U.S. v. Muelbl

• Decision Date: 26 July 1984
• Docket Number: No. 83-2396,83-2396
• Citation: 739 F.2d 1175
• Parties: 15 Fed. R. Evid. Serv. 1939 UNITED STATES of America, Plaintiff-Appellee, v. Joseph MUELBL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1175

739 F.2d 1175

15 Fed. R. Evid. Serv. 1939

UNITED STATES of America, Plaintiff-Appellee, v. Joseph MUELBL, Defendant-Appellant.

No. 83-2396.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 24, 1984.

Decided July 2, 1984.

Rehearing and Rehearing In Banc

Denied July 26, 1984.

Nathan A. Fishbach, Asst. U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

William H. Theis, Chicago, Ill., for defendant-appellant.

Before WOOD, COFFEY, and HENLEY, ^* Circuit Judges.

COFFEY, Circuit Judge.

The defendant-appellant, Joseph Muelbl, was convicted in the United States District Court for the Eastern District of Wisconsin of conspiracy to distribute marijuana, cocaine and methaqualone in violation of 21 U.S.C. Secs. 841(a)(1) and 846. On appeal he raises two issues: (1) whether the district court erred in instructing the jury that it could convict the defendant if they found that he was a member of a conspiracy to distribute any one of the three controlled substances when the indictment charged the conspiracy to distribute those substances in the conjunctive; and (2) whether the district court violated Muelbl's Sixth Amendment right to confront his accusers in limiting his counsel's cross-examination of two witnesses. We affirm.

I

The evidence in the record demonstrates that Joseph Muelbl engaged in drug transactions with several individuals who subsequently testified against him at trial. For example, Brian Stehling testified, under a grant of immunity, that he was introduced to the defendant, Muelbl, in the spring of 1979, and subsequent to that meeting, Muelbl began providing him with quantities of marijuana, cocaine and qualudes on a "front" (consignment) basis. Stehling would in turn sell these drugs to other individuals (including Michael Taylor and James Nigbor who also testified against Muelbl).

In addition to receiving drugs from Muelbl for further distribution, Stehling testified about several other drug transactions he had conducted with the defendant Muelbl. For example, on one occasion Stehling contacted Muelbl regarding a large quantity of marijuana he had for sale. Muelbl agreed to purchase the marijuana and Stehling thereafter delivered it to Muelbl's Tower Road house in Stoughton, Wisconsin.

As previously noted, at the beginning of the alleged conspiracy, Muelbl provided Stehling with drugs which Stehling in turn sold to other individuals, including Michael Taylor and James Nigbor. As the conspiracy developed, Muelbl began having direct contact with both Taylor and Nigbor. For example, Taylor testified that subsequent to his arrest in 1980 he purchased cocaine from Muelbl on three or four occasions. With regard to James Nigbor, the evidence demonstrated that during the summer of 1980, Muelbl met Nigbor at Nigbor's Milwaukee, Wisconsin apartment. Following this meeting, Muelbl informed Nigbor that marijuana, qualudes and currency had been stolen from his Tower Road home. At Muelbl's request Nigbor moved into the Tower Road house in December of 1980. Nigbor's testimony indicates that at the time Muelbl was living in various other houses in Wisconsin.

According to Nigbor, Muelbl provided him with various packages of marijuana and cocaine which Nigbor was instructed to deliver to certain customers who came to the Tower Road house, in exchange for cash. In addition, Nigbor was directed to maintain a record of the drug transactions. Furthermore, in accordance with Muelbl's instructions, some of the money from those transactions was retained in a safe located at the Tower Road home.

In the early morning hours of February 18, 1981, law enforcement officers conducted a search of the Tower Road home pursuant to a warrant. During that search, the officers found approximately 420 pounds of marijuana, 19 grams of cocaine, the aforementioned The jury found Muelbl guilty of conspiracy to distribute, dispense or possess with the intent to distribute marijuana, cocaine, or methaqualone on June 15, 1983. Muelbl was subsequently sentenced to 4 1/2 years of imprisonment. From that conviction the defendant appeals.

drug ledger, and $81,320 of currency in the safe.

II

A. THE PROPRIETY OF THE COURT'S JURY INSTRUCTIONS

The defendant contends that the trial court improperly instructed the jury with regard to the scope of the conspiracy the government was required to prove to obtain a conviction under the grand jury's indictment. ¹ The indictment provided, in pertinent part:

"1. Beginning in or about 1979 and continuing through in or about February, 1981, in Milwaukee, in the state and Eastern District of Wisconsin, and in diverse other places throughout the Eastern District of Wisconsin; and in Stoughton, Wisconsin; Fort Lauderdale, Florida; and in diverse other places known and unknown to this grand jury,

JOSEPH MUELBL

and other co-conspirators unnamed in this indictment or unknown to this grand jury, did unlawfully, willfully, and knowingly combine, conspire, confederate, and agree together to commit acts in violation of the laws of the United States, that is, to intentionally, knowingly, and unlawfully distribute, dispense, and possess with the intent to distribute, and to knowingly aid and abet the distribution, dispensation, and possession with intent to distribute, quantities of marihuana, a Schedule I non-narcotic controlled substance; cocaine, a Schedule II narcotic controlled substance; and methaqualone, a Schedule II non-narcotic controlled substance, in violation of Title 21, United States Code, Section 841(a)(1) and Title 18, United States Code, Section 2."

While the objects of the conspiracy (marijuana, cocaine, and methaqualone) are alleged in the indictment in the conjunctive, the district court instructed the jury that they could convict the defendant if they found a conspiracy to distribute or possess with the intent to distribute any one of these drugs. Specifically, the trial court instructed the jury:

"The indictment charges a conspiracy to distribute, to dispense, and to possess with the intent to distribute three controlled substances; marijuana, cocaine and methaqualone, parentheses, [sic] qualudes, close parentheses [sic].

"In order to convict the defendant, you must unanimously find that the defendant willfully became a member of the conspiracy and that the conspiracy had as its object the distribution, or dispensation, or the possession with the intent to distribute marijuana, cocaine, or qualudes. You may also find the defendant guilty if you find that he willfully became a member of the conspiracy which had as its object the distribution, or dispensation or the possession with the intent to distribute all three drugs, or any combination thereof.

"Now, there are several alternatives that are included in the indictment, namely, marijuana, cocaine, or qualudes, and I urge you to make sure that the jury is unanimous as to any one or more than one of those three items before you can enter a verdict of guilty. In other words, if all twelve of you do not agree as to the several alternatives, even though you are not agreed on all three of them, but if twelve of you are agreed on one or more, then you have arrived at a verdict that would warrant your entering a finding of guilty; but if some of you agree as to one item and some of you as to another, that's not unanimity; or, put it another way, if three of you agree that there was a conspiracy to distribute marijuana and five of you agree that there was a conspiracy to distribute cocaine, and then another small number, five of you, agree that there was, or four of you agreed that there was a conspiracy to distribute qualudes, that would not constitute unanimity." (Emphasis added).

Muelbl argues that, as charged in the indictment, the jury was required to find a conspiracy to distribute each and every one of the controlled substances; that is, the jury was required to find that the defendant Muelbl was a member of a conspiracy which had as its object the distribution of marijuana, cocaine, and methaqualone. On the contrary, while the court did require unanimity of the jurors as to any drug or drugs for which it found a conspiracy to distribute to exist, the court's instructions, according to Muelbl, clearly converted the conjunctive phrasing of the indictment into a disjunctive statement of the object or objects of the conspiracy. Thus, under Muelbl's argument, contrary to the charge in the indictment, the jury was not required to find a conspiracy to distribute which encompassed all three drugs. In Muelbl's view, this was a constructive amendment of the indictment in violation of his Fifth Amendment right to indictment by a grand jury. ²

As noted by the Sixth Circuit:

"Except as to matters of form or surplusage, there is a per se rule prohibiting judicial amendments to the terms of an indictment ... The rule began as a prohibition of formal alterations of the wording of an indictment. See Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887). In Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), the Supreme Court held that events at trial can effectively amend an indictment, requiring reversal of a conviction even in the absence of a formal amendment."

United States v. Cusmano, 659 F.2d 714, 717-18 (6th Cir.1981) (citations omitted).

As the preceding quote indicates, the Supreme Court in Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), examined the "constructive" amendment question. Stirone involved an indictment which alleged that the defendant unlawfully interfered with the movement of sand in interstate commerce in violation of the Hobbs Act. The district court, however, permitted the government to offer evidence of an effect upon interstate commerce not only with respect to sand, but also with respect to certain steel shipments, such evidence being clearly outside the indictment since no mention of interference with steel was made in the...