Petition — Brunty v. United States

R 3 = 7 2 wins 2 oa U.S.

JUL 15 1983

CASE NO. ALEXANDER L. STEVAS,

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

CHARLES W. BRUNTY, PETITIONER,

vs.

UNITED STATES OF AMERICA, RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

A. THOMAS MIHOK, ESQ.

DEMPSEY & SLAUGHTER, P.A.

Suite 610, Day Building

605 E. Robinson Street

Post Office Box 1980

Orlando, Florida 32802

(305) 422-5166

Attorneys for Petitioner,

CHARLES W. BRUNTY

CASE NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

CHARLES W. BRUNTY, PETITIONER,

vs.

UNITED STATES OF AMERICA, RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

A. THOMAS MIHOK, ESQ.

DEMPSEY & SLAUGHTER, P.A.

Suite 610, Day Building

605 E. Robinson Street

Post Office Box 1980

Orlando, Florida 32802

(305) 422-5166

Attorneys for Petitioner,

CHARLES W. BRUNTY

QUESTIONS PRESENTED

1. Does the federal distribution

Statute, 21 U.S.C. §841(a)(1), establish a

continuing offense which begins when prelimi-

nary arrangements are made for the delivery of

a controlled substance and continues so long

as an individual expects payment for such

delivery?

2. Is possession of a controlled

Substance an essential element of the distri-

bution offense established by 21 U.S.C.

§841(a)(1)?

3. Does constructive possession of a

controlled substance arise solely from techni-

cal notions of ownership in the sense that an

individual theoretically could maintain a

cause of action for the purchase price of

drugs absent an actual ability to exercise

dominion over the drugs and to control their

disposition?

4. Does constructive possession of a

controlled substance arise when an individual

takes steps to gain or retain control over

drugs absent an actual ability to exercise

dominion over the drugs and to control their

disposition?

PARTIES

The parties to the proceedings in the

court whose judgment is sought to be reviewed

are as follows:

CHARLES W. BRUNTY

UNITED STATES DEPARTMENT OF JUSTICE

o1ie@

TABLE OF CONTENTS

Questions Presented

Parties

Table of Contents

Table of Authorities

Opinion Below

Jurisdiction

Relevant Statutory Provisions

Statement of Case

Reasons for Granting the Writ

I. THE DECISION BELOW CONFLICTS

WITH THE DECISIONS OF OTHER

CIRCUIT COURTS OF APPEALS AS

TO THE PROPER INTERPRETATION

OF 21 U.S.C. §841(a)(1) AND

THE REQUIREMENTS OF CONSTRUC-

TIVE POSSESSIO

A. Distribution as a Continu-

ing Offe

B. Constructive Possession

as a Cause of Action for

the Purchase Price of

Drugs.

nse.

-iii-

Page

iii

12

12

22

Table of Contents, Cont'd.

Page

C. Constructive Possession

as Steps to Exercise Con-

trol Over Drugs. 25

II. THE DECISION BELOW RAISES SIG-

NIFICANT AND RECURRING PROBLEMS

CONCERNING THE NATURE AND SCOPE

OF THE FEDERAL DISTRIBUTION

STATUTE AND THE PROPER APPLICA-

TION OF THE CONSTRUCTIVE POSSES-

SION DOCTRINE. 31

A. Distribution as a Continu-

ing Offense. 31

B. Constructive Possession

as a Cause of Action for

the Purchase Price of

Drugs. 38

C. Constructive Possession

as "Steps" to Exercise

Control Over Drugs. 43

Conclusion 46

Appendix A-1 to

A-29

-iv-

TABLE OF AUTHORITIES

Cases Cited

Edwards v. United States

286 F.2d 681 (5th Cir. 1960)

Murray v. United States

403 F.2d 694 (9th Cir. 1968)

United States v. Barrera

547 F.2d 1250 (5th Cir. 1977)

United States v. Batimana

623 F.2d 1366 (9th Cir.),

cert. denied, 449 U.S. 1038 (1980)

United States v. DiNovo

F. ch Cigvede

cert. denied, 423 U.S. 1016 (1975)

United States v. Dought

460 F.2d 13600 (?th Cir. 1972)

United States v. Harper

579 F.oa 1235 (10th Cir.),

cert. denied, 439 U.S. 968 (1978)

United States v. Holland

445 F.20 701 (DeVeGe 1971)

United States v. Horton

180 F.2d 427 (7th Cir. 1950)

United States v. Jackson

526 F.2d 1236 (5th cir. 1976)

United States v. Landr

207 F.2d 425 (?th Cir. 1958)

-V~-

Page

19

31

28-29

26-27

30

18

15

29

18

13-14

22-23

Table of Authorities, Cont'd.

Page

United States v. Nichols

401 F.Supp. 1377 (E.D. Mich. 1975) 14

United States v. Pino

608 F.2d 1001 (4th Cir. 1979) 15

United States v. Richman

600 F.2d 266 (Ist Cir. 1979) 15

Other Authorities Page

21 U.S.C. §802(8) and (11) 3, 8, 13

21 U.S.C. §822(c) 16

21 U.S.C. §822(c)(1) 40

21 U.S.C. §841(a) (1) i, 2-4,

Comprehensive Drug Abuse 7-8, 12,

Prevention and Control Act 20, 31,

39, 46-47

21 U.S.C. §846 4, 37, 44

28 U.S.C. §1254(1) 2

1970 U.S. Code, Cong. & Admin.

News, pp. 4566-4572 16, 21

Uniform Commercial Code §2-401(2) 41

-vi-

CASE NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

CHARLES W. BRUNTY, PETITIONER,

vs.

UNITED STATES OF AMERICA, RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

The Petitioner, CHARLES W. BRUNTY,

respectfully prays that a writ of certiorari

issue to review the judgment and opinion of

the United States Court of Appeals for the

Eleventh Circuit entered in his case on April

4, 1983.

OPINION BELOW

The opinion of the Court of Appeals

for the Eleventh Circuit, not yet reported,

appears in the appendix hereto. No opinion

was rendered by the District Court for the

Middle District of Florida.

JURISDICTION

The judgment of the Court of Appeals

for the Eleventh Circuit was entered on April

4, 1983. The Eleventh Circuit denied a timely

petition for rehearing on May 18, 1983, and

this petition for a writ of certiorari was

filed within sixty (60) days of that date as

required by Rule 20 of the Revised Rules of

the Supreme Court of the United States. This

Court's jurisdiction is invoked under 28

U.S.C. §1254(1).

RELEVANT STATUTORY PROVISIONS

21 U.S.C. §841. Prohibited acts A.

(a) Except as authorized by this sub-

chapter, it shall be unlawful for any

person knowingly or intentionally--

(1) to manufacture, distribute,

or dispense, or possess with intent to

manufacture, distribute, or dispense,

a controlled substance; ...

21 U.S.C. §802. Definitions.

(8) The terms "deliver" or "delivery"

mean the actual, constructive, or at-

tempted transfer of a controlled sub-

Stance, whether or not there exists an

agency relationship.

(11) The term "distribute" means to

deliver (other than by administering

or dispensing) a controlled substance.

The term "distributor" means a person

who so delivers a controlled sub-

stance.

STATEMENT OF CASE

This petition arises from CHARLES W.

BRUNTY's convictions in the United States Dis-

trict Court for the Middle District of Florida

for conspiracy to distribute marijuana in vio-

lation of 21 U.S.C. §846 and for distribution

of marijuana in violation of 21 U.S.C. §841

(a)(1). The issues raised in this petition

relate solely to BRUNTY's conviction for the

Substantive distribution offense.

The record at trial reflects that

BRUNTY, in the territory of the Middle Dis-

trict of Florida, made arrangements with vari-

Ous undercover government agents to sell a

quantity of marijuana which was stored in the

Southern District of Florida. The undercover

agents were to be the ultimate purchasers of

the marijuana and no agency relationship exis-

ted between BRUNTY and the agents.

Pursuant to the preliminary arrange-

ay

ments, BRUNTY drove by car to the Southern

District followed by an undercover agent driv-

ing a government-owned van. A quantity of

marijuana was loaded into the government van

in the Southern District and BRUNTY, followed

by the government van, began the return trip

to a location in the Middle District where the

agents were to tender payment for the mari-

juana. Two brief stops were made in the

Southern District, one at a restaurant and the

other at a department store, and a third stop

was made at an unspecified location to pump

gasol‘nre into the government van, which was

pumped by BRUNTY. At all times during this

return trip, the doors of the government van

containing the marijuana were locked and the

van was driven by an armed government agent.

The only keys to the van were at all times in

the exclusive possession of the agent driving

the van, who followed the car driven by BRUNTY

to the prearranged location for payment in the

Middle District. Upon arriving at that loca-

tion, BRUNTY was arrested.

A three count indictment was subse-

quently filed against BRUNTY in the Middle

District of Florida. Count one charged BRUNTY

with conspiracy to distribute marijuana.

Count two charged BRUNTY with possession of

marijuana with intent to distribute. Count

three charged BRUNTY with distribution of

marijuana. The second count of the indictment

was dismissed by the district court prior to

trial and BRUNTY proceeded to trial in the

Middle District of Florida on counts one and

three.

At the conclusion of the government's

case-in-chief, BRUNTY filed a motion for judg-

ment of acquittal on the distribution charge

on the ground that venue in the Middle Dis-

trict of Florida had been improper because the

government's evidence failed to establish dis-

tribution of marijuana in the Middle District.

BRUNTY renewed this motion at the close of all

the evidence. On both occasions the trial

court denied the motion and BRUNTY was convic-

ted for conspiracy and distribution.

The venue issue arising from the dis-

tribution conviction was appealed to the Ele-

venth Circuit, which affirmed BRUNTY's convic-

tion on three independent grounds. First, the

Eleventh Circuit ruled that the federal dis-

tribution statute, 21 U.S.C. §841(a)(1), es-

tablished a continuing offense which begins

when "preliminary arrangements" are made for

the delivery of drugs and continues so long as

an individual “expects payment” for previously

delivered drugs. Possession of a controlled

substance, the Eleventh Circuit ruled, is not

an essential element of distribution. Since

BRUNTY had made preliminary arrangements in

o Fa

the Middle District to deliver marijuana, and

Since BRUNTY subsequently had been present in

the Middle District expecting payment for the

marijuana previously delivered in the Southern

District, the Eleventh Circuit held that venue

in the Middle District of Florida for the sub-

Stantive distribution offense had been proper.

As an alternative to its interpreta-

tion of distribution as a continuing offense,

the Eleventh Circuit held that BRUNTY had re-

tained constructive possession of the mari-

juana throughout the return trip to the situs

of payment in the Middle District and that

BRUNTY had attempted to transfer this con-

structive possession at said situs, thereby

violating the distribution statute.! Since

1 21 U.S.C. §802(8) provides that an at-

tempted transfer of possession constitutes a

substantive distribution offense under 21

U.S.C. §841(a)(1).

the evidence at trial had established that at

all times in the Middle District the govern-

ment van containing the marijuana had been

locked and driven by an armed government agent

in exclusive possession of the van's keys, the

Eleventh Circuit based its finding of con-

structive possession on two distinct rulings.

First, the Eleventh Circuit ruled that

constructive possession of drugs may arise

from the existence of a theoretical cause of

action for the purchase price of previously

delivered drugs even in the absence of an

actual ability to exercise dominion over the

drugs or to control their disposition. Con-

cluding that BRUNTY had such a cause of action

during his return trip to the Middle District,

the Eleventh Circuit held that BRUNTY had at-

tempted to transfer this constructive posses-

sion upon arrival at the payment situs therby

making venue in the Middle District proper.

As a second ground supporting its

finding that BRUNTY was in constructive pos-

session of marijuana in the Middle District

during his return trip from the Southern Dis-

trict, the Eleventh Circuit ruled that con-

structive possession of drugs is present when

an individual takes "steps" intending to re-

tain (or gain) control over drugs even in the

absence of an actual ability to exercise

dominion over the drugs or to control their

disposition. Concluding that BRUNTY had taken

various "steps" intending "to retain control

over the marijuana” during the return trip in

the Middle District, the Eleventh Circuit held

that BRUNTY had attempted to transfer this

constructive possession at the payment situs

thereby making venue in the Middle District

-10-

proper. @

The Eleventh Circuit denied BRUNTY's

timely petition for rehearing without opinion.

These issues are now presented for this

Court's review.

“ The Eleventh Circuit described the

"steps" taken by BRUNTY in an attempt to re-

tain control over the marijuana at footnote 17

of the opinion. (See Appendix, p. A-26, n.

17). It is unclear what the Eleventh Circuit

meant when stating that BRUNTY issued "numer-

ous instructions” to the undercover agents.

Though the parties discussed their travel

plans, the law enforcement officers, in their

undercover roles, were not BRUNTY's subordi-

nates or agents so as to make them susceptible

to BRUNTY's “instructions.”

@11<

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW CONFLICTS WITH

THE DECISIONS OF OTHER CIRCUIT

COURTS OF APPEALS AS TO THE PROPER

INTERPRETATION OF 21 U.S.C.

§841(a)(1) AND THE REQUIREMENTS

OF CONSTRUCTIVE POSSESSION.

A. Distribution as a Continuing Offense.

The Comprehensive Drug Abuse Preven-

tion and Control Act of 1970, 21 U.S.C. §841

(a)(1), provides that "it shall be unlawful

for any person knowingly or intentionally --

to manufacture, distribute, or dispense, or

possess with intent to manufacture, distrib-

ute, or dispense a controlled substance." The

term "distribute" is defined by the Act as

"deliver," and the term “deliver,” in turn, is

defined as "the actual, constructive or at-

tempted transfer of a controlled substance,

whether or not there exists an agency rela-

tionship." 21 U.S.C. §802(8) and (11).

The Eleventh Circuit, reasoning that

-12-

Since "the operative term 'transfer' is no-

where qualified or limited by the phrase ‘of

possession,'" ruled that transferring posses-

sion of a controlled substance was not an es-

sential element of the distribution offense.

Since the actual, constructive or attempted

transfer of possession is unnecessary to es-

tablish a violation of the distribution stat-

ute, the Eleventh Circuit held that BRUNTY's

preliminary arrangements with the undercover

agents in the Middle District and his subse-

quent presence in that district to collect the

proceeds from the sale violated the statute

and made venue in the Middle District proper.

The Eleventh Circuit's ruling that

possession, or the transfer of possession, of

a controlled substance was not an essential

element of a "continuing" distribution offense

conflicts with the Fifth Circuit's analysis in

United States v. Jackson, 526 F.2d 1236, 1238

o13<

(Sth Cir. 1976). In that case, the Fifth Cir-

cuit premised its analysis and ruling on what

it considered the obvious conclusion that

"possession is an element in the substantive

charge of distribution or sale." See also

United States v. Nichols, 401 F.Supp. 1377,

1387 (E.D. Mich. 1975) ("while possession is

possible without distribution, distribution is

not possible without possession").

The ruling below that possession is

not an essential element of distribution also

conflicts with the analyses in a multitude of

cases where distribution convictions have been

affirmed on the ground that a defendant aided

and abetted the distribution of drugs. With-

out a single exception, the circuits deciding

such cases premised the liability of the aider

and abetter on the fact that another partici-

a14<

pant had transferred possession of drugs.3

Since, according to the opinion below, posses-

sion is not essential to the substantive dis-

tribution offense, liability for aiding and

abetting a distribution may arise absent such

a transfer of possession by a participant in

the offense. Thus, the opinion below con-

flicts with the voluminous case law of the

various circuits concerning aiding and abet-

ting distribution.

Though the precise issue in question

has seldom been expressly addressed by the

courts, the analyses employed by the courts in

every case which has interpreted the distribu-

3 See United States v. Pino, 608 F.2d 1001

(4th Cir. 1979); United States v. Harper, 579

F.2d 1235 (10th Cir.), cert. denied, 439 U.S.

968 (1978); United States v. Richman, 600 F.2d

286 (1st Cir. 1979). These cases are merely

illustrative and do not comprise an exhaustive

list of cases dealing with aiding and abetting

distribution.

-15-

tion statute has implicitly and necessarily

assumed that possession, or the transfer of

possession, is an essential element of the

distribution offense. Indeed, the obvious

nature of this assumption has heretofore pre-

vented serious consideration of the issue.

The conclusion that possession, or the

transfer of possession, is an essential ele-

ment of the distribution offense is grounded

not only in the express wording of the Act,

which prescribes “the actual, constructive or

attempted transfer of a controlled substance,"

but also in the Act's clear legislative in-

tent. The Act's legislative history reflects

that Congress equated members of a "“distribu-

tion chain" with “handlers” of controlled sub-

Stances. 1970 U.S. Code, Cong. & Admin. News,

pp. 4566-4572. Similarly, 21 U.S.C. §822(c),

which exempts agents and carriers of regis-

tered drug distributors from criminal liabil-

-16-

ity under the distribution statute, expressly

provides that those persons “may lawfully

possess any controlled substance under this

subchapter."

The Eleventh Circuit ignored the plain

language of the statute as well as its obvious

legislative intent by relying upon cases which

had affirmed distribution convictions in in-

stances where the defendant never had posses-

sion of a controlled substance. Those cases,

however, merely held that an individual may be

guilty of distribution absent actual or con-

structive possession of contraband if that

individual aids and abets another to transfer

possession of contraband. No case has ever

held an individual liable for distribution

unless a co-participant in the crime actually

or constructively transferred or attempted to

transfer possession of a controlled substance.

Indeed, in every case cited by the Eleventh

o17=

Circuit, the courts relied upon an aiding and

abetting theory merely to reach participants

in drug transactions who, though never in

actual or constructive possession of drugs,

nevertheless acted to facilitate a drug trans-

fer (i.e., purchasing agent, broker, messen-

ger, etc.).

Though isolated quotations from the

case law applying an aiding and abetting

theory superficially conceal the conflict

between the circuits, this illusion cannot

withstand analysis. The principle is well-

established that "a person cannot aid and abet

himself in committing an offense, and that

such person cannot be found guilty unless

there is satisfactory evidence that another

for whom he was acting was connected with the

offense." United States v. Doughty, 460 F.2d

1360 (7th Cir. 1972); United States v. Horton,

180 F.2d 427 (7th Cir. 1950). "The law re-

-18-

quires a guilty principal,” the Fifth Circuit

has stressed, “before the aider and abetter

can be punished." Edwards v. United States,

286 F.2d 681 (Sth Cir. 1960). Thus, though

BRUNTY's acts in the Middle District might be

sufficient to convict an individual under the

distribution statute on the theory that these

acts aided and abetted the drug transfer in

the Southern District, the fact that BRUNTY

also was the principal who delivered the mari-

juana to the undercover agents in the Southern

District precludes application of the aiding

and abetting theory to expand the prosecu-

tion's available venue.

The Eleventh Circuit's departure from

the interpretation of the distribution statute

employed by other circuits becomes even more

obvious when the case law discussing aiding

and abetting distribution is analyzed in light

of the distribution statute's legislative in-

-19-

tent. The cases relied upon by the Eleventh

Circuit, consistent with the legislative in-

tent of the Comprehensive Drug Abuse Preven-

tion and Control Act of 1970, interpreted the

distribution statute broadly to impose crimi-

nal liability upon individuals who, though not

actually handling drugs, nevertheless partici-

pated in a drug transfer where associates made

the actual delivery. Since the Act's legisla-

tive history reflects that Congress intended

to reach all participants in drug transfers

conducted outside the legitimate distribution

chain, a broad construction of the distribu-

tion statute appears justified in order to

bring all participants within the statute's

purview. Accordingly, the courts have held

that one who aids and abets a drug transfer is

guilty of distribution.

The Act's legislative history, how-

ever, reflects that Congress was not concerned

=-20-

with providing multiple forums for prosecuting

the principal in distribution offenses. See

U.S. Code, Cong. & Admin. News, p. 4566.

Since the broad construction of the distribu-

tion statute adopted by the court below to

expand venue has no basis in the statute's

legislative history, there is no justification

for straining the statute's plain language to

provide multiple forums for prosecution. The

case law cited by the Eleventh Circuit was

concerned only with the liability of accomp-

lices to distributions and not with venue for

the principals, and those cases clearly prem-

ised the accomplices' liability upon posses-

sion by the principals. The opinion below

dispenses with the element of possession in

distribution offenses and thus creates a split

between the circuits.

=2l<

B. Constructive Possession as a

Cause of Action for the Pur-

chase Price of Drugs.

The second leg of the opinion below,

the ruling that constructive possession may be

based on a finding of an “ownership” interest

in the sense that an individual theoretically

can maintain a cause of action for the pur-

chase price of a previously delivered control-

led substance directly conflicts with the

Seventh Circuit's ruling in United States v.

Landry, 207 F.2d 425 (7th Cir. 1958). In

Landry, the defendant, a heroin addict, owned

a quantity of heroin which he gave to a com-

panion so that the companion could control the

defendant's access to the heroin to prevent

him from using it "all at once.” Id. at 431.

Though, at the time of arrest, the heroin was

in the companion's possession, the defendant

was convicted for possession of heroin due to

his ownership interest in the heroin. The

=22=

Seventh Circuit reversed the conviction, re-

jecting the government's arguments that con-

structive possession could be shown by proof

of ownership with the following language:

Ownership and possession of a thing,

of course, may merge in the same

person but, on the other hand, own-

ership may be in one person and pos-

session in another.... Ownership is

not proof of possession any more

than possession is proof of owner-

ship.... The same can be said of

constructive possession or the un-

exercised right of possession.

Id. at 431.

Under the Eleventh Circuit's test for con-

structive possession, the conviction in Landry

would have been affirmed due to the defen-

dant's ownership interest in the heroin.

The opinion below disguises its depar-

ture from established principles of construc-

tive possession by citing cases which employed

legal notions of ownership merely as evidence

of an actuai ability to control the disposi-

@33-

tion of drugs. No reported case has ever

based a finding of constructive possession

upon technical notions of ownership. Close

analysis of the case law reveals that the

courts have used ownership as evidence of con-

structive possession only because ownership is

normally indicative of control. Furthermore,

the term “ownership,” as traditionally used in

the case law, refers only to legal title and

not to the existence of a cause of action for

the purchase price of drugs. Since a cause of

action for the purchase price of goods, as

contrasted with a cause of action for damages,

normally arises only after an individual has

divested himself of title and control over

those goods, the existence of such a cause of

action is evidence of the absence of title and

possession instead of the converse.

-24-

C. Constructive Possession as Steps

to Exercise Control Over Drugs.

The third facet of the Eleventh Cir-

cuit's opinion, the ruling that constructive

possession may be based upon attempts to gain

or retain control over a substance absent an

actual ability to direct the disposition of

that substance, conflicts with every other

circuit that has ruled on the issue. Though

at all times in the Middle District the mari-

juana in question had been stored in a locked

government van driven by an armed government

agent, the Eleventh Circuit nevertheless held

that BRUNTY had constructive possession of the

marijuana because BRUNTY "took steps to retain

control over the marijuana.”

The record reflects that BRUNTY at no

time in the Middle District had the ability to

exercise dominion and control, either directly

or indirectly, over the marijuana or the van

=-25-

in which it was stored. The Eleventh Circuit,

however, held that BRUNTY's "steps" to retain

control over the marijuana were sufficient to

Support his conviction for distribution on the

theory that he had retained constructive pos-

session of the marijuana and attempted to

transfer that constructive possession in the

Middle District. The test for constructive

possession applied by every other circuit re-

quires an actual ability to exercise dominion

and control over a substance and not merely

the taking of "steps" to gain or retain such

control.

In United States v. Batimana, 623 F.2d

1366 (9th Cir.), cert. denied, 449 U.S. 1038

(1980), two men, Batimana and Noguera, and a

third man, met a drug courier at an airport

and then proceeded to a hotel room, where the

courier delivered the drugs to the third man.

The three men subsequently were charged with

=26=

possession of heroin with intent to distrib-

ute. On appeal, the Ninth Circuit reversed

the convictions of Batimana and Noguera, re-

jecting the government's arguments that they

were "minimally" in control of the heroin.

Though the evidence reflected that

Batimana and Noguera were present in the hotel

room when the courier delivered the heroin to

the third defendant and that Batimana "tried

to place his hand inside the bag" containing

the heroin, the Ninth Circuit held that con-

structive possession was not present. Id. at

1369. Constructive possession, the Ninth Cir-

cuit stressed, is defined as dominion and

control over a drug "so as to give power of

disposal of the drug." Id. An individual in

constructive possession of a drug must have

the "ability to assure its production without

difficulty...." Id. Under the Eleventh

Circuit's test for constructive possession,

@27J=

Batimana's conviction would have been affirmed

because Batimana clearly attempted to gain

control over the heroin when he "tried to

place his hand inside the bag" containing the

drug.

The Eleventh Circuit's ruling also

conflicts directly with the Fifth Circuit

opinion in United States v. Barrera, 547 F.2d

1250 (5th Cir. 1977). In Barrera, various

undercover agents made contact with a "middle-

man" in an open field to purchase heroin.

After a brief meeting, one of the defendants

drove a pick-up truck to a nearby ranch house

in an attempt to obtain the heroin from the

supplier. The supplier, however, had become

suspicious and refused to tender the heroin.

The driver of the pick-up truck was subse-

quently convicted of possession of heroin with

intent to distribute.

The Fifth Circuit, ruling that con-

-28-

structive possession requires "the exercise of

dominion or control over the proscribed sub-

Stance," reversed the driver's conviction.

Id. at 1255. "In short,” the Fifth Circuit

concluded, “there was no proof of possession,

actual or constructive.” Id. at 1256. Under

the test announced by the Eleventh Circuit

below, the driver of the pick-up truck would

have been in constructive possession of the

heroin because he had taken direct and overt

steps to gain possession of the drug.

The opinion below also conflicts with

the rulings of the Seventh, Ninth, and Dis-

trict of Columbia Circuits. In United States

v. Holland, 445 F.2d 701 (D.D.C. 1971), the

defendant was found by police hiding behind a

bed in a bedroom where narcotics were located

on top of a dresser and the defendant was ccn-

victed of receipt and concealment of narcot-

ics. On appeal, the District of Columbia Cir-

=29-

cuit, stressing that "constructive possession

means being in a position to exercise dominion

and control over a thing," reversed the con-

viction because no evidence was presented

reflecting that the defendant ever had the

actual ability to control the disposition of

the narcotics found on the dresser.

Similarly, in United States v. DiNovo,

523 F.2d 197 (7th Cir.), cert. denied, 423

U.S. 1016 (1975), federal agents discovered

heroin in a trailer which the defendant shared

with her husband and the defendant was convic-

ted of possession of heroin with intent to

distribute. "Constructive possession,” the

Seventh Circuit ruled, “means being in a posi-

tion to exercise dominion and control over a

thing." Since the government had failed to

present evidence establishing that the defen-

dant had the ability to exercise "dominion and

control" of the heroin found in the trailer,

-30-

the Seventh Circuit reversed her conviction.

See also Murray v. United States, 403 F.2d 694

(9th Cir. 1968) (reversing conviction for

smuggling and concealing heroin where heroin

was in the possession of defendant's brother

where evidence did not support the inference

that defendant's brother was under defendant's

"direction and control" or that the defendant

"could control the disposition of the heroin").

These conflicts justify the grant of

certoriari to review the judgment below.

II. THE DECISION BELOW RAISES SIGNIFI-

CANT AND RECURRING PROBLEMS CON-

CERNING THE NATURE AND SCOPE OF

THE FEDERAL DISTRIBUTION STATUTE

AND THE PROPER APPLICATION OF THE

CONSTRUCTIVE POSSESSION DOCTRINE.

A. Distribution as a Continuing Offense.

The Eleventh Circuit below ruled that

the federal distribution statute, 21 U.S.C.

§841(a)(1), establishes a broad, continuing

offense which begins when preliminary arrange-

=31-

ments are made for delivery of a controlled

substance and continues so long as any indi-

vidual "expects payment" for a prior delivery.

Venue for a distribution offense, the Eleventh

Circuit reasoned, lies in any district where a

participant was present during the continua-

tion of the offense. Since BRUNTY had made

preliminary arrangements with undercover

agents in the Middle District of Florida for

delivery of marijuana in the Southern District

of Florida, and since BRUNTY had been present

in the Middle District expecting payment for

the prior delivery in the Southern District,

the Eleventh Circuit held that venue in the

Middle District was proper.

The Eleventh Circuit is the only cir-

cuit ever to interpret the distribution stat-

ute as establishing a continuing offense.

Under the traditional view of distribution,

accepted by all except the Eleventh Circuit,

-32-

the transfer of a controlled substance is the

crucial act which triggers criminal liability.

Such a transfer serves as a clear, “bright

line" test essential to law enforcement agents

in enforcing the distribution statute. The

Eleventh Circuit's ruling eliminates this

bright line test and instead imposes liability

under the distribution statute for any of a

series of discrete acts which, in some unspe-

cified manner, are related to such a transfer.

Typically, the federal distribution

Statute is enforced through infiltration of an

illicit drug distribution chain by undercover

agents. In the course of a drug transaction,

the exact point at which arrests may be made

is a key concern. Under the traditional view

of distribution, the bright line test of deli-

very clearly signalled the appropriate time

for arrests and provided focus and coordina-

tion for undercover investigations. The

=33-

Eleventh Circuit's novel interpretation of the

distribution statute, however, leaves no doubt

that an arrest for a completed distribution

offense may be made prior to the actual deli-

very. Indeed, under the Eleventh Circuit's

view, delivery of a controlled substance is

not an essential element of a distribution

offense but merely a point of reference with

which the criminality of acts related to such

delivery may be ascertained. The Eleventh

Circuit opinion provides no guidance as to the

nature of this relationship beyond stating

that making “preliminary arrangements” for

delivery of a controlled substance triggers

liability under the distribution statute.

Though the existence of various crimes

sometimes cannot be determined without lengthy

and detailed analysis of surrounding circum-

stances, this problem is exceptionally acute

in the area of drug-related crimes. Unlike

-34-

crimes which can be analyzed by the prosecutor

and investigating agents at their leisure

prior to making arrests, enforcement of drug

laws generally requires immediate, on the

scene arrests. Armed only with the vague pro-

nouncements of the Eleventh Circuit in this

case, government agents are left guessing as

to the appropriate time to disclose their

identities and perform arrests. This uncer-

tainty doubtlessly will lead to premature

arrests and needless waste of law enforcement

resources.

The Eleventh Circuit's ruling that a

distribution offense continues so long as pay-

ment is expected for delivery of a controlled

substance invites impermissible government

manipulation of venue and creates serious am-

biguities concerning the statute of limita-

tions. In the typical drug investigation,

undercover agents pose as drug buyers. These

“buyers” create and control the expectation of

payment as well as the situs of payment. By

manipulating these two variables, the govern-

ment would be able to lay venue in a district

unrelated to the delivered drugs and extend

the limitations period on the basis of a sub-

jective expectation beyond the period estab-

lished by a defendant's acts.

The Eleventh Circuit's interpretation

of the distribution statute also renders the

Statute unconstitutionally vague, gives rise

to serious problems concerning double jeop-

ardy, and creates paradoxes in construing the

distribution statute together with related

provisions. According to the Eleventh Cir-

cuit, mere "preliminary arrangements" for de-

livery of a controlled substance violate the

distribution statute. Such "preliminary ar-

rangements,”" however, normally form the basis

of a conspiracy charge. In cases where a

=36-

defendant is charged both with conspiracy and

with the substantive distribution offense, the

Eleventh Circuit's ruling would allow the im-

position of dual liability for the same acts

in contravention of the Double Jeopardy Clause

of the United States Constitution. 4

Furthermore, under the Eleventh Cir-

cuit's interpretation of the distribution

statute, a conspiracy prosecution pursuant to

21 U.S.C. §846 would be two steps removed from

the substantive evil at which the statute is

addressed -- the transfer of drugs. The basis

of a conspiracy offense would be an agreement

to make preliminary arrangements to transfer

drugs, or, in essence, an agreement to agree

to transfer drugs. Ultimately, this analysis

4 It should be noted that BRUNTY was con-

victed for conspiracy as well as the substan-

tive distribution offense.

=37@

unravels the Eleventh Circuit's ruling into

paradox and confusion.

B. Constructive Possession as a Cause

of Action for the Purchase Price

of Drugs.

The second facet of the Eleventh Cir-

cuit's opinion, the ruling that constructive

possession may be based upon legal ownership

of drugs in the sense that a theoretical cause

of action can be maintained for the purchase

price of previously delivered drugs, also

merits this Court's attention.° This ruling

confounds the otherwise clear distinction be-

5 A cause of action for the purchase price

of goods, as opposed to a cause of action for

damages arising from the breach of a sales

agreement, generally arises only after the

seller has relinquished to the buyer title and

possession of the goods. Thus, though the

opinion below equates such a cause of action

with ownership and possession of goods, the

existence of a cause of action for the pur-

chase price of drugs indicates that the seller

has been divested of ownership and control of

the drugs.

=@38-

tween legal and illegal involvement in the

distribution of controlled substances.

The legal manufacturing and distribu-

tion of drugs within the closed distribution

chains specified by the Comprehensive Drug

Abuse Prevention and Control Act normally are

financed by investors and shareholders who

themselves are not licensed to handle the

drugs. In a myriad of situations, these in-

vestors and shareholders would be able to

maintain an action to recover the purchase

price of drugs distributed through legitimate

distribution chains. The Eleventh Circuit's

ownership test for constructive possession

would impose criminal liability upon these

investors and shareholders upon maturity of

=-39-

this abstract cause of action. ®

The Eleventh Circuit's ownership test

for constructive possession also poses complex

and unnecessary problems for law enforcement

agencies and courts administering federal drug

laws, most of which hinge upon an element of

possession. As in the case of distribution,

both courts and law enforcement agents normal-

ly rely upon a factual, bright line test to

determine possession. In cases where a defen-

dant is in direct physical contact with drugs,

a determination of actual possession is un-

6 «In 21 U.S.C. §822(c)(1), Congress ex-

pressly precluded criminal liability for

agents and employees of registered drug dis-

tributors. However, since constructive pos-

session of drugs has always hinged upon an

actual ability to control or direct the dispo-

sition of such drugs and not upon the exis-

tence of an abstract cause of action for the

purchase price of drugs, there is no statutory

bar to the criminal liability of investors and

shareholders in registered drug businesses

upon the vesting of such a cause of action.

-40-

problematic. Constructive possession, though

more problematic, previously has always hinged

upon a factual determination that an individ-

ual had an actual ability to exercise dominion

and control over drugs and to direct their

disposition. The opinion below plunges this

settled area of law into uncertainty.

Though the Eleventh Circuit ostensibly

formulated an ownership test for constructive

possession, its application of that test to

the instant facts departed from all tradition-

al notions of ownership. The Uniform Commer-

cial Code §2-401(2), consistent with the com-.

mon law, provides that title to goods passes

at the time and place at which the seller com-

pletes his performance and physically delivers

the goods. Since BRUNTY physically delivered

the marijuana to the government agents in the

Southern District, where the marijuana had

been stored, the government agents and not

-41-

BRUNTY “owned” the marijuana upon returning to

the Middle District.

Instead of adhering to traditional

notions of ownership, the Eleventh Circuit

equated ownership of drugs with the existence

of a cause of action for the purchase price of

the drugs.’ The Eleventh Circuit, however,

noticeably glossed over the difficulties of

its approach.

Causes of action for the purchase

price of goods normally arise under state law.

7 Even under the "cause of action" test for

constructive possession, BRUNTY did not have

constructive possession of iarijuana in the

Middle District of Florida. Under the terms

of BRUNTY's oral agreement with the undercover

agents, the agents were not to tender payment

until the parties arrived at their destination

in the Middle District. Upon arrival at that

destination, BRUNTY was immediately arrested.

Since the agents did not breach their agree-

ment with BRUNTY until after BRUNTY's arrest,

BRUNTY's theoretical cause of action for the

purchase price of the marijuana never matured

prior to the arrest.

-42-

If federal possessory offenses hinge upon the

often discordant laws of the various states,

the same acts would constitute federal offen-

ses in some states but not in others. This

problem is severely aggravated by the multi-

tude of legal concepts which affect such

causes of action, including waiver, estoppel,

limitations, statute of frauds, capacity, and

duress. If, on the other hand, the existence

of a cause of action for the purchase price of

drugs is to be determined by an as yet unspe-

cified and undeveloped body of federal law,

federal possessory offenses would be rendered .

unconstitutionally vague.

C. Constructive Possession as "Steps"

to Exercise Control Over Drugs.

The third facet of the Eleventh Cir- ”

cuit's opinion, the ruling that constructive

possession is present when an individual

"takes steps" to retain (or obtain) control of

o43<

drugs, also introduces complex and unnecessary

problems into a previously well-settled area

of law. As discussed above, constructive pos-

session previously has hinged upon a finding

that an individual had an actual ability to

exercise dominion and control over drugs and

to control their disposition. The Eleventh

Circuit abandoned this well-established stan-

dard in favor of a less stringent standard

requiring only that "steps" be taken in an

attempt to exercise control over drugs. The

Eleventh Circuit, however, does not suggest

what "steps" are necessary to establish con-

structive possession.

If such "steps" must at least satisfy

the traditional concept of attempt, then the

Eleventh Circuit's ruling renders 21 U.S.C.

§846 superfluous. Alternately, if the requi-

site "steps" need not amount to an attempt,

individuals could be guilty of substantive

-44-

possessory offenses under facts insufficient

to constitute an attempt to commit such offen-

ses. In short, the Eleventh Circuit's ruling

leaves law enforcement agents, courts, and the

public guessing as to the nature of possessory

offenses.

These compelling problems justify the

grant of certiorari to review the opinion

below.

-45-

CONCLUSION

The three independent facets of the

Eleventh Circuit's opinion fundamentally alter

previously well-settled principles concerning

distribution and other possessory offenses and

conflict with the rulings of every federal

circuit court which has considered those

issues. The opinion below expands liability

and venue for drug offenses beyond any bounds

anticipated by Congress or the courts. The

opinion fundamentally alters the nature of

distribution offenses and impacts upon every

federal law containing possession as an ele-

ment of an offense. The Eleventh Circuit's

radical departures from established and time-

tested principles create severe practical

problems for law enforcement agencies and im-

pinge upon various constitutional protections.

In the thirteen years since the enact-

ment of the Comprehensive Drug Abuse Preven-

-46-

tion and Control Act of 1970, this Court has

addressed neither the nature of a distribution

offense nor the key element of “possession.”

This Court's intervention is necessary to

guide the various circuits concerning the

proper application of the federal distribution

Statute and related possessory offenses as

well as to prevent grossly discordant rulings

between the circuits.

For the reasons stated herein, this

Court should grant a writ of certiorari to

review the opinion below.

Respectfully submitted,

A. THOMAS MIHOK, ESQUIRE

DEMPSEY & SLAUGHTER, P.A.

Suite 610, Day Building

Post Office Box 1980

Orlando, Florida 32802

(305) 422-5166

Attorneys for Petitioner,

CHARLES W. BRUNTY

=47-

CASE NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

CHARLES W. BRUNTY, PETITIONER,

vs.

UNITED STATES OF AMERICA, RESPONDENT.

APPENDI2X

TO

PETITION FOR A WRIT OF CERTIORARI

CONTENTS

Opinion of the Court of Appeals for

the Eleventh Circuit, Charles R.

Scott, District Judge

Order of the Court of Appeals for

the Eleventh Circuit Denying

Petition for Rehearing

Page

A-28

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 81-6000

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

CHARLES W. BRUNTY,

Defendant~-Appellant.

Appeal from the United States

District Court

for the Middle District of Florida

April 4, 1983

Before VANCE and ANDERSON, Circuit

Judges, and SCOTT*, District Judge.

CHARLES R. SCOTT, District Judge:

Appellant, Charles W. Brunty, was con-

victed of conspiracy to distribute marijuana,

in violation of 21 U.S.C. §846, and of distri-

bution of approximately 530 pounds of mari-

juana, in violation of 21 U.S.C. §841(a)(1).

On appeal, Brunty contends that the trial

court's voir dire examination of prospective

jurors was inadequate, and that venue in the

Middle District of Florida as to the distribu-

tion count was improper. For the reasons set

forth below we find both contentions lacking

in merit and accordingly affirm.

Brunty's conspiracy and distribution

convictions arose out of his attempt to sell a

large quantity of marijuana to Rick Look, an

undercover agent with the Florida Department

of Law Enforcement. The transaction between

Brunty and Look was arranged by a co-conspira-

tor named Robert Malley.! Look, who was

posing as a buyer from Detroit, Michigan,

agreed to purchase 500 pounds of marijuana

from Brunty at a price of $250 per pound.

Look and Brunty first met on the night

of April 7, 1981 at the Mousetrap Lounge in

Cocoa Beach, Florida. Also present were

Malley and an informant named Peter Myers. At

that time the transaction was discussed.

Brunty told Look that it was a two or three

hour drive to where the marijuana was located.

It was agreed that Look would accompany Brunty

to obtain the marijuana on the following day.

At about 12:00 o'clock Noon on April

8, 1981, Look, driving a Cadillac with

1 Robert Malley was employed as a United

States Customs Patrol Officer prior to his

arrest. Malley pled guilty to the conspiracy

charge.

$125,000 proposed purchase money in the trunk,

another undercover agent, Mike Morris, driving

a van, 2 and Brunty, driving a Ford Pinto,

met in the parking lot of the Denny's restau-

rant in Merritt Island, Florida.? pursuant

to Brunty's request, Look opened his trunk and

showed Brunty the $125,000, contained ina

brown paper sack.

The three thereafter proceeded south,

2 Morris, an agent with Orlando Police

Department, was assigned to the Federal Drug

Enforcement Administration Task Force in

Orlando during this period. The van was an

undercover vehicle owned by the Florida De-

partment of Law Enforcement.

3 Cocoa Beach and Merritt Island are in

Brevard County, in the Middle District of

Florida.

Brunty and Look in Brunty's Pinto? with

Morris following in the van. Upon arriving at

the Denny's restaurant in Delray Beach, Flor-

ida, at about 3:15 P.M., they met two others,

Jeffery Arnold and Hubert Yonn, who were also

charged in the conspiracy.>° Brunty, Arnold,

Look and Morris then rode in the van following

Yonn to a mini-warehouse in Boca Raton, Flor-

ida® where the Marijuana was stored. Sev-

4 Along the way, Brunty spoke to Look about

his close personal and business relationship

with Malley and stated that Malley was to re-

ceive a commission for arranging the deal.

Brunty also claimed to have smuggled loads of

marijuana from Colombia [sic] for three years

by using fishing boats.

5 Arnold was Brunty's co-defendant at

trial. "Huey" Yonn is currently a fugitive.

6 Delray Beach and Boca Raton are in Palm

Beach County, in the Southern District of

Florida.

eral bales of marijuana were loaded into the

van. The party then returned to Delray Beach,

Yonn taking Brunty and Arnold in his car with

Look and Morris following in the marijuana-

laden van. At Delray Beach they stopped at a

Woolco department store, next to the Denny's

restaurant where Brunty had left his Pinto,

and bought some blankets which were used to

cover the marijuana in the van. From there

Brunty arranged that he would drive Look back

to Merritt Island in the Pinto, with Morris

following alone in the Van. On the way back,

Brunty pulled into a gas station and Morris

followed. Brunty gassed up the van and paid

for the gas.

The two vehicles arrived back at the

Denny's in Merritt Island at about 8:00

o'clock that evening. Brunty then accompanied

Look to Look's car hoping to get the purchase

money. Instead, he got arrested.

Voir Dire

Appellant contends that the trial

court's restrictions on voir dire questioning

of prospective jurors deprived him of his

Sixth Amendment right to be tried by an impar-

tial jury. Prior to trial, Brunty moved the

court to permit counsel to conduct voir dire,

or alternatively, to have the court propound a

list of specific questions to the prospective

jurors. The asserted purpose of the motion

was to discover bias against persons charged

with drug-related crimes for purposes of chal-

lenges for cause and effective use of peremp-

tory challenges. The trial court denied

Brunty's motion but agreed to ask 34 of the

204 questions Brunty submitted. Brunty re-

quested that 73 of the proffered questions be

heard by each juror in isolation. The court

asked only three of these, but not to isolated

veniremen.

{[1, 2] Rule 24(a) of the Federal

Rules of Criminal Procedure vests in the trial

court broad discretion to determine the appro-

priate method and scope of voir dire. This

discretion extends to the decision whether to

propound questions proffered by counsel, Uni-

ted States v. Holman, 680 F.2d 1340, 1345

(11th Cir. 1982); United States v. Brooks, 670

F.2d 148, 152 (11th Cir.), cert. denied,

U.S. , 102 S.Ct. 2943, 73 L.Ed.2d 1339

(1982); United States v. Magana~Arevalo, 639

F.2d 226, 228 (5th Cir. 1981), and whether

jurors should be questioned collectively or

individually. United States v. Colacurcio,

659 F.2d 684, 689 (5th Cir. 1981), cert.

denied, 455 U.S. 1002, 102 S.Ct. 1635, 71

L.Ed.2d 869 (1982); United States v. Hawkins,

658 F.2d 279, 283 (5th Cir. 1981); United

States v. Delval, 600 F.2d 1098, 1102 (5th

Cir. 1979). An abuse of discretion will not

be found if the method of voir dire adopted by

the trial court is capable of giving reason-

able assurance that prejudice would be discov-

ered if present. United States v. Brooks,

supra; United States v. Hawkins, supra; United

States v. Delval, supra.

{3, 4) An examination of the record

reveals that the district court did not abuse

its discretion. The questions propounded by

the court adequately covered those matters

which the defendants had a legitimate interest

in bringing out, and were clearly sufficient

to assure that prejudice against the defendant

due to his being charged with narcotics viola-

tions would be uncovered.’ See United

States v. Rojas, 537 F.2d 216, 219 (5th Cir.

1976), cert. denied, 429 U.S. 1061, 97 S.Ct.

785, 50 L.Ed.2d 777 (1977); United States v.

Eastwood, 489 F.2d 818, 819-20 (5th Cir.

1973). We note that many of the defendant's

proposed questions, particularly among those

he wanted to have asked in camera, were plain-

7 Indeed, the court's questioning into pos-

Sible bias due to the nature of the charges

prompted seven jurors to indicate that they

would or could possibly be prejudiced. All

seven were then summarily excused. Appel-

lant's claim that there may have been others

is sheer speculation which this court need not

entertain.

It is also worth noting that with respect

to one juror whose son had been charged with a

drug offense earlier, Brunty's counsel opposed

the government's request that the juror be

questioned further, stating that the juror

“said he could follow the instructions of the

court and did so under oath, and he could do

it impartially" (Record, vol. II, p. 106).

The questions propounded to that juror were

substantially identical to the inquiry made of

all the other jurors.

ly aimed at determining -- and perhaps influ-

encing -- the views of jurors on the propriety

of the marijuana laws.8 A defendant is not”

entitled to a sympathetic jury; merely an inm-

partial one. See generally 2 Wright, Federal

Practice and Procedure: Criminal 2d §381.

Since jurors are not at liberty to disregard

the law in arriving at their verdict, a trial

judge owes no obligation to a defendant to

8 some examples were:

139. Would you be willing to turn a rel~

ative, such as your child, over to the police

if you discovered if he or she was using mari-

juana?

* * * * * *

144, In your own words, how do you feel

about drugs? Drug users? People who make a

living distributing drugs?

* * * w * *

162. Would you approve of your children

drinking alcoholic beverages but not approve

of their smoking marijuana?

* * & * wv w

169. Do you see any similarity between

marijuana being illegal and the days of prohi-

bition?

A-10

inquire into whether jurors agree with the

law.? Essential fairness was satisfied in

this case by the district court's careful

though general questions pertaining to the

possibility of bias against the accused due to

the nature of the charges. United States v.

Rojas, supra; United States v. Eastwood,

supra.

{5] We also hold that the district

court did not abuse its discretion in declin-

9 pBrunty's counsel has candidly admitted,

in arguments before the trial court and on ap-

peal, that his purpose was to uncover "“deep-

seated prejudices" of prospective jurors a-

gainst “the use of marijuana" and “drug offen-

ses." (Record, vol. II, p. 7; Reply Brief, p.

1). We feel this use of the word “prejudice”

is merely a euphemism for saying that prospec-

tive jurors might support the laws which pro-

hibit such activities. While a defendant is

entitled to discover whether the charges a-

gainst him would prevent a juror from giving

him a fair trial, he is not entitled to learn

whether the juror agrees with the laws upon

which those charges are based.

ing to question the jurors in isolation. Such

a procedure is not required in cases involving

unsupported general allegations of prejudicial

information. See United States v. Colacur-

cio, 65% F.2d at 689; United States v. Haw-

kins, 658 F.2d at 283-85; United States v.

Gerald, 624 F.2d 1291, 1297 (5th Cir. 1980),

cert. denied, 450 U.S. 920, 101 S.Ct. 1369, 67

A-12

L.Ed.2d 348 (1981),10

Venue

[6] Appellant contends that his con-

10 Appellant also challenges the district

court's denial of his motion to strike the re-

maining jurors on the panel, or alternatively

to direct specific questions to each, because

they were present when the court dismissed the

seven prospective jurors referred to in note

7, Supra, and had heard certain remarks made

by those dismissed jurors concerning their

possible prejudice. The record shows that

three jurors mentioned relationships they had

with children, and one juror stated that his

son returned from Viet Nam in “pretty bad

Shape." (Record, vol. II, p. 89-91). How-

ever, each of these remarks was extremely

brief and unspecific, the trial judge having

immediately cut off any juror who attempted a

detailed explanation. We cannot say under the

circumstances that the district court abused

its discretion in declining to strike the re-

maining jurors or to voir dire them specifi-

cally about the remarks of the dismissed jur-

ors. What minimal statements the remaining

jurors heard can hardly be considered spectac-

ular or inflamatory, compare United States v.

Gibbons, 607 F.2d 1320, T3303} (10th Cir.

, and had no connection with the defen-

dant or the case being tried. Brunty's coun-

sel did not request a specific cautionary in-

Struction. We feel that the trial court's

general questioning and jury instructions were

reasonably sufficient to discover or eradicate

any resulting prejudice.

A-13

viction for distribution of marijuana should

be reversed because the Middle District of

Florida lacked proper venue. At the close of

the government's case-in-chief,!! Brunty

moved for a judgment of acquittal!2 on the

contention that the distribution occurred in

the Southern District of Florida, not in the

Middle District as charged. It was undisputed

that the actual physical transfer of marijuana

into Agent Morris's van occurred in Palm Beach

County, in the Southern District of Florida.

1 The government does not challenge the

timeliness of appellant's venue objection.

12 Although referred to in cases as a

motion for “judgment of acquittal," e.g.,

United States v. White, 611 F.2d 531, 4 (5th

Cir.), cert. denied, 446 U.S. 992, 100 S.Ct.

2978, 64 L.Ed.2d 649 (1980), if such a motion

were granted solely due to improper venue, the

government would not be prevented from retry-

ing the case in a proper district. See United

States v. Stratton, 649 F.2d 1066, 1076-79,

t r. 1).

A-14

The district court, nonetheless, denied

Brunty's motion, holding that the jury could

reasonably conclude that Brunty's distribution

was a continuing offense, part of which occur-

red in Brevard County, in the Middle District

of Florida, and that Brunty retained construc-

tive possession of the marijuana pending re-

ceipt of payment in the Middle District. 13

The right of a criminal defendant to

be tried in the state and district in which

the crime was committed is guaranteed by Arti-

cle III of and the Sixth Amendment to the

United States Constitution and Rule 18 of the

13° We observe sua sponte that the dis-

trict court erred, to the defendant's advan-

tage, in failing to instruct the jury that the

government need only establish proper venue by

a preponderance of evidence, not by proof

beyond a reasonable doubt. United States v.

Wuagneux, 683 F.2d 1343, 1356-57 (TTith Cir.

1583); United States v. Rivamonte, 666 F.2d

31S, 31 th Cir. 1982).

Federal Rules of Criminal Procedure. This

right, however, is qualified under 18 U.S.C.

§3237(a), which provides that an offense "be-

gun in one district and completed in another,

or committed in more than one district, may be

«ee prosecuted in any district in which such

offense was begun, continued, or completed."

Appellant urges us to hold that his

distribution was not a continuing offense. To

this end he asks that we narrowly construe the

term “distribution” in 21 U.S.C. §841(a) to

mean nothing more or less than "the transfer

of possession,” and in particular that we dis-

tinguish "distribution" from "sale." Brunty

alleges that he fully relinquished possession

of the marijuana in Boca Raton, in the South-

ern District of Florida, notwithstanding the

fact that he was not to receive payment until

he had driven Agent Look back to the Denny's

in Merritt Island, in the Middle District of

A-16

Florida. Appellant contends that while such

acts might properly be considered part of a

"sale," they should not be viewed as part of a

"distribution."

Appellant's proposed narrow construc-

tion of "distribution" is without basis. Sec-

tion 841(a) was enacted as part of the Compre-

hensive Drug Abuse Prevention & Control Act of

1970. 21 U.S.C. §801 et seq. The Act defines

"distribute" to mean “deliver,” and "deliver"

to mean "the actual, constructive, or attemp-

ted transfer of a controlled substance, whe-

ther or not there exists an agency relation-

ship." 21 U.S.C. §802(8) and (11). Conspicu-

ously, the operative term "transfer" is no-

where qualified or limited, by the phrase "of

possession" or otherwise. This omission no

doubt was purposeful, since the legislative

history of the statute clearly reveals that

Congress intended "distribution" to contem-

A-17

plate "sale." 1970 U.S. Code. Cong. & Ad.

News 4566, 4574-76. See also 21 U.S.C. §841

(b)(4).14

[7] Cases involving distribution

under §841(a) support a broad construction of

the offense. The Fifth Circuit has acknow-

ledged that “distribution” is broader in scope

than the predecessor offense of "sale," United

States v. Workopich, 479 F.2d 1142, 1147 n. 6

14 Section 841(b)(4), Title 21, provides

that any person who violates §841(a) "by dis-

tributing a small amount of marijuana for no

remuneration" shall be treated and sentenced

under 21 U.S.C. §844, as if his offense were

merely simple possession. (Emphasis added).

By implication, one who aistributes the same

amount of marijuana for remuneration does not

fall within this exception, and accordingly is

sentenced as a distributor under the more sev-

ere provisions of 21 U.S.C. §841(b)(1)(B).

(Sth Cir. 1973),!'> and has stated that the

crime is defined broadly enough "to include

acts which perhaps traditionally would have

been defined as mere aiding and abetting.”

United States v. Oquendo, 505 F.2d 1307, 1310

n. 1 (5th Cir. 1975). More generally, the

distribution provision has been held to crimi-

nalize “participation in the transaction view-

ed as a whole." United States v. Pruitt, 487

F.2d 1241, 1245 (8th Cir. 1973); United States

v. Wigley, 627 F.2d 224, 226 (10th Cir. 1980).

Such participation may consist of or include

15° See also Kitchen v. United States, 532

F.2d 445 (5th Cir. 1976) (habeas venue chal-

lenge to conviction for distribution in viola-

tion of §841(a), rejected where "there is

ample proof that the drugs were sold in the

[district where the defendant was tried]"

(emphasis added)), and United States v. Felts,

497 F.2d 80, 82 (5th Cir.), cert. denied, 419

U.S. 1051, 95 S.Ct. 628, 42 L.Ed.2d 646 (1974)

(§841(a) distribution conviction affirmed fol-

lowing United States v. Spence, 425 F.2d 1079

(5th Cir. 19/70), which involved predecessor

offense of "sale").

A-19

the transfer of actual possession, e.g., Uni-

ted States v. Pool, 660 F.2d 547, 561 (5th

Cir. 1981), or the transfer of constructive

possession. E.g., United States v. Ramos, 666

F.2d 469, 475-76 (11th Cir. 1982); United

States v. Felts, 497 F.2d 80, 82 (5th Cir.),

cert. denied, 419 U.S. 1051, 95 S.Ct. 628, 42

L.Ed.2d 646 (1974). However, distribution may

also consist of or include other acts perpe-

trated in furtherance of a transfer or sale,

such as arranging or supervising the delivery,

or negotiating for or receiving the purchase

price. See United States v. Ramos, 666 F.2d

at 475-76; United States v. Wigley, 627 F.2d

at 225-26; United States v. Witt, 618 F.2d

283, 284-85 (5th Cir.), cert. denied, 449 U.S.

882, 101 S.Ct. 234, 66 L.Ed.2d 107 (1980);

United States v. Chester, 537 F.2d 173 (5th

Cir. 1976), cert. denied, 429 U.S. 1099, 97

S.Ct. 1120, 51 L.Ed.2d 548 (1977); United

States v. Oquendo, 505 F.2d at 1309-10;

A-20

United States v. Felts, 497 F.2d at 82; cf.

United States v. Davis, 564 F.2d 840, 844-45

(9th Cir. 1977), cert. denied, 434 U.S. 1015,

98 S.Ct. 733, 54 L.Ed.2d 760 (1978); see also

United States v. Wilson, 657 F.2d 755, 761-62

(Sth Cir. 1981), cert. denied, 455 U.S. 951,

102 S.Ct. 1456, 71 L.Ed.2d 667 (1982).

[8] The evidence in this case, viewed

in the light most favorable to the government,

unquestionably supports the finding of a con-

tinuous sales transaction between Brunty as

seller and Agent Look as buyer and that Brunty

performed acts in furtherance of that sale in

the Middle District of Florida both prior and

subsequent to his acts in the Southern Dis-

trict of Florida. Brunty's prior participa-

tion included discussing and making arrange-

ments for the delivery and sale, inspecting

the proposed purchase money, and departing

from Merritt Island for the purpose of re-

A-21

trieving the marijuana. Brunty's participa-

tion after leaving the Southern District of

Florida included his efforts to collect the

purchase money. These acts comfortably sup-

port the charge that Brunty distributed the

marijuana in the Middle District of Florida.

See United States v. Ramos, supra; United

States v. Oquendo, supra; United States v.

Felts, supra; United States v. Chester, supra.

Appellant argues that because he could

have been convicted of distribution in the

Southern District of Florida for the acts he

performed there, his crime must be viewed as

completed prior to his return to the Middle

District. However, as we have emphasized, the

relevant test is not whether distribution was

committed in the Southern District, but whe-

ther the transaction viewed as a whole was

completed in the Southern District. Because

the evidence shows that Brunty expected pay-

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ment upon his return to Merritt Island, it was

proper for the jury to view Brunty's offense

as continuing into the Middle District of

Florida.'® our conclusion is reinforced

by a line of cases involving importation of

narcotics, in violation of 21 U.S.C. §952(a),

which hold that although the crime is commit-

ted the moment the narcotics enter the United

States, it continues and is not completed un-

til the narcotics reach their point of desti-

nation, and consequently venue lies in any

district along the way. United States v.

Phillips, 664 F.2d 971, 1031 (Sth Cir. 1981),

cert. denied sub nom., Platshorn v. United

States, U.S. , 103 S.Ct. 208, 74

L.Ed.2d 166 (1982); United States v. Gray, 626

16 Brunty's argument, of course, also ig-

nores his participation in the distribution in

the Middle District of Florida prior to his

acts in the Southern District oF Florida.

F.2d 494, 497-98 (5th Cir. 1980), cert.

denied, 449 U.S. 1091, 101 S.Ct. 887, 66

L.Ed.2d 820 (1981), and sub nom., Wright v.

United States, 449 U.S. 1038, 101 S.Ct. 616,

66 L.Ed.2d 500 (1980); Barker v. United

States, 450 U.S. 919, 101 S.Ct. 1367, 67

L.Ed.2d 346 (1981); United States v. Godwin,

546 F.2d 145 (5th Cir. 1977); United States v.

Jackson, 482 F.2d 1167 (10th Cir. 1973), cert.

denied, 414 U.S. 1159, 94 S.Ct. 918, 39

L.Ed.2d 111 (1974).

[9-11] Additionally, we reject appel-

lant's claim that the jury could not reason-

ably have found that he retained constructive

possession over the marijuana during the re-

turn drive to Merritt Island, which possession

he did not intend to relinquish until he re-

ceived payment. Constructive possession may

be shown by ownership, dominion or control

over the contraband itself, or dominion or

control over the premises or the vehicle in

which the contraband was concealed. United

States v. Davis, 679 F.2d 845, 852-53 (11th

Cir. 1982); United States v. Marszalkowski,

669 F.2d 655, 662 (lith Cir. 1982); United

States v. Glasgow, 658 F.2d 1036, 1043 (5th

Cir. 1981). Constructive possession may be

shared with others. United States v. Davis,

679 F.2d at 853; United States v. Ramos, 666

F.2d at 476. The record shows not only that

Brunty had "ownership" of the marijuana (in

the sense that had the sale been lawful, he

could have maintained an action for the con-

tract price), but that Brunty intended, and

took steps, to retain control over the mari-

juana and Agent Morris's van until receiving

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payment. !7 Accordingly, even viewing

"distribution" as "a transfer of possession,”

the evidence supports a finding that Brunty's

release of constructive possession was not to

occur until receipt of payment, in the Middle

District of Florida. On this theory, the fact

that Bruuty was arrested before payment was

completed is of no consequence, since an “at-

17 aside from issuing numerous instruc-

tions to Agents Look and Morris, Brunty's

efforts arguably in furtherance of retaining

control of the marijuana until collecting pay-

ment include his inspecting the purchase money

before departing, his keeping close watch on

Look while in the Woolco department store, his

arrangements to have Look ride back with him

in the Pinto rather than in the van with

Morris, his buying gas for the van, his keep-

ing the van within sight during the drive, and

his accompanying Look back to Look's car upon

returning to Merritt Island.

Whether actual drug purchasers might have

been less cooperative with Brunty is immater-

ial in our view. By the same token, it is of

no legal significance that Look and Morris

were in fact government agents. See United

States v. Boney, 572 F.2d 397, 402 (2d Cir.

).

A-26

tempted transfer” satisfies the offense. 21

U.S.C. §802(8); see United States v. Tamargo,

672 F.2d 887, 890-91 (11th Cir. 1982).

For the foregoing reasons, the appel-

lant's convictions on both counts are

AFFIRMED.

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IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 81-6000

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHARLES W. BRUNTY,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of Florida

ON PETITION FOR REHEARING

( )

Before VANCE and ANDERSON, Circuit Judges, and

SCOTT, District Judge. PER CURIAM:

IT IS ORDERED that the petition for

rehearing filed in the above entitled and num-

A-28

bered cause be and the same is hereby DENIED.

ENTERED FOR THE COURT:

United States Circuit Judge

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