APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 77-86-8)
Before Aldisert, Van Dusen and Hunter, Circuit Judges.
In United States v. Pierorazio, 578 F.2d 48 (3d Cir. 1978), we refused to adopt the rule of United States v. Leslie, 411 F. Supp. 215 (D.Del.1976); instead we determined that a facilitation conviction under the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 843(b), was valid if there was "proof of an underlying inchoate crime, such as attempt or conspiracy under § 846." 578 F.2d at 51.
This appeal by the government from a judgment n. o. v. requires us to decide whether a conviction of facilitation is possible where the prosecution based its case on the theory that the "act or acts constituting a felony" under § 843(b) was the inchoate crime of conspiracy, even though this same conspiracy was the subject of a separate count under which the defendant was acquitted. We hold that a conviction under the circumstances of this case is impermissible and we will affirm the judgment of acquittal, albeit for reasons other than those given by the district court. See Rhoads v. Ford Motor Co., 514 F.2d 931, 934 (3d Cir. 1975).
Charles Hannah was the subject of an indictment in which he was charged in Count I with conspiring to distribute heroin, a Schedule I narcotic drug controlled substance, in violation of 21 U.S.C. § 841(a)(1), and in Count III, with violating § 843(b). Count III read as follows:
On or about the 8th day of October, 1976, at approximately 6:53 p. m. in the Eastern District of Pennsylvania, Albert Harrington and Charles Hannah, defendants herein, willfully, knowingly and intentionally, did use a communication facility, to wit: a telephone, in committing and causing and facilitating the commission of an act or acts, to wit: distribute and possess with intent to distribute controlled substances as prohibited by Title 21, United States Code, Section 841 and conspiracy to so distribute and possess controlled substances as prohibited by Title 21, United States Code, Section 846, both of which constitute felonies under Chapter 13, subchapter I, of Title 21, United States Code.
In violation of Title 21, United States Code, Section 843(b).
The government's case was based primarily on wiretapped conversations allegedly conducted in a code which was interpreted by an experienced Drug Enforcement Agent. Evidence of two such conversations was sufficient to enable the jury to infer that Hannah discussed with Albert and Joyce Harrington a trip from Philadelphia to California for the purpose of purchasing heroin. Hannah subsequently traveled to California, but when searched for drugs at the end of the trip, he had none. In Count I of the indictment the government ascribed as an overt act of the conspiracy that "(t)he defendant Charles Hannah, aka June, made a collect telephone call to Albert Harrington at a telephone number 215-657-4326 on 10/6/76 at 10:56 a. m." Appendix at 5. The government also introduced transcripts of coded conversations revealing that Hannah allegedly asked the Harringtons to hold a package of heroin for him and allegedly discussed when the transfer would occur.
The jury did not draw the inferences argued by the government in support of the conspiracy count, Count I, and returned a verdict of not guilty. The jury found Hannah guilty under the facilitation count, Count III, but, in response to a motion for judgment n. o. v., the court entered a directed acquittal in favor of the defendant. A reversal of this judgment would result in reinstating the jury's verdict without again placing the defendant in jeopardy. Since the Double Jeopardy Clause will not be violated, the government may maintain its appeal under 18 U.S.C. § 3731. United States v. Wilson, 420 U.S. 332, 95 S. Ct. 1013, 43 L. Ed. 2d 232 (1975).
It shall be unlawful for any person knowingly or intentionally to use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony under any provision of this subchapter or subchapter II of this chapter. Each separate use of a communication facility shall be a separate offense under this subsection. For purposes of this subsection, the term "communication facility" means any and all public and private instrumentalities used or useful in the transmission of ...