U.S. v. Bounos

• Decision Date: 12 January 1984
• Docket Number: 82-2434 and 82-2480,Nos. 82-2429,s. 82-2429
• Citation: 730 F.2d 468
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael BOUNOS, John Browning, and Jeffrey Upton, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 468

730 F.2d 468

UNITED STATES of America, Plaintiff-Appellee, v. Michael BOUNOS, John Browning, and Jeffrey Upton,

Defendants-Appellants.

Nos. 82-2429, 82-2434 and 82-2480.

United States Court of Appeals, Seventh Circuit.

Argued May 11, 1983.

Decided Jan. 12, 1984. ^*

Opinion March 21, 1984.

James M. Shellow, Shellow, Shellow & Glynn, S.C., Milwaukee, Wis., Frank Oliver, Chicago, Ill., for defendants-appellants.

Howard Pearl, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CUMMINGS, Chief Judge, ESCHBACH, Circuit Judge, and CAMPBELL, Senior District Judge. ^**

WILLIAM J. CAMPBELL, Senior District Judge.

Defendants Michael Bounos, John Browning and Jeffrey Upton appeal their convictions for conspiring to possess cocaine with intent to distribute in violation of 21 U.S.C. Sec. 846. Defendant Browning also appeals his conviction for unlawful possession of a firearm during the commission of a felony, a violation of 18 U.S.C. Sec. 924(c)(2). The appellants were initially indicted on September 17, 1980. However, on April 10, 1981 the government moved to dismiss the cause without prejudice after it had unsuccessfully sought a continuance of the trial. The court entered an order on April 15, 1981 explaining its reasons for denying the continuance and granting the dismissal without prejudice. Subsequently, the defendants were reindicted and went to trial, nonjury, on June 1-2, 1982. The district court entered findings of fact and conclusions of law determining that the defendants were guilty as charged. [The district court's order is reproduced in the Appendix to this opinion.] Thereafter, the defendants filed this appeal raising numerous issues as to their convictions.

Judge Bua wrote extensive findings of fact detailing the events which formed the basis of the criminal charges, see Appendix, Findings of Fact, paragraphs 1-10. Since the appellants do not challenge any of those findings we will adopt them and proceed to a determination of the issues raised on this appeal.

Appellants contend that the prosecution failed to prove that defendants sought to purchase a controlled form of cocaine. The district court stated in its conclusions of law:

6. The Court finds that the clandestine nature of the activities of defendants, and the amount of money involved in the agreement to purchase, supports the inference beyond a reasonable doubt that defendants were conspiring to purchase a controlled substance.

We also note that the use of a huge amount of cash in combination with a concealed firearm is hardly the normal means of transacting legitimate business. In United States v. Wornock, 595 F.2d 1121 (7th Cir.), cert. den. 444 U.S. 836, 100 S.Ct. 70, 62 L.Ed.2d 46 (1979), this court rejected a similar contention with respect to a marijuana conspiracy. Based on the analysis stated therein and the facts noted above we reject the appellants' argument in this case.

Appellants' second argument is that the government failed to prove a conspiracy because no agreement was demonstrated and no controlled substance was to be Appellants rely on United States v. Binetti, 552 F.2d 1141 (5th Cir.1977) and United States v. Oviedo, 525 F.2d 881 (5th Cir.1976) for their argument that since Vanacora had no intention to provide them with cocaine no illegal conspiracy could be present. However, in each of those cases it was the defendant who was selling the allegedly controlled substance which proved to be a non-controlled substance. The court in Oviedo stated:

provided by the government agent. The district court made a specific finding that an agreement was reached including such considerations as the amount of cocaine to be bought, the price, and the "commission" to be paid Manna and Bounos. We find the trial court's determination to be amply supported by the evidence and reject appellants' contention that the testimony only revealed various incidents of negotiations.

Oviedo stated he would sell heroin and then sold procaine. Based on these objective facts, we cannot infer that he intended to do that which he said he was going to do, because he in fact did something else. 525 F.2d at 886.

In this case the defendants were to be the buyers of the controlled substance and since they were unaware that no cocaine would be provided that fact cannot be used to negate their criminal intent.

Appellants also argue that the convictions in this case were obtained in violation of the Due Process Clause of the Constitution because the government's conduct consisted of creating a crime simply for the purpose of punishing it. We note that the appellants do not suggest that they were not predisposed to commit the crimes, rather they contend that DEA Agent Vanacora's conduct exceeded the permissible role of a government agent, citing United States v. Twigg, 588 F.2d 373 (3d Cir.1978). In that case the court held that the government's conduct in initiating, financing and supervising the operation of an illicit drug laboratory was sufficiently outrageous to warrant vacating the resulting convictions. The decision relied on the reasoning suggested in Justice Powell's concurring opinion in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976):

[I]n evaluating whether government conduct is outrageous, the court must consider the nature of the crime and the tools available to law enforcement agencies to combat it. 588 F.2d at 378 fn. 6 citing Hampton, 425 U.S. at 495-96 fn. 7, 96 S.Ct. at 1653 n. 7.

Applying that reasoning, the court in Twigg noted:

Hampton was concerned with the sale of an illegal drug, a much more fleeting and elusive crime to detect than the operation of an illicit drug laboratory. In such a situation the practicalities of combating drug distribution may require more extreme methods of investigation, including the supply of ingredients which the drug ring needs. 588 F.2d at 378 [Footnote deleted].

This case involves the sale of drugs and while Vanacora was an active participant we find his conduct neither extreme nor outrageous.

An additional argument of the appellants is that the dismissal/reindictment procedure utilized by the government in this case violated the Speedy Trial Act, 18 U.S.C. Sec. 3161, et seq. Subsection (h) of Sec. 3161 lists certain periods of delay which are to be excluded in computing the speedy trial deadlines, and subsection (h)(6) provides:

(6) If the information or indictment is dismissed upon motion of the attorney for the Government and thereafter a charge is filed against the defendant for the same offense, or any offense required to be joined with that offense, any period of delay from the date the charge was dismissed to the date the time limitation would commence to run as to the subsequent charge had there been no previous charge.

Appellants contend that this subsection excludes the time period between a dismissal and reindictment only when the government has a good faith basis for the dismissal. The statutory language does not support Appellant Upton presents two additional arguments. He contends that the dismissal/reindictment procedure authorized by Sec. 3161(h)(6) violates his constitutional right to speedy trial as enunciated in Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). In that case, the Court addressed the constitutionality of a state procedure whereby the prosecutor could, by filing a nolle prosequi "with leave", indefinitely postpone prosecution of a defendant despite the objection of the accused. The Klopfer opinion stands for two major principles. The first is that the Speedy Trial provision of the Sixth Amendment applies to the states through the Fourteenth Amendment. The second aspect of the holding is that the nolle prosequi "with leave" violated the Speedy Trial provision of the Sixth Amendment. The first proposition is obviously unrelated to this case. The numerous distinctions between the dismissal/reindictment procedure and the nolle prosequi "with leave" renders the second proposition irrelevant. Under the North Carolina procedure discussed in Klopfer, once the petition for nolle prosequi "with leave" was granted the decision whether to proceed to trial was solely a matter in the prosecutor's discretion. There were no means by which the accused could compel the state to try him. Furthermore, the statute of limitations was tolled, thus creating the potential for a truly indefinite postponement of trial. The result was, as noted in United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 1506, 71 L.Ed.2d 696 (1982), that the charges were never really dismissed. However, under the dismissal/reindictment procedure authorized by Sec. 3161(h)(6), the accused is protected by the Speedy Trial Act provisions, which apply to the new indictment, and the constitutional speedy trial considerations discussed in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Therefore, we cannot conclude that the principles of Klopfer prohibit the procedure used in this case.

                this construction and no court has required such a showing from the government. 1   Rather, the courts have applied the provision as it is written with the only limitation being the omnipresent constitutional speedy trial considerations, see United States v. Hicks, 693 F.2d 32 (5th Cir.), cert. den., --- U.S. ----, 103 S.Ct. 1226, 75 L.Ed.2d 461 (1983);  United States v. Rodriguez-Restrepo, 680 F.2d 920 (2d Cir.1982);  United States v. Abernathy, 688 F.2d 576 (8th Cir.1982).  The appellants have demonstrated no prejudice from the delay between the dismissal and the reindictment.  They briefly suggest that the reindictment was motivated by the government's intention to retaliate against them for resisting conviction in a related case.  However, the record provides no support for this contention, nor does it relate to any prejudice caused by the delay between dismissal and reindictment.  They also note the

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