U.S. v. Lippner

• Decision Date: 29 April 1982
• Docket Number: No. 81-7414,81-7414
• Citation: 676 F.2d 456
• Parties: 10 Fed. R. Evid. Serv. 836 UNITED STATES of America, Plaintiff-Appellee, v. Robert L. LIPPNER, Jr. and James Buddy Williams, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 456

676 F.2d 456

10 Fed. R. Evid. Serv. 836

UNITED STATES of America, Plaintiff-Appellee, v. Robert L. LIPPNER, Jr. and James Buddy Williams Defendants-Appellants.

No. 81-7414.

United States Court of Appeals Eleventh Circuit.

April 29, 1982.

Mark J. Kadish, Atlanta, Ga., for defendant-appellant.

Milton E. Grusmark, Sheryl L. Javits, Miami, Fla., for Williams.

Joseph A. Newman, Melissa S. Mundell, Asst. U. S. Attys., Savannah, Ga., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Georgia.

Before TUTTLE, KRAVITCH and JOHNSON, Circuit Judges.

KRAVITCH, Circuit Judge:

Appellants Robert L. Lippner, Jr. and James Buddy Williams were convicted by a jury of conspiracy to possess with intent to distribute a controlled substance, methaqualone, in violation of 21 U.S.C. §§ 841(a)(1) and 846. On appeal they object to several evidentiary rulings by the trial court, and contend that their enhanced sentences and the regulation scheduling methaqualone as a controlled substance were illegal. Appellant Williams, in addition, asserts that the trial court improperly denied him a severance, and failed to properly charge the jury on his asserted defense; that a fatal variance between the indictment and proof at trial compels acquittal; and that the evidence was insufficient to sustain his conviction. We reject all appellants' contentions except their challenge to their sentences and accordingly affirm the convictions but remand for proper sentencing.

I. Background

The evidence at trial showed that in the fall of 1980 Lippner and Robert Jackson Tedder ¹ agreed to smuggle marijuana into the United States. The two men acquired a plane, and through various sources Tedder contacted Robert Johannesen, a Drug Enforcement Administration (DEA) agent posing as a potential pilot for drug smuggling operations, about being a pilot for their operation.

In November, 1980, Tedder flew to Atlanta for a meeting with Johannesen to discuss the marijuana smuggling. Johannesen told Tedder that he had a quantity of "quaaludes" (methaqualone tablets) for sale and was looking for a buyer. Subsequently Tedder arranged for Johannesen to sell the quaaludes to customers in Savannah, Georgia.

On November 18 Tedder and Lippner flew to Miami, picking up codefendant James E. Paulk en route. That night Lippner, Paulk, and Tedder flew to Savannah and checked in to rooms at the Holiday Inn previously reserved by Tedder in Lippner's name. At about 7:00 a. m. on November 19, Tedder went to Paulk's room to borrow some shaving items and met appellant Williams and Leonard DeWitt Mills. Paulk introduced Williams and Mills to Tedder and said they would be "the persons that (Tedder) would be introducing to (Tedder's) people." ²

Subsequently, Mills drove Tedder to the Master Hosts Inn so that Tedder could arrange a meeting with Johannesen. Mills returned to the Holiday Inn. After contacting Johannesen, Tedder called Paulk at the Holiday Inn and told him to bring Williams and Mills over to the Master Hosts so Tedder could introduce the two men to Johannesen. After Paulk, Williams, and Mills arrived at the Master Hosts and Tedder introduced Williams to Johannesen, Tedder and Paulk left for the airport.

Williams and Johannesen then met DEA agent Sprague and in a tape-recorded conversation, the three men discussed the drug transaction in detail. After some discussion of price, Williams led Johannesen to a car in the parking lot and showed him a grocery bag filled with cash. ³ When the two men returned to the motel, the agents arrested Williams. A search of Williams' person revealed a pair of brass knuckles, and a search of the car uncovered a loaded .38 caliber pistol.

County law enforcement personnel, meanwhile, followed Paulk and Tedder after they departed the Holiday Inn. The two men met Lippner at the airport, and prior to departure all three were arrested by a DEA agent. Subsequently, Tedder pleaded guilty to the conspiracy charges and testified for the government at the trial of Lippner, Williams and Paulk. ⁴

II. The Challenge to the Indictment

Both Lippner and Williams assert that the indictment should have been dismissed because no authority existed for the DEA to classify methaqualone as a controlled substance. ⁵ Appellants argue that the DEA's authority to designate controlled substances was delegated to the DEA from the Attorney General by President Nixon's Executive Order No. 11727, 38 Fed.Reg. 18357. According to appellants, the order was based on the President's authority under 5 U.S.C. § 5317, and that section permits delegation of the authority of a cabinet-level position only when the cabinet position is filled by a new appointment. Because the delegation in question did not accompany a new appointment to the office of Attorney General, appellants continue, the delegation was illegal.

We find this argument meritless because it rests on an incorrect interpretation of the orders involved. Executive Order No. 11727 did not delegate to the DEA the authority to schedule controlled substances. ⁶ Rather, that order effectuated a reorganization of the parts of the executive branch dealing with drug enforcement and gave the Attorney General supervisory powers over the new drug enforcement machinery. Neither the Order, ⁷ nor the reorganization plan it refers to, ⁸ ever mentions the delegation of any powers to the DEA except in section 6 of the reorganization plan which states:

The Attorney General may from time to time make such provisions as he shall deem appropriate authorizing the performance of any of the functions transferred to him by the provisions of this Reorganization Plan by any officer, employee, or agency of the Department of Justice.

Contrary to appellants' arguments, the delegation of the Attorney General's authority to schedule controlled drugs occurred by an order of the Attorney General on July 10, 1973, 28 C.F.R. § 0.100, which delegated to the DEA "functions vested in the Attorney General by the Comprehensive Drug Abuse and Control Act of 1970 (Pub.L.No. 91-513, 84 Stat. 1242)." These delegated functions included the Attorney General's authority to schedule controlled drugs pursuant to 21 U.S.C. § 811. This delegation, moreover, was within the scope of permissible delegation set by Congress in 1966, well before Executive Order 11727. See 28 U.S.C. § 510. ⁹ Consequently, we reject appellants' argument that the indictment in this case was improper.

III. The Evidentiary Rulings

A. Admission of Prejudicial Evidence

1. Lippner's Prior Conviction

Appellant Lippner contends that the trial court erroneously admitted into evidence his prior conviction for conspiracy to import marijuana as evidence of intent. Lippner asserts that the conviction was not probative of intent and, even if it were, the conviction should have been excluded under Fed.R.Evid. 403 because its probative value was substantially outweighed by the danger of unfair prejudice resulting from its admission.

We find this argument without merit. Fed.R.Evid. 404(b) provides in relevant part:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

This court recently reviewed the requirements for admitting evidence of extrinsic acts under this rule. In United States v. Mitchell, 666 F.2d 1385 (11th Cir. 1981) we observed:

The decision of the former Fifth Circuit in United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979), governs the propriety of the admission of such extrinsic offense evidence. See Bonner v. City of Prichard, Alabama, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc). First, the evidence must be relevant to an issue other than the defendant's character. Second, the probative value of the evidence must not be substantially outweighed by its undue prejudice, and the evidence must be otherwise admissible under Rule 403. United States v. Beechum, 582 F.2d at 911.

Mitchell, supra, 666 F.2d at 1389 (footnote omitted).

The Mitchell court further noted that the first prong of the Beechum test is satisfied "if the evidence goes to the defendant's intent, the extrinsic offense requires the same intent as the charged offense, and the jury could find that the defendant committed the extrinsic offense." Id. at 1389 (citing Beechum, supra, 582 F.2d at 913). We conclude, as did the trial court, that this first prong of admissibility is satisfied in this case. Both charges dealt with conspiracies to violate the drug laws and therefore involved the same conspiratorial intent. There is little question, moreover, that a jury would be entitled to find from the prior conviction that Lippner did commit the extrinsic offense.

The second prong of Beechum, evaluating the admissibility of the extrinsic offense under Rule 403, requires considering the strength of the government's case on the intent issue, the degree of similarity between the extrinsic and charged offenses, the amount of time separating the extrinsic and charged offenses, and the likelihood the defendant would contest the issue of intent. Mitchell, supra, 666 F.2d at 1390 (citing Beechum, supra, 582 F.2d at 913). In evaluating these admissibility issues, the trial judge has wide discretion, reviewable only for abuse. Id. at 1390.

We find no abuse of discretion here. Not only were the extrinsic and charged offenses both drug conspiracies, these prior convictions occurred barely two months prior to the trial in this case. Although Lippner asserts that the government's case on intent was extraordinarily strong, given the testimony of coconspirator Tedder for the government, the fact Tedder was involved in the crimes...