Petition — CHARLES CAMERON v. UNITED STATES (Nos. 81-80, 80-2163, 81-58, 81-81)

81-80 Woes

No.

eS Ge Pe a

nasa JUL 19 1981

Supreme Court ofthe Mited States”

+

October Term, 1980

CHARLES CAMERON,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

ARTHUR L. ALEXANDER

AARON J. JAFFE

Attorneys for Petitioner

300 Madison Avenue

New York, New York 10017

(212) 867-1580

5249

, V3, v7

a

QUESTION PRESENTED

Whether an indictment may be altered post conviction,

particularly when the theoretical construct advanced was not

argued by the government, not charged in the indictmeni and

not included in the trial court’s instructions — whether

sanctioning such procedure would be to perimit a post conviction

ambush and render Amendment V a nullity.

iii

TABLE OF CONTENTS

Page

Question Presented .....cccccccccccccccccccccvcccsscecs i

PUREE ccc cece cc cccccssscncccccccvcccccecnccssccccens ii

Table of Contents .ccccccccccccccccccccccccccscccesens iii

Table Of Citations .ciccccccccccccccccccccccccccccccces iv

Opinion Below ..cccccccccccccccccccccccccccsceccccces l

JUPISGICHION ccccccccccccccccccccccccccccceeecccscccees 2

Constitutional and Statutory Provisions Involved ......... 2

Statement of the Case ...cccccccccccccccccccccesccccces 3

Reasons for Granting the Writ:

I. An indictment may not be amended post conviction

by an appellate court, particularly when the

theoretical construct advanced was not argued by the

government, not charged in the indictment and not

included in the trial court’s charge. To sanction such

procedure reduces Amendment V to a nullity. The

procedure, if allowed, amounts to a legal post

conviction ambush, precluding measured advice by

GOUMGEL. cosccccccccccccsccvccccsccecccecccoses 3

iv

Contents

Il. The petitioner adopts those arguments advanced by

the other petitioners where appropriate and

QPOUCRDS. «nc ccccicvcrcccvedesecsceseeseoseases

COMCIUSION ooccvccccvccsccccvcedavecscvccerceccesevecs

TABLE OF CITATIONS

Cases Cited:

Berger v. United States, 295 U.S. 78 (1935) ...ceeeeeeees

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

Nve & Nissen v. United States, 336 U.S. 613 (1949) ......

Page

United States v. Cambindo-Valencia, 609 F. 2d 603 (2d Cir.

1979), cert. denied, 100 S. Ct. 2163 (1980) ...........

United States v. Gleason, 616 F. 2d 20 (2d Cir. 1979), cert.

denied, 444 U.S. 1082 (1980) ..... cece cece cece e eens

United States v. Licursi, 525 F. 2d 1164 (2d Cir. 1975) ...

United States v. Miley, 513 F. 2d 1191 (2d Cir.). cert.

denied, 423 U.S. 842 (1975) ...cccccccccsscccccccees

United States v. Ramsey, 374 F. 2d 192 ......cceeseeees

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

Gented, 4352 U.S. FOD (1977) .vccccccccsccscocccceces

Vv

Contents

Page

United States v. Tramunti, 513 F. 2d 1087 (2d Cir.), cert.

Seeiee GIS Ue. BFE CIOFER ape cdacccdesroacsesscoes 8

United States v. Walker. 621 F. 2d 163 (Sth Cir. 1980) ... 6, 7

Statutes Cited:

Is, yn MA cute dacchaiereees tone ciisbatens 5,7

rib acuahk Us ss aan oenalas hak vakee ys i ae

MNS lta iial ex pant tines base 2, 3.4

REM I ea TS Be a eul sae og 2

United States Constitution Cited:

NS Wide cand od vecrevenedvnctessubet snare i ae

Other Authorities Cited:

Developments in the Law-Criminal Conspiracy, 72 Harv. L.

RAY. Sie CIPS) cavasccevrcrorvdcscevccccbsavdsebecs 7

1970 U.S. Code & Congressional Administrative News, pp.

4566 et seq., re purpose of Public Law 91-513 ....... 5

APPENDIX

Appendix A — Slip Opinion of the United States Court of

Appeals for the Second Circuit .......ssseeeeeeeeees la

vi

Contents

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

Appendix C — Order Denying Rehearing In Banc

No.

Supreme Court of the United States

+

October Term, 1980

CHARLES CAMERON,

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

A copy of the opinion of the United States Court of

Appeals for the Second Circuit decided February 9, 1981. is

annexed hereto as an appendix. An application suggesting that

the Court permit reargument in banc was denied, without

opinion, on May 13, 1981.

2

JURISDICTION

The judgment of conviction was rendered in the United

States District Court for the Eastern District of New York on

December 7, 1979 and the petitioner was sentenced to serve a

term of five (5) years and an additional term of five (5) years of

special parole. The petitioner was convicted of a conspiracy to

violate 21 U.S.C. §§841 and 846.

The order and judgment of affirmance of the United States

Court of Appeals for the Second Circuit is dated February 9,

1981. An application to reargue in banc was denied by the court

on May 13, 1981. The opinion of the United States Court of

Appeals for the Second Circuit is annexed hereto as an appendix

together with the in banc denial.

Jurisdiction to review the judgment in question by certiorari

is conferred by 28 U.S.C. §1254.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The constitutional provision involved is Amendment V of

the United States Constitution:

“No person shall be held to answer for a

capital, or otherwise infamous crime, unless on

presentment or indictment of a Grand Jury,

except in cases arising in the land or navai forces,

or in the Militia, when in actual service in time of

War or public danger: nor shall any person be

subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled in

any criminal case to be a witness against himself,

nor be deprived of life, liberty, or property.

3

without due process of law; nor shall private

property be taken for public use. without just

compensation.”

STATEMENT OF THE CASE

The petitioner relies on the factual presentation contained

in the opinion of the United States Court of Appeals for the

Second Circuit (Appendix A, infra).

REASONS FOR GRANTING THE WRIT

I.

An indictment may not be amended post conviction by an

appellate court, particularly when the theoretical construct

advanced was not argued by the government, not charged in the

indictment and not included in the trial court’s charge. To

sanction such procedure reduces Amendment V to a nullity. The

procedure, if allowed, amounts to a legal post conviction

ambush, precluding measured advice by counsel.

The issue presented is whether an appellate court may

amend an indictment and in so doing create a different and

uncharged crime.

The petitioner was charged with conspiring with others to

manufacture and distribute heroin in violation of 21 U.S.C.

§§841 and 846. The United States Court of Appeals for the

Second Circuit. after a long consideration. affirmed the

conviction unanimously though the panel differed in its analysis

and the theoretical constructs used. It would appear that the

panel encountered some difficulty with the material that was the

subject of alleged conspiratorial activity — mannite and quinine.

4

The majority, in its brief opinion, relied upon the merging

of a number of statutes, coupled with what it believed to be an

enlarged congressional intent, found that a conspiracy to aid and

abet the distribution of heroin was proved though not charged.

Its analysis becomes sharper when viewed through the eyes of

the minority.' The so-called minority view was more traditional

in its approach, finding two discrete but friendly conspiracies

operating along conventional lines. It determined that the

existence of these two illegal combinations was prejudice -free.

The majority to sustain its rather novel affirmance held that

the trial court's instructions were broad enough to encompass its

“new crime”. ‘

The petitioner defended by raising two redoubts — the first

suggested that the indictment failed to charge a cognizable

crime. As a fall-back position he uiged that if a cognizable

conspiracy existed, he had not joined it.?

The indictment, in the now familiar form, charged

violations of 21 U.S.C. §§841 and 846. The proof emphasized

that non-interdicted items, mannite and quinine, emanating

from a central Canadian source, were the subject matter of the

1. Judges Nickerson and Van Graafeiland comprised the majority and

Judge Oakes, though agreeing with the result, objected to their theoretical

constructs preferring to rely on more traditional approaches citing. of course,

reported cases that are most familiar to this court.

2. The petitioner. at the trial level, urged that the indictment failed to

charge a cognizable crime. He argued that it was the congressional intent to

outlaw illegal combinations in which there was a common unlawful element: to

wit either a scheduled drug emanating from a common source and distributed

by a combine; or a combine working together to fabricate a common pool of

drugs drawn from several sources. He suggested that a common source of

diluents did define an illegal conspiracy but rather that a common illicit

source or a common illicit pool did.

5

conspiracy. These compounds, after careful congressional

consideration, were exempted by Congress from scheduling

under the federal narcotics law. (See 1970 U.S. Code,

Congressional and Administrative News, pp. 4566, ef seq. re

purpose of Public Law 91-513).

Factually, these chemicals were shipped from Canada to

two individuals who apparently had influence with certain

people in the Harlem community. They, using a third man,

distributed these compounds to several of the defendants, minor

characters in this purported scheme. Among the lesser figures

was the petitioner. On several occasions the petitioner delivered

a quantity of mannite to some individuals. Other evidence

adduced by the government —, the petitioner did not merit

the majority's analysis.’

The majority structured its affirmance on a theory that is

most elusive though imaginative. It argued that the jury, quite

properly could have found that the appellants aided and abetted

in the manufacture and distribution of heroin by supplying the

necessary ingredients — the diluents, mannite and quinine.

They argued that the conspiracy need not aid only one identified

distribution web. All that was required that the proof show that

the underlying crime was in fact committed. United States v.

Gleason, 616 F. 2d 20-21 (2d Cir. 1979), cert. denied, 444 U.S.

1082 (1980). Apparently the underlying crime here was

distribution of heroin though no such charge was made.

Obviously, 18 U.S.C. §2 was the fulcrum upon which the

3. Cameron, on advice of counsel. agreed that his mannite activities were

done with the knowledge that ultimately the compound would be joined with

heroin. In the light of the majority's holding, the petitioner pleaded guilty,

though the trial continued. The majority now requires that defense counsel to

be either oracles or soothsayers, capable of devining the future rulings of

appellate courts.

6

majority rested its lever. Using its authority the majority could

have concluded that the petitioner aided and abetted an ongoing

illegal group whose aim was the distribution of narcotics.

Were this a conspiracy, other than one to distribute heroin,

conceivably the result may well have been different. It cannot be

argued that a printer of stock certificates supplied to a ring of

individuals whose purpose is to defraud a gullible and greedy

public has criminally aided and abetted a criminal conspiracy.

The printer presents a more sympathetic picture than those

engaged in the drug trade. The printer, like the petitioner, using

the standard criteria established by case law, must be shown to

have willingly joined the conspiracy and to have had a stake in

its successful outcome. The majority's opinion appears to be

one of convenience, designed to enlarge the conspiratorial net so

that it may become more enveloping and designed to make

conviction more facile.

The majority avoided what the minority was quick to seize

upon. The indictment, the government's theory of the case and

the trial court’s instructions to the jury failed to contemplate its

theory of affirmance. It also avoided the simple language in

Amendment V of the Federal Constitution that:

“In all criminal prosecutions the accused shall

enjoy the right . . . to be informed of the nature

and cause of the accusation .. . " (United States

Constitution, Amendment V).

If the majority view prevails, then this constitutional pillar

is relegated to a bromide. Difficult as it is to prepare against a

known charge, it is infinitely more difficult to combat the

creative accusation of an appellate court. An amendment at the

trial level may be handled with difficulty (ie., United States v.

Ramsey, 374 F. 2d 192, 196; United States v. Walker, 621 F.2d

-

163, 165-66 [Sth Cir. 1980]). This cannot. The element of

minimal fairness is lacking (Amendment V of the Federal

Constitution).

The majority, despite the knowledge that the indictment did

not charge the conspiracy it created, and knowing that the

prosecution had failed to argue it as its theory of the case and

that the court did not so charge, nonetheless undertook this

major post conviction alteration. Traditionally, 18 U.S.C. §2 has

been used in conjunction with charged substantive crimes. This

Court in Nve & Nissen v. United States, 336 U.S. 613 (1949)

limited 18 U.S.C. §2 to charged substantive crimes. This Court

held that liability for substantive crimes may be based on aiding

and abetting whether or not there is a conspiracy charged.

Aiding and abetting was there held to be applicable for

substantive crimes outside the scope of the conspiracy. The

requirement imposed was simply that sufficient evidence be

present to support the defendant's conviction as an aider and

abettor.

The petitioner may well have been convicted of an aiding

and abetting concept if the government's proof showed the

presence of a substantive offense and the proof was sufficient.

United States v. Licursi, 525 F. 2d 1164, 1167 (2d Cir. 1975);

Developments in the Law-Criminal Conspiracy, 72 Harv. L.

Rev. 920, 934 (1959). This the majority avoided.

The minority viewed the issue as one wherein the petitioner

can be convicted of an agreement to distribute uncontrolled

substances to various heroin operations. Conventionally, and

this the minority opinion recognized, narcotics conspiracies

involved combinations in which there was a common unlawful

element — either a controlled substance emanating from a

common source and distributed by a group or a common pool

of illicit drugs drawn from various sources and used by a

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).

The minority opinion viewed the basic structure of “this

conspiracy” as that of a “spoke conspiracy”. See Kotteakos vy.

United States, 328 U.S. 750 (1946); United States v. Cambindo-

Valencia, 609 F. 2d 603, 623 (2d Cir. 1979), cert. denied, 100 S.

Ct. 2163 (1980). It pointed out that a single conspiracy cannot be

built around a situation where the common source is diluents

which flow out to spokes that are the agents of different heroin

conspiracies, (Citing Kotteakos, infra, it observed that similarity

of illegal purpose of each spoke in dealing with the hub, does

not signify a common purpose and a conspiracy among the

various spokes.

The minority opinion, citing Cambindo-Valencia, infra,

suggests that the government, by proving a series of transactions

involving at least two separate groups, established that each

group was receiving diluents from the same distributor. Two

discrete conspiracies were therefore proved. This variance was

deemed harmless because substantial rights of the accused

were not effected. United States v. Miley, 513 F. 2d

1191, 1207-8 (2d Cir.), cert. denied, 423 U.S. 842 (1975); Berger

v. United States, 295 U.S. 78, 82 (1935). After an analysis of the

evidence, the minority held that substantial prejudice was

lacking and voted to affirm.

Whether the facts are consistent with this outlook is of no

consequence. The judgments cannot be sustained if the majority

erred. However, the minority opinion notes in a footnote (n. 8)

that the trial judge erred in his charge.

“The court charged, ‘to find a defendant guilty

you must find that he was a member of that

9

conspiracy charged in the indictment and not

some subsequent conspiracy (emphasis added),

The word ‘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.”

Both opinions seem content with the trial court's jury

instructions. Both cannot be correct. The charge cannot be that

all embracing as to encompass substantial differing theoretical

approaches. The minority points out that the instruction dealing

with “multiple conspiracies” was incorrect though unobjected to

at trial. Error cannot be the justification for differing points of

view,

The petitioner adopts those arguments advanced by the

other petitioners where appropriate and applicable.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

ARTHUR L, ALEXANDER

AARON J. JAFFE

Attorneys for Petitioner

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.—

LerRoY Perry, 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-

* Of the Eastern District of New York, sitting by designation.

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.

mel

JEROME H. FIELD, Brooklyn, N.Y., 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.Y., 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.

7

3a

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, and fined $10,000. Appellant Charles Cameron was

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

of five years. The 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

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

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

.

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

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

special parole term of life to run concurrently with a sentence

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

see Gibbons, supra.

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

a 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

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

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-sun-

mer of 4 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

gr 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.

Ta

Appendix A

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.

8a

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

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

( ).

The conspiracy charged in this indictment is limited to the

alleged conspiratorial activity relating to dealing in manite

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

then sold and distributed by Lieberman, Pollack and Gewirtz

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 Isic] ‘and/or quinine

that was exported from Canada... .

7 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-

pp nr would knowingly and intentionally distribute quantities

* However, we believe that regi specifications should

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

ie Mishler's charge to the jury rave ee any possible ambi-

ty

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).'

8 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.

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-

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,

13a

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.

14a

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 distrib-

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).

Sa

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

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-

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 ‘‘en‘erprise,”’ 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

9 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.

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

uv. 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.

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 alone

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

20a

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. § 84liavi1).

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-

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

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.”

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

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. Severanve

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

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

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.

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,

“‘fajny . . . 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

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

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)(1A), 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.

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.

32a

Appendix A

UNITED STATES v. LEROY PERRY, et al.

79-1407 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 uv.

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

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).

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 1 — 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 IN

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