U.S. v. Galiffa

Decision Date11 May 1984
Docket NumberNo. 83-2001,83-2001
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Thomas GALIFFA, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Michael P. Carey, Chicago, Ill., for defendant-appellant.

Andrea L. Davis, Dan K. Webb, U.S. Attys., Chicago, Ill., for plaintiff-appellee.

Before PELL, POSNER and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

On July 6, 1982, the grand jury for the Northern District of Illinois returned a four-count indictment charging the defendant-appellant, Thomas Galiffa ("Galiffa"), and seven other persons with crimes arising out of their alleged participation in a marijuana distribution ring. Count I charged Galiffa with conspiracy to both distribute and possess with intent to distribute marijuana in violation of 21 U.S.C. Sec. 841(a)(1) and (2) and Sec. 846. 1 Galiffa was not named in Counts II and III. Count IV charged him (Galiffa) with the substantive offense of possession of marijuana with intent to distribute. 2

On April 12, 1983, a jury found Galiffa guilty on Counts I and IV of the indictment. He was sentenced to five years' imprisonment. Execution of the sentence was suspended and Galiffa was placed on probation for five years on the Count I conspiracy conviction. A three-year special mandatory parole, to follow the probationary period, was imposed for Galiffa's Count IV possession conviction. Galiffa appeals his conviction arguing that the district court committed reversible error in its instructions to the jury. 3

I. FACTS

In late 1977 or early 1978, Leroy Schubert ("Schubert"), Stuart Ashenfelter ("Ashenfelter"), Jim Keefe ("Keefe"), and Allen Rechterman ("Rechterman") agreed to engage in the purchase, sale and distribution of marijuana. The venture continued until April 9, 1982, when Schubert, Ashenfelter, and seven others, including appellant Galiffa, were arrested by federal agents.

The criminal conspiracy consisted of a group of approximately 20 individuals who were associated in this enterprise for a period of some five years. Schubert and Ashenfelter, as principals, employed various persons as couriers, distributors, bookkeepers, drivers and warehousers. In 1980, Galiffa began living with Schubert, Schubert's girlfriend, and Rechterman. The group at this time was engaged in procuring and distributing marijuana. In November of 1981, Galiffa moved in with Ashenfelter, Rechterman, and Kathryn Rodger ("Rodger") who were all living in a house in Ingleside, Illinois. During that period, Ashenfelter took control of the organization, and the house became the center of the operations. Marijuana was stored, sales were made, and records of the sales were kept in the house. During this time, as Galiffa was unemployed, he was supported by proceeds from the organization with Ashenfelter's approval.

Galiffa's role in the organization was described as Ashenfelter's "go-for." Testimony at trial indicated that Galiffa acted as a driver-courier and sometimes wrote out receipts. Ashenfelter, however, testified that he could not recall ever seeing Galiffa make out a receipt. Testimony by Rechterman indicated that while Galiffa drove to Florida with him to pick up the marijuana, Galiffa did not load it or drive back to Chicago with Rechterman. Hill, another person involved with the distribution ring, indicated that in 1981 Galiffa did load a shipment and make the return trip back to Chicago with Schubert from an Oklahoma pickup.

On April 9, 1982, after Ashenfelter and Galiffa rented a truck, Ashenfelter purchased some cardboard boxes and the two drove to a forest preserve. After assembling the empty cartons, Ashenfelter left Galiffa at the forest preserve and drove to a vault where he had stored some marijuana. He loaded the boxes with marijuana, picked up Galiffa at the forest preserve and the two returned to the house. As Galiffa, Ashenfelter and Schubert began to unload the truck, they were approached by law enforcement officers who had been keeping the house under surveillance. Galiffa and the others fled from the garage to the adjacent basement of the tri-level house where they were apprehended by the officers. Several bags of marijuana and an electronic scale were also seized in the basement. After Galiffa and the others were placed under arrest, a search of the house was conducted pursuant to a search warrant. Among the items seized were 234 pounds of marijuana, a large quantity of cocaine, an electronic scale, $10,440 in cash, narcotics paraphernalia and records of numerous drug transactions. Upon inspection it was ascertained that the bags of marijuana did not yield fingerprints traceable to Galiffa. At trial, four defendants testified that Galiffa was actively involved in the distribution ring.

Galiffa raises the following issues on appeal:

I. Whether the district court erred in instructing the jury on aiding and abetting a conspiracy?

II. Whether the district court erred in instructing the jury on liability of co-conspirators?

III. Whether the evidence was sufficient to sustain the defendant's conviction on Count IV for possession of marijuana with intent to distribute?

II. INSTRUCTION ON AIDING AND ABETTING 4

With regard to the aiding and abetting jury instruction, Galiffa raises several sub-issues: (1) whether a person can be convicted of aiding and abetting a conspiracy; and (2) whether a fatal variance from the original indictment was created where Galiffa, although not originally charged in the indictment with aiding and abetting, may have been adjudged guilty of conspiracy as a result of the aiding and abetting instruction given to the jury.

Citing People v. Strauch, 240 Ill. 60, 88 N.E. 155 (1909), Galiffa contends that since the agreement is the essence of a conspiracy one can only aid and abet a conspiracy by facilitating the creation of the agreement to commit the substantive crime. 5 Galiffa contends that since there is no evidence demonstrating that he actually brought the parties together, he cannot be convicted of aiding and abetting the conspiracy. We believe this interpretation of the conspiracy statute is too restrictive. Although the petitioner is correct in stating that one can aid and abet a conspiracy by bringing the parties together to enter into the illicit agreement, a person can also be convicted of aiding and abetting a conspiracy for deeds other than acting as a liaison for the parties to the agreement.

In his treatise on criminal law, Professor LaFave enunciates his belief that the Supreme Court, although it has not explicitly ruled on this issue, would decide that a person can be guilty of aiding and abetting a conspiracy when the person commits an act designed to further the conspiracy. 6 The key, of course, is that the person must know of the conspiracy's existence at the time of his act. Without the crime of aiding and abetting a conspiracy, an unintended loophole would exist in the criminal justice system where an act is performed with full knowledge that it will further the ends of the illegal conspiracy. 7

We are not alone in expressing the view that one may aid and abet a conspiracy. United States v. Walker, 621 F.2d 163 (5th Cir.1980) involved a situation similar to the present case. The defendant in Walker was charged with conspiracy to import marijuana in violation of 21 U.S.C. Secs. 952(a) and 963 and conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1) and 846. On appeal, the defendant, like Galiffa, challenged a jury instruction on aiding and abetting the conspiracy. In rejecting the defendant's claim, the Fifth Circuit stated:

"18 U.S.C. Sec. 2 does not define a crime. It simply makes punishable as a principal one who aids or abets the commission of a substantive crime."

Id. at 165 (citations omitted). This circuit has also stated that the violation of the aiding and abetting statute, 18 U.S.C. Sec. 2, does not constitute a separate offense (United States v. Gonzalez, 582 F.2d 1162, 1165 (7th Cir.1978)), but rather, the aider is punishable as a principal. United States v. Holleman, 575 F.2d 139, 144 (7th Cir.1978). The Walker court went on to state:

"[a]ppellant seeks to distinguish these cases, urging that he was charged not as a principal, but as a conspirator in a conspiracy, a distinct 'inchoate' offense similar to, but different from aiding and abetting. However, if we accept the Eighth Circuit's ruling in United States v. Rector, 538 F.2d 223, 225 (8th Cir.1976), cert. denied, 441 U.S. 963, 99 S.Ct. 2410, 60 L.Ed.2d 1068 (1979), that 18 U.S.C. Sec. 2 is applicable to the entire criminal code, it would be applicable to conspiracy."

Walker, 621 F.2d at 166. We agree with the Walker court that if one can aid and abet a robbery, one can also aid and abet a conspiracy, which is a separate chargeable offense in and of itself.

The Ninth Circuit is also in accord with this view. In United States v. Lane, 514 F.2d 22 (9th Cir.1975), the defendant, while not assisting in the formation of the original agreement, was found guilty of aiding and abetting a conspiracy to distribute narcotics. In Lane, a defendant owned a shortwave radio over which he monitored police calls. After hearing that a pending drug deal was actually a setup, the defendant called the three persons who intended to make the deal in order to inform them that the parties to whom they were about to sell drugs were undercover policemen. The defendant was found guilty of aiding and abetting the conspiracy to sell narcotics at trial and the conviction was affirmed on appeal.

Finally, a Fifth Circuit decision also recognizes that as an alternate theory of criminal liability one can aid and abet a conspiracy without necessarily participating in the original agreement. See United States v. Alvarez, 610 F.2d 1250, 1257 (1980), rev'd on other grounds, United States v. Alvarez, 625 F.2d 1196 (5th Cir.1980) (en banc ). Therefore,...

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