Petition — LEREY BUTLER v. UNITED STATES (Nos. 81-58, 80-2163, 81-80, 81-81)

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In The ALEXANBER L. STEVAS,

CLERK

Supreme Court of the Huited States

*

October Term, 1980

LEROY BUTLER,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

LAWRENCE K. FEITELL

260 Madison Avenue

New York, New York 10016

(212) 532-5700

OZRO THADDEUS WELLS

170 Broadway

New York, New York 10038

(212) 349-6699

Attorneys for Petitioner

QUESTIONS PRESENTED

1. Where petitioner was charged with conspiring

distribute heroin and the proofs showed only that he distributea

non-prohibited pharmaceuticals (mannite and quinine), could

his conviction be affirmed upon a theory not presented at the

trial: namely, that he conspired to aid and abet heroin dealers by

selling them some components necessary to their trade?

2. Was petitioner, in effect, denied a jury trial where the

Court of Appeals enunciated a theory of complicity which was

not charged in the indictment, not presented at the trial, not

given to the jury as a basis for criminal liability, not argued on

the appeal, and which emerged for the first time in the majority

opinion of the Court of Appeals?

3. Where the Court of Appeals majority affirmed the

convictions by making its own finding that there was a

conspiracy to aid and abet heroin distribution, rather than a

simple conspiracy to distribute as charged in the indictment,

does such new determination at the appellate level describe any

known crime? On the facts of this case, is not a “conspiracy to

aid and abet“ actually a “conspiracy to conspire” which. in law.

fails to identify any known crime?

4. Where petitioner and his codefendants were

independently involved in distributing to their own customers

pharmaceuticals such as mannite and quinine, which are not

regulated by the federal drug statute, did the majority in the

Court of Appeals err in finding all of the defendants involved in

a single criminal conspiracy under 21 U.S.C. 5840

5. Petitioner adopts and joins in all other arguments and

contentions, which are not inconsistent with his position herein,

made by defendants below in their petitions in this Court.

ii

STATEMENT PURSUANT TO RULE 21 (.1)(b) LISTING

NAMES OF PARTIES BELOW

In addition to the petitioner herein, Leroy Butler, the names

of the parties in the Court of Appeals for the Second Circuit are

as follows: Leroy Perry, Charles Cameron, Donald Dewees,

Arthur Gibbons and Willie Earl Patterson.

iii

TABLE OF CONTENTS

Questions Presente i

Statement Pursuant to Rule 21(.1)(b) Listing Names of Parties

BROW ccc cccccdcccscccpesctecsresvoesheesoceees ii

Table of Content iii

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Opinion Belohh;ͤnkn q q é |

JUPISdICtiON (osccvccccccvccvosccveveesuseccccsevccvcccs 2

Constitutional Provisions and Statutes Involved .......... 2

Statement of the Case 3

Reasons for Granting the Writ:

I. The majority decision of the Court of Appeals to

sustain the conspiracy convictions by reading into

the indictment an aiding and abetting charge where

that concept was never raised by the government,

nor tried to the jury, nor instructed upon by the trial

court, nor argued by either side on the appeal, is

erroneous. The affirmance on this ground impinges

upon petitioner's right to a trial by jury. ........ 5

II. The finding that the sale of benign ingredients is

violative of the federal drug conspiracy statute is

QITOMGOUE: 60's „ e „ 11

iv

Contents

Page

CIOL v 'nen eee 14

TABLE OF CITATIONS

Cases Cited:

lanelli v. United States, 420 U.S. 770 (197) 6, 7

Jin Fuey Moy v. United States, 253 Fed. R. 213, aff'd, 254

e 10

Nye & Nissen v. United States, 336 U.S. 6ͥãàuunmn—mn 15 8

Pereira v. United States, 347 U.S. 1 (197õ̊Võ 6

United States v. Alvarez, 610 F. 2d 1250 (5 Cir. 1980) 7

United States v. Barnes, 604 F. 2d 11. 12, 13

United States v. Cades, 495 F. 2d 1166 (3 Cir. 1974) ..... 7

United States v. Cambindo, 609 F. 2d 0) 13

United States v. Campbell, 426 F. 2d 547 (2 Cir. 1970)... 6

United States v. Falcone, 109 F. 2d 579 (2d Cir. 1940),

re,, eee 11

United States v. Hyatt, 565 F. 2d 229 (2 Cir. 1977) 7

United States v. Knickerbocker Fur Coat Co., 66 F. 2d 388 10

United States v. Middlebrooks, 618 F. 2d 2733... 0

*

Contents

Page

United States v. Ramsey, 374 F. 2d 192 .......cceeeeeees 10

United States v. Ruffini, 613 F. 2d 408 (2 Cir. 1979) ..... 7

United States v. Walker, 621 F. 2d 163 (5 Cir. 1980) ..... 10

Statutes Cited:

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.. e 12

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BU Mites GLADE): obo re Ro cdccwededecedeapeweveccsccces 2

United States Constitution Cited:

PMOL is ô » » cosveedocsscdprvaccedececde 2, 10

Sein AMONAMON oi ce ecccccccccccccccccccccssccccces 2, 10

APPENDIX

Appendix A — Slip Opinion of the United States Court of

Appeals for the Second Circuitlllte . - la

Appendix B — Correction and Change Sheet ............ 34a

Appendix C — Order Denying Rehearing En Banc ...... 36a

No.

In The

Supreme Court of the United States

*

October Term. 1980

LEROY BUTLER,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

OPINION BELOW

Petitioner prays that a writ of certiorari issue to review the

judgment of the United States Court of Appeals for the Second

Circuit which was entered on the 9th day of February 1981

(Appendix A, infra, la: original slip opinions and subsequent

corrections and changes; see also, advance sheet opinion,

uncorrected, reported at 643 F. 2d 38). Petitioner's application

I. The uncorrected advance sheet opinion set forth at 643 F. 2d 38,

insofar as our arguments on this petition are concerned, does not vary

materially from the final version of the opinion of the Court of Appeals.

2

in the Court of Appeals for a rehearing by the original panel

(Oakes, Van Graafeiland, C. J. J. and Nickerson, D.J.), and for a

rehearing en banc was denied on May 13, 1981 (Appendix

C, 36a). The judgment of the Court of Appeals affirmed the

judgment of conviction entered against the petitioner on

December 21, 1979, after a jury trial in the United States District

Court for the Eastern District of New York (Mishler, U.S.D.J.)

wherein petitioner and five codefendants were found guilty,

under 21 U.S.C. $846 of conspiracy to distribute heroin.

For his part in the conspiracy, petitioner was sentenced to a

term of imprisonment for fifteen (15) years, a special parole term

of ten (10) years, and a fine of $25,000. Petitioner has been in

custody since the date of the jury verdict herein, October 17,

1979, and he is presently serving his sentence.

JURISDICTION

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

§1254(1).

CONSTITUTIONAL PROVISIONS AND _ STATUTES

INVOLVED

The constitutional provisions involved herein are the Fifth

and Sixth Amendments to the United States Constitution. The

statutory provisions are: 18 U.S.C. §2; 21 U.S.C. §§841; 846.

2. The majority decision in the Court of Appeals affirmed the convictions

upon the theory that the defendants, although not guilty of conspiring to

distribute heroin, did conspire to aid and abet heroin dealers by supplying

diluents such as mannite and quinine to them.

3

STATEMENT OF THE CASE

Petitioner and six other defendants who went to trial in the

instant case, were charged with conspiracy to violate the federal

narcotics laws (21 U.S.C. §846) in a one count indictment

unsealed on June 14, 979, in the Eastern District of New York.

The indictment charged that the defendants, during the period

from July 1974 to December 1976, carried out the object of the

conspiracy by distributing heroin? and by distributing quantities

of mannite and quinine to be mixed with heroin. At the trial, the

proofs did not implicate the defendants in the direct

manufacture or direct sale of heroin, but did tend to show that

each defendant received from a single source quantities of

mannite and/or quinine which he in turn sold to his own

customers for use by them as a heroin diluent. In short, the case

as tried revealed that the defendants acted separately as

intermediate wholesalers of unregulated and unscheduled

substances which were ultimately to be incorporated by various

combines and persons unknown into a heroin product suitable

for sale to drug users.

At the trial, it was conceded that neither quinine nor

mannite are substances whose distribution is outlawed by the

federal narcotics statutes. These substances, however, are used in

the drug trade to dilute illegal narcotics thereby rendering them

less potent and more suitable for bodily use.

In this case, a Canadian pharmaceutical distributor caused

substantial quantities of the diluents to be transported to New

York City where they were sold in smaller consignments to the

separate defendants. The defendants, some of whom knew each

other, proceeded to merchandise the diluents to their own

respective customers who. it is surmised, resold or used the

3. This contention was abandoned at the trial.

4

benign powders to “cut” heroin in their own separate and

distinct mills. While evidence was offered to show that petitioner

and some of the other defendants had been active in the heroin

trade, the case as it was finally presented to the jury premised

the liability of the defendants entirely and solely on the theory

that they had conspired to sell diluents with knowledge of their

intended use to be mixed with heroin. In this connection, the

jury was instructed that guilt did not require a finding that the

defendants sold or manufactured heroin; but only that the

defendants acted together to distribute diluents with an

awareness of their ultimate incorporation into the outlawed

heroin product.

The indictment did not charge the defendants on an aiding

and abetting theory. Nor did any instructions to the jury suggest

that culpability in this case was being claimed on the premise of

aiding and abetting, or a conspiracy to aid and abet the

distribution of heroin.

The majority decision rendered by the Court of Appeals

found that the defendants, although not so charged in the

indictment were, by a process of “reading in” of 18 U.S.C. §2,

united in a single conspiracy to aid and abet the distribution of

heroin by providing to diverse heroin dealers the mannite and

quinine necessary to the compounding of their product. The

dissent by Judge Oakes declined to find a single conspiracy

where the substances being dealt in were not themselves

outlawed, and where the diluents were being distributed to

various unknown heroin “operations” which were unrelated to

each other (l6a-17a). Judge Oakes also declined to find a

conspiracy to aid and abet heroin distribution since “[{tJhis was

not the charge under the indictment or the instruction of the

court” (16a). Judge Oakes did, however, find multiple

conspiracies in which there were adequate proofs as to each

conspiracy and no damaging spillover as between conspiracies

except for one defendant not ‘toncerned in this petition.

5

REASONS FOR GRANTING THE WRIT

The majority decision of the Court of Appeals to sustain the

conspiracy convictions by reading into the indictment an aiding

and abetting charge where that concept was never raised by the

government, nor tried to the jury, nor instructed upon by the

trial court, nor argued by either side on the appeal, is erroneous.

The affirmance on this ground impinges upon petitioner's right

to a trial by jury.

The main panel opinion joined in by Judges Van

Graafeiland and Nickerson affirmed the conviction of petitioner

and other defendants on the theory that they conspired to “aid

and abet” the distribution of heroin by agreeing to distribute

diluents knowingly into various heroin networks. As pointed out

in the main decision written by Judge Oakes who, in effect,

articulated the grounds of the majority while disagreeing with

them, the indictment never charged the defendants with

conspiring to aid or abet the distribution of heroin; the

prosecution never presented that theory to the jury or to the

defense, and the trial judge never once suggested to the jury in

its instructions that the defendants conspired to aid and abet in

the distribution of heroin (16a). Neither was the concept of

aiding or abetting raised on the appeal by either side, or in the

oral argument. Judge Oakes, therefore, parted company with the

majority on its findings as aforesaid and chose to affirm on

altogether different grounds; that is, that there were multiple

Kotteakos-type conspiracies, but that the separate proofs did not

spill over ein a prejudicial way (except as to the defendant

Dewees) and there was legally sufficient proof to sustain the

convictions of those seen as having been involved in the two

separate conspiracies which he was able to discern. While we do

not agree with Judge Oakes, even as to his conclusion that the

6

sale of benign ingredients to various heroin dealers constituted

multiple conspiracies, we address ourselves to the deficiencies in

the majority view based as it is on the theory of a conspiracy 10

aid and abet in the distribution of heroin (emphasis added).

Notwithstanding the confidence of the majority that there

exists such a crime as a “conspiracy to aid and abet”, we

contend that such a formulation is redundant, non sequitur. and

not based upon any cases cited in the majority opinion which

have even remotely discussed the issue. The hallmark of a

conspiracy is the illicit agreement [/anelli v. United States, 420

U.S. 770, fn. 10 (1975)]. A conspiracy “to aid and abet”

necessarily stamps claimed accessorial conduct with the same

element of concert or agreement which characterizes an ordinary

conspiracy. The construct — a conspiracy to aid and abet” —

therefore, in effect, proposes the anomaly of a conspiracy to

conspire. Such a theory of criminal liability is nonexistent.

Ordinarily, there is no need to prove an agreement where

aiding and abetting is concerned [Pereira v. United States, 347

U.S. 1, 11 (1974)]. Where, however, as in this unusual case, the

appellate court has engrafted onto the claimed conspiracy the

more particular purpose to “aid and abet“, the normal

distinction between the two concepts becomes obliterated. The

concept of concert and prior agreement suffuses the new entirety

and a conspiracy to conspire seems to be the only logical

offspring of this wholly unconventional union of conspiracy and

aiding and abetting. In this connection, it should not be

overlooked that aiding and abetting under 18 U.S.C. §2 is nota

crime; but merely makes one punishable as a principal where

one assists in the commission of a substantive crime [United

States v. Campbell, 426 F. 2d 547 (2 Cir. 1970) ] Agreeing with

others to act together as accessories is all that conspiring to aid

and abet appears to mean and we, frankly, see no difference in

this formulation from what the word “conspiracy”. by itself,

7

connotes in law. The coinage of the Court of Appeals is, thus,

meaningless and seeks only to salvage a conviction of petitioner

which that court found wanting in law when styled as a simple

conspiracy to distribute heroin. On this ground alone, the

worthiness of a grant of certiorari is evident.

Joinder of the aiding and abetting concept to that of

conspiracy supposes a union of ideas that have historically been

at odds [see United States v. Alvarez, 610 F. 2d 1250, 1254 fn. 3

(5 Cir. 1980)]. Insofar as conspiracy is concerned, there is no

requirement that the target crime of the criminal agreement ever

be consummated [/anelli v. United States, 420 U.S. 770 (1975)].

On the other hand, aiding and abetting is not definitional of a

crime, but merely renders principals of those who assist in the

consummation of a particular offense. Unless the substantive

crime to which the aiding and abetting is claimed to relate is

completed, no aiding and abetting may be found to have

occurred [United States v. Cades, 495 F. 2d 1166 (3 Cir. 1974);

United States v. Hyatt, 565 F. 2d 229 (2 Cir. 1977); United

States v. Alvarez, 610 F. 2d 1250 (5 Cir. 1980); United States v.

Ruffini, 613 F. 2d 408 (2 Cir. 1979)]. The pairing of conspiracy to

aiding and abetting thus produces an immediate tension born

of this question: if it is a hallmark of conspiracy that

consummation of the substantive crime is irrelevant, and the

opposite is true of aiding and abetting, are not the two concepts

irreconcilable? We contend that the two concepts are

mismatched and mutually repelling —- and this explains both the

utter scarcity of cases involving conspiracy to aid and abet, and

why the Court of Appeals was at a loss to cite a single case in

which the mating of conspiracy (the inchoate crime) to aiding

and abetting is even discussed as a legal phenomenon, much less

explained as to its validity. The eagerness of the Court of

Appeals majority, led by only one regular Court of Appeals

judge, to promote aiding and abetting as a logical conspiratorial

adjunct, deserves serious scrutiny, and the question thus

presented is clearly worthy of some guiding pronouncement

from this Court.

We are also disturbed that the Court of Appeals majority was

satisfied to affirm on a theory never posted in the indictment,

never raised by the government, and never addressed by the trial

court in its instructions (cf. Nye & Nissen v. United States, 336

U.S. 613, 618, 628). Of course, in such a setting, the defense had

no opportunity whatsoever either to try the case against such a

view or to deal with it in any way before either the court on legal

grounds, or before the jury on a factual basis. This constitutes a

denial of petitioner's right to a jury trial on the most vital issue

in this case. Neither were petitioner and his codefendants called

upon to deal with the matter in the very brief oral arguments

permitted on the appeal below. Such a deprivation in a case

involving drastic prison sentences demands, at the least, a

reversal and a new trial.

The main opinion is deficient also in ignoring, as Judge

Oakes would not do, that a single conspiracy cannot be

fashioned out of the distribution of “diluents — legal substances

— which ultimately go out to ‘spokes’ that are the agents of

different heroin conspiracies. See Kotteakos v. United States, 328

U.S. 750...” (17a).

Insofar as the majority perched their view on a theory of

aiding and abetting the object of the conspiracy, Judge Oakes

noted that in an aiding and abetting situaswon “the Government

must show [but did not show] evidence of the particular

4. Unlike the situation in Nye & Nissen, no instructions were given in the

instant case on the meaning of aiding and abetting. Nor was this concept

contrasted to or distinguished from the concept of conspiracy.

9

narcotics operation that the supplier aided. See United States v.

Licursi, 525 F. 2d 1164, 1167 (2d Cir, 1975). . .”. This omission

in the proofs was ignored by the majority in its efforts to salvage

the convictions.

it is also to be noted that the majority opinion below on

aiding and abetting was satisfied that a specific omission to

charge 18 U.S.C. §2 in an indictment can be overcome by mere

implication, that is, by “reading in” by the court of those words

if it so desires. The cases cited by the majority on this point (13a)

deal only with substantive offenses, and not with the crime of

conspiracy, thus making this case a novelty on still other

grounds than the ‘novelty’ explicitly admitted in the decision

below (3a). Even if this were a distinction without a difference,

the seeming extent of the permissible reconstruction by

implication should be only to permit “aiding and abetting of a

conspiracy”, (rather than “conspiracy to aid and abet”), for it is

the crime of “conspiracy” which was charged in the indictment.

The implication, or reading in, of aiding and abetting, where

allowed, would be as a modifier only for the main charge of

conspiracy; and, there is no authority for reading in, or

implicating, the theory of aiding and abetting as to the

substantive objective of the conspiracy.

The majority below was otherwise clear that the injection of

the concept of “aiding and abetting of a conspiracy” would be to

no avail in proving membership in a conspiracy under the rule

enunciated in United States v. Middlebrooks, 618 F. 2d 273,

278-279. One must consciously intend to be a member of a

conspiracy—and that requirement is not satisfied merely by an

implication that by certain acts a defendant has aided and

abetted a conspiracy. In this completely novel case the Court of

Appeals in effect denied the defendants a jury trial on the issue

of aiding and abetting and chose to read 18 U.S.C. §2 into the

10

case—at the appellate level not as to the crime charged in the

indictment, but as to the object or purpose for which the crime

(conspiracy) was entered into.

In connection with the foregoing, it is also worthy of serious

note that the cases involving “reading in” of the concept of

aiding and abetting relied upon by the Court of Appeals do nor

appear to take place at the appellate level in the first instance,

but rather in the trial court where the new concept of criminal

responsibility could still be dealt with, and opposed by counsel,

both on the law and the facts [i.e., United States v. Walker, 621

F. 2d 163, 165-166 (5 Cir. 1980); United States v. Ramsey, 374

F. 2d 192, 196]. Indeed, in the two other cases relied upon by the

panel below it is also seen that the explicit theory and facts

showing aiding and abetting were set forth in the indictment (Jin

Fuey Moy v. United States, 253 Fed. R. 213, aff'd, 254 U.S. 189;

United States v. Knickerbocker Fur Coat Co., 66 F. 2d 388,

390).

Against this background, it is clear that the majority

decision in this case on the aiding and abetting theory is a

complete novelty in which Judge Oakes refused to participate --

and that the decision below improperly deprived the defendants

of a jury trial since the factual basis for the affirmance was in no

way set forth in the indictment or presented to the jury or

referred to by the government at any stage of the proceedings

including the appeal itself. (United States Constitution,

Amendments Five and Six).

The finding that the sale of benign ingredients is violative of

the federal drug conspiracy statute is erroneous.

The majority opinion below recognizes that,

notwithstanding the ‘black letter’ of the indictment which

charges a conspiracy to sell heroin, the evidence at trial, and the

court’s instructions, nonetheless portrayed this case as one where

the defendants did no more than distribute mannite and quinine

to their respective customers whose known purpose was to

combine these diluents with heroin acquired elsewhere for

ultimate street distribution. We contend that the panel below has

erred on the facts shown in this case in treating mannite and

quinine as subject matter coming within the conspiracy

provision of the federal drug statute (21 U.S.C. §846). We urge

this construction based upon the fact that these substances are

not outlawed by federal drug schedules and because the

defendants herein acted separately to sell their respective

customers mannite and quinine — there being no common pool

of heroin involved nor any connection between the diverse

buyers who utilized these mixes. [See United States v. Falcone,

109 F. 2d 579 (2d Cir. 1940), aff'd, 311 U.S. 205 (1940).]

The Court of Appeals below overlooked the fact that the

sale or distribution of diluents, such as mannite and quinine, is

not outlawed either by 21 U.S.C. §841 or by the drug schedules

provided for under that section. The court below similarly

overlooked the fact that 21 U.S.C. §846, which deals with

conspiracy, is a provision whose scope is specifically limited by

the parameters of $841 — the substantive crime section relating

to drug distribution or sale. In short, if substantive conduct is

not proscribed by §841, the section dealing with conspiracy

(8846) should not transmute such inactionable conduct into a

conspiratorial crime.

12

In this case of first impression, the Court of Appeals also

overlooked the fact that Congress has repeatedly refused to

outlaw sales of mannite or quinine even though such items are

knowingly sold for the purpose of being communited with

heroin. On this subject we specifically advert to that part of our

original appendix in the Court of Appeals (A325-A327), which

illustrates the refusal of Congress to regulate diluents (17a fn. 9).

Likewise, we think it crucial that although the attorney general

has broad power to enumerate and outlaw drug precursors (21

U.S.C. §811), he has never chosen to do so as regards the

substances in this case (quinine and mannite).

The Court of Appeals observed in its opinion that one can

become a member of “a heroin conspiracy merely by

supplying diluent chemicals to it. See United States v. Barnes,

604 F. 2d 121, 154-155... cert. den. (16a). We do not

quarrel with the suggestion that a supplier of a vital chemical

ingredient to a particular heroin conspiracy, by his action,

arguably joins that particular conspiracy. We do contend,

however, that in this case no defendant was accused in the

indictment or at trial of being a coconspirator within any

particular heroin combine or any group of drug combines by

virtue of supplying ‘mix’ powders to any of them. In the instant

case, in the Court of Appeals, each defendant was said

additionally to be a coconspirator of the other in an overall

plan on their part to service a multitude of unrelated heroin

dealers who were neither defendants in this case nor

denominated as coconspirators with the defendants on trial. In

the Barnes case, supra, the lodestone of criminality affecting the

diluent supplier was the controlled narcotic being worked upon

in the particular combine to which he supplied the mixer. In the

instant case, each defendant, although distant from his

codefendants’ customers or codefendants’ particular heroin

fabricator, was, in effect, found by the majority to be infected by

the criminal activities of that collateral or distant conspiracy.

13

What the majority panel opinion failed to discuss, however, is

how a particular seller of mannite who has had no dealings

whatsoever with various separate and distinct heroin

conspiracies can or should be viewed as a confederate in all

those enterprises. The assumption is simply made, ipse dixit,

that the criminal polarity of each particular heroin conspiracy

radiates beyond its discrete membership (including its particular

mannite supplier) to every other mannite supplier dependent

upon the same source of diluent. The logic of Barnes, which

served in that case to endow a benign mixer with vital criminal

effect under the drug laws, actually, has no bearing in this case.

A particular defendant's complicity in selling mannite to a

separate heroin conspiracy does not, in logic, fasten upon each

and every mannite-selling associate a membership in every

separate and distinct heroin conspiracy which is a recipient of

mannite, originating several steps back, from a single source. To

conclude otherwise, as the court below did, was to erase the line

of demarcation separating each separate heroin ring, and to

bring each group of conspirators under one umbrella as a grand

convention of coconspirators including among all others each

and every separate purveyor of mannite. A conclusion of this

sort renders the concept of conspiracy inoperable as a working

device by which to define the parameters and membership of a

drug conspiracy. The decision of the Court of Appeals in United

States v. Cambindo, 609 F. 2d 603, signals that not every

common circumstance affecting a group of persons diversely

engaged in the drug trade serves to unite them in a

conspiratorial way. Lacking, as this case clearly does, a common

pool of narcotic drugs or a singular identifiable common source

of heroin, which are the typical hallmarks of the decided

conspiracy cases, there could be no common conspiracy uniting

all the defendants.‘

5. Judge Oakes, as a minority, clearly shared this view with defendants

(17a-18a).

14

We thus hope to bring before this Court, the realization

that the majority decision below extends the high water mark of

conspiratorial complicity in drug cases much further than justice

or logic should allow.

CONCLUSION

It is respectfully requested that the petition for a writ of

certiorari should be granted.

Respectfully submitted,

LAWRENCE K. FEITELL

OZRO T. WELLS

Attorneys for Petitioner

—

* na * 1

ry N M

ree CPR me et ee

APPENDIX

APPENDIX A — SLIP OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE SECOND

CIRCUIT

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

~~

Nos. 783, 997, 998, 999, 1051, 1052

—September Term, 1979

(Argued June 16,1980 Decided February 9, 1981)

Docket Nos. 79-1407, 79-1456, 79-1458, 79-1477,

79-1486, 79-1496

—

UNITED STATES of AMERICA,

Appellee,

— V.—

LEROY PERRVY. LEROY BUTLER, CHARLES CAMERON,

DONALD DEWEES, ARTHUR GIBBONS, and WILLIE

EARL PATTERSON,

Appellants.

*

Before:

OAKES and VAN GRAAFEILAND, Circuit Judges,

and NICKERSON, District Judge.“

*

Appeals from judgments entered in the United

States District Court for the Eastern District of New

York, Jacob Mishler, Judge, convicting appellants

after a jury trial of conspiring to distribute heroin in

violation of 21 U.S.C. § 841(a)(1). Held that appel-

Ot the Eastern District of New York, sitting by designation.

6749

2a

Appendix A

lants were properly convicted under 21 U.S.C. § 846

for conspiring to violate 21 U.S.C. § 841 by aiding

and abetting the distribution of heroin and that other

grounds for reversal urged by appellants were either

properly dealt with by the district judge or harmless

error.

Convictions affirmed.

—

JEROME H. FIELD, Brooklyn, N. V., for Ap-

pellant Leroy Perry.

LAWRENCE K. FEITELL. New York, N.Y.

(Ozro T. Wells, New York, N.Y., on the

brief), for Appellant Leroy Butler.

LAWRENCE K. FEITELL, New York, N. V., for

Appellant Charles Cameron.

IRVING PERL, New York, N.Y., for Appel-

lant Donald Dewees.

MARGUERITE SPENCER HINES. New York,

N.Y., for Appellant Arthur Gibbons.

PETER J. MALONEY, New York, N.Y.

(Harold B. Foner, Brooklyn, N.Y., on

the brief), for Appellant Willie Earl

Patterson.

LAURENCE A. URGENSON, Assistant United

States Attorney (Edward R. Korman,

United States Attorney for the East-

ern District of New York, Harvey M.

Stone, Victor J. Rocco, Assistant

United States Attorneys, on the brief),

for Appellee.

*

6750

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Appendix A

OAKES, Circuit Judge:

This case, dealing with the Comprehensive Drug

Abuse Prevention and Control Act of 1970, 21 U.S.C.

§§ 841(a)(1), 846, is here on appeal from judgments of

conviction in the United States District Court for the

Eastern District of New York, Jacob Mishler, Judge.

This appeal presents a novel question—whether mem-

bers of a single distribution network for substances

(mannite and quinine), which are themselves legal

uncontrolled but which are used as agents for cutting

heroin, can be prosecuted for one conspiracy by vir-

tue of their common source, their knowledge of one

another’s position in the network, and their intent

that the uncontrolled substances would be used as

cutting agents, despite the fact that the conspirators

were simultaneously involved in different indepen-

dent networks which distributed the illegal element,

heroin. Put another way, where the raw heroin util-

ized for manufacture of the final street product did

not come from a common source or from a new

common pool, may there be conspiratorial liability for

selling uncontrolled dilutant compounds to the dif-

ferent and, so far as appears, unconnected heroin

dealers? My colleagues affirm on the basis that appel-

lants were properly convicted under 21 U.S.C. § 846

for conspiracy to violate 21 U.S.C. § 841 by aiding

and abetting the distribution of heroin.' I disagree,

1 The appellants were sentenced as follows:

On December 7, 1979, appellant Willie Earl Patterson was

sentenced to a prison term of seven years, a special parole term of

five years, fined $10,000. Appellant Charles Cameron was

sentenced to a prison term of five years and a special parole term

of five years. court suspended imposition of sentence upon

appellant Leroy Perry and imposed a five-year term of probation

to run concurrently with a special parole term imposed on May

6751

4a

Appendix A

but because two of the principal alleged coconspira-

tors were themselves substantial heroin dealers I

would hold that any error as to them (and their

respective confederates) was harmless. I would, how-

ever, reverse as to appellant Donald Dewees.

FACTS

The facts need not be spelled out in great detail.

One Canadian pharmaceutical source of mannite and

quinine, Joel Merling, sold vast quantities of these

uncontrolled substances which are, and in certain

cases were proven to be, used as heroin cutting

agents, or diluents (although they can be used,

respectively, for laxative or medicinal purposes), to a

New Yorker, Hyman Lieberman. Lieberman stored

the substances in his store on the lower East Side of

Manhattan and resold them with the aid of Israel

(Paddy) Pollack. Pollack was friendly with and had

access to various members of the black community in

Harlem, including the appellants and other people in

the drug business.

In July of 1974 Lieberman and Pollack employed

Gerald Gewirtz to pick up and unload incoming ship-

ments of mannite and quinine, and to make deliveries

11, 1978, in the Southern District of New York, see United States

8 602 F. 2d 1044 (2d Cir.), cert. denied, 444 U.S. 950

( J.

On December 14. 1979. appellant Arthur Gibbons was sen-

tenced to a prison term of thirteen years, five months, and a

special term of life to run concurrently with a sentence

on May 9, 1978, in the Southern District of New York,

see Gibbons, supra.

On December 21, 1979, appellant Leroy Butler was sentenced to

prison term of fifteen years, a special parole term of ten years,

and fined $25,000. Appellant Donald Dewees was sentenced to a

prison term of eight years and a special parole term of twelve

5

6752

Sa

Appendix A

to Pollack’s customers. Gewirtz, apprehended on

another charge in June 1976, became an informant

and thereafter for six months made deliveries of some

seventy-four boxes of mannite weighing twenty

pounds each to appellants, their apartments, their

vehicles, their stores or shops, and, in the case of

Leroy Butler, his New Jersey home. These deliveries

were monitored, that is, they were under police sur-

veillance. Sales prices to appellants totaled tens of

thousands of dollars, and credit was extensively used.

Gewirtz testified as to heavy mannite-quinine traffic

and his deliveries in late 1976 were substantiated by

photographs and tape recordings.

The other chief Government witness was Frank

Lucas, the well-known Harlem drug trafficker who is

currently serving consecutive federal and state prison

terms totaling seventy years. Lucas testified as to

transactions with appellant Butler throughout 1974

in which Butler gave him mannite and quinine in

exchange for heroin. These transactions took place at

the Audubon Garage in Washington Heights. The

garage was owned by a corporation in which Butler

was a stockholder and on behalf of which appellant

Arthur Gibbons at one point served as a leasing

agent. Lucas on occasion played cards with Butler

and Pollack at the Audubon Garage, and Gewirtz

made a number of mannite-quinine deliveries there.

Lucas's and Butler's dealings were arranged during

meetings either at a Harlem social club or at the

Bridge Apartments (located across the street from

the Audubon Garage) where Butler had an apartment

and where, from time to time, Gewirtz also brought

mannite and quinine to Butler or to Willie Earl Pat-

terson. Lucas testified to three sales of heroin to

6753

6a

Appendix A

Butler in 1974: one in late spring or early summer of a

half kilo paid for by Butler with $60,000 and an

amount of mannite and quinine; a second in mid-sum-

mer of a half kilo delivered to Butler at the Bridge

Apartments; and a third sale in late 1974 of a half

kilo paid for in cash and cut.“

Lucas also testified to appellant Charles Cameron's

association with Butler, as well as Cameron’s own

statements about delivering bundles (packages

containing fifty-five bags of heroin) for Butler, later

distributing them in Washington, D.C., and Miami,

and meeting with a source for heroin passingly famil-

iar to regular readers of Second Circuit opinions.’ In

addition, Gewirtz testified that Pollack told him that

Cameron was a heroin dealer whose payment was

guaranteed by Butler and to whom Pollack sold as a

favor to Butler, thus tying Cameron to Butler during

the period of the indictment. Cameron himself also

stipulated that he received three boxes of mannite in

1976 intending to sell and distribute it with knowl-

edge and intent that it would be mixed with heroin.

Lucas further testified to purchases of mannite and

quinine from appellant Donald Dewees and his sale to

Dewees of an eighth of a kilo of heroin in 1974, as well

as Dewees’s complaints about needing higher quality

heroin. The record given no indication, however, that

during the period of the conspiracy Dewees was a

heroin dealer,’ though he was tied to Cameron, who,

2 We refer to Ralph The General Tutino, who appeared among

the dramatis personae in, e.g., United States v. Barnes, 604 F.2d

121 (2d Cir. 1979), cert. denied, 446 U.S. 907 (1980); United States

v. Tramunti, 513 F.2d 1087 (2d Cir.), cert. denied, 423 U.S. 832

(1975).

3 In one conversation, when Gewirtz got too friendly for De-

wees's taste, Dewees stated that he just made pennies and did not

know what his customers did with the mannite.

6754

7a

Appendix 4

immediately after the first delivery to him by Ge-

wirtz, went to one of Dewees's bicycle stores at 125th

Street and Fifth Avenue. Dewees was also linked to

Butler by way of a payment book in Butler's posses-

sion bearing the name Arthur Dewees, Arthur being

appellant's middle name. After his arrest and

Miranda warnings Dewees commented that his arrest

must be for conspiracy because he hadn't made any

moves [i.e., purchases or sales of narcotics] for a long

time.“ And in the course of three deliveries of man-

nite or quinine by Gewirtz, Dewees gave him or

Pollack a total of $20,400 for Pollack or Lieberman.

Appellant Patterson, who owned a variety shop at

125th Street and Fifth Avenue,‘ was even more

closely tied to Butler. On four occasions deliveries

were made to him at the Bridge Apartments garage

between 178th and 179th Streets, across from the

Audubon Garage where Gewirtz had previously de-

livered, and was subsequently to deliver, mannite for

Butler. When stopped on one occasion after leaving

the Bridge Apartments garage, Patterson claimed

that the boxes (of mannite) in his car trunk contained

popcorn. Testifying in his own defense Patterson

conceded that he had known Butler and had been at

Butler's New Jersey home (where various deliveries

were made), though not in 1976, despite the fact that

a detective observed his brown Cadillac there on

October 14, 1976. Patterson also testified to being at

the Butler-owned Audubon Garage (where some de-

liveries were made to Butler), but only to use the

parking facilities.

4 Patterson's variety store apparently was a few doors away from

one of appellant Dewees's bicycle shops.

6755

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Appendix A

Gibbons, who owned Joe's Barbershop and was

himself a street dealer, and Leroy Perry, the old

man who worked for Gibbons, bought large quanti-

ties of mannite and quinine from Pollack for which

Gibbons was often in debt. Gibbons and Perry are

tied if at all to the Butler heroin enterprise only by

the following facts: on one occasion Gewirtz picked

up a bag of quinine from Perry at the Eighth Avenue

and 13lst Street barbershop, which he delivered to-

gether with a box of mannite on an emergency

basis (according to Pollack) to Dewees; Gibbons

stated after his arrest (and Miranda warnings) that

he had bought heroin from Pollack at the Audubon

Garage, well uptown from the barbershop; Gibbons

stipulated that he had leased the Audubon Garage in

1974 on behalf of the 264 Audubon Corporation to

one Ellie Williams and one Isaac Hamilton, indicat-

ing a possible garage relationship between Gibbons

and Butler.’

DISCUSSION

A. Jury Instructions

The appellants object to that portion of the jury

charge quoted in the margin’ on the basis that it

5 Gibbons and Perry also stipulated to separate conversations in

1977 with others relating to heroin or mannite sales. Gibbons's

conversations were with two of his codefendants in United States

. 1 602 F. 2d 1044 (2d Cir.), cert. denied, 444 U.S. 950

.

8 The conspiracy charged in this indictment is limited to the

alleged conspiratorial activity relating to de in manite

[sic] and quinine, and imported by Lieberman and Pollack, and

then sold and distributed by Lieberman, Pollack and Gewirtz

6756

9a

Appendix A

failed to restrict the conspiracy of which they were

accused to a conspiracy whose object was the distri-

bution of heroin.’ Judge Mishler did tell the jury that

‘(t]he conspiracy charged in this indictment is a

conspiracy to deal in heroin."’ He advised the jury

that neither mannite nor quinine was a controlled

substance, and that the charge was conspiracy to

distribute a controlled substance or to possess with

intent to distribute a controlled substance. The court

also repeatedly charged, however, that ‘(t]he con-

spiracy charged in this indictment is limited to the

alleged conspiratorial activity relating to dealing in

manite [sic] and quinine,“ and that the Government

had to prove that the defendants had agreed ‘‘to deal

in manite [sic] and quinine with the intent and with

the knowledge that it was to be used for mixing with

heroin.”

After careful review of the charge as a whole we

essentially agree with appellants’ assertion and con-

to Butler, Patterson, Donald Dewees, Andre Dewees, Arthur

Gibbons, Leroy Perry and Charles Cameron.

This is the conspiracy the government is required to prove.

What the evidence in this case must show. . is that the

members [of the conspiracy] in some way ... came to a

mutual understanding to deal in the manite [sic] and/or quinine

that was exported from Canada... .

The indictment also could be viewed as ambiguous as to the

conspiracy charged. The indictment states that it was part of the

conspiracy both that certain of the defendants and co-conspira-

tors. . . would receive quantities of mannite and quinine to be

mixed with heroin and that various defendants and co-con-

— would — 4 11 — intentionally distribute quantities

heroin. However, we believe that these specifications should

be read solely as alleged as overt acts, and that in any event

porn Mishler's charge to the jury resolved any possible ambi-

ty.

6757

10a

Appendix A

clude that the jury charge centers on the allegation

that the appellants had agreed to distribute diluents

with the intent that they be used in heroin distribu-

tion, rather than on the allegation that they had

agreed directly to distribute heroin. We believe that

the intention on the part of the appellants that their

concerted efforts aid the distribution of heroin de-

fines what the trial judge meant when he said that

the conspiracy charged was a conspiracy to deal in

heroin.“ and that no juror could reasonably have

understood those instructions to mean that in order

to convict the jury had to find that the defendants

were all part of one heroin distribution network. Thus

we conclude, on the basis both of the charge and the

colloquy preceding it, that the defense attorneys were

not misled as to the elements which Judge Mishler

deemed the Government must prove. Having so con-

cluded, we reach the principal question, whether

those elements charged constitute a conspiracy in

violation of 21 U.S.C. § 846.

In addition, the judge properly included in the jury

charge the possibility of multiple conspiracies, in

language which we substantially approved in United

States v. Cambindo Valencia, 609 F.2d 603, 625 (2d

Cir. 1979); United States v. Taylor, 562 F.2d 1345,

1351 (2d Cir.), cert. denied, 432 U.S. 909 (1977); and

United States v. Tramunti, 513 F.2d 1087, 1107 (2d

Cir.), cert. denied, 423 U.S. 832 (1975).

The court charged, to find a defendant guilty you must find

that he was a member of that conspiracy charged in the indict-

ment and not some subsequent conspiracy’ (emphasis added).

The world subsequent was used here in place of the word

other in the charge approved in other cases, but the defendants

did not object to this.

6758

lla

Appendix A

B. Conspiracy

On the key question in the case my colleagues are

of the opinion that appellants were all shown to have

agreed to distribute diluents with the intent that they

be mixed with heroin and distributed by one or more

heroin networks and that this was sufficient to sus-

tain a conviction under 21 U.S.C. § 846 for conspiring

to violate 21 U.S.C. § 841 by aiding and abetting the

distribution of heroin. They hold that the knowing

supply of a raw material necessary for the commis-

sion of a crime by another constitutes aiding and

abetting that crime. Under 18 U.S.C. § 2(a) whoever

„aids, abets, counsels, commands, induces or pro-

cures’’ the commission of a crime is punishable ‘‘as a

principal.“ and under 18 U.S.C. § 2(b) whoever

„causes the commission of a crime is likewise pun-

ishable ‘‘as a principal. While conspiracy is a crime

distinct from the substantive crime which is the

object of the conspiracy, 18 U.S.C. § 2 does not create

a separate crime. It simply makes an aider and abet-

tor a principal, and one who aids and abets a violation

of a statute has violated that statute. Nye & Nissen

v. United States, 336 U.S. 613, 618-20 (1949); United

States v. Oates, 560 F.2d 45, 53-55 (2d Cir. 1977).

They point to other circuits that have affirmed

convictions for conspiracy to aid and abet a crime,

United States v. Marino, 617 F.2d 76, 78 (5th Cir.

1980) (affirming a conviction for unlawfully con-

spiring to aid and abet the crime of bail jumping). or

conspiracy to cause another to commit a crime.

United States v. Giese, 597 F.2d 1170, 1179 (9th Cir.)

(conspiracy to cause others to destroy government

property), cert. denied, 444 U.S. 979 (1979); United

States v. Lupino, 480 F.2d 720, 724 (8th Cir.) (con-

6759

12a

Appendix A

spiracy by at least four individuals to cause one of

them to receive a firearm unlawfully), cert. denied,

414 U.S. 924 (1973); United States v. Lester, 363 F.2d

68, 72-73 (6th Cir. 1966) (conspiracy to violate civil

rights by causing a false arrest), cert. denied, 385 U.S.

1002 (1967). In these cases the conspiracy was a

violation of the general statute, 18 U.S.C. § 371,

making it a crime to conspire ‘‘to commit any offense

against the United States.“ The courts reasoned that

an act made criminal by 18 U.S.C. § 2 is an offense

against the United States and had no difficulty in

finding a conspiracy to commit an inchoate offense.

See also Singer v. United States, 323 U.S. 338 (1945)

(holding as a matter of statutory construction that

members of a conspiracy to aid one of their number to

evade the draft violated the draft statute).

My colleagues point out that there appear to be no

reported cases involving a conspiracy to aid and abet

violations of the drug laws. But they hold to the view

that there is no reason why the result should be

different. This is because 21 U.S.C. § 846 refers to

any conspiracy whose object is to commit any of-

fense defined in this subchapter.’’ The crucial lan-

guage is identical to that used in 18 U.S.C. § 371,

and, they maintain, the congressional purpose to

strengthen remedies against organized drug traffic,

United States v. Bommarito, 524 F.2d 140, 144 (2d

Cir. 1975), hardly suggests a narrower reading.

The conspiracy need not be, their argument runs, to

aid only one identified heroin distribution network.

To show a violation of 18 U.S.C. § 2 it is not neces-

sary to identify any principal at all, provided the

proof shows that the underlying crime was commit-

ted by someone. United States v. Gleason, 616 F.2d 2,

6760

Za

Appendix A

20-21 (2d Cir. 1979), cert. denied, 444 U.S. 1082

(1980), and cases cited. Moreover, a defendant who

simultaneously aids more than one criminal venture

may be found guilty for aiding each. A single con-

spiracy may have more than one criminal object, and

there is no reason why a single conspiracy whose

objects are to aid and abet different heroin distribu-

tors should not be encompassed by 21 U.S.C. § 846.

It is true, my colleagues state, that the indictment

and the jury instructions did not spell out in so many

words that defendants could be found guilty of con-

spiring to aid and abet the distribution of heroin.

Nor were those words mentioned by the prosecutor.

But the precise language, they hold, is unimportant

provided that all the elements necessary to find a

conspiracy to aid and abet were fairly put to the jury.

Certainly, they maintain, the provisions of 18 U.S.C.

§ 2 can be read into an indictment which specifically

charges only a substantive offense. Jin Fuey Moy v.

United States, 254 U.S. 189 (1920); United States v.

Walker, 621 F.2d 163, 165-66 (5th Cir. 1980); United

States v. Knickerbocker Fur Coat Co., 66 F.2d 388,

390 (2d Cir.), cert. denied, 290 U.S. 673 (1933).

To convict a defendant as an aider and abettor the

Government must show only that he in some sort

associate himself with the venture, that he partici-

pate in it as in something that he wishes to bring

about, that he seek by his action to make it succeed.

United States v. Peoni, 100 F.2d 401, 402 (2d Cir.

1938). The elements of the offense are: the commis-

sion of the underlying offense by someone, a volun-

tary act or omission, and a specific intent that such

act or omission promote the success of the underlying

criminal offense.

6761

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Appendix A

In a conspiracy to aid and abet, my colleagues’

position continues, two different specific intents

must be shown: that the individual intentionally

agreed with the other conspirators and that one of

their common objects was an intent to further the

underlying offense. Chief Judge Mishler's charge to

the jury contained both of these elements, and re-

quired the jury to find that the defendants intended

that the diluents be used in the making and distribu-

tion of heroin.

To find such a conspiracy it is, of course, necessary

to show that the defendants have agreed to pursue a

common criminal objective. It is my colleagues’ posi-

tion that as in the case of any other conspiracy

involving a drug related enterprise.“ the agreement

to pursue the objective of aiding several heroin distri-

bution networks can be inferred from each individ-

ual’s knowledge that others were performing related

tasks and his conscious dependence on them for his

own profits. This in turn can be inferred from the

nature of the operation and the individual's place

within it. United States v. Barnes, 604 F.2d 121,

154-55 (2d Cir. 1979), cert. denied, 446 U.S 907 (1980);

United States v. Taylor, 562 F.2d 1345, 1352 (2d Cir.),

cert. denied, 432 U.S. 909 (1977). The jury was en-

titled to draw these inferences, although they may be

less compelling in the case of a diluent distribution

network than in the case of a single network distriv-

uting heroin. It would of course be insufficient to find

merely that different members of a group were each

aiding different heroin distributors. To show a con-

spiracy it is not enough to prove that a group of

individuals had similar criminal aims. Kotteakos v.

United States, 328 U.S. 750 (1946).

6762

15a

Appendix A

The evidence examined in the light most favorable

to the Government is sufficient—in my colleagues

view—to support a verdict finding appellants guilty

of a conspiracy to aid and abet the distribution of

heroin. The existence of a conspiracy was amply

demonstrated by the testimony of Gewirtz as to his

suppliers and deliveries of the diluents and by in-

ference from each customer's constructive knowledge

that other customers and suppliers were involved.

The singularity of the conspiracy is evidenced, my

colleagues maintain, by the single distribution

network and the ties among the various defendants

(particularly the close connections among Butler, Ca-

meron, Patterson and Dewees, and between Perry

and Gibbons), the operation by Pollack, a supplier,

for a time out of Butler's garage, and the emergency

delivery of quinine from Perry to Dewees. That the

appellants’ object and intent was to aid the distribu-

tion of heroin through the distribution of diluents is

evidenced by the connections they individually pos-

sessed to heroin distribution networks, the massive

quantities in which they dealt, and the various stipu-

lations (Cameron) or inculpatory statements (Dewees,

Gibbons, Perry) relating to their knowledge and in-

tent. The particular heroin distribution networks

aided were those of Butler and Gibbons. It is unnec-

essary to show that the conspiracy actually aided any

particular sale of heroin since a conspiracy can be

found though its object has not been achieved.

My colleagues do point to a difference between

punishing an agreement to commit an act intended to

aid another crime (a ‘‘conspiracy to aid and abet)

and imposing conspiratorial liability on one who,

without agreement, merely assists conspirators in

6763

16a

Appendix A

achieving their object (an ‘‘aiding and abetting of a

conspiracy”). While the first is appropriate, they say,

the second is not. United States v. Middlebrooks, 618

F.2d 273, 278-79 (5th Cir.), modified in part, 624 F.2d

36 (5th Cir. 1980). But in this case, they hold, there is

clear evidence that a conspiracy existed whose object

was to aid and abet a crime and that the defendants

intended to assist in bringing about that crime

through their concerted actions.

My own approach is entirely different. I would not

reach the question whether these appellants could

have been found guilty of conspiracy to aid and abet

the distribution of heroin. This was not the charge

under the indictment or the instruction of the court.

Rather, we look to the evidence to determine whether

it was sufficient to submit the issue of single-multiple

conspiracies to the jury, as we said is “‘ordinarily’’ for

the jury in United States v. Armedo-Sarmiento, 545

F.2d 785, 789 (2d Cir. 1976), cert. denied, 430 U.S. 917

(1977).

On the key question in the case I start with the

proposition that an individual, knowing the nature of

the enterprise and the interdependence of its mem-

bers, can become a member of a heroin conspiracy

merely by supplying legal diluent chemicals to it. See

United States v. Barnes, 604 F.2d 121, 154-55 (2d Cir.

1979), cert. denied, 446 U.S. 907 (1980). Presumably

such a supplier could also be convicted of (although

these appellants were not charged with) a substantive

narcotics offense as an aider and abettor under 18

U.S.C. § 2. But in each such case the Government

must show evidence of the particular narcotics opera-

tion that the supplier aided. See United States v.

Licursi, 525 F.2d 1164, 1167 (2d Cir. 1975); Develop-

6764

17a

Appendix A

ments in the Law—Criminal Conspiracy, 72 Harv. L.

Rev. 920, 934 (1959). The question here in my view

then becomes. whether the appellants can be con-

victed for an agreement to distribute uncontrolled

substances’ to various heroin operations.'°

To be sure, there were some horizontal links

among appellants: Perry and Gibbons were associ-

ates, as were Butler, Cameron, and Patterson, and

Perry gave some quinine back to Gewirtz when De-

wees needed it. But it is clear to me that the basic

structure of this enterprise, see United States v.

Cambindo Valencia, 609 F.2d 603, 623 (2d Cir. 1979),

cert. denied, 100 S. Ct. 2163 (1980), is that of a

„spoke conspiracy, see Kotteakos v. United States,

328 U.S. 750 (1946), with diluents going from a cen-

tral source to two or more distributors who operated

independently of one another. The cases dealing with

narcotics conspiracies, however, all involve combina-

tions in which there was a common unlawful ele-

ment—either a controlled dangerous drug coming

from a common source and distributed by a combina-

tion, or a common narcotic pool drawn from various

sources and utilized by the combination. See, e. g.,

United States v. Taylor, 562 F.2d 1345, 1350-54 (2d

Cir.), cert. denied, 432 U.S. 909 (1977); United States

v. Tramunti, 513 F.2d 1087, 1105-07 (2d Cir.), cert.

denied, 423 U.S. 832 (1975). None involves a common

There is some evidence in the legislative history of the Compre-

hensive Drug Abuse Prevention and Control Act of 1970 that

Congress was urged to control diluents, but it did not do so. See

Controlled Dangerous Substances, Narcotics and Drug Control

Laws: Hearings on H.R. 18583 Before the House Comm. on Ways

and Means, 91st Cong., 2d Sess. 329-30 (1970).

10 At the very least, the heroin operations of Butler and Gibbons

were not shown to be the same.

6765

18a

Appendix A

source of diluents and various narcotics networks. A

single conspiracy cannot be constructed in my view

where the source is distributing diluents—legal sub-

stances—which ultimately go out to spokes that

are the agents of different heroin conspiracies. See

Kotteakos v. United States, 328 U.S. 750 (1946) (simi-

larity of illegal purpose of each spoke in dealing with

hub does not constitute a common purpose and a

conspiracy among the spokes).

Thus here, as in United States v. Cambindo Valen-

cia, 609 F.2d 603, 626 (2d Cir. 1979), cert. denied, 100

S. Ct. 2163 (1980), the Government appears to have

presented a series of transactions involving at least

two groups who were, if anything, friendly com-

petitors in the Harlem drug trade, and who were not

fused into a single enterprise despite receiving di-

luents from the same distributor. Although the in-

dictment charges only one conspiracy, the proof

shows more than one. But this variance is not neces-

sarily fatal and does not automatically require rever-

sal. See United States v. Miley, 513 F.2d 1191, 1207-

08 (2d Cir.) (affirming convictions despite variance),

cert. denied, 423 U.S. 842 (1975). The true inquiry

. . is not whether there has been a variance in proof,

but whether there has been such a variance as to

‘affect the substantial rights’ of the accused.” Berger

v. United States, 295 U.S. 78, 82 (1935). It therefore

in my view becomes necessary to inquire, as in Cam-

bindo Valencia, into the possible prejudice against

particular defendants from being tried as members of

a single conspiracy, the strength of the evidence

offered to show the existence of particular conspira-

cies, and the membership of each defendant in one or

more of such conspiracies involving the actual sale of

heroin.

6766

19a

Appendix A

Appellant Butler is readily identifiable as a large-

scale trafficker in heroin over a long period of time.

Gibbons is also clearly the operator of a separate

enterprise. The question, then, is whether the preju-

dice from evidence relating to the discrete Butler

conspiracy spilled over to affect the charge against

Gibbons and his confederate Perry, or vice versa.

Without such prejudicial spillover, there is merely a

variance between the single conspiracy charged and

the two proved at trial, which would not warrant

reversal. Only if prejudicial spillover is shown must a

conviction be reversed. See Cambindo Valencia, 609

F.2d at 628-29; United States v. Bertolotti, 529 F.2d

149, 155-58 (2d Cir. 1975).

On the spillover question I have no problem what-

soever with Butler and his confederate Cameron.

There was substantial evidence that they were

engaged in a joint criminal enterprise involving the

sale of heroin as to which the purchase of diluents

was a necessary preliminary step in the manufacture

of the street product. Butler and Cameron were

operating on a large scale, Cameron sometimes aione

to be sure but often as a lieutenant of Butler.

The evidence is not as clear-cut regarding Gibbons

and Perry. Although Lucas’s testimony—which must

have been quite powerful coming from a substantial

drug dealer himself—strongly indicted Butler and

Cameron, it did not relate at all to Gibbons and

Perry. Nevertheless Gibbons, after being advised of

his constitutional rights, stated to the arresting offi-

cers that he was receiving heroin in eighth of a kilo

quantities from Paddy Pollack, that several of these

transactions took place at the Audubon Garage be-

tween 178th and 179th Streets in Manhattan, that

6767

the heroin would be cut into four or five hundred

quarters, and that he made $12,000 from each eighth

of a kilo of heroin. Without such statements, Gib-

bon’s conviction would have to be reversed in my

view, but with them, it does not.'' I would resist the

temptation, however, to tie the Gibbons enterprise to

Butler through either their common source of di-

luents (the Audubon Garage locale of the Pollack

transactions) or their possible joint interests in the

264 Audubon Corporation which owned the garage.

The question would still remain whether the other

appellants’ convictions may properly be upheld.

Though the question is in a sense academic in the

light of my colleagues’ view, I believe that the appel-

lant Patterson can be tied to the Butler conspiracy.

The fact that deliveries were made to him at the

Bridge Apartments opposite the Audubon Garage is

not necessarily compelling to show a link between

Patterson and Butler. For all that appears the Bridge

Apartments garage was suggested by Pollack. On the

other hand, in testifying in his own defense, Patter-

son conceded that he had known Butler and that he

had been at Butler’s New Jersey home, and the jury

could properly have found that he was observed there

by a detective on October 14, 1976. His veracity was

clearly in question by virtue of his claim, when he was

stopped on one occasion after leaving the Bridge

Apartments garage, that boxes of mannite he had in

the trunk of his car contained popcorn. There was

also ample evidence to the effect that Butler's New

Jersey home was used as a heroin trading center, and

11 Of course this assumes that it be found that Gibbons conspired

with someone else (Perry) to violate 21 U.S.C. S 841(a)(1).

8788

2la

Appendix A

I think the jury could properly infer that Patterson

was connected to what I have termed the Butler

conspiracy, without prejudicial spillover from proof

as to the separate Gibbons conspiracy.

Dewees, too, could be tied to Butler—rather loosely

I say—by way of Butler's payment book bearing

Dewees's name and by the fact that Cameron, imme-

diately after an observed mannite-quinine delivery,

went to one of Dewees's bicycle stores at 125th Street

and Fifth Avenue. But I cannot say that Dewees was

not prejudiced by spillover of the evidence as to

Gibbon's heroin dealings. Therefore I would remand

as to Dewees for a new trial.

As for appellant Perry, who was something more

than a “‘mule’’ but something less perhaps than a

lieutenant for Gibbons, he nevertheless plainly knew,

and indeed he stipulated that he knew, the cut was

to be used in a heroin operation. Since he worked for

Gibbons, the jury could properly infer that he was

involved in Gibbon's heroin operation, and on this

basis I see no prejudicial spillover from evidence

regarding the Butler conspiracy as to Perry. There

remain a number of other points for discussion, how-

ever.

C. Double Jeopardy

Appellants Gibbons and Perry make a double

jeopardy argument based on similar locale and a

three-month time overlap between the conspiracy

charged here and the conspiracy for which they were

previously tried and convicted in the Southern Dis-

trict of New York, see United States v. Gibbons, 602

F.2d 1044 (2d Cir.), cert. denied, 444 U.S. 950 (1979).

But the two indictments charged separate and dis-

6769

22a

Appendix A

tinct crimes. The instant case involves dealing in

mannite and quinine with knowledge and intent that

it be mixed with heroin for distribution, from July

1974 through December 1976. The Southern District

conviction involved a conspiracy in which Gibbons

and Perry served as a source of heroin—

wholesalers — for at least two street sellers of her-

oin (also charged in the Southern District indictment)

from September 30, 1976, through March 2, 1978, a

period essentially subsequent to the termination of

the conspiracy charged in the instant case. See Gib-

bons, 602 F.2d at 1046.

The Southern District case did include evidence of

two incidents involving diluents. but both occurred in

1977, falling outside the Eastern District indictment.

Thus, following the same evidence test—whether

the evidence required to support conviction in one of

the prosecutions would have been sufficient to sup-

port conviction in the other prosecution—and giving

special consideration to the potential for abuse of this

test in the context of conspiracy prosecutions, see

United States v. Papa, 533 F.2d 815, 820 (2d Cir.),

cert. denied, 429 U.S. 961 (1976); United States v.

Bommarito, 524 F.2d 140, 146 (2d Cir. 1975); United

States v. Mallah, 503 F.2d 971, 985-87 (2d Cir. 1974);

cert. denied, 420 U.S. 995 (1975), we hold that the

1974-1976 Eastern District diluent-heroin conspiracy

was a crime distinct from the subsequent 1976-1978

heroin wholesale operation charged in the Southern

District indictment.

D. Search Warrant

Butler argues that evidence seized from his New

Jersey home by officers from New Jersey, from New

6770

23a

Appendix A

York, and from the federal government pursuant to a

New Jersey warrant in June 1979 should have been

suppressed. The articles—cocaine paraphernalia,

guns, and $70,975 in cash found under the mattress

in the master bedroom were introduced as similar

act evidence. The affidavit supporting the warrant,

sworn to by Detective Crowley of the Englewood,

New Jersey, police force, described 1976 incidents at

the Butler house as related by informant Gewirtz. It

then skipped to 1979, describing less direct evidence

that Butler was still in the drug business: television

cameras at the front, side, and rear of the house to

spot surveillance; automobiles (the usual Rolls

Royces and Mercedes Benzes) linked to trafficking in

the driveway or speeding away upon sight of the

officers; and a statement by Mrs. Butler that, ‘‘[t]he

Police know what Leroy is doing at the house, he

pays a lot of people, he conducts his business out of

the house every afternoon.“ She further stated to the

officers that Butler did not live at the house and that

he just came there every day to conduct his business.

Although the affidavit omitted any reference to the

reliability of the informant Gewirtz, the 1976 infor-

mation was sufficiently corroborated by the 1979

events to be considered. See, e.g, United States v.

Rollins, 522 F.2d 160, 164-65 (2d Cir. 1975), cert.

denied, 424 U.S. 918 (1976); United States v. Canes-

tri, 518 F.2d 269, 272-73 (2d Cir. 1975). And staleness

was not a problem because evidence on both sides of

the three-year gap indicated an ongoing narcotics

business.“ See Mapp v. Warden, 531 F.2d 1167,

12 Butler told the searching officers that they must have put [the

money] there.”

6771

24a

Appendix A

1171-72 (2d Cir.), cert. denied, 429 U.S. 982 (1976).

Indeed, when combined with the fact that Butler was

a long-time suspected drug dealer, the 1979 events

alone might have been sufficient to establish probable

cause to believe drugs were on the premises. Bearing

in mind, therefore, the deference accorded to the

magistrate, id. at 1172, we do not reverse his deter-

mination of probable cause to issue the warrant.

Butler also claims that the supporting affidavit

was false in that it referred to Pollack's Mercedes

Benz being at the New Jersey house in May of 1979,

which was after Pollack had absconded, and that

Butler was entitled to a hearing upon motion under

Franks v. Delaware, 438 U.S. 154 (1978), to challenge

the veracity of the affidavit. But this issue was not

raised until after trial and, moreover, the fact that

Pollack may have been a fugitive from a New York

narcotics indictment does not demonstrate that the

officer's observations were mistaken.

E. Similar Acts

Appellants Butler and Cameron contend that the

trial judge improperly admitted evidence of certain

similar acts. Specifically, Butler challenges the admis-

sibility of various items seized during the search of

his home, and Cameron challenges the admission of

some of Lucas's testimony. Even if it were error to

admit the evidence against Butler, on the assumption

that although there was a knowledge or identity

issue presented at trial of the kind justifying admis-

sion of similar acts, this evidence should have been

excluded as more prejudicial than probative, see

United States v. Figueroa, 618 F.2d 934, 939 (2d Cir.

1980), this error was harmless because of the nature

6772

25a

Appendix A

and amount of other evidence establishing Butler's

guilt.

As for Cameron's objection, Lucas’s testimony that

he had had heroin dealings with Cameron in 1969

does present some difficulty. In order to prevent

admission into evidence of a 1975 conviction Ca-

meron had stipulated that he had sold mannite on

three occasions with knowledge of its ultimate use,

thus, he argues, conceding the issue of intent. But

Cameron's defense in this case was that he had not

joined the larger conspiracy charged. Therefore, it

was not knowledge of the use of mannite as a cutting

agent but rather intent to join the Butler heroin

conspiracy that was at issue; and Cameron's stipula-

tion regarding his prior mannite dealings did not

dispose of this point. It may seem difficult to under-

stand how 1969 events are relevant to show that in

1976 Cameron agreed to participate with Butler in a

heroin conspiracy, but Cameron's defense was simple

that he was a little mannite dealer, and the similar act

evidence as to his large-scale 1969 narcotics dealings

with Lucas and Butler contradicted this. Thus, Lu-

cas's testimony bore on whether Cameron was part of

the Butler conspiracy, and the district judge properly

ruled the testimony admissible.

F. Severance

Perry, Patterson, and Dewees complain that they

were prejudiced by the admission against the other

defendants of highly damaging evidence, including

inculpatory statements and stipulations as well as

the testimony on similar acts. Accordingly, they

claim that severance was required. We have consid-

ered and accepted this in Dewee's case. With respect

6773

26a

Appendix A

to the other appellants, however, none of the similar

act evidence was likely, in light of the cautionary

instructions given, to prejudice them. See United

States v. Rosenwasser, 550 F.2d 806, 808 (2d Cir.),

cert. denied, 434 U.S. 825 (1977). And a defendant's

right to confrontation under Bruton v. United States,

391 U.S. 123 (1968), does not come into play unless

the codefendant's admission inculpates the defendant

as well. United States v. Wingate, 520 F.2d 309, 313

(2d Cir. 1975), cert. denied, 423 U.S. 1074 (1976). That

did not occur here.

G. Summation

Cameron and Patterson complain about numerous

remarks during the Government’s summation. Ab-

sent flagrant abuse, they can only object now to

remarks objected to below. United States v. Dibrizzi,

393 F.2d 642, 645-46 (2d Cir. 1968). But when appel-

lants did object below, the court properly gave correc-

tive instructions. Furthermore, in light of the fact

that the defense lawyers attacked the credibility and

honesty of the Government’s case in their closings,

the Government’s statements vouching for witnesses

were understandable if not laudable; and the Govern-

ment’s statements describing the defense's attack as

a desperate. struggling tactic were permissible

rebuttal. See United States v. Praetorius, 622 F.2d

1054, 1060-61 (2d Cir. 1980).

The prosecutor’s closing statement, however, was

close to the line: I submit to you that these defen-

dants and their counsel are completely unable to

explain away their guilt.“ Although a jury might

interpret this statement as a comment on defendants’

refusal to testify, see United States v. Bubar, 567

6774

27a

Appendix A

F.2d 192, 199 (2d Cir.), cert. denied, 434 U.S. 872

(1977), we believe that the trial judge’s curative in-

structions rendered this harmless, see id. at 200.

H. Juror Requesting Librium

Appellants argue for reversal based on a note sent

from one juror to her mother during deliberations,

stating that she was having stomach problems, was

taking tranquilizers, and needed Librium. The same

juror cried when appellant Dewees was convicted.

Appellants question her mental stability. See United

States v. Dioguardi, 492 F.2d 70, 78 (2d Cir.) (verdict

may be set acide only if there is ‘‘clear evidence of a

juror’s incompetence to understand the issues and to

deliberate.), cert. denied, 419 U.S. 873 (1974). Judge

Mishler carefully made a post-verdict inquiry, see

United States v. Moten, 582 F.2d 654, 666 (2d Cir.

1978), and the juror explained that she had cried

when appellant Dewees was found guilty because she

„felt sorry for his brother, who had been a codefen-

dant and was acquitted, and who had wept openly

when the verdict against Donald Dewees was an-

nounced. The juror also recounted that the Librium

referred to in the note to her mother had been pre-

scribed by her physician three years earlier for an

ulcer condition which caused her discomfort during

the trial, and stated that she neither felt disoriented

nor took tranquilizers during the deliberations. Under

these circumstances, and in light of the judge’s own

observations regarding the juror’s demeanor, he quite

properly decided—at least absent any bizarre behav-

ior by the juror—not to permit further interrogation

by counsel of the juror.

6775

28a

Appendix A

I. Investigator's Character Evidence

Appellant Perry argues that the district court im-

properly excluded the testimony of a private investi-

gator hired by his wife, through whom Perry sought

to introduce evidence of his good reputation in the

Harlem community. In the judge’s discretion he

could properly exclude this testimony as hearsay,

because the private investigator was merely going to

testify as to a few conversations he had had with one

of Perry’s coworkers at the barbershop, with the

minister of Perry’s church, and with a laundry pro-

prietor. It is well established that a character witness

must be able to demonstrate his own familiarity with

the defendant’s reputation and his competence to

speak for the community. See Michelson v. United

States, 335 U.S. 469, 478 (1948).

J. Statements Pursuant to Plea Agreement

Appellant Perry also argues that his admission

concerning receipt of mannite and quinine at Joe's

Barbershop was made in connection with his offer to

plead guilty and, therefore, should have been ex-

cluded under Federal Rule of Evidence 410. But when

Perry advised the Government that he would not

plead guilty, he violated his plea agreement, making

it null and void. In the words of the agreement itself,

“[ajny . . . prosecution may be premised upon any

information provided by Leroy Perry during the

course of his cooperation and such information may

be used against Leroy Perry.“ Because Perry's state-

ments were made after the plea argreement had been

negotiated and executed with advice of counsel, and

not as part of an effort to gain further concessions

6776

29a

Appendix A

from the Government, and because the express provi-

sions in the agreement made the statements usable

against Perry, the court below, relying on United

States v. Stirling, 571 F.2d 708, 730-32 (2d Cir.), cert.

denied, 439 U.S. 824 (1978), properly admitted them

into evidence.

K. Statements During Investigative Stop

Appellant Patterson argues that the court should

have suppressed the statement he made when

stopped on June 17, 1976, that the boxes in the trunk

of his car contained popcorn. At trial the Government

introduced evidence that these boxes in fact con-

tained mannite, and offered Patterson's remark as a

false exculpatory statement. The trial court properly

held that the officers—who had previously observed

the loading of boxes of mannite into Gewirtz's car,

had followed Gewirtz to the Bridge Apartments

garage, and had seen Patterson exit the garage

shortly thereafter with what looked like two of the

boxes on his rear seat—had probable cause to believe

that Patterson was involved in a drug operation and,

therefore, could stop his vehicle. In response to the

officers’ request for some identification, Patterson

had opened his trunk to retrieve an article of clothing,

at which time three additional boxes, each similar in

size to the ones Gewirtz had just delivered, became

visible. It was at this point, when the police officers

observed the boxes and asked what was inside them,

that Patterson replied ‘‘popcorn.”’ Because this inves-

tigative stop was based on reasonable suspicion, see

United States v. Tramunti, 513 F.2d 1087, 1104-05

(2d Cir.), cert. denied, 423 U.S. 832 (1975), and the

officers’ request for identification, in connection with

6777

30a

Appendix A

which the boxes of mannite came into plain view, was

permissible, see United States v. Salter, 521 F.2d

1326, 1329 (2d Cir. 1975), Patterson's statement need

not have been excluded from evidence.

L. Patterson's Sentence

Appellant Patterson argues that his sentence was

unduly harsh and was not based upon an accurate

presentence report. His sentence, however—a prison

term of seven years, a fine of $10,000, and a special

parole of five years—was well within the limits pre-

scribed by 21 U.S.C. § 841(b)(1)(A), which specifies a

maximum term of fifteen years, a fine of not more

than $25,000, and a special parole term of at least

three years. Appellant Patterson's argument in es-

sence is that he was dealing only in mannite and not

in heroin. But as we have recounted above, he was

properly found to be a member of a heroin conspiracy;

his sentence for that was not, as he contends, either

cruel and unusual, or unduly harsh; and of course we

cannot, on appeal, review sentences simply to see

whether we would have reached the same result, see

Dorszynski v. United States, 418 U.S. 424, 440-41

(1974).

In connection with Patterson’s presentence report,

the judge struck any information as to Patterson's

alleged heroin dealings which the Government con-

ceded was inaccurate. The judge also stated that he

would disregard certain other matters, called to his

attention by defense counsel, which were allegedly

misleading or irrelevant. Thus Patterson's claim that

his sentence was based on an inaccurate report is

without merit.

6778

3la

Appendix A

M. Presence of DEA Special Agent at Government

Counsel's Table

Appellant Perry argues that the trial court improp-

erly allowed the Government's DEA Special Agent

Rice to remain at the counsel table, despite a request

under Federal Rule of Evidence 615 that he be ex-

cluded from the courtroom. But a Government inves-

tigative agent falls within the exception in Rule

615(2) for ‘‘an officer or employee of a party which is

not a natural person.“ The legislative history of Rule

615 makes it clear that a governmental investigative

agent, even though he is also a witness, may be

designated to sit at the Government counsel's table.

See S. Rep. No. 1277, 93rd Cong., 2d Sess. 26 (1974),

reprinted in [1974] U.S. Code Cong. & Ad. News 7051,

7072-73.

Convictions of all appellants affirmed.

6779

32a

Appendix A

UNITED STATES v. LEROY PERRY, et al.

79-1407 a February 9, 1981

VAN GRAAFEILAND, Circuit Judge (concurring):

I agree with Judge Nickerson that all of the judg-

ments should be affirmed, and I believe it would be

helpful to state briefly why I do.

It is hornbook law that one who aids and abets the

commission of a crime is as responsible for the crime

as if he committed it directly. Nye & Nissen v. United

States, 336 U.S. 613, 618 (1949); United States v.

Molina, 581 F.2d 56, 61 n.8 (2d Cir. 1978); United

States v. Campbell, 426 F.2d 547, 553 (2d Cir. 1970);

18 U.S.C. § 2. Accordingly, a defendant who is in-

dicted as a principal may be convicted on proof that

he was merely an aider and abetter. United States v.

Bommarito, 524 F.2d 140, 145 (2d Cir. 1975); United

States v. Ramsey, 374 F.2d 192, 196 (2d Cir. 1967). So

also, one who is charged with conspiracy to commit

an unlawful act may be convicted if he conspired to

aid and abet the commission of the act. Pereira v.

United States, 347 U.S. 1, 11-12 (1954); United States

v. Valencia, 492 F.2d 1071 (9th Cir. 1974); United

States v. Lester, 363 F.2d 68, 72-73 (6th Cir. 1966),

cert. denied, 385 U.S. 1002 (1967).

Appellants were charged with conspiring to violate

21 U.S.C. § 841(a)(1), which makes it unlawful to

manufacture, distribute, or dispense, or possess

with intent to manufacture, distribute, or dispense, a

controlled substance. The jury quite properly

could have found that appellants aided and abetted

the manufacture and distribution of heoin by furnish-

ing the essential diluents, mannite and quinine, and

8780

33a

Appendix A

thus were members of a drug conspiracy. See United

States v. Wolk, 398 F. Supp. 405, 410 (E.D. Pa. 1975).

Whether there was a single conspiracy or multiple

conspiracies was for the jury under the instructions

correctly given by the district judge. United States v.

Armedo-Sarmiento, 545 F.2d 785, 789 (2d Cir. 1976),

cert. denied, 430 U.S. 917 (1977).

6780A

34a

APPENDIX B — CORRECTION AND CHANGE SHEET

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

United States Courthouse

Foley Square

New York 10007

A. Daniel Fusaro

Clerk

U.S.A. v. Perry September Term, 1979

Docket Nos. 79-1407, et al Decided February 9, 1981

Page 6773, line 13 — delete “Butler heroin”.

Page 6773, line 14 — delete “conspiracy that“ and insert

“Conspiracy charged that” in place thereof.

Page 6773, line 18 — delete “Butler in a” and insert “other

decedants [sic] in the” in place thereof.

Page 6773, line 19 — delete “heroin conspiracy,” and insert

“conspiracy charged,” in place thereof.

Page 6773, line 24 — delete “Butler conspiracy,” and insert

“conspiracy charged,” in place thereof.

Page 6773, 2 bottom lines — delete entirely and insert “claim

that severance was required. White [sic] the author would agree

in respect to Dewees, but him only, my colleagues believe that”

in place thereof.

Page 6774, line | — delete entirely and insert “none of the

similar” in place thereof.

35a

Appendix B

Page 6778, line 17 — delete entirely and insert “properly found

to be a member of the conspiracy charged, in my colleagues’

view, and of a heroin conspiracy, in the author's;“ in place

thereof.

A. DANIEL FUSARO,

Clerk

ADF / hid

36a

APPENDIX C — ORDER DENYING REHEARING EN

BANC

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United States Court of Appeals in

and for the Second Circuit, held at the United States Court

House, in the City of New York, on the 13th day of May, one

thousand nine hundred and eighty-one.

No. 79-1407

79-1456

79-1458

79-1477

79-1486

79-1496

Filed May 13, 1981

A. Daniel Fusaro, Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

VS.

DONALD DEWEES, JOEL MERLING, ARTHUR

GIBBONS, HYMAN LIEBERMAN, LEROY PERRY,

PETER ISRAEL POLLACK, LEROY BUTLER, CLIFFORD

JOSEPH PARAH, W.E. PATTERSON, CHARLES

CAMERON,

Defendants,

37a

Appendix C

LEROY PERRY, ARTHUR GIBBONS, CHARLES

CAMERON, DONALD DEWEES, WILLIE EARL

PATTERSON, LEROY BUTLER,

Defendants-Appellants.

Petitions for rehearing containing suggestions that the

action be reheard in banc having been filed herein by counsel for

the defendants-appellants, Willie Earl Patterson, Leroy Butler,

and Charles Cameron, Arthur Gibbons, Leroy Perry, Donald

Dewees,

Upon consideration by the panel that heard the appeal, it is

Ordered that said petitions for rehearing are DENIED,

Judge James L. Oakes dissenting as to appellant Donald

Dewees,

It is further noted that the suggestions for rehearing in banc

have been transmitted to the judges of the court in regular active

service and to any other judge on the panel that heard the appeal

and that no such judge has requested that a vote be taken

thereon.

s/ A. Daniel Fusaro

A. Daniel Fusaro,

Clerk