U.S. v. Dempsey

• Decision Date: 12 June 1984
• Docket Number: No. 83-5549,83-5549
• Citation: 733 F.2d 392
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dennis DEMPSEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 392

733 F.2d 392

UNITED STATES of America, Plaintiff-Appellee, v. Dennis DEMPSEY, Defendant-Appellant.

No. 83-5549.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 17, 1984.

Decided April 27, 1984.

Rehearing and Rehearing En Banc Denied June 12, 1984.

Stephen H. Miller (argued), Louisville, Ky., for defendant-appellant.

Ronald E. Meredith, U.S. Atty., Alan Sears (argued), Asst. U.S. Atty., Louisville, Ky., for plaintiff-appellee.

Before LIVELY, Chief Judge, KENNEDY, Circuit Judge, and TAYLOR, District Judge. ^*

LIVELY, Chief Judge.

The defendant Dennis Dempsey raises a number of issues in this appeal from his jury conviction for conspiring to possess cocaine with the intent to distribute it in violation of 21 U.S.C. Secs. 841(a)(1) and 846. Since sufficiency of the evidence is not an issue, no detailed statement of facts is necessary. Ten defendants were named in the conspiracy charge and eight of them entered into plea bargains. Dempsey and one co-defendant, Dr. Sherrill Nunnelley, were tried jointly.

Dr. Nunnelley's brother, L.D. Nunnelley, was the hub of the conspiracy. Patti Dempsey, sister of the defendant, lived with L.D. Nunnelley, at times occupying part of Sherrill Nunnelley's home and at other times living in a trailer on the grounds. There is a great deal of evidence that drug transactions were carried out on Sherrill Nunnelley's property and the government charged that he acquiesced in the use of his property for illegal purposes and actually participated in and financed L.D. Nunnelley's activities. The defendant Dennis Dempsey was connected to the conspiracy by testimony of his participation in several transactions, including a trip to Florida by chartered jet to pick up cocaine.

Dennis Dempsey's brother William testified against Sherrill Nunnelley and Sherrill's brother, L.D. Nunnelley, testified against Dennis Dempsey. However, neither witness testified against his own brother. This apparently resulted from an agreement with the government by which each non-defendant brother was promised he would not be required to incriminate his own brother so long as he testified truthfully on other matters, and volunteered no information helpful to his own brother.

I.

The first issue raised by Dempsey requires this court to decide whether an indictment which charges a conspiracy under 21 U.S.C. Sec. 846 must allege an overt act.

Dempsey filed a pretrial motion to dismiss the indictment on several grounds including its failure to allege one or more overt acts. On appeal Dempsey argues that the indictment which charged a conspiracy without setting forth an overt act "left the prosecution free to roam at large ...," quoting Russell v. United States, 369 U.S. 749, 768, 82 S.Ct. 1038, 1049, 8 L.Ed.2d 240 (1962). He contends that the overt act is an essential element of the crime of conspiracy which must be charged in the indictment to give the defendant adequate notice of the charge which he must defend against. Thus Dempsey asserted in his district court motion that the indictment "is so vague it should be dismissed."

The indictment in this case was "bare bones." However, in response to a motion for a bill of particulars, the district court directed the government to inform the defendants of the approximate date that each was charged with entering the conspiracy and the names of all unindicted co-conspirators. With this information and that contained in the indictment we believe the defendants had adequate notice of the charges against them and were protected against double jeopardy, and that the prosecutor was limited to presenting a case based on the grand jury's determination of probable cause. Russell v. United States, supra. Thus, unless an overt act is a necessary element of the crime charged under 21 U.S.C. Sec. 846, the district court correctly denied Dempsey's motion to dismiss the indictment.

There is no doubt that an indictment under the general federal conspiracy statute, 18 U.S.C. Sec. 371, is defective if it fails to charge an overt act since Sec. 371 requires that "one or more of such persons [the conspirators] do any act to effect the object of the conspiracy ...." The overt act is clearly an element of the offense. However, the drug conspiracy statute, 21 U.S.C. Sec. 846, contains no such provision:

Sec. 846. Attempt and conspiracy

Any person who attempts or conspires to commit any offense defined in this subchapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

"[T]his subchapter" refers to the Controlled Substances Act of 1970.

At common law, conspiracy did not require an overt act. While there are no federal common law crimes, United States v. Hudson and Goodwin, 11 U.S. (7 Cranch) 32, 3 L.Ed. 259 (1812), a statute creating a conspiracy offense may follow the common law and not require an overt act as an element of the crime. This was made clear by Justice Holmes in Nash v. United States, 229 U.S. 373, 378, 33 S.Ct. 780, 782, 57 L.Ed. 1232 (1913), in answering the argument that an overt act was a requirement of a conspiracy to violate the Sherman Act:

Coming next to the objection that no overt act is laid, the answer is that the Sherman Act punishes the conspiracies at which it is aimed on the common law footing--that is to say, it does not make the doing of any act other than the act of conspiring a condition of liability. The decisions as to the relations of a subsequent overt act to crimes under Rev.Stat. Sec. 5440, in Hyde v. United States, 225 U.S. 347 [32 S.Ct. 793, 56 L.Ed. 1114], and Brown v. Elliott, 225 U.S. 392 [32 S.Ct. 812, 56 L.Ed. 1136], have no bearing upon a statute that does not contain the requirement found in that section. As we can see no reason for reading into the Sherman Act more than we find there, we think it unnecessary to offer arguments against doing so.

Most courts which have decided the issue have concluded that a conviction under Sec. 846 is valid without allegation or proof of an overt act. See United States v. DeJesus, 520 F.2d 298, 301 (1st Cir.), cert. denied, 423 U.S. 865, 96 S.Ct. 126, 46 L.Ed.2d 94 (1975); United States v. Bermudez, 526 F.2d 89, 94 (2d Cir.1975), cert. denied, 425 U.S. 970, 96 S.Ct. 2166, 48 L.Ed.2d 793 (1976); United States v. Dreyer, 533 F.2d 112, 117 n. 6 (3d Cir.1976); United States v. Nanez, 694 F.2d 405, 409 (5th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1884, 76 L.Ed.2d 813 (1983); United States v. Umentum, 547 F.2d 987, 991 (7th Cir.1976), cert. denied, 430 U.S. 983, 97 S.Ct. 1677, 52 L.Ed.2d 376 (1977); United States v. Blasco, 702 F.2d 1315, 1330 (11th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 275-276, 78 L.Ed.2d 256 (1983).

The Tenth Circuit holds that an indictment under Sec. 846 need not allege an overt act, but proof of such an act is necessary for conviction. United States v. King, 521 F.2d 61, 63 (10th Cir.1975); cf. United States v. Smith, 692 F.2d 693, 696 (10th Cir.1982). Decisions from the Ninth Circuit do not present a clear picture. Compare Ewing v. United States, 386 F.2d 10 (9th Cir.1967), cert. denied, 390 U.S. 991, 88 S.Ct. 1192, 19 L.Ed.2d 1299 (1968) (overt act not required), with United States v. Melchor-Lopez, 627 F.2d 886, 890 (9th Cir.1980) (recognized "essential elements" of conspiracy, including overt act, as required in prosecution under 21 U.S.C. Sec. 846).

This court has not addressed the question of whether an indictment charging a conspiracy under 21 U.S.C. Sec. 846 must allege an overt act. However, as Dempsey points out in arguing that the district court failed to charge the jury that proof of an overt act was required, we have stated in Sec. 846 cases that proof of an overt act is one of the essential elements of a conspiracy required for conviction. See United States v. Meyers, 646 F.2d 1142, 1143-44 (6th Cir.1981); United States v. Kirk, 584 F.2d 773, 776 (6th Cir.), cert. denied, 439 U.S. 1048, 99 S.Ct. 726, 58 L.Ed.2d 708 (1978); United States v. Thompson, 533 F.2d 1006, 1009 (6th Cir.), cert. denied, 429 U.S. 939, 97 S.Ct. 353, 50 L.Ed.2d 308 (1976); United States v. Williams, 503 F.2d 50, 54 (6th Cir.1974). In each of these cases the indictment did charge an overt act and the question on appeal was whether the evidence was sufficient to support the conviction. In disposing of the issue of sufficiency of evidence the court recited the elements of the offense of conspiracy as developed in cases brought pursuant to 18 U.S.C. Sec. 371. Since the validity of the indictment was not an issue and the indictment in each case charged one or more overt acts, we construe the references to the elements of a conspiracy in these decisions in the context in which they were written. Each indictment did charge at least one overt act, whether required to do so or not, and the court held that the proof must establish that at least one of the overt acts took place. In other words, as the indictments were drawn they necessitated an instruction requiring proof of at least one overt act and sufficient evidence to meet that requirement.

The present case is different from those previously decided by this court. Here, no overt act was charged. We agree with the court in United States v. Umentum, supra, which stated:

An overt act, therefore, need not be charged in a Sec. 846 conspiracy. If an overt act need not be charged, it need not be proved. If an overt act need be neither charged nor proved, there remains nothing about which to instruct on that issue.

547 F.2d at 991.

Our holding that it was not necessary to charge an overt act is based on the conclusion that in enacting 21 U.S.C. Sec. 846 Congress intended to make the conspiracy itself a complete offense. Section 846 is included in the Controlled Substances Act which was part of a bill "designed to deal in a comprehensive fashion with the growing menace of drug abuse...