U.S. v. Honneus, 74-1112

Citation508 F.2d 566
Decision Date28 April 1975
Docket NumberNo. 74-1112,74-1112
PartiesUNITED STATES of America, Appellee, v. Geoffrey HONNEUS, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Daniel Klubock, Boston, Mass., with whom Kirk Y. Griffin and Featherston, Homans, Klubock & Griffin, Boston, Mass., on brief, for appellant.

Lawrence P. Cohen, Asst. U.S. Atty., with whom James N. Gabriel, U.S. Atty., Boston, Mass., on brief, for appellee.

Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

After a jury trial Geoffrey Honneus was convicted in the district court upon charges arising from his participation in a scheme to buy marihuana in bulk in Jamaica and transport it back to New England in an auxiliary yacht chartered for the purpose. His contentions on appeal, and the facts material to them, are discussed below.

I

Honneus contends that it was improper to convict and sentence him under three conspiracy counts all stemming from the same conspiracy. In the six count indictment Honneus and others were charged with three substantive offenses and three counts of conspiring to accomplish the substantive offenses. The substantive counts were for importing marihuana in violation of 21 U.S.C. 952(a); distributing and possessing marihuana with intent to distribute in violation of 21 U.S.C. 841(a)(1); and smuggling marihuana in violation of 18 U.S.C. 545. The count charging a conspiracy to import and that charging a conspiracy to distribute and possess were brought under separate drug conspiracy statutes, respectively 21 U.S.C. 963 and 21 U.S.C. 846. The count charging a conspiracy to smuggle was brought under the general federal conspiracy statute, 18 U.S.C. 371.

Identical overt acts were listed in the indictment under each conspiracy count; and Honneus argues that since the evidence disclosed but a single agreement, the fact that the objects of the agreement amounted to three distinct crimes did not transform one conspiracy into three. In Braverman v. United States, 317 U.S. 49, 53, 63 S.Ct. 99, 102, 87 L.Ed. 23 (1949), the Supreme Court said:

'Whether the object of a single agreement is to commit one or more crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one.'

In Braverman the defendant had been sentenced upon each of several conspiracy counts brought under 37 of the then Criminal Code charging a conspiracy to violate different provisions of the Internal Revenue laws. The Supreme Court held that only a single sentence could be imposed and remanded for resentencing.

In Braverman, where all counts violated but a single conspiracy statute, it could without difficulty be said that the single conspiracy differed 'from a single act which violates two statutes.' Id. at 54, 63 S.Ct. at 102. In the present case, each conspiracy count was brought under a different federal conspiracy statute. In addition, the statutory penalties vary slightly as between statutes, and there appears to be some difference as to standards of proof respecting overt acts. The Government contends that these factors turn the one criminal agreement into a trilogy of crimes.

We disagree. While undoubtedly Congress meant to attack the drug trade with severity, see Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1957), we doubt that it meant to authorize, or could authorize, a court to impose three punishments for one conspiracy. Congress may treat different aspects of the same conduct as separate crimes only if there is a meaningful distinction between the elements constituting each offense. See id.; American Tobacco Co. v. United States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946); Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1931). Here, unlike in American Tobacco, the agreement was identical in all three alleged conspiracies; the Government concedes as much. In Braverman the Court held that all separate criminal objects are 'embraced' within the single continuing agreement. 'The conspiracy is the crime, and that is one, however diverse its objects.' 317 U.S. at 54, 63 S.Ct. at 102, quoting from Frohwerk v. United States, 249 U.S. 204 210, 39 S.Ct. 249, 63 L.Ed. 561 (1918) (Holmes, J.). We hold that charging a single illicit agreement under several statutes does not make it more than one conspiracy. United States v. Noah, 475 F.2d 688 (9th Cir. 1973); United States v. Mori, 444 F.2d 240 (5th Cir. 1971).

We do not question Congress' power to enact the three statutes nor the Government's power to charge under them; but we find only one crime for which only a single sentence could be imposed. We therefore disagree with Honneus that he is entitled to a new trial. Cf. Braverman, supra, 317 U.S. at 55, 63 S.Ct. 99; Mori, supra, 444 F.2d at 246. An election was required in connection with sentencing, but not before. For practical reasons, we think the Government was entitled to request separate verdicts under all three statutes. The conspiracy with its several objects could, it is true, have been charged in a single count, Braverman, supra, 317 U.S. at 54, 63 S.Ct. 99. But had this been done, the court would not have known whether Honneus was found by the jury to have conspired to achieve all or only some of the illegal objects, and thus would not have known which of the statutory sentences were available. Other problems could perhaps have arisen had the court provided for special verdicts or asked special questions. See United States v. Spock, 416 F.2d 165 (1st Cir. 1969). Alternatively, if the Government had been forced to elect before trial, it would have had to gamble on proving one illegal object when there were, in fact, several, any one of which would have supported a finding of the agreement's illegality.

We thus find no error, nor do we believe there was prejudice, in submitting all three counts to the jury. But since there was but one crime, only one sentence could be imposed. We accordingly vacate the separate concurrent sentences under Counts 1, 3 and 5 and remand for sentencing upon any of the three counts the United States may select. Surplus counts are to be dismissed. 1

II

Respecting Count 4, 2 which charged the distribution and possession of marihuana with intent to distribute, Honneus makes several arguments about venue and jurisdiction. First he says that the indictment was defective for failure to allege where the offense took place. But it is well established that an indictment is not legally insufficient for failure to include such an allegation. See, e.g., United States v. Branan, 457 F.2d 1062 (6th Cir. 1972); Carbo v. United States, 314 F.2d 718 (9th Cir. 1963), cert. denied, 377 U.S. 953, 84 S.Ct. 1625, 12 L.Ed.2d 498 (1964). Honneus would have been entitled to the information had he sought a bill of particulars. He did not do so. Our attention is directed to a co-defendant's motion for particulars which was allowed and to which, Honneus now argues, the Government responded inadequately. This is of no assistance to Honneus. His sole connection with the motion is a paper filed later by his attorney 2A purporting to join in 'each and any and all of the co-defendant's motions, requests and petitions.' Apart from the fact that it was 'denied' by the court, the shotgun joinder obviously did not alert the court that Honneus was seeking information as to the place of possession, or that he was dissatisfied with information in the Government's bill of particulars filed in response to a co-defendant's motion.

Also in conjunction with Count 4, Honneus argues that he was entitled to an instruction on 'venue'. There was evidence that Honneus, who lived in Massachusetts, flew to Jamaica and, with others, purchased the marihuana there and arranged to have it loaded on a vessel which had been sailed from Duxbury, Massachusetts to Jamaica expressly to make the pickup. After the vessel was loaded, it sailed back to Massachusetts, where its owner contacted Honneus and arranged to have the marihuana off-loaded in Maine coastal waters. Finally there was evidence from which the jury could have found that Honneus had in his possession and sold some of the marihuana in Massachusetts prior to his arrest in that state. The latter evidence of illicit possession and distribution within Massachusetts was ample to support both the jury's verdict under Count 4 and venue within the District of Massachusetts, F.R.Crim.P. 18; see 18 U.S.C. 3237.

But Honneus argues that since the jury may have rested its conviction only upon the evidence of possession within Jamaica, the court erred in not instructing that possession had to be found in Massachusetts. The premise of this argument is doubtful. One might question whether a jury which found Honneus guilty on all counts, including ones for smuggling and conspiracy, was likely to have rejected the evidence of possession and distribution within Massachusetts. It is also quite possible, although we do not decide the question, that possession in Jamaica by a U.S. resident intending to distribute within the United States and later doing so, is within the reach of United States criminal jurisdiction and was prosecutable in the district of Massachusetts where Honneus was arrested. 3 18 U.S.C. 3238.

[9,10] But even if it is assumed that Honneus would have been entitled upon appropriate request to an instruction requiring a finding of possession within the geographical confines of Massachusetts, we are not convinced that it was plain error for the court not to have given one. A failure to instruct on venue is not normally plain error. See United States v. Guy, 456 F.2d 1157, 1163 (8th Cir. 1972); Bellard v. United...

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