UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
filed: June 20, 1978.
UNITED STATES OF AMERICA, APPELLEE
WILLIAM BOYD, JAMES D'METRI, MICHAEL J. LIPTON, STEPHEN POWELL, GEORGE PARR, APPELLANTS
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA D.C. Crim. No. 76-209-3, 76-209-5, 76-209-11, 76-209-15, 76-209-14
Before GIBBONS, HUNTER, Circuit Judges, and WEBER, District Judge.*fn*
HUNTER, Circuit Judge.
In this case appellants raise several grounds for reversal of their convictions of conspiracy and substantive offenses relating to the manufacture and distribution of methamphetamine in the Philadelphia area during 1975. Although we have reviewed all of the contentions raised by appellants,*fn1 we shall discuss only two issues: 1) whether a prejudicial variance existed between the conspiracy count of the indictment and the proof adduced at trial; and 2) whether the trial judge abused his discretion in allowing the jury to consider evidence of illegal acts occurring after the conspiracy alleged in the indictment had terminated. We affirm.
This case arises from a sixteen-count indictment returned by a grand jury in the Eastern District of Pennsylvania naming sixteen individuals. Count one of the indictment alleged a conspiracy to manufacture and distribute methamphetamine, a Schedule II controlled substance; fourteen other counts related to methamphetamine distribution.*fn2 The government prosecuted the five appellants - William Boyd, James D'Metri, Michael Lipton, George Parr and Stephen Powell - together, along with Marthana Heyman, who has not appealed her conviction.
The government's case relied heavily on the testimony of Agent Laurence Kutney of the Pennsylvania Department of Justice, Bureau of Drug Control, and James Love, a government informant. Love introduced Kutney to appellant Boyd in July 1975 as a friend and narcotics dealer from Ohio. Through Boyd, Love and Kutney were introduced to the other appellants on the assumption that Kutney would serve as a source of supply of pheny1-2-propanone (P-2-P), a precursor involved in the manufacture of methamphetamine. Kutney first agreed to supply P-2-P in exchange for a share of the methamphetamine produced.At that time, the group included himself, Love, Boyd, D'Metri, and one other partner. Appellant D'Metri functioned as a chemist for the manufacturing process, and with the assistance of others, attempted to manufacture methamphetamine at a laboratory located on Ridge Avenue in Northeast Philadelphia. The attempt failed; Boyd himself indicated that the substance was not of good quality and evidence at trial indicated that the substance produced was not methamphetamine. Nevertheless, at least part of the batch was sold, through Boyd and appellant George Parr.
After the failure of the Ridge Avenue attempt to manufacture the drug, Boyd brought Kutney into contact with Parr in August 1975. Through Parr, Kutney came into contact with appellants Lipton and Powell, who were to assist Parr in establishing a laboratory in Bucks County. Again, Kutney was to serve as the source of supply for P-2-P, in exchange for a share of the methamphetamine produced.
This arrangement proved to be more successful, inasmuch as Kutney was provided with quantities of methamphetamine apparently manufactured at a laboratory in Bucks County.After the deliveries to Kutney, the defendants became suspicious of him, and his involvement with the group dropped off. The defendants were later arrested. The grand jury's indictment was returned in April 1976, and trial commenced on September 7, 1976.
Appellants raise the question of variance between the indictment and the government's proof at trial in two different ways. Parr, Lipton and Powell directly challenge the sufficiency of the evidence of the single conspiracy charged. D'Metri raises as error the trial judge's denial of his motion to sever his case from his co-defendants.
Appellants Parr, Lipton and Powell contend that their convictions should be reversed because the proof at trial indicated that two conspiracies to manufacture and distribute methamphetamine existed, rather than the one, large conspiracy alleged in the indictment. They argue that under Kotteakos v. United States, 328 U.S. 750 (1946), the prejudice inherent in eliciting before the jury the events surrounding the plans and actions of the Ridge Avenue group affected their substantial rights. Appellants do not contend that the government failed to establish the existence of a conspiracy, but rather their argument is that the evidence admits only the conclusion that the Bucks County group and the Ridge Avenue group were separate and distinct conspiracies.
Under Kotteakos, supra, proof at trial which establishes the existence only of multiple conspiracies when a single conspiracy is charged in the indictment constitutes a variance. If substantial rights of the defendants might have been affected by a variance, their convictions on the conspiracy count must be reversed. In determining whether a variance has occurred, we must first ascertain if, viewing the evidence in light most favorable to the government, substantial evidence supports the jury's determination of guilt on the single conspiracy charged in the indictment. Glasser v. United States, 315 U.S. 60 (1942).
The gist of a criminal conspiracy, the agreement between co-conspirators, may continue over an extended period of time and involve numerous transactions. Parties may join the conspiracy after its inception, and may withdraw and terminate their relationship with the conspiracy prior to its completion. See United States v. Klein, 515 F.2d 751 (3d Cir. 1975); United States v. Leaster, 282 F.2d 750 (3d Cir. 1960), cert. denied, 364 U.S. 937 (1961). The fact that conspirators individually or in groups perform different tasks in pursuing the common goal does not, by itself, necessitate a finding of several distinct conspiracies. United States v. Lester, supra.
In reviewing defendants' contention that only multiple conspiracies were proven at trial, we must make a distinction between separate conspiracies in which certain parties are common to both and one continuing conspiracy in which various parties join and terminate their relationship at different times. Even if a small group of co-conspirators are at the heart of an unlawful agreement, others who knowingly participate with the core members and others to achieve a common goal may be members of a single conspiracy. United States v. Varelli, 407 F.2d 735 (7th Cir. 1969).
Thus the government, without committing a variance between a single conspiracy charged in an indictment and its proof at trial, can establish the existence of a conspiracy which had different members at different times and which involved different sub-groups committing acts in furtherance of the overall plan. In United States v. Kenny, 462 F.2d 1205 (3d Cir.), cert. denied, 409 U.S. 914 (1972), this Court stated:
Kotteakos prohibits charging multiple unrelated conspiracies, but it does not prohibit charging one master conspiracy and establishing at trial that under the master conspiracy more than one subsidiary scheme was involved.
462 F.2d at 1216. See also United States v. Adamo, 534 F.2d 31 (3d Cir.), cert. denied, 429 U.S. 841 (1976).
Viewing the evidence in the light most favorable to the government, Glasser v. United States, supra, the following testimony by the informant Love and Agent Kutney is sufficient to determine that the jury could have found beyond a reasonable doubt that a single conspiracy existed, and that the appellants, albeit at different times, were members of that conspiracy.
The informant, Love, testified that he mentioned the possibility of obtaining P-2-P while conversing the Boyd in May 1975. He related that he met more than once with defendant D'Metri in the beginning of June and discussed P-2-P "connections." Further, Love testified that he had almost daily contact with Boyd during the first half of June, during which time Boyd continued to talk of obtaining a source of supply for P-2-P in order to start a "laboratory." Love testified that he met George Parr in the later part of June, prior to any transactions involving P-2-P between Kutney and the defendants. At that time, Parr questioned him about his source of P-2-P. Further, Parr asked about the quantity of the precursor available, mentioning to Love that "his lab was shut down at the time." At the time of the questioning of Love by Parr, Boyd was present. Parr named a price of $1000 per gallon for the precursor, and asked Love about when it could be made available to him.
Love stated at trial that during July, he had further conversations with Parr, often with Boyd present, in which Parr evidenced displeasure with the fact that Love's "supplier" of P-2-P had not yet appeared with the substance. Love and Boyd remained in almost daily contact, and D'Metri and Love continued to discuss the logistics of the methamphetamine manufacturing process.
On July 24, Love introduced Agent Kutney to Boyd. At that meeting, discussion centered on a partnership comprised of Boyd, Love, Kutney, D'Metri and one other individual. After the first, abortive attempt to manufacture methamphetamine, Marthana Heyman and appellant Lipton conversed with Love. Love testified that Lipton had engaged someone else to take over the laboratory and run it. Love also stated that he had discussed the supply of P-2-P with Parr after the July 24 meeting with Kutney, Boyd and Love.
Agent Kutney's testimony adds to Love's statements. After the Ridge Avenue laboratory failed, Kutney spoke to Parr. Parr mentioned that he was aware of the poor quality of the product manufactured by the lab, but nevertheless he was able to sell it to users who injected it directly into their veins. Boyd mentioned to Kutney that he had sold three of the six ounces made at the Ridge Avenue lab, and that Parr was selling this alleged methamphetamine to "shooters."
Later, Kutney spoke with Lipton, who indicated that he provided the connection for the "chemist" to take over the laboratory. Kutney testified that Lipton offered to introduce him to the new chemist, who was being "brought in" because Parr, Love, Boyd and Kutney were unsatisfied with the results of the Ridge Avenue methamphetamine attempt. Lipton and Kutney then proceeded to Morrisville, Pennsylvania, where they met appellant Powell. The three discussed the manufacture of methamphetamine, Powell indicating that he had some doubts about a formula for the manufacture of the substance. Powell asked Kutney to check on two questions he had concerning the proper formula.
This evidence supports the government's contention that before and during the time period alleged in the indictment, Parr and Boyd, along with Love and Kutney, were engaged in an ongoing agreement to manufacture and distribute methamphetamine. During the course of the scheme, D'Metri, who had been an early member, was dropped for failure to perform as a "chemist" adequately, and Lipton and Powell entered the group to lend expertise that was lacking when the venture began. The jury could infer that Parr planned to utilize the Ridge Avenue operation as a source of supply, but when it became apparent that the laboratory was unsuccessful, he acted with Boyd to ensure a supply with Lipton's and Powell's aid.
The testimony of Love and Kutney, if believed, provided sufficient evidence for the jury to find that Parr was aware of and involved in the Ridge Avenue attempt to manufacture methamphetamine for distribution. The jury could also have found Lipton and Powell were aware of the previous efforts of the conspiracy, knowingly entered the agreement, and contributed their efforts to its successful operation. Since sufficient evidence supports a finding of a single conspiracy, the jury's finding of guilt on Count I of the indictment will not be disturbed.
Appellant D'Metri contends that the trial judge abused his discretion by denying D'Metri's motion to sever his case, pursuant to F.R. Crim. P. 14, from the other defendants at trial. D'Metri initially moved for severance before trial, and renewed the motion during the presentation of the prosecution's case. The basis for his motions was that the proof would establish or had established the existence of two conspiracies instead of only one. D'Metri's argument in this Court and at trial is that since all the other defendants save himself were involved in the Bucks County group, he became the victim of "guilt transference" arising from the testimony offered against his co-defendants.
Motions for severance are addressed to the sound discretion of the trial judge, and his decision will not be reversed in the absence of a showing of abuse of that discretion. United States v. Somers, 496 F.2d 723 (3d Cir.), cert. denied, 419 U.S. 832 (1974); United States v. Barrow, 363 F.2d 62 (3d Cir. 1966), cert. denied, 385 U.S. 1001 (1967). D'Metri thus is faced with the "heavy burden" of showing that the trial judge exceeded the bounds of his discretionary authority, United States v. Sica, 560 F.2d 149 (3d Cir.), cert. denied, 46 U.S.L.W. 3218 (Oct. 3, 1977). Concerning a motion for severance under F.R. Crim. P. 14, we have stated:
a primary consideration is whether the jury can reasonably be expected to compartmentalize the evidence as it relates to separate defendants in view of its volume and limited admissibility.
United States v. DeLarosa, 450 F.2d 1057 (3d Cir. 1971), cert. denied, 405 U.S. 927 (1972). See United States v. Somers, supra.
From our review of the trial record, we do not see any unfairness to D'Metri arising from his joinder with the other defendants. D'Metri's contention of "spill over" of incriminating evidence is countered by the evidence of a single conspiracy in which he played a part and by the trial judge's instructions specifically directing the jury to evaluate each defendant's guilt or innocence individually. The government's interest in conducting joint trials involving a legitimate conspiracy count further outweighs D'Metri's desire to separate himself from his co-defendants. See United States v. Segal, 534 F.2d 578, 583 (3d Cir. 1976). Thus, on the record before us, we find no abuse of discretion in the trial judge's denials of D'Metri's motions.
Appellants Parr and Lipton raise as error the prosecution's introduction of evidence of other crimes allegedly committed after the conspiracy alleged in the indictment had terminated. The evidence offered was the testimony of Trooper Everett Goff of the Pennsylvania State Police. He stated at trial that on three dates, November 26, 1975, January 9, 1976, and January 13, 1976, he met with Lipton concerning a purchase of P-2-P, and that he met with Parr for the same purpose on January 9.
Lipton told Goff on November 26 that he was currently operating a methamphetamine laboratory, and that he had other sources of P-2-P. Goff testified that he agreed to supply Lipton with ten bottles of P-2-P in return for $5,000 and three ounces of methamphetamine. At a meeting with Lipton on January 9, Goff encountered Parr, whom Lipton identified as "the main man." Although Lipton apparently was unable to meet his end of the bargain, Parr convinced Goff to sell him one bottle of P-2-P in exchange for a promise of one-half pound of methamphetamine to be delivered within thirty hours. On January 13, Lipton appeared with a quantity of methamphetamine and was arrested by state agents.
At trial, in response to the defendants' objections, the government attempted to offer the evidence as tending to show predisposition to commit the acts alleged in the indictment, and thus to rebut an anticipated entrapment defense. After the trial judge initially ruled that the evidence would not be admitted on that basis, the government contended that the testimony could be adduced in conformity with F.R. Evid. 404(b).*fn3 Following this approach, the trial judge admitted the evidence and instructed the jury to consider Trooper Goff's testimony only for the purpose of showing the two defendants' knowledge, intent, or state of mind.
Clearly, the government cannot introduce evidence of other crimes committed by a criminal defendant that tends only to show his criminal propensity. United States v. Dansker, 537 F.2d 40 (3d Cir. 1976), cert. denied, 429 U.S. 1038 (1977). This Court has held that criminal acts occurring after the criminal activity charged against a defendant may be admissible if relevant for any valid purpose other than to show propensity on the part of the defendant to commit the crime. United States v. Laurelli, 293 F.2d 830 (3d Cir. 1961); United States v. Stirone, 262 F.2d 571 (3d Cir. 1958), rev'd on other grounds, 361 U.S. 212 (1960).
We find no abuse of the trial judge's discretion in his admitting the evidence. The transactions among Goff, Lipton and Parr occurred close to the period of the conspiracy and related to the same kind of acts as alleged by the government. Further, any prejudice defendants might have suffered by introduction of the evidence was outweighed by the value of Goff's testimony in corroboarting the challenged testimony of Agent Kutney and Love, concerning Lipton's and Parr's intent and knowledge. Thus, we hold that the trial judge did not abuse his discretion in overruling defendants' objections to this evidence.
The judgments of the district court will be affirmed.
GIBBONS, Circuit Judge dissenting
While I have no difficulty with Parts I and II of the majority opinion, I disagree with Part III, which discusses the testimony of Trooper Everett Goff. The admission of that testimony, over the objection of all defendants, was, I believe, reversible error. Each defendant so contends on this appeal.
The indictment on which the defendants were tried alleges a conspiracy to manufacture and distribute metham-phetame "[from) on or about July 24, 1975 to on or about October 25, 1975." No overt act is alleged to have occurred in furtherance of that conspiracy later than September 29, 1975.*fn1 In its attempt to establish that conspiracy, the government offered the testimony of Agent Kutney and informant Love that between the dates recited in the indictment Kutney supplied to the conspirators phenyl-2 propanone, an essential ingredient in the manufacturing process. That evidence clearly was relevant to the charge of a conspiracy to manufacture methamphetamine. Later in the trial, however, the court admitted the testimony of Trooper Goff, an undercover officer of the Pennsylvania State Police, that on three dates after the expiration of the conspiracy charged in the indictment he had discussed with defendant Lipton a purchase of phenyl-2-propanone, and that on one date more than two months after the conspiracy ended he had met with defendant Parr for a similar purpose. The government's intention in offering Goff's testimony is disclosed in its brief:
In the first instance, it cast light on the relationship existing between Michael Lipton and George Parr. Since the Government's case against Lipton and Parr rested largely on Agent Kutney's testimony, both the existence and the nature of this relationship were of critical importance to Agent Kutney's credibility. Secondly, this testimony helped establish a modue operandi further implicating Lipton and Parr in the prior methamphetamine manufacturing scheme.In both circumstances Lipton and Parr were willing to pay both money and drugb to secure the needed precursor, phenyl-2-propaneon.
Appellee's Brief 13. The testimony was offered, in other words, to establish that because Lipton and Parr were willing to purchase phenyl-2-propanone in December, 1975, and January, 1976, they must have been willing to do so, as Kutney testified, in the preceding July and August.
The trial court declined to admit the testimony on that theory. That ruling was correct.Even recognizing that time and space are only relative concepts, we have not yet come to the point where the government, in meeting an anticipated entrapment contention, can show predisposition by subsequent activity. But the trial court nevertheless admitted the testimony to show "intent or knowledge or common type of plan or scheme." Notes of Testimony 10-13; see also id. 10-134. The government's alternative theory of admissibility, which the court accepted, was that Goff's evidence of a subsequent crime is relevant to the existence of the prior conspiracy to manufacture methamphetamine. Perhaps my thought processes are too simple, but the logic of showing prior intent or knowledge by proof of subsequent activity escapes me. Nor do I understand how, logically, a post-conspiracy purchase of a chemical ingredient tends to prove the modus operandi of the prior manufacturing operation.
The trial court gave an instruction limiting the use of Goff's testimony to Parr and Lipton. However, the testimony was only relevant to the conspiracy count, not to the specific distribution counts. Thus the court admitted the testimony for the purpose of proving that Parr and Lipton were members of the conspiracy. Once Parr and Lipton were connected to the conspiracy, their out-of-court admissions could be considered by the jury against the codefendants. Thus the court's admonitory instruction was, I believe, wholly ineffective in insulating the codefendants from the effects of Goff's testimony.
The government relies on the Second Circuit case of United States v. Warren, 453 F.2d 738, cert. denied, 406 U.S. 944 (1972), for the proposition that evidence of subsequent crimes is admissible. The majority opinion properly ignores that argument, for Warren involved only the admissibility of evidence obtained in a search conducted after the filing of the indictment. The evidence established prior similar crimes, and was admitted to show intent to violate the law and to negate the defense of entrapment.
The majority relies on the decision of a divided court in United States v. Laurelli, 293 F.2d 830 (3d Cir. 1961), cert. denied, 368 U.S. 961 (1962), which I concede authorizes the admission of evidence of subsequent events to prove prior intent. But Judge Kalodner in dissent makes what is for me, at least, a far more logical argument against the admissibility of such evidence. If Laurelli is controlling, I would take this case en banc and overrule it. But Laurelli is, for present purposes, distinguishable. The evidence of subsequent events was offered to prove a specific tender of a bribe to a government inspector. The subsequent events tended to show that the bribe offer was part of an ongoing course of conduct with respect to the performance of a specific government contract.Thus, the evidence in Laurelli was more closely analogous to evidence of overt acts taking place during the course of a conspiracy. Laurelli would be more directly in point if the other crimes had occurred during the performance of a different government contract. In this case, the trial court ruled, and the government concedes, that the conspiracy was over when the dealings with Goff occurred. Thus the other crimes were part of an entirely different conspiracy. I would not extend the Laurelli holding to that situation. Instead, I would hold that the admission of Goff's testimony was reversible error.