U.S. v. Diana
| Decision Date | 29 August 1979 |
| Docket Number | 78-5054,Nos. 78-5053,s. 78-5053 |
| Citation | 605 F.2d 1307 |
| Parties | UNITED STATES of America, Appellee, v. Joseph DIANA, Billy Joe Robertson, Maurice Leon Jones, Robert Wade Jenkins, Thomas Stabile, Wayne Thomas Huey, John Pelligrino, Michael Elton Burnham, Ralph Frank Volino, Michael Ervin Catoe, Robert Melton, David Donnell White, Appellants, and Anthony Milia et al., Defendants. UNITED STATES of America, Appellee, v. David Donnell WHITE, Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Ronald P. Fischetti, New York City (Fischetti & Shargel, New York City, on brief), for appellants.
Thomas P. Simpson, Asst. U. S. Atty., Columbia, S. C. (Thomas E. Lydon, Jr., U. S. Atty., Columbia, S. C., on brief), for appellee.
Before FIELD, Senior Circuit Judge, and WIDENER and HALL, Circuit judges.
The appellants were convicted under 18 U.S.C. § 371 for conspiring to transport and distribute stolen automobile engines and parts. The indictment charged 25 defendants with one count of conspiracy and numerous substantive offenses. All the substantive counts were dismissed before the case went to the jury. With respect to the conspiracy count, the charges against 3 defendants were so dismissed. Of the remaining 22 defendants, the jury acquitted 10 defendants and convicted 12 defendants who are the appellants in these cases.
The basic theory of the government's case was that the defendants participated in a conspiracy in which defendants in New York supplied stolen auto parts to salvage dealers in North and South Carolina. The conspiracy involved four groups: the New York suppliers, the transporters, the principal receivers who stored the property and transferred it to the ultimate receivers. None of this last group were convicted. Trial of the case lasted two and one-half months, and was remarkably error free as shown by the fact that the defendants raise only three issues on appeal. We find the assignments of error to be without merit and affirm the convictions.
Defendants' first argument is based on what is claimed to be a fatal variance between the allegations in the indictment and the proof at trial. The essence of the argument is that the indictment alleged one overall conspiracy, but the proof at trial showed many separate conspiracies. Thus, so the argument goes, the individual conspiracies should have been tried separately, and the failure to do so prejudiced the defendants' right to a fair trial and requires reversal of their convictions under the authority of Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).
The crux of the appellants' position is that the ultimate receivers were joined improperly with the other three groups of defendants since the ultimate receivers were not aware of or a part of the overall conspiracy. In support of their position, appellants point to the fact that all the ultimate receivers were acquitted. This, they say, is proof certain that the overall conspiracy charged in the indictment did not exist. Having thus found the non-existence of the overall conspiracy charged, the defendants then call upon the rule in Kotteakos to demonstrate that they should not have been tried and that their convictions ought to be reversed on that account. They also argue that they were prejudiced because the decision to join the ultimate receivers made the trial unnecessarily lengthy and complex. The latter argument essentially is that the government should not be allowed to bring in an additional group of defendants in order to complicate an already complicated trial.
While we feel that the argument of spillover prejudice is speculative at best, for the risk exists in each case of prosecution of multiple defendants, we need not base our decision on that conclusion, for we hold that the substance of appellants' argument is without merit. As noted above, appellants' rely on Kotteakos. We feel that they read that case too broadly. The jury in Kotteakos, after being instructed on the single conspiracy theory which was alleged in the indictment, found eight defendants guilty of conspiring to defraud the government. Most of the defendants had no connection with each other except their separate and independent use of the defendant Brown to secure fraudulent government loans. The Supreme Court reversed all the convictions and held that the jury could not possibly have found, on the evidence in the record, that there was only a single conspiracy. The government had admitted as much when it described the case as ". . . separate spokes meeting in a common center," although, as the Court noted, "without the rim of the wheel to enclose the spokes." 328 U.S. at 755, 66 S.Ct. at 1243.
The facts of Kotteakos are far different from the case at bar. Here, there was evidence from which a jury could have found a single four-link conspiracy. Although such proof proved in vain when the jury acquitted the ultimate receivers, there was evidence on which a finding of a single four-part conspiracy might have been based, and it was not error here, as it was in Kotteakos, for the judge to instruct the jury. Furthermore, the mere fact that the ultimate receivers were acquitted does not show that this was a case of many separate conspiracies rather, it simply shows no more than that the jury thought the ultimate receivers were not guilty under the instructions of the court. The general verdict says nothing about the proof of a single three or four-part conspiracy, but of course goes only to the ultimate question of guilty or not guilty.
In sum, there was evidence to show a single four-link conspiracy even though the jury did not convict the members of the fourth link in the chain. 1 Thus, there is no error in indicting and trying the ultimate receivers of the stolen property. The government need not win its case against all defendants in a conspiracy case in order to avoid a charge of variance. To hold otherwise would be to invite a finding of a fatal variance between indictment and proof whenever one discrete group of defendants is acquitted in a conspiracy case.
The next assignment of error requires close attention. In proving its case, the government relied on evidence obtained through electronic surveillance of telephonic and oral conversations. The defendants moved to suppress this evidence on the ground that the government failed to seal the tape recordings of the conversations in the manner required by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. Specifically, § 2518(8)(a) states:
The essential facts concerning the sealing of the tapes may be stated briefly. The electronic surveillance of telephone conversations was conducted between March 22, 1977 and April 11, 1977 pursuant to court authorization. Each of five machines was set up to make two simultaneous recordings, one labeled "original" and one "duplicate original." Two logs, an original and a carbon copy, were kept. At the end of each day of surveillance, the original tapes were placed in envelopes which were sealed and initialed by the F.B.I. agent in charge. Upon the termination of the surveillance on April 11, the original and duplicate original tapes were transported to the F.B.I. office in Rock Hill, South Carolina. On April 13 the United States Attorney instructed the agent in charge of the tapes to place the originals in sealed boxes and to keep them in the F.B.I. office until further notice. On May 20, pursuant to further instructions from the United States Attorney, who was directed by the district court, the tapes were delivered to the United States Marshal in Columbia, South Carolina for formal sealing.
The first question raised is precisely when the tapes were sealed within the meaning of the statute. The district judge, who also presided at trial of this case, gave an oral sealing order to the United States Attorney. 2 Neither the court nor the United States Attorney kept any written record of the order or of the date on which the order was given. The United States Attorney testified at the suppression hearing that he had telephoned the district judge and received the order some time between April 11 and May 20; he was unable to assign the date with any more specificity. The district judge stated that he had in fact given the order by telephone, probably between April 25 and May 20, since he had been unavailable prior to April 25 for reasons of health. Both the district judge and the United States Attorney stated that the order had directed the tapes to be delivered to the United States Marshal for formal sealing, and such delivery in fact took place on May 20. At oral argument the government argued that the actual sealing must have occurred on April...
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