U.S. v. Auerbach, s. 88-3466

• Decision Date: 17 September 1990
• Docket Number: 89-1191,Nos. 88-3466,s. 88-3466
• Citation: 913 F.2d 407
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert C. AUERBACH and Michael A. Helish, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 407

913 F.2d 407

UNITED STATES of America, Plaintiff-Appellee, v. Robert C. AUERBACH and Michael A. Helish, Defendants-Appellants.

Nos. 88-3466, 89-1191.

United States Court of Appeals Seventh Circuit.

Argued June 11, 1990.

Decided Sept. 17, 1990.

Jack Thar, Asst. U.S. Atty., Indianapolis, Ind., for U.S J. Richard Kiefer, Safrin, Kiefer & McGoff, Indianapolis, Ind., for Robert C. Auerbach.

John D. Middleton, Melrose, Fla., Vincent S. Taylor, Bloomington, Ind., for Michael A. Helish.

Before CUDAHY, FLAUM, and RIPPLE, Circuit Judges.

FLAUM, Circuit Judge.

Defendants Robert Auerbach and Michael Helish were convicted of conspiracy and other acts related to their involvement in a drug distribution ring operating out of central Indiana between 1976 and 1985. Auerbach contests his convictions under 18 U.S.C. Sec. 1952 (the "Travel Act"). Helish challenges his convictions for conspiracy and possession of marijuana with intent to distribute. We reject the defendants' claims and affirm their convictions.

I.

In 1975, brothers Paul and Richard Heilbrunn began to import marijuana and to distribute it from various sites in central Indiana. In 1976, they recruited Charles Stocksdale, whom they had known since the late 1960s, to join their organization. The Heilbrunns and Stocksdale established "Heilbrunn and Friends," a natural food distribution warehouse, in Indianapolis in 1978, funneling money from drug sales into the business through a network of offshore corporations. Richard Bernstein started working for Heilbrunn and Friends as a driver and warehouseman in 1982, but soon began to work exclusively in the owners' marijuana business. By 1985 he was running that business because the Heilbrunns and Stocksdale were under investigation.

Among the customers of Heilbrunn and Friends was Robert Auerbach, who operated the "Rainbow Blossom," a health food store, in Louisville, Kentucky. Stocksdale approached Auerbach at an Indianapolis 500 party thrown by the Heilbrunns in 1985 about purchasing marijuana from the organization. At the same time, Stocksdale introduced Auerbach to Richard Bernstein, telling him that Bernstein would be responsible for all transactions with Auerbach. Auerbach subsequently became a regular marijuana buyer from the Heilbrunn organization, purchasing a total of approximately 10,000 pounds of marijuana. Bernstein dispatched drivers to deliver the marijuana to Auerbach in Louisville; Auerbach returned about $3,000,000 to Bernstein in payment.

Michael Helish attended the same Indianapolis 500 party, and there met Charles Stocksdale. Stocksdale and Bernstein later asked Richard Aaron, who had previously worked on drug deals with Bernstein, to approach Helish about purchasing some marijuana. In Bernstein's words, he and Stocksdale were hoping that Helish "could move a lot for us." Helish had been a friend of Bernstein's deceased brother, but Aaron had known Helish since 1970 and Bernstein and Stocksdale felt that, for this reason, Aaron should approach Helish. Aaron did so, and reported that Helish was interested in purchasing marijuana. Bernstein sent a total of approximately 5,500 pounds of marijuana, in three shipments, to Helish via Aaron's home in Carmel, Indiana. Helish inspected the first shipment there, and arranged to have it and the subsequent shipments transported to Florida, where he lived. Helish provided approximately $100,000 in front money to Aaron, and thereafter made weekly payments of several hundred thousand dollars. Aaron received a total of approximately $1.5 million from Helish. In October, Helish returned 1,200 pounds of marijuana to Aaron that he had been unable to sell.

Auerbach and Helish were both indicted and charged with violating 21 U.S.C. Sec. 846 by conspiring to possess with intent to distribute marijuana in violation of 21 U.S.C. Sec. 841(a). Auerbach was also charged in three counts with violating 18 U.S.C. Sec. 1952 by causing persons to travel in interstate commerce in furtherance of the conspiracy. Helish was charged with three counts of possessing marijuana with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). A jury convicted both defendants on all counts. The judge sentenced Auerbach to six years on the conspiracy count and two years on each Travel Act count, the latter sentences to be served concurrently. The court sentenced Helish to fourteen years on each count, to be served concurrently. Both defendants were also fined.

Auerbach concedes that the government's evidence was sufficient to support his conviction for conspiracy but appeals his convictions under the Travel Act. He contends that he did nothing to "cause" the travel of those delivering the marijuana from Indiana to Kentucky or those returning the money from Kentucky to Indiana. Helish appeals each of his convictions. He argues that there was insufficient evidence to convict him of either conspiracy or possession with intent to distribute. He also contends that the variations between the government's indictment and its proof at trial, and improper prosecutorial comments during the trial, unduly prejudiced him and denied him a fair trial. Helish's final claim is that the trial court erred by denying a tendered multiple conspiracy jury instruction.

II. Auerbach

Auerbach claims that he did not cause anyone to travel between Indiana and Kentucky since he did not direct and control the couriers who shuttled between Bernstein and him delivering marijuana and picking up money. ¹ Bernstein, he contends, "caused" this travel. This argument is specious. Auerbach cannot dodge personal responsibility for the interstate character of his involvement with the operations of the Heilbrunn drug ring when he was an out of state operative. Auerbach regularly provided directions (via telephones and beepers) to the couriers dispatched by Bernstein; moreover, by the same exercise in semantics Auerbach employs one also may argue that his residence in Kentucky caused Bernstein to dispatch the couriers across state lines.

In any event, criminal liability under the Travel Act does not hinge upon which side can reach farther back into a sequence of "but fors." To establish a violation,

it is sufficient to show interstate travel or the use of an interstate facility with intent to promote or carry on an unlawful activity, and facts constituting the promotion or carrying on of the unlawful activity. Of course, where as here, a conspiracy is shown, conspirators are responsible for the acts of their coconspirators in furtherance of the unlawful activity.

United States v. Craig, 573 F.2d 455, 489 (7th Cir.1977) (citations omitted), cert. denied, 439 U.S. 820, 99 S.Ct. 82, 58 L.Ed.2d 110 (1978). Personal knowledge of the interstate activities, or the use of interstate facilities, is not an element of a Travel Act violation; it is sufficient that the defendant's unlawful activity caused the interstate travel. See, e.g., United States v. Raineri, 670 F.2d 702, 716-17 & n. 12 (7th Cir.1982) (evidence that checks issued by defendant's nude dancing establishment crossed state lines during collection process sufficient to support Travel Act conviction). Here, Auerbach's illegal activity was participation in a drug distribution conspiracy; it is immaterial whether Auerbach personally caused, or knew of, the interstate travel because, as a co-conspirator, he is liable for Bernstein's acts in furtherance of the conspiracy. ²

Auerbach's reliance on Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971) is therefore misplaced. In Rewis, the Court reversed the Travel Act conviction of the owner of a gambling establishment, holding that he did not, for purposes of the Act, cause his out of state patrons to travel across the state line to reach his establishment. Rewis did not, however, address a preexisting business relationship (not to mention a criminal conspiracy) between two principals who shuttled couriers back and forth between themselves. See United States v. West, 877 F.2d 281, 289 n. 3 (4th Cir.1989) (Rewis distinguishable on this basis). Moreover, the Court noted that "there are cases in which federal courts have correctly applied Sec. 1952 to those individuals whose agents or employees cross state lines in furtherance of illegal activity...." Id. 401 U.S. at 813, 91 S.Ct. at 1060. In fact, the Court suggested that Congress intended the Travel Act to reach exactly such cases, noting that it targeted the Act not toward "sporadic, casual involvement [in the predicate offenses], but rather toward a continuous course of conduct sufficient for it to be termed a business enterprise." Id. at 811 n. 6, 91 S.Ct. at 1059 n. 6 (quoting Robert F. Kennedy, Attorney General when the Act was proposed). Auerbach purchased marijuana from Bernstein and the Heilbrunns regularly from May 1985 to June 1986 in furtherance of their conspiracy; his involvement in their interstate shipments was anything but sporadic or casual.

III. Helish

A. Variation and Amendment of the Indictment

The indictment alleged that Helish possessed different quantities of marijuana, with intent to distribute it, in May, July, and August 1985. These were the dates on which the government believed Helish had taken delivery of the marijuana shipments from Aaron. The testimony elicited at trial, however, indicated that Helish received all three shipments in April and May. Helish argues that this variance between the indictment and the government's proof substantially prejudiced him because at trial he relied upon an alibi defense for the months of July and August 1985. In addition, he contends that the inconsistent testimony adduced at trial forced the government to constructively amend the indictment by arguing that Helish was in continuous possession of marijuana from May through August rather than employing the theory of the indictment that Helish took possession of the marijuana on three different occasions. Helish...