Petition — Albernaz v. United States

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FILED

APR-29 1980

In the AEL RODAK, JR., CLERR

Supreme Court of the United-States..

OcroBer TERM, 1980.

No. 29-1709

THOMAS J. ALBERNAZ anp

EDWARD RODRIGUEZ, 3

PETITIONERS,

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit.

ManrtIn G. WEINBERG,

JuprrH H. Mizner,

Oren: & WEINBERG,

10 Post Office Square,

Boston, Massachusetts 02109.

Attorneys for Petitioner Albernaz.

RAYMOND E. LaPorte,

408 Madison Street,

Tampa, Florida 33602.

Attorney for Petitioner Rodriguez.

BATEMAN & SLADE, INC. BOSTON , MASSACHUSETTS

Table of Contents.

Introductory statement

Proceedings below

Jurisdiction

Constitutional provisions and statutes involved

Questions presented

Statement of the case

Reasons why the writ should be granted

I. Analysis of the statutory scheme and its legis-

lative history demonstrates the absence of any

clear Congressional intent to impose double

punishment for a single conspiracy charged in

two counts 1]

II. This Court should grant certiorari to resolve

what is perhaps the last major undecided area

of this Court’s double jeopardy jurisprudence

— the applicability of the Double Jeopardy

Clause to the imposition of legislatively author-

ized multiple punishment in a single criminal

proceeding for violations of separate statutes al-

leged to constitute “the same offense” 19

III. The “Blockburger” test should be rejected

as the sole basis for determining whether two

charged conspiracies are, in fact, “the same of-

oon oOo & W DS

fense” 22

Conclusion 95

Appendix follows page 25

Opinion of United States Court of Appeals for the

Fifth Circuit, November 14, 1978 la

ii TABLE OF CONTENTS.

Letter from Clerk of Court of Appeals to counsel

of record, November 28, 1978 22a

Opinion of United States Court of Appeals for the

Fifth Circuit, February 27, 1980 26a

Order of Mr. Justice Powell extending time for

filing petition for writ of certiorari 56a

Table of Authorities Cited.

CASEs.

American Tobacco Co. v. United States, 328 U.S. 781

(1946) 22n

Bell v. United States, 349 U.S. 81 (1955) 12

Blockburger v. United States, 284 U.S. 299 (1932) 7, 11, 22,

23, 24

Braverman v. United States, 317 U.S. 49 (1942) 15, 21,

22n, 24

Brown v. Ohio, 432 U.S. 161 (1977) 20, 21, 22, 23

Callanan v. United States, 364 U.S. 587 (1961) 15, 16

Iannelli v. United States, 420 U.S. 770 (1975) 15

Ingram v. United States, 360 U.S. 672 (1959), reh.

denied, 361 U.S. 856 (1959) 23

Jeffers v. United States, 432 U.S. 137 (1977) 12, 13n, 21

Ladner v. United States, 358 U.S. 169 (1958) 12

Sanabria v. United States, 437 U.S. 54 (1978) 22n

Simpson v. United States, 435 U.S. 6 (1978) 12, 18, 21

United States v. Adcock, 487 F.2d 637 (6th Cir. 1973) 10, 18

TABLE OF AUTHORITIES CITED. iii

United States v. Bolts, 558 F.2d 316 (5th Cir. 1977),

cert. denied, 434 U.S. 930 (1977), 439 U.S. 898

(1978) 10

United States v. Garner, 574 F.2d 1141 (4th Cir. 1978),

cert. denied, 439 U.S. 936-937 (1978) 10, 18

United States v. Honneus, 508 F.2d 566 (1st Cir. 1974),

cert. denied, 421 U.S. 948 (1975) 10, 17, 18

United States v. Leong, 536 F.2d 993 (2d Cir. 1976),

cert. denied, 429 U.S. 924 (1976) 10

United States v. Mallah, 503 F.2d 971 (2d Cir. 1974),

cert. denied, 420 U.S. 995 (1975) 23

United States v. Marotta, 518 F.2d 681 (9th Cir. 1975) 10,

17, 18

United States v. Palermo, 410 F.2d 468 (7th Cir. 1969) 23

United States v. Papa, 533 F.2d 815 (2d Cir. 1976),

cert. denied, 429 U.S. 961 (1976) 23

United States v. See, 505 F.2d 845 (9th Cir. 1974), cert.

denied, 420 U.S. 992 (1975) 10

United States v. Universal C.I.T. Credit Corp., 344

U.S. 218 (1952) 12

United States v. Young, 502 F.2d 1072 (3d Cir. 1974) 23

Whalen v. United States, No. 78-5471 (April 16, 1980) 3, 11,

12, 18, 19, 21

CONSTITUTIONAL PROVISIONS AND STATUTES.

United States Constitution, Fifth Amendment, Double

Jeopardy Clause 2, 3, 5, 7, 11, 19, 20 et seq.

iv TABLE OF AUTHORITIES CITED.

Comprehensive Drug Abuse Prevention and Control

Act of 1970, 21 U.S.C. §§ 801 et seq. 10, 13, 14, 16

§ 841 5

§ 844 17n

§ 846 2, 3,5, 7, 8, 10, 12 et seq.

§ 848 13n

§ 952 6

§ 960 17n

§ 963 2, 3, 7, 8, 10, 12, 17 et seq.

28 U.S.C. § 1254(1) 4

MISCELLANEOUS.

H.R. No. 91-1444, 1970 U.S. Code, Cong. & Adm.

News 4566 14

In the

Supreme Court of the United States.

OcrTosBER TERM, 1980.

No.

THOMAS J. ALBERNAZ anp

EDWARD RODRIGUEZ,

PETITIONERS,

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit.

Thomas Albernaz and Edward Rodriguez petition for a writ

of certiorari to review the judgments of the United States

Court of Appeals for the Fifth Circuit entered in this case on

November 14, 1978, and February 27, 1980.

Introductory Statement.

This case presents this Court with an opportunity to resolve

a question which has divided the Circuits — whether con-

secutive sentences may be imposed where a single conspiracy

to import and distribute marijuana has been subdivided into a

two-count indictment charging a conspiracy to import in

violation of 21 U.S.C. § 963 and a conspiracy to distribute in

violation of 21 U.S.C. § 846.

Petitioners received consecutive sentences pursuant to their

convictions on a two-count indictment charging them with

conspiracy to import and conspiracy to distribute. Although

finding that, in fact, only a single conspiracy with multiple ob-

jectives existed, the court below affirmed the consecutive

sentences, holding, first, that Congress intended for both

statutes to apply separately and consecutively to such an

agreement (A. 29a), and second, deciding an issue which has

still not been squarely resolved by this Court (A. 44a), that

where Congress intended to permit the imposition of consecu-

tive sentences, sentencing a defendant to cumulative punish-

ment in one proceeding did not violate the Double Jeopardy

Clause of the Fifth Amendment to the United States Constitu-

tion (A. 43a).

Whether an individual is subject to a potential term of in-

carceration of five or ten years for the same offense should not,

as it does currently, depend on the locus of the prosecution.

The conflict between the Circuits as to whether Congress in-

tended to permit the imposition of consecutive sentences is an

issue that affects the fair and equitable administration of

justice throughout the federal system and is one that should be

resolved by this Court.

If this Court determines that Congress did intend to permit

the imposition of consecutive sentences, this case provides the

perfect vehicle for resolution of what is perhaps the last major

unresolved issue related to the scope of the Double Jeopardy

Clause. Whether the scope of the Double Jeopardy Clause is

governed exclusively by legislative intent in cases involving the

imposition of multiple punishment in a single prosecution was

raised, but not decided in this Court’s four opinions in Whalen

v. United States, No. 78-5471 (April 16, 1980). Definitive

guidance from this Court is critical for both courts and legisla-

tures so that the sentencing structures may be responsibly pro-

mulgated by legislatures and properly applied by courts, con-

sonant with the strictures of the Double Jeopardy Clause. Ac-

cordingly, this case presents this Court with an opportunity to

resolve at least one and possibly two heretofore undecided

questions important to the fair and equitable administration of

justice throughout the federal system, and certiorari should be

granted.

Proceedings Below.

Following a jury trial in the United States District Court for

the Southern District of Florida (Atkins, J.), petitioners

Thomas Albernaz and Edward Rodriguez were convicted of

conspiracy to import marijuana (count 1) and conspiracy to

distribute marijuana (count 2) in violation of 21 U.S.C. §§ 846

and 963. Albernaz was sentenced to a 3% year term of im-

prisonment and a special parole term of two years on each

count with the sentences to be served consecutively, for a total

sentence of seven years imprisonment and four years parole.

Rodriguez received consecutive sentences of 4% years con-

finement and a special parole term of two years for a total

sentence of nine years imprisonment and four years parole.

Petitioners appealed from the judgments of the District

Court entered on May 26, 1977. Their convictions were af-

firmed by the United States Court of Appeals for the Fifth Cir-

cuit on November 14, 1978, with the imposition of consecutive

sentences being affirmed on the basis of prior Fifth Circuit

decisions, despite the panel’s conclusion that “[w]Jere we free

to consider that problem anew, we would conclude . . . that

the double jeopardy clause prohibits the punishment of a

single conspiracy by more than one penalty” (A. 17a). The

court’s opinion is reported at 585 F.2d 1234 (5th Cir. 1978),

and is reproduced in the Appendix at la-2la. On November

20, 1978, the court, on its own motion, ordered rehearing en

banc, and in a letter dated November 28, limited en banc con-

sideration to the question of whether, “[i]f the same agree-

ment is charged as a violation of both 21 U.S.C. § 846 and 21

U.S.C. § 963, and the defendants are convicted of both of-

fenses, may separate sentences be imposed for each offense?”

The court also extended the time for filing a petition for panel

rehearing to December 12, 1978, “[i]n order to preserve [peti-

tioners’] right as to other issues in the case” (A. 22a-23a).!

On February 27, 1980, the court, en banc, affirmed peti-

tioners’ convictions. The opinion, not yet reported, is repro-

duced in the Appendix at 26a-55a.

Jurisdiction.

The original judgment of the Court of Appeals was entered

on November 14, 1978, and affirmed, en banc, on February

27, 1980. The time for filing a petition for a writ of certiorari

was enlarged to April 27, 1980, by Mr. Justice Powell (A. 56a).

The jurisdiction of this Court is invoked pursuant to 28 U.S.C.

§ 1254(1).

' A timely petition for rehearing, raising a number of other issues, was filed

and remains outstanding.

Constitutional Provisions and Statutes Involved.

The Fifth Amendment to the United States Constitution

provides, in pertinent part:

[N]or shall any person be subject for the same offence to

be twice put in jeopardy of life or limb. . ..

21 U.S.C. § 841 provides in pertinent part:

Prohibited Acts A — Unlawful acts

(a) Except as authorized by this subchapter, it shall be

unlawful for any person knowingly or intentionally —

(1) to manufacture, distribute, or dispense, or possess

with intent to manufacture, distribute, or dispense, a

controlled substance; or

(2) to create, distribute, or dispense, or possess with

intent to distribute or dispense, a counterfeit substance.

21 U.S.C. § 846 provides:

Attempt and conspiracy

Any person who attempts or conspires to commit any

offense defined in this subchapter is punishable by im-

prisonment or fine or both which may not exceed the

maximum punishment prescribed for the offense, the

commission of which was the object of the attempt or

conspiracy.

21 U.S.C. § 952 provides in pertinent part:

Importation of controlled substances — Controlled

substances in schedules I or II and narcotic drugs in

schedules III, IV, or V; exceptions

(a) It shall be unlawful to import into the customs ter-

ritory of the United States from any place outside thereof

(but within the United States), or to import into the

United States from any place thereof, any controlled sub-

stance in schedule I or II of subchapter I of this chapter,

or any narcotic drug in schedule III, IV, or V of sub-

chapter I of this chapter, except that —

(1) such amounts of crude opium and coca leaves as

the Attorney General finds to be necessary to provide

for medical, scientific, or other legitimate purposes,

and

(2) such amounts of any controlled substance in

schedule I or II or any narcotic drug in schedule III,

IV, or V that the Attorney General finds to be neces-

sary to provide for the medical, scientific, or other

legitimate needs of the United States —

(A) during an emergency in which domestic sup-

plies of such substance or drug are found by the At-

torney General to be inadequate, or

(B) in any case in which the Attorney General

finds that competition among domestic manufactur-

ers of the controlled substance is inadequate and will

not be rendered adequate by the registration of ad-

ditional manufacturers under section 823 of this

title,

may be so imported under such regulations as the At-

torney General may prescribe. No crude opium may be

so imported for the purpose of manufacturing heroin or

smoking opium.

21 U.S.C. § 963 provides:

Attempt and conspiracy

Any person-who attempts or conspires to commit any

offense defined in this subchapter is punishable by im-

prisonment or fine or both which may not exceed the

maximum punishment prescribed for the offense, the

commission of which was the object of the attempt or

conspiracy.

Questions Presented.

I. Whether Congress intended to permit the imposition of

consecutive sentences where a single conspiracy with the dual

objectives of importing and distributing marijuana has been

subdivided into a two-court indictment charging a conspiracy

to import marijuana in violation of 21 U.S.C. § 963 in count 1

and a conspiracy to distribute marijuana in violation of 21

U.S.C. § 846 in count 2?

II. Whether the Double Jeopardy Clause precludes the im-

position of cumulative punishment upon conviction for a

single conspiracy charged as two separate statutory violations

in a single criminal proceeding even if Congress intended that

multiple penalties be imposed?

III. Whether the “Blockburger” test should be rejected as

the means for determining whether two or more alleged con-

spiracies in fact constitute “the same offense” for purposes of

the Double Jeopardy Clause, and a broader test, encompass-

ing scrutiny of the terms of the charging indictment and the

facts alleged, must be employed?

Statement of the Case.

On December 26, 1976, petitioner Albernaz and DEA agent

Theodore Weed, posing as a man with a boat and access to

other boats, began negotiations for Weed to offload 15,000-

20,000 pounds of marijuana from a freighter at sea and bring

it back into a port. Over the course of the next month, Weed

was introduced to Rodriguez and other individuals purpor-

tedly acting with petitioners. There were a number of

meetings between Weed, Albernaz, Rodriguez and others

with a number of plans and changes of plans as to the amount

’ of marijuana involved, the boat to be used, and the selection of

an offload site.

On January 27, 1977, a vessel crewed by DEA agents,

Customs Agents, and DEA civilian employees left West Palm

Beach to meet the freighter 200-225 miles east of the United

States. They were to offload 1,100 bales of marijuana weigh-

ing approximately fifty pounds each. Two days later petition-

ers and another individual chartered a plane to assist in the

rendezvous, which was not completed due to darkness. The

following day the rendezvous was made, the offloading began,

the Coast Guard was called, the cargo was seized and thirteen

men on board the freighter were arrested.* Petitioners and

two others were arrested in Miami that night.

A two-count indictment charging eighteen individuals, in-

cluding petitioners, with conspiracy to import marijuana in

violation of 21 U.S.C. § 963 (count 1) and conspiracy to

distribute marijuana in violation of 21 U.S.C. § 846 (count 2)

was returned in the Southern District Court of Florida. But

for the reference to importation in count 1 and distribution in

count 2, and the citation to different subsections of Title 21 of

* The thirteen members of the crew were charged as co-conspirators. They

were tried separately.

a _

the United States Code, the two counts were identical; each

charged, in precisely the same language, the same eighteen

persons with a conspiracy extending from mid-December,

1976, to February 1, 1977, at Fort Lauderdale, Florida, and

other places, involving thirty tons of marijuana and containing

the exact same overt acts — a series of meetings and inspection

of offload sites.

Albernaz, Rodriguez and two others were tried jointly and

convicted on both counts. All but one received consecutive

sentences. On appeal, the court affirmed petitioners’ two con-

victions. Although determining that there had been only one

conspiracy and stating that, if free to do so, it would not af-

firm the imposition of consecutive sentences, the panel felt

constrained to uphold the sentences under prior case law of the

Circuit.

On rehearing, en banc, limited to the question of the pro-

priety of the imposition of consecutive sentences where one

agreement was charged as violative of two separate statutory

provisions, the court affirmed the sentences, finding a single

agreement, but holding that the only relevant question was

whether Congress intended to permit the imposition of consec-

utive sentences, and answering that question in the affir-

mative. According to the court below, this Court “has recog-

nized that the Double Jeopardy Clause imposes no limits on

Congress’s power to define the allowable unit of prosecution

and punishment, at least so long as all charges are brought in a

single proceeding” (A. 48a).

Reasons Why the Writ Should be Granted.

Whether consecutive sentences can be imposed when a

single conspiracy with the multiple objectives of importation

and distribution of a controlled substance is subdivided into a

two-count indictment, with one count charging a violation of

21 U.S.C. § 963 and the second count charging a violation of

21 U.S.C. § 846, is a question that has divided the Courts of

Appeals. Compare the decision below, United States v.

Marotta, 518 F.2d 681 (9th Cir. 1975), and United States v.

Garner, 574 F.2d 1141 (4th Cir. 1978), cert. denied, 439 U.S.

936-937 (1978), with United States v. Adcock, 487 F.2d 637

(6th Cir. 1973), and United States v. Honneus, 508 F.2d 566

(1st Cir. 1974), cert. denied, 421 U.S. 948 (1975). Thus, at

the current time, whether an individual will be subjected to a

potential maximum period of five o1 ten years incarceration

for the same conduct depends on the locus of the prosecution

and whether the prosecutor has chosen to allege a single con-

spiracy with multiple objectives in one count or to divide that

single conspiracy into two counts. Compare the case below

with United States v. Bolts, 558 F.2d 316 (5th Cir. 1977), cert.

denied, 434 U.S. 930 (1977), 439 U.S. 898 (1978); United

States v. See, 505 F.2d 845 (9th Cir. 1974), cert. denied, 420

U.S. 992 (1975); United States v. Leong, 536 F.2d 993 (2d Cir.

1976), cert. denied, 429 U.S. 924 (1976). The number of pros-

ecutions brought nationwide under 21 U.S.C. §§ 801 et seq. is

substantial and resolution of the question by this Court is

necessary to assure the uniform, consistent and even-handed

administration of justice throughout the country.

The decision below raises a number of related, unresolved

questions ripe for determination by this Court. First, did

Congress intend for 21 U.S.C. §§ 846 and 963 to apply

separately and consecutively to a single agreement to import

and distribute a controlled substance charged as two offenses,

or, as the dissent below stated, is the existence of two separate

conspiracy provisions simply a result of the vagaries of the

legislative process which divided consideration of the legisla-

tion proposed to the Congress by the President between two

separate Congressional subcommittees? (See A. 50a.) This

question has divided the Circuits.

Second, if this Court finds that Congress did intend to im-

pose multiple punishment, does the Double Jeopardy Clause

of the Fifth Amendment to the United States Constitution pro-

scribe the imposition of consecutive sentences imposed in a

single prosecution if the two separately charged orfenses are in

fact “the same”? The scope of the protection against multiple

punishments imposed at a single proceeding afforded by the

Double Jeopardy Clause is a question discussed and left

unresolved in the four opinions of this Court in Whalen v.

United States, No. 78-5471 (April 16, 1980), as this Court

found that Congress had not authorized the imposition of con-

secutive sentences in the case before it and, therefore, found it

unnecessary to reach the constitutional question. It is, as Mr.

Justice Blackmun noted, a question which has generated much

confusion among the courts and one which is undeniably in

need of clarification. Thus, if this Court determines that Con-

gress did intend to permit consecutive sentences under the cir-

cumstances presented by the case at bar, this case provides the

perfect vehicle for resolving the issue left open in Whalen and

providing both the courts and legislatures with much-needed

guidance as to the scope of the Double Jeopardy Clause.

Third, if the Double Jeopardy Clause provides substantive

protection independent of Congressional intent, is the so-

called “Blockburger” test the only appropriate method of

determining whether two alleged conspiracies are “the same” ?

I. ANALYSIS OF THE STATUTORY SCHEME AND ITS LEGISLATIVE

History DEMONSTRATES THE ABSENCE OF ANY CLEAR CON-

GRESSIONAL INTENT TO IMPOSE DOUBLE PUNISHMENT FOR A

SINGLE CoNsPIRACY CHARGED IN Two Counts.

To find Congressional intent to authorize double punish-

ment for a single conspiracy charged as violative of two |

separate statutory provisions, this Court must find a clear,

unambiguous expression of Congressional purpose; an in-

definite intent will not suffice, for in determining whether

pyramided penalties were intended, the Court must apply the

“established rule of construction that ‘ambiguity concerning

the ambit of criminal statutes should be resolved in favor of

lenity.’” Simpson v. United States, 435 U.S. 6, 14 (1978). See

also Ladner v. United States, 358 U.S. 169, 177-178 (1958);

United States v. Universal C.I.T. Credit Corp., 344 U.S. 218,

221-222 (1952); Whalen v. United States, No. 78-5471 (April

16, 1980), slip opinion, pp. 10-11 n.10. Indeed, this Court

“has steadfastly insisted that ‘doubt will be resolved against

turning a single traixsaction into multiple offenses.’” Simp-

son, supra, 435 U.S. at id. As this Court emphasized in Bell v.

U ted States, 349 U.S. 81, 83 (1955), in reversing a double

punishment under the Mann Act:

It may fairly be said to be a presupposition of our law to

resolve doubts in the enforcement of a penal code against

the imposition of a harsher punishment.

Petitioner submits that, contrary to the decision below, any

intent of Congress to authorize the imposition of multiple

sentences on an individual convicted of a single conspiracy

with a dual objective, charged under both 21 U.S.C. § 846 and

21 U.S.C. § 963, is far from unambiguous. Surely, the mere

fact that the two statutory provisions exist is not, alone, suffi-

cient to find a clear affirmation of an intent to impose multiple

punishments where one transaction violates both provisions.

See, e.g., Simpson v. United States, supra; Jeffers v. United

States, 432 U.S. 137 (1977).

The court below found specific legislative intent to impose

consecutive sentences on a concededly sparse legislative

history. Stating that this was “carefully drafted legislation”

evidencing “a great deal of coordination between the two

committees” (A. 30a), it found the existence of parallel penalty

structures significant because the penalties were different from

those initially proposed by the President. Finally, it found the

passage of an amendment providing that the two conspiracy

provisions would take effect at the same time “indicative of

the nonaccidental nature of the two specific conspiracy provi-

sions” (A. 39a).°

Petitioner submits that a finding that the two conspiracy

provisions were “nonaccidental” does not lead to the conclu-

sion that the intent was to authorize consecutive sentences for

a single conspiracy with multiple objectives charged as

violating both provisions. Rather, the “legislative history”

simply demonstrates a Congressional intent to punish all con-

spiracies, whether domestic or international in scope.

The two provisions are part of the Comprehensive Drug

Abuse Prevention and Control Act of 1970 (in relevant part 21

U.S.C. §§ 801 et seq., hereafter “the Act”), a comprehensive

set of provisions designed to deal with all aspects of the prob-

lems of drug abuse prevention and control. The Act sets up a

dual structure with separate subchapters addressed to the

regulation of domestic use/misuse of drugs designated as con-

trolled dangerous substances (subchapter I), and the regula-

tion of importation and exportation of such substances (sub-

chapter II). As explained in the House Report accompanying

passage of the Act, the division in the statutory scheme be-

tween domestic offenses, on the one hand, and importation

?The court also relied on a Congressional intent severely to punish those

engaged in drug dealing. However, that alone cannot justify a finding of in-

tent to impose multiple punishment for a single conspiracy. See, e.g., Jeffers

v. United States, 432 U.S. 137 (1977), where, although the same intent to im-

pose severe punishment resulted in the enactment of 21 U.S.C. § 848, this

Court held that Congress did not intend to allow cumulative punishment for

violations of 21 U.S.C. §§ 846 and 848.

and exportation, on the other, was a byproduct of the in-

tricacies of committee jurisdiction in the House of Represen-

tatives when the proposed legislation was originally submitted

to Congress by the President. H.R. No. 91-1444, 1970 U.S.

Code, Cong. & Adm. News, pp. 4566-4657. Since, as pro-

posed by the President, the legislation was to repeal certain tax

and other laws which, up until that time, had been used to

control narcotic drugs, the legislation was first referred to the

House Committee on Ways and Means.‘ That Committee,

however, “decided to consider only the provisions relating to

imports and exports of narcotic drugs” (id. at 4567) and

transferred the remaining provisions — relating to domestic

regulation and control — to the Interstate and Foreign Com-

merce Committee (id.). When the legislation was reported

from those committees to the floor of the House of Representa-

tives, the division between domestic provisions and import-

export provisions was maintained in order “to preserve the ju-

risdiction of the Ways and Means Committee over future

amendments to its legislation relating to imports and exports of

drugs covered by the bill” (id. at 4568). It was in that dual

form that the bill was enacted. In light of this history, it is evi-

dent that the division of the Act into a dual structure was the

result of a Congressional concern with committee jurisdiction

— and not the result of some other clear Congressional intent.

Nor is there any affirmative indication in the legislative

history that by including a conspiracy provision in each sub-

chapter Congress clearly intended to authorize double punish-

ment for one drug conspiracy. H.R. No. 91-1444 contains no

*Since the President’s proposed legislation also dealt with drugs regulated

under the Federal Food Drug and Cosmetic Act, the legislation was divided

into two bills — generally “identical, except with respect to the drugs

covered by these provisions” (id. at 4567) — with Ways and Means consider-

ing the bill covering narcotic drugs and marijuana and the Interstate and

Foreign Commerce Committee considering the bill covering other drugs.

reference to the conspiracy provisions at all, other than to

state, as part of its section-by-section analysis, that they exist.

The Congressional debates are similarly devoid of any indica-

tion that Congress even considered the possibility of multiple

punishment for a singie conspiracy with objectives on both

sides of the subchapter divisions, remaining absolutely silent as

to the intent behind the enactment of two conspiracy provi-

sions.

In light of this Congressional silence — and given the

statutory division between what are essentially internal,

domestic offenses and offenses involving a combination of

foreign and domestic components — petitioners submit that

the inclusion of a conspiracy section in each subchapter cannot

be read to reflect anything more than a Congressional intent to

ensure that drug conspirators, whether involved in domestic or

international traffic, would be punished — an intent to ensure

that no drug conspirator would slip through the net because of

the divided structure of the statutory scheme.

The purpose behind the criminalization of conspiracy is, as

this Court has stated, based on the fact that “ ‘collective

criminal agreement — partnership in crime — presents a

greater potential threat to the public than individual delicts.

. .. [T]he danger which a conspiracy generates is not con-

fined to the substantive offense which is the immediate aim of

the enterprise.’” Jannelli v. United States, 420 U.S. 770, 778

(1975), quoting Callanan v. United States, 364 U.S. 587,

593-594 (1961). Thus, it is the agreement that constitutes the

offense and its criminal nature is neither enhanced nor les-

sened by the number of objects encompassed within its con-

templated scope. See, e.g., Braverman v. United States, 317

U.S. 49, 53 (1942):

Whether the object of a single agreement is to commit

one or many crimes, it is in either case that agreement

which constitutes the conspiracy which the statute pun-

ishes. The one agreement cannot be taken to be several

agreements and hence several conspiracies because it en-

visages the violation of several statutes rather than one.

Since it is the agreement and not its objects that Congress in-

tended to punish by enacting the conspiracy provisions of the

Act,5 the existence of two separate provisions can be attributed

to a Congressional intent to punish all separate agreements,

and not to impose multiple punishment for a single agreement

to commit more than one substantive offense, for as “predomi-

nately a lawyer:’ body” (Callanan v. United States, 364 U.S.

at 594) Congress must be presumed to know that a single con-

spiracy with multiple objectives remains a single conspiracy.

This is not a case in which an individual has agreed to im-

port marijuana with one group and made a separate agree-

ment to distribute marijuana with another group. Nor is it a

case in which an individual has agreed to import marijuana

and, later, entered into a second, separate, agreement to

distribute. In these hypothetical instances, there are two

separate agreements for which an individual could receive

consecutive sentences. Here, however, the court below ex-

plicitly found a single agreement with multiple objectives — a

single agreement that affords a single basis for conspiratorial

liability and, petitioners submit, permits imposition of but a

single punishment.

There is, then, absolutely no evidence, either in the stat-

utory scheme itself or in its legislative history — apart from the

mere fact that the two provisions exist — which can support a

5 Thus, the fact that Congress intended to authorize cumulative punish-

ment for the substantive offenses forming the objects of a conspiracy is irrele-

vant to a determination whether cumulative punishment for a single agree-

ment with multiple objectives was intended.

Mae LL ee

finding or even an inference of a clear Congressional intent to

inflict double punishment for a single conspiracy with a dual

objective which straddles the artificially created subchapter

lines. The offense which is penalized by both 21 U.S.C. § 846

and 21 U.S.C. § 963 is the making of an unlawful agreement

to commit a narcotics violation and not the statutorily de-

scribed object of that agreement.

That the Congressional intent is at best unclear is strikingly

illustrated by the fact that two different United States Courts

of Appeals have come to exactly’ opposite conclusions about

what Congress intended. One Circuit — the First — con-

cluded that Congress did not mean, by its enactment of both

§§ 846 and 963, to authorize the imposition of multiple

punishments for one conspiracy. United States v. Honneus,

508 F.2d 566, 569 (Ist Cir. 1974). Another Circuit — the

Ninth — found that Congress did intend to permit double

punishment where both of these provisions were violated.

United States v. Marotta, 518 F.2d 681, 685 (9th Cir. 1975).°

® The ambiguity as to Congressional intent is further illustrated by the con-

fusion in the Marotta court’s analysis. According to that court’s deter-

mination of Congressional intent, “Congress has in effect determined that a

conspiracy to import drugs with intent to distribute is twice as serious as a

conspiracy to import for personal use or a conspiracy to possess with intent to

distribute.” 518 F.2d at 685. In making this assertion, the Marotta court

was apparently under the mistaken impression that a “conspiracy to import

for personal use,” like a “conspiracy to possess with intent to distribute,”

would violate only one of the two conspiracy provisions. But what the

Marotta court apparently failed to notice is that, while a “conspiracy to

possess with intent to distribute” would, indeed, violate only § 846 (because

only one substantive offense — that of possession with intent to distribute in

violation of § 844 — would be implicated), a “conspiracy to import for per-

sonal use” would violate both § 846 and § 963 (because not one, but two

substantive offenses would be implicated: importation in violation of § 960,

and “personal use,” which is the equivalent of simple possession, in violation

of § 844). Therefore, under the Marotta court's view of the statutory

scheme, a “conspiracy to import for personal use” could, just like a “con-

spiracy to import with intent to distribute,” result in the imposition of double

Plainly, had Congress expressed its intent in the clear, unam-

biguous way which is required before multiple criminal

sanctions may be imposed, such sharp disagreement as to Con-

gressional intent could not arise. The existence of ambiguity

mandates that the still-vital policy of lenity (see Simpson,

supra; Whalen, supra) which militates against double punish-

ment, must come into play. Simply stated, given the absence

of an explicit indication by Congress, this court cannot assume

an intent to impose multiple punishments. Thus in light of the

stark silence in the legislative record, Congressional intent

must, at best, be found ambiguous, and, under the rule of

lenity, multiple penalties for a single conspiracy charged

under both 21 U.S.C. § 846 and 21 U.S.C. § 963 must be pro-

scribed as a matter of statutory construction.

Since this is an issue that has divided the Circuits — com-

pare the decision below, United States v. Marotta, supra, and

United States v. Garner, supra, with United States v. Hon-

neus, supra, and United States v. Adcock, supra — and one

which, in light of the numerous prosecutions brought under

these statutes, has farreaching import for the equitable ad-

ministration of justice throughout the federal system, this

Court should grant certiorari and provide the courts with a

definitive answer.

punishment — despite the court’s belief that Congress had determined that

“conspiracy to import for personal use” was less serious than “conspiracy to

import with intent to distribute.”

II. THis Court SHOULD GRANT CERTIORARI TO RESOLVE WHAT

is PERHAPS THE Last Major UNDECIDED AREA OF THIS CourRT’Ss

DovuBLe JEOPARDY JURISPRUDENCE — THE APPLICABILITY OF

THE DouBLE JEOPARDY CLAUSE TO THE IMPOSITION OF LEGIS-

LATIVELY AUTHORIZED MULTIPLE PUNISHMENT IN A SINGLE

CRIMINAL PROCEEDING FOR VIOLATIONS OF SEPARATE STATUTES

ALLEGED TO CONSTITUTE “THE SAME OFFENSE.”

As stated in the opinion below, whether the scope of the

Double Jeopardy Clause is exclusively controlled by legislative

intent in cases challenging the imposition of multiple

punishments at a single criminal proceeding is an issue which

this Court has not yet squarely confronted (A. 44a). ‘his

Court’s recent decision in Whalen v. United States, supra,

noted the unsettled nature of this issue and the need for clari-

fication but left it unresolved, further increasing the need for a

definitive ruling by this Court to provide guidance to both the

courts and legislatures in what is perhaps the last major unde-

cided area of double jeopardy jurisprudence.

In Whalen, this Court determined that consecutive

sentences could not be imposed on an individual convicted

under the District of Columbia Code of the separate statutory

offenses of rape and killing the same victim in the perpetration

of the rape. The holding was based on a construction of the

relevant statutory provisions, with this Court finding that

Congress had not authorized cumulative punishment. In ac-

cordance with the policy of avoiding constitutional rulings

where a statutory ruling will suffice, this Court did not reach

the issue whether the Double Jeopardy Clause would bar the

imposition of consecutive sentences if Congress intended to

permit their imposition for the violation of separate statutes by

one criminal offense.

The Court’s four opinions raise, in dicta, but do not decide,

the issue which (if the consecutive sentences imposed here are

found to be legislatively authorized, but see section I, supra) -

this case squarely presents. The majority left open the ques-

tion whether the scope of the Double Jeopardy Clause’s pro-

hibition on multiple punishment for the same offense is

governed exclusively by legislative intent, stating that “the

Double Jeopardy Clause at the very least precludes federal

courts from imposing consecutive sentences unless authorized

by Congress to do so” (slip opinion, p.4) (emphasis added),

thereby suggesting that further protection may be afforded.

See also Brown v. Ohio, 432 U.S. 161 (1977). The concurring

and dissenting opinions, noting the confusion among the

courts that the Court’s jurisprudence in this area has

engendered, suggested that, at least insofar as multiple

punishments imposed in a single proceeding are concerned,

legislative intent is controlling (see, e.g., concurring opinion of

Mr. Justice White; concurring opinion of Mr. Justice

Blackmun, at pp. 2-3; and dissenting opinion of Mr. Justice

Rehnquist, joined by the Chief Justice, at p. 7).

Because of the importance of this issue to the administration

of justice throughout the federal system, both the courts and

the legislatures are in need of definitive guidance from this

Court as to the role of the Double Jeopardy Clause in the

multiple punishment area and the parameters of its intersec-

tion with the legislature’s authority to define offenses and

prescribe punishment. The courts must be told what, if any,

limitations the Double Jeopardy Clause places on the imposi-

tion of consecutive sentences in a single criminal proceeding

where it is contended that different statutory violations con-

stitute “the same offense.” Legislatures must be provided

guidance so that they may act responsibly in promulgating

new statutes and reviewing extant legislation.

If one of the primary purposes of the Double Jeopardy

Clause is to protect against multiple punishments for the same

offense (see, e.g., Brown v. Ohio, 432 U.S. 161, 165 (1977)),

petitioners submit that effectuation of that protection requires

that, if necessary, the courts independently assess statutes

claimed to penalize “the same offense” regardless of legislative

intent. As suggested by this Court in Simpson v. United

States, 435 U.S. 6 (1978), and Jeffers v. United States, 432

U.S. 137 (1977), a two-stage inquiry is necessary. First, Con-

gressional intent must be examined, and, if no intent to impose

cumulative punishment for statutes challenged as penalizing

“the same offense” is found, no further inquiry is necessary,

for the multiple punishment is not legislatively authorized,

and “the Double Jeopardy Clause at the very least precludes

federal courts from imposing consecutive sentences unless

authorized by Congress to do so.” Whalen v. United States,

supra, slip opinion, p. 4 (emphasis added). However, if an in-

tent to impose cumulative punishment is found, the Court

must take the second step and analyze the statutory provisions

to determine whether they, in fact, penalize “the same of-

fense.” Anything less would leave the scope of the Double

Jeopardy Clause totally dependent on legislative and pros-

ecutorial whim and render it a nullity in protecting against

multiple punishment for the same offense.

In Braverman v. United States, 317 U.S. 49 (1942), this

Court held that a single conspiracy alleged to violate seven

statutes constituted a single offense and could not be sub-

divided into seven separate offenses so as to permit the imposi-

tion of pyramided penalties. Although the Double Jeopardy

Clause was not specifically mentioned in the opinion, peti-

tioners submit that its ban on multiple punishment for the

same offense provided the underlying basis for this Court’s

decision and mandates a similar decision here. That the “con-

spiracies” in Braverman were all charged under one con-

spiracy statute, while the “conspiracies” in this case were

charged under two conspiracy provisions, is a distinction

without a constitutionally significant difference. As Brown v.

Ohio, supra, makes clear, for purposes of considering whether

multiple punishment is barred by the Double Jeopardy

Clause, the issue is the nature of the offense charged and not

whether more than one statutory provision can be applied.’

Accordingly, petitioners submit that if the question of legis-

lative intent is resolved adversely to them, this case presents

the perfect vehicle for resolving the critical question whether

the Double Jeopardy Clause affords any protection against

legislative intent to pyramid penalties for “the same offense,”

and that certiorari should be granted so that this Court can fill

a major gap in its double jeopardy jurisprudence.

III. THe “BLocxspurcer” Test SHOULD BE REJECTED AS THE

SoLeE BAsIs FOR DETERMINING WHETHER Two CHARGED Con-

SPIRACIES ARE, IN FACT, “THE SAME OFFENSE.”

How the courts are to determine whether two alleged statu-

tory violations constitute “the same offense” also merits the at-

tention of this Court. Petitioners submit that the commonly

used “Blockburger” test — a test which focuses on the statu-

tory elements of the offense charged and provides that the test

for determining whether there are two offenses or only one “is

whether each provision requires proof of a fact which the other

does not” (Blockburger v. United States, 284 U.S. 299, 304

(1932)) — is inappropriate as the sole benchmark for deter-

mining whether two or more alleged conspiracies are in fact

“the same offense” for purposes of the Double Jeopardy

Clause. As this Court has noted, it is not the exclusive method

of delineating the scope of the protections of the Double Jeop-

7 American Tobacco Co. v. United States, 328 U.S. 781 (1946), is thus in-

apposite, since, contrary to the situation presented in Braverman and the

situation presented here, it involved two separate and distinct conspiracies.

See Sanabria v. United States, 437 U.S. 54, 74 n.33 (1978).

ardy Clause. See Brown v. Ohio, supra, 432 U.S. at 166-167

n.6 (noting that in certain circumstances the Blockburger test

is not the sole touchstone for analyzing a double jeopardy

claim).

Indeed, in analyzing double jeopardy claims in conspiracy

cases, a number of courts have recognized that because the

nature of a conspiracy is such that it can be alleged in many

different forms, standards other than a stringent Blockburger

“same evidence” test must be applied. Accordingly, these

courts have looked at the facts of the case to determine if, as a

factual matter, there were two crimes committed or only one.

See, e.g., United States v. Mallah, 503 F.2d 971 (2d Cir. 1974),

cert. denied, 420 U.S. 995 (1975); United States v. Papa, 533

F.2d 815, 820 (2d Cir. 1976), cert. denied, 429 U.S. 961

(1976); United States v. Young, 503 F.2d 1072, 1075 (3d Cir.

1974); United States v. Palermo, 410 F.2d 468 (7th Cir. 1969).

Such scrutiny is demanded by the nature of the crime of

conspiracy. A necessary element of the offense is the intent

necessary to commit the offense or offenses constituting the ob-

ject(s) of the conspiracy. See, e.g., Ingram v. United States,

360 U.S. 672 (1959), reh. denied, 361 U.S. 856 (1959). Thus,

examining a single conspiracy with multiple objectives charged

as separate conspiracies, will, under the Blockburger test,

almost inevitably result in a finding of separate offenses,

because the intent necessary for each objective of the con-

spiracy will differ. However, the offense of conspiracy lies in

the agreement and not its objects, and the agreement may be

single despite a plethora of objectives. Accordingly, Block-

burger is a totally inadequate basis for determining whether a

number of separately charged conspiracies, divided by the ob-

ject offenses, are in fact a single conspiracy with multiple ob-

jectives. Indeed, this Court has recognized the difficulty of

applying the Blockburger test to a conspiracy situation, stating

in Braverman v. United States, supra, 317 U.S. at p.54:

Since the single continuing agreement, which is the con-

spiracy here, thus embraces its criminal objects, it differs

from successive acts which violate a single penal statute

and from a single act which violates two statutes. See

Blockburger v. United States, 284 U.S. 299, 301-304. ...

Given these differences, this Court should now recognize

the inadequacies of the Blockburger test in the context of con-

spiracies, and in situations where multiple conspiracies are

alleged, should require that the court examine the terms of the

charging indictment and the facts alleged and make an in-

dependent assessment as to whether, in fact, more than one

conspiracy exists.

Such an examination here demonstrates that in the case at

bar only one conspiracy — and, therefore, one offense — ex-

isted, rendering the imposition of consecutive sentences im-

proper.

Conclusion.

For the aforementioned reasons, this petition for a writ of

certiorari should be granted.

Respectfully submitted,

MARTIN G. WEINBERG,

JUDITH H. MIZNER,

OTERI & WEINBERG,

10 Post Office Square,

Boston, Massachusetts 02109.

Attorneys for Petitioner Albernaz.

RAYMOND E. LaPORTE,

408 Madison Street,

Tampa, Florida 33602.

Attorney for Petitioner Rodriguez.

UNITED STATES v. RODRIGUEZ

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

Edward RODRIGUEZ, a/k/a Rick,

Thomas J. Albernaz, Peter Smigow-

ski, and William John Martins, De-

fendants-Appellants.

No. 77-5339.

United States Court of Appeals,

Fifth Circuit.

Nov. 14, 1978.

Defendants were convicted in the

United States District Court for the

Southern District of Florida, C. Clyde.

Atkins, Chief Judge, of conspiracy to im-

port marijuana and conspiracy to distrib-

ute marijuana, and they appealed. The

Court of Appeals, Alvin B. Rubin, Circuit

Judge, held that: (1) there was suffi-

cient evidentiary basis for jury to con-

clude, beyond reasonable doubt, that de-

fendants were predisposed to import

marijuana and were not entrapped into

doing so; (2) confession made after be-

ing counseled by friend was admissible;

(3) reasonable doubt charge did not re-

quire reversal; (4) prosecutor’s com-

ments that he thought evidence against

defendants was overwhelming and that

he thought jury could reach only conclu-

sion of guilt did not have prejudicial im-

pact; (5) evidence was sufficient to

prove conspiracy to distribute; (6) evi-

dence was not sufficient to sustain dis-

tribution conviction of defendants who

were peripheral participants in importa-

tion scheme and who would not have

control over marijuana once it was with-

in United States and (7) separate convic-

tions of conspiracy to import and con-

spiracy to distribute would be affirmed

853

notwithstanding contention that there

was a single illegal agreement.

Affirmed in part, reversed in part

and remanded. ,

1. Criminal Law #569

Drugs and Narcotics @124

There was sufficient evidentiary ba-

sis for jury in drug prosecution to con-

clude, beyond reasonable doubt, that de-

fendants were predisposed to import

marijuana into the United States and

were not entrapped into doing so nor

enmeshed in crime by federal agents.

Comprehensive Drug Abuse Prevention

and Control Act of 1970, §§ 401, 406,

1002, 1013, 21 U.S.C.A. §§ 841, 846, 952,

953. '

: 2.- Criminal Law @=569

Government has ultimate burden of

proving beyond reasonable doubt that

predisposition and not inducement was

cause of crime.

3. Criminal Law @=822(8)

Even though trial court did not spe-

cifically describe allocation of proof

when it discussed entrapment, where tri-

al court properly indicated that reasona-

ble doubt as to inducement required ac-

quittal on drug charges, jury was in-

structed that general burden of proof

beyond reasonable doubt was on Govern-

ment and it was evident from charge as

whole that such allocation governed en-

trapment defense, charge was not inade-

quate.

4. Criminal Law @1172.2

When viewed contextually, charge

that reasonable doubt means doubt that

is based on reason and common sense

and that such doubt must be substantial

rather than speculative did not consti-

tute reversible error even though it

would have been better for charge to

have been given in other terms.

5. Criminal Law @=822(16)

In reviewing reasonable doubt

charges, court looks to whole instruction

rather than isolate any particular sen-

tence.

6. Arrest @=63.4(6)

Where government agents, at time

of defendant’s arrest, had no knowledge

that he was connected with drug conspir-

acy although they had seen his name on

passenger manifest of chartered aircraft

used in conspiracy and were aware that

he was in room with conspirator on

night of arrest, agents did not have

probable cause to arrest defendant.

7. Criminal Law #=519(8)

Even though government agents

had no probable cause to arrest defend-

ant, where defendant after his arrest

was advised of his constitutional rights,

obtained meaningful counsel from friend

who was law enforcement officer and

who advised him to cooperate with

government agents and made confession

after being so counseled, confession was

not fruit of illegal arrest and was admis-

sible.

8. Infants 69

Trial court’s failure to state explicit-

ly that defendant would not benefit

from sentencing under Youth Correc-

tions Act did not constitute error where

record established that court fully con-

sidered whether defendant would benefit

from sentencing under Act. 18 U.S.C.A.

§ 5005 et seq.

9. Criminal Law @719(3)

It is improper for counsel to express

his personal opinion or to state facts of

his own knowledge not in evidence and

not part of evidence to be presented.

ABA Code of Professional Responsibility,

DR7-—106(c)(1, 3, 4, 7).

UNITED STATES v. RODRIGUEZ

10. Criminal Law @719(1), 720(5)

Prosecutor has duty to be scrupulous

in his argument and avoid all efforts to

obtain a conviction by going beyond evi-

dence before jury or by putting sanction

of his office behind testimony of wit-

nesses. ABA Code of Professional Re-

sponsibility, DR7—106(c\1, 3, 4, 7).

11. Criminal Law @719(3)

Prosecutor’s expression of personal

belief may be tolerated if it is based

solely on evidence introduced and jury is

not led to believe that other evidence,

unavailable to them, justified the belief.

12. Criminal Law @=720'

Prosecutor may state, “J believe

that the evidence has shown defendant's

guilt” but not “I believe that defendant

is guilty.” a

13. Criminal Law @730(7)

Court’s jury instruction may be con-

sidered as a factor in assessing degree of

prejudice arising from prosecutor’s giv-

ing of personal opinion.

14. Criminal Law @719(3)

In assessing prejudicial impact of

prosecutor’s comments expressing his

opinion, court will consider strength of

evidence against each defendant who

might have been prejudiced.

15. Criminal Law @=719(3)

Prosecutor’s statement that he

thought the evidence was overwhelming

and that he thought jury could reach

only conclusion of guilt and that defend-

ant confessed because he was guilty of

serious crime and was not a hardened

criminal did not prejudice defendant

with respect to charge of conspiracy to

import marijuana where evidence

against defendant who confessed was

overwhelming, prosecutor’s expressions

of persona! belief referred to evidence or

conclusions drawn from it and prosecu-

UNITED STATES v. RODRIGUEZ

tor’s conjecture was at least partially fa-

vorable in that it cast defendant as re-

morseful ‘and not hardened criminal.

Comprehensive Drug Abuse Prevention

and Control Act of 1970, §§ 1002, 1013,

21 U.S.C.A. §§ 952, 963.

16. Criminal Law @ 1171.3

Prosecutor’s remarks that he

thought evidence against defendants was

overwhelming and that he thought jury

would have to reach only conclusion of

guilt did not prejudice defendants in

that statements were not specifically di-

rected at either of them and case against

two defendants was overwhelming.

17. Criminal Law = 1144.13(3)

In reviewing sufficiency of evidence

to support a conviction, evidence must be

viewed in light most favorable to

government.

18. Conspiracy @47(1)

There must be proof beyond reason-

able doubt that a conspiracy existed,

that accused knew it and, with that

knowledge, voluntarily joined it.

19. Conspiracy @43(12)

There is no need to allege or prove

overt act in a conspiracy prosecution un-

der sections governing attempt and con-

spiracy. Comprehensive Drug Abuse

Prevention and Control Act of 1970,

§§ 406, 1013, 21 U.S.C.A. §§ 846, 968.

20. Conspi @=47(12)

Evidence in drug conspiracy was

sufficient to prove an agreement to dis-

tribute by defendants who imported

marijuana in large quantities. Compre-

hensive Drug Abuse Prevention and /

Control] Act of 1970, §§ 401, 406, 21 U:S

C.A. §§ 841, 846.

21. Conspiracy 40.1

Mere association with other persons

involved in criminal enterprise is insuffi-

cient to prove participation in a conspir-

acy.

22. Conspiracy #40

Proximity to crime or even actual

presence at scene of crime is not suffi-

cient to prove participation in a conspir-

acy.

23. Conspiracy @=40.1

Mere knowledge, acquiescence or ap-

proval without cooperation or agreement

to cooperate is not enough to constitute

one a party to a conspiracy.

24. Conspiracy @47(12)

Defendant’s knowledge of conspir-

acy and presence at meetings relative to

conspiracy, taken together with his

statements relative to carrying out of

conspiracy and money gto be realized

from drug transaction was sufficient to

connect defendant with conspiracy to im-

port marijuana. . Comprehensive Drug

‘Abuse Prevention and Control Act of

1970, § 1002, 21 U.S.C.A. § 952.

25. Criminal Law @=1171.3

Prosecutor’s erroneous statement

placing defendant at key meeting rela-

tive to conspiracy to import marijuana

was harmless error where there was in-

disputable evidence that defendant was

connected with the conspiracy and that

he attended other key meetings. Com-

prehensive Drug Abuse Prevention and

Control Act of 1970, § 1002, 21 U.S.C.A.

§ 952.

26. Criminal Law ®720(1)

Prosecutor’s expression of opinion as

to weight of evidence was not an en-

dorsement of his case.

27. Drugs and Narcotics @=73

Very size of a narcotics cache can be

sufficient to show intent to distribute.

Comprehensive Drug Abuse Prevention

and Control Act of 1970, § 401, 21 U.S.

C.A. § 841.

28. Conspiracy @=47(12)

Although there was no direct evi-

dence that defendants planned to distrib-

ute marijuana in the United States,

where evidence showed plan to import

1,100 50-pound bales of marijuana and

use of vans to transport marijuana and

that conspirators were short on “front

money,” evidence was sufficient to es-

tablish a conspiracy to distribute. Com-

prehensive Drug Abuse Frevention and

Control Act of 1970, §§ 401, 406, 21 U.S.

C.A. §§ 841, 846.

29. Criminal Law @805(3)

Trial court in marijuana distribution

prosecution erred when it used word

“into” in instruction that distribution

meant transferring “into” the United

States some or all of article to another

individual while in the United States.

Comprehensive Drug Abuse Prevention

and Control Act of 1970, § 401, 21 U.S.

C.A. § 841. .

30. Criminal Law e 1162

In determining whether erroneous

instruction and other errors required re-

versal, court had to determine whether

errors might have contributed to verdict

that was reached.

31. Criminal Law @1172.1(5)

Erroneous instruction that distribu-

tion means transferring “into” the Unit-

ed States was not unduly prejudicial to

two defendants where subsequent cor-

rect definition was given and where evi-

dence against defendants as to their par-

ticipation in conspiracy to distribute

marijuana was overwhelming. Compre-

hensive Drug Abuse Prevention and

Control Act of 1970, § 401, 21 U.S.C.A.

§ 841.

32. Conspiracy *47(12)

Direct and circumstantial evidence

that two defendants were peripheral

participants in scheme to import mari-

UNITED STATES v. RODRIGUEZ

juana did not refute, beyond reasonable

doubt, hypothesis that they had no

knowledge of a conspiracy to distribute

once marijuana reached shores of United

States. Comprehensive Drug Abuse Pre-

vention and Control Act of 1970, §§ 401,

406, 1002, 1013, 21 U.S.C.A. §§ 841, 846,

952, 953.

33. Conspiracy #40.1

One who knows of a conspiracy and |

intentionally acts in furtherance of it is

culpable as a conspirator.

34. Conspiracy @=47(12)

Although defendants who contribut-

ed to scheme to import marijuana could

be charged with knowledge that scheme

to distribute would likely be formed once

marijuana arrived in United States, that

was not sufficient to exclude, beyond

reasonable doubt, the hypothesis that

they did not then join in the conspiracy

to distribute or even know of it. Com-

prehensive Drug Abuse Prevention and

Control Act of 1970, §§ 401, 406, 1002,

1018, 21 U.S.C.A. §§ 841, 846, 952, 953.

35. Conspiracy #40

Where two defendants were periph-

eral participants in scheme to import

marijuana and there was no evidence

that they would come into possession of

marijuana once it arrived in the United /

States share in its proceeds thereafter or /

other evidence that they were privy to

plans to distribute marijuana, defendants

could not be convicted of conspiracy to

distribute marijuana. Comprehensive

Drug Abuse Prevention and Control Act

of 1970, §§ 401, 406, 1002, 1013, 21 U.S.

C.A. §§ 841, 846, 952, 953. .

36. Criminal Law @=193

Double jeopardy clause precluded re-

trial of defendants whose conviction of

conspiracy to distribute marijuana was

overturned. ‘

37. Criminal Law @29

A single act may constitute two of-

fenses if it violates two substantive stat-

utes but, even if a single agreement has

more than one unlawful objective, it

may not truly constitute two conspira-

cies.

38. Conspiracy ¢=24

It is agreement that is illegal in a

conspiracy; if there is only one agree-

ment, there is but one offense though its

objectives are multiple.

39. Criminal Law 229

A single act may cause more than a

single consequence; therefore, one act

may be prosecuted and punished as more

than a single offense.

40. Conspiracy 40.1

Government need prove only that a

conspirator agreed to one of many objec-

tives charged to hold him liable for other

objectives of agreement.

41. Conspiracy @28(1)

Commission or attempted commis-

sion of several offenses constitutes sev-

eral crimes but one agreement to violate

a number of laws remains but one crime

if it is charged merely as a conspiracy

and not as a substantive offense.

42. Conspiracy @23

There may be two or more agree-

ments in a given case and each may

violate different or identical conspiracy

| statutes.

43. Conspiracy @28(3)

Separate convictions of conspiracy to

import marijuana and conspiracy to dis-

tribute marijuana would be affirmed

notwithstanding contention that there

was a single illegal agreement relative to

*Senior Judge of the United States Court of

Claims, sitting by designation.

UNITED STATES v. RODRIGUEZ

857

drugs. Comprehensive Drug Abuse Pre-

vention and Control Act of 1970, §§ 401,

406, 1002, 1018, 21 U.S.C.A. §§ 841, 846,

952, 953.

Appeals from the United States Dis-

trict Court for the Southern District of

Florida.

Before SKELTON *, Senior Judge,

and FAY and RUBIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

The appellants challenge their convic-

tions on both counts of a two count in-

dictment charging conspiracy to import

marijuana in violation of 21 U.S.C.

§ 952, and a conspigacy to distribute

marijuana in violation of 21 U.S.C.

§ 841,' alleging that some twenty differ-

ent errors were committed below. Their

cavalcade of contentions marches against

a background of dramatic events narrat-

ed by the government witnesses. A full

panorama would be fitting material for

a novelist but redundant to this opinion |

sO we recount only so much as appears

essential for decision.

During a lengthy intrigue conducted

with various of the defendants, a special

agent of the Drug Enforcement Admin-

istration (“DEA”), Theodore Weed, rep-

resented himself as being able to obtain

a boat that could unload marijuana from

a vessel at sea and transport it to Flori-

da. He was to be paid $200,000 or ten

percent of the value of the cargo, which

was eventually represented to be 40,000

pounds. He was first approached by the

defendant Albernaz. During the course

1. Conspiracy to violate § 952 is punishable un-

der 28 U.S.C. § 963. Conspiracy to violate

§ 841 is punishable under 28 U.S.C. § 846.

of negotiations that ensued, he was in-

troduced to defendants Rodriguez and

Smigowski, as Albernaz’s principals.

There were many meetings, complicat-

ed plans, and many conversations with

Albernza and Rodriguez, some of which

were tape recorded. Eventually, a place

to unload the cargo was located on a

Florida key south of Marathon? Plans

were made to meet the freighter that

would bring the cargo, and Captain

Jones, the captain of the Catchalot II,

was enlisted. Captain Jones was secret-

ly assisting the government.

Albernaz gave DEA agent McCut-

cheon and Captain Jones the final in-

structions, including the coordinates for

a rendezvous with the freighter, and

codes to be used when communicating

with it. Albernaz stated that they were

to unload 1,100 bales containing about 50

pounds each, and that there was an op-

tion for 300 more bales which could be

obtained if a particular message were

given the captain of the freighter. The

Catchalot II left West Palm Beach the

evening of January 27, with a crew se-

cretly composed of DEA agents, Customs

agents, and civilians. Albernaz and Ro-

driguez continued their efforts to ar-

range for delivery of the valuable cargo.

Two days later, the co-defendant Wil-

liam Martins chartered a Piper Navajo

aircraft. Martins, Rodriguez and Alber-

naz, together with three pilots, flew on

the plane from Fort Lauderdale to the

Bahamas. Martins told one pilot, Jerry

Harvey, that they were searching for &

fishing boat which was in trouble. Due

to darkness, the rendezvous of the ves-

sels could not be completed, so the plane

carrying Martins, Albernaz and Rodri-

guez returned to Fort Lauderdale. Har-

vey was paid $900 for the trip.

2. The marijuana was transferred 30 miles east

of Elbow Cay, outside of Abaco Island in the

UNITED STATES v. RODRIGUEZ

The next day, Martins again chartered

Harvey’s aircraft. Harvey flew Martins,

Albernaz and Rodriguez over the

freighter and the Catchalot II; messages

were dropped to each indicating the loca-

tion of the other vessel. The Catchalot

II established itself as the pickup boat

via the use of the code disclosed by Al-

bernaz. Captain Jones informed the

captain of the freighter that he wanted

“to offload” immediately. The captain

of the freighter replied that he wanted

to wait for dark, but eventually agreed

to unload after asserting that he had

never “offloaded” in daytime before.

The Catchalot II tied up alongside the

freighter and 150 bales of marijuana

were unloaded pursuartt to a careful

count by the captain of the freighter and

Captain Jones.

Ostensibly to stow the marijuana bales

below deck, the Catchalot II moved

away from the freighter, and then cov-

ertly called the Coast Guard. During

the next few hours, the Catchalot II

maintained a distance from the freight-

er. The Coast Guard vessel Dauntless

appeared on the scene at approximately

7:00 p. m.

Using both Spanish and English, the

Coast Guard vessel ordered the freighter

to stop. It did not respond and, after

approximately 30 minutes, the Coast

Guard fired three short bursts of a ma-

chine gun across its bow. It then fired

three rounds from a canon. This caused

the freighter to stop. Thirteen Colombi-

an seamen aboard the freighter were ar-

rested, and, although separately tried,

were charged as co-conspirators with the

appellants herein. The appeal from

their convictions is separately reported.

United States v. Cadena, 5 Cir. 1978, slip

op. p. 874, —— F.2d ——.

Bahamas, 200 to 225 miles east of the United

States.

UNITED STATES v. RODRIGUEZ

About the time these events were oc-

curring, defendants Martins and Rodri-

guez were arrested in a Miami hotel

room, and Miranda*® warnings were giv-

en to them. Smigowski and Albernaz

were arrested an hour later at the same

hotel.

At DEA headquarters, Agent Fernan-

dez discovered that Martins was only 18

and asked him how he got into trouble.

In an emotional state, Martins replied

that he would give his story but “he had

to make a telephone call prior to talking

..” Martins’ parents had recently

died so he called a family friend, Captain

Bob Frost of the Hialeah Police Depart-

ment, and asked his friend whether or

not he should cooperate with the federal

agents. Captain Frost asked Martins

about the circumstances of the arrest;

the young defendant indicated that he

had gotten into a marijuana deal and:

that someone had given him $20,000.

Captain Frost then advised Martins to

cooperate with the agents. Martins be-

came very upset; he said to Captain

Frost that, if he did cooperate, he would

be killed. After Frost advised Martins,

Agent Fernandez got on the phone and

promised Frost that, if Martins cooperat-

ed, the DEA would provide the Hialeah

Police Department with helpful informa-

tion. Martins then gave a statement

that incriminated himself and some of

the other defendants.

The defendants were each convicted of

a@ conspiracy to import marijuana, 21

U.S.C. § 952, (Count I) and a conspiracy

3. Miranda v. Arizona, 1966, 384 U.S. 436, 86

S.Ct. 1602, 16 L.Ed.2d 694.

4. Rodriguez was sentenced to imprisonment

for four and one-half years on both counts, the

sentences to be served consecutively. Alber-

naz was sentenced to imprisonment for three

and one-half years (42 months) on each count,

the sentences to be served consecutively.

Smigowski was sentenced to imprisonment for

to distribute marijuana, 21 U.S.C. § 841,

(Count II). There was no distinction

whatsoever between the allegations in

the Count I conspiracy and the Count II

conspiracy except that each count cited a

different statutory section and a differ-

ent. objective. The overt acts charged

and all the other recitals of the indict-

ment in each count were identical. Ap-

pellants raise eleven common challenges

to their convictions; Martins raises nine

additional grounds, and Smigowski sepa-

rately challenges the sufficiency of the

evidence.

Il.

Appellants raise ansingenious defense

which they call jurisdictional entrap-

ment. They note that, had they con-

spired to import marijuana from a

freighter located in international waters

into some country other than the United

States, they would not have committed a

crime against the- United States or be

subject to its jurisdiction. They contend

that the government induced them to

conspire to import the marijuana into,

and distribute it within, the United

States rather than another country. In

addition, appellants raise the related is-

sue that importation into the United

States was suggested by the govern-

ment; therefore, they were enmeshed in

a crime fomented by the state. This

misconduct, they urge, required their ac-

quittal. See United States v. Oquendo, 5

Cir. 1974, 490 F.2d 161, where the court

three years on both counts, the sentences to

be served consecutively. Martins was sen-

tenced to three years on each count, the sen-

tences to be served concurrently. Each was

sentenced to a special parole term of two

years on each count, to be served consecutive-

ly by Rodriguez, Albernaz and Smigowski, and

concurrently by Martins.

approved submitting to the jury both the

traditional entrapment defense and the

different but related entrapment defense

discussed in United States v. Bueno, 5

Cir. 1971, 447 F.2d 903, cert. denied,

1978, 411 U.S. 949, 98 S.Ct. 1931, 36

L.Ed.2d 411.5

[1] We need not consider and endorse

or disclaim the legal bases on which

these contentions are postulated because

the factual hypotheses on which they

were also based were not established.

The trial judge submitted each conten-

tion to the jury under an adequate

charge,‘ and there was a sufficient evi-

dentiary basis for the jury to conclude,

beyond a reasonable doubt, that the de-

fendants were predisposed to import

marijuana into the United States, and

were neither entrapped into doing so nor

enmeshed in crime by federal agents.

[2,3] Appellants also contend that

the charge failed adequately to allocate

the burden of proof with respect to the

standard entrapment defense. The

government has the “ultimate burden

{of} proving beyond reasonable doubt

5. In Bueno, this court held that entrapment is

established as a matter of law whenever the

contraband in question is supplied to the de-

fendant by a government agent, even where

the defendant is predisposed. Bueno was ef-

fectively overruled by Hampton v. United

States, 1976, 425 U.S. 484, 96 S.Ct. 1646, 48

L.Ed.2d 113.

6 Appellants complain that the court did not

instruct that jurisdictional entrapment could

occur if they had a predisposition to commit

crimes only against other countries. Even if

predisposition must contemplate a particular

jurisdiction, this was adequately explained in

the charge which provided in relevant part:

In the event the evidence establish[es) that

the government induced the defendant to im-

port and/or distribute the marijuana into the

United States, as opposed to some other jur-

isdiction or country, then the defense of en-

trapment will lie.

UNITED STATES v. RODRIGUEZ

that predisposition and not inducement

was the cause of the crime.” United

States v. Tate, 5 Cir. 1977, 554 F.2d 1341,

1844; United States v. Groessel, 5 Cir.

1971, 440 F.2d 602, 606, cert. denied,

1971, 408 U.S. 933, 91 S.Ct. 2263, 29

L.Ed.2d 718. At the point where the

court discussed entrapment, it did not

specifically describe the allocation of

proof. However, it properly indicated

that a reasonable doubt as to inducement

required acquittal.’ The jury was in-

structed that the general burden of

proof beyond reasonable doubt was on

the government, and it was evident from

the charge as a whole that this allocation

governed the entrapment defense. This

court has approved similar instructions.

United States v. Banks, 5eCir. 1973, 475

F.2d 1867, 1369; see also United States

v. Groessel, supra, 440 F.2d at 607.

i Ill.

The trial court also included in the

charge to the jury the following state-

ment with respect to the general reason-

able doubt standard:

7. The charge read:

If you, the jury, should find beyond a rea-

sonable doubt from the evidence in the case

that before anything at all occurred respect-

ing the alleged offense involved in this case,

the defendants were ready and willing to

commit the crimes, such as charged in the

indictment, whenever the opportunity was

afforded and that the Government officer or

their agent did no more than offer the op-

portunity, then the jury should find that de-

fendants are not victims of entrapment.

On the other hand, if the evidence should

leave you with reasonable doubt as to

whether the defendants had the previous in-

tent or purpose to commit any offense of the

character charged and did so only because

they were induced or persuaded by some

officer or agent of the Government, then it is

your duty to acquit them.

A reasonable doubt means a doubt

that is based on reason and common

sense. Such doubt must be substantial

rather than speculative.

In United States v. Alvero, 5 Cir. 1972,

470 F.2d 981, 982-983, this court re-

versed a conviction because the court

charged:

“It is not a speculative doubt, but any

substantial reasonable doubt, common,

ordinary horsesense doubt . . . a

very substantial doubt, let me put it

that way, of the guilt of the defend-

ant.”

(Emphasis added.)

However, in United States v. Turk, 5

Cir. 1976, 526 F.2d 654, 669, cert. denied,

1976, 429 U.S. 823, 97 S.Ct. 74, 50

L.Ed.2d 84, and in United States v.

Muckenstrum, 5 Cir. 1975, 515 F.2d 568,

570, cert. denied, 1975, 423 U.S. 1032, 96

S.Ct. 564, 46 L.Ed.2d 406, we sustained a

verdict despite our express disapproval

of a charge stating:

Such doubt must be substantial rather

than speculative, that is, a defendant

is never to be convicted on mere suspi-

cion or conjecture.

[4] It certainly would have been bet-

ter for the charge to be given in other

terms. But cf. LaBuy, Jury Instructions

in Federal Criminal Cases § 6.01-3.

There is no want of jurisprudence with

respect to how the reasonable doubt

standard may be explained. See discus-

sions in In re Winship, 1970, 397 U.S.

358, 90 S.Ct. 1068, 25 L.Ed.2d 368; Hol-

land v. United States, 10 Cir. 1954, 209

F.2d 516, 522-523, aff'd, 1954, 348 U.S.

121, 75 S.Ct. 127, 99 L.Ed. 150. Little

new can, or should, be added after 200

years of judicial use of the same term.

But the charge given is sufficiently akin

to the ones permitted in Turk and Muck-

enstrum, where substantial doubt was

UNITED STATES v. RODRIGUEZ

861

employed to contrast speculation, to war-

rant affirmation. Unlike the charge in

Alvero, it does not directly equate rea-

sonable doubt with “very substantial

doubt” or even with a “substantial

doubt” by use of an introductory phrase

such as, “let me put it th[is] way.”

We note that the Seventh Circuit

Court of Appeals has wrestled with the

equation of reasonable doubt with sub-

stantial doubt on a number of occasions,

and, although it expressly disapproved

the formulation, it has not yet found

reversible error. United States v.

Crouch, 7 Cir. 1976, 528 F.2d 625, 630,

631, cert. denied, 1976, 429 U.S. 900, 97

S.Ct. 267, 50 L.Ed.2d 184; United States

v. Shaffner, 7 Cir. 197§, 524 F.2d 1021,

1023, note 2, cert. denied, 1976, 424 U.S.

920, 96 S.Ct. 1126, 47 L.Ed.2d 327; Unit-

ed States v. Lawson, 7 Cir. 1974, 507

F.2d 438. 440, cert. denied, 1975, 420 U.S.

1004, 9%

S.Ct. 1446, 43 LEd2d 762.

Compare United States v. Bridges, 7 Cir.

1974, 499 F.2d 179, 185-186, cert. denied,

1974, 419 U.S. 1010, 95 S.Ct. 330, 42

L.Ed.2d 284. Most recently the Supreme

Court noted, “this definition, though per-

haps not in itself reversible error, often

has been criticized as confusing.” Taylor

v. Kentucky, 1978, —— U.S. ‘

98 S.Ct. 1930, 1936, 56 L.Ed.2d 468. Ad-

ditionally, other courts of appeals have

considered similar equations and decided

in the context of each particular case

that a new trial was not required. Unit-

ed States v. Magnano, 2 Cir. 1976, 543

F.2d 431, 437, cert. denied, 1977, 429 U.S.

1091, 97 S.Ct. 1101, 51 L.Ed2d 536;

United States v. Fallen, 8 Cir. 1974, 498

F.2d 172, 177; United States v. Christy,

-6 Cir. 1971, 444 F.2d 448, 450-451, cert.

denied, 1971, 404 U.S. 949, 92 S.Ct. 293,

30 L.Ed.2d 266; United States v. Aiken,

2 Cir. 1967, 373 F.2d 294, 299, cert. de-

nied, 1967, 389 U.S. 883, 88 S.Ct. 32, 19

L.Ed.2d 98. See also United States v.

10a

Gratton, 7 Cir. 1975, 625 F.2d 1161, 1162,

and United States v. Atkins, 8 Cir. 1978,

487 F.2d 257, 260, where the courts

found similar instructions were not plain

error in the absence of a Rule 30, Fed.R.

Crim.Proc. objection. A timely objection

was made here.

{[5] In reviewing “reasonable doubt”

charges, we look to the whole instruction

rather than .solate any particular sen-

tence. United States v. Patman, 5 Cir.

1977, 557 F.2d 1181; United States v.

Steinkoenig, 5 Cir. 1973, 487 F.2d 225;

Russell v. United States, 5 Cir. 1970, 429

F.2d 237; Baker v. United States, 5 Cir.

1969, 412 F.2d 1069, cert. denied, 1970,

396 U.S. 1018, 90 S.Ct. 583, 24 L.Ed.2d

509; Tillery v. United States, 5 Cir. 1968,

396 F.2d 790. When viewed contextual-

ly, the reference does not constitute re-

versible error. However, we underscore

the gravity of misstating this “bedrock

‘axiomatic and elementary’ principle

whose ‘enforcement lies at the founda-

tion of the administration of our crimi-

nal law,’” In re Winship, 1970, 397 U.S.

358, 363, 90 S.Ct. 1068, 1072, 25 L.Ed.2d

368, citing Coffin v. United States, 1895,

156 U.S. 432, 453, 15 S.Ct. 394, 403, 39

L.Ed. 481, and join the Seventh Circuit

in admonishing “that a district court giv-

ing a reasonable doubt instruction con-

taining the challenged equation notwith-

standing a Rule 30 challenge can reason-

ably expect a reversal. We would as-

sume further that district courts in view

of the expressed dissatisfaction by this

court [in Muckenstrum, Turk, Alvero and

now here] with the language would sua

sponte eliminate the phrase from their

set of standard instructions even in the

absence of a Rule 30 objection.” United

States v. Wright, 7 Cir. 1976, 542 F.2d

975, 988.

UNITED STATES v. RODRIGUEZ

IV.

Because of its significance with re-

spect to discussions that follow, we turn

aside to consider the issues raised by the

appellant Martins concerning the admis-

sibility of his confession. It is contended

that this should be suppressed as the

fruit of an illegal arrest. See Wong Sun

v. United States, 1963, 8371 U.S. 471, 83

S.Ct. 407, 9 L.Ed.2d 441.

[6] At the time of Martins’ arrest,

the agents had no knowledge that he

was connected with the conspiracy al-

though they had seen his name on the

passenger manifest of the chartered air-

craft and were, of course, aware that he

was in the room with Rodriguez the

night of the arrest. They did not have

probable cause to arrest him.

Hence, we must consider whether the

confession that followed his arrest was

“come at by exploitation of [the] illegali-

ty or instead by means sufficiently dis-

tinguishable to be purged of the primary

taint.” Wong Sun,. supra, 371 U.S. at

488, 83 S.Ct. at 417. In Brown v. Illi-

nois, 1975, 422 U.S. 590, 603-04, 95 S.Ct.

2254, 2261-62, 45 L.Ed.2d 416, the fac-

tors to be considered in this determina-

tion were explained:

The Miranda warnings are an impor-

tant factor . . . in determining

whether the confession is obtained by

exploitation of an illegal arrest. But

they are not the only factor to be con-

sidered. The temporal proximity of

the arrest and the confession, the pres-

ence of intervening circumstances,

j and, particularly, the pur-

pose and flagrancy of the official mis-

conduct are al] relevant the

burden rests, of course, on

the prosecution.

(Footnotes omitted.) See also United

States v. Ceccolini, 1978, 435 U.S. 268, 98

S.Ct. 1054, 55 L.Ed.2d 268.

lla

UNITED STATES v. RODRIGUEZ

[7] Miranda warnings were given to

Martins although he refused to sign a

form affirming this. See United States

v. Hopkins, 5 Cir. 1970, 433 F.2d 1041,

cert. denied, 1971, 401 U.S. 1013, 91 S.Ct.

1252, 28 L.Ed.2d 550. The confession did

not actually occur until Martins was

transported to DEA offices and after he

had the benefit of the intervening advice

of Captain Frost; while Frost is not an

attorney, Martins was able to obtain

meaningful counsel from him. Frost

was consulted as, and acted as, a friend,

not as a law enforcement official. The

offer of helpful information to Frost in

exchange for Martins’ cooperation came

after Frost’s advice and did not affect it.

The record indicates that Martins know-

ingly and voluntarily waived his rights

to silence and assistance of counsel by

insisting that he wanted to tell his story.

Finally, the government’s conduct was'

not flagrant or reprehensible. There-

fore, the court below did not err in deny-

ing the motion to suppress.

[8] The only other error raised by

Martins alone that warrants comment is

the failure of the sentencing court ex-

plicitly to find that Martins would not

benefit from sentencing pursuant to the

Federal Youth Corrections Act, 18 U.S.C.

§ 5005, et seg. At sentencing, Martins’

attorney expressly waived sentencing

under the Act after discussing the bene-

fits of it with the court. The record is

convincing that, although the court did

not recite any talismanic phrases, it did

fully consider whether the defendant

would benefit from sentencing under the

Act. Bustillo v. United States, 5 Cir.

1978, 573 F.2d 368; Mitchell v. United

States, 5 Cir. 1977, 547 F.2d 875; United

States v. Brown, 5 Cir. 1975, 522 F.2d

207; United States v. Gamboa-Cano, 5

Cir. 1975, 510 F.2d 598. See also Dorsz-

ynski v. United States, 1974, 418 U.S.

424, 444, 94 S.Ct. 3042, 3053, 41 L.Ed.2d

855.

Appellants complain of alleged mis-

statements of facts by the prosecutor to

the jury and of his expression of person-

al opinion with respect to the defend-

ants’ guilt. In the course of a lengthy

argument occupying 20 pages in the

transcript, the prosecutor made the fol-

lowing challenged statements:

1) One “Banello,” who had been char-

acterized in the testimony as an organ-

ized crime figure, was found in the room

with Martins and Rodriguez at the time

of the arrest. There was no evidentiary

basis for this statement.

2) Smigowski was at a key meeting,

contrary to the testimony as to who at-

tended the meeting.

3) “Smigowski made some comment

about the lights [at one suggested un-

loaded spot], because he was also con-

cerned about having too much light at

night and that it would not be really

clever to try a smuggling operation if

you are bathed in light. And, of course,

he wanted it dark.” The only relevant

testimony was, “Smigowski asked about

the lights, and the brightness of the

lights.” *

4) “Once [the marijuana] arrived in

South Florida it would then be trucked

to New England and that is why the

indictment is in the form of-two differ-

ent counts . . .. One, it would be

imported, and it would then be distribut-

ed throughout New England.” There

8. When asked if Smigowski said anything else, Agent Weed testified, “no more than just

about the lights.”

12a

was no evidence that the marijuana

would be distributed throughout, or in,

New England or that it would be trans-

ported there.

5) “The evidence against those defend-

ants J think is just overwhelming . .”

and “J think you will have to reach. .

only one conclusion, that they are guilty

of two counts .” (Emphasis

added.)

6) “But if you are guilty of a [serious

crime} . . . and you are not some

kind of hardened criminal or something

. you would confess.

And I think that is what Willie Martins

did.”

[9,10] “It is improper for counsel to

express his personal opinion or to state

facts of his own knowledge, not in evi-

dence, and not part of the evidence to be

presented,” Dunn v. United States, 5 Cir.

1962, 307 F.2d 883, 885-886. See also

Berger v. United States, 1935, 295 U.S.

78, 55 S.Ct. 629, 79 L.Ed. 1314; United

States v. Morris, 5 Cir. 1978, 568 F.2d

396, 400-02; United States v. Pariente, 5

Cir. 1977, 558 F.2d 1186; United States

v. Corona, 5 Cir. 1977, 551 F.2d 1386;

United States v. Warren, 5 Cir. 1977, 550

F.2d 219, 229; Code of Prof. Resp., DR

T-106(CX1), (8X4), and (7); ABA Stan-

dards, The Prosecution Function, §§ 5.8

and 5.9. This rule imposes a duty on the

prosecutor to be scrupulous in his argu-

ment and to avoid all efforts to obtain a

conviction by going beyond the evidence

before the jury or by putting the sanc-

tion of his office behind the testimony of

witnesses. But it does not require a mis-

trial for every erroneous statement or

expression of opinion.

{11} A prosecutor’s expression of per-

sonal belief may be tolerated if it is

based solely on the evidence introduced

and the jury is not led to believe that

other evidence, unavailable to them, jus-

UNITED STATES v. RODRIGUEZ

1978, 486 F.2d 1326, 1330-1331;

United States v. Martinez, 5 Cir. 1972,

bone tig Page gg ge

1978, 414 U.S. 1065, 94 S.Ct. 571, 38

L.Ed.2d 469; cf. United States v. Di-

harce-Estrada, 5 Cir. 1976, 526 F.2d 687,

641-642.

- belief in his guilt. Indeed it was at least

partially favorable insofar as it cast this

defendant as remorseful and not a hard-

ened criminal. Cf. United States v. Cor-

ona, 5 Cir. 1977, 551 F.2d 1386; United

States v. Warren, supra, 550 F.2d at 219,

229; United States v. Dunn, supra;

Gradsky v. United States, 5 Cir. 1967,

873 F.2d 706, 710.

[13] Further, the court gave an in-

struction to disregard any personal opin-

ion of the prosecutor. We have stated:

In every case involving improper argu-

ment of counsel, we are confronted

with relativity and the degree to

which such conduct may have affected

the substantial rights of the defendant

. . One “cannot unring a bell”;

“after the thrust of the saber it is

difficult to say forget the wound”;

and finally, “if you throw a skunk into

the jury box, you can’t instruct the

jury not to smell it”.

Dunn v. United States, supra, 307 F.2d

at 886. The court’s jury instruction may

be considered as a factor in assessing the

13a

UNITED STATES v. RODRIGUEZ

degree of prejudice. United States v.

Martinez, supra; see also United States

v. Crane, 5 Cir. 1971, 445 F.2d 509, 520.

{14] In assessing the prejudicial im-

pact of such assertions, we must also

consider the strength of the evidence

against each defendant who might have

been prejudiced. Berger v. United

States, supra, 295 U.S. at 89, 55 S.Ct. at

683; United States v. Warren, supra, 550

F.2d 219, 229. “[I]}n close cases improper

remarks by the prosecuting attorney

may carry ‘much weight against the ac-

cused when they should properly carry

none.’” United States v. Diharce-Estra-

da, 5 Cir. 1976, 526 F.2d 637, 642. In

this regard, the prosecution itself conced-

ed, and we agree, that the evidence

against Martins was “somewhat differ-

ent” than the others; absent his confes-

sion, it is doubtful that it would have

withstood a motion for a directed verdict ‘

of acquittal. With Martins’ confession in

evidence, however, the case against him

with respect to participation in the con-

spiracy to import was overwhelming.

[15] Considering the case as a whole,

we conclude that these statements did

not prejudice the substantial rights of

Martins with respect to Count I; the

evidence against him was so strong that

the same verdict would have resulted

had they not been made. We delay con-

sideration of the evidence against Mar-

tins with respect to Count II. Likewise,

we postpone consideration of the suffi-

ciency of the evidence with respect to

Smigowski as to both counts so that the

cumulative impact of the various errors

he complains of may be assessed with

respect to the sufficiency of the evidence

against him.

{16} Obviously Albernaz and Rodri-

guez were not prejudiced with respect to

either count. None of the statements

was specifically directed at either of

them and the case against these two de-

fendants was likewise overwhelming.

VI.

{17} The standard for reviewing the

sufficiency of the evidence in criminal

cases has repeatedly been stated by this

court:

{I}f the trial or appellate court is satis-

fied that the jury could not reasonably

conclude that the evidence fails to ex-

clude every reasonable hypothesis but

that of guilt then the trial court, or on

appeal, this Court must hold that “the

jury must necessarily have had a rea-

sonable doubt as to the inconsistency.”

United States v. Card? 5 Cir. 1978, 569

F.2d 411, 416, quoting from United

States v. Haggins, 5 Cir. 1977, 545 F.2d

1009, 1012. See also United States v.

Pinner, 5 Cir. 1977, 561 F.2d 1203, 1207;

United States v. Nazien, 5 Cir. 1974, 504

F.2d 394, 395, cert. denied, 1975, 420 U.S.

964, 95 S.Ct. 1358, 43 L.Ed.2d 443. The

evidence must be viewed in the light

most favorable to the government.

Glasser v. United States, 1942, 315 U.S.

60, 62 S.Ct. 457, 86 L.Ed. 680.

[18] “{T]here must be proof beyond a

reasonable doubt that a conspiracy exist-

ed, that the accused knew it and, with

that knowledge, voluntarily joined it.”

United States v. White, 5 Cir. 1978, 569

F.2d 263, 267; United States v. Caro,

supra; United States v. Gutierrez, 5 Cir.

1977, 559 F.2d 1278, 1280; United States

v. Bright, 5 Cir. 1977, 550 F.2d 240; see

also United States v. Barrera, 5 Cir.

1977, 547 F.2d 1250.

[19,20] In a conspiracy under 21

U.S.C. § 846 or 21 U.S.C. § 968, there is

no need to allege or prove overt acts.

United States v. White, 5 Cir. 1978, 569

F.2d 263, 266; United States v. Thomas,

l4a

866 UNITED STATES v. RODRIGUEZ

5 Cir. 1978, 567 F.2d 688, 641; United

States v. Palacios, 5 Cir. 1977, 556 F.2d

1859, 1864, note 9. Although as this

court has emphasized, “[p]roof of an

agreement to enter into a conspiracy is

not to be lightly inferred,” United States

v. White, supra, 569 F.2d at 267, quoting

United States v. Johnson, 5 Cir. 1971,

439 F.2d 885, 888, cert. denied, 1971, 404

U.S. 880, 92 S.Ct. 218, 30 L.Ed.2d 161,

there was sufficient evidence from which

an agreement to distribute could reason-

ably be inferred.

With respect to Smigowski’s presence

at various meetings, the government re-

lies upon the three statements that he

made:

1) When the conspirators planned to

use a marina as a site to unload the

Catchalot II, he asked about the lights

there, and, as a result, they moved to a

darker spot;

2) After Weed’s group had agreed to

arrangements whereby they would keep

a ton of marijuana, he commented that

it was worth $500,000 and, therefore,

they would not lose money, which may

have been an attempt to reassure the

agents; and,

3) He told Agent Weed, when asked,

that Rodriguez and Albernaz were out at

sea coordinating the rendezvous and,

therefore, Weed did not have to do it.

Additionally, when asked to be intro-

duced to the principals of his organiza-

tion by Weed, Rodriguez arranged a

meeting at which Smigowski was

present.’

[21-23] “{MlJere association with oth-

er persons involved in criminal enterprise

is insufficient to prove participation in a

conspiracy.” United States v. Barrera,

supra, 547 F.2d at 1257, and cases cited

9. Although this might constitute hearsay that

would not be admissible through the co-con-

therein. Proximity to the crime or even

actual presence at the scene of the crime

is not sufficient. Id., 547 F.2d at 1256,

and cases cited therein. See also Gutier-

rez, supra, 559 F.2d at 1280-1281; Caro,

supra, 569 F.2d at 418. See also United

States v. Duckett, 5 Cir. 1977, 550 F.2d

1027. “{MJere knowledge, acquiescence

or approval without cooperation or

agreement to cooperate is not enough to

constitute one a part to a conspiracy.”

United States v. Mendez, 5 Cir. 1974, 496

F.2d 128, 130.

[24-26] With respect to the importa-

tion scheme (Count I), the jury could

conclude beyond a reasonable doubt that

Smigowski was more than a sympathetic

spectator. It was entitled touinfer from

the facts presented that Smigowski was

a quiet but active member of the con-

spiracy. His knowledge and presence

are not a basis of guilt in themselves,

but, taken together with his statements,

they provide more than the “slight ba-

sis” required to connect him with the

conspiracy shown to exist. United

States v. Cadillac Overall Supply Co., 5

Cir. 1978, 568 F.2d 1078; United States

v. Bolts, 5 Cir. 1977, 558 F.2d 316, 324,

and cases cited therein. With respect to

Smigowski’s conviction on Count I, the

various errors reviewed in Part V were

clearly harmless. At the worst the pros-

ecutor, in summing up, placed Smigow-

ski erroneously at one key meeting;

there was indisputable evidence that he

attended others. The prosecutor’s state-

ments with respect to distribution relat-

ed only to Count II. The expression of

opinion as to the weight of the evidence

was not an endorsement of his case by

the prosecution. United States v. Mor-

ris, supra.

spirator exception without independent proof

of a conspiracy, it was not objected to at trial.

15a

UNITED STATES v. RODRIGUEZ

[27] Ther: is little direct evidence

with res)ect 10 a conspiracy to distribute

the marijuana after it was _ imported.

There was mentica of the use of Winne-

bagos to traisport the marijuana, and

Rodriguez indicated that his group was

short on “front money” from which it

might be inferred that there would be a

subsequent sale. The load consisted of

- approximately 1100 fifty-pound bales,

far more than the appellants could per-

sonally consume in the course of many

lifetimes of furious effort. The very size

of a narcotics cache can be sufficient to

show intent to distribute under Section

841. United States v. Perry, 5 Cir. 1973,

480 F.2d 147 (188 pounds of hashish);

United States v. Mather, 5 Cir. 1972, 465

F.2d 1035, cert. denied, 1972, 409 US.

1085, 93 S.Ct. 685, 34 L.Ed.2d 672 (197.75

grams of cocaine); United States v. Ro-

driguez, S.D.Tex.1974, 375 F.Supp. 589,

aff'd, 5 Cir. 1974, 497 F.2d 172 (376

pounds of marijuana). Cf. cases finding -

amount too small to infer intent to dis-

tribute; Turner v. United States, 1970,

896 U.S. 398, 423, 90 S.Ct. 642, 655-56,

24 L.Ed.2d 610 (less than one gram co-

caine); United States v. Olvera, 5 Cir.

1975, 523 F.2d 1252 (two grams cocaine).

[28,29] Although there was no direct

evidence that Albernaz and Rodriguez

planned to distribute the marijuana in

the United States, this inference might

reasonably be drawn from the plan to

import it and from the additional evi-

dence concerning them to which we have

just referred. If its ultimate destination

were, for example, Canada, it is hard to

imagine why the appellants would risk

bringing it into American borders. In

this regard, we must consider the in-

struction with respect to the definition

of distribution:

Distribution means, with respect of

any article, transferring into the Unit-

ed States some or all of that article to

another individual while in the United

States.

(Emphasis supplied.) As the italicized

word emphasizes, this instruction was er-

roneous; while the error may have re-

sulted from a slip of the tongue or from

inadvertence, it acquires significance in

the light of the nature of the two counts

and the poverty of evidence, at least as

to some of the defendants, concerning

what they knew about the destination

and disposition of the smuggled cargo.

Before the charge was given, the

government stated for the record that it

thought the charge did confuse distribu-

tion with smuggling; counsel and the

court agreed that the charge would be

changed by substituting “while within

the United States” for “into,” but the

court, apparently inadvertently, neglect-

ed to make the actual correction. In-

deed, in other parts of the instruction,

the court correctly stated the law:

In Count II, the defendants are ac-

cused of conspiring to distribute a con-

trolled substance in the United States

while within the United States.

And:

Count II alleges that during the same

period, the defendants and other al-

leged conspirators knowingly and will-

fully conspired to distribute 30 tons of

marijuana in the United States while

within the United States.

[30] In determining whether this and

other errors require reversal, we must

determine whether these errors might

have contributed to the verdict that was

reached, United States v. Arias-Diaz, 5

Cir. 1974, 497 F.2d 165, cert. denied sub.

nom., 1975, 420 U.S. 1008, 95 S.Ct. 1445,

43 L.Ed.2d 761; Addison v. United

States, 5 Cir. 1963, 317 F.2d 808, cert.

denied, 1964, 376 U.S. 905, 84 S.Ct. 658,

l6a

868 UNITED STATES

11 L.Ed.2d 605, considering the weight

of the evidence pointing to conviction.

United States v. Kilrain, 5 Cir. 1978, 566

- F.2d 979; Chapman v. United States, 5

Cir. 1977, 547 F.2d 1240, 1250, cert. de-

nied, 1977, 431 U.S. 908, 97 S.Ct. 1705, 52

L.Ed.2d 398; United States v. Demchak,

5 Cir. 1977, 545 F.2d 1029; Null v. Wain-

wright, 5 Cir. 1975, 508 F.2d 340, cert.

denied, 1975, 421 U.S. 970, 95 S.Ct. 1964,

44 L.Ed.2d 459; Loftis v. Beto, 5 Cir.

1971, 450 F.2d 599; Lewis v. United

States, 5 Cir. 1967, 375 F.2d 772.

{31} The distribution instruction was

not unduly prejudicial to Rodriguez, and

Albernaz; the evidence against them

was overwhelming albeit indirect, and

the impact of the mistake was lessened

by the subsequent correct definition of

the law. See United States v. Wilkin-

son, 5 Cir. 1972, 460 F.2d 725.

[32] However, there was literally no

evidence with respect to the involvement

of Martins and Smigowski in a distribu-

tion scheme except what might be in-

ferred from their participation in an

agreement to import it. The direct and

circumstantial evidence that they were

peripheral participants in the importa-

tion scheme does not refute, beyond a

reasonable doubt, the hypothesis that

they had no knowledge of a conspiracy

to distribute once it reached these

shores.

Unlike Rodriguez and Albernaz, who

perforce had to make some arrange-

ments to dispose of their treasure, Smi-

gowski and Martins could each receive

his reward and be done with the scheme.

Unlike Rodriguez and Albernaz, who, ac-

cording to the evidence, had contacts

outside the Miami area, needed front

money, and planned to use Winnebagos,

Smigowski or Martins were not shown to

have been connected with the actual ar-

rangements for importation.

v. RODRIGUEZ

There was evidence that Smigowski

and Martins were parties to the importa-

tion scheme, but there is no evidence

that would establish beyond reasonable

doubt that they would likely come in

possession of the haul once it arrived,

share in its proceeds thereafter, or other

evidence from which it could in turn be

inferred that they were privy to plans to

distribute the contraband. We have al-

ready noted that possession of a large

supply of a prohibited substance may

justify the inference that the possessor

intended to distribute it, but there was

no evidence that Smigowski and Martins

had sufficient dominion over or interest

in the marijuana to warrant the infer-

ence.

[33,34] It is well established that one

who knows of a conspi and inten-

tionally acts in furtherance of it, is cul-

pable as a conspirator Direct Sales Co. v.

United States, 1943, 319 U.S. 708, 63

S.Ct. 1265, 87 L.Ed. 1674; United States

v. Becker, 5 Cir. 1978, 569 F.2d 951. But

there is no evidence whatever that, at

the time of Martins’ and Smigowski’s

contribution to the importation scheme,

they knew that a conspiracy to distribute

had been formed. Although they may

be charged with knowledge that such a

scheme would likely be formed once the

haul arrived, this is not sufficient to ex-

clude, beyond reasonable doubt, the hy-

pothesis that they did not then either

join in it or even know of it.

[35,36] Although the inference to be

drawn against either Smigowski or Mar-

tins or both is a reasonable one, the

proof of guilt as to each of them with

respect to Count II was insufficient to

meet the reasonable doubt standard.

Hence, their retrial on that count is pre-

cluded by the double jeopardy clause.

Burks v. United States, 1978, —— US.

17a

UNITED STATES v. RODRIGUEZ

——, 98 S.Ct. 2141, 57 L.Ed.2d 1. Ac-

cordingly, we find sufficient evidence to

warrant Smigowski’s and Martins’ con-

victions on Count I but must dismiss

Count II of the indictment with respect

to each of them.

VII.

Finally, all appellants contend that the

two counts of conspiracy charged in the

indictment were but “one offense,” and

that, therefore, the imposition of consec-

utive sentences violates the double jeop-

ardy clause.

This court considered the issue wheth-

er violations of 21 U.S.C. § 846 and

§ 963" constitute but one offense in

United States v. Houltin, 5 Cir. 1976, 525

F.2d 948, and decided that, even if there

“was only one conspiracy . . Con-

gress may choose to punish two aspects

of that behavior without contradicting

the Double Jeopardy Clause.” 525 F.2d

at 950. That decision was vacated, sub

nom. Croucher v. United States, 1977,

429 U.S. 1034, 97 S.Ct. 725, 50 L.Ed.2d

745... Were we free to consider that

10. See note 1, supra.

11. After the Supreme Court vacated Houltin

for reconsideration with respect to whether a

compelling federal interest would be served by

both convictions, this court accepted the

government's decision to withdraw the charge

of conspiracy to possess (Count II), and its

decision not to withdraw the charge with re-

spect to conspiracy to import (Count I) was

not challenged. United States v. Houltin, 5

Cir. 1977, 553 F.2d 991 (Houltin IJ). We stat-

ed in Houltin II, “In all other respects this

Court’s judgment and that of the district court

eve reaffirmed.” But because there was only

one conviction remaining, the court could not

be reaffirming that portion of Houltin I that

addressed the double jeopardy issue. A vacat-

ed judgment is not binding. See 1B Moore's

Federal Practice § 0.416[2] (1974).

We note also that counsel in United States v.

Herrera-Vinagas, 5 Cir. 1978, 573 F.2d 1308,

raised the double jeopardy issue with respect

problem anew, we would conclude, con-

to the conclusion in Houltin, that

the double jeopardy clause prohibits the

punishment of a single conspiracy by

more than one penalty. However, the

reasoning of Houltin has been adopted

by two panels of this court. United

States v. Dyar, 5 Cir. 1978, 574 F.2d

1885, at 1889; United States v. Smith, 5

Cir. 1978, 574 F.2d 308. Although the

statements with respect to this issue in

both of these cases may be distinguished

as obiter dictum,” they express the

views of a number of members of this

court. Under these circumstances, we

believe that we are required to treat

these decisions as binding, set forth the

reasons for our disagreement with them,

and permit the parties ‘to petition this

court for a rehearing en banc.

In United States’ v. Adcock, 6 Cir.

1978, 487 F.2d 637, and United States v.

Honneus, 1 Cir. 1974, 508 F.2d 566, cert.

denied, 1975, 421 U.S. 948, 95 S.Ct. 1677,

44 L.Ed.2d 101, the courts considered the

very conspiracy statutes charged here, 21

to these same statutes, but the court did not

address the issue in its unpublished per curiam

affirmance.

12. In Smith, two separate conspiracies were

charged and proved: one for violation of the

Racketeer Influenced and Corrupt Organiza-

tion Act, 18 U.S.C. § 1961, et seq., and one for

conspiracy to distribute marijuana, 21 U.S.C.

§ 846. The court specifically stated, “A curso-

ry examination of the offenses involved here

reveals that they are not the same,” and that

each involved separate elements. 574 F.2d at

310. In Dyar, concurrent sentences were im-

posed, hence it was not necessary to consider

the issue.

13. Although Smith was a per curiam opinion,

court records reveal that it was authored by

Judge Fay. As a concurring member of this

panel, Judge Fay has authorized me to state

that, upon reflection, he is of the opinion that

the view adopted here is a preferable one.

18a

870 UNITED STATES v. RODRIGUEZ

U.S.C. §§ 846 and 968, and concluded

that, ulthough each concerns different il-

legal objectives, where a single agree-

ment violates both statutes, the defend-

ants have engaged only in one conspir-

acy and may be punished only once. See

also United States v. Mori, 5 Cir. 1971,

444 F.2d 240, 241-245, cert. denied, 1971,

404 U.S. 913, 92 S.Ct. 238, 30 L.Ed.2d

187, where this court held that, under

the facts, an agreement to import a nar-

cotic drug and an agreement to travel in

foreign commerce to promote unlawful

activity were but one conspiracy and

sentence must be imposed on only one

count.

These conclusions all rely upon Braver-

man v. United States, 1942, 317 U.S. 49,

63 S.Ct. 99, 87 L.Ed. 23, in which the

court held that, when a single agreement

is made, “[t]he one agreement cannot be

taken to be several agreements and

hence several conspiracies because it en-

visages the violation of several statutes

rather than one.” Id., 317 U.S. at 538, 68

S.Ct. at 102. This is true “however di-

verse its objects.” Frohwerk v. United

States, 1919, 249 U.S. 204, 210, 39 S.Ct.

249, 252, 63 L.Ed. 561. The court in

Honneus, supra, recognized that Con-

gress has the power to enact such over-

lapping statutes and that defendants

could simultaneously be prosecuted and

convicted under each, for it might be

difficult or impossible for the grand jury

definitely to determine in advance which

set of laws the conspiracy violated if

proved; if, however, the defendants

were convicted of both, they could be

sentenced under only one.

[37-39] The opposite result was

reached in United States v. Marotta, 9

Cir. 1975, 518 F.2d 681, with respect to

these statutes. But, in surveying the ju-

risprudence, the Ninth Circuit failed to

take note of the essential distinction: a

single act may constitute two offenses if

it violates two substantive statutes, but,

even if a single agreement has more

than one unlawful objective, it may not

truly constitute two conspiracies. It is

the agreement that is illegal in a con-

spiracy; if there is only one agreement,

there is but one offense though its objec-

tives are multiple. However, a single

act may cause more than a single conse-

quence; therefore, one act may be prose-

cuted and punished as more than a sin-

gle offense. See Gore v. United States,

1958, 357 U.S. 386, 78 S.Ct. 1280, 2

L.Ed.2d 1405, which involved violation of

several substantive statutes by one act

of sale. But cf. Simpson v. United

States, 1978, 435 U.S. 6, 98 S.Ct. 909, 55

L.Ed.2d 70. This distinction is drawn in

Braverman where: the court distin-

guished the case before’ it (a single con-

spiracy that appeared to violate two sep-

arate statutory provisions) from the case

of “a single act which violates two stat-

“utes,” as evidenced by its citation of

Blockburger v. United States, 1932, 294

U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 and

Albrecht v. United States, 1927, 273 U.S.

1, 47 S.Ct. 250, 71 L.Ed. 505.

A single agreement to rob a bank, kill

the guard, steal a car and flee contem-

plates the possible commission of a num-

ber of crimes. But if there is only one

agreement, it is the agreement that is

the offense; the agreement itself rather

than its imagined objectives is the only

concrete harm that has occurred. By

contrast, a person who fires one bullet

and kills two different persons has

wrought two distinct social harms, and

society may punish both.

Unlike the present case, Braverman

involved one conspiracy statute which

made it illegal to conspire to violate a

number of substantive laws. Here we

are presented with two different conspir-

19a

“UNITED STATES v. RODRIGUEZ

acy statutes each of which makes it ille-

gal to conspire to a particular end. But

this is not an adequate basis for reaching

a different result from the one deter-

mined in Braverman. Here the facts

showed that there was but one conspir-

acy regardless whether its objectives are

ibed by two discrete laws such as

21 U.S.C. §§ 846, 963, or by one law such

as former 18 U.S.C. § 88," considered in

Braverman, which proscribed objectives

by reference to other statutes. Cf. De-

velopments—Conspiracy, 72 Harv.L.Rev.

920, 964-966; LaFave & Scott, Criminal

Law, § 62 at 479-480 (1972). For, as the

court said in Braverman: “(t]he one

agreement cannot be taken to be several

agreements and hence several conspira-

cies because it envisages the violation of

several statutes rather than one.” Id.,

317 U.S. at 53, 63 S.Ct. at 102.

The problem was recognized in the

careful opinion in Houltin, supra, and

the court distinguished the situation

where it is charged that one agreement

violates the general conspiracy statute

and a specific conspiracy statute (as

charged in Mori, supra) and the case

where there are two specific conspiracy

statutes. We cannot accept this as a

valid distinction. It would permit the

Congress to penalize a single agreement

by a multitude of separate conspiracy

statutes so long as they are specific.

{40} This court has found, in other

contexts, that but a single conspiracy ex-

ists even though the agreement that con-

stitutes it has several objectives and

aims at the commission of several of-

fenses. United States v. Elliott, 5 Cir.

1978, 571 F.2d 880, 902; United States v.

Bolts, supra, 558 F.2d at 325. It is for

this reason that the government need

prove only that a conspirator agreed to

871

one of the many objectives charged to

hold him liable for the other objectives

of the agreement, United States v. Bolts,

supra. See also United States v. Decker,

5 Cir. 1976, 543 F.2d 1102, cert. denied

sub. nom., 1977, 431 U.S. 906, 97 S.Ct.

1700, 52 L.Ed.2d 890.

Our conclusion that only one conspir-

acy existed is consistent with our finding

sufficient evidence that Smigowski and

Martins agreed to only one objective, im-

portation, of a multiple objective con-

spiracy: that does not imply that there

was more than one agreement, merely

more than one objective. As we stated

in United States v. Elliott, supra, 571

F.2d at 902, “the precise nature and ex-

tent of the conspiracy must be deter-

mined by reference to the agreement

which embraces and defines its objects.

Whether the object of a single agree-

ment is to commit ong or many crimes, it

is, in either case, that agreement which

constitutes the conspiracy which the

statute punishes.” . Quoting Braverman

vy. United States, supra, 317 U.S. at 53,

63 S.Ct. at 102.

Because one conspiracy may have

many illegal objectives, it will necessari-

ly involve a number of sub-agreements

to commit each of these specified objec-

tives. Some members may concur in

only some of the many objectives, yet

they are liable for all because there is

but one scheme, one enterprise, one con-

spiratorial web. See United States v.

Becker, 5 Cir. 1978, 569 F.2d 951, 960-61;

United States v. Baldarrama, 5 Cir. 1978,

566 F.2d 560, 565-66; United States v.

Bolts, supra. If each stitch in that web

were treated as a separate conspiracy,

infinite bases for liability could be con-

fected, see United States v. Papa, 2 Cir.

1976, 533 F.2d 815, 820, and cases cited

14. Now 18 U.S.C. § 371.

20a

872

therein. Here, for example, each con-

spirator might be charged with 16 sepa-

rate conspiracies to import or distribute

with each of the 16 other conspirators;

over 200 conspiracies could be charged.

Hence, the conspiracy must be defined as

broadly as the reach of vicarious liabili-

ty.

For example, in a chain conspiracy,

the distributor and exporter may have

one agreement to import, and the dis-

tributor and seller may have another

agreement to distribute, yet one conspir-

acy exists, and the exporter and seller

are liable for each other’s acts, although

they never agreed upon the same objec-

tives. United States v. Bruno, 2 Cir.

1939, 105 F.2d 921, 922, rev’d on other

grounds, 1939, 308 U.S. 287, 60 S.Ct. 198,

84 L.Ed. 257; see United States v. Papa,

2 Cir. 1976, 583 F.2d 815, 820-821, cert.

denied, 1976, 429 U.S. 961, 97 S.Ct. 387,

50 L.Ed.2d 329. See also United States

v. Morrow, 5 Cir. 1976, 537 F.2d 120, 126,

cert. denied sub. nom., 430 U.S. 956, 97

S.Ct. 1602, 51 L.Ed.2d 806.

[41] Had the distribu*:sn scheme suc-

ceeded, Smigowski and Martins could be

held vicariously liable for it because it

was a related objective of the one con-

spiracy. If the conspiracy to distribute

15. According to one commentator:

Whether several offenses are the multiple

objects of a single agreement or the separate

objects of distinct agreements is of consider-

able importance for purposes of multiple

punishment and double jeopardy, since gen-

erally there can be only one conspiracy con-

viction when there has been only one agree-

ment. Assuming, however, that the prose-

cution is able to show separate agreements

to each of the objects, it does not seem that

liability for several conspiracies must neces-

sarily follow. When two men who have

agreed to commit a rape later agree to com-

mit a burglary, there is a new object dimen-

sion and hence strictly speaking a new

agreement. If the first crime has been com-

UNITED STATES v. RODRIGUEZ

were a completely separate offense from

the conspiracy to import, then, even had

the conspiracy to distribute been success-

ful, Smigowski and Martins could not be

convicted of participation in it by virtue

of the joinder in the agreement to im-

port. In some circumstances, however,

that very joinder in an agreement to

reach an illicit objective (itself part of

the conspiracy to reach a larger but en-

compassing objective) renders the con-

spirator liable for objectives he did not

himself concur in. United States v. Bru-

no, supra, and progeny. Here, the con-

spiracy did not succeed; Smigowski and

Martins were charged merely with mak-

ing an agreement that in fact was abort-

ed. Therefore, the evidence was not suf-

ficient to make a jury case on the al-

leged conspiracy to distribute. The two

conspiracies were not separate crimes for

double jeopardy purposes because they

embraced but one ultimate overall goal.

The commission, or even the attempted

commission, of several offenses consti-

tutes several crimes, but one agreement

‘to Violate a number of laws remains but

one crime if it is charged merely as a

conspiracy and not as a substantive of-

fense.

pleted, and the parties are no longer united

by their adherence to a common undertaking

when the second is agreed to, the old group-

ing dangerous to society has been dissolved,

and the new agreement creates a new one

. . But when the second object is

agreed to before the attainment of the first,

it seems that this new agreement should be

disregarded since no new grouping is creat-

ed by it since the law does not

punish separately for the multiple objects of

a single agreement, punishment for both

agreements in this case tends to place a pre-

mium upon foresight in crime.

Developments—Conspiracy, 72 Harv.L.Rev.

920, 930 (1959).

2la

UNITED STATES v. RODRIGUEZ

{42} Of course, there may also be two

or more agreements in a given case and

each may violate different, or identical,

conspiracy statutes. See generally Note,

Resolution of the Multiple Conspiracies

Issue Via a “Nature of the Enterprise”

Analysis: The Resurrection of Agree-

ment, 42 Brooklyn L.Rev. 243 (1975).

Distinguishing between one overall con-

spiracy and several separate conspiracies

is “a frustrating “und challenging task.”

United States v. Perez, 5 Cir. 1978, 489

F.2d 51, 57, cert. denied, 1974, 417 U.S.

945, 94 S.Ct. 3067, 41 L.Ed.2d 664. But

there is ample jurisprudence to assist in

that task. See, e. g., United States v.

Becker, supra; United States v. Baldar-

rama, supra; United States v. Morrow,

supra; United States v. Perez, supra.

“In essence, the question is what is the

nature of the agreement. If there is one

overall agreement among the various

parties to perform different functions in

order to carry out the objectives of the

conspiracy, then it is one conspiracy.”

United States v. Perez, supra, 489 F.2d

at 62. ;

[43] Here some conspirators may

have agreed only to the importation and

others to importation and distribution,

but all were part of a common scheme

aimed at moving the marijuana from the

fields of Colombia to its consumers. It

is no defense to the one conspiracy theo-

ry that some conspirators were unaware

of the precise role played by others.

United States v. Becker, supra; Blumen-

thal v. United States, 1947, 332 U.S. 539,

68 S.Ct. 248, 92 L.Ed. 154. As we noted

at the outset, Counts I and II are identi-

cal except with respect to the alleged

objective of the agreement and the stat-

873

ute charged to have been violated.

However, we are constrained by Dyar,

supra, and Smith, supra, to conclude that

appellants may be punished twice for

their agreement; hence we affirm the

conviction of appellants Rodriguez and

Albernaz with respect to both counts.

For reasons stated previously, the convic-

tions of appellants Smigowski and Mar-

tin on Count II are reversed and that

count of the indictment is ordered dis-

missed with respect to them.

VIII.

In a separate opinion in United States

v. Cadena, 5 Cir. 1978, slip op. p. 874,

— F.2d , we consider the question

whether the evidence seized during the

search of the freighter was illegally

obtained and was properly’ admitted.

However, this decision does not turn on

the conclusion reached thére. Assuming

arguendo that all evidence obtained

aboard the freighter should have been

suppressed, there were 150 bales of mari-

juana aboard the Catchalot II, and other

overwhelming evidence against each of

the defendants. This conclusion makes

it unnecessary for ‘us to determine

whether the appellants have standing to

.challenge the search of the freighter.

Having carefully reviewed the record,

we are persuaded that appellants’ addi-

tional contentions are without merit.

Accordingly, the judgment is AF-

FIRMED in part, REVERSED in part,

and REMANDED for proceedings con-

sistent with this opinion.

Affirmed in part, reversed in part and

remanded.

22a

United States Court of Appeals

e Ss .

Fifth Circuit

OFFICE OF THE CLERK

TEL. 504-589-6514

Epwarp W. WapsworTH 600 CAMP STREET

CLERK NEW ORLEANS, LA. 70130

November 28, 1978

TO ALL COUNSEL OF RECORD

No. 77-5339 — United States of America vs. Edward

Rodriguez, a/k/a Rick, Et Al.

Dear Counsel:

Enclosed is a copy of an order entered by the Court on its

own motion directing that this case be reheard en banc with

oral argument on a date thereafter to be fixed.

However, the court’s consideration of the case en banc is

limited to the following question: |

If the same agreement is charged as a violation of both 21

USC §846 and 21 USC §963, and the defendants are con-

victed of both offenses, may separate sentences be im-

posed for each offense? This question is discussed in Part

VII of the panel opinion.

23a

Please prepare your supplemental briefs and oral argument

accordingly. Ancillary to this question, you may wish to com-

ment on whether, as to Rodriguez and Albernaz, there was

proof of a single conspiracy violating both statutes or two

separate conspiracies. In order to preserve your right as to

other issues in the case, the time for filing a petition for panel

rehearing thereof is being extended for a period of fourteen

(14) days from this date.

Pursuant to the court’s direction for the Clerk to set a brief-

ing schedule for the filing of supplemental briefs, appellants

may have until December 13, 1978 for the filing of a supple-

mental brief, with opposing counsel to have until December

27, 1978. These dates are the dates on which the briefs must

be in the Clerk’s Office and not mailed on that date, because

the case will be orally argued sometime during the week of

January 22, 1979. Therefore, no extensions of time should be

applied for. Counsel should hold themselves available for that

week. Notice of the exact date should be forthcoming thirty

(30) days in advance.

Very truly yours,

EDWARD W. WADSWORTH,

CLERK

By Gitsert F. GANUCHEAU,

Chief Deputy Clerk

24a

In the United States Court of Appeals

for the Fifth Circuit.

No. 77-5339

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE,

versus

EDWARD RODRIGUEZ, a/k/a Rick, THOMAS J.

ALBERNAZ, PETER SMIGOWSKI, anp

WILLIAM JOHN MARTINS,

DEFENDANTS-APPELLANTS.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

(November 20, 1978)

Before Brown, Chief Judge, THoRNBERRY, COLEMAN, GOLD-

BERG, AINSWORTH, GODBOLD, CLARK, RONEyY, GEE,

TyorLaT, Hitt, Fay, RusBin AND VANCE, Circuit Judges.

By THE Court:

A majority of the Judges in active service, on the

Court’s own motion, having determined to have this

case reheard en banc,

25a

It 1s Orperep that this cause shall be reheard by the Court

en banc with oral argument on a date hereafter to be fixed.

The Clerk will specify a briefing schedule for the filing of sup-

plemental briefs.

hy, 59

——

5 a

26a

UNITED STATES

UNITED STATES of America,

Plaintiff-Appellee,

Edward RODRIGUEZ, a/k/a Rick,

Thomas J. Albernaz, Peter Smigow-

ski, and William John Martins, De-

fendants-Appelliants.

No. 77-5339.

United States Court of Appeals,

Fifth Circuit.

Feb. 27, 1980.

Defendants were convicted in the

United States District Court for the

Southern District of Florida, at Miami,

C. Clyde Atkins, Chief Judge, of conspir-

acy to import marijuanxu and conspiracy

to distribute marijuana. They received

dual, consecutive sentences. Upon their

appeal, the Court of Appeals, 585 F.2d

1234, affirmed in part and reversed in

part. Upon granting rehearing en banc,

the Court of Appeals, Brown, Circuit

Judge, held that: (1) provisions of the

Drug Control Act, one prohibiting a con-

spiracy to import a controlled substance

and another prohibiting a conspiracy to

distribute a controlled substance, autho-

rize, in a proper case, the imposition of

consecutive sentences where a conspiracy

with dual objectives is involved, and (2)

simultaneous trial and subsequent impo-

sition of consecutive sentences for con-

spiring to achieve different illegal objec-

tives does not violate the double jeopar-

dy clause; specifically, where Congress

intended, in enacting the two conspiracy

provisions of the Drug Control Act, to

permit the district court, in the careful

exercise of its discretion, to impose con-

secutive sentences for convictions of con-

spiring to import a controlled substance

v. RODRIGUEZ 3457

and conspiring to distribute a controlled

substance, convicting and sentencing the

defenda:.t in one proceeding to cumula-

tive punishments does not put the de-

fendant twice in jeopardy.

Affirmed in part, reversed in part

and remanded.

Alvin B. Rubin, Circuit Judge, filed

a dissenting opinion.

1. Statutes S174

Difficult task of defining congres-

sional intent is to be aided by the use of

several tools of statutory construction.

2. Conspiracy @28(3)

Congressional intent underlying the

two specific conspiracy provisions of the

Drug Control Act differed markedly

from that underlying the general con-

spiracy statute. 18 US.C.A. § 371;

Comprehensive Drug. Abuse Prevention

and Control Act of 1970, §§ 406, 1013, 21

U.S.C.A. §§ 846, 963.

3. Conspiracy @=28(3)

Like racketeering or gambling, the

danger to society of a conspiracy to com-

mit a specified narcotics offense or of-

fenses is at least as great as the actual

offense. Comprehensive Drug Abuse

Prevention and Control Act of 1970,

§§ 406, 1013, 21 U.S.C.A. §§ 846, 963.

4. Conspiracy @51l

Cumulative penalties for a conspir-

acy with dual objectives is consistent

with the Drug Control Act’s cumulation

of substantive penalties. Comprehensive

Drug Abuse Prevention and Control Act

of 1970, §§ 406, 1013, 21 U.S.C.A. §§ 846,

963.

27a

5. Criminal Law e 1210

As Congress is predominantly a law-

yers’ body, the Court of Appeals may

attribute to Congress the intent to per-

mit cumulative punishment where sepa-

rate and specific statutes are involved.

Comprehensive Drug Abuse Prevention

and Control Act of 1970, §§ 406, 1013, 21

U.S.C.A. §§ 846, 963.

6. Criminal Law @1210

State of the law of conspiracy at

time of the Drug Control Act’s passage

certairly gave fair warning that sepa-

rate specific conspiracy statutes would

permit the cumulative punishment of a

single conspiracy. Comprehensive Drug

Abuse Prevention and Control Act of

1970, §§ 406, 1013, 21 U.S.C.A. §§ 846,

963.

7. Conspiracy @27

An indictment charging a conspiracy

to violate the Drug Control Act does not

require allegation or proof of an overt

act. Comprehensive Drug Abuse Pre-

vention and Control Act, §§ 406, 1013, 21

U.S.C.A. §§ 846, 963.

8. Conspiracy @28(3)

In respect to the statutes prohibiting

conspiracy to import a controlled sub-

stance and conspiracy to distribute a

controlled substance, it is clear that each

statute requires proof of a common ele-

ment, an agreement; but it is equally

obvious that thereafter commonality

ends; each requires proof of a different

objective of the agreement, one to im-

port, the other to distribute, and this is

true even though the objects of the

agreement may partially overlap. Com-

prehensive Drug Abuse Prevention and

Control Act of 1970, §§ 406, 1013, 21

U.S.C.A. §§ 846, 963.

UNITED STATES v. RODRIGUEZ

9. Criminal Law #1210

Provisions of the Drug Control Act,

one prohibiting a conspiracy to import a

controlled substance and another prohib-

iting a conspiracy to distribute a con-

trolled substance, authorize, in a proper

case, the imposition of consecutive sen-

tences where a conspiracy with dual ob-

jectives is involved. Comprehensive

Drug Abuse Prevention and Control Act

of 1970, §§ 406, 1013, 21 U.S.C.A. §§ 846,

963.

10. Criminal Law @=200(1)

Simultaneous trial and subsequent

imposition of consecutive sentences for

conspiring to achieve different illegal ob-

jectives does not violate the double jeop-

ardy clause; specifically, where Congress

intended, in enacting the two conspiracy

provisions of the Drug Control Act, to

permit the district court, in the careful

exercise of its discretion, to impose con-

secutive sentences for convictions of con-

spiring to import a controlled substance

and conspiring to distribute a controlled

substance, convicting and sentencing the

defendant in one proceeding to cumula-

tive punishments does not put the de-

fendant twice in jeopardy. Comprehen-

sive Drug Abuse Prevention and Control

Act of 1970, §§ 406, 1013, 21 U.S.C.A.

§§ 846, 963; U.S.C.A.Const. Amend. 5.

11. Criminal Law #161

Examination of the interests under-

lying the double jeopardy clause reveals

that its core concern is to protect against

subsequent punishment once one has

been endured and against subsequent

prosecution following acquittal, with

some narrow exceptions. U.S.C.A.Const.

Amend. 5.

28a

UNITED STATES v. RODRIGUEZ

12. Criminal Law #161

Double jeopardy clause precludes

sentencing, in a separate proceeding, a

defendant who has already been sen-

tenced and whose first sentence has not

been overturned. U.S.C.A.Const.

Amend. 5.

13. Criminal Law 161

Basic interests protected by the dou-

ble jeopardy clause are those of repose

and finality. U.S.C.A.Const. Amend. 5.

14. Criminal Law 161

Double jeopardy clause requires only

that courts punish within the limits that

Congress intended; cumulative punish-

ment, when imposed in one proceeding,

or in separate proceedings as a result of

a defendant’s desire to have the proceed-

ings separate, is proper so long as Con-

gress intended to permit such cumulative

punishment. U.S.C.A.Const. Amend. 5.

15. Criminal Law #161

Double jeopardy clause imposes no

limits on Congress’ power to define the

allowable unit of prosecution and punish-

ment, at least so long as all charges are

brought in a single proceeding. U.S.C.A.

Const. Amend. 5.

16. Criminal Law 21213

While Congress could so fragment a

conspiracy that the aggregate punish-

ment becomes cruel and unusual, protec-

tion from that action derives from the

* Judge Goldberg, who participated in the sub-

mission of this case, took Senior status as of

January 31, 1980 and is therefore no longer

qualified to be a member of the Court en banc.

** Judges Kravitch, Frank M. Johnson, Jr., Gar-

za, Henderson, Reaviey, Politz, Hatchett, An-

derson, Randall, Tate, Sam D. Johnson, and

Thomas A. Clark have become members of the

Court since January 23, 1979, when this case

Eighth Amendment, not “he double jeop-

ardy clause. U.S.C.A.Const. Amends. 5,

Appeals from the United States Dis-

trict Court for the Southern District of

Florida,

Before COLEMAN, Chief Judge,

BROWN, GOLDBERG,* AINSWORTH,

GODBOLD, CHARLES CLARK, RO-

NEY, GEE, TJOFLAT, HILL, FAY, RU-

BIN and VANCE, Circuit Judges.°*

JOHN R. BROWN, Circuit Judge:

The seizure on the open seas of mari-

juana being transferred from _ the

freighter Labrador to the Catchalot II

caught a lot more than an enormous

amount of an illegal substance. Not the

least of the catch are the difficult legal

issues of statutory construction and dou-

ble jeopardy which we consider on this

rehearing en banc. The panel in this

case disagreed with prior decisions con-

cerning these issues, but felt constrained

to follow the existing precedent of this

Court. We write today to endorse our

existing precedent.

The issues we address concern only the

consecutive sentences imposed on de-

fendants Rodriguez and Albernaz' for

conspiracy to import marijuana, in viola-

tion of 21 U.S.C.A. §§ 952 & 963, and

conspiracy to distribute marijuana, in vi-

was taken under submission. They do not

wish to participate in the decision.

1. The panel's dispositions with respect to Smi-

gowski and Martins are reaffirmed. Smigow-

ski and Martins stand convicted of violating

only 21 U.S.C.A. § 963. On that count, each

must serve a sentence of three years imprison-

ment and a special parole term of two years.

29a

3460

olation of 21 U.S.C.A. §§ 841 & 846.

Those defendants made an agreement to

import and distribute the marijuana, an

agreement violating two separate and

specific narcotics conspiracy statutes.

We first decide that Congress intended

for both statutes to apply separately and

consecutively to such an agreement.

That conclusion nets us a sharp-toothed

“double jeopardy” shark; but we find

that double jeopardy has little bite

where but one trial occurred and con-

gressional intent is clear. The defend-

ants’ consecutive sentences under two

separate, specific, and narcotics-related

conspiracy statutes are affirmed.?

The facts are set out in the panel opin-

ion, 585 F.2d 12343 (5th Cir.) They show

2. We therefore reaffirm in all respects the pan-

el’s disposition of this case, though not its rea-

soning.

3. Some twenty tons of marijuana, “far more

than the appellants could personally consume

in the course of many lifetimes of furious ef-

fort . . .,” 585 F.2d at 1246, was seized.

Consequently, no question of mere possession

for personal use is involved. See 21 U.S.C.A.

§ 844. The Coast Guard and the Drug En-

forcement Agency seized the marijuana as it

was being off-loaded from the freighter Labra-

dor to the Catchalot II. Thirteen Colombian

seamen aboard the Labrador were tried sepa-

rately and their conspiracy convictions were

affirmed in part and reversed in part in United

States v. Cadena, 585 F.2d 1252 (5th Cir.

1978). The instant case involves four co-can-

spirators—Rodriguez, Albernaz, Smigowski,

and Martins—who arranged the high seas

transaction, and other matters, from within

the United States.

All four were charged in two count indict-

ments. Count I charged conspiracy to import

marijuana. The substantive offense of impor-

tation is proscribed by 21 U.S.C.A. § 952.

Conspiracy to violate § 952 is punishable un-

der 21 U.S.C.A. § 963. Count II charged con-

spiracy to distribute marijuana. Distribution

is proscribed by 21 U.S.C.A. § 841, and con-

spiracy to violate § 841 is proscribed by 21

U.S.C.A. § 846. Each was convicted by a jury

on both counts.

UNITED STATES v. RODRIGUEZ

that defendants Rodriguez and Albernaz

were involved in an agreement with the

objectives of importing marijuana and

then of distributing it domestically. For

that agreement, the defendants were

charged and convicted under two sepa-

rate statutory provisions. They received

consecutive sentences.‘

The statutes involved in this case are

parts of the Comprehensive Drug Abuse

Prevention and Control Act of 1970, Pub.

L.No.91-513, 84 Stat. 1286 (“Drug Con-

trol Act”). Title III of this Act (Sub-

chapter I of Chapter 13 of 21 U.S.C.A.)

(entitled “Importation and Exportation”)

relates to imports and exports of con-

trolled substances. Among its provisions

is 21 U.S.C.A. § 952,5 which defines and

The panel properly found the evidence insuf-

ficient to show the involvement of Smigowski .

and Martins in a conspiracy involving distribu-

tion of the marijuana, once it actually reached

the United States. Their conviction on Count

Il was therefore properly reversed. But Rodri-

guez and Albernaz “perforce had to make

. some arrangements to dispose of their treas-

ure,” 585 F.2d 1247, and those two actually

arranged (without the involvement of Smigow-

ski or Martins) to transport, by means of

Winnebagos, and distribute the marijuana

once it reached shore. The pane! therefore

properly found the evidence sufficient with re-

spect to both counts of the convictions of Ro-

driguez and Albernaz.

4. Rodriguez received consecutive four and

one-half year terms, totaling nine years, as

well as consecutive special parole terms. Al-

bernaz received consecutive three and one-half

year terms, totaling seven years and consecu-

tive special parole terms. The length of the

combined sentences thus exceeds the maxi-

mum five-year sentence under the conspiracy

to distribute count alone, 21 U.S.C.A.

§ 841(>X1B); it also exceeds the maximum

five-year sentence under the conspiracy to im-

port count alone, 21 U.S.C.A. § 960(b)(2).

5. (a) It shall be unlawful to import into the

customs territory of the United States from

any place outside thereof (but within the Unit-

ed States), or to import into the United States

30a

UNITED STATES v. RODRIGUEZ

prescribes the act of unlawful importa-

tion. Title III of the Act (Subchapter II

of Chapter 13 of 21 U.S.C.A.) (entitled

“Control and Enforcement”) relates to

internal prevention and control of drug

abuse. Among its provisions is 21 U.S.

C.A. § 841, which makes it unlawful to

distribute controlled substances domesti-

cally. Each title of the Act contains its

own, identically worded provision prohib-

iting conspiracy to commit any of the

offenses described in that title of the

Act:

Any person who attempts or con-

spires to commit any offense defined

in this subchapter is punishable by im-

prisonment or fine or both which may

not exceed the maximum punishment

prescribed for the offense, the commis-

sion of which was the object of the

attempt or conspiracy.

21 U.S.C.A. §§ 846, 963. Thus, § 963

punishes conspiracy to import marijuana

from any place outside thereof, any controlled

substance in schedule I or II of subchapter | of

this chapter, or any narcotic drug in schedule

Ill, TV, or V of subchapter | of this chapter,

except that—

(1) such amounts of crude opium and coca

leaves as the Attorney General finds to be

necessary to provide for medical, scientific,

or other legitimate purposes, and

(2) such amounts of any controlled sub-

stance in schedule I or Il or any narcotic

drug in schedule III, IV, or V that the Attor-

ney General finds to be necessary to provide

for the medical, scientific, or other legitimate

needs of the United States—

(A) during an emergency in which domestic

supplies of such substance or drug are found

by the Attorney General to be inadequate, or

(B) in any case in which the Attorney Gen-

eral finds that competition among domestic

manufacturers of the controlled substance is

inadequate and will not be rendered ade-

quate by the registration of additional manu-

facturers under section 823 of this title,

may be so imported under such regulations as

the Attorney General shall prescribe. No

crude opium may be so imported for the pur-

3461

and § 846 punishes conspiracy to distrib-

ute marijuana domestically.

The defendants, Rodriguez and Alber-

naz, made an agreement with the dual

objective of importing and then distrib-

uting marijuana domestically. Their

conspiracy therefore violated both of the

conspiracy provisions of the Drug Con-

trol Act. They now contend that the

criminal conspiracy in which they en-

gaged cannot subject them to the dual,

consecutive sentences which they re-

ceived.

I. Congruous Congress

The first question is one of congres-

sional intent, for “it is necessary, follow-

ing [the] practice of avoiding constitu-

tional decisions where possible, to deter-

mine whether Congress intended to sub-

ject the defenc st to multiple penalties

pose of manufacturing heroin or smoking opi-

um. .

Nonnarcotic controlled substances in sched-

ules Ill, IV, or V

(b) It shall be unlawful to import into the

customs territory of the United States from

any place outside thereof (but within the Unit-

ed States), or to import into the United States

from any place outside thereof, any nonnarcot-

ic controlled substance in schedule Ill, IV, or

V, unless such nonnarcotic controlled sub-

stance—

(1) is imported for medical, scientific, or

other legitimate uses, and

(2) is imported pursuant to such notifica-

tion or declaration requirements as the At-

torney General may by regulation prescribe.

6. (a) Except as authorized by this subchapter,

it shall be unlawful for any person knowingly

or intentionally—

(1) to manufacture, distribute, or dispense,

or possess with intent to manufacture, dis-

tribute, or dispense, a controlled substance;

(2) to create, distribute, or dispense, or

possess with intent to distribute or dispense,

a counterfeit substance.

3la

UNITED STATES v. RODRIGUEZ

for the single criminal transaction in

which he engaged.” Simpson v. United

States, 435 U.S. 6, 12, 98 S.Ct. 909, 913,

55 L.Ed.2d 70, 76 (1977).

In Simpson, the Supreme Court dealt

with two statutes, enacted at different

times, proscribing the act of robbing a

bank by using a firearin. The two arm-

ed bank robbers there were convicted in

one trial of violating both statutes and

assessed consecutive sentences. One

statute, 18 U.S.C.A. § 2113(d), was enact-

ed as part of the Bank Robbery Act of

1934, Pub.L.No.235, 48 Stat. 783. That

Act set up a “carefully crafted hierarchy

of penalties,”’ adding five years to the

maximum penalty for bank robbery if a

weapon was used, and increasing the

penalty still further if a kidnapping or

death occurred during a robbery.’ Since

a weapon was used, the robbers received

the enhanced penalty set out in the Bank

7. United States v. Canty, 152 U.S.App.D.C.

103, 117, 469 F.2d 114, 128 (D.C. Cir. 1972). |

8. (d) Whoever, in committing, or in attempting

to commit, any offense defined in subsections

(a) and (b) of this section, assault }any person,

or puts in jeopardy the life of any person by

the use of a dangerous weapon or device, shall

be fined not more than $10,000 or imprisoned

not more than twenty-five years, or both.

(e) Whoever, in committing any offense

defined in this section, or in avoiding or at-

tempting to avoid apprehension for the com-

mission of such offense, or in freeing himself

or attempting to free himself from arrest or

confinement for such offense, kills any person,

or forces any person to accompany him with-

out the consent of such person, shall be im-

prisoned not less than ten years, or punished

by death if the verdict of the jury shall so

direct.

9. Whoever—

(1) uses a firearm to commit any felony

for which he may be prosecuted in a court

of the United States, or

(2) carries a firearm unlawfully during the

commission of any felony for which he may

be prosecuted in a court of the United

States,

Robbery Act, as codified at 18 U.S.C.A.

§ 2118(d). The second statute, 18 U.S.

C.A. § 924(c), was added by floor amend-

ment to the Gun Control Act of 1968,

Pub.L.No.90-618, 82 Stat. 1213. That

statute provided for enhanced punish-

ment whenever any felony was commit-

ted by use of a firearm.’ Convicted un-

der this statute as well, the robbers re-

ceived a second sentence to be served

consecutively.

In order to determine congressional in-

tent, the Supreme Court decided to apply

“several tools of statutory construction

..” 485 U.S. at 12, 98 S.Ct. at

913, 55 L.Ed.2d at 76. The Court used

four tools of construction. The legisla-

tive history was “sparse,” yet it clearly

indicated that the felony firearm statute

was not intended to apply to the bank

robbery statutes.” “(T]he principle that

shall, in addition to the punishment provided

for the commission of such felony, be sen-

tenced to a term of imprisonment for not less

than one year nor more than ten years. In the

case of his second or subsequent conviction

under this subsection, such person shall be

sentenced to a term of imprisonment for not

less than two nor more than twenty-five years

and, notwithstanding any other provision of

law, the court shall not suspend the sentence

in the case of a second or subsequent convic-

tion of such person or give him a probationary

sentence, nor shall the term of imprisonment

imposed under this subsection run concurrent-

ly with any term of imprisonment imposed for

the commission of such felony.

10. First is the legislative history of § 924(c).

That provision, which was enacted as part of

the Gun Control Act of 1968, was not included

in the original Gun Control bili, but was of-

fered as an amendment on the House floor by

Representative Poff. 114 Cong.Rec. 22231

(1968). In his statement immediately follow-

ing his introduction of the amendment, Repre-

sentative Poff observed:

“For the sake of legislative history, it

should be noted that my substitute is not

intended to apply to title 18, sections 111,

32a

UNITED STATES v. RODRIGUEZ

gives precedence to the terms of the

more specific statute where a general

statute and a specific statute speak to

the same concern ....__.. ,”_ id. at 15,

98 S.Ct. at 914, 55 L.Ed.2d at 78, was

also invoked. With its hierarchy of pen-

alties and specific focus, the bank rob-

bery statute was found more specific.

The specificity principle was viewed as a

corollary of a third tool of construction,

the rule of lenity. The Court quoted its

decision in Ladner v. United States":

“‘This policy of lenity means that the

Court will not interpret a federal crimi-

nal statute so as to increase the penalty

that it places on an individual when such

an interpretation can be based on no

more than a guess as to what Congress

intended.’” Id. Finally, the Court

looked at the conduct of the Government

as indicative of the common perception

or the statutes, and found that for sever-

al years the Department of Justice ad-

vised all United States Attorneys not to

prosecute under both § 2113(d) and

§ 924. Id. at 16, 98 S.Ct. at 914, 55

L.Ed.2d at 78. ‘

112, or 113 which already define the penal-

ties for the use of a firearm in assaulting

Officials, with sections 2113 or 2114 concern-

ing armed robberies of the mail or banks,

with section 2231 concerning armed assaults

upon process servers cr with chapter 44

which defines other firearm felonies.” Id. at

22232.

United States v. Simpson, supra, 435 U.S. at

13, 98 S.Ct. at 913, 55 L.Ed.2d at 77 (footnote

omitted).

Il. 358 U.S. 169, 178, 79 S.Ct. 209, 214, 3

L.Ed.2d 199, 205 (1958).

12. The rules of construction are ways of find-

ing out the intent. The actual words used are

important but insufficient. The report of con-

gressional committees may give some clue.

Prior drafts of the statute may show where

meaning was intentionally changed. Bills

presented but not passed may have sume bear-

ing. Words spoken in debate may now be

looked at. Even the conduct of the litigants

may be important in that the failure of the

3463

[1] Simpson's teaching, therefore, is

that the difficult task of divining Con-

gressional intent is to be aided by the

use of several tools of statutory con-

struction. Simpson does not limit the

tools to be used to the four there used.”

Simpson speaks to statutes proscribing

substantive acts, not to conspiracy stat-

utes governing acts of thought and

agreement. Simpson deals with the in-

teraction between a specific and a gener-

al statute, but not with the interaction

between two specific statutes. The con-

trol of the use of firearms has differed

historically and practically from that of

narcotics, so again Simpson is not dispos-

itive. Nor does it address the enactment

of two statutes as a part of one compre-

hensive Act, an Act designed to pull to-

gether widely scattered and disorganized

enactments from years past."

Before beginning ‘a formal analysis of

the construction to be accorded the Drug

Control’ Act, we pause to. examine exist-

ing jurisprudence bearing upon the con-

government to have acted over a period of

time on what it now suggests as the proper

interpretation throws light on the common

meaning. But it is not easy to find the intent

of the legislature.

Levi, An Introduction to Legal Reasoning, 15

U.Chi.L.Rev. 501, 520 (}948).

13. A classic and somewhat cynical inventory

of the toolshed is contained in Llewellyn, Re-

marks on the Theory of Appellate Decision

and the Rules or Canons About How Statutes

Are To Be Construed, 3 Vand.L.Rev. 395

(1950).

14. “The bill revises the entire structure of

criminal penalties involving controlled drugs

.” H.R. No. 91-1444, 91st Cong, 2nd

Sess. (1970) (hereafter cited as House Report),

reprinted in [1970] U.S.Code Cong. & Admin.

News, pp. 4566, 4570 (legislative history of

Drug Control Act).

33a

UNITED STATES v. RODRIGUEZ

spiracy provisions of that Act, 21 U.S.

C.A. §§ 846 & 9638. We perceive two

lines of precedent, neither of which obvi-

ates the need to examine congressional

intent.

The first line begins with Braverman

v. United States, 317 U.S. 49, 63 S.Ct. 99,

87 L.Ed. 28 (1942). There, seven counts

of conspiracy were brought under the

general federal conspiracy statute, § 37

of the Criminal Code, 18 U.S.C. § 88

(now codified at 18 U.S.C.A. § 371).

Each charged a conspiracy to violate a

separate provision of the internal reve-

nue law. Only one conspiratorial agree-

ment, involving a scheme to manufac-

ture, transport, and distribute moonsh-

ine, was shown by the evidence. The

Court held that one agreement to com-

mit seven different statutory offenses

could not be punished by more than a

single penalty under the general conspir-

acy statute:

Since the single continuing agreement,

which is the conspiracy here, thus em-

braces its criminal object, it differs

from successive acts which violate a

15. The panel in the case before us considered

Braverman to state a principle of constitution-

al double jeopardy, 585 F.2d at 1248-49.

Braverman, however, did not mention the Dou-

ble Jeopardy Clause and clearly rested on stat-

utory construction of the general conspiracy

provision. See text Slip op. at 3466-3469, at

—— - —— infra.

16. Braverman remains a limitation on the

Government's ability to fragment a single con-

spiracy under the general conspiracy statute.

E. g., United States v. Tanner, 471 F.2d 128

(7th Cir. 1972); Calvaresi v. United States, 216

F.2d 891 (10th Cir. 1954); United States v.

Cohen, 197 F.2d 26 (3d Cir. 1952).

Braverman did not address the legislative

history of the general conspiracy statute. But

from this omission it should not be inferred

that Braverman did not rest on statutory con-

struction, for the practice of explicitly exam-

ining legislative history was not so prevalent

as it is today. See United States v. Constan-

‘eral conspiracy statute.

single penal statute and from a single

act which violates two statutes.

Td. at 54, 63 S.Ct. at 102, 87 L.Ed. at 28

(emphasis supplied) (citations omitted).

Thus Braverman was clearly limited to

the statutory construction of the general |

conspiracy statute.'*

In United States v. Mori, 444 F.2d 240

(5th Cir.), cert. denied, 404 U.S. 913, 92

S.Ct. 238, 30 L.Ed.2d 187 (1971), this

Court extended Braverman to a situation

involving convictions under the general

conspiracy statute and under a specific

conspiracy statute, 21 U.S.C.A. § 174.

Section 174, now repealed, proscribed

conspiracy to import narcotics. The con-

viction under the general conspiracy

statute was somewhat circular, in that it

was based on the scme substantive crime

which was the object of the § 174 con-

spiracy.'"7. We held in Mori that under

general principles of statutory construc-

tion, the specific nature of the importa-

tion conspiracy statute precluded addi-

tional conviction under the catchall gen-

Id. at 245."

tine, 296 U.S. 287, 298, 56 S.Ct. 223, 228, 80

L.Ed. 233, 240 (1936) (Cardozo, J., dissenting).

17. Clearly only one conspiracy was involved.

Section 174 proscribed both the substantive

act of importing narcotics and conspiracy to

import narcotics. The general conspiracy stat-

ute violation was based on a conspiracy to

violate the Travel Act, 18 U.S.C.A. § 1952.

Section 952 made illegal traveling in foreign

commerce to promote unlawful activity. But

the unlawful activity was the importation of

narcotics in violation of § 174. United States

v. Mori, supra, 444 F.2d at 242.

18. In distinguishing American Tobacco Co. v.

United States, 328 U.S. 781, 66 S.Ct. 1125, 90

L.Ed. 1575 (1946), we stated that:

In the instant case, however, we do not

have two independent criminal conspiracy

statutes. Rather, the defendant herein was

indicted under a specific conspiracy statute

and a general conspiracy statute. Under

34a

UNITED STATES v. RODRIGUEZ

The convictions and concurrent sentences

were vacated and the case remanded for

imposition of sentence on one count.

But cf. United States v. Nathan, 476

F.2d 456, 458-59 (2d Cir.), cert. denied,

414 U.S. 823, 94 S.Ct. 171, 88 L.Ed.2d 56

(1978) (dual sentences upheld where sin-

gle conspiracy violated both § 174, pro-

scribing an importation conspiracy, and

18 U.S.C.A. § 371 (the general conspiracy

statute), as applied to 26 U.S.C.A. § 4704

(proscribing certain narcotics possession

conspiracies)).

Without any discussion of congression-

al intent (or double jeopardy), the Sixth

Circuit in United States v. Adcock, 487

F.2d 637 (1973), became the first to con-

sider dual convictions under the specific

conspiracy statutes of the Drug Control

Act, 21 U.S.C.A. §§ 846 & 963. The

Court held that the evidence established

only one conspiracy and that the defend-

ants could not be sentenced both for con-

spiracy to import and conspiracy to dis-

tribute. The Court cited only Braver-

man and Mori in support of its holding,

and did not address the fact that these

earlier cases dealt with the general con-

spiracy statute. See United States v.

McGowan, 385 F.Supp. 956, 959 n.5 (D.N.

J.1974) (dictum)."®

general principles of statutory constructions,

the catchall provisions of section 371 be-

come subsumed under the particular, specif-

ic provisions of section 174.

444 F.2d at 245.

19. Except for dictum in United States v.

Mayes, 512 F.2d 637, 652 (6th Cir. 1975) (a

general conspiracy statute case), the Sixth Cir-

cuit has since relied upon Adcock in only one

case. In United States v. Fruit, 507 F.2d 194,

195 (1974), that Court held that only one sen-

tence could stand where a single conspiracy

violated the Civil Rights Act's conspiracy stat-

ute, 18 U.S.C.A. § 241 as well as 18 U.S.C.A.

§ 1509, proscribing conspiracy to interfere

with a court order. We have tacitly disagreed.

United States v. Honneus, 508 F.2d

566 (1st Cir. 1974), cert. denied, 421 U.S.

948, 95 S.Ct. 1677, 44 L.Ed.2d 101 (1975),

marks the end of the first line of deci-

sions. There, the First Circuit also in-

voked Braverman and Mori. Three con-

spiracy convictions were involved: (i) 21

U.S.C.A. § 846 (distribution), (ii) 21 U.S.

C.A. § 963 (importation), and (iii) the

general conspiracy statute, 18 U.S.C.A.

§ 371 (for conspiring to smuggle “mer-

chandise” in violation of 18 U.S.C.A.

§ 545). Congressional intent was only

tangentially addressed, as the Court ex-

pressed “doubt that [Congress] meant to

authorize, or could authorize, a court to

impose three punishments for one con-

spiracy.” Id. at 569 (emphasis supplied).

The Court vacated the sentences and re-

manded for imposition of only one sen-

tence.

Decided four: years after Braverman,

American Tobacoo Co. v. United States,

supra, begins the second line of prece-

dent, There, before reaching the central

issue, the Supreme Court decided to

“touch upon another contention which

the petitioners made and which the

government has undertaken to answer.”

328 U.S. at 787, 66 S.Ct. at 1128, 90

L.Ed. at 1582. The contention was that

Braverman laid down an inflexible prohi-

Hayes v. United States, 464 F.2d 1252 (5th Cir.

1972); United States v. Hayes and McMaster,

444 F.2d 472 (Sth Cir.), cert. denied, 404 U.S.

882, 92 S.Ct. 210, 30 L.Ed.2d 163 (1971). Fruit

reinforces the notion that Adcock was decided

without reference to congressional intent,

since Fruit simply stated Adcock’s “one con-

spiracy, ergo one sentence” rule and proceed-

ed to apply it, despite the differences in the

legislation involved.

20. Honneus was summarily followed by the

First Circuit in United States v. Rivera Diaz,

538 F.2d 461, 466 (1976). See also United

States v. Cruz Pagan, 537 F.2d 554, 559 (lst

Cir. 1976) (dictum).

35a

UNITED STATES v. RODRIGUEZ

bition against the criminal conviction of

both conspiracy to restrain trade (in vio-

lation of § 1 of the Sherman Act, 15

U.S.C.A. § 1) and conspiracy to monopo-

lize (in violation of § 2 of the Sherman

Act, 15 U.S.C.A. § 2), where but one

conspiratorial agreement was shown.

The Court disagreed, and refused to ex-

tend Braverman from its interpretation

of the general conspiracy statute to the

different statutory scheme of the Sher-

man Act:

In contrast to the single conspiracy de-

scribed in [Braverman] in separate

counts, all charged under the general

conspiracy statute, § 37, Criminal

Code, 35 Stat. 1096, 18 U.S.C. § 88

{now 18 U.S.C.A. § 371], we have here

separate statutory offenses, one a con-

spiracy in restraint of trade . ._.,

and the other a conspiracy to monopo-

liz . . .. One is made criminal

by § 1 and the other by § 2 of the

Sherman Act.

Id. at 788, 66 S.Ct. at 1128, 90 L.Ed. at

1582 (emphasis supplied).”!

The Ninth Circuit considered the spe-

cific conspiracy statutes before us—21

U.S.C.A. §§ 846 & 963—in United States

v. Marotta, 518 F.2d 681 (1975). The

Court upheld the separate sentences in-

volved by resort to two principles of

21. That Braverman did not establish an in-

flexible rule that all conspiracies which ei-

ther violate separate statutes, or which al-

lege the violation of several statutes as ob-

jects of the agreement, must be treated as a

single offense was suggested in American

Tobacco Co. v. United States, 328 U.S. 781,

787, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946).

Rather, the permissibility of multiple punish-

ments appears to turn upon legislative intent

as divined from the statutory scheme set

forth by Congress. Id. See generally, “De-

velopments in the Law: Criminal Conspir-

acy,” 72 Harv.L.Rev. 921, 963-68 (1959).

United States v. McGowan, supra, 385 F.Supp.

at 959 n.5.

statutory interpretation. First, it looked

to the settled intent of Congress for nar-

cotics legislation prior to the Drug Con-

trol Act: to severely punish narcotics

trafficking by plugging “loopholes” and

turning “ ‘the screw of the criminal ma-

chinery—detection, prosecution and pun-

ishment—tighter and tighter.’” Id. at

685 (quoting Gore v. United States, 357

U.S. 386, 390, 78 S.Ct. 1280, 1283, 2

L.Ed.2d 1405, 1408 (1958)). That intent

was deemed to have carried over to the

enactment of the two specific conspiracy

statutes in the Drug Control Act. The

Court also relied on the existence of two

separate, distinct and specific statutes to

infer that:

. . Congress fully intended to

permit punishing such conspiracies

twice as severely as those which em-

_ braced only one of the specified crimi-

nal objects. Congress has in

effect determined that a conspiracy to

import drugs, with intent to distribute

is twice as serious.as a conspiracy to

import for personal use or a conspiracy

to possess with intent to distribute.

Id. (citation omitted).”

[2] Endorsing and quoting the rea-

soning of the Ninth Circuit in Marotta,

this Court upheld separate punishments

22. See United States v. Ortiz-Martinez, 557

F.2d 214, 217 (9th Cir. 1977) (interpreting Mar-

otta ).

23. The Court distinguished Mori:

We adhere to the reasoning in Mori in so

far as it holds that where specific conspiracy

statutes have been enacted, Congress intend-

ed to replace and not supplement the gener-

al conspiracy statute. However, Mori does

not aid appellant here who was convicted of

violating two specific conspiracy statutes.

Id. at 684.

36a

UNITED STATES v. RODRIGUEZ

under §§ 846 and 963 in United States v.

Houltin, 525 F.2d 948, 951 (1976), vacated

sub nom. Croucher v. United States, 429

U.S. 1034, 97 S.Ct. 725, 50 L.Ed.2d 74

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