U.S. v. Guido

• Decision Date: 18 May 1979
• Docket Number: 78-3175,Nos. 78-2968,s. 78-2968
• Citation: 597 F.2d 194
• Parties: UNITED STATES of America, Appellee, v. Salvatore GUIDO, Appellant. UNITED STATES of America, Appellee, v. Douglas BOYLE, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 194

597 F.2d 194

UNITED STATES of America, Appellee, v. Salvatore GUIDO, Appellant.

UNITED STATES of America, Appellee, v. Douglas BOYLE, Appellant.

Nos. 78-2968, 78-3175.

United States Court of Appeals, Ninth Circuit.

May 18, 1979.

Thomas O'Toole, Federal Public Defender, and David Heller, Asst. Public Defender, for appellant, Guido.

James Hamilton Kemper, Derickson, Kemper & Henze, Phoenix, Ariz., for appellant, Boyle.

Dale A. Danneman, Asst. U. S. Atty., Phoenix, Ariz., for appellee.

Appeal from the United States District Court for the District of Arizona.

Before CHOY and ANDERSON, Circuit Judges, and BARTELS, ^* District Judge.

PER CURIAM:

Salvatore Guido and Douglas Boyle appeal from convictions entered in the United States District Court for the District of Arizona (Craig, J.) after a bench trial. They were convicted under Count II of an indictment charging conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. § 846. Prior thereto, they had been convicted in the Eastern District of California of a conspiracy which they claim to be identical although covering a different period. They contend that the Arizona prosecution violated their rights under the Fifth Amendment not to be (a) twice placed in jeopardy and (b) deprived of due process by being subjected to piecemeal prosecution.

This appeal involves two indictments and convictions. The first indictment, charging defendants with conspiracy to import marijuana The Arizona Indictment

from April 29, 1977 through May 12, 1977, was returned on May 17, 1977 and the second indictment, charging defendants with conspiracy to import and possess marijuana with intent to distribute from March 1, 1976 through November 15, 1976, was returned on May 2, 1978. Although the Arizona indictment was returned second, it covered a period prior to the period covered by the earlier California indictment. In its brief and argument, the government characterized the two time periods as separate conspiracies. We believe, however, that the activities within the time period as a whole must be considered to determine whether there is one or more conspiracies.

The facts adduced under the Arizona indictment establish that in Phoenix, Arizona, in February or March 1976, Doyle Rowland approached an acquaintance, Gordon House, and requested that he act as a pilot to fly marijuana from Mexico into the United States for the defendant Guido. Guido explained to House that he had contacts in Portland, Oregon who would distribute the marijuana if House would fly it. In either April, May or July 1976, these three met again in Phoenix with Boyle and an associate and planned their first smuggling transaction. As planned, House flew to Mexico where, in Santa Ana, Sonora, marijuana was procured on credit from Memo, a Mexican supplier whom House knew from prior drug smuggling flights and had suggested. House flew the marijuana from an airstrip located on Memo's or his friend's property back to an abandoned airstrip at Three Peaks near Phoenix where he was met by Boyle and his associate. The three men transferred the marijuana from the plane to a camper truck which was then driven by Boyle and his associate to Portland. House, after returning the plane to Phoenix, rode with Guido and Rowland to Portland where the marijuana was distributed. Later, House, Guido and Rowland returned to Mexico to pay Memo.

A second, comparable transaction was executed in August or September 1976. Thereafter, House withdrew from the conspiracy and the conspirators hired another pilot, known only as "John," to transport marijuana into Arizona from Mexico. John flew three or four flights for Guido, Rowland and Boyle and smuggled about 4000 pounds of marijuana into the United States. He too obtained the marijuana from Memo and distributed it through Boyle, though landing at a different airstrip near Phoenix, Arizona. Because of monetary problems, John withdrew from the conspiracy after his last flight at the end of October or the beginning of November 1976. At that time or shortly thereafter, Rowland also withdrew from the conspiracy but remained friendly in particular with Guido and was apprised by the conspirators of their continuing smuggling operation.

The California Indictment

The facts underlying this indictment were revealed in government reports of the Drug Enforcement Administration (DEA) investigation of defendants in California. At about the time that Rowland withdrew from the conspiracy, in late November or early December 1976, an informant for the DEA was approached by Charles Emerett who at the time was seeking a pilot to fly plane loads of marijuana into the United States. When the informant next saw Emerett in March 1977, he renewed his desire to find a pilot. Thereafter, on April 20, 1977, in Fresno, California, the informant introduced Emerett to James Plaven, an undercover DEA agent posing as a pilot. Emerett then advised Plaven that he was associated with two other people from Phoenix (subsequently determined to be Guido and Boyle) and could arrange for marijuana to be available in Mexico. Emerett told Plaven that he sought to hire him as a replacement for a pilot with whom there were disagreements over money and that, in numerous trips over the preceding year, marijuana had been smuggled into the United States near Phoenix and then transported north to Fresno and on to Portland for distribution. In San Diego, on May 2, 1977, Plaven met with Guido and Boyle. Plaven learned that marijuana would be Prosecutorial Background

procured from a Mexican in Santa Ana, Sonora, and flown from an airstrip located on the source's property there to an abandoned airstrip north of Phoenix where Boyle and another person would meet him with a camper truck. Guido told Plaven he had made two previous pilots rich in approximately eleven trips and that if the first trip was successful, the venture would continue with Plaven making weekly flights. As a result of these conversations, on May 11, 1977, Plaven, along with another undercover agent, flew to Phoenix, Arizona to meet with the defendants. Soon after the meeting, Guido and Boyle were arrested.

Government documents and testimony of the Arizona DEA agent on the motion to dismiss the indictment disclosed that on April 15, 1977, House was interviewed by DEA agents in Tucson concerning, among other things, his involvement with Guido and Boyle. At that time, he gave a 40-page statement which implicated, among others, Guido and Boyle in drug smuggling. Shortly thereafter, House appeared before the grand jury in the District of Arizona and testified as to his criminal association with Guido and Boyle from March 1976 through September 1976. In May 1977, the DEA agent in Arizona conferred with Plaven regarding his undercover investigation of Guido and Boyle. The agent received from Plaven a personal history report on the defendants and a photograph, but did not request further reports because he could see no connection between the California investigation and his Arizona investigation of a conspiracy. On May 17, 1977, Guido, Boyle and Emerett were indicted in the Eastern District of California and charged with a conspiracy from on or about April 29, 1977 up to and including May 12, 1977, to import marijuana into California and elsewhere in violation of 21 U.S.C. § 963. A month later, on June 27, 1977, the Assistant United States Attorney who was prosecuting the defendants in California sent a copy of that indictment to the Assistant United States Attorney in Arizona, identifying at the same time the attorneys representing the defendants in California. Thereafter, in December 1977 and January 1978, Guido and Boyle entered pleas of guilty to the charge in California and were sentenced to terms of 18 months and 3 months respectively.

It was not until May 2, 1978, that one Guillermo Jesus Lugan-Sainz (also known as Memo) and the defendants, Guido and Boyle, were indicted in Arizona. As noted above, they were then charged with a conspiracy from on or about March 1, 1976 until on or about November 15, 1976 in the District of Arizona and elsewhere, in Count I,...