State v. Reutter

Decision Date06 September 1985
Docket NumberNo. 14612,14612
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Robert REUTTER, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Jon R. Erickson, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Charles Rick Johnson of Johnson, Eklund & Davis, Gregory, for defendant and appellant.

WOLLMAN, Justice.

This is an appeal from a judgment of conviction that found appellant, Robert Reutter (Reutter), guilty of two counts of aiding and abetting the distribution of cocaine and one count of conspiracy to distribute cocaine. SDCL 22-3-3, 22-42-2, and 22-3-8. We affirm.

While engaged in an enterprise to mine gold near Oroville, California, Reutter conceived a scheme to transport to and distribute cocaine in Minnehaha County, South Dakota. Reutter's plan was initially implemented during the period from January 1982 through March 1982 in conjunction with one John Soto, who was employed at Reutter's Oroville-based company, S & R Minerals. Reutter and Soto agreed that in exchange for payment from Reutter, Soto would obtain cocaine from a source in San Francisco and ship it to Reutter in Sioux Falls.

Although Reutter's activities in California consumed a considerable portion of his time in late 1981 and early 1982 he nevertheless retained Sioux Falls as his principal residence. Separated from his wife, Reutter lived in the home of Dr. Michael Kotas while in Sioux Falls.

In early 1982, David Trygstad, a lawyer and former law associate of Reutter's, began spending time at the Kotas home, ostensibly for social reasons. Cocaine was generally available during these visits and was used by both Reutter and Trygstad.

In late October or early November of 1982, Reutter informed Trygstad of his decision to distribute cocaine in the Sioux Falls area. These discussions took place at the Kotas residence. On two occasions in early November of 1982, Trygstad received limited quantities of cocaine from Reutter for resale. Trygstad solicited Rich Cole, his friend, sometimes business associate, and client, to retail the cocaine.

Cole arranged through a drug informant to sell cocaine to Robert Overturf, the state drug agent named in the indictment.

Agent Overturf first met Cole on November 4, 1982, at a Sioux Falls restaurant. They drove to Cole's apartment in Sioux Falls, where Cole contacted Trygstad by telephone. Overturf and Cole then proceeded to Trygstad's law office. While Overturf waited in the car, Cole entered Trygstad's office, returning moments later with a gram of cocaine. Cole remarked to Overturf that they had just missed a substantial amount of cocaine, but that Overturf was welcome to the gram so he might test and inspect it. They agreed to meet again.

On November 28, 1982, Overturf purchased from Cole approximately a quarter ounce of cocaine that Cole had obtained from Trygstad, who subsequently paid Reutter $700.00 for the cocaine sold to Overturf.

On December 24, 1982, Trygstad received an ounce of cocaine from Reutter. Trygstad in turn gave the cocaine to Cole, who later that evening sold half of it to Overturf for $1,400 cash. Cole then paid Trygstad, who thereafter paid Reutter an undetermined amount of money.

In early January of 1983, Overturf arranged to purchase a quarter pound of cocaine from Cole. Cole informed Trygstad, who then contacted Reutter by telephone. Reutter advised Trygstad that he would be in Nebraska on business and instructed him to discuss the deal with Dr. Kotas. Kotas and Trygstad met on January 6, 1983, at the Grain Bin Bar located in Sioux Falls. Kotas indicated that he would fly to San Francisco the following day to purchase a quarter pound of cocaine for Trygstad and return to Sioux Falls on the following day, January 8. On Sunday morning, January 9, Trygstad called Kotas from his office and stated that he needed the cocaine shortly after noon that day. Reutter delivered the cocaine to Trygstad that afternoon.

Trygstad and Cole met at a bar in Sioux Falls that same afternoon. Overturf arrived and was joined in his automobile by Cole. Cole produced a quarter pound of cocaine, and in return Overturf gave Cole $10,000 in specially marked bills. Cole returned to the bar, where he and Trygstad were arrested. At the time of his arrest, Trygstad had in his possession $9,600 of the $10,000 given to Cole by Overturf.

On January 12, 1983, Trygstad entered a plea of guilty to two counts of conspiracy to distribute cocaine. He then identified Reutter as his source of cocaine and stated that Reutter had indicated that his source of cocaine was based in California.

On July 27, 1983, Reutter and Kotas were indicted by a Minnehaha County Grand Jury. Their cases were later severed for trial.

I. Sufficiency of the Indictment

Reutter first claims that he was victimized by an unconstitutional and unlawful broadening of the conspiracy count of the indictment. The indictment charged:

That during a period of time between March 1, 1981, and January 9, 1983, in Minnehaha County, South Dakota, MICHAEL JOHN KOTAS and ROBERT REUTTER did commit the public offense of Conspiracy to Distribute a Controlled Substance (SDCL 22-42-2; 22-3-8; and 34-20B-2) in that MICHAEL JOHN KOTAS and ROBERT REUTTER did then and there conspire with DAVID J. TRYGSTAD (an uncharged co-conspirator) to distribute cocaine, a derivative or preparation of coca leaves.

Reutter argues that because the indictment charges him with conspiracy to distribute cocaine only in Minnehaha County, the state should have been proscribed from presenting any evidence connecting him with drug related activities in California.

Reutter's claim rests in part on the fact that the overt acts alleged in the indictment refer solely to events occurring in Minnehaha County during the period from late October or early November 1982 to January 9, 1983.

In State v. Bingen, 326 N.W.2d 99, 100 (S.D.1982), we said:

To be sufficient an indictment must (1) contain the elements of the offense charged and fairly inform the defendant of the charge against him, and (2) enable him to plead an acquittal of conviction in bar of future prosecutions for the same offense.

See also State v. Sinnot, 72 S.D. 100, 30 N.W.2d 455 (1947), cert. denied 334 U.S. 844, 68 S.Ct. 1512, 92 L.Ed. 1768 (1948); United States v. Young, 618 F.2d 1281 (8th Cir.1980). These requirements comport with those established by the United States Supreme Court. United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980); Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). Generally, a recitation of the statutory language itself in the indictment will satisfy the requirement of fairly informing the defendant of the charge against him. State v. Bingen, 326 N.W.2d at 100. Where this proves inadequate, the indictment must be supplemented with facts sufficient to put the accused on notice of the specific offense charged. Hamling v. United States, 418 U.S. at 117-18, 94 S.Ct. at 2907-08, 41 L.Ed.2d at 620, 621.

Although it must fall into compliance with the two-prong test set forth in Bingen, an indictment charging conspiracy need not be drafted with the same precision required in an indictment for committing the substantive offense. State v. Sinnot, 72 S.D. at 104, 30 N.W.2d at 457; Wong Tai v. United States, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545 (1927). All that is necessary in charging conspiracy is "certainty, to a common intent, sufficient to identify the offense which the defendants conspired to commit." State v. Sinnot, 72 S.D. at 104, 30 N.W.2d at 457; Williamson v. United States, 207 U.S. 425, 447, 28 S.Ct. 163, 171, 52 L.Ed.2d 278, 290 (1908); see also Wong Tai v. United States, supra.

Consistent with this principle, the United States Court of Appeals for the Seventh Circuit, in United States v. Roman, 728 F.2d 846 (7th Cir.1984), upheld an indictment charging the defendant and "other named persons" with conspiracy to distribute LSD over an eleven-year period of time (January 1, 1971 to May 26, 1982) in the "Central District of Illinois and elsewhere," over the defendant's contention that the indictment was overly broad and vague. Defendant in Roman was not identified as a participant in any of the ten overt acts alleged in the indictment. Id. at 848. Similarly, the United States Court of Appeals for the Ninth Circuit upheld an indictment which merely identified the location of the conspiracy as "the District of Oregon, and at various other places outside the District of Oregon" and additionally alleged overt acts that pertained only to events occurring on the date of defendant's arrest. United States v. Brock, 667 F.2d 1311 (9th Cir.1982). See also United States v. Scanlon, 640 F.2d 144 (8th Cir.1981); United States v. Montemayor, 703 F.2d 109 (5th Cir.1983); United States v. Sedlak, 720 F.2d 715 (1st Cir.1983).

Additionally, there is considerable authority for the proposition that the government is not limited to proof at trial of only those overt acts alleged in the indictment. United States v. Johnson, 575 F.2d 1347, 1357 (5th Cir.1978); United States v. Morales, 677 F.2d 1, 2 (1st Cir.1982); United States v. Bolzer, 556 F.2d 948, 950 (9th Cir.1977); United States v. Netterville, 553 F.2d 903, 918 (5th Cir.1977); United States v. Harris, 542 F.2d 1283, 1300 (7th Cir.1976). Nor must the government disclose to defendant prior to trial every overt act in furtherance of the conspiracy it intends to prove. United States v. Sellers, 603 F.2d 53, 56 (8th Cir.1979), vacated on other grounds, 447 U.S. 932, 100 S.Ct. 3033, 65 L.Ed.2d 1127 (1980).

Accordingly, we conclude that the indictment was adequate to place Reutter on notice of the offense charged. It identified the elements of the offense; the code sections violated; the names of Reutter's...

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