U.S. v. Boyd

• Citation: 595 F.2d 120
• Decision Date: 03 October 1978
• Docket Number: 77-1625 and 77-1656,77-1623,Nos. 77-1622,77-1624,s. 77-1622
• Parties: 3 Fed. R. Evid. Serv. 1401 UNITED STATES of America, Appellee, v. William BOYD, James D'Metri, Michael J. Lipton, Stephen Powell, George Parr, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 120

595 F.2d 120

3 Fed. R. Evid. Serv. 1401

UNITED STATES of America, Appellee, v. William BOYD, James D'Metri, Michael J. Lipton, Stephen Powell, George Parr, Appellants.

Nos. 77-1622, 77-1623, 77-1624, 77-1625 and 77-1656.

United States Court of Appeals Third Circuit.

Argued Feb. 13, 1978.

Resubmitted before the original panel Aug. 31, 1978.

Decided Oct. 3, 1978.

David W. Marston, U.S. Atty., Walter S. Batty, Jr., Thomas E. Mellon, Jr., Asst. U.S. Attys., Philadelphia, Pa., for appellee.

Alvin J. Bello, Philadelphia, Pa., for appellant, William Boyd.

Norman C. Henss, Philadelphia, Pa., for appellant, James D'Metri.

Douglas Riblet, Asst. Defender, Defender Ass'n of Philadelphia, Federal Courts Division, Philadelphia, Pa., for appellant, Stephen Powell.

Michael Kennedy, New York City, for appellant, George Parr.

Charles A. Glackin, Philadelphia, Pa., for appellant, Michael Lipton.

Before GIBBONS, HUNTER, Circuit Judges, and WEBER, ^* District Judge.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

In this case appellants raise several grounds for reversal of their convictions of conspiracy and substantive offenses relating to the manufacture and distribution of methamphetamine in the Philadelphia area during 1975. Although we have reviewed all of the contentions raised by appellants, ¹ we shall discuss only two issues: 1) whether a prejudicial variance existed between the conspiracy count of the indictment and the proof adduced at trial; and 2) whether the trial judge erred in allowing the jury to consider evidence of illegal acts occurring after the conspiracy alleged in the indictment had terminated. Because we find that the admission of postconspiracy crimes was prejudicial error, we reverse.

I.

This case arises from a sixteen-count indictment returned by a grand jury in the Eastern District of Pennsylvania naming sixteen individuals. Count one of the indictment alleged a conspiracy to manufacture and distribute methamphetamine, a Schedule II controlled substance; fourteen other counts related to methamphetamine distribution. ² The government prosecuted the five appellants William Boyd, James D'Metri, Michael Lipton, George Parr and Stephen Powell together, along with Marthana Heyman, who has not appealed her conviction.

The government's case relied heavily on the testimony of Agent Laurence Kutney of the Pennsylvania Department of Justice, Bureau of Drug Control, and James Love, a government informant. Love introduced Kutney to appellant Boyd in July 1975 as a friend and narcotics dealer from Ohio. Through Boyd, Love and Kutney were introduced to the other appellants on the assumption that Kutney would serve as a source of supply for phenyl-2-propanone (P-2-P), a precursor involved in the manufacture of methamphetamine. Kutney first agreed to supply P-2-P in exchange for a share of the methamphetamine produced. At that time, the group included himself, Love, Boyd, D'Metri, and one other partner. Appellant D'Metri functioned as a chemist for the manufacturing process, and with the assistance of others, attempted to manufacture methamphetamine at a laboratory located on Ridge Avenue in Northeast Philadelphia. The attempt failed; Boyd himself indicated that the substance was not of good quality, and evidence at trial indicated that the substance produced was not methamphetamine. Nevertheless, at least part of the batch was sold, through Boyd and appellant George Parr.

After the failure of the Ridge Avenue attempt to manufacture the drug, Boyd brought Kutney into contact with Parr in August 1975. Through Parr, Kutney was introduced to appellants Lipton and Powell, who were to assist Parr in establishing a laboratory in Bucks County. Again, Kutney was to serve as the source of supply for P-2-P, in exchange for a share of the methamphetamine produced.

This arrangement proved to be more successful, and Kutney was provided with quantities of methamphetamine apparently manufactured at a laboratory in Bucks County. After the deliveries to Kutney, the defendants became suspicious of him, and his involvement with the group dropped off. The defendants were later arrested. The grand jury's indictment was returned in April 1976, and trial commenced on September 7, 1976.

II.

Appellants raise the question of variance between the indictment and the government's proof at trial in two different ways. Parr, Lipton and Powell directly challenge the sufficiency of the evidence of the single conspiracy charged. D'Metri raises as error the trial judge's denial of his motion to sever his case from his co-defendants.

A.

Appellants Parr, Lipton and Powell contend that their convictions should be reversed because the proof at trial indicated that the Ridge Avenue scheme and the Bucks County scheme were two separate conspiracies to manufacture and distribute methamphetamine rather than the single conspiracy charged in the indictment. They argue that under Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), the prejudice inherent in eliciting before the jury the events surrounding the plans and actions of the earlier Ridge Avenue conspiracy affected their substantial rights.

Under Kotteakos, supra, proof at trial which establishes the existence only of multiple conspiracies when a single conspiracy is charged in the indictment constitutes a variance. If substantial rights of the defendants might have been affected by a variance, their convictions on the conspiracy count must be reversed. In determining whether a variance has occurred, we must first ascertain if, viewing the evidence in light most favorable to the government, substantial evidence supports the jury's determination of guilt on the single conspiracy charged in the indictment. Glasser v. United States,315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

The gist of a criminal conspiracy, the agreement between co-conspirators, may continue over an extended period of time and involve numerous transactions. Parties may join the conspiracy after its inception, and may withdraw and terminate their relationship with the conspiracy prior to its completion. See United States v. Klein, 515 F.2d 751 (3d Cir. 1975); United States v. Lester, 282 F.2d 750 (3d Cir. 1960), Cert. denied, 364 U.S. 937, 81 S.Ct. 385, 5 L.Ed.2d 368 (1961). The fact that conspirators individually or in groups perform different tasks in pursuing the common goal does not, by itself, necessitate a finding of several distinct conspiracies. United States v. Lester, supra. And even if a small group of co-conspirators are at the heart of an unlawful agreement, others who knowingly participate with the core members and others to achieve a common goal may be members of a single conspiracy. United States v. Varelli, 407 F.2d 735 (7th Cir. 1969).

It follows from these basic principles that the government, without committing a variance between a single conspiracy charged in an indictment and its proof at trial, may establish the existence of a continuing core conspiracy which attracts different members at different times and which involves different sub-groups committing acts in furtherance of the overall plan. As this Court stated in United States v. Kenny, 462 F.2d 1205 (3d Cir.), Cert. denied, 409 U.S. 914, 93 S.Ct. 233, 34 L.Ed.2d 176 (1972) Kotteakos prohibits charging multiple unrelated conspiracies, but it does not prohibit charging one master conspiracy and establishing at trial that under the master conspiracy more than one subsidiary scheme was involved.

462 F.2d at 1216. See also United States v. Adamo, 534 F.2d 31 (3d Cir.), Cert. denied, 429 U.S. 841, 97 S.Ct. 116, 50 L.Ed.2d 110 (1976).

Viewing the evidence in the light most favorable to the government, Glasser v. United States, supra, the following testimony by the informant Love and Agent Kutney is sufficient to establish that the jury could have found beyond a reasonable doubt both that a single conspiracy existed, and that the appellants, albeit at different times, were members of that conspiracy.

The informant, Love, testified that he mentioned the possibility of obtaining P-2-P while conversing with Boyd in May 1975. He stated that he met more than once with defendant D'Metri in the beginning of June and discussed P-2-P "connections." Love testified that he had almost daily contact with Boyd during the first half of June, during which time Boyd continued to talk of obtaining a source of supply for P-2-P in order to start a "laboratory." Love further testified that he met George Parr in the latter part of June, prior to any transactions involving P-2-P between Kutney and the defendants. At that time, Parr questioned Love about his source of P-2-P, asked about the quantity of the precursor available, and mentioned that "his lab was shut down at the time." At the time of the questioning of Love by Parr, Boyd was present. Parr named a price of $1000 per gallon for the precursor, and asked Love when it could be made available to him.

Love stated at trial that during July he had further conversations with Parr, often with Boyd present, in which Parr evidenced displeasure with the fact that Love's "supplier" of P-2-P had not yet appeared with the substance. Love and Boyd remained in almost daily contact, and D'Metri and Love continued to discuss the logistics of the methamphetamine manufacturing process.

On July 24, Love introduced Agent Kutney to Boyd. At that meeting, discussion centered on a partnership comprised of Boyd, Love, Kutney, D'Metri and one other individual. After the first, abortive attempt to manufacture methamphetamine, Marthana Heyman and appellant Lipton spoke with Love. Love testified that Lipton had then engaged someone else to take over the laboratory and run it. Love also stated that he had discussed the supply of P-2-P with Parr after the July 24 meeting with Kutney, Boyd and Love.

Agent Kutney's testimony confirms and supplements Love's account. After the Ridge Avenue laboratory...