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United States v. Daniel H. George, JR., United States of America v. William Paris, 752 F.2d 749, 1st Cir. (1985)
United States v. Daniel H. George, JR., United States of America v. William Paris, 752 F.2d 749, 1st Cir. (1985)
2d 749
The facts as presented at trial showed that between October 1981 and April
The facts as presented at trial showed that between October 1981 and April
1983, appellants and co-defendant Leslie Schmidt conspired to manufacture and
distribute amphetamine. 2 At the time of the conspiracy, appellant George was
working as a cosmetics chemist for Catherine Hinds in Massachusetts. Through
the lab George was able to purchase the precursor chemicals. He then furnished
chemical mixtures to Schmidt and instructed him in methods of manufacturing
the illegal substances. George referred to the chemical substances they were
trying to produce by number; amphetamine was No. 10 and MDA was No. 8.
Certain of the substances were intended to mimic the effect of controlled
substances without in fact being controlled. Other substances, including No. 10,
were known by the co-conspirators to be controlled substances whose
distribution on the street was illegal. Schmidt, who performed the chemical
procedures in Pennsylvania, was assisted after January 1983 by appellant Paris.
Paris was initially introduced to Schmidt by George and on at least one
occasion the three met in George's house in Massachusetts to discuss methods
of synthesizing amphetamine and methamphetamine. Upon completion, the
finished products were sold in Pennsylvania and the monies received from the
scheme were allegedly earmarked as capital for the development and
production of their own line of cosmetics, hair care products and a new sugar
substitute.
51. Sufficiency of the Evidence to Sustain the Convictions of George and Paris
6
George and Paris contend that their motion for judgment of acquittal and/or
new trial was improperly denied because there was insufficient evidence to
sustain their convictions. Neither appellant contests the fact that George,
Schmidt and Paris entered into an agreement to manufacture "substances". They
argue only that the government failed to prove that each had the specific intent
to commit the substantive crime of manufacturing and distributing
amphetamine.
7
Appellant George claims that because Schmidt lacked the intent to manufacture
amphetamine, the agreement between Schmidt and George to manufacture and
sell other controlled substances of similar effect did not relate to the illegal act
charged in the indictment, United States v. Flaherty, 668 F.2d 566, 580 (1st
Cir.1981), and the government failed to prove beyond a reasonable doubt by
either direct or circumstantial evidence the requisite intent to agree and to
commit the substantive offense charged. Id.; United States v. DeLutis, 722 F.2d
902, 905 (1st Cir.1983).
George relied on portions of the transcript where Schmidt stated that George
wanted to produce substances that mimicked the effects of controlled
substances but were not themselves illegal, and that Schmidt thought he was
producing a controlled substance that was like amphetamine but was not
amphetamine. Viewed in the light most favorable to the government, United
States v. Patterson, 644 F.2d 890, 893 (1st Cir.1981), there was adequate
testimony from which the jury could have determined that the parties agreed to
produce George's "No. 10", that "No. 10" was a controlled substance and that
Schmidt believed it was amphetamine. For example, Schmidt several times
testified that "No. 10" was amphetamine, that George said it was a Schedule II
controlled substance, and that it had side effects associated with amphetamine.
That the parties referred to the amphetamine by code number does not detract
from the sufficiency of the evidence. See, e.g., United States v. Moser, 509
F.2d 1089, 1092 (7th Cir.1975) (defendants charged with selling LSD but
claimed they were distributing psilocybin or mescaline); United States v.
Ramos, 666 F.2d 469, 477 (11th Cir.1982) (jury may legitimately infer that one
who possesses drugs knows what the drug is).
10
Paris also claims to have entered into a relationship with George and Schmidt
without the intent to do an illegal act. Paris apparently viewed his agreement as
close to, but not crossing, the edge of criminality. The record does not support
Paris' contention. Paris actively entered into an agreement with Schmidt and
George, and he specifically sought their advice on a method of manufacturing
amphetamine. Accordingly, there was ample evidence before the jury to
determine that Paris, George and Schmidt each had the requisite intent to
manufacture amphetamine and that they entered an agreement to produce this
drug. The court below properly denied appellants' motions for acquittal and/or
new trial.
A variance occurs when the facts proved at trial are different from those
alleged in the indictment. United States v. Flaherty, 668 F.2d at 582. However,
variance constitutes grounds for reversing a conviction only when it affects the
defendant's "substantial rights", that is, when the variance deprives a defendant
of sufficiently specific information to prepare a defense and to be protected
against surprise at trial, and prevents him from asserting his constitutional
protection against double jeopardy. Id.
13
14
Moreover, even had the testimony varied from the allegations of the indictment,
George's request for a retrial on this issue must be denied. George failed to
show that the variance affected his "substantial rights". The jury apparently was
not confused by the evidence because it was able to distinguish between the
charged conspiracies, as shown by the acquittal of both George and Paris on the
two counts of the indictment charging conspiracy to possess with intent to
distribute and manufacture MDA. Nor is George's future double jeopardy claim
undermined by the evidence. George was convicted for conspiracy to
manufacture amphetamine, and as to this drug, these actors, this time period,
and this setting, George cannot be required to stand trial again. If there should
be any doubt as to the evidence relied upon at this trial George can interpose
the record of the proceeding as a double jeopardy defense. See United States v.
Kramer, 711 F.2d 789, 796 (7th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 397,
78 L.Ed.2d 339 (1983).3
15
16
Appellant George next claims that under Braverman v. United States, 317 U.S.
49, 52, 63 S.Ct. 99, 101, 87 L.Ed. 23 (1942), he may not be prosecuted for
more than one conspiracy because the evidence introduced at trial proved that
the multiple charged conspiracies are actually the same agreement. See
Kerrigan v. United States, 644 F.2d 47, 49 (1st Cir.1981). Appellant bases his
conclusion on the fact that the evidence used to prove each count of the fourcount indictment was the same;4 it involved the same time period, the same
location, the same participants and the same statutory provision. United States
v. Booth, 673 F.2d 27, 29 (1st Cir.1982).
18
20
Paris argues that his conviction in Massachusetts for conspiracy was barred by
the double jeopardy clause because this conviction relied on the same evidence
that was used to prove a prior offense in Pennsylvania. We find Paris' argument
without merit. Paris was indicted in the Eastern District of Pennsylvania under
21 U.S.C. Sec. 846 on several counts, including attempt to distribute
amphetamine on April 13, 1983. He was convicted on that count as a result of
evidence of his sale to Hertzke of what he represented to be amphetamine.
21
The test for a violation of the double jeopardy clause is not merely whether a
second prosecution relies on the same evidence as an earlier prosecution, but
whether the two offenses charged are insufficiently distinguishable to allow the
defendant to stand trial again. The defendant will not be subjected to double
jeopardy where the statutory provisions of each of the indicted charges
"require[ ] proof of a fact which the other does not." Blockburger v. United
States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932).
22
The remaining six sets of claims we dispose of briefly. This does not mean that
they were not legitimately raised or were insubstantial, but only that at this
juncture, after consideration by the district court and by us after briefing and
oral argument, they have lost their firepower. Our rejection of these claims
stems from a straightforward application of existing law, our finding that the
court did not abuse its discretion, or that appellants suffered no prejudice. Our
treatment here will accordingly be brief.
24
25
26
production of the tapes. Accordingly, we find that George was not denied the
effective use of exculpatory information due to delayed production. United
States v. Peters, 732 F.2d 1004, 1009 (1st Cir.1984). Similarly, because it is
clear that George made full and effective use of Schmidt's pre-sentence report,
the government's one day delay in the production of that report did not result in
a Brady violation. Id.
27
28
Appellants' contention that the district court committed reversible error in its
instruction to the jury on the use of circumstantial evidence is also without
merit. They claim that by giving the particular example of proof by
circumstantial evidence that it did, the court abrogated its responsibility to
remain impartial at trial. Although the court's use of a murder conviction was a
particularly graphic example of circumstantial evidence, we do not find that the
charge, when viewed in its entirety, United States v. Park, 421 U.S. 658, 674,
95 S.Ct. 1903, 1912, 44 L.Ed.2d 489 (1975); Cupp v. Naughten, 414 U.S. 141,
146-47, 94 S.Ct. 396, 400-01, 38 L.Ed.2d 368 (1973), affected the neutrality of
the proceedings. Particularly because the illustration relied upon facts so
distinct from the instant case, and because the court cautioned the jury as to the
limited use of the example, we conclude that no bias was conveyed to the jury.
29
We reject for similar reasons George's claim that the trial court constructively
amended the indictment as a result of an improper definition of the crime of
conspiracy. United States v. Gonzalez, 661 F.2d 488, 492 (5th Cir.1981).
Although briefly in the instruction on conspiracy the court linked the crimes of
conspiracy and attempt, upon objection the court correctly clarified the
definition of conspiracy. George's claim that he was tried on a charge that was
different from the one in the indictment, therefore, must fail. United States v.
Gibson, 726 F.2d 869, 873 (1st Cir.1984); United States v. Kelly, 722 F.2d 873,
876 (1st Cir.1983).
30
Brief persual by two members of the jury of the transcript of Catherine Hinds'
grand jury testimony, a matter not in evidence, did not necessitate the
declaration of a mistrial. When, during deliberations, the improper presence of
the exhibit in the jury room was discovered, the court individually interviewed
the two jurors who had seen the transcript. The court determined that the
impartiality of the deliberations had not been affected by their exposure to the
unadmitted evidence and therefore no prejudice resulted to the appellants.
There was no abuse of discretion here because the court had ample evidence to
support its determination.
31
With regard to George's claim that the court's denial of the jury's request to
reread several segments of testimony was an abuse of discretion, we note
simply that the decision to reread testimony rests within the sound discretion of
the trial court. United States v. Hyson, 721 F.2d 856, 865 (1st Cir.1983);
United States v. Almonte, 594 F.2d 261, 265 (1st Cir.1979). The court's
determination that the requested testimony was too "scattered" and voluminous
to be reread provides sufficient justification for its decision. The court's
decision to summarize for the jury the contents of only the powdered samples
of substances admitted into evidence and not of all the samples seized from
Paris' home was, likewise, reasonable in the situation and was therefore not an
abuse of discretion.
32
The verdict of the jury stands. We vacate the judgment below as to each of the
appellants and remand these cases to the district court with directions to enter a
new judgment and sentence in accordance with this opinion.
Schmidt pleaded guilty prior to trial to two counts of the instant indictment as
well as to two drug offenses in an indictment in the Eastern District of
Pennsylvania. He was sentenced in Pennsylvania on all counts to ten years
imprisonment
Along the same lines, George claims that the district court abused its discretion
in declining to order a bill of particulars indicating the method of synthesizing
the amphetamine charged in the conspiracy. George alleges that the
government's failure to produce a bill has resulted in prejudice to him and
inadequately protects him against a second prosecution for the same offense
because neither the indictment, the grand jury minutes, nor the jury verdict
provide sufficient information to determine which conspiracy to manufacture
amphetamines is the basis for his present conviction. For the reasons discussed
above--that there was only one conspiracy proven, namely to manufacture
George and Paris were charged under 21 U.S.C. Sec. 846 with: