Petition for Writ of Certiorari — Osbourne v. United States

Supreme Court brief1998

Ask Donna

What actually matters in this document.

Text

eT owt ue

98 461 SP 16m,

No.

OFFICE OF fur CLERK

In The

Supreme Court of the Hnited States

October Term, 1997

DUANE JELEAL OSBOURNE,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

ALAN DEXTER BOWMAN, P.A.

Attorney for Petitioner

Gateway One

Suite 105

Newark, New Jersey 07102

(973) 622-2225

148591 @ Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 + (800) 359-6859

On RRL! PREDIC RY “PD g Y

saihdiedaatialin we —— —_ 4 aa SPE Rt teeth 7

Ft a ere -

QUESTIONS PRESENTED

1. Whether Petitioner was denied due process and a fair trial

by virtue of the trial court’s failure to issue a multiple conspiracies

instruction?

2. Whether a playground open only to the occupants of a

privately-owned apartment building and their guests is open to

the public within the intendment of 21 U.S.C.A. § 860?

TABLE OF CONTENTS

Page

(JUGS PYUGONIEG |. os oa cies Creek asics eee i

Famke oF COME |. EEA SA il

Table of Cited Authorities . 00. io cise cece ese’ Vv :

be 8 or ise wey ere ee Oe ey | |

sStnbombemt GT JUTIMGIOHOR. oki vine Se cise ed cea ees ] |

Statutory and Constitutional Provisions Involved .... ]

Statombat OF 6 CANO oie sis Saas As a ees as ]

BRI ok ree ees ]

A Fa i ie casas ee 1

Te RO AL Ee so 6 KS es 2

Il. The United States’ Proofs ......... 2.0046. 3

i. The Alleged Co-Conspirator/Informants ;

a. Darwin Jerome Mobley ........... 3 |

O: FO We os sive sie k es 6

ce. -Richeee Crmpterd ..56 85 Ce tas 8

lil

Contents

Page

G. DMatio McAdams 32 36. 666 6h 3: 8

e. Bobby Shawn Sang ............... 9

f. [Uncle] Paul Mobley .............. 9

li. Joseph Alexander Boykin ............. 9

nl og BOE ENE oe ge ie ema 10

i. Background And Character Witnesses ... 10

a. Jemargie Morrison ............... 10

me CRE 2 0o ose SS iS SP) 11

rr ar eee 1]

d. Toni Allen-Osbourne ............. 11

Oy Soeee mente eS 12

Sh Pe ee oye: 12

g. Mark Anthony Purboo ............ 12

Mi RE OME cic dec oie 13

i. Richard Patrick Billy ............. 13

li. The Testimony Of Petitioner ........... 13

Contents

Reasons for Granting the Writ ....................

II.

Certiorari Should Be Granted To Enforce The

Prescriptions Against And Remedy For Charging

Multiple Conspiracies Within A Single

RNY RNS 5 coco ee cede esas is

A. The Constitutional Right To Indictment .

B. General Principles Pertaining To

Conspiratorial Liability ...............

C. The Distinction Between Single And

Multiple Conspiracies ................

D. The Trial Court Was Required To Dismiss

CE SO fs. ce eae s Hiei aa wes

a. The Law As To Duplicity ..........

b. Count One Is Fatally Duplicitous ...

A Playground Within The Grounds Of A Privately

Owned And Maintained Apartment Complex Is

Not Open To The Public Within The Intendment

OR SE UA © OO eee i a hae ee ea vekens

CN oe a oe hae ea es ee ae ie ca

Page

ee ee eT —_—

TABLE OF CITED AUTHORITIES

Page

Cases:

Blumenthal v. United States, 332 U.S. 539 (i947) 2 ZB

Grunewald v. United States, 353 U.S. 391 fio: Bae 21

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

ERS Wek hae op Reebachin shale hhh ees 4419, 24,2873

Russell v. United States, 369 U.S. 749 Simea) ss 6.58 17, 18

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

eh eee Th ee Ee eee 18

United States v. Ashley, 555 F.2d 462 (Sth Cir. 1977),

reh. den., 559 F.2d 29 (Sth Cir. 1977), cert. den., 434

Aide GE RPE is ab Nae bhi ek eS 20

United States v. Berardi, 675 F.2d 894 (7th Cir. 1981)

PAG Pai Oe eae tis kee ay COR ed Gk bar LUO eke blk. 21

United States v. Badolato, 701 F.2d 915 (9th Cir. 1983)

Sb Rw emia Wea area dua ee hale Renae we eee gd Poe 18

United States v. Bates, 96 F.3d 964 (7th Cir. 1996) .. 16

United States v. Blasco, 702 F.2d 1315 (11th Cir. 1983)

cs Mowe ST Ra POWER CVE TiC aw ay hs feck bok beeek 17

SReN Dae Ce N RRS ee MT 4a Kee ee Cae eieawes 18

Table of Cited Authorities

United States v. Borchardt, 698 F.2d 697(Sth Cir. 1983)

o2:-9.6 6.8 6 0 6 £0. 6's. S02 6:06.66 2.9 8 ee B46 O42 6S CC. C20 4.88 8S

WG cree Be ee

bo e@ @ ae 6'3 8b 2 OC we 62 2 ee Ce SS S'S: 66 4 eS © BrCl 8 6 SG <8 8-6-0 O'S

o's es - 6 £2 OS'S BO Bc. OE OS SOS ea. 8:3 SO S26 Ee aS eee SR 8 O-*

To ge er enn a heemndeuceninn er aT

S26 6.44 @ O26 22.8 2 8 2 8 Oo O12). 5.6 hh 68 3.6. 8 Ss Oo Rie ere: oe Se. 5's _O-0) 8.4

6 2 @ VU. 6.38.D. 6 OSS 8, SO 6 O98) 6 SS Rw 2 Oe SOS. 8 OOS Le

ee & 9 8 6:6 8 4. 8 OH 6. 6.0 BA OER C.D D-H ree 8 oe 62 RO. 8 9: Oe 6 S.O-9 8°S

United States v. Gray, 96 F.3d 769 (Sth Cir. 1996) ...

United States v. Heldon, 479 F. Supp. 316 (E.D. Pa.

ED TOR 63.ck ac RRR A kd ee es

Page

vil

Table of Cited Authorities

Page

United States v. Horsley, 56 F.3d 50 (11th Cir. 1995)

Rte VEST EO TENE Oe CEE ee EEG RE Pee 25

United States v. Hubbard, 96 F.3d 1223 (9th Cir. 1996)

esd ete ees p45 45 04644 10k bee a oe 17

United States vy. Ingman, 541 F.2d 1329 (2nd Cir. 1972)

daihefigd FUR E EN EOE PE RT TEED ORO NGEA EE OT 19

United States v. Jackson, 696 F.2d 578 (8th Cir. 1982)

PCMEANA 2 SV SM bake ee SENG A Vos conuay eke. 18

United States v. Jeffers, 532 F.2d 1101 (7th Cir. 1976),

aff'd in part, vac. in part, 429 U.S. 815 Carre) a4%% 18

United States v. Johnson, 585 F.2d 119 (Sth Cir. 1978)

RENE ONES OR AS PEAS Cae CRE Ro Oh oe Ce ee 18, 19

United States v. Kearney, 451 F. Supp. 33 (S.D.N.Y.

eseiigg SOE LOE REET OR apie tiene pera 21

United States v. Kraig, 99 F.3d 1361 (6th Cir. 1996) . 17

United States v. LaRusso, 695 F.2d 45 (2nd Cir. 1982)

PRN ba aE ANG Soh oa GL Ea Cie OR 19

United States v. Lee, 694 F.2d 649 (11th Cir. 1983) .. 17

United States v. Leichtman, 948 F.2d 370 ( 7th Cir.

kd MOORE TUS tn ey ames Tees so a nage fee 17

vili

Table of Cited Authorities

Page

United States v. Levine, 546 F.2d 658, (Sth Cir. 1977),

reh. den., 551 F.2d 687 (Sth Cir. 1977) .......... 19, 20

United States v. Littlefield, 594 F.2d 682 (8th Cir. 1977),

Onre. Gam, FOR. Gh SRR TARTS a 66k i wen dies 17

United States v. Locklear, 97 F.3d 196 (7th Cir. 1996)

a a a ee bias Cie ieee 16

United States v. McCarthy, 97 F.3d 1562 (8th Cir.

SSG iv wcng cad Oe SAK each kha LISSA 18, 19

United States v. McCarty, 611 F.2d 220 (8th Cir. 1979)

(cA MwD REAR MO aR ey Ak Se Dees BESEH 18

United States v. Miche, 558 F.2d 994 (Sth Cir. 1979) . 19

United States v. Monroe, 552 F.2d 860 (9th Cir. 1977),

cart dim; 431 OG: S71 C197) cS eke ess 18

United States v. Ochoa, 609 F.2d 198 (Sth Cir. 1980)

es CER DIES Ware ea ee eae 20

United States. v. Pretty, 98 F.3d 1213, (10th Cir. 1996)

sie Bah hiah Ok SUR EAE REA aT Oe ORS 18

United States v. Radowitz, 507 F.2d 109 (3rd Cir. 1974)

Be a teas erie aia ata GRE cark ee o 16

United States v. Richmond, 700 F.2d 1183 (8th Cir.

SN ik ae oh I Re eS aoa ee ee er 17

Table of Cited Authorities

United States v. Soskin, 100 F.3d 1377 (7th Cir. 1996)

CE Ee ee ee ee es ee ee ee we Oe bee ee ee Oe Bee eo

United States v. Sotelo, 97 F.3d 782 (Sth Cir. 1996) ..

United States v. Starks, 515 F.2d 112 (3rd Cir. 1975)

Bee a tee ae ee A Ee OES 6 6 Eee SR Ee Eee oe se ee ee,

aT Tn eee ee ee OEE REE Oe Re ee ey he 6 ea kei bx

United States v. Thompson, 553 F.2d 1006, (6th Cir.

1977), cert. den., 429 U.S. 939 (1977) ...........

United States v. Trowery, 542 F.2d 623 (3rd Cir. 1976),

COPE Wr Soe Ue 8108 So

United States v. Vera, 701 F.2d 1349 (11th Cir. 1983)

De PRA ete Re nN ee OE A ee We We Ae eK a ea

Sa ee ee ee ee OO aA, OS ahd Ml Sl a oa ie eb dene

Cae ee ee Ee ee OEE ee SOM Oe ee OM ele ck ea 6. be

Statutes:

We ar © OTC) 6S ke te

calle ag Th A a RES RON SUM ater ag eed Meat ces

Table of Cited Authorities

PE SE 8 ss Gs RSE Re eR

Be Weeds BLS) s rcksnGib nace bieheapnee'ns

ee DP CED 5505 0 yoo bv wk kde veya eee va

United States Constitution:

amen IR, a as es Sees ho

ee NE SS wets Oka Vee wie ee eRe

Rule:

FOG. B. COO POR: Be is ek VO ee

ee rer eer rE ry Try

APPENDIX

Appendix A — Opinion And Mandate Of The United

States Court Of Appeals For The Fourth Circuit

ge RG | a ee ery re ee

Appendix B — Constitutional Provisions Involved ...

Appendix C — Statute Involved ..................

Petitioner prays that a writ of certiorari issue to review the judgment

and opinion of the United States Court of Appeals for the Fourth Circuit

entered in this proceeding on May 19, 1998.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the Fourth

Circuit is entitled United States v. Duane Jeleal Osbourne. The

unpublished opinion is reprinted at Appendix A.

STATEMENT OF JURISDICTION

The jurisdiction of the Supreme Court to review the final judgment

of the United States Court of Appeals for the Fourth Circuit is based on

28 U.S.C.A. § 1254(1).

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED

Petitioner seeks review of issues arising under the Fifth and Sixth

Amendments to the United States Constitution (Appendix B); and

21 U.S.C.A. § 860(e)(1) (Appendix C).

STATEMENT OF THE CASE

I. Introduction

A. The Legal Issue

The instant Petition for Certiorari presents this Court with a question

of great public importance and juridical significance. Specifically, the

question at issue is in reference to the law relative to issuance of a multiple

conspiracies instruction in a criminal trial. Petitioner was indicted with

11 identified others and charged with a single conspiracy to possess and

distribute cocaine. At trial, the United States’ proofs consisted almost

exclusively of the testimony of six unindicted others who claimed to

have transacted business with petitioner. Despite testimony from amongst

those cooperating others that they all had “separate parallel operations”,

the indictment nonetheless charged a single conspiracy. More importantly,

the proofs at trial did not make reference to the 11 indicted others as

others as having any connection to petitioner, only the unindicted others.

That failure of proofs gave rise to the error herein.

The district court did not sua sponte issue a multiple conspiracies

instruction as it was requized to do. The instant matter exhibits the clear

trend away from adherence to the teaching, of this Court as set forth in

Kotteakos v. United States, 328 U.S. 750, 755 (1946). Congress, when it

enacted 2! U.S.C.A. §§ 841(a)(1) and 846, did not iriend to authorize

the United States to string together several separate and district

conspiracies. The prevailing problem is that the toleration of this tact by

district courts has gone too far. Absent intercession by this Court, the

problem will expand and due process will continue to be routinely

disregarded. It bears repeating that the district court below was required

On its own to issue a multiple conspiracies instruction.

B. The Case At Issue

The instant appeal arises from petitioner’s conviction of participation

in a conspiracy to distribute cocaine. The evidence adduced as to petitioner

was embodied almost exclusively within the testimony of several alleged

co-conspirator/informants, all of whom received significant consideration

in exchange for testimony. Petitioner was portrayed as one of the New

York-based suppliers to the North Carolina-based distributors. However,

contrary to the other alleged co-conspirators, petitioner had no prior

history of any criminal activity and produced several substantial family

members and others from his community to testify as to his good works

and character. Moreover, none of the cooperators was able to provide

evidence of any violent or anti-social behavior by petitioner. In contrast,

almost all of the cooperators were previously involved in shootings,

firebombing, robberies and similar conduct. Much of the violent conduct

related to hostilities between indicted and unindicted alleged co-

conspirators. !

1. The primary issue raised herein is that Count One should have been

dismissed for duplicity. It charged a single conspiracy and multiple conspiracies

were proved at trial. The hostilities between alleged co-conspirators was proof

that separate, distinct and antagonistic groups existed as opposed to a federation

with a common purpose.

a |

Petitioner testified at trial and maintained his innocence. The most

probative aspect of the United States’ proof is with respect to the

backgrounds of its witnesses and the consideration offered to them. The

largest drug trafficker amongst the group, viz. Darwin Mobley, had his

sentence reduced to 5 years in return for his cooperation. Despite the

fact that no physical evidence exists respecting petitioner’s involvement

in the trafficking network, he received the greatest sentence — 360

months. The defense theorized at trial that the truly guilty schemed to

falsely implicate petitioner

II. The United States’ Proofs

i. The Alleged Co-Conspirator/Informants

a. Darwin Jerome Mobley

Mobley entered a plea of guilty to “conspiracy to traffic cocaine”.

The disposition negotiated between Mobley and the United States

incorporated the stipulation that Mobley testify in the instant matter. The

agreement further provided that any sentence imposed on Mobley would

not exceed 262 months. Prior to trial Mobley was sentenced to a 20 year

(240 months) period of imprisonment. However, Mobley was granted

bail and at liberty when he testified. So too, Mobley anticipated that his

testimony at trial would underpin a Rule 35 motion and further reduction

of the sentence. Indeed, Mobley’s sentence was ultimately reduced to 5

years (60 months) imprisonment.

Mobley testified that he operated a “drug business” in the Grier

Heights section of Charlotte. His participation in the drug trafficking

business commenced in 1993. Mobley initially “worked for . . . [his]

Uncle Paul”. Mobley described his responsibilities as “just riding with

(Uncle Paul] and bagging up drugs”. Mobley claimed with respect to

quantity that he was “bagging up kilos of crack cocaine”. Mobley stated

that several others were employed within the Organization in which he

functioned with his Uncle Paul. Mobley identified those others as “my

brother [Jesse Mobley], my cousin Ronnie [Brown], my cousin Jack

[and] my cousin Jamie”.

Mobley remained in the employ of his uncle for “approximately

about five months”. During this period, Mobley was introduced to an

“individua! named Peter”. Mobley described his “Uncle Paul’s

organization” to Peter. Peter subsequently “offered to supply [Mobley’s]

Uncle Paul”. Peter allegedly identified his own source of supply as an

individual named “Rocky”. Mobley thereafter became aware that the

name Peter was an alias used by Balford Wiles. Wiles also used the alias

Jhamarian Chambers. After he established a relationship with Wiles,

Mobley decided to initiate his own operation independent of his “Uncle

Paul” and in concert with Wiles.

Mobley testified that the first actual purchase from Wiles involved

“25 ounces of crack cocaine”. “Uncle Paul” paid Wiles $19,000 for that

amount. According to Mobley, the transaction occurred “in April of 1993”.

Mobley testified that “Rocky brung it down with an individual named

Bobby”. Mobley identified petitioner in-court as being the individual

referred to as Rocky. Mobley testified that he met petitioner “when

[petitioner] came down [to Charlotte]”. However, Mobley had no personal

conversation with petitioner. Nevertheless, Wiles allegedly “told [Mobley]

that [petitioner] could bring as much crack cocaine as [they] wanted”. In

this context, Mobley testified that petitioner returned to Charlotte three

days after the first delivery.

The alleged second delivery of 10 ounces was for Mobley himself

as opposed to “Uncle Paul”. As was noted above, Mobley and Wiles

previously decided to become partners. Mobley testified that petitioner

made a third visit to Charlotte “with crack cocaine in kilograms”. He

was allegedly once again accompanied by “Bobby”. Mobley stated that

he (Mobley) obtained “a kilo of crack cocaine”. According to Mobley,

petitioner thereafter came to Charlotte on a fourth occasion with an

additional “kilo of crack cocaine”.

During a particular period of time, Mobley was domiciled in an

apartment with Wiles and a person named Marlo McAdams. Wiles was

arrested and thereafter jailed during the course of his co-habitation with

Mobley and McAdams. Mobley testified that Wiles prior to his arrest

had a “lot of guns in the house”. Mobley stated further that he continued

“to deal with [petitioner] after [Wiles] was arrested”. Mobley estimated

that in total he obtained “between 40 and 60 kilograms of cocaine” from

petitioner.

At the behest of the United States, Mobley described a chart of “the

drug organization through February of ’93 to September of ’94”. That

chart injected into the trial many persons and transactions wholly

unrelated to petitioner. Mobley stated:

[I started with] Uncle Paul when I came down in February

and I started riding with [him] . . . during February-April

[there] was a guy from Trinidad, which I didn’t know his

name, that was supplying Wesley and Robby which

supplied my Uncle Paul ... Brooklyn, New York that’s

another source my Uncle Paul used to get cocaine

from. . .. Doug Serrat was a cooker... These guys would

bring powder cocaine to Charlotte [and] Doug Serrat

would transfer it into crack cocaine ... Larry Davis and

Kent, they was two guys that supplied my Uncle Paul also

.. + Monroe Road was a strip of road which my Uncle

Paul had an apartment where he stashed his drugs and

money ... Little Rock is a project off the west side of

town which my Uncle Paul supplied ... a half a kilo a

week went into that neighborhood .. . the names below

Griertown [are] people that worked for my Uncle Paul. . . .

Jeep was a customer of my Uncle Paul . . . November ’93

... this is the time period when [petitioner] and Bobby

came into the organization in which me and Uncle Paul

met [Wiles] ... Right around August, [petitioner] went

to Jamaica. At this time, Bobby used his source to bring

cocaine down to North Carolina . .. at this time, [Peter]

was supplying me with cocaine and I’m pulling away from

Uncle Paul . . . [We all had] separate parallel operations

at the time. . . . [I had] an operation going in Cornelius,

North Carolina during June of ’°93 to November of °93

... the people working for me in Cornelius [were] Billy

Davis, Dean and this guy Big Bird. . . [In the] Little Rock

and Boulevard Homes Apartments . . . Eric Sampson and

Eddie Little [were] working for [me] . . . Mark Verilano,

Peewee and his brother [worked for me in Cedar Green].?

2. Mobley’s testimony that “[We all had] separate parallel operations at

the time” underpins our claim that multiple conspiracies as opposed to a single

(Cont'd)

Mobley also described a individual named Leon “that bought eight-

balls and quarter-ounces from us” ; Bobby “[who] was another guy from

the organization”; Hawk “[{who] was another drug dealer [who] had his

own organization in Griertown; Brian Alexander; Big Rodney from Larry

Davis’ organization”; Brady from Rodney’s organization; Dog —

“another fellow in Griertown”; Flew Jay — “another person from Uncle

Paul’s organization”, and William Matthews and Jo Richardson, both of

whom were suppliers to Mobley.

Subsequent to his arrest, Mobley placed a monitored and recorded

telephone call to petitioner. Mobley described the purpose of the call as

“to set up a drug transaction. . . . to convince the agent I had ties to New

York City”. Mobley made references to Wiles in the conversation.

Petitioner addressed Mobley as “D Dog” and inquired about Uncle Paul

and the arrest of Richard Crawford. Petitioner further stated to Mobley

“Hey, come get it, man”. Mobley understood this remark to mean “can I

come up to New York and get the drugs myself”.*

b. Balford Wiles

As previously noted, Wiles is the “Peter” referred to by Mobley. At

the time of trial, Wiles was serving a 15 year sentence. He pleaded guilty

to participation in a drug conspiracy. Prior to negotiating a specific

disposition, Wiles’ guidelines required a sentence of between 360 months

(Cont'd)

conspiracy were proved at trial. That testimony must be read in light of the fact

that no evidentiary references were made in the trial to any of the co-defendants

named in the indictment. Moreover, Mobley identified persons and activities

wholly unconnected to appellant.

3. On cross-examination, it was revealed that Mobley received a less than

honorable discharge from the military service because of his involvement in credit

card fraud. Mobley was also involved in a drive-by shooting. Mobley stated that

he “kept hearing threats they was going to do something to me, so I got tired of

hearing them and went over there and shot up a parking lo’ and left”. Mobley also

paid Mark Verilano and Ronnie Brown and “a guy named Rayford ... to whip

Williams Matthew's with a shotgun” and retrieve $44,000. Mobley testified that

he was armed with a weapon at all times. In contrast to his claims that a large

operation existed and many kilos of cocaine were distributed, Mobley testified

that he earned only $40,000 “over a two-year period”.

ae NE ee eee ae Te pe, ato

eee ¥

Baie a

to life. Wiles is a citizen of Jamaica and an illegal alien in this country.

He entered the United States on a visitor’s passport and did not return to

Jamaica. Wiles’ legal woes commenced in New York where he was

arrested for weapons offenses. He fled from New York via bus to North

Carolina to avoid prosecution. Wiles testified that he thereafter

commenced trafficking in cocaine with petitioner.

Wiles’ first customer was [Uncle] Paul Mobley. Wiles testified that

he informed Mobley “of a person in New York which I could turn him

on to”. Thereafter, Wiles allegedly entered into an arrangement with

petitioner. Wiles testified that petitioner traveled to Charlotte via airplane

and brought a “little over half of key”. Wiles stated that petitioner returned

in “about a week . . . [with] more than [the] first trip, because he was

building up”. According to Wiles, third and fourth trips to Charlotte were

undertaken by petitioner. Wiles could not remember the amounts of

cocaine involved.

Wiles stated that petitioner was accompanied on the fourth trip by

Bobby Sang. In this context, Wiles stated that “[petitioner] brought Bobby

down to start transporting it down [and] later on, most of the trips was

done by Bobby”. Wiles testified that “a guy named Mike” assisted “Bobby

in making trips”. Wiles described Mike as “heavy-set, dark skin, wears

glasses”. Wiles also recruited Richard Crawford to transport cocaine

from New York to Charlotte.

On cross-examination, Wiles elaborated on the firearms possession

incident which prompted his re-location to North Carolina and assumption

of at least two aliases. Wiles was a passenger in a van. He and others in

the van were armed. The van was stopped by police officers and an

attempted flight ensued. A police officer “jumped on the running board”

of the van and shot one of the passengers. That passenger, an individual

identified as Donovan, died. Wiles was also wounded in the incident.

Wiles further admitted that he possessed at least three firearms in his

residence at the time of his arrest. The guns found in Wiles’ residence

included “a street sweeper (shotgun)”; a Mach 11 semi-machine gun,

and a mini 14 rifle.‘

4. It was further revealed on cross-examination that Wiles advised

authorities after his arrest that “after two trips Bobby started supplying Darwin

(Cont'd)

c. Richard Crawford

Crawford at the time of trial was serving a sentence of 180 months.

Crawford confirmed that he was recruited by Wiles to transport cocaine

from New York to Charlotte. Prior to the proposition, Crawford was “a

street dealer in New York”. During his first trip to transport cocaine,

Crawford was accompanied “Bobby Sang and his cousin, Mike”.

Crawford testified that “approximately a kilogram” of cocaine was

transported from New York to Charlotte on that occasion. He further

Stated that it was supplied by petitioner. The cocaine was delivered to

Wiles and Darwin Mobley.

Crawford testified that he thereafter continued to make deliveries

on a weekly basis. The deliveries began in 1993 and occurred between

“September [and] November”. There was a cessation after November

“when Wiles was taken into custody”. The deliveries resumed in February

or March of 1994. Crawford supported himself between November and

February by “borrowing money”. Prior to Wiles’ arrest, Crawford shared

an apartment with him.°

d. Marlo McAdams

McAdams at the time of trial was imprisoned serving 24 years (292

months). McAdams met Wiles in 1993 in Charlotte. According to

McAdams, Wiles advised him that “he (Wiles) was selling drugs”.

McAdams further stated that Wiles identified “a friend named Rocky

from New York” as his source. Thereafter, Wiles was incarcerated and

(Cont’d)

the crack and [appellant] was cut out”. A motive for Wiles’ bias against

appellant was also elicited. In 1993, prior to his arrest, Wiles learned that

appellant “had an affair with [his] wife”.

5. On cross-examination Crawford testified that he operated the motor

vehicle in a drive-by shooting orchestrated by Darwin Mobley. Mobley advised

Crawford that he intended to “shoot whoever he saw, if he saw the guys, attempt

to scare them”. Crawford further stated that Wiles had at least two sources of

supply in New York, including Bobby Sang. Crawford also transported cocaine

from Florida to North Carolina for William Matthews. Crawford was also aware

that Darwin Mobley planned and executed a robbery of William Matthews.

McAdams became closely associated with Richard Crawford. McAdams

testified that Crawford “took [him] around New York and [he] met

[petitioner]”. McAdams subsequently “started making trips and selling

drugs”. In this context, McAdams commenced “buying dope . . . for

[himself}”. McAdams in some instances joint-ventured with Darwin

Mobley. McAdams stated that he could “buy drugs all over New York”.

e. Bobby Shawn Sang

Sang at the time of trial was serving a sentence of 11 years and 3

months. Sang testified that he met petitioner in September of 1992. Sang

was involved in “distributing drugs in South Carolina”. He provided

petitioner with transportation to North Carolina. Sang claimed that they

were in possession of “a key and a half [of] crack cocaine” on that

occasion. The cocaine was delivered to Wiles. Sang after other

transactions independent of petitioner argued with Wiles because “{his]

money messed up”. Specifically, Wiles claimed that Sang was “shorting

his stuff’. Wiles’ subsequent arrest ended the conflict.

f. [Uncle] Paul Mobley

Mobley began distributing drugs in September of 1992. Wesley

Hunter was Mobley’s primary supplier. Wiles introduced Mobley to

petitioner. Mobley testified that he purchased 17 ounces from petitioner

for $11,000. According to Mobley, future purchases ensued. Mobley

testified “I dealt with [petitioner] a couple more times”. Mobley during

his tenure in the drug business “asked a [person] to beat this guy up”.

However, the person firebombed a house instead. The person whom

Mobley wanted assaulted was Wesley Hunter. Mobley testified that

[Hunter] had called over to his house and left a message on [his] answering

service that he was going to

ii. Joseph Alexander Boykin

Boykin is employed by the Bureau of Alcohol, Tobacco and Firearms.

He was utilized by the United States as the case agent in this matter.

Boykin testified that the “investigation initiated when [Wiles] was arrested

for being a fugitive from the state of New York”. When Wiles was arrested,

“a small amount of cash and weapons were recovered from his

apartment”. The contraband resulted in the investigation and arrest of

Crawford, who resided with Wiles. Crawford “was [thereafter]

interviewed by investigators and provided information that he was a

courier for a drug organization in Charlotte”.

The disclosures of Crawford prompted an interrogation of Wiles.

Boykin testified that Wiles “identified a subject known as Rocky from

New York as being the principal supplier of crack cocaine to the

organization”. Wiles information underpinned a subsequent “traffic stop

. .. conducted on Darwin Mobley”. Mobley surrendered an address book

during the course of an interrogation. That interrogation was a prelude

to an interview of [Uncle Paul] Mobley and others. Paul Mobley thereafter

provided to Boykin “‘a lot of information about the conspiracy involving

his nephew, Darwin Mobley”. Paul Mobley allegedly identified petitioner

“as being the principal supplier of cocaine from New York”.

The principal purpose of Boykins’ testimony was to admit a chart

illustrating a flow of telephonic contact between petitioner and Paul

Mobley; petitioner and Wiles; petitioner and Richard Crawford; petitioner

and Darwin Mobley, and petitioner and Marlo McAdams. The chart was

based on telephone records. However, on cross-examination it was

established that the telephone records were not per se incriminatory. For

example, Wiles during a particular period made 293 calls to New York.

Only two of those calls were placed to petitioner’s residence.°

Ill. The Defense

i. Background And Character Witnesses

a. Jemargie Morrison

Morrison is petitioner’s mother. In April of 1994 and August of

1994, Morrison and petitioner traveled to Jamaica “to bring [her] father

back [to the United States]. Morrison’s father had “arthritis in his spine,

an infection of the blood [and] parasitic blood”. When Morrison’s father

was returned to the United States, petitioner assumed the responsibility

of conveying him to medical facilities for treatment.

6. Boykin also conceded that he did not have “any tangible physical

evidence to put any drugs in [appellant's] hand”.

Morrison testified that her son has at no time to her knowledge

possessed “large sums of money”. She was aware that he received a

substantial severance settlement when his employrnent with Scandinavian

Airlines was terminated Morrison further testified that petitioner owned

a restaurant for a period of time. The restaurant specialized in “oxtails,

rice [and] Jamaican food.” Food was offered on an takeout basis only.

The restaurant was named “Island Taste”. Morrison testified that petitioner

purchased a residence which was not in sufficient condition for habitation.

He personally performed the work necessary to render the premises

habitable. In July of 1995, petitioner married Toni Allen. Between August

of 1994 and the time of trial, petitioner was employed in a janitorial

business.

b. Julia Allen

Allen is petitioner’s mother-in-law. Allen has known petitioner since

1988. She testified that petitioner purchased a burned-out residence

adjacent to her own which “needed fixing”. Petitioner renovated it himself.

During 1993, prior to completion of the renovations, petitioner resided

in a basement apartment in a building owned by Allen. Allen at no time

observed “any evidence of drug dealing around that apartment”.

c. Hubert Gordon

Gordon at the time of trial was a student in St. Viadimir’s Orthodox

Theological Seminary. He met petitioner in 1988. Gordon is the godfather

of the daughter born into the union of petitioner and Toni Allen. Gordon

attended undergraduate school at Stony Brook University. During that

period, Gordon frequented petitioner’s restaurant. Gordon attempted to

negotiate a contract between the university and petitioner relative to

provision of food to the student cafeteria prepared by petitioner’s

restaurant.

d. Toni Allen-Osbourne

Allen-Osbourne was married to petitioner in July 1995. She testified

as to an awareness that friction existed between petitioner and Wiles.

The friction stemmed from Wiles’ belief that petitioner had sexual

relations with Wiles’ wife, Tammy. Petitioner previously worked for a

supermarket; Scandinavian Airlines in the baggage claim department; at

the restaurant; at a limousine company as a chauffeur, and as a custodian.

Allen-Osbourne had no basis for a belief that petitioner was at any time

involved in drug trafficking.

e. George Branker

Branker is a friend of petitioner and Allen-Osbourne’s family.

Branker retired from employment with the New York City Fire

Department in 1977. In 1982, Branker was appointed to the school board

in District 29 and “still serves at this time”. Branker frequently observed

petitioner in the process of completing repairs on his residence. Branker

testified that he is like a second father to Toni Allen-Osbourne. She

frequently contacted him to assist in matters associated with petitioner’s

restaurant. He described his aid as “I would assist them in opening and

sometimes be around to close”. Petitioner expended a considerable

amount of time at the restaurant. Branker concluded his testimony with

the statement that “[he] would not mind having [petitioner] as a son”.

f. Joseph Allen

Allen is petitioner’s brother-in-law. Allen is a student at Hofstra

University. He described petitioner as “a very personal [and] dear friend”.

Allen has been in petitioner’s presence at least weekly since 1988. He

testified that petitioner worked very hard in the restaurant. Allen stated

that [petitioner] was there all of the time. He cooked. He cleaned. He

took care of his business. “Allen testified that petitioner did not “hang

around with people [who] were involved with drugs”.

g. Mark Anthony Purboo

Purboo is petitioner’s cousin. Petitioner’s mother is Purboo’s

mother’s sister. Purboo is employed as a dental assistant. Purboo testified:

[Petitioner] is hard-working . . . He is never lazy, always

doing something, and he is always helping someone .. .

He devotes a lot of time to whatever he plans . . . opening

a restaurant, he is there all day. He is going to school, he

is there. Everything he is doing, he is busy trying to make

ends meets for the family. That is why he started the

restaurant, to see if it would be better for the family, he

could make money.

h. Carlos Walton

Walton is employed as a teacher in New York City. He was the best

man at the wedding of petitioner and Alien-Osbourne. Walton has never

“seen anything around [petitioner] that indicated he was involved in

drugs”. He described petitioner as a “very good-hearted person, a very

reliable person”.

i. Richard Patrick Billy

Billy is the manager of Triangle Services. Triangle Services is a

janitorial company. He met petitioner in August of 1985. They worked

together at Triangle Services until 1987 when petitioner commenced

employment at Scandinavian Airlines. Petitioner returned to his

employment at Triangle Services in April of 1995 and remained until

November of 1995. Billy thereafter offered petitioner a job. Petitioner

requested that an uncle of his be provided the job because the uncle’s

need for employment was greater. Billy stated that “[petitioner] is a type

of person, he would put you in front of himself. If something is going

down, he [would] look out for you first as opposed to himself”.

ii. The Testimony Of Petitioner

The instant matter represents the first arrest and accusation of

unlawful behavior experienced by petitioner. Petitioner began working

at Triangle Maintenance at age 16. He at that time was in the eleventh

grade in high school. The job was located at Kennedy Airport in New

York. Petitioner stated “I cleaned up, put newspapers out in the first-

class and third-class lounges [and] made sure that snacks [were] there

for the incoming passengers”. After graduation from high school,

petitioner enrolled at Community College. He also secured employment

at Scandinavian Airlines as a baggage handler and worked at United

Parcel Service at night. Petitioner thereafter enrolled in the College of

Aeronautics. He completed that two-year program and obtained a

certificate. The certificate confirmed petitioner’s training as an “aircraft

maintenance technician”.

Petitioner’s employment at Scandinavian Airlines thereafter ceased.

That airlines moved to Newark, New Jersey from New York City.

Petitioner received “ a buyout of two and a half years’ salary in advance”.

Subsequent to his election to take the buyout, petitioner was unemployed

for a period of time. Petitioner utilized the buyout proceeds to purchase

a fire-damaged house from an estate in September of 1992. He thereafter

repaired the damages. Petitioner’s effort to renovate the premises began

in September of 1992. The house became suitable for habitation in July

of 1993. Prior to July of 1993, petitioner resided in the basement apartment

within a residence in Queens, New York owned by the Allen family. In

April of 1993, petitioner opened a restaurant in partnership with others.

He worked at the restaurant from 6:30 a.m. until 3:00 p.m. At 3:00 p.m.

petitioner’s “partner would relieve [him]”. The restaurant was not

profitable. Operation of the enterprise ceased in February of 1994.

Petitioner admitted to a relationship with Wiles. He met Wiles in

1991 in New York City. Wiles introduced petitioner to Crawford.

Petitioner denied any involvement in drug trafficki.ig. Petitioner

specifically denied that crack cocaine was at any time possessed in his

apartment and/or that Crawford transported cocaine at his behest. The

visits which petitioner made to North Carolina were social in nature.

Wiles introduced petitioner to Darwin Mobley, Paul Mobley and Gene

Mobley. There were no discussions concerning drug trafficking. Petitioner

has “seen Bobby [Sang], but . . . never met [him]”. Wiles brought Sang

to petitioner’s restaurant. Wiles also brought McAdams to the restaurant.

Wiles’ wife also frequented petitioner’s restaurant. Petitioner

confessed to an indiscretion stating that Wiles’ wife “came to the

restaurant every day to just sit and talk, and eventually one day I ended

up sleeping with her”. Subsequent to Wiles’ arrest, Crawford visited the

restaurant. Crawford stated to him that “Wiles was arrested on gun charges

in North Carolina [and] Wiles said to blame everything on [petitioner]”.

At the time of his own arrest, petitioner was enrolled in computer graphics

and video production classes at New York University.

On the basis of the foregoing evidence, petitioner has convicted of

conspiracy. The Fourth Circuit affirmed.

This Petition for Certiorari follows:

REASONS FOR GRANTING THE WRIT

CERTIORARI SHOULD BE GRANTED TO ENFORCE

THE PRESCRIPTIONS AGAINST AND REMEDY FOR

CHARGING MULTIPLE CONSPIRACIES WITHIN A SINGLE

CONSPIRACY COUNT.

The indictment charged in Count One alleged a single conspiracy

wherein petitioner was alleged to have conspired with Tony Bernard

Alexander; Albert Leonard Alexander; Bryant Lamar Alexander; Johnny

Stacey; Herbert Vanhoy Williams; Kenneth James Wallace; Nathan Leon

Johnson; Lonnie Hames, Jr.; Lonnie Dewayne Robinson; Nolan Lamont

Stafford; Gifford Wallace, and others identified and unidentified. None

of the individuals specifically referred to as indicted co-defendants in

Count One were mentioned in proofs adduced within petitioner’s trial. It

would appear that those individuals had undefined relationships with the

alleged co-conspirators/informants who testified against petitioner at trial.

The lack of any references to the identified co-defendants at trial

underscores the clear fact that several conspiracies as opposed to a single

conspiracy was both alleged in the indictment and proved at trial.

In this context, we emphasize at the outset that Darwin Jerome

Mobley testified pursuant to questions asked on direct examination by

the United States that “[we all had] separate parallel operations at the

time”.’ That testimony essentially established that multiple conspiracies

were alleged in Count One. Notwithstanding the fact that the proofs

established the existence of several distinct conspiracies jointly charged

within Count one, the district court did not either dismiss the charge or

instruct the jury as to the significance of a factual finding of multiple

conspiracies. A finding that two or more distinct offenses are charged

7. Darwin Mobley, Jesse Eugene Mobley, [Uncle] Paul Mobley, Balford

Wiles, Richard Crawford, Crystal Perry, Andre Willis, Michael Anthony

Wallace and Jeffrey Jordon were listed in the indictment as indicted co-

conspirators. At trial, Darwin Mobley, Paul Mobley, Balford Wiles and Richard

Crawford were alleged as having had any contact with appellant.

within a single count must as a matter of law result in dismissal of that

count on the ground that it is duplicitous. At a minimum, the jury must be

instructed to acquit if it finds more than one conspiracy within the single

count. .

We submit that the trial court committed plain error when it submitted

the clearly duplicitous count to the jury. The trial court was required sua

sponte to dismiss Count One when it became obvious that the United

States’ proofs were at variance with the single conspiracy outlined in the

indictment. The absence of a juridical dismissal or edification of the jury

as to its duty to acquit permitted not only the charging of multiple

conspiracies in a single count but also an infirm conviction. It bears

repeating that the United States’ primary alleged co-conspirator/informant

specifically .estified that distinct, separate and antagonistic enterprises

existed. Simply put, the United States alleged a single conspiracy in its

indictment and did not prove such a conspiracy. Indeed its own proofs

manifestly estab ished multiple conspiracies. The United States’ proofs

required that it suffer either a dismissal or acquittal of petitioner. Due

process demands no less.

A. The Constitutional Right To Indictment

The purpose of an indictment is to provide the defendant with notice

of charges against him in order that he may prepare a defense, to effectuate

the Fifth Amendment’s double jeopardy provision and to shield an accused

from an unwarranted and unfounded charge of involvement in serious

crimes by interposing the independent judgment of the grand jury. United

States v. Radowitz, 507 F.2d 109 (3rd Cir. 1974). Stated somewhat

differently, no man may be brought to trial for crime unless a grand jury

shall first find sufficient cause for a charge. And, the indictment must

allege all essential elements of the offense. United States v. Locklear, 97

F.3d 196, 199 (7th Cir. 1996); United States v. Bates, 96 F.3d 964 970

(7th Cir. 1996). Cf. United States v. Werme, 939 F.2d 108 (3rd Cir. 1994)

(Generally each count of the indictment must set forth a sufficient

description of the crime charged); United States v. Darby, 37 F.3d 1059

(4th Cir. 1994) (Indictment must include every essential element of the

offense or it is invalid and mere reference to applicable statute does not

cure the defect).

It should be emphasized that an indictment is not amendable by a

court to charge an offense not found by the grand jury, either by

substitution of offenses or to supply substantive omissions. United States

v. Soskin, supra at 1380. The settled rule is that an indictment may not be

amended except by resubmission to the grand jury. Russell v. United

States, 369 U.S. 749, 770 (1962). In short, the possible bases for

conviction are limited to those contained in the indictment. New ones

may not be added without resubmitting the indictment to the grand jury,

whether they are added literally, by formal amendment to the indictment,

or constructively, Moreover, new bases for conviction may not be supplied

by proof at the time of trial of a crime not clearly and fully charged or by

instructions to the trial jury. In short, no modification may be made which

would allow conviction on grounds not charged by the grand jury. United

States v. Leichtman, 948 F.2d 370, 374-377 ( 7th Cir. 1991).

B. General Principles Pertaining To Conspiratorial Liability

Knowledgeable entry into an agreement with others to commit an

offense or offenses is the gist of the crime of conspiracy. United States v.

Hubbard, 96 F.3d 1223, 1226 (9th Cir. 1996). See United States v.

Carpenter, 95 F.3d 773, 775 (9th Cir. 1996); United States v. Fleschner,

98 F.3d 155, 159 (4th Cir. 1996); United States v. Vera, 701 F.2d 1349,

1357 (11th Cir. 1983); Simply put, the parties must have a meeting of

the minds in the common design, purpose or objects of the conspiracy.

See United States v. Zang, 703 F.2d 1186, 1191 (9th Cir. 1982).

Explicit in the requirement of an agreement under Federal Law is

that each accused must be shown to have purposely and, knowingly

participated in the conspiracy. See United States v. Lee, 694 F.2d 649,

652 (11th Cir. 1983); United States v. Littlefield, 594 F.2d 682, 684 (8th

Cir. 1977), cert. den., 98 S. Ct. 522 (1978); Cf. United States v. Blasco,

702 F.2d 1315, 1130 (11th Cir. 1983). We stress that neither mere

association with individuals engaged in illegal conduct nor mere

knowledge of the existence or acquiescence in the object of a conspiracy

is sufficient to sustain a conspiracy conviction. See United States v.

Richmond, 700 F.2d 1183, 1190 (8th Cir. 1983). See United States vy.

Kraig, 99 F.3d 1361, 1368 (6th Cir. 1996); United States v. Stoner, 98

F.3d 527, 530 (10th Cir. 1996); United States v. Gray, 96 F.3d 769, 772

(Sth Cir. 1996).

The government is not required to prove that the person charged

participated in each aspect of the operation. See United States v. Russell,

supra at 1249-1250; Cf United States v. Coke, 704 F.2d 554, 557 (11th

Cir. 1983). Moreover, The government need not show that the agreement

to engage in criminal activity was formal or excess. United States v.

Zang, supra at 1191. An implicit or tacit agreement may be inferred

from the facts and circumstances. United States v. McCarthy, 97 F.3d

1562, 1568 (8th Cir. 1996). See United States v. McCarty, 611 F.2d 220,

222 (8th Cir. 1979). United States v. Monroe, 552 F.2d 860, 862 (9th Cir.

1977), cert den., 431 U.S. 971 (1978).

However, it bears repeating that a conspiracy as a crime comprehends

more than mere joint enterprise and must be shown to include the essential

elements outlined above such as a meeting of the minds and criminal

intent to commit the substantive offenses. See United States. v. Pretty, 98

F.3d 1213, 1218 (10th Cir. 1996); United States v. Blount, 98 F.3d 1489,

1493 (Sth Cir. 1996); United States v. Trowery, 542 F.2d 623, 626 (3rd

Cir. 1976), cert. den., 429 U.S. 1104; United States v. Thompson, 553

F.2d 1006, 1009 (6th Cir. 1977), cert. den., 429 U.S. 939 (1977).

The direct aim of the law in the criminalization of conspiracies is to

prosecute the agreement itself, separating and stigmatizing jointly planned

criminal activity prior to its completion. See United States v. Alvarez,

610 F.2d 1250, 1254 (Sth Cir. 1980). Stated somewhat differently, the

statutes proscribing conspiracy are aimed at the evil of collective criminal

agreement and Seek to attack problems quite apart from the underlying

offense. The conspiracy law is intended to combat the danger of secret

combinations to break the law. United States v. Badolato, 701 F.2d 915,

921 (9th Cir. 1983): United States v. Jeffers, 532 F.2d 1101, 1110 (7th

Cir. 1976), aff'd in part, vac. in part, 429 U.S. 815 (1977); United States

v. Heldon, 479 F. Supp. 316, 321 (E.D. Pa. 1979).

C. The Distinction Between Single And Multiple Conspiracies

If the totality of the evidence shows a concert of action in which all

the parties worked together with a single design for the accomplishment

of a common purpose, then there is but one conspiracy. Simply put, the

evidence must demonstrate an overall collusive arrangement. See United

States v. Jackson, 696 F.2d 578, 582-584 (8th Cir. 1982); United States

v. Johnson, 585 F.2d 119, 128 (Sth Cir. 1978). The gist of the criminal

conspiracy, the agreement between co-conspirators, may continue over

an extended period of time and involve numerous transactions. Parties

may join a single conspiracy after its inception and may withdraw and

terminate their relationship prior to its completion. See United States v.

LaRusso, 695 F.2d 45, 54-55 (2nd Cir. 1982). Stated somewhat differently,

for the purpose in determining whether a single conspiracy exits, a plan

does not become several plans simply because some members are cast

in more vital roles than others or because certain members perform only

a single function. Moreover, it does not become several pians because of

internal personnel changes. See United States v. Miche, 558 F.2d 994-

995 (Sth Cir. 1979). Cf United States v. Borchardt, 698 F.2d 697, 702

(5th Cir. 1983).

Each conspirator must have a general knowledge of the overall

purpose and scope of the conspiracy, but it is not necessary that the

conspirators know each other or the details of each enterprise making up

the conspiracy. See United States v. Gatling, 96 F.3d 1511, 1520

(D.C. Cir. 1996). However, it should be emphasized that the fact that

there is some interrelationship between conspiracies does not necessarily

make them the same criminal enterprise. See United States v. Ingman,

541 F.2d 1329, 1331 (2nd Cir. 1972). A critical litmus test in determining

where one conspiracy ends and another begins is to inquire whether any

of the major common participants considered his or their mutual dealing

to have terminated. United States v. McCarthy, supra; United States v.

Sotelo, 97 F.3d 782, 789 (Sth Cir. 1996).

With respect to the instant single conspiracy alleged in Count One,

the United States was required to adduce evidence that any alleged

agreement encompassed all of the parties. If petitioner was not found to

be a party to the single conspiracy outlined in Count One, he was entitled

to an acquittal. In this context, we stress that the United States’ proofs

established several separate and distinct conspiracies. See United States

v. Levine, 546 F.2d 658, 663 (Sth Cir. 1977), reh. den., 551 F.2d 687 (Sth

Cir. 1977). The proofs elicited from the States’ primary witness clearly

did not establish the agreement of purpose which a single conspiracy

must incorporate. Indeed, that individual informed the jury that separate

agreements were at issue. Kotteakos v. United States, 328 U.S. 750, 755

(1946); United States v. Coward, 630 F.2d 229, 231 (4th Cir. 1980). See

United States v. Levine, supra at 663. Cf. United States v. Ochoa, 609

F.2d 198, 201 (Sth Cir. 1980) (In order to have a single conspiracy, the

conspirators must be directed toward a common goal); United States v.

Ashley, 555 F.2d 462, 465 (Sth Cir. 1977), reh. den., 559 F.2d 29 (Sth

Cir. 1977), cert. den., 434 U.S. 869 (1978) (Common purposes and plan

must be proved by a development and a collocations of circumstances).

D. The Trial Court Was Required To Dismiss Count One

The indictment in Count One notified petitioner that the United States

alleged and was required to prove a single conspiracy at trial. Thereafter,

it was manifest at trial that the United States’ proofs established several

distinct agreements as opposed to the single conspiracy in Count One.

Notwithstanding the clear fact that the proofs were at variance with the

allegations set forth in the indictment, the trial court did not consider

either dismissal of Count One or instructing the jury as to the significance

of the variance. In so doing, the trial court permitted the United States to

present at least two separate conspiracies to the jury within the single

count without legal guidance. That determination violated the rules as to

permissible jointer of offenses and permitted the jury to convict petitioner

of an offense not charged in the indictment. In this context, the court in

its instructions was required to instruct the jury that it must acquit if it

found two distinct conspiracies in Count One. No such instruction was

uttered despite the unequivocal testimony of Darwin Mobley that distinct

and antagonistic groups were identified in Count One as opposed to a

single group of conspirators with a common purpose.*

a. The Law As To Duplicity

Fed. R. Crim. Proc. 8(a) states as pertinent hereto:

Two or more offenses may be charged in the same -

indictment or information in a separate count for each

offense if the offenses charged ... are of the same or

similar character or are based on the same act or

transaction or on two or more acts or transactions

connected together or constituting parts of a common

scheme or plan.

8. Evidence as to the distinct and antagonistic nature of the group was

also elicited from Wiles, Paul Mobley and Bobby Sang.

Where two or more separate and distinct conspiracies are joined in

the same count of an indictment, such as in Count One of the instant

indictment, that count is duplicitous in contravention of Fed. R. Crim.

Proc. 8(a). See United States v. Kearney, 451 F. Supp. 33, 35 (S.D.N.Y.

1978). The inherent problems with respect to a duplicitous count are: (1)

a general verdict of guilty does not disclose whether the jury found the

defendant guilty of one crime or both; (2) the defendant may be prejudiced

in the context of evidentiary rulings during trial, since evidence admissible

on one offense might be inadmissible on the other; and (3) there is no

means to determine with a general verdict on two separate offenses joined

in a single count whether the jury was unanimous with respect to either.

United States v. Starks, 515 F.2d 112, 116 (3rd Cir. 1975). The doctrine

of duplicity is result-oriented. It prohibits the charging of multiple offenses

in a single count but allows the charging of multiple means constituting

a single and continuing offense. This is true even if the components of

the single offense may otherwise be treated as offenses. United States v.

Kearney, supra. See United States v. Cohen, 444 F. Supp. 1314, 1320

(E.D. Pa. 1978); Cf United States v. Berardi, 675 F.2d 894, 897-898

(7th Cir. 1981).

b. Count One Is Fatally Duplicitous

The United States Supreme Court has repeatedly warned against

“attempts to broaden the already pervasive and widesweeping nets of

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

404 (1957). The instant conspiracy count is a form of wheel conspiracy

because it purports to charge a single conspiracy due to the presence of

one common participant, viz. Darwin Mobley.’ With respect to the type

of conspiracy attempted to be charged here, it has become an axiom of

conspiracy law that for a wheel to exist, those people who form the

wheel “spokes” must have been aware of each other and must do

something in furtherance of some single illegal enterprise. See

Blumenthal v. United States, 332 U.S. 539, 556-557 (1947). Otherwise,

“the conspiracy lacks the rim of the wheel to enclose the spokes.”

Kotteakos v. United States, 328 U.S. 750, 755 (1946). Here, the evidence

presented at trial not only failed to establish a single over-riding agreement

9. The analysis is complicated herein because the proofs seem to establish

the existence of several persons with separate and even antagonistic enterprises.

A wheel may also be found around Wiles, Paul Mobley and Bobby Sang.

among the conspirators, but also fails to allege any concert of action that

would provide such a rim. The evidence adduced herein did not establish

that petitioner had any knowledge whatsoever of the conspiracy between

Mobley and the others persons named in the indictment as co-defendants.

As with Kotteakos, such a wheel simply will not roll.

The factual parallels between this case and Kotteakos are instructive.

In Kotteakos, numerous individuals were indicted and charged with a

single general conspiracy to violate the National Housing Act by inducing

lending institutions to make loans on the basis of false and fraudulent

information contained in loan applications. The central and common

figure in each of the fraudulent loan applications was one Simon Brown.

Brown, having had experience in obtaining loans under the National

Housing Act, undertook to act as a broker for the others in renovation,

knowing that the proceeds of the loans would not be used for the purposes

stated in the applications

Nineteen defendants went to trial. Thirteen defendants’ cases went

to the jury and seven were convicted. With respect to the petitioners in

Kotteakos, there was no evidence to connect them to the other defendants,

except that they had dealt through Brown in obtaining their loans. With

respect to the others defendants, there was not only no connection between

them and the petitioners, but there was no relationship proven between

and among themselves. The singular common fact was that they had all

dealt through Brown, the hub. At least eight separate conspiracies, none

having any connection with the other, were found in Kotteakos. In

reviewing the convictions, the Kotteakos Court stated:

Here, toleration went too far. We do not think that either

Congress, when it enacted § 259, or this Court, when

deciding the Berger case, intended to authorize the

Government to string together, for common trial, eight or

more separate and distinct crimes, co-conspiracies related

in kind though they might be, when the only nexus among

them lies in the fact that one man participated in all...

But if the practice here followed were to stand, we see

nothing to prevent its extension to a dozen, a score or

more conspiracies and at the same time to score of men

involved, if at all, only separate in them. The danger of

transference of guilt from one another across the line

separating conspiracies, subconsciously or otherwise, are

so great that no one really can say prejudice to substantial

right has not taken place. [343 U.S. supra at 773-774]

Some two years after Kotteakos was decided, the United States

Supreme Court, in deciding Blumenthal v. United States, supra, took

occasion to comment on the significance of Kotteakos. The Blumenthal

Court stated: |

[This] case therefore is very difference from the facts

admitted to exist in the Kotteakos case. Apart from the

much larger number of agreements there involved, no two

of those agreements were tied together as stages in the

formation of a large all-inclusive combination, all directed

to achieving a single unlawful end or result. On the

contrary, each separate agreement had its own distinct,

illegal end. Each loan was an end in itself, separate from

all others, although all were alike in having similar illegal

objects. Except for Brown, the common figure, no

conspirator was interested in whether any loan except his

own went through. And none aided in any way, by

agreement or otherwise, in procuring another’s loan. The

conspiracies were therefore distinct and disconnected, not

parts of a larger general scheme, both in the phase of

agreement with Brown and also in the absence of any aid

given to others as well as in specific object and result.

These was no drawing of all together in a single, overall,

comprehensive plan.” [332 U.S. supra at 558].

So too, the United States’ proofs as to Count One failed to draw

petitioner and any of the named co-defendants together in a single, overall,

comprehensive plan. Moreover, the testimony of the alleged co-

conspirator/informants established separate, distinct and antagonistic

enterprises. Darwin Mobley literally stated this fact. There can be no

other conclusion but that Count One as proved at trial does little more

than charge at least two separate agreements, each having its own distinct

illegal end, with only Mobley and perhaps Wiles common to each.

The issue raised herein was analyzed in United States v. Cryan, 490

F. Supp. 1234 (D. N.J. 1980). In Cryan, the grand jury erroneously

incorporated multiple conspiracies into a single count. The Court in Cryan

found that a conspiracy count which charges two conspiracies as one

has no vitality. The indictment in Cryan was properly dismissed. The

Cryan court stated:

An indictment may not charge multiple conspiracies in a

single count. . . the rational for this principle is two-fold.

First, a jury verdict on any count which charges two

separate offense is ambiguous: it does not reveal whether

the jury considered and reached a verdict on each offense

charged . . . second a count charging two offenses not does

reveal whether the grand jury intended to charge either

not had it been aware that the offense were distinct. This

problem is particularly acute when the multiple offenses

charged are conspiracies, because the grand jury may have

indicted one defendant on the basis of evidence admissible

only against other defendants. [429 F. Supp. supra at

1239]

This Court has no just option other than to dismiss the conspiracy

conviction herein. There is no basis upon which it may be determined

that “the grand jury intended to charge [multiple conspiracies] or whether

it would have charged either had it been [correctly instructed] that the

[conspiracies] were distinct.” United States v. Cryan, supra. More

importantly, petitioner was absolutely entitled to a dismissal because of

the United States’ failure to prove the single conspiracy which it alleged

in the indictment. The instant matter is a rarity because the United States’

primary witness testified to the existence of multiple enterprises and no

action to instruct the jury properly was taken. The conviction below is a

hollow mockery of justice.

Il.

A PLAYGROUND WITHIN THE GROUNDS OF A

PRIVATELY OWNED AND MAINTAINED APARTMENT

COMPLEX IS NOT OPEN TO THE PUBLIC WITHIN THE

INTENDMENT OF 21 U.S.C.A. § 860.

The United States sought and received an enhancement of petitioner’s

sentence on the ground that alleged co-conspirators distributed cocaine

within the proscribed distance of a playground. 21 U.S.C.A. § 860, the

applicable statute, requires as an element that the playground be “open

to the public”. See 21 U.S.C.A. § 860(e)(1). The testimony at trial

indicated that the playground at issue was wholly within a privately owned

and maintained residential apartment facility. The representative of the

corporate owner of the property in this context testified the playground

was built and is maintained for “the benefit of the people who live there

... and their guests”. That representative clearly stated the playground

was “put there for the use of the residents of the apartment complex”.

We submit that as a matter of law § 860 was not intended to cover

privately owned and maintained facilities. The district court erred in ruling

that the United States was correct in its position that the enhancement

applied. But see United States v. Horsley, 56 F.3d 50 (11th Cir. 1995).

(Issue of whether playground was open to the public was a question of

act for jury).

CONCLUSION

For the foregoing, reasons we respectfully request that this Court

grant certiorari from the ruling of the Fourth Circuit Court of Appeals.

Respectfully submitted,

ALAN DEXTER BOWMAN, P.A.

Attorney for Petitioner

Gateway One

Suite 105

Newark, New Jersey 07102

(973) 622-2225

APPENDIX

Pe I IRE Ne ee ee EIR ORE Oe me ere ee ee NR EIR GE ae ee ee pea od ae LE eae ee RIO CEH AR Pat CS ee

APPENDIX A — OPINION AND MANDATE OF THE

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT DECIDED MAY 19, 1998

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Unrtep STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

Duane JELEAL Ossourne, a/k/a F No. 96-4906

Rocky, a/k/a Duane Anthony

Osborne,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Richard L. Voorhees, Chief District Judge.

(CR-95-178-V)

Submitted: April 7, 1998

Decided: May 19, 1998

Before LUTTIG and MICHAEL, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

COUNSEL

Alan Dexter Bowman, P.A., Newark, New Jersey, for Appellant.

Mark T. Calloway, United States Attorney, Gretchen C.F. Shappert,

Assistant United States Attorney, Charlotte, North Carolina, for

Appellee.

EFT E RG TELNET CEN GEE AMELIE SELLE LES MONE LIN LP SEIS TEC IEG ETSI ARTE ES: A ea aan

MII: TIE RIS SOR ALE ELIDA APE INE MONE

Appendix A

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

OPINION

PER CURIAM:

Duane Jeleal Osbourne was convicted by a jury of conspiring to

possess with intent to distribute and to distribute cocaine and crack

cocaine within 1000 feet of a playground in violation of 21 U.S.C.A.

§§ 846, 860 (West Supp. 1998). He appeals his conviction and sen-

tence, contending that (1) there was an impermissible variance

between the indictment that charged a single conspiracy and the evi-

dence at trial that Osbourne claims established multiple conspiracies;

(2) the district court erred by failing to instruct the jury on multiple

conspiracies; and (3) the district court erred by enhancing his base

offense level by two levels under USSG § 2D1.2(a)(1)* because the

playground is not “open to the public." Because Osbourne failed to

raise these issues in the district court, our review is for plain error. See

United States v. Olano, 507 U.S. 725, 732-37 (1993). We affirm.

Osbourne first claims that the district court sua sponte should have

dismissed the charge against him because there was a variance

between the indictment and the evidence at trial. "In a conspiracy

prosecution, a defendant may establish the existence of a material

variance by showing that the indictment alleged a single conspiracy

but that the government’s proof at trial established the existence of

multiple, separate conspiracies." United States v. Kennedy, 32 F.3d

876, 883 (4th Cir. 1994). To show that multiple conspiracies existed,

Osbourne relies on Darwin Mobley’s testimony that at some point

during the conspiracy, he stopped working for his uncle, Paul Mob-

ley, and began his own drug distribution business. Osbourne over-

looks the fact that he supplied Darwin Mobley with the drugs to

distribute. Moreover, other co-conspirators testified that they trans-

ported drugs for Osbourne from New York to the Grier Heights

neighborhood in Charlotte, North Carolina, and that Osbourne was

*U.S. SentencinG GUIDELINES MANUAL (1995).

Appendix A

one of their suppliers. To the extent that Osbourne attacks his co-

conspirators’ testimony because they pled guilty to participating in

the conspiracy and received lighter sentences, we do not review the

credibility of witnesses or weigh the evidence. See United States v.

Wilson, 118 F.3d 228, 234 (4th Cir. 1997). Because there was over-

whelming evidence of a single conspiracy, we find no plain error

here.

Nor did the district court plainly err in failing to instruct the jury

on multiple conspiracies. Failure to give a jury instruction on multiple

conspiracies, even if the evidence supports such an instruction, is not

reversible error unless a defendant can show he was involved in a sep-

arate conspiracy unrelated to the overall conspiracy charged in the

indictment. See United States v. Howard, 115 F.3d 1151, 1157 (4th

Cir. 1997); Kennedy, 32 F.3d at 884. Osbourne cannot make such a

showing. The evidence at trial sufficiently proved that Osbourne was

a main actor in the conspiracy charged in the indictment.

Finally, Osbourne contends that the district court erred in applying

a two-level enhancement of his base offense level under USSG

§ 2D1.2(a)(1). He claims that as a matter of law, § 860 does not apply

to privately owned and maintained facilities, such as the playground

at the apartment complex in Grier Heights, and therefore that the

playground was not "open to the public." The issue of whether the

playground was "open to the public" was a question of fact for th

jury. See United States v. Horsley, 56 F.3d 50, 51-52 (11th Cir. 1995).

By rendering a special verdict that the conspiracy involved an intent

to distribute cocaine and crack cocaine within 1000 feet of a play-

ground, the jury necessarily found that the playground met the statu-

tory requirements of § 860.

Accordingly, we affirm Osbourne’s conviction and sentence. We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and argu-

ment would not aid the decisional process.

AFFIRMED

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED June 10, 1998

No. 96-4906

CR-95-178-V

US v. Osbourne

MANDATE

The judgment of this Court dated 5/19/98 takes effect today.

PATRICIA S. CONNOR

CLERK

SP dace nied Veasad haedute ae ties aaa ae ee

ee ae et oe a a eT

APPENDIX B — CONSTITUTIONAL

PROVISIONS INVOLVED

AMENDMENT V — CAPITAL CRIMES: DOUBLE

JEOPARDY; SELF-INCRIMINATION; DUE PROCESS;

COMPENSATION FOR PROPERTY

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a

Grand Jury, except in cases arising in the land or naval forces,

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

danger; nor shall any person be subject Zor the same offense to

be twice put in jeopardy of life or limb; nor shall be compelled

in any criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process of

law; nor shall private property be taken for public use, without

just compensation.

AMENDMENT VI — JURY TRIAL FOR CRIMES

AND PROCEDURAL RIGHTS

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of the

State and district wherein the crime shall have been committed,

which district shall have been previously ascertained by law,

and to be informed of the nature and cause of the accusation;

to be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his favor, and

to have the Assistance of Counsel for his defense.

APPENDIX C — STATUTE INVOLVED

21 U.S.C.A. § 860(e)(1)

§ 860. Distribution or manufacturing in or near schools

and colleges

(e) Definitions

For purposes of this section —

(1) The term “playground” means any outdoor facility

(including any parking lot appurtenant thereto) intended for

recreation, open to the public, and with any portion thereof

containing three or more separate apparatus intended for the

recreation of children including, but not limited to, sliding ~

boards, swingsets, and teeterboards.

*x* * *

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.