U.S. v. Glenn

• Decision Date: 02 June 1987
• Docket Number: 86-2041,Nos. 86-2040,s. 86-2040
• Citation: 828 F.2d 855
• Parties: UNITED STATES of America, Appellee, v. Kenneth Robert GLENN, Defendant, Appellant. UNITED STATES of America, Appellee, v. Manuel J. BENEVIDES, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 855

828 F.2d 855

UNITED STATES of America, Appellee, v. Kenneth Robert GLENN, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Manuel J. BENEVIDES, Defendant, Appellant.

Nos. 86-2040, 86-2041.

United States Court of Appeals First Circuit.

Heard June 2, 1987.

Decided Sept. 10, 1987.

Professor William Genego, University of Southern California Law Center, Los Angeles, Cal., with whom Robert I. Kalina, New York City, and Kalina & Guido, were on brief, for defendant, appellant Kenneth Robert Glenn.

John A. MacFadyen, with whom John Tramonti, Jr., Providence, R.I., was on brief, for defendant, appellant Manuel J. Benevides.

Kenneth P. Madden, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief, for the U.S.

Before BREYER and TORRUELLA, Circuit Judges, and RE, ^* Judge.

BREYER, Circuit Judge.

The federal government charged Kenneth Glenn and Manuel Benevides with four drug crimes, and a jury convicted them. For present purposes, we can group the charges into two basic offenses: (1) conspiring to import and to possess "marijuana and hashish" and (2) actually importing and possessing marijuana. See 18 U.S.C. Sec. 2; 21 U.S.C. Secs. 841(a)(1), 846, 952, 960(a)(1), 963. Glenn and Benevides appeal their convictions, basically claiming that the government failed to prove that they were part of the grand marijuana and hashish smuggling scheme that the indictment described. They argue that the evidence introduced at trial showed that, as to them, the charged conspiracy was in fact two separate conspiracies, one dealing with marijuana from Thailand and the other dealing with hashish from Pakistan. Glenn says that he had nothing to do with smuggling marijuana, and Benevides says he had nothing to do with smuggling hashish. After reviewing the record, we have found that they are right. In Glenn's case, the variance between indictment and proof requires reversal, but in Benevides' case, it does not.

I.

We approach this classical "single/multiple" conspiracy problem with several well-established points in mind. First, we recognize that conspiracy law, like most criminal law, focuses upon the activities of an individual defendant. It is therefore dangerous to think of a conspiracy as a kind of "club" that one joins or a "business" in which one works. See Developments in the Law--Criminal Conspiracy, 72 Harv.L.Rev. 922, 934 (1959) (criticizing courts that deal with conspiracy "as though it were a group"). Those metaphors falsely suggest that the "member" or "employee" automatically becomes legally responsible for the entire enterprise. Instead, "the gist of the [conspiracy] offense remains the agreement, and it is therefore essential to determine what kind of agreement or understanding existed as to each defendant." United States v. Borelli, 336 F.2d 376, 384 (2d Cir.1964) (emphasis added).

We also recognize that an agreement or understanding may be tacit. A defendant drug distributor may expressly agree with his immediate supplier that he will sell any drugs provided to him, but he may tacitly agree with a more distant supplier, say a smuggler, that each will work for the success of the whole drug operation. A jury may find a tacit agreement at least when the distributor knows that the smuggler probably exists, that distributing drugs tends to help the smuggler, and that the smuggler's contribution to the success of the entire enterprise is likely needed if the distributor is to achieve his own more immediate objective. See United States v. Bruno, 105 F.2d 921 (2d Cir.), rev'd on other grounds, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257 (1939). The known interdependence of the linked activities in such a case makes it reasonable to speak of a tacit understanding between the distributor and others upon whose unlawful acts the distributor knows his own success likely depends. Cf. Blumenthal v. United States, 332 U.S. 539, 558, 68 S.Ct. 248, 257, 92 L.Ed. 154 (1947) (finding that whiskey salesmen conspired with the original, but unknown, owner of the whiskey when they knew themselves to be aiding "a single over-all comprehensive plan"). When such interdependence is missing, when the distributor is indifferent to the purposes of others in the enterprise--say, other distributors--the tacit understanding does not exist. See Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); Borelli, 336 F.2d at 383 n. 2.

Further, the government can prove the existence of both express and tacit agreements by pointing to the actions as well as the words of the defendants. See Borelli, 336 F.2d at 384; 2 Model Penal Code & Commentaries Part 1, Sec. 5.03, comment 3(a) (1985) and cases cited therein. But it can prove only the agreement or understanding that the evidence of word or deed implies beyond a reasonable doubt. See United States v. Drougas, 748 F.2d 8, 15, 17 (1st Cir.1984).

Finally, we are aware that a defendant cannot upset a conviction by showing that the government proved understandings or agreements different from those charged unless the "variance" between the evidence and the charges prejudiced the defendant, unless it " 'affect[ed] the substantial rights' of the accused." Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935). As long as administrative convenience leads the government to prosecute many, or all, members of a large criminal enterprise at a single trial, variances between the scope of the conspiracy charged and that proved may, at least as to some defendants, be fairly common. The risks of prejudice in such trials are serious and warrant reversal when they materialize; but when substantial rights are not affected, the error is "harmless." 28 U.S.C. Sec. 2111; see Kotteakos, 328 U.S. at 758-60, 66 S.Ct. at 1244-45 (discussing the origin and purpose of the harmless error statute); Berger, 295 U.S. at 82, 55 S.Ct. at 630.

These principles of law suggest that an appellate court, reviewing the type of alleged variance here at issue, should ask the following questions. (1) Is the evidence sufficient to permit a jury to find the (express or tacit) agreement that the indictment charges? (2) If not, is it sufficient to permit a jury, under a proper set of instructions, to convict the defendant of a related, similar conspiracy? (3) If so, does the variance affect the defendant's substantial rights or does the difference between the charged conspiracy and the conspiracy proved amount to "harmless error?"

A.

The answers to these questions require us to reverse Glenn's convictions. First, we do not see how a jury could convict Glenn of the conspiracy that the indictment charged, namely, the conspiracy to import and possess both marijuana from Thailand and hashish from Pakistan. The evidence shows several core conspirators who met repeatedly in New York City in the fall of 1980 and in the summer and fall of 1981; who developed plans to smuggle marijuana from Thailand and hashish from Pakistan; who fraudulently borrowed $10 million from the First National Bank of Chicago to finance their plans; who bought a boat called the Adeline C, which they originally planned to use for smuggling Pakistani hashish but which they actually used for importing the Thai marijuana; who bought a landing area in Rhode Island in 1981; and who unloaded eight tons of marijuana smuggled from Thailand in that area. The evidence also shows, however, that both Glenn and the other conspirators considered Glenn to be a subsidiary figure, that Glenn's duties involved only the smuggling of hashish, and that, for the most part, Glenn attended meetings where the subject of discussion was Pakistani hashish, not Thai marijuana. The record does not show how the hashish venture could have helped the marijuana venture, or vice versa.

The government, in arguing that Glenn belonged to a single, unified conspiracy to smuggle both marijuana and hashish, points only to the following five facts: (1) three "core" conspirators (Bryon, Murray and Warden) fraudulently borrowed ten million dollars from the First National Bank to finance the smuggling of marijuana and hashish, (2) two other core conspirators (Cooper and Lynn) planned to distribute both marijuana and hashish, (3) Bryon testified that Warden bought property in Rhode Island as a site for unloading both marijuana and hashish, (4) Bryon changed the destination of the Adeline C from Pakistan to Thailand, and Glenn became upset when he found out, and (5) Glenn attended one meeting where the core conspirators discussed the smuggling of both marijuana and hashish, and was present at one or two other meetings where they discussed marijuana only. The first three of these facts may show the existence of a conspiracy to smuggle both marijuana and hashish among the core group; they may show that the core conspirators had that dual objective. But they do not show that Glenn had that dual objective or that Glenn intended to, or did, take actions that likely would help the marijuana venture. The fourth fact shows that Glenn actively opposed the core group's plans for marijuana smuggling, not that he tried to help them. And the fifth fact shows at most that Glenn knew about the marijuana venture; it does not show that he agreed to take, intended to take or actually took any action that he knew would likely further that smuggling. In sum, the record reveals evidence of Glenn's participation only in the smuggling of Pakistani hashish. The record does not reveal how the hashish venture could have helped the marijuana venture, or vice versa; nor does it indicate that Glenn thought the two ventures interdependent, in the sense that the success of the one might have facilitated completion of the other. The evidence is therefore insufficient to show that Glenn expressly or tacitly agreed to do more than to import and possess Pakistani hashish. See Blumenthal, 332 U.S. at 558, 68 S.Ct. at 257 (noting that separate...