is insufficient to support a conviction. Central to this ar-

gument is his related contention that there is no evidence

to convict him of the substantive importation offenses al-

leged in counts 10 and 13.

[28] A person engages in a continuing criminal enter-

prise, as defeined in 21 U.S.C. 8 848(b)(2), if he violates

13 We are mindful of the rule that a conviction can not be af-

firmed on appeal on a theory not presented to the jury. We believe,

however, that the charge fairly presented the Pinkerton principle to

the jury. The trial court instructed the jury on two occasions in its

final charge that after they were satisfied beyond a reasonable doubt

that a conspiracy exixted and that a defendant was one of the mem-

bers of it, then that defendant assumed the responsibility for the acts

and statements of all other members made in furtherance of the con-

spiracy.

24a

the Drug Control Act in a continuing series of such viola-

tions (a) which are undertaken by such person in concert

with five or more other persons with respect to whom

such person occupies a position of organizer, a supervisory

position, or any other position of management, and (b) from

which such person obtains substantial income or resources.

Belmares does not contend the government failed to prove

he obtained substantial income from the operation but does,

however, attack proof of the other statutory elements. First,

he asserts that there is no proof he supervised or acted in

concert with five or more persons engaged in a smuggling

operation. He characterizes himself as no more than an

equal participant in isolated smuggling ventures and sug-

gests that he was convicted solely because he appeared to

be of Mexican descent. This argument is frivolous. No

fewer than seven government witnesses testified that all or

part of thvir involvement in smuggling marijuana was un-

der the direction and supervision of Belmares. These wit-

nesses also testified that others, including his co-defendants,

were working for’him as well. The government clearly

proved that Belmares acted in concert with five or more

persons!* and occupied a position of supervisor, manager,

or organizer with respect to these persons.

Belmares next contends that the government failed to

prove a continuing series of violations of the Drug Control

Act. Count 2 of the indictment charged Belmares with a

“continuing series of violations consisting of the offenses

charged in counts 1, 5, 10, 11, 12, 13, and 16.” The trial

court charged the jury that a conviction on count 2 was de-

14 The requisite five persons need not act in concert at the same

time. United States v, Bolts, 558 F.2d 316, 320-21 (Sth Cir. 1977),

cert, denied, 434 U.S. 930, 98 S.Ct. 417, 54 L.Ed.2d 290 (1978).

25a

pendent on their finding beyond a reasonable doubt that

Belmares committed three or more of the offenses charged

in the above counts. !5

[29] Belmares was convicted on six counts — conspiracy

to import marijuana, a continuing criminal enterprise, and

four substantive importation offenses. He does not challenge

his convictions for two of the substantive offenses (counts

4 and 5). He argues, however, that no evidence supports

his convictions for importation alleged in counts 10 and 13

and that they cannot be used as a basis for a 8 848 convic-

tion. He further asserts that the conspiracy conviction can-

not be used because it is a lesser-included offense to con-

ducting a continuing criminal enterprise. This, his argument

continues, the verdict is reduced to valid convictions on only

two substantive counts and the conviction for a continuing

criminal entrprise must fall. We agree, as we must, that con-

spiracy to import marijuana is a lesser-included offense to

15 We note that few cases have considered the exact meaning of

the term “continuing series of violations.” Those that have done so

require three or more violations, but less clear is what constitutes a

“violation” for purposes of § 848. Appellant Belmares argues that

three convictions are’ required, but some courts have apparently al-

lowed proof of an overt act in violation of the drug laws to suffice,

even though it was not the basis for a separate substantive count.

See United States v, Johnson, supra; United States v. Fry, 413

F.Supp. 1269 (E.D.Mich.1976), aff'd, 559 F.2d 1221 (6th Cir. 1977);

United States v, Bergdoll, 412 F.Supp. 1308 (D.Del.1976); United

States v. Collier, 358 F.Supp. 1351 (E.D.Mich.1973), aff'd, 493 F.2d

327 (6th Cir.), cert. denied, 419 U.S. 831, 95 S.Ct. 56, 42 L.Ed.2d 57

(1974). We need not decide this question, however, because the gov-

ernment has agreed, for purposes of this appeal, that three convictions

are required to support Belmares’ § 848 conviction.

26a

conducting a continuing criminal enterprise. Jeffers v. United

States, supra; United States v. Johnson, supra. We express

no opinion on whether proof of the conspiracy could be

used to support Belmares’ section 848 conviction because

we have held that he was properly convicted on counts 10

and 13. Thus, a continuing series of violations was proved,

and Belmares’ count 2 conviction is affirmed.

[30, 31] We must, however, modify the judgment. Be-

cause conspiracy to import is a lesser-included offense to

conducting a continuing criminal enterprise, it cannot sup-

States, supra; Brown vy, Ohio, 432 U.S. 161, 97 S.Ct. 2221,

53 L.Ed.2d 187 (1977); United States v. Buckley, 586 F.2d

498 (Sth Cir. 1978); United States v. York, 578 F.2d 1036

(Sth Cir. 1978). The proper remedy for convictions on both

greater and lesser offenses is to vacate both the conviction

and the sentence of the lesser-included offense. United

States v. Buckley, supra; United States v. Newman, 468 F.2d

791 (Sth Cir. 1972), cert. denied, 411 U.S. 905, 93 S.Ct.

1527, 36 L.Ed.2d 194 (1973). Therefore, we vacate Belma-

res’ conviction and sentence for conspiracy to import mari-

juana (count 1), but there is nc need to remand for resen-

tencing because it is clear that the conviction for conspiracy

did not lead the trial court to impose a harsher sentence

on the greater offense than he would have in the absence

of the lesser conviction. United States v. Buckley, supra.

16 Appellant Belmares complains that the trial court erred in fail-

ing to instruct the jury that he could not be convicted of both con-

spiracy and conducting a criminal enterprise. The instruction was

requested and was erroneously refused. Belmares apparently did not

object to the court’s failure to instruct the jury as he requested, but

in any event, our disposition of the conviction and sentence makes

consideration of this alleged error unnecessary.

27a

Extraneous-Offense Evidence

Each appellant argues that the trial court erred in allow-

ing an immunized witness, Douglas Spitler, to testify con-

cerning marijuana flights he made during the early months

of 1976. They contend that these trips were flown as

part of a completely separate conspiracy operating in West

Texas and New Mexico and that evidence of these extran-

eous offenses should have been excluded. They point out

that these acts were committed by persons who had not

yet joined Belmares and contend that no evidence con-

nected these acts of importation to any defendant on trial.

Thus, they argue strenuously that each was prejudiced by

admission of evidence of the Spitler trips and further as-

sert that they were prejudiced by the spillover effect of

the massive amounts of evidence introduced in this com-

plex case involving multiple defendants and multiple counts.

The crux of this argument is that the jury was necessarily

confused and was unable to keep separate the evidence ad-

missible against individual defendants. Each appellant con-

cludes that reversible error was committed by the trial

court’s failure to protect them from the spillover effect of

the evidence admissible only against other defendants and

by his failure to grant their repeated motions for severance.

[32-35] We begin our consideration of this point by

recognizing the general rule that persons who are indicted

together should be tried together. United States v. Mor-

row, 537 F.2d 120, 136 (Sth Cir. 1976), cert. denied,

430 U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977).

Appellants were properly joined under Federal Rule of

Criminal Procedure 8(b) because they were “alleged to

have participated in the same act or transaction or in the

same series of acts or transactions constituting an offense

5 .

28a

or offenses.”!7 Therefore, disposition of the various mo-

tions to sever under F.R.Crim.P. 14!8 was within the dis-

cretion of the trial court. We will not reverse the trial

court’s refusal to grant severance unless abuse of discretion

is shown, and appellants have the heavy burden to show

that prejudice resulted from the joint trial. United States

v. Morrow, supra; United States v. Perez, supra. We re-

quire that the prejudice be of the most compelling sort

against which the trial court will be unable to afford pro-

tection. Tillman v. United States, 406 F.2d 930, 935 (Sth

Cir.), vacated on other grounds, 395 U.S. 830, 89 S.Ct.

2143, 23 L.Ed.2d 742 (1969).

It is appellants’ contention that the requisite prejudice

resulted from Spitler’s testimony concerning flights made

for the New Mexico/West Texas conspiracy prior to its

association with the Belmares group. The government

concedes and the evidence shows that prior to May of

1976 two separate and distinct conspiracies, each involv-

ing co-indictees or co-defendants in this case, were import-

ing marijuana into the United States. Belmares, Jones and

Michel were in an ongoing operation with a source of

17 Appellant Belmares contends that there was also a misjoinder

of offenses. This contention is without merit. F.R.Crim.P. 8(b).

18 The rule provides as follows:

If it appears that a defendant or the government is preju-

diced by a joinder of offenses or of defendants in an indict-

ment or information or by such joinder for trial together, the

court may order an election or separate trials of counts,

grant a severance of defendants or provide whatever other relief

justice requires. In ruling on a motion by a defendant for

severance the court may order the attorney for the government -

to deliver to the court for inspection in camera any statements

or confessions made by the defendants which the government

intends to introduce in evidence at the trial.

29a

high-grade marijuana in Oaxaca, Mexico, with its distribu-

tion situs in Dallas. A separate group, headed by Wood

_and McVey, with whom Spitler worked as a pilot, were

importing a lower grade commercial marijuana into West

Texas and New Mexico. A May 1976 attempt by Belma-

res to recruit Spitler for his enterprise failed, but Spitler

did agree to introduce Wood to Belmares. The two men

met in Belmares’ apartment and agreed to join forces for

their mutual benefit.

{[36, 37] This alliance is best viewed as a merger of two

independent smuggling groups with identical illegal purposes.

Each group joined the other and formed an expanded enter-

prise to continue the importation plans of each. Belmares

supplied the contact for high-quality marijuana that Wood

needed; Wood supplied the capital, aircraft and pilot that

Belmares needed. No less than four members of the Wood

group, including co-defendant Malone, stayed with the ex-

panded organization until the ill-fated December 9 trip. Hines

and Henshaw joined after the two groups merged. When one

knowingly joins a conspiracy in progress he is responsible for

acts of the conspiracy occurring before or after his associa-

tion with it. United States v, Dearden, 546 F.2d,622, 625

(Sth Cir.), cert. denied, 434 U.S. 902, 98 S.Ct. 296, 54 L.Ed

2d 188 (1977); United States v. Brasseaux, supra; Nelson vy.

United States, 415 F.2d 483, 486 (Sth Cir. 1969), cert.

denied, 396 U.S. 1060, 90 S.Ct. 751, 24 L.Ed.2d 754 (1970).

It is clear that the Wood group knowingly joined Belmares’

marijuana-importation conspiracy. Therefore, the prior acts

of the Belmares group in furtherance of their importation

scheme were also attributable to Wood and his associates.

It is equally clear that Belmares’ group knowingly joined

Wood’s importation conspiracy and in so doing became re-

sponsible for the Wood group’s prior acts in furtherance

of their importation scheme. The expanded conspiracy shared

30a

a marijuana source in Oaxaca, landing strips in South Texas,

aircraft, pilots, ground crews, and funds. Because two con-

spiracies with an identical illicit purpose merged into one in

order to more effectively achieve success, evidence of prior

acts of each group in furtherance of that purpose was pro-

perly admitted against all members of the two groups.

[38] Moreover, the trial court’s instructions provide the

best safeguard against prejudice resulting from improperly

cumulated evidence. United States v. Morrow, supra, Where,

as here, the government charges several defendants with con-

spiracy and numerous substantive counts, the possibility al-

ways exists that the jury might cumulate the evidence in-

troduced against all to find guilty a defendant whose con-

nection was only marginal. We are convinced, however, that

the instructions given by the trial judge in this case were ade-

quate to minimize the possibility of cumulation of the govern-

ment’s evidence. He charged the jury twice before trial and

again in detail in his final instructions to give “separate and

personal consideration to the case against each individual de-

fendant.” This general admonition was repeated more speci-

fically in the court’s charge regarding responsibility for acts

and statements of co-conspirators. In addition, he gave clear

and thorough instructions concerning the government’s bur-

den of proof and the elements required for a conviction on

each count. Appellants must show more than that they may

have had a better chance at acquittal had they been tried

separately or that more evidence was introduced against cer-

tain of them than others. No abuse of discretion was com-

mitted by the trial court in denying appellants’ motions for

severance. United States v. McLaurin, 557 F.2d 1064 (Sth

Cir. 1977), cert. denied sub nom. Bryant v. United States,

434 U.S. 1020, 98 S.Ct. 743, 54 L.Ed.2d 767 (1978);

United States v. Morrow, supra; United States v. Crockett,

_ 514 F.2d 64 (Sth Cir. 1975); United States v. Perez, supra.

3la

Conclusion

[39, 40] We have carefully examined appellants’ remain-

ing contentions and, finding no reversible error, we reject

them.!? Accordingly,

(1) The conspiracy convictions (count 1) of appellants

Jones, Michel, Henshaw and Hines are AFFIRMED.

(2) The conspiracy conviction (count 1) and sentence of

appellant Belmares is VACATED.

(3) The conviction of appellant Belmares for conducting

a continuing criminal enterprise (count 2) is AFFIRMED.

19 Among the remaining contentions are two about which we will

comment briefly. Jones and Michel call our attention to an earlier

prosecution by the State of Texas for acts what were part of transac-

tions for which they were convicted below. They assert that this

subsequent prosecution by the federal government ‘ollowing the state

prosecution is in violation of the Petite policy of the Justice Depart-

ment. They would have us reverse their federal convictions because

of this violation. We need say only that the Petite policy, an inter-

nal policy of the Justice Department, is not to be enforced against

the government. United States v. Nelligan, 573 F.2d 251, 255 (Sth

Cir. 1978).

Appellant Hines argues that the trial judge abused his discretion in

imposing sentence upon him. He received a sentence of two years

imprisonment with a special parole term of three years following his

conviction on the conspiracy count. Hines claims he was penalized

for electing to go to trial on the charges and complains of the seve-

rity of his sentence when compared to that given co-defendant Lal-

lier, who pleaded guilty and was assessed three years probation in

lieu of imposition of sentence. The trial judge committed no “arbi-

trary or capricious action amounting to a gross abuse of discretion”

in sentencing Hines, and we decline to modify his sentence. F.g.,

United States v. De La Fuente, 550 F.2d 309 (Sth Cir. 1977).

32a

(4) The convictions of appellants Belmares, Jones and

Michel for importation of marijuana (count 10) is AF-

FIRMED.

(S) The conviction of appellants Belmares and Jones for

importation of marijuana (count 13) is AFFIRMED.

33a

APPENDIX B

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

J.S. Court of Appeals

No. 77-5518 ans sae

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LEWIS DAVIS MICHEL, ROBERT JOSEPH

BELMARES, JOHN HANDY JONES, DANIEL

STEWART HENSHAW and TED RAY HINES,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Texas

ON PETITIONS FOR REHEARING

(March 2, 1979)

Before GEWIN, RONEY and GEE, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petitions for rehearing filed

on behalf of appellants Belmares, Henshaw and Michel in

the above entitled and numbered cause be and the same

are hereby DENIED.

ENTERED FOR THE COURT:

/s/ THOMAS GIBBS GEE

United States District Judge

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