Daily v. United States

Citation282 F.2d 818
Decision Date02 September 1960
Docket NumberNo. 16414.,16414.
PartiesRoy Solen DAILY, Anthony Charles Grech, Samuel Russell Quinn and James Ribero, Appellants, v. UNITED STATES of America, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Robert S. Bixby, Edward L. Cragen, San Francisco, Cal., for appellant Ribero.

Benjamin M. Davis, San Francisco, Cal., for appellant Quinn.

Lynn J. Gillard, U. S. Atty., John H. Riordan, Jr., Frederick E. Watson, Asst. U. S. Attys., San Francisco, Cal., for appellee.

Before STEPHENS, MAGRUDER and HAMLEY, Circuit Judges.

STEPHENS, Circuit Judge.

Sixteen persons were accused in one count of an indictment of conspiring, in contravention of 18 U.S.C. § 371, to violate the federal narcotics laws, specifically 26 U.S.C. § 4705(a). In addition, four persons and others unknown were named as co-conspirators but were not indicted. The charges against eight of those who were indicted have been dismissed, and another of the sixteen persons originally indicted was granted a separate trial. Three of the remaining seven defendants were acquitted by the jury in the District Court. Four were convicted. These four have appealed. In this opinion, however, we decide the appeals of appellants Ribero and Quinn only. Daily and Grech, the other two appellants, have not submitted briefs as required by the Rules of Practice of this court. Consequently, disposition upon the merits of their claims must await the determination of a pending motion to dismiss their appeals.

Appellants Ribero and Quinn claim that the United States alleged a single overall conspiracy in its indictment against them yet proved multiple conspiracies at the trial, and that, assuming the proof did tend to show one overall conspiracy, the evidence was insufficient to connect either Ribero or Quinn with or to the general scheme.

In Kotteakos v. United States, 1946, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557, the Supreme Court held that in a case where one overall conspiracy is alleged yet several are proved at the trial, the variance between the indictment and the proof may well be prejudicial error as to one or more of the defendants. Unlike Kotteakos, in which the government conceded the existence of a variance see Blumenthal v. United States, 1947, 332 U.S. 539, 547-548, 68 S.Ct. 248, 92 L.Ed. 154, we are faced in the appeals of Ribero and Quinn with the initial question of whether the alleged, single, overall conspiracy was proved. See Bridgman v. United States, 9 Cir., 1950, 183 F.2d 750, 754. If so, there is no variance which might affect the substantial rights of any defendant.

To prove a single conspiracy the prosecution must show, among other things, that all the defendants agreed to effectuate a central criminal design, in this case an alleged scheme to dispose of narcotics in violation of federal law. As has so often been remarked, a partnership in crime is seldom evidenced by a written agreement or other writing between or among the partners. Hence, a finding of agreement to violate the law ordinarily must rest upon an inference drawn from relevant and competent circumstantial evidence, including the conduct of the defendants. American Tobacco Co. v. United States, 1946, 328 U.S. 781, 809, 66 S.Ct. 1125, 90 L.Ed. 1575; Nilva v. United States, 8 Cir., 212 F.2d 115, 121, certiorari denied 1954, 348 U.S. 825, 75 S.Ct. 40, 99 L.Ed. 650. The government need not prove that each accused knew the identity and function of all his alleged co-conspirators or that all worked together consciously to achieve a desired end. Berenbeim v. United States, 10 Cir., 1947, 164 F.2d 679, 684, certiorari denied, 1948, 333 U.S. 827, 68 S.Ct. 454, 92 L.Ed. 1113; Duke v. United States, 5 Cir., 1956, 233 F.2d 897, 901; Marino v. United States, 9 Cir., 1937, 91 F.2d 691, 696, 113 A.L.R. 975. That a defendant was aware that he was not alone in plotting with common conspirators to violate the law is sufficient to raise the necessary inference that he had joined in an overall agreement. Blumenthal v. United States, supra, 332 U.S. at page 555 note 14, 68 S.Ct. at page 255; Poliafico v. United States, 6 Cir., 1956, 237 F.2d 97, 104; United States v. Ganey, 2 Cir., 1951, 187 F.2d 541, 543. In the light of these principles we turn to an analysis of the parts played by appellants Ribero and Quinn in the sordid story unveiled by the prosecution of the case.

The central figure in the criminal activities in which these appellants were involved was one Alfred Graham, who went around burglarizing narcotics from drug stores and dispensing them in violation of federal law. Graham was named as a co-conspirator but was not indicted. He did not peddle the narcotics himself. He found others not only to do that for him, but also to sell narcotics taken from other drug stores by other thieves. And he unlawfully transferred narcotics to his peddlers and friends who were users.

The evidence showed the following to have occurred during the period of the alleged conspiracy, February through August, 1958. February-May: Al Graham and Tony Grech burglarized three drug stores in San Francisco, assisted on one occasion by Robert McClure. Graham and McClure took some of the burglarized narcotics to Louis Scurini, who, with knowledge of the unlawfulness of Graham's possession agreed to sell $150.00 worth of the stuff. Subsequently, Tony Grech obtained more narcotics from a drug store. He informed Graham of this and told Graham that he should get the narcotics from Al Patron. Graham did so. Grech's brother, Jerry, participated in this incident. Tony and Jerry Grech also successfully solicited Graham's aid in selling narcotics which Jerry had taken from a drug store. Graham brought these narcotics to Roy Daily to sell and told Daily how he, Graham, had acquired them. While these things were happening, appellant Ribero, accompanied by Scurini, received a "fix" from Graham at the latter's home. Graham told Ribero and Scurini that the narcotics had been burglarized from a drug store. Once in May, appellant Ribero, Tony Grech, Patron, and Nancy Francis took dope together at Patron's home.

June-August: During this period Scurini thrice obtained...

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