U.S. v. Burman
| Decision Date | 13 October 1978 |
| Docket Number | 77-1794 and 77-1795,Nos. 77-1792,s. 77-1792 |
| Citation | 584 F.2d 1354 |
| Parties | UNITED STATES of America, Appellee, v. Charles BURMAN, Appellant. UNITED STATES of America, Appellee, v. Joseph Lewis WALKER, Appellant. UNITED STATES of America, Appellee, v. Julia WALKER, Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Joel Hirschhorn, Miami, Fla. (Hirschhorn & Freeman, Miami, Fla., on brief), for appellants in 77-1794 and 77-1795.
James J. Gitomer, Baltimore, Md., for appellant in 77-1792.
Donald H. Feige, Asst. U. S. Atty., Baltimore, Md. (Russell T. Baker, Jr., U. S. Atty. and Neal M. Janey, Asst. U. S. Atty., on brief), for appellee.
Before WINTER, Circuit Judge, FIELD, Senior Circuit Judge, and HALL, Circuit Judge.
Joseph L. and Julia Walker, husband and wife, and Charles Robert Burman, Sr., appeal their convictions for conspiracy to violate narcotic laws under 21 U.S.C.A. § 846.
They raise numerous issues only two of which we think require extensive comment. First, they allege a fatal variance between their indictment for participation in a single heroin distribution organization when, they contend, the government's proof showed separate conspiracies for various transactions in heroin which were related only by its common distribution through a single Los Angeles group which purchased the heroin, smuggled from Mexico, for sale to unrelated retailers in three east coast cities. Second, Burman appeals the district court's imposition of a special parole term for conviction of conspiracy under § 846 when such a term is not set forth in that section and can be permitted under it only by reference to the substantive offense statute, 21 U.S.C.A. § 841(b), which sets out such a term. Finding no error in their convictions or in the imposition of the special parole term, we affirm.
The government's evidence showed that over a three-year period from 1973 to 1976, substantial dealings in pure heroin were conducted on a regular basis by indicted defendants and others. After the heroin was smuggled from Mexico, it was purchased by Edward James Robinson and Felix Mike who in turn distributed it in pound lots to retailers in Baltimore, Maryland; Miami, Florida; and Philadelphia, Pennsylvania. The retailers "cut" the heroin by diluting its quality and breaking it up into smaller lots for resale. The Walkers were retailers in Miami and Burman was a Baltimore dealer who over the span of a year repeatedly purchased two-pound lots from two Baltimore retailers for $27,000 in cash and who eventually became a retailer himself, venturing his money with a retailer for a purchase from Robinson and Mike and on one occasion traveling with a retailer to Los Angeles to purchase heroin from Mike. The Walkers and Burman did not know each other nor did the government show that they had any specific knowledge of the existence of heroin dealings in any city other than their own. During their participation in the conspiracy, the Walkers made purchases totalling more than one million dollars and Burman made payments totalling more than $180,000 in cash $162,000 to retailers and $18,000 as a retailer himself.
The twelve indicted defendants were scheduled to be tried together in Baltimore. All but the Walkers and Burman pleaded guilty to various charges. Most of the pleading defendants, including Robinson and Mike, testified against the Walkers and Burman. The jury found the Walkers guilty of conspiracy but failed to reach a verdict as to Burman. A mistrial was declared in Burman's case and he was retried a month later. At the conclusion of the second trial, after two hours of deliberation, the jury found Burman guilty of conspiracy.
Most points of error raised by the defendants relate to whether the government's case proved that they participated in a single organizational conspiracy, as charged in the indictment, with various transactions by different people representing steps in a distribution scheme, or rather that they participated in separate conspiracies for dealings in heroin which were related only by the fact of the common distribution from Los Angeles by Robinson and Mike about which dealings, other than their own, neither the Walkers nor Burman had any specific knowledge. They contend that if only unrelated conspiracies for each transaction were proved then a fatal variance existed between the indictment and the proof presented against them, in that, it allowed prejudicial evidence associating them with bad persons and bad acts to be improperly admitted against them solely by virtue of an overbroad indictment for organizational conspiracy. The Walkers also contend that the variance was fatal because it supported prejudicial misjoinder of their trials with Burman's trial.
We think the government's evidence shows that a single organizational conspiracy has been proved. First, the fact that the defendants claim ignorance of the details of the steps required to have the heroin delivered to them is of no consequence because from the nature of the contraband and the vastness and regularity of their own dealings; each reasonably knew that smuggling and various other illegal transactions were required to make their own dealing possible. Second, it has been consistently held by other jurisdictions that proof of large scale distribution of smuggled narcotic contraband gives rise to an inference of participation in a single organization conspiracy by persons who perform similar large-scale distribution functions in separate localities without specific knowledge of the existence or numbers of such other persons and localities. United States v. Moten, 564 F.2d 620, 624-26 (2nd Cir.), Cert. denied, 434 U.S. 959, 98 S.Ct. 489, 531, 54 L.Ed.2d 318 (1977); United States v. Perry, 550 F.2d 524, 531 (9th Cir.), Cert. denied, 434 U.S. 827, 98 S.Ct. 104, 54 L.Ed.2d 85 (1977).
In Burman's case, although the time of his dealings was shorter and the quantities were smaller than those of the Walkers, who dealt personally with the central suppliers in Los Angeles, we think the amount and regularity of his supply from Baltimore retailers gives rise to the same inference of single conspiracy as arises against the Walkers. In cases of conspiracy to distribute a smuggled narcotic contraband, the focus of the inquiry on the issue of knowledge and intent is the regularity and volume of dealings and not merely the horizontal similarity of functions on a distribution network which may have separate outlets. And we think that the inference that Burman had joined in a large scale narcotics...
To continue reading
Request your trial
-
U.S. v. Tarantino
...459 U.S. 1088, 103 S.Ct. 573, 74 L.Ed.2d 934 (1982); United States v. Smith, 609 F.2d 1294, 1300 (9th Cir.1979); United States v. Burman, 584 F.2d 1354, 1356-57 (4th Cir.1978), cert. denied, 439 U.S. 1118, 99 S.Ct. 1026, 59 L.Ed.2d 77 (1979); United States v. Moten, 564 F.2d 620, 624-25 (2d......
-
U.S. v. Lloyd, 97 C 2799.
...Soto-Rodriguez's conduct, as allowing the imposition of supervised release or special parole terms. See, e.g., United States v. Burman, 584 F.2d 1354, 1356-58 (4th Cir.1978). In 1980, the Supreme Court disagreed with this interpretation and held that § 846, by its terms and in light of the ......
-
U.S. v. Bienvenue
...violation under either 21 U.S.C. § 846 or 21 U.S.C. § 963. Bifulco v. United States, 600 F.2d 407 (2d Cir. 1979); United States v. Burman, 584 F.2d 1354 (4th Cir. 1978); United States v. Jacobson, 578 F.2d 863 (10th Cir. 1978); United States v. Rich, 518 F.2d 980 (8th Cir. 1975); United Sta......
-
Bifulco v. United States
...two other Courts of Appeals that had held that § 406 authorizes the imposition of a special parole term. See United States v. Burman, 584 F.2d 1354, 1356-1358 (CA4 1978), cert. denied, 439 U.S. 1118, 99 S.Ct. 1026, 59 L.Ed.2d 77 (1979), and United States v. Jacobson, 578 F.2d 863, 867-868 (......