U.S. v. Snider

• Decision Date: 14 November 1983
• Docket Number: 83-1006 and 83-1009,Nos. 83-1004,s. 83-1004
• Citation: 720 F.2d 985
• Parties: 14 Fed. R. Evid. Serv. 796 UNITED STATES of America, Appellee, v. Terry Dee SNIDER, Appellant. UNITED STATES of America, Appellee, v. Billy Gene RENEAU, Appellant. UNITED STATES of America, Appellee, v. Sheri L. ABLE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 985

720 F.2d 985

14 Fed. R. Evid. Serv. 796

UNITED STATES of America, Appellee, v. Terry Dee SNIDER, Appellant.

UNITED STATES of America, Appellee, v. Billy Gene RENEAU, Appellant.

UNITED STATES of America, Appellee, v. Sheri L. ABLE, Appellant.

Nos. 83-1004, 83-1006 and 83-1009.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 15, 1983.

Decided Nov. 14, 1983.

R. Thomas Day, Kansas City, Mo., for appellant Snider.

Willard B. Bunch, Campbell, Erickson, Cottingham, Morgan & Gibson, John Edward Cash, Kansas City, Mo., for appellant Reneau.

Gregory L. Vranicar, Kansas City, Mo., for appellant Able; Rich, Granoff, Levy & Gee, Kansas City, Mo., of counsel.

Robert G. Ulrich, U.S. Atty., J. Whitfield Moody, Asst. U.S. Atty., Kansas City, Mo., for appellee.

Before HEANEY, Circuit Judge, HENLEY, Senior Circuit Judge, and REGAN ^*, Senior District Judge.

HEANEY, Circuit Judge.

Terry D. Snider, Billy Gene Reneau, and Sheri L. Able appeal their convictions on a two-count indictment for conspiracy to possess marijuana with intent to distribute and possession of marijuana with the same intent. Because we find a prejudicial variance between the charge in the indictment and the proof offered at trial, we reverse all three conspiracy convictions. We affirm the convictions on the possession count, however, because we find the variance did not taint the jury's verdict on that count.

I. BACKGROUND.

On February 26, 1979, Jerry Carr, Connie Carr, and David Forsythe took title to a 187-acre farm near Leeton in Johnson County, Missouri. The record is silent concerning the activities on this farm until October, 1979, when Earl Edwin Austin hid out there after robbing a bank in Boulder, Colorado. Carr, Forsythe, and Richard Yost were growing marijuana on the 187-acre farm at that time. While at the farm, Austin, a professional bank robber who admitted to nineteen felony convictions, offered to rob a bank to finance the operation. He left the farm in late 1979 and robbed a bank in Texas on February 26, 1980. The authorities arrested Austin in Arizona on March 1, 1980. All information concerning the activities on the 187-acre farm begins and ends with Austin's involvement.

On January 12, 1981, Jerry Carr, Forsythe, and Billy Gene Reneau signed an agreement to purchase a 240-acre farm in Johnson County, Missouri. That spring and summer, Able, Snider, and Reneau helped with the marijuana growing operation on the 240-acre farm. On September 17, 1981, federal and state agents, search warrants in hand, raided the 240-acre farm. The agents found cut marijuana drying in the barn and unharvested marijuana growing in the fields. Appellant Able was among those arrested on the farm the day of the raid. The agents found a large quantity of marijuana in her car which was parked in one of the farm buildings.

Proceeding on the theory that the activities on the 187-acre farm and the 240-acre farm evidenced one continuing conspiracy, the government returned an indictment charging the appellants, Yost, Forsythe, Jerry Carr, John Klinefelter, Douglas Carr, Fred Box, and Delbert Stiles with conspiracy and possession of marijuana with intent to distribute in violation of 21 U.S.C. Secs. 846, 841(a)(1), and 18 U.S.C. Sec. 2 (counts one and two). ¹ When the case went to trial, however, only the appellants, Box, and Stiles remained as defendants. The government had dropped the charges against Klinefelter because of his juvenile status; Douglas Carr and Yost are still fugitives; and Forsythe and Jerry Carr pled guilty the morning of trial.

None of the remaining defendants had any connection to the 187-acre farm. The trial court nevertheless permitted Austin to testify, over the objection of defense counsel, about his exploits and dealings with Yost, Forsythe, and Carr on the 187-acre farm. On November 8, 1982, the jury found Reneau, Able, and Snider guilty, but acquitted Box and Stiles. This appeal followed.

II. DISCUSSION.

A. The Conspiracy Conviction.

All three of the appellants contend the government failed to prove the single conspiracy charged in the indictment, and instead proved two separate conspiracies: one involving the 187-acre farm near Leeton, Missouri, in which Austin participated, and another involving the appellants' activities on the 240-acre farm. The appellants further contend that this variance between the crime charged in the indictment and the proof at trial prejudiced their right to a fair trial. We agree and hold that the error substantially affected the jury's verdict on the conspiracy count. We therefore reverse all three conspiracy convictions.

1. Single vs. Multiple Conspiracies.

The essence of a conspiracy is an agreement to commit an illegal act. United States v. Boone, 641 F.2d 609, 611 (8th Cir.), cert. denied, 454 U.S. 831, 102 S.Ct. 129, 70 L.Ed.2d 109 (1981); United States v. Cohen, 583 F.2d 1030, 1039 (8th Cir.1978). The problem is to determine whether one overall agreement binds all of the participants or whether distinct groups of individuals are engaged in "separate adventures of like character." See Kotteakos v. United States, 328 U.S. 750, 769, 66 S.Ct. 1239, 1250, 90 L.Ed. 1557 (1946); United States v. Jackson, 696 F.2d 578, 582-583 (8th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1531, 75 L.Ed.2d 952 (1983). Multiple groups and the performance of separate crimes or acts do not rule out the possibility that one overall conspiracy exists. See United States v. Zemek, 634 F.2d 1159, 1167 (9th Cir.1980), cert. denied, 452 U.S. 905, 101 S.Ct. 3031, 69 L.Ed.2d 406 (1981). The common purpose of a single enterprise must motivate each participant and each act, but mere knowledge of another similarly motivated conspiracy or an overlap in personnel do not prove one overall agreement. See United States v. Jackson, supra, 696 F.2d at 582-584; United States v. Bertolotti, 529 F.2d 149, 155 (2d Cir.1975).

The government proved two similarly motivated but distinct conspiracies. The first conspiracy began some time prior to October, 1978, and included an agreement among Yost, Forsythe, Carr, and Austin that Austin would help finance the 187-acre farm with stolen money. The government's proof of this conspiracy ends where Austin's testimony ended--February, 1980. The second conspiracy, the one charged in the indictment, began sometime early in 1981. No evidence links these two conspiracies.

The participation of Carr, Forsythe, and Yost in both conspiracies does not prove one mutual agreement binding Austin and the appellants. Common actors are not a sufficient nexus to prove one overall conspiracy. Kotteakos v. United States, supra, 328 U.S. at 773-774, 66 S.Ct. at 1252; United States v. Jackson, supra, 696 F.2d at 585; United States v. Bertolotti, supra, 529 F.2d at 155. There must be proof that the appellants joined an enterprise that began prior to October, 1978, and operated more or less continuously until the raid.

The government bases its argument for a single conspiracy on United States v. Lemm, 680 F.2d 1193, 1204 (8th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 739, 74 L.Ed.2d 960 (1983). In Lemm, the Court found one overall agreement bound the participants in an arson for profit ring even though the lower level personnel changed over time. One man commanded the entire network. The Court first found the operation was a RICO enterprise. ² The Court then found a single conspiracy is also indicated "where, as here, the RICO enterprise has one major goal which is accomplished through a predictable routine and where the enterprise has an infrastructure marked by a continuous existence." Id. at 1203; see also United States v. Winter, 663 F.2d 1120, 1136 n. 25 (1st Cir.1981), cert. denied, --- U.S. ----, 103 S.Ct. 1250, 75 L.Ed.2d 479 (1983). Later participants in the Lemm conspiracy were chargeable because they knowingly contributed to efforts in furtherance of the continuing conspiracy. United States v. Lemm, supra, 680 F.2d at 1204.

In the instant case, the government did not prove that a common infrastructure supported both conspiracies. No evidence indicated that Yost, Forsythe, or Carr, individually or together, operated the 187-acre farm and the 240-acre farm as a single enterprise. ³ The success of the 240-acre farm did not depend on the earlier farming operation. The government argues that Austin's testimony that he gave Carr and Yost $10,000 for a payment on their farms in early 1980 provides a link. This contention is meritless because Carr and Yost told Austin they needed the money to make a payment the next day and the 240-acre farm was not purchased until January, 1981. The government may have proved Carr, Forsythe, and Yost were the hub of two conspiracies, "but failed to show that there was some kind of rim binding the spokes." United States v. Durades, 607 F.2d 818, 819-820 (9th Cir.1979). Nothing in the nature and the scope of the 240-acre farm operation would have notified the appellants that they were part of an ongoing conspiracy beginning years earlier on a different farm. Cf. United States v. Bertolotti, supra, 529 F.2d at 154.

Viewing the evidence in the light most favorable to the verdict, ⁴ we are convinced that a jury could not reasonably infer that one overall agreement joined the appellants and their activities on the 240-acre farm in 1981 to the earlier activities of Yost, Forsythe, Carr, and Austin. ⁵

2. Prejudice.

Where a single conspiracy is alleged, but multiple conspiracies are proven, variance has occurred. See, e.g., Kotteakos v. United States, supra, 328 U.S. at 755-756, 66 S.Ct. at 1243; Berger v. United States, 295 U.S. 78, 80, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935); United States v. Jackson, supra, 696 F.2d at 584. The question then becomes whether the variance so prejudiced the appellants as to entitle them to a reversal of their conspiracy convictions. Reversal is required if we "cannot say, with fair assurance, after pondering all...