# Petition for Writ of Certiorari — Osbourne v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 949

## Text

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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

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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?

il

TABLE OF CONTENTS

Page

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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

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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

iv

Contents

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

I.

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

15

16

17

18

20
20

21

25

25

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Vv

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

vi

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

©6868) Wee oS S08 Ss 6 So U-Oee 66. 6_S: OS O's 3. 9-S COO SO SO Se

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

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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

19

17

21

18

19

24

16

17

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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

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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)

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Statutes:

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21

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Table of Cited Authorities

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United States Constitution:

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Rule:

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

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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 ..................

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1

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,

2

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 |

3

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

4

“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)

6

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”.

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7

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.

9

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

10

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”.

ee

1]

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

12

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

13

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

14

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.

15

This Petition for Certiorari follows:

REASONS FOR GRANTING THE WRIT
I.

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.

16

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).

17

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).

18

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

19

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

20

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.

21

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.

22

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

23

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.

24

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.

25

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

la

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

2a

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).

3a

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

4a
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

Sa

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.

6a
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* * *

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1600%3A1. Public record. Not legal advice.