# Petition — Albernaz v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 450 U.S. 333

## Text

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,

v.

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,

v.

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.

2
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

3

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-

4

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.

5
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.

6
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?

8
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 _

9

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

10

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

11

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 |

12

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”

13

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.

14

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.

15

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

16

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

17

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

18

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.”

19

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

20

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)),

21

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.

22

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).

23

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:

24

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.

la
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).

2a

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-

3a
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-

4a
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.

5a
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.

I.

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

6a

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.

7a
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.

8a

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

t.

9a
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.

V.

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.

+

a

|.

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, C

[Text truncated at 120,000 characters. The full text is on the page linked above.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2303%3A1. Public record. Not legal advice.