U.S. v. Fuiman

• Decision Date: 10 February 1977
• Docket Number: No. 75-4063,75-4063
• Citation: 546 F.2d 1155
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert FUIMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1155

546 F.2d 1155

UNITED STATES of America, Plaintiff-Appellee, v. Robert FUIMAN, Defendant-Appellant.

No. 75-4063.

United States Court of Appeals Fifth Circuit.

Feb. 10, 1977.

Milton E. Grusmark, Miami, Fla., Louis M. Natali, Jr., Mark A. Lublin, Philadelphia, Pa., for defendant-appellant.

Robert W. Rust, U. S. Atty., Donald L. Ferguson, James E. McDonald, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before BROWN, Chief Judge, and TUTTLE and TJOFLAT, Circuit Judges.

TJOFLAT, Circuit Judge:

I

This case arises out of an apparent conspiracy to import several controlled substances into the United States. In September 1974, two men flew a plane to Colombia and returned several days later. Upon their return, they landed in Hendry County, Florida, where they were arrested. A search of their plane revealed that it was carrying about six pounds of cocaine, 578 pounds of marijuana, and 15 pounds of hashish.

Eventually, five men were indicted in connection with these events. ¹ The appellant Fuiman was one of the five. Fuiman's alleged connection with the conspiracy was financial in nature the government's case was that Fuiman had bankrolled at least part of the transaction. He apparently was never directly involved with the mechanics of the operation. In fact, all of Fuiman's alleged activities which connect him with the transaction took place in Philadelphia, Pennsylvania.

Fuiman was tried separately from the other defendants in West Palm Beach, Florida, in early October 1975. The government's case-in-chief was based upon the testimony of three witnesses, all of whom were in some way connected with the smuggling operation. The key witness was one Harkness, who was one of the two men arrested at the time the plane was initially seized. Harkness testified that he had met with Fuiman in Philadelphia several times over the summer of 1974, and that Fuiman had eventually given him either directly or through a go-between named Coolbaugh a sum of money totalling about $20,000. This was Fuiman's sole connection with the operation. Moreover, it became apparent during the government's case that there was no evidence to connect Fuiman with the marijuana and hashish smuggling that is, that Fuiman was at most involved with the cocaine aspect of the deal. Accordingly, the district judge directed (upon timely motion) a judgment of acquittal as to those portions of the indictment dealing with marijuana and hashish, so that the charges relating to cocaine were the only ones remaining when Fuiman's defense began.

Fuiman's defense consisted of testimony from several character witnesses and from Fuiman himself, who categorically denied any involvement in the operation. After closing argument, the jury was charged and retired to deliberate late in the afternoon. They deliberated for about an hour and a half, went home, and reconvened at 9:00 the next morning. After a while, the jury sent a note to the judge which read as follows:

The jury respectfully requests a reading of Title 21, Section 952(a)(1).

Art Markusan, Forman (sic )

P.S. We feel that defendant Fuiman was guilty of financing the conspiracy but may not have known about the cocaine. How do you suggest we resolve this.

In response to the note, the court read the requested statute twice to the jury. After the reading of the statute, the jury foreman asked the court to read Schedule II, Subchapter II (the schedule of controlled substances referred to in the statute). The court did not do that, but did tell the jury that cocaine was a controlled substance within the meaning of the statute.

The jury again retired to deliberate. After a brief period of further discussion by counsel, the judge again recalled the jury in an effort to clear up possible confusion about the court's dismissal of the marijuana and hashish charges. The court explained the indictment to the jury that it charged Fuiman with conspiring "knowingly and willfully to commit an offense against the laws of the United States" and explained that the offense in question was the violation of the statute which the court had read to the jury a few moments before. The jury then retired once again.

About forty minutes later, the jury returned with its verdict. It found Fuiman guilty of Count I of the indictment (conspiracy) and not guilty of the remaining counts (aiding and abetting the importation of cocaine, and aiding and abetting the possession of cocaine with intent to deliver). Thus, the final result as to each count of the indictment was this:

Ultimately, Fuiman was sentenced to four years for the conspiracy charge, with three years' special probation.

On this appeal, Fuiman argues (1) that the jury's verdict was fatally inconsistent, and should have been set aside, and (2) that the district judge's supplemental charge to the jury was reversibly deficient because (a) the charge was not sufficiently clear, and (b) the charge was not sufficiently even-handed because it did not contain an explicit instruction on the defendant's presumption of innocence and on the meaning of "reasonable doubt." For the reasons set forth below, we find neither of these arguments persuasive and affirm the conviction.

II

With respect to the inconsistency of the jury's verdict, it is well established that inconsistent verdicts on a multi-count indictment do not per se invalidate a jury's findings. As Mr. Justice Holmes wrote in Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932), "(c) onsistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment." Thus, as a general proposition, if a jury has convicted a defendant on one count of an indictment, and the government has adduced evidence legally sufficient to convict the defendant on that count, then whatever the jury did with the remaining counts is immaterial to the appellate inquiry. And this is no less true in a situation where there is a logical inconsistency when the jury's findings on all the counts of the indictment are considered as a whole. See, e. g., United States v. Stiglets, 463 F.2d 242 (5th Cir. 1972).

In this case, however, Fuiman's argument seems to center on the "overt act" requirement of the federal conspiracy statutes. Fuiman argues that "(t)he only overt act alleged in the indictment connecting (Fuiman) to the conspiracy and the substantive counts was Overt Act 1 of Count I . . . ." ³ The overt act he mentions was the alleged meeting between Fuiman and two other men in Philadelphia, at which meeting Fuiman allegedly provided money for the scheme. Fuiman argues that the jury's acquittal of him on the importation and possession with intent to distribute counts necessarily implies that the jury felt that no such meeting took place. Thus, he argues, the conspiracy conviction must fail because there was no overt act to support the conspiracy.

Fuiman's argument misconstrues the overt act element of the conspiracy statute. To convict Fuiman of the conspiracy, the government did not have to show that Fuiman himself committed some overt act. All the government needed to show was that at least one conspirator committed at least one overt act in furtherance of the conspiracy. See, e. g., Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942); United States v. Fontenot, 483 F.2d 315 (5th Cir. 1973). At Fuiman's trial, the government adduced evidence of a number of overt acts committed by various conspirators, including the actual importation of the cocaine via airplane from Colombia. Thus, even if Fuiman himself had not committed any overt act in furtherance of the conspiracy, that fact would not in itself preclude his culpability under the conspiracy statute.

Fuiman contends, however, that Herman v. United States, 289 F.2d 362 (5th Cir. 1961), dictates a contrary conclusion. In our view, Fuiman's reliance on Herman is misplaced. In that case, a panel of this court reversed a defendant's conspiracy conviction while affirming his conviction of a substantive offense. The defendant, Herman, had been convicted of transporting stolen goods in interstate commerce and of conspiring with two other men, Slofsky and Rapaport, to transport the stolen goods. The only overt act alleged by the government to support the conspiracy was the receipt of the stolen goods by Slofsky and Rapaport. Slofsky and Rapaport, however, were acquitted of receiving the stolen goods. Thus, this court reversed Herman's conspiracy conviction because there were no remaining conspirators besides Herman himself.

Fuiman's chief reliance is placed upon a passage of the Herman opinion in which Judge Wisdom writes that

where the substantive offense is the overt act supporting conviction on the conspiracy count, an acquittal of the substantive offense operates as an acquittal of the conspiracy count, if the acquittal of the substantive offense constitutes a determination that the overt act was not committed.

Id. at 368. This passage is inapposite to Fuiman's case for two reasons. First, it addresses the situation in which a substantive offense is the only overt act which is alleged in support of a conspiracy charge. In Fuiman's case, the substantive cocaine offenses were not the only overt acts alleged to support the conspiracy. Since his acquittal of the substantive cocaine offenses did not constitute a final determination that no overt act was committed, the acquittal of the substantive offenses did not operate as an acquittal of the conspiracy count. Second, the passage relied upon by Fuiman did not even remotely address Fuiman's situation, where a defendant is tried under a multi-count indictment alleging a conspiracy offense and various substantive offenses. All that the Herman passage purported to deal with was the status of Slofsky and Rapaport, Herman's alleged co-conspirators. The Herman pa...