Petition for a Writ of Certiorari — Isbell v. United States

* Octobe’ Term, 1970 «

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> - CLIFFORD DARRELL ISBELL, -

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‘Petitioner,

VS. :

UNITED STATES OF AMERICA, | 3

. fey . _”» Respondent.

‘ Court of Appeals for the Ninth Circuit.

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: RAYMonp E, SUTTON,

324 South Third Street, ._

- Las Vegas, Nevada 89101,

; . ; ' ' Attorney for Petitioner.

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: ; a ane Parker & Son, Inc., Law Printers, Los Angeles. | Phone 685-9790

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Petition for a Writ of Certiorari to the United States

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_ Jurisdiction | za mecoanide earn tor homeo NUON Aa ay :

“Questions Presented AR SAN ed 3 ansasieewetinntepznacieie 2

“Statutory Provisions Involved — Paine a ner Ba 2:

Statement of i Ce Sinan @

Reasons for Granting the Neb SOL IO MES SR Ei hate an ae ee a Sh

Conclusion BARA ENA EN Mer EPR RE ERIS om can ermor Nay

Appendix. A. Opinion of the United States Court, of ©.

Appeals ae the Ninth Circuit veseeees s-sete-- App. Pp.

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| _TABLE OF AUTHORITIES CITED

y ; Cases - - Page.

on Bruton v. United St: ites, 39) USS. 123. 88 Ss. Ci.

_. 1620,°20 L. Ed. 2 d 476 (1968) aleve ded hatha Satire d: odd ae

Calloway v. United States, 399 F. 2d 1006, US.

App. D.C. (1968) Pe Gael iit meee? OE POR cet 8

Davis v. Sigler, 415 F. 2d 1159, 8th Cir. (1969). B

Holt v. United States, 404 F.2d 914, 10th Cir...

© (19OB) eneeaeeeeeeceeeede leceedeneesececennmnseenechannageeeneeanies 10

- Katz v: United States. 389 U.S. 347. 88 S. Ct. 507, :

“19 L. Ed. 2d 576 (1OGB) onan ssn seceeentesatcemeape 10

_ -Menendez v. United States, 393 F. 2d 312, Sth Cir,

ae | i...) ammmerrmeecue rnunamecnines mommunriver rm uree oro 8

~ United States .v. Costello, 352 F. 2d 848. 2nd ‘Cir, 7

(1965) esssecenas SS REO EEE AEA eee Vere ARE RHE MEy a Pe ha ae

United States v. Guajardo- Melendez, 401 F. 2d

os Paty: Teh Cir. (1968) ......-..--. ialceed MS cote tha ieee 7, 8

United: States v. Kaufer, 406. F.. 54 550,- ont Cir.’

(1969). SEE pa seeieat ieee AED OR TRE cat 10°

-» y ~° United States v. Kelly, 399. F. 2d 692, 3rd Cir,

CI ices iicsncccccsonbescebegiyets siapsucsamunnssubunneaaponmatns 8

-United States v. Missler, 444 F. 2d 1293, 4th- ee:

. (1969) RON deel su 3h Gk neon ea Serpette date 10

United States v, White, °405 F. 2d 838, 7th Cir. —

(1939), cert. granted, 394 U.S, 957 (1969) .

Ziegler v. United - States, 174 F. 2d 439, 9th Cir.

; (1949), cert. denied, 338 U.S. 822, 70 S. Ct. 68,

ee, :* 94 L. Ed. 499 1949) ............ Lica sanieentadaboemeaiencane

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"Statutes == «sss -:SséRage

"United. States Code, Title 18, Ser)

United States Code, Title 21, Sec. 176(a) ..1.....2)

United States Code, Title 28, Sec. 1254(1) ....:-1,

United States Code, Title 28, Sec. 1291 ......22---.23, .

" United States Code, Title 28, Sec. 1294. ..:.......3,”

United States Code, Title 28, Sec. 1331 incl.

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Suen. Court of he United States

ei October Term, 1970.

Laer On ~ No. Fesaerecdn

* CLIFFORD DARRELL ISBELL,

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‘1. Petition for. a Writ of Certiorari’ to the United States 4

Court of a for the Ninth Circuit,

The petitioner: Ciioed .Darrell. Isbell ‘respectfully ~

: prays ‘that a writ of certiorari issue to review the judg- '

"ment and _opnion of the United States Court of Ap:.

. peals for the Ninth Circuit entered in this sappsnig

~ on bean 24,. 1970. s . i.

. Opinion Below.

The opinion: of the Court of ' Appeals, inot -yet re-

ported, appears annexed ’ hereto. No opinion was rén-.

dered by the District Court for the Distr’ fet of viuionat

Jurisdiction.

The pelea: of: the Court of Appeals for the’ Ninth

Circuit: was entered on June 24, 1970.. This petition

for certiorari was filéd ‘within thirty days of that date. |

This Court’s jurisdiction is. invoked. under 28. =

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Petitioner, — \

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Questions Presented.

-. & Whether extra-judicial statements of a co-con-

spirator made. not i) furtherance of a conspiracy but im-

‘plicating another co- conspirator can be received in evi-

dence through the testimony of a third party.

2. Should a search warrant be ‘required before a

‘wired informant cath enter a suspect’s apartment and

gain evidence: against the ‘suspect and ‘others in ‘the

apartment. xm mate

Statutory Provisions Involved.

United States Code, Title 18: *

$371. Conspiracy to commit offense or to: de-

fraud United States

If two or, more persons. tonspire either to commit

any offense against. the United States, or to defraud the -

United States, or any agency thereof in.any manner or

for any purpose, and one or more of such persons: do |

any act-to effect the object of the conspiracy, each shall

_ be fined not more than $10, 000 or imprisoned not more

eva five years, or both. oa

-

“United States Code, Title 21:

$176a. Smuggling of marihuana; penalties; evi-

dence; definition of marihuana

Notwithstanding any other provision of law, who-

ever, knowingly, with ‘intent to defraud the United

States, imports or. brings into the United States. mari-

huana contrary to law, or smuggles or clandestinely —

introduces into the United States marihudna which.

should have been invoiced, or receives, conceals, buys,

sells, or in any manner facilitates the transportation, |

concealment, or sale-of such marihuana after being im-

®,

—_ Sa

; ported or brought in, knowing the’ same: to. have been —

imported or brought into the United States contrary to

law, or. whoever. conspires to do any of the foregoing

‘acts, shall be imprisoned not less than five or more than®

twenty years and, in addition, may be fined hot more

than $20,000. . " | | :

United States Code, Title 28: gy

$1254. Courts ‘of* appeals; certiorari; appeal;

oe certified questions

Cases in the courts of agpeals may be reviewed by the

Supreme Court by the following rhethods:

‘(1) By writ of certiorari granted upon the petition ©

of any party to any civil or criminal case, before or

‘after rendition of judgment or decree;’.-...

United States Code, Title 28:

$1291. Final decisions of district courts

The courts of appeals shall have jurisdiction of ap-

peals from: all final decisions of the’ district courts of .

the United States, the United: States District Court for

the District of the Canal Zone, the District Court of ”

Guam, and the District Court of the . Virgin Islands,

except where a direct réview may be had in the Supreme

Comm . os

United States Code, "Title 28: .

31294, Circuits in which decisions reviewable

‘Appeals from reviewable decisions of the district ans

-territorial courts shall be taken to the. courts of ap-

: peals as follows: ,

(1) From a district’ court of tie United States to the

court of appeals for the circuit embracing: the district;

\ 4

Statement of the Case...

_ The petitioner and other. defendants, Bobby Randell

acs: Alan Randall Green and Nicholas Emanuel Pap-

pas, not parties to this petition, were charged by in-

dictment in the United States District Court for the Dis-

trict of Nevada withthe crime of unlawfully con-

spiring to import marihuana, in violation of 21 United

States Code $176(a), and each was found guilty of that

charge. Additionally, -Green..and Pappas were also

found guilty of unlawfully, importing marthuana in

violation of 21 United States Code § 176(a). .

‘The District Court had jurisdiction to hear and try

the case under the provisions of 28 United States Code

$1331. The United States Court of Appeals for the

Ninth Circuit had jurisdiction to review the judgment

~ of the District. C ourt under the provisions of 28 United

States Code ¥$1291-1294, —

In December 1967, Jack Smith, who was in jail in

Los Angeles, agreed to work for the government as an

informant and to specifically assist the government in

building a case against. Pappas and Green who resided

. in Las Vegas. Upon his release from jail, Smith returned

to Las Vegas, Nevada, ‘contacted Pappas, who in. turn

contacted Green, and the three ultimately met and

planned how. to bring. a- load of marihuana into Las

Vegas, Nevada from Mexico.

Pappas. and Green raised money for the purchase ‘of

the marihuana and made trips to Culican and Calex-

ic, México to sical for the purchase and de-

a =

_ livery of the marihuana. In February, 1968, Smith and-

Pappas. journeyed to Culican, Mexico to arrange for

the purchase of 300 kilos of marihuana. Pappas, after .

‘purchasing the ‘marihuana, stayedin Culican_ while

Smith returned to Los Angele’ and ultimately to Las

Vegas to make arrangements to have the marihuana

flown to Las Vegas. Pappas and Green lived together.

in the same apartment in Las Vegas; and, when Smith

returned to Las Vegas, he went to their apartment and

told Green what had occurred in Culican. At the apart-

ment, Green, out of the presence of Isbell, told Smith

that Isbell put up the first money in the marihuana deal. |

The next day, Pappas called the apartment long dis-

“tance from Culican and spoke to Green. Isbell hap-

pened to be in the apartment, as was Smith and

Brandi Harris. Isbell talked to Pappas on the exten- _

sion telephone and asked him when he would be back

and how “his” (Pappas’) clothes got back into the

apartment. After the telephone call ended, Isbell told

Smith and*Green that he was getting tired of the delay,,.

that he had a lot of money invested in Nick Pappas

and that he wanted to go East for a job and that he -

would have to go in one or two days for this job and

that when’ this transaction ‘transpired and the money }

came back that it was to be given to. his wife, that

she would know what it was about and take care of it.

Green, later, out of the presence of Isbell, told Smith

not to discuss any of the details in front of Isbell.

Because Green and Smith were. unable to obtain a

pilot to fly the airplane from Culican to Las Vegas,

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Pappas left ‘Culican’ and returned to Las Vegas. While

in Las Vegas, the three contacted Batés, who was a pilot, ,

and made. a deal with Bates for him to fly to Culican, i

Mexico, pick up the marihuana and fly it under the

rader screen back ito the United States. On February ~

24, 1968, Bates and Smith flew to Culican, picked up

the marihuana previously paid for by Pappas and flew

the airplane back into .Parker Lake, . Arizona, where

they were arrested. After the arrest, Smith and Bates

flew the plane loaded’ with 300 kilos of marihuana to

“the North Las Vegas, Nevada airport. Pappas and Green

met the airplane at the airport; and, at that time, bys

pre-arrangement with the arresting officers in, Arizona,

_ Pappas and Green were arrested. Petitioner Isbell was

arrested some time later upon voluntary surrender.—-

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ageing

REASONS FOR GRANTING THE WRIT.

wk Incriminatory, Extra-Judicial Admissions by a Co-—

Conspirator of Anather’ Co-Conspirator Through

the Testimony of a Third Party Conflict With the

Decisions oi Other Couris of Appeais. |

Co-conspirator Green, out of the ‘presence of co-con-

spirator Isbeil, told government informant Smith that

Asbell had put up the first money for the marihuana

purchase. Smith, over objection, was allowed: to testify

concerning Green's incriminatory statement about

Isbell’s investment. Objection was made to. the admis-.

sion of this portion of Smith’s testimony and the. case

of United States v. Guajardo-Mélendez, 401 F..2d 35,

7th’ Cir. (1968) was cited and a motion for mistrial

was made. The-trial court denied the motion for mis-

trial. | .

The evidence pertaining to Isbell’s participation in the

conspiracy as charged comprised of:

(1) The. statement made by Green to govern-

ment informant. Smith that ‘Isbell had put up the

- first money in the deal; and

(2) Isbell’s extension telephone conversation

with Pappas while he chanced to be ‘in the cin

Green apartment.

The Ninth Circuit Court in its opinion, at least im-

pliedly, held the. motion for mistrial might have been

granted had the proper. objection been made. The

testimony ‘of Smith was a recitation of a co-conspira-

tor’s. statement against another co-conspirator’s interest

and was not admissible as an exception to. the wie

rule..

The decision of the Ninth Circuit conflicts with the

Seventh Circuit case of United States v. - Guajardo-

- Melendez, supra, which held that testimony of this

type ‘was. inadmissible. The Ninth Circuit décision on

this point would -also appear to be in conflict with. -

United States. v. Costello, 352 F. 2d_ 848, 2nd Cir.

(1965); United -States_v. Kelly, 399 F. 2d 692,. 3rd

_ Cir. (1968):-4 enendez v. United States, 393 . F.2d

aay 5th Cir. (1968); Davis v. Sigler, 415 F. 2d 1159,

8th Cir. (1969); and Calioway v. United States, 399

. . F, 2d 1006, U.S. App.D.C. (1968). ‘These cases follow

~ Bruton v. United. States, 391 USS. 123,°88 S. Ct. 1620,

20 L. Ed. 2d 476 (1968), when cited for the proposi-

tion that there has been a denial of the right of cross-

examination as guaranteed by the Sixth Amendment.

- During the trial, co- conspirator Green testified and ~ .

generally denied his complicity in the conspiracy. Green

was not questioned on direct examination by his coun-

sel concerning the incriminating statement he made

about Isbell to Smith. Neither was he: cross-examined

_ by Isbell’s counsel. The rule has long been that cross-

examination must be related to’ direct examination. Had |

Green been questioned concerning his admissions fo

Smith about Isbell, it would have’ been improper

cross-examination. Additionally. Green could have as-

serted his privilege against self-incrimination which

would not have been waived by his direct testimony.

Ziegler v. United States, 174 F. 2d 439° 9th Cir.

(1949), cert. denied, 338 U.S. 822. 70 S. Ct. 68, 94 L.

Ed. 499 (1949). Afters Smith testified and incriminated

Isbell, the. door was judicially closed and Isbell was

bound by the testimony of Smith and could not cross-

examine Green.

i Ms

2. . Testimony of the Wired ‘Informant ‘Smith ‘Concern-

ing the Participation of the Co-Conspirators in the

- Scheme Should Have Been Suppressed.

The government informant Smith, after his release

from jail in Los Angeles, went directly to, Las Vegas

for the: sole: and specific purpose of building ‘a criminal

case against Green and Pappas. Smith had previously

engaged in smuggling activities with Pappas’ and’ Green

and other persons who were’.not defendants in this

case. After Smith arrived’ in Las Vegas, he was in®

constant contact with Customs’ Agent Diaz. Following

| Agent Diaz’ instruttions, Smith wore a monitoring and

“transmitting device. when he went to the Pappas-Green

3% apartment. Customs agents were stationed in the apart-

nient adjacent to the Pappas-Green apartment and _re-

ceived transmissions from the monitoring. device worn

by Smith. oe F

During the trial, Smith testified to the conversations

that he overheard while wearing the monitoring device

in the’ apartment. Agents who were in the adjacent.

apartment did not testify or corroborate Smith’s testi-

mony nor were the recordings. of the monitored con-

versations admitted into evidence. The petitioner Isbell

filed a motion to suppress Smith's testimony concerning

the apartment ‘conversations, which was ‘denied. No

search warrant was issued which permitted Smith to

transmit the conversations from, the Pappas and, Green.

apartment.’ Smith testified that he had not received

"permission to monitor the-conversations in the apart-

ment. The Ninth Circuit Court. of Appeals did not

reach the question as. to whether Smith was requiréd

to have a search warrant before he could enter the _

Pappas and Green apartment wearing a monitoring

- 10—

device, and decided that a party-to a conversation may

_ testify as to what transpired, although the conversation

was recorded and transinitted. The government's pur-

| pose in equipping Smith witha transmitting or moni-

toring device" was to gain prosecution evidence against

- the various defendants. No. other reason oxistal for

tee.

oy ‘

equipping Smith with’ a monitoring: device. While the

Ninth. Circuit did not reach the questions, the Severfth

Circuit in United States v. White, 405 F. 2d- 838 —

(1939) ‘cert. granted, 394 USS. 957 (1969). touched

the periphery ’ of this question by holding inadmissible

testimony of government agents concerning conversa-,

tions that they heard through the use of an electronic

pki: device. The ‘Fourth Cifcuit in, United Staves

. Missler, 414 F. 2d 1293 (1969), held: admissible

testimony of officers who had concealed themselves in

‘a government informant’s apartment at the informant’s

invitation. There was no Fourth Amendment violation —

in United States v. Kaufer, 406 F. 2d.550, (2nd Cir.

1969), although the agent consented to carry a trans-

mitting and Tecording device when he engaged in

conversations with the defendant, not in the defend-

ant’s home but at a pre- -arranged meeting place. There

‘was‘no Fourth Amendment violation in Holt v. United

States, 404 F. 2d_914 (10th Cir. 1968). where the .in-

formant testified as to bugged conversations and the

recording was admitted into evidence, to corroborate

the ‘informant’s testimony. These decisions, taking as

their ‘starting, point Katz v. United States, 389 US.

347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1968), each

are distinguishable from petitioner's case:

Informant Smith. taped with a ‘transmitting device,

entered the Pappas and Green apartment without. a

He

—i—

search warrant and without the consent of either Pap-_

pas er Green. Smith’s sole ‘purpose of being in the _

apartment was to gain evidence against Pappas, Green -

and dnyone else. The fact that’ the recordings were. not

used in evidence is fortuitous. The privacy of the Pap-

* pas and Green apartment was invaded. The occupants

of the apartment had the right to believe in the, sanc-

. tuary of ‘their apartment. The situation is not nlike

the Katz situation, supra, and the electronic recording ‘

of the telephone conversation from a public telephone

booth. In both instances, there was invasion of privacy.

_ The warrantless intrusion of a wired informant violates

a citizen’s Fourth Amendment privacy.

Conclusion.

~~)

For these reasons, a writ of certiorari should issue

to review .the judgment and oe of the > Ninth Cir-

cuit. |

. Respectfully submitted,

RAYMOND E. SUTTON,

~ Counsel for Petitioner.

ve

J udges. *

- tions merit discussion None Tequires a revérsal.

APPENDIX A.

Opinion of the United States Court of Appeals. |

fi. for the Ninth Circuit. ee

United States Court of Appeats for. the Ninth. Cir- |

3

“United Statés 4 America, Appéllee, VS. Bobby Ran-

_-dall Bates, Appellang. No. 24,777.

_ United States of America, Appellee, Vs. “Alan Ran-.

a dall Green, Saas No. 24,778."

United § yes of- Ametica,. Abpellee, $s. Clifford Dar-

rell Isbell, Appellant. No. 24.779.

United States. of America, Appellee, VS. ‘Nicholas |

Emanuel Pappas, Appellant. No. 24, 780.

[June 24, 1970] 7 ©

_ Appeal gion the’ United States District Court. for’ the’

District of Nevada. .

Before: HAMLIN, ELY cand CARTER, Circuit

_ JAMES M. CARTER, Circuit judge:

".

“Appellants were: ‘convicted for their participation “in a

plan ‘to fly a load of. marihuana into.the United States . ~ ;

from Mexico. A! Hy appellants were found guilty of one-

count of conspiracy - to unlawfully import marihuana.

: Appellants Green and Pappas were ‘also found guilty,

Of-one count of -unlawfully. importing marihuana, 21 «

U.S.C. 176a and 18 U. S.C. 2. All appellants challenge

their convictions ona variety of grounds, Four conten-

K

cae, ae

I... Motions to Suppress Evidence Made by Green and

Isbell Were Properly Denied.

Smith, the government informer was equipped with a |

transmitting device. Conversations he had with the’ four

appellants and others were transmitted and recorded

under the supervision of customs agents.. However, the

recordings were- not offered in evidence. Smith testi-

fied to the conversations: 5 .

_ A party to a conversation may testify to what: trans-

pired although the conversation -was recorded or trans-

mitted by electronic. devices. Lopez v. United States,

373 U.S. 427 (1963): On Lee’y. United States, 343

U.S. 747 (1952). oo

We do not reach the question as to ‘the propriety of

entering the recording in evidence or of using the tes-

- timony of agents who heard the conversation as it came

over the transmitting device. The latter was the is-

sue in United States v. White (7 Cir. 1969), 405 F.2d

838, cert. granted 394 U.S. 957 (1969). relied on’ by

om as Isbell. We find no error.

Il. The Jury Was pie sie Ae Given the Entrapment

Question. ee

- Green and Pappas contend they | were eceaneed. into

‘the marihuana conspiracy by the government informer,

Smith. Both testified in support ‘of their contentions.

The trial court treated the question as one of fact and

properly instructed the -jury as to the entrapment de-

fense. The jury’s verdict showed the jurors’ disbelief

of appellants’ contention. Appellants now claim that

the entrapment ‘question | was a question of law that

the court should have resolved in their favor.

’

’

-\

wiley. |

A reading of the evidence indicates the- correctness

of the trial court’s actions. While: it is coneeded that

Smith’ was instructed to assist in the apprehension of_

Pappas and Green, very little in ‘his testimony suggests

that the two were not willing participants in the smug- _

gling scheme. Smith’s testimony does not support appel-

lants’ contentions that. they. were extremely reluctant to

enter, the venture. Smith and his wife also testified as

to prior drug dealings by the appellants.

We have held that entrapment is a question of la :

only where the evidence is substantially undispute Y

Enciso v. United States (9 Cir. 1967), 370 F.2d 749.

Here appellants presented a rather, weak showing

of entrapment which did not correspond to the ‘account.

of the informer. The question was properly left to the

jury. - |

Ill. There Was Sufficient Evidence to Convict Isbell.

Isbell contends that there ‘was insufficient evidence to

permit the jury to find him guilty on the conspiracy

count. We disagree. . |

Informer Smith testified that appellant Pappas <a

long distance from Mexico after he had purchased the

marihuana. Green answered the phone and Isbell an-—

swered on the extension. Both talked to Pappas. Isbell

questioned .Pappas about a party who came back up

from Mexico. Isbell asked Pappas when he would be

back. After the phone conversation ended, Isbell said

that he was tired of the delay, that he had a lot of

money. invested in Nick Pappas, and that he wanted to

go East for a job. He asked that when “this transaction

-) transpired” and the money arrived it be given to his

wife, who would take care. of it. Green told Isbell not to

worry. because everything would: be all right.

conspiracy.

a om

Evidence of a conspiracy must: ordinarily, be based

on inference drawn from competent circumstantial evi-

dence. Miller v. United States (9 Cir, 1967), 382 F.2d

583, 586, cert. denied 390 U.S. 984 (1968); Diaz-

Rosendo v. United States (9 Cir. 1966), 357 F.2d

124, 129, cert. denied 385 U.S. 856 (1966). We be-

lieve that Isbell’s teléphone conversation and statements -

provided: a sufficient showing of his participation in ‘the

Smith also testified ‘that the day before the phone |

“conversation, he had talked with Green outside the pres-

ence of Isbell. Green told him that Isbell had put up

the first money in the marihuana purchase | venture.

Counsel for. Isbell objected to the introduction of this.

evidence and - asked to. make a motion outside the

presence of the jury. Counsel then moved for a mis-

trial as to Isbell because. the Government's bill of par-

ticulars had not placed Isbell within the conspiracy at

the time Green made his statement to Smith. The judge

denied: the motion. A reading of the bill of particulars

makes ‘clear that the Government. had not stated ghat

Isbell entered the conspiracy after the date of the Green

statement. The motion was thus properly denied.

On proper objection, the motion ‘might have been.

granted because the statement of Green was evidently

not made in furtherance of the conspiracy but as merely

# recitation of past facts. As such, it would not be

an exception to the hearsay rule and would not bind Is-

bell. This objection, however. was never raised.

The trial court at various’times during the trial and

in the final instructions to the jury properly and -care-

fully instructed the jury that a defendant could not be

found to be a conspirator on the basis of what some

Soules

other conspirator or co-defendant might have said about

‘him.’ A finding of participation could only be based on

__testimony_of_the defendants own acts and statements

/ showing he knowingly and consciously joined the cqn-

| spiracy. In the fact of these curative instructions, we

{ are not faced with plain error under Fed. Rules Crim. ‘

' Proc. 52(b). « :

IV. “Isbell Was Properly Sentenced.

Isbell was convicted of a violation of Count 1 of -

the Indictment and sentenced to five years in prison.

Count | stated in pertinent part that Isbell “did .. .

| conspire . ... to commit: an offense against the United

States, that is to knowingly and with intent to defraud

the United States import . . . 300 kilograms of. mari- |

huana, in violation of Title 21, United States -Code,.

Section (sic) 176(a).” The count specified thirteen overt

acts and concluded with the language, “All in viola-

tion of Title 18, Section 371, United States Code.”

Isbell contends that the trial court erred in sentenc-

ing him under 21 U.S.C. 176a rather than under 18°

- USC. 371, ‘the general conspiracy statute. Although

Isbell concedes that the five - ‘year sentence he received,

was authorezed under either statute, he claims that he

was denied the possibility of probation by being sen-

tenced under §176a. The Government contends that

despite. mention of 18 U.S.C. 371, sentencing was. re-

quired to be in accordance with 21 U.S.C. 176a. We

agree with the Government's position.. =

a 21 U.S.C. 176a forbids a variety of acts relating ‘to

| the introduction. of marihuana into the United States.

It also provides forthe punishment of anyone who

“conspires to do any of the foregging acts”. Faced with:

a ae

two conspiracy statutes,-one general and the other spe-

cific, the specific must control. Tanksley v. United

States (8-Cir.1963),-321-F.2d_ 647; United States_v.

- Galgano (2 Cir. 1960) 281 F.2d 908, 910-11, -cert. °

denied 366 U.S. 967 (1961); Davis v. United States ~

(5 Cir. 1960), 279 F.2d.576; Georges-v- United States

(5 Cir. 1959), 262 F.2d 426, 431-32. As stated in Davis

in connection with a narcotic conspiracy statute simi-

lar to 21 U.S.C. 176a: “Congress, when it enlarged the

penalties, and préscribed’ minumum prison terms, for

narcotic offenses, issued a command which is binding |

on the courts. The District Court was bound to impose

sentence under 26 U.S.C.A. §7237 rather than under

18 U.S.C.A. $371, and the resulting sentence is “not

illegal.” 279 F.2d at 578. This circuit has recently by

order granting a writ ef mandamus, voided a district

judge’s grant of probation to a defendant indicted and

tried under 21 U.S.C. 176a but convicted and sentenced ‘.

for a conspiracy under 18 U.S.C. §371 to violate 26

U.S.C. §4744a. United States v. Real, (No. 24, 364,

2/10/70).

The transcript of sentencing further rebuts Isbell’s

claim. The trial judge, observed that he would have im-

posed the same sentence, whether “the sentence was

under either §176a or §371. Therefore, Isbell would

not. have been given probation, and parole is, now

available ‘under §176a as-it always has been under

§371. ;

Other matters raised by appellants have been con-

‘sidered and found to be without merit.

The judgments are Affirmed.