Petition for Writ of Certiorari — Koniecki v. United States

Page

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MOINS TON GO ii iiessianidesie nh 3

Reasons for granting the Writ .....0..........cccccccecesseeeeeeeeoees 7

I. The ruling below affirms convictions for a

marihuana importation conspiracy which al-

legedly existed during a period when mari-

huana was not a controlled substance ................ 7

II. Petitioners’ convictions were affirmed upon a

theory of guilt different from that set forth in

the trial court’s instructions and argued by de-

fense counsel in summation; had the appellate

court analyzed the evidence underlying the ele-

ments of the offense as charged by the trial

court, it would have found the evidence insuffi-

Coemt wn mpntier OF 100 occ eecsccscesaesment 11

III. The “mere association” of Wells with other

members of the alleged conspiracy is not suffi-

cient evidence to support her conviction for

COIR ICY iscsi ccrsanscinancesanssaendasinninibaioniadeatnaielak 14

IV. Under United States v. Falcone, 311 U.S. 205

(1949), a conviction for conspiracy to import

marihuana cannot be sustained where the only

evidence against petitioner was that he intro-

duced a willing buyer of marihuana to a will-

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Appendix:

Opinion of United States Court of Appeals for

the Seventh Circuit in United States of

America v. Dennis E. Koniecki, et al. ............ la

Opinion of United States Court of Appeals for

the Seventh Circuit in United States of

America v. Joseph Nocar, et al. ....ccc00000-0.... 8a

CITATIONS

Cases:

Bell v. United States, 349 U.S. 81 (1955) 0000... 10

Borak v. Biddle, 141 F. 2d 278 (D.C. Cir. 1944) .... 10

Bouie v. City of Columbia, 378 U.S. 347 (1964) ...... 13

Cole v. Arkansas, 333 U.S. 196 ‘PRESS ieee 13

Diaz-Rosendo v. United States, 364 F. 2d 941 (9th

oe eters eB ven x ektr BaeONOREES oh OR OTT 14

Glasser v. United States, 315 U.S. 60 dy, 5 ee 15

Grunewald v. United States, 353 U.S. 391 (1957) .... 15

Hotch v. United States, 212 F. 2d 280 (9th Cir.

i, ECE BOL SFIS Rin Base ON TEEN 10

Ingram v. United States, 360 U.S. 672 (1959) ........ 14, 17

Ladner v. United States, 358 U.S. 169 (1958)... 9

McDaniel v. United States, 24 F. 2d 303 (5th Cir.

haga, ee tes TER OIE PSD CONE Bee 16

Michaud v. United States, 350 F. 2d 131 (10th Cir.

Mgr TAA Tie PSN ot la aR rca ENED NTT 12, 13

Panci v. United States, 256 F. 2d 308 (Sth Cir

i a Nr RE ee oe 15

Rabe v. Washington, 405 U.S. 313 (1972) ................ 13

Page

Rewis v. United States, 401 U.S. 808 (1971) -........... 10

Spevack v. Klein, 385 U.S. 511 (1967) ............-----002+ 13

United States v. Bass, 404 U.S. 336 (1971) -....00......-.. 9

United States v. Falcone, 311 U.S. 205 (1949) ........ 15, 16

United States v. Hysohion, 448 F. 2d 343 (2d Cir.

hf ENE EROS AL OS NELLIE AEN ESET OE 16

United States v. Leggett, 312 F. 2d 566 (4th Cir.

hy RE REICH RIPE ae se rot TO 13

United States v. Louisville & N.R. Co., 165 F. 936

ARR |) Span E NM Rene Mn wene Prone ee ome 10

United States v. Nocar, — F. 2d —, Nos. 73-1703,

73-1704 (7th Cir., May 31, 1974) ........--.--sccscneesseeee 8,9

United States v. Universal C.I.T. Credit Corp., 344

ER OME: Bee: 7 etaiiulaias © ener eneeeth rower Abt kaU Fee 10

United States v. Webb, 359 F. 2d 558 (6th Cir.

1966) ......... OF, Wate eee ow ante! || 6ST eae 15

Statutes and Rules: :

21 U.S.C. §§801-966 Sereda cnearnoreanieareione Taks Seas 8,9

Be I Nast ha cdenetinletecenherntelsdp cht eacecntas 9

LE? ally | SERRE Gace. Senne mee Fi 8,9, 10, 11

MN ics sades cacensectesiccncasivh iauiatuass sadababbducnlatccoooen 3

ee I astro ntreavcctnioivnin dcaamsiasaemmmnaeriene 3

I Me se PN eases evceccresctsercicsanccncpicnctev rene eeemiierniboomisniceati 2

Rule 28 Rules of United States Court of Appeals for

ee MINN ARON sche etttic ice cence eeeecanohinoee I

Miscellaneous:

Be OD vrcncrettsin ence teenie ne annngeoe 8

ee

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1974

No.

DENNIS E. KONIECKI, BARRY M. TEFKA,

ROSEMARY ELLEN WELLS, DAVID FREDERICK,

and JOHN J. RUSNIAK,

Petitioners,

vs.

UNITED STATES OF AMERICA, . \

Respondent.

,»PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

The petitioners respectfully pray that a writ of certio-

rari issue to review the judgment and order of the United

States Court of Appeals for the Seventh Circuit entered

in this proceeding on July 29, 1974.

ORDER BELOW

The order of the Court of Appeals is not reported pur-

suant to Rule 28, Rules of the United States Court of

Appeals for the Seventh Circuit, and appears in the

Appendix at la, infra. No opinion was rendered by the

United States District Court for the Northern District

of Illinois.

2

JURISDICTION

The judgment of the Court of Appeals for the Seventh

Circuit was entered on July 29, 1974. Petitions for re-

hearing, plus suggestions of rehearing en banc, were

denied on September 6, 1974. This Court's jurisdiction

is invoked under 28 U.S.C. §1254 (1).

QUESTIONS PRESENTED

1. Whether the republication of the schedules of con-

trolled substances on May 12, 1972, complied with the

republication provisions of 21 U.S.C. §812(a) and, if

not, whether such non-compliance rendered the schedules

inoperative during the period covered by this indictment.

2. Whether a conviction may be affirmed upon a

theory substantially different from that upon which the

jury was instructed.

3. Whether the evidence was sufficient to support the

conviction of petitioner Wells of conspiracy.

4+. Whether the evidence was sufficient to support the

conviction of petitioner Rusniak of conspiracy.

STATUTE INVOLVED

21 U.S.C. §812(a)

“There are established five shedules of controlled sub-

stances, to be known as schedules I, IT, III, IV, and V.

Such schedules shall initially consist of the substances

listed in this section. The schedules esiabtished by this

section shall be updated and republished on a semiannual

basis during the two-year period beginning one year

after the date of enactment of this subchapter and shall

be updated and republished on an annual basis there-

after.” [Emphasis supplied ]

3

STATEMENT OF THE CASE

A. The Proceedings Below

The petitioners were jointly indicted in the United

States District Court for the Northern Distiict of Illinois

for a conspiracy to import marihuana into the United

States from Mexico in violation of 21 U.S.C. §963. Fol-

lowing a jury trial, all of the petitioners were convicted.

The following sentences were imposed: Koniecki, five

years imprisonment; Tefka and Rusniak, four years im-

prisonment; Frederick, three years imprisonment;

Wells, three years suspended sentence, probation three

years, first six months thereof to be served in a jail-type

institution. The United States Court of Appeals for the

Seventh Circuit affirmed the convictions on July 29, 1974.

B. Testimony of the Government Chemist

Mr. Robert R. Bozeman testified that he was a chemist

employed by the United States Customs Service and had

performed certain tests upon government exhibit 100.

In his cross-examination, he testsified as follows:

Q. Did you make a test to determine the hailucino-

genic properties within that exhibit, sir?

A. No, sir, other than the fact that I did identify it

as marihuana Cannabis Sativa. (T. 493-494)’

C. Charge to the Jury

In discussing the elements of the offense, a Court

charged the jury as follows:

“Title 2', United States Code Section 952(a) pro-

vides in pertinent part, in substance as follows: ‘It

1 Throughout this petition, references to the trial transcript will be

indicated as T1, T2, etc.

4

shall be unlawful to import into the United States

from anyplace outside thereof any control [sic] sub-

stance.’

“And Title 21, US Code, Section 812(c) provides:

‘As a matter of law, any material, compound, mix-

ture or preparation which contain any quantity of

marihuana is a Schedule I control [sic] substance.’

And you are hereby advised that marihuana is a non-

narcotic control [sic] substance.

“The term marihuana means ‘All parts of the plant

Cannabis Sativa L., whether growing or not, seized

[sic] thereof, resin extracted from any part of such

plant, and every compound, manufacture, salt, de-

rivative or mixture in preparation of such plant,

seeds or resin. Such term does not include the mature

stalks of such plant, fiber, fiber produced from such

stalk, oil or cake made from the seeds of such plant

and any other compound, manufacture, sale, [sic]

derivative, mixture, preparation of such mature

stalks, except the resin extracted therefrom, fiber, oil

or cake or the fiber oil [sic] or seed of such plant that

is incapable of germination.’

‘“*Marihuana as defined in Section 8215 [sic], Title

21, U.S.C., is a control [sic] substance, unless speci-

fically excepted if it contains any material, com-

pound, mixture or preparation which contains hal-

lucinogenic substances or which contains any of their

salts, isomers and salts of isomers whenever the exis-

tence of such salts, isomers and salts of isomers is

possible within the specific chemical designation.’

“If the Government has not proved beyond a reason-

able doubt that the substance in question is included

in the definition that I have read, you should find the

defendant not guilty.” (T. 837-839) (Emphasis

supplied )

5

D. Closing Argument

Defense counsel in summation argued as follows:

“The Judge will also tell you that Congress passed

another part of the law about marihuana, this un-

usual substance. He will tell you that if the substance

contains any material — I’m sorry; the Judge will

tell you that marihuana is a controlled substance, un-

less, it is specifically excepted, if it contains any

material, compound, mixture or preparation which

contains hallucinogenic substances or. which contains

any of their salts, isomers and salts of isomers when-

ever the existence of such salts, isomers and salts of

isomers is possible within this specific chemical de-

finition.

“Now I don’t want you to think that I was trying

to confuse you when I was cross-examining Mr.

Bozeman. The definitions in the statute required

me to cross-examine him.

“He said with respect to my questions about its hav-

ing hallucinogenic properties, that is, properties

which cause, if a person uses this, smokes it, I sup-

pose, causes hallucinations. He never made one test

to make that determination. (T. 773)

* * *

“It is a two-aspect case. I don’t want you to think

that I was being merely frivolous or that I was being

an obstructionist when I was cross-examining the

chemist. The statute required me to, the same stat-

utes that say to you, if, in the totality of this case,

if there is in your mind a reasonable doubt in this

case about the evidence with respect to the guilt of

Tefka or the existence of marihuana according to the

statute, it is your duty to acquit. We call upon you to

discharge that duty.” (T. 774-775)

6

E. Evidence Against Wells

The evidence relied on by the United States Court of

Appeals for the Seventh Circuit in affirming Wells’ con-

viction for conspiracy was as follows:

“She was present on numerous occasions during the

critical planning and coordinating phases of the con-

spiracy in United States and Mexico. She and Tefka

met twice in Chicago and she drove the car in Chi-

cago in an evasive design to avoid any trailing cars.”

Appendix at 7a.

Wells was Tefka’s girlfriend. She was “along for the

ride.” The only proof against her was that she associated

with Tefka.

The only act claimed to have been committed by Wells

was that she drove a car in Chicago “in an erratic man-

ner.” (IT. 510) No evidence was adduced that she was

aware of what was being discussed by the other occupants

in the car. She took directions from Tefka as to the route.

(T. 170-172) No evidence was adduced that she partici-

pated in any conversation.

F. Evidence Against Rusniak

Examination of the evidence introduced of petitioner

Rusniak’s own acts and declarations reveals that in Au-

gust, 1971, Rusniak was present when Frederick, who

knew Price, asked Price whether he would be interested

in flying a load of marihuana from Jamaica into Florida.

(T. +5) On January 27, 1972, Rusniak met Price at the

airport in Chicago and drove him to Rusniak’s apartment.

(T. 49) At the apartment Rusniak introduced Price to

Koniecki and Tefka, and then Price only had a conversa-

tion with Tefka and Koniecki. Koniecki suggested to

price that they fly marihuana into the country from Mexi-

7

co. (T. 53) The next day Rusniak, Tefka, Koniecki and

Price met at a coffee shop in Chicago. Rusniak sat by as

Koniecki stated to Price that he had a supply of mari-

huana in Mexico and that it could de flown out into

Florida. (T. 55) On February 10, 1972 in Fort Myers,

Florida at Frederick’s house, Price met with Frederick

and Rusniak. Frederick told Price that he (Frederick)

would look for an aircraft and would finalize a lease on

the aircraft and suggested different airports that could

be used in the Florida area. (T. 57) In the opinion be-

low, the summary of the evidence incorrectly states that:

‘“Rusniak was to find a suitable air strip in Florida” and

that he was aided in the search for the air strip by the

other four alleged co-conspirators. Appendix at la.

There is nothing in the evidence to indicate that Rus-

niak did anything to obtain an air strip in Florida. None

of Rusniak’s acts or declarations indicate any participa-

tion in the importation of marihuana or that he had any

stake or financial interest in the profits of such an importa-

tion. This is the total evidence of acts and declarations of

Rusniak presented by the Government.

REASONS FOR GRANTING THE WRIT

I. The ruling below affirms convictions for a mari-

huana importation conspiracy which allegedly ex-

isted during a period when marihuana was not a

controlled substance.

In affirming these convictions, the United States Court

of Appeals for the Seventh Circuit has decided an impor-

tant question of federal statutory law which has not been

settled by this Court, nor by any Court of Appeals.

5 Mintden a ce |

8

Section 812(a), Title 21, United States Code, estab-

lished five schedules of controlled substances. The section

was included in the Comprehensive Drug Abuse Preven-

tion and Control Act of 1970 which Was enacted on Octo-

ber 27, 1970. 21 U.S.C. §§801-966.

Section 812(a) provides in pertinent part:

“The schedules established by this section shall be

updated and republished on a semiannual basis dur-

ing the two-year period beginning one year after the

date of enactment of this subchapter and shall be

updated and republished on an annual basis there-

after.”

Petitioners construed this language as requiring updating

and republication. of the schedules on October 27, 1971,

one year after the date of the enactment of the subchapter.

The first republication of the schedules occurred on May

12, 1972. 37 Fed. Reg. 9545. Thus, petitioners asserted

that there was no schedule of controlled substances in

effect from October 27, 1971 to May 12, 1972, a period

encompassing the duration of the conspiracy.

The Seventh Circuit construed the above-included |Jan-

guage not to require republication until April ny CVG,

and held that during the alleged conspiracy “there was a

valid publication in effect rendering conspiracy to im-

port marihuana from Mexico to the United States a

crime.” Appendix at 3a. The Court of Appeals sug-

* “Therefore, the first republication was due on April 27, 1972... .”

United States v. Nocar, — F. 2d —, Nos. 73-1703, 73-1704 (7th Cir.,

May 31, 1974), Appendix at 3a. The Court of Appeals in the instant

case held that Nocar “controls our decision here... .” Appendix at 3a.

9

gested that petitioners’ construction of Section 812(a)

would require a statute which read:

“The schedules established by this section shall be

updated and republished one year after the date of

the enactment of this subchapter and every six

months thereafter for two years.” Nocar, Appendix

at I4a.

Petitioners respectfully suggest that the Court of Appeals’

construction of the language would require a statute

which read:

“The schedules established by this section shall be

updated and republished eighteen months after the

date of the enactment of this subchapter and every

six months thereafter for eighteen months.”

Both of these proposed statutes are clear; in this respect

they differ from the one enacted by Congress.

Where language in a penal statute is so ambiguous that

more than one construction is possible without doing vio-

lence to its words, punctuation or syntax, courts must

attempt to discern the intent of the drafters and then ap-

ply the “policy of lenity.” Ladner v. United States, 358

U.S. 169, 177 (1958). Petitioners assert that an examina-

tion of the Controlled Substances Act, 21 U.S.C. §801

et seq., makes clear that Congress intended its legislation

to remain current with scientific knowledge related to

controlled substances and drug abuse. See, e.g., 21 U.S.C.

§§801 (1) ; 811 (a) (1) ; 811(c) ; 812(b) (1)-(5). Petition-

ers’ construction of §812(a) achieves this objective to a

greater extent than does that of the Court of Appeals.

The policy of lenity requires that any doubts concern-

ing the applicability of a criminal statute must be re-

solved in favor of the defendant. United States v. Bass,

on righ Bre |

10

404 U.S. 336, 348 (1971); See also Rewis v. United

States, 401 U.S. 808, 812 (1971); Bell v. United States,

349 U.S. 81 (1955); United States v. Universal C.I.T.

Credit Corp., 344 U.S. 218, 221-222 (1952). Section 812

(a) is clearly a penal statute; the construction of the

Court of Appeals resolves the ambiguities against peti-

tioners and is thus in conflict with prior decisions of this

Court.

Assuming this Court agrees with petitioners’ construc-

tion of §812(a) that republication of the controlled sub-

stances schedules was required by October 27, 1971, then

no valid schedule of controlled substances was in effect

during the period of the conspiracy.

“(T]he Administrative Procedure Act and the Fed-

eral Register Act must be read as a part of every

Congressional delegation of authority, unless speci-

fically excepted. Those Acts require publication, ir-

respective of actual notice, as a prerequisite to the

issuance of a regulation making certain acts crimi-

nal. If notice of a proposed rule is not published in

the Federal Register at least thirty days prior to its

issuance, or if good cause is not found and published

for the immediate issuance of a rule, the rule cannot

be legally issued; if the rule itself is not published,

it follows that it has not been issued; and if a rule

has not been issued, it has no force as law.” Hotch v.

United States, 212 F. 2d 280, 283-284 (9th Cir.

1954).

See also Borak v. Biddle, 141 F.2d 278 (D.C. Cir. 1944) ;

United States v. Louisville & N.R. Co., 165 F. 936, 939-

941 (W. D. Ky. 1908).

A conspiracy to import a controlled substance is not an

indictable offense if at the time of the conspiracy there

are no controlled substances.

11

II. Petitioners’ convictions were affirmed upon a

theory of guilt different from that set forth in the

trial court’s instructions and argued by defense

counsel in summation; had the appellate court

analyzed the evidence underlying the elements of

the offense as charged by the trial court, is would

have found the evidence insufficient as a matter

of law.

During cross-examination of the government chemist,

defense counsel established that no tests had been per-

formed upon the marihuana (government exhibit 100)

to determine its hallucinogenic properties. In the instruc-

tions conference defense counsel explained that he had

asked questions concerning tests for hallucinogenic prop-

erties because the statute required proof of such proper-

ties as an element of the offense. (T. 652-656) Petitioners

tendered an instruction which interpreted 21 U.S.C. §812

(c) as requiring proof that the exhibit cuntained a quan-

tity of a hallucinogenic substance. (Defendant Tefka’s

proposed instruction no. 2) The Court informed counsel

that it would submit this instruction. (T. 656) Defense

counsel argued in summation that no tests had been per-

formed to determine whether exhibit 100 had hallucino-

genic properties (T. 773-775), and the Court submitted

the instruction on hallucinogenic properties. (T. 838-

839)

After conviction, petitioners filed post-conviction mo-

tions in which it was asserted that there was no proof

whatsoever that the exhibit contained substances with

halucinogenic properties.

The Seventh Circuit held that, since this was a con-

spiracy prosecution, the government was not required to

viamesnas dae ae

12

prove the identity of the substance imported nor required

to prove that such substance had hallucinogenic proper-

ties. See Appendix at 4a. On this theory these con-

victions were affirmed.

Petitioners assert that, regardless of the correctness of

the judge’s charge, such charge was the law of this case

and the evidence must be analyzed in the light of this

charge. In this prosecution the government was required

by the Court’s instructions to prove that exhibit 100 had

hallucinogenic properties. Its proof failed and petition-

ers’ post-verdict motion for acquittal should have been

granted.

Appellate courts on several occasions have considered

the impact of erroneous instructions which were more

favorable to defendants than the correct instruction. In

each instance, however, the government met the higher

burden imposed by the improper charge. Petitioners have

found only one case in which the government did not

prove the erroneous element included by the Court’s in-

struction. In that case the court reversed the conviction.

In Michaud v. United States, 350 F. 2d 131 (10th Cir.

1965), the defendant was charged with making a tele-

phone threat against the life of the President. The Court

improperly instructed the jury that before a finding of

guilt could be returned the jury must find that “the maker

of such threats intended to carry them out himself.” Jd.

at 133. The government conceded that there was no evi-

dence in the record that the defendant intended to effec-

tuate his threat against the President. Jd. Apparently, the

jury ignored the instruction, as in the instant case, and

returned a verdict of guilt. In granting a new trial the

Court stated:

13

“Although conceding the instruction to be error, the

government argues thai there was no prejudice be-

cause the instruction was favorable to the defendant.

Usually a defendant cannot claim prejudice from an

incorrect instruction that is favorable to him. [cita-

tions omitted ] But here the instruction was favorable

to the defendant not in the sense of imposing a higher

degree of proof but rather by inserting a false issue

into the case. When a false issue of magnitude suffi-

cient to nullify proper consideration of the issues is

inserted into a case, the proper administration of

justice is thwarted and a conviction so based cannot

stand.” Id. at 133-134.

In United States v. Leggett, 312 F. 2d 566, 573-574

(4th Cir. 1962), the Court held defendant was prejudiced

when the Court’s charge to the jury injected an erroneous

issue. In that case, as in the case sub judice, the Court's

instruction implied an element of the offense which had

not been enacted by Congress.

Thus, the holding of the Seventh Circuit is inconsistent

with the holdings of the Fourth and Tenth Circuit.

The lower Court holding is also in conflict with prior

decisions of this Court. Since Cole v. Arkansas, 333 U.S.

196 (1948), it has been firmly established that:

“To conform to due process of law, petitioners were

entitled to have the validity of their convictions

appraised on consideration of the case as it was tried

and as the issues were determined in the trial court.”

Id. at 202.

Cf. Rabe v. Washington, 405 U. S. 313, 315 (1972) ; Spe-

vack v. Klein, 385 U.S. 511, 518-519 (1967); Boute v.

City of Columbia, 378 U.S. 347 (1964).

The prejudice to petitioners is apparent. Since trial

counsel was allowed to cross-examine the chemist on his

masa SM aN SOR ORT RTE A Se aD

14

failure to test the substance for hallucinogenic properties,

counsel could have reasonably concluded that such prop-

erties would be included as an element of the offense. The

conference on instructions proved that his assumption

was correct. On the basis of this assumption, the case was

tried; some petitioners elected not to testify when it be-

came apparent that there was total failure of proof on

this element. Expert witnesses were not called to dispute

the validity of the tests which identified the substance as

marihuana. Closing argument identified the failure of

proof as one of the two issues in the case. Had the trial

court adopted the theory of the Seventh Circuit, the case

would have been differently tried and petitioners can only

speculate as to its outcome.

It is no answer that the law does not require proof of

the identity of the imported substance in a conspiracy

prosecution. While it may not be an element of the of-

fense, it certainly is some evidence of the unlawful agree-

ment. That is, if one imports marihuana pursuant to an

agreement, evidence that the substance is marihuana is

evidence of the scope and nature of the agreement.

III. The “mere association” of Wells with other mem-

bers of the alleged conspiracy is not sufficient evi-

dence to support her conviction for conspiracy.

This Court held in Ingram v. United States, 360 U.S.

672, 678 (1959), that an attempt to participate in a con-

spiracy may be inferred from knowledge of the con-

spiracy only where the evidence of such knowledge is

clear and is not equivocal. The logic of Ingram was fol-

lowed in Diaz-Rosendo v. United States, 364 F. 2d 941

(9th Cir. 1966), in which the Court of Appeals for the

15

Ninth Circuit reversed a conspiracy for smuggling mari-

huana and held that “guilt cannot be established by mere

association.” See also United States v. Webb, 359 F. 2d

558, 562 (6th Cir. 1966) ; Panci v. United States, 256 F.

2d 308, 312 (Sth Cir. 1958).

Accordingly, the lower court decision is in conflict

_ with prior decisions of this Court and is inconsistent with

the holdings of other Courts of Appeals.

IV. Under United States v. Falcone, 311 U.S. 205

(1949), a conviction for conspiracy to import |

marihuana cannot be sustained where the only

evidence against petitioner was that he intro-

duced a willing buyer of marihuana to a willing

seller.

Taking the evidence in the light most favorable to the

governrrent, Glasser v.- United States, 315 U. S. 60

(1942), the acts and declarations of Rusniak reveal that

he introduced Price to Koniecki and Tefka knowing that

Tefka, Koniecki and Price were interested in importing

marihuana into the United States., In its opinion sus-

taining the conviction of petitioner Rusniak, the Court |

below also incorrectly believed that the evidence showed

that “Rusniak was to find a suitable air strip in Florida.”

Appendix at la.

To uphold Rusniak’s conviction of conspiracy merely

on the evidence of an introduction of the other parties

to the venture without any showing that he had a financial

stake in the venture or in any way furthered the object

of the conspiracy would be an “attempt to broaden the

already pervasive and widesweeping nets of conspiracy

prosecutions.” Grunewald v. United States, 353 U.S. 391

at 404 (1957).

es Ls > ae aS Wwe aes |

16

In McDaniel v. United States, 24 F. 2d 303, 305 (Sth

Cir. 1928), the defendant was charged with conspiring

with certain other defendants to import and sell intoxi-

cating liquors in violation of the National Prohibition

Act. The Court stated:

“His (McDaniel’s) knowledge that others were in a

conspiracy to violate the law and his full sympathy

with and approval of the object of that conspiracy

without more would not constitute him a conspira-

Mie

In United States v. Falcone, 311 U.S. 205 (1949),

this Court held that a defendant who supplied sugar

to other defendants who operated an illicit still was not

a, member of a conspiracy to distill illicit whiskey even

though the supplier of the sugar knew that the sugar

was to be used for the purpose of distilling whiskey.

This Court so held in the Falcone case despite the fact

that the sales of the sugar furthered the object of the

conspiracy to which the buyers were parties. Petitioner

Rusniak did not participate in any act which furthered

the object of the conspiracy and thus is in even a stronger

position to contest the conspiracy conviction than was

the defendant in Falcone.

In United States v. Hysohion, 448 F. 2d 343 (2d Cir.

1971), the Court reversed the conviction of Rimbaud

and held that the evidence as a matter of law did not

support the conviction for conspiracy to deal in narcotics.

The evidence as to Rimbaud was almost identical to that

presented against Rusniak. The Court in Hysohion stated

at 347:

“We find no evidence in the record and nothing

in the findings below which would support the ex-

istence of an unlawful agreement. The fact that

Rimbaud told Everett, a willing buyer, how to make

-m

s

17

contact with a willing seller does not necessarily

imply that there was an agreement between the seller,

who was Roupinian, and Rimbaud.”

This Court as in Ingram v. United States, 360 U.S. 672

(1957) should again denounce the unbridled expansion

of federal conspiracy jurisdiction.

CONCLUSiON

For these various reasons, this petition for a writ of

certiorari should be granted.

Respectfully submitted,

JAMES M. SHELLOW

STEPHEN M. GLYNN

222 East Mason Street

Milwaukee, Wisconsin

Attorneys for Petitioner Koniecki

ED GENSON

134 North LaSalle Street

Chicago, Illinois

Attorney for Petitioners

Tefka and Wells

ROBERT BAILEY

53 West Jackson Blvd.

Chicago, Illinois

Attorney for Petitioner Frederick

RAY SMITH

53 West Jackson Blvd.

Chicago, Illinois

Attorney for Petitioner Rusniak

la

APPENDIX

ORDER OF THE UNITED STATES COURT

OF APPEALS FOR THE SEVENTH CIRCUIT

(Formal Parts Omitted)

Appellants have appealed from their conviction by a

jury under a one count indictment charging conspiracy

to import marijuana into the United States from Mexico

in violation of 21 U.S.C. §§963 and 952(a). We affirm.

In January, 1972, Price, an airplane pilot and an un-

indicted conspirator, agreed with Fredrick, Koniecki,

Tefka and Rusniak to fly a load of marijuana from Mexi-

co to Florida. In February of 1972, he met with Rusniak

and Fredrick and they discussed leasing a plane. Rusniak

was to find a suitable airstrip in Florida, and Tefka,

Fredrick, Price and Koniecki aided him in the search.

Later, Tefka advanced Fredrick $2,500 to lease the air-

craft.

Price and Koniecki rented an aircraft and, with Tefka

and Rosemary Wells, flew to Houston, Texas, and then

Guadalajara, Mexico. There the three men met with

three John Doe co-defendants and set the time and place

for the marijuana pickup.

Thereafter Price flew with Koniecki, with the mari-

juana, for Provo, Utah, but for want of fuel they were

forced to land at Prescott, Arizona. They rented a car

and transferred the marijuana from their plane to the

car trunk. Koniecki was to drive the car to Flagstaff,

Arizona, and Price was to fly the airplane back to Mexico.

However, Price was arrested by United States Customs

Agents in Banning, California. He disclosed the details

2a

of the conspiracy and agreed to assist the agents in frus-

trating their object.

Price went to Chicago and was met there by Tefka

and Wells. Wells drove Price and Tefka in her car

through Chicago, under guidance from Tefka, so as to

evade any cars which might be trailing them. A few

days later, Price met with Tefka, Koniecki’ and Wells

with respect to his fee. Koniecki paid him $8,210. Fred-

rick later told Price he felt that he and Rusniak had not

received their share of the money. Price gave Fredrick

a check for $100. Thereafter, the defendants were ar-

rested, and the indictment, trial, conviction and this ap-

peal followed.

I.

All appellants raise the following issues: (1) did the

failure of the Attorney General to timely update or re-

publish schedules of controlled substances, as required

by 21 U.S.C. §$12(a),? vitiate appellants’ conviction for

conspiracy—between January 25 and April 13, 1972—to

import the marijuana, and (2) even if timely was the

republication by the Director of the Bureau of Narcotic

Drugs, instead of by the Attorney General, a valid basis

for the conviction.

1 The marijuana had been left by Koniecki at a friend's ranch in New

Mexico. It had been transported by parties unknown from there to

Chicago some time during the period April 2 to April 12, 1972.

221 U.S.C. §812(a) provides, in pertinent part:

There are established five schedules of controlled substances, to be

known as schedules I, II, III, IV, and V. Such schedules shall initially

consist of the substances listed in this section. The schedules established

by this section shall be updated and republished on a semiannual basis

during the two-year period beginning one year after the date of enact-

ment of this subchapter and shall be updated and republished on an

annual basis thereafter. (Emphasis supplied.)

3a

Both issues were decided in this court’s recent United

States v. Nocar and Pendergast, (7th Cir., slip op. Nos.

73-1703, 73-1704, decided May 31, 1974), and that de-

cision controls our decision here adversely to appellants.

In Nocar the court rejected the contention that mari-

juana was not a controlled substance during the period

of the indictment — January 7-8, 1972. The argument

there was that the original publication was for only one

year beginning October 27, 1970, to October 27, 1971,

and that the full republication of April 20, 1971, and a

republication of May 12, 1972, nunc pro tunc as of April

27, 1972, were not made pursuant to the statute; and

accordingly there was no valid schedule covering the

period between October 1971 and May 1972. The court

in Nocar held that no republication was required on

October 27, 1971, and that that date was to be used to

determine when, during the following two years, the

“six-month demarcations are to fall.”

Appellants misread the second sentence of §812(a) in

assuming that the first republication was to be on Oc-

tober 27, 1971. In Nocar the court did not reach the

amicus curiae contention that the nunc pro tunc repub-

lication of May 12, 1972 denied Nocar and Pendergast

due process. The court stated that when the offenses

there were allegedly committed, the government's obli-

gation to republish had not yet “ripened.” The same

is true here. We hold that during the period of the

indictment before us there was a valid publication in

effect rendering conspiracy to import marijuana from

Mexico to the United States a crime.

We follow Nocar in deciding that our holding dis-

poses of appellants’ contention that the failure of the

Attorney General to make the republication invalidates

4a

the republication. During the dates in the indictment

the republication requirement under §812(a) had not yet

ripened.

II.

We see no merit in appellants’ contention that the

trial court erred in denying their motion for a directed

verdict of acquittal at the close of the government’s case

because there was no proof that the substance appellants

transported from Mexico was marijuana, within the

statutory definition.

The law is well settled that a conspiracy to commit

an offense is different from the substantive offense which

is the object of the conspiracy. United States v. Rabino-

vich, 238 U.S. 78 (1915). The proof that appellants

intended to import the marijuana into this country for

profit met the government’s burden of proof of con-

spiracy and justified the ruling. It had no burden to

prove that the substance was strictly within the statutory

definition.* Britton v. United States, 60 F. 2d 772 (7th

Cir. 1932).

In order to prove its case, the burden of the govern-

ment was to prove that there was an agreement to com-

mit the crime of importing marijuana into the United

States. It is of no significance that the government's

chemist was unable to testify whether the plant was male

or female, whether any of the seeds were capable of

germination, and whether the substance had hallucino-

genic properties—-a prerequisite for marijuana as a

controlled substance under 2] U.S.C. §802(15). The

3 Appellants’ argument that they were prejudiced by the government’s

introduction of the marijuana evidence — because it need not have been

introduced — is frivolous.

Sa

gist of the offense is the unlawful agreement. Accom-

plishment of the objective of a conspiracy need not be

proved.* United States v. Fellabaum, 408 F. 2d 220, 223

(7th Cir. 1969), cert. denied, 396 U.S. 858.

III.

The government prosecutor in cross-examination asked

Rusniak a series of questions beginning with “Isn’t it a

fact?” Rusniak answered in the negative. The prosecutor

failed to overcome the negative answers by rebuttal evi-

dence. All appellants contend that they were prejudiced

and are entitled to a new trial.

We do not approve the prosecutor’s conduct, but there

was ample evidence from Price to rebut most of Rusniak’s

negative answers, and we need not therefore discuss the

“tactic” further. Rusniak’s motion at the close of the

evidence was not timely or effective to challenge the

cross-examination. The damage, if any, was done when

ihe unchallenged questions were asked, and Rusniak did

not request the court to inquire whether the prosecutor

intended to rebut the negative answers. In our view of

the record there is no basis for concluding that denial

of the untimely motion for mistrial was reversible error.

The Price testimony distinguishes cases relied upon by

Rusniak.

IV.

Rusniak and Fredrick argue, without substance, that

the record does not support their convictions because

* The case of United Statrs v. One 1966 Chevrolet Sedan, etc., (D.C.

Fla. slip opn. No. —, entered January 16, 1974), cited by appellants,

is of no avail to them. That case did not involve a conspiracy to commit

a ciime.

enews

6a

the evidence fails to sustain the charge of a single con-

spiracy.

The scope of the agreement entered into by the con-

spirators determines whether single or multiple conspi-

racies exist. United States v. Hutul, 416 F. 2d 607 (7th

Cir. 1969), cert. denied, sub nom. Sacks v. United States,

396 U.S. 1007 (1970). Here the agreement contemplated

transportation of marijuana from Mexico to the United

States. Even if the others planned to cut Rusniak and

Fredrick out of the profits, the record is clear that the

objective of the conspiracy remained unchanged.

A finding of a single conspiracy is not precluded be-

cause Rusniak and Fredrick did not participate in the

later éfforts of the others to reach the conspiratorial goal.

United States v. Varelli, 407 F. 2d 735, 742 (1969).

Where, as here, any conspirators engage in overt acts

in furtherance of the scheme, the unlawful scheme con-

tinues until its object is accomplished. United States v.

Nowak, 448 F. 2d 134 (7th Cir. 1971), cert. denied,

404 U.S. 1039 (1972); United States v. Hickey, 360 F.

2d 127, ‘141 (7th Cir. 1966), cert. denied, 385 U.S. 928.

Moreover, neither Rusniak nor Fredrick took affirma-

tive action to defeat or disavow the conspiracy. On the

contrary, Fredrick stated to Price, after the marijuana

was smuggled, that he and Rusniak did not get a fair

share of the profits. The trial court did not abuse its

discretion in denying the motion of these defendants for

severance.

ys

The evidence most favorable to the government sup-

ports a guilty verdict against Wells. Glasser v. United

-

7a

States, 315 U.S. 60 (1942) ; United States v. Kwitek, 467

F. 2d 1222 (7th Cir. 1972), cert. denied, 409 U.S. 1079.

She was present on numerous occasions during the critical

planning and coordinating phases of the conspiracy in

the United States and Mexico. She and Tefka met Price

in Chicago and she drove the car in Chicago i in an evasive

design to avoid any trailing cars.

VI.

The trial judge, just prior to sentencing, asked Wells

if she had anything to say in her behalf. She said, “No,

just that I was unaware of any conspiracy that there

might have been.” The Court stated :

Well, I had seriously considered giving you pro-

bation, but if you want to tell me that you knew

nothing about this, why, | am going to change my

mind right now.

He sentenced her to three years probation, with the first

six months in custody. She claims, without merit, that

she was improperly sentenced for maintaining her in-

nocence.

A trial judge has wide discretion in determining the

proper sentence. United States v. Tucker, 404 U.S. 443

(1972). We cannot review a sentence which does not

exceed the maximum permitted, except upon showing

of gross abuse. United States v. Willard, 445 F. 2d 814

(7th Cir. 1971); United States v. Marlin, 471 F. 2d 764

(7th Cir. 1972). Although the trial court’s comment was

unfortunate, we are not persuaded that the sentence was

not within a permissible exercise of his discretion. United

States v. Lehman, 468 F. 2d 93 (7th Cir. 1972).

AFFIRMED.

ab elt eae thee 3

8a

In The

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

SEPTEMBER TERM, 1973 SEPTEMBER Session, 1973

Nos. 73-1703, 73-1704 :

Unitep States OF AMERICA, ae pone

Plaintiff-A ppellee, for the Northern Dis-

v. trict of Illinois, Eastern

JosepH Nocar and JoHN PENDERGAST, ne

Defendants-A ppellants. No. 72 CR 667

RicHarp W.

McLaren, Judge.

ARGUED NOVEMBER 27, 1973 — DEcIDED May 31, 1974

Before CLARK, Associate Justice,* PELL, Circuit Judge,

and NOLAND, District Judge.**

PELL, Circuit Judge. On the basis of the parties’ stipu-

lated testimony, the trial judge found Joseph Nocar and

John Pendergast guilty of knowingly and intentionally

possessing a quantity of marijuana (18,772 grams) with

intent to distribute the same, 21 U.S.C. § 841(a) (1).

* Associate Justice Tom C. Clark, United States Supreme Court,

Retired, is sitting by designation.

** Judge James E. Noland of the Southern District of Indiana is

sitting by designation.

1 Subsection 841(a) (1), part of the Comprehensive Drug Abuse Pre-

vention and Control Act of 1970, provides:

“Except as authorized by this subchapter, it shall be unlawful

for any person knowingly or intentionally —

(1) to manufacture, distribute, or dispense, or possess with

intent to manufacture, distribute, or dispense, a controlled

substance. .. .”

21 U.S.C. § 802(6) defines “controlled substance” as a drug or other

substance, or immediate precursor, included in schedule I, II, III, IV, or

V, as established by sections 811 and 812.

9a

Defendants raise three issues on this appeal: (1) whether

the Attorney General failed to update and republish in

the Federal Register the schedules of “controlled sub-

stances” as required by 21 U.S.C. § 812(a), and, if he did,

whether that failure precluded the defendants’ prosecu-

tions for possession of marijuana;* (2) whether the court

erred in denying the defendants’ motion to suppress mari-

juana which had been seized in a warrantless search

of an automobile; and (3) whether the evidence was

sufficient to prove that defendants had knowingly pos-

sessed the drug with intent to distribute it.

The evidence to which the parties had stipulated con-

sisted primarily of the testimony that Government wit-

nesses had given at the hearing on the motion to suppress.

In a memorandum opinion issued April 20, 1973, the

district court denied the motion.

Customs agents Robert Smith and Thomas King pro-

vided the principal evidence for the Government. Smith

testified that on January 7, 1972, he had received a tele-

phone call from a reliable informant, who told him

that two men and a woman driving a blue Toyota with

a specified Texas license plate were in Chicago attempt-

ing to locate buyers for narcotics. The three persons sup-

posedly were staying at a motel at a designated location

on the north side of Chicago. After Smith verified that

an automobile fitting the informant’s description was

at the motel, he and another agent maintained surveil-

lance. From his post, Smith could see two men and a

woman in the room to which the car’s occupants had

?On May 11, 1973, the district court denied defendants’ motion to

dismiss the indictment because of the Attorney General's supposed fail-

ure to comply with the republication provision of the Comprehensive

Drug Abuse Prevention and Control Act.

10a

been assigned. A check by another agent revealed that

the Toyota was registered to a M. Guerra and that Carol

Guerra, the owner's daughter, was under indictment in

Texas. In appearance, the woman in the motel room

corresponded with the description Smith received of

Carol Guerra. The agents also learned that the automo-

bile had recently been in Mexico.

Agent Smith next observed defendant Pendergast drive

up to the motel, enter the trio’s room, and engage in

conversation with the group. The agents checked the

registration on Pendergast’s vehicle. They learned that

the car was registered to Pendergast at a Carbondale,

Illinois, address. “{O]ur St. Louis office . . . stated that

Mr. Pendergast was known in that area as a dealer in

marijuana.” When the persons in the room left and went

to a garage at the rear of 1203-5 North State Street,

Government agents followed them. They saw the Toyota

backed into the garage while the woman resembling

Carol Guerra remained in the adjacent alley. Smith

testified that the woman kept glancing up and down the

alley and appeared, to Smith, to be acting as a lookout.

After a brief period, the persons left the garage.

Later in the day, the agents returned with a search

warrant to the garage but found no contraband.

The next day, Saturday, January 8th, customs agents

placed the garage under surveillance. About 1:50 p.m.,

agents Smith and King saw Nocar and Pendergast walk

down the alley behind State Street. Smith drove his auto-

mobile to the south end of the alley, where King got

out and began walking north. King testified that as he

walked past the garage, he saw the blue Toyota with '

Texas license plates backed up to the door of the garage,

lla

its rear about a foot or two inside the building. The

trunk of the car was open, and the garage door had been

pulled down to the level of the trunk lid. A rug had been

draped over the area between the open trunk lid and

the body of the Toyota. King testified that the view

provided by the angle formed by the garage door and

the wall of the garage enabled him to look into the

building as he passed. During the approximately fifteen

seconds he was at this vantage point, King observed de-

fendant Nocar remove some white bags from the trunk

of the Toyota and hand them to Pendergast, who placed

them in the back of the garage. After observing these

actions, King continued walking until he was some yards

north of the garage whereupon he turned and signaled

to agent Smith.

On the signal, Smith drove up the alley and jumped

from his automobile, shouting, “Federal officers.” Smith

entered the garage at the same time that King, with

gun drawn, did. Meanwhile, one of the defendants had

slammed shut the trunk of the Toyota. Several other

agents then joined those in the garage. Smith testified

that he asked Nocar to open the trunk, and that Nocar

shrugged his shoulders and did so. Smith observed white

plastic bags and vegetable material in the trunk. He also

detected a strong odor of marijuana. He then told the

defendants that they were under arrest and read them

their rights under Miranda v. Arizona, 384 U.S. 436

(1966). A field test revealed the substance in the bags

to be marijuana. By 2:15 p.m., the agents had searched

the garage and had found two suitcases containing ap-

proximately 6000 grams of marijuana.

The defendants testified in their behalf at the sup-

pression hearing. Their version of the search differed

12a

somewhat from that of the agents. For example, they

claimed that they did not hear the announcement “Fed-

eral officers” and that agent Smith demanded, rather than

requested, that Nocar open the trunk.*

7 as

Defendants’ first contention rests on their interpreta-

tion of 21 U.S.C. § 812(a), which provides in pertinent

part:

‘There are established five schedules of controlled

substances, to be known as schedules I, II, III, IV,

and V. Such schedules shall initially consist of the

substances listed in this section. The schedules estab-

lished by this section shall be updated and repub-

lished on a semiannual basis during the two-year

period beginning one year after the date of enact-

ment of this subchapter and shall be updated and

repubiished on an annual basis thereafter.”

Subchapter I of the Comprehensive Drug Abuse Preven-

tion and Control Act of 1970 was enacted on October

27, 1970. Marijuana was listed in schedule I of the statute.

The defendants maintain that the schedules should

have been first republished and updated on the initial

anniversary date, October 27, 1971, and subsequently on

April 27, 1972, six months later. There was no republica-

tion on October 27. The Director of the Bureau of Nar-

cotics and Dangerous Drugs first expressly invoked sec-

* In its memorandum opinion on the motion to suppress, the district

court found that Nocar had rot freely and voluntarily consented to the

search of the trunk. “There was conflicting testimony . .. as to

whether Nocar was asked to open the trunk or ordered to do so. It is

clear that Agent King entered the garage with his gun drawn. It is not

unreasonable to infer that Nocar believed that he was in custody even

before he was told that he was under arrest... . [T]he Government

failed to meet its burden of proof on its consent theory.”

13a

tion 812(a) and fully republished the schedules on May

12, 1972, 37 Fed. Reg. 9545 (1972) :

“The Comprehensive Drug Abuse Prevention and

Control Act of 1970, in section 202(a) (21 U.S.C.

812(a)), requires that the schedules of controlled

substances established by that Act be updated and

republished on a semiannual basis during the 2-year

period beginning | year after the effective date of

that Act. The effective date of that Act was October

27, 1970. Pursuant to the mandate of section 202(a),

therefore, the Director hereby orders the publication

of the schedulcs of controlled substances as of April

27, 1972.”

Actually, schedules had been published approximately

a year earlier in the Federal Register but not apparently

pursuant to the mandate of the Act. In 36 Fed. Reg. 4928

(March 13, 1971), the Director had published under the

caption of “Notice of Proposed Rule Making” a compre-

hensive set of regulations implementing the Act. The

regulations covered, inter alia, registration of manufac-

turers, labelling and packaging, quotas, records, and re-

ports. Also included was Part 308, schedules of controlled

substances established by the Act “as they are changed,

updated, and republished from time to time... .”

In response to objections to and comments on the pro-

posed regulations, various amendments were made and

the regulations as revised were published in 36 Fed. Reg.

7776, on April 24, 1971. In the proposed regulations, code

numbers were given to the various controlled substances.

In the regulations as finally published the scope and

function of the code numbers was defined. These numbers

do not appear in the schedules of the Act.

We do not deem that the publication of the schedules

in March and Apri! of 1971 were either necessitated by or

l4a

were in compliance with the updating-republication re-

quirement of the Act but were merely a part of the over-

all implementing regulations for the Act.

We disagree with the defendants’ reading of section

812(a). The second sentence of the provision does not

require republication on October 27, 1971. Rather, it di-

rects that that date be used to determine when, during

the following two years, the six-month demarcations are

to fall. Therefore, the first republication was due on

April 27, 1972, eighteen months after the enactment of

the subchapter and one half year after the first anniver-

sary.

The meaning that the defendants ascribe to the sec-

tion would be supported, not by the provision as presently

written, but by, for example, “The schedules established

by this section shall be updated and republished one year

after the date of the enactment of this subchapter and

every six months thereafter for two years.”

Amicus curiae contends that the May 12th republica-

tion, stated to be effective as of April 27, 1972, violates

due process because of its retroactivity. We need not

reach this issue, for the rights of these defendants ob-

viously were not infringed. Their alleged violation of the

drug laws occurred in January 1972, when, as we held

above, the Government’s obligation to republish the

schedule in accordance with section 812(a) had not yet

ripened. The non-publication cases upon which the defen-

dants rely, Hotch v. United States, 212 F. 2d 280 (9th

Cir. 1954), and Borak v. Biddle, 141 F. 2d 278 (D.C. Cir.

1944), are thus inapplicable.

In sum, in January 1972 there was a valid prohibition

in force making unauthorized use of marijuana a crime.

15a

The defendants also argue that even if there had been

a timely republication it would not have been valid inas-

much as the Director of the Bureau of Narcotics and

Dangerous Drugs caused the republication rather than

the Attorney General, 21 U.S.C. § 811. This argument, of

course, is disposed of by our holding that the republica-

tion requirement had not ripened as of the date of ac-

tivities involved in the present case. However, we also

note that in 28 U.S.C. § 510, Congress provided that

the Attorney General may make such provisions as he

considers appropriate to allow other officers, employees

or agencies to perform any of his functions. 28 C.F.R. _

0.100 subdelegates the functions of the Attorney General

under the Comprehensive Drug Abuse Prevention and

Control Act to the Director of the Bureau of Narcotics

and Dangerous Drugs.

Il.

The defendants claim that they do not quarrel with

the holding in Chambers v. Maroney, 399 U.S. 42, 52

(1970), and Carroll v. United States, 267 U.S. 132, 149

(1925), upon which the trial court in part relied in deny-

ing the motion to suppress the marijuana seized from

the automobile trunk. Their complaint is that the founda-

tion of those cases, the existence of probable cause, was

lacking in their case. The district court had concluded

that “[t]he evidence clearly shows . . . that the agents

had probable cause to believe that the Toyota contained

contraband drugs.”

As the defendants point out, the informer’s tip, as

recapitulated by agent Smith, did not describe the basis

for the informer’s assertion that the persons he men-

tioned were attempting to sell narcotics. However, we

certainly cannot fault the agents for following up the

l6a

tip. It clearly was superior to casuat rumor. The confi-

dential source had previously given information to Gov-

ernmént agents about illicit heroin and hashish traffic,

which tips had resulted in four seizures and an unspeci-

fied number of arrests and convictions. The tip consisted

in part of detailed information that was readily verifiable

by independent means. The agents investigated these spe-

cifics, and from their own observations confirmed the

existence of the persons, the automobile, and the motel

registration. The reports stemming from the tracing of the

blue Toyota and Pendergast’s car further enhanced the

tip’s credibility. Next, the agents saw Carol Guerra act-

ing suspiciously in the alley behind the State Street ga-

rage on January 7th.

Despite these corroborative indicia, the defendants con-

tend that the fruitless search conducted on January 7th

would have persuaded a reasonable person that the tip

was probably inaccurate. The lack of contraband in the

garage on Friday surely did not mandate the agents’

abandoning their investigation. They had ample justifica-

tion for keeping a watch on the garage the following

day. During that surveillance, agent King saw defendant

Nocar take white plastic bags from the Toyota's trunk

and hand them to defendant Pendergast. Although King

testified that he could not ascertain what substance was

in the bags, we think it judicially cognizable that mari-

juana is often transported in bags. The covert garage

activities smacked of the illegal activity customarily asso-

ciated with drug transactions.

What agent King observed and the slamming of the

trunk lid upon Smith’s shout of “Federal officers” were

the last needed corroboration of the informer’s tip to

create probable cause. Carroll, supra at 149, explains that

17a

term as “‘a belief, reasonably rising out of circumstances

known to the seizing officer, that an automobile . . . con-

tains that which by law is subject to seizure and destruc-

tion,” a definition applicable to the instant case, too.

“(T]he facts and circumstances within [the agents’ ]

knowledge and of which they had reasonably trustworthy

information were sufficient in themselves to warrant a

man of reasonable caution in the belief that intoxicating

liquor was being transported in the automobile which

thev stopped and searched.” Jd. at 162. The evidence at

the hearing was sufficient to meet the test the Supreme

Court has stated in a related context: “only the proba-

bility, and not a prima facie showing, of criminal ac-

tivity is the standard of probable cause... .” Spinelli v.

United States, 393 U.S. 4i0, 419 (1959). Vhe agents here

had many more facts on which to rely tha had the agents

in Henry v, United States, 361 U.S. 9§ (1969), which

defendants cite. Contrast also Coolidge v. New Hamp-

shire, 403 U.S. 443, 458-64 (1971).

Not only was there probable cause, but the search of

the Toyota and the seizure of the marijuana were not

“unreasonable.” It was not practicable for the agents to

try to obtain a search warrant before conducting the

search. The defendants emphasize that the Federal Build-

ing was a mere mile and one half from the garage, but

they minimize the difficulty of finding a magistrate on a

Saturday afternoon without risking the loss of the possible

contraband. The magistrate is present there on Saturdays

only until noon. If the hunt for a magistrate and the

warrant procedures had taken several hours, the defen-

dants would now be arguing that the agents had violated

their constitutional rights by preventing them from leav-

ing the scene. Further, the Government would face a

18a

similar challenge had Carol Guerra or the unidentified

male in the motel room or another person come to remove

the Toyota. See Chambers v. Maroney, supra at 52 ,where

the Court explained that

“(flor constitutional purposes, we see no difference

between on the one hand seizing and holding a car

before presenting the probable cause issue to a magis-

trate and on the other hand carrying out an immedi-

ate search without a warrant. Given probable cause

to search, either course is reasonable under the

Fourth Amendment.”

IIl.

The defendants’ final argument is that the Government

failed to prove the statutory elements of possession and

intent to distribute.

Agent King testified that when he walked by the

garage on the afternoon of January 8th he saw defendant

Nocar removing some white bags from the trunk of the

blue Toyota and handing them to defendant Pendergast.

He also observed Pendergast take the bags and move

them to the rear of the garage. King then signaled to

agent Smith, and the men moved in to make the seizure.

This testimony shows that the~ defendants had actual

possession of the marijuana. That one of the defendants

slammed the trunk shut when he realized that the agents

were near does not negate the defendants’ exercise of

dominion and control over the marijuana immediately

prior to the arrest. Because of King’s observations, the

Government did not need to establish that the defendants

owned or leased the garage or the automobile or the

suitcases.

im

19a

The defendants also maintain that the agents’ observa-

tions and the quantity of the contraband recovered are

the only evidence the Government adduced as to their

intent to distribute or sell and that such evidence was

insufficient to meet the statutory requirement. Direct evi-

dence of a sale or of the dollar value of drugs is not

essential. As courts have frequently pointed out, knowl-

edge and intent must often be proven by circumstantial

evidence. At least two circuits, the Fifth and the Eighth,

have held that proof of possession of substantial amounts

of controlled substances supports the inference that the

possessor intended to distribute the drugs rather than

retain them for personal use. In United States v. Mather,

465 F. 2d 1035 (Sth Cir. 1972), cert. denied, 409 U.S.

1085 (1973), the defendant was carrying 197 grams of

cocaine when he was arrested. In United States v. Perry,

480 F. 2d 147 (Sth Cir. 1973), the defendant possessed

188 pounds of hashish, and in United States v. Johnson,

469 F. 2d 973, 977 (5th Cir. 1972), the amount was 133

pounds of marijuana. Citing Mather, the court in United

States v. Echols, 477 F. 2d 37 (8th Cir. 1973), cert. de-

nied, 414 U.S. 825, held that the possession of 199 grams

of cocaine was sufficient to support an inference of in-

tent to distribute. Here, defendants possessed 18,770

grams, approximately 40 pounds, of marijuana.

We agree with the Fifth and Eighth Circuits. Cf.

United States v. Ortiz, 445 F. 2d 1100, 1104-1105 (10th

Cir. 1971), cert. denied, 404 U.S. 993; United States v.

Cerrito, 413 F. 2d 1270 (7th Cir. 1969), cert. denied, 396

U.S. 1004 (1970). It is consistent with House Report No.

91-1444, which accompanied H.R. 18583, the basis for

the present Act: “The quantity of a drug found in the

possession of a person, of course, bears upon the question

~ 20a

of whether or not his possession is for his own use, or is

for the purpose of illicit-transactions involving others,

for which much more severe penalties are provided.” 3

U.S. Code Cong. & Adm. News, 91st Cong., 2d Sess.

(1970-71), at 4577.

We therefore affirm the judgments of conviction of

Joseph Nocar and John Pendergast.

AFFIRMED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit.