U.S. v. Johnstone

• Decision Date: 30 September 1988
• Docket Number: No. 87-1606,87-1606
• Citation: 856 F.2d 539
• Parties: UNITED STATES of America v. Donald JOHNSTONE, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 539

856 F.2d 539

UNITED STATES of America v. Donald JOHNSTONE, Appellant.

No. 87-1606.

United States Court of Appeals, Third Circuit.

Argued July 11, 1988.

Decided Sept. 6, 1988.

Rehearing and Rehearing In Banc Denied Sept. 30, 1988.

Gilbert J. Scutti (argued), Philadelphia, Pa., for appellant.

Jeanne K. Damirgian (argued), Asst. U.S. Atty., Philadelphia, Pa., for appellee.

Before SLOVITER, SCIRICA and WEIS, Circuit Judges.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

In this appeal, Donald Johnstone challenges his jury conviction of offenses under the Comprehensive Drug Abuse Prevention and Control Act (Controlled Substances Act), specifically, 21 U.S.C. Sec. 846 (1982) (conspiracy), and 21 U.S.C. Sec. 843(b) (using a telephone to facilitate a conspiracy to distribute methamphetamine, and to facilitate the distribution of methamphetamine).

Johnstone claims a violation of his Fifth Amendment right to indictment by a grand jury because the indictment did not allege his specific role in the conspiracy. He also challenges his convictions of using a telephone to facilitate the distribution of methamphetamine, maintaining that the government failed to prove an actual distribution. Furthermore, he contends that the district court selected, and improperly instructed the jury in accordance with, an incorrect standard concerning the burden of proof on the underlying drug felonies.

The district court sentenced Johnstone to three years imprisonment for the conspiracy conviction, five years probation and a $2,000 fine for conviction of illegal use of a telephone to facilitate the conspiracy, and a suspended sentence for each conviction of use of a telephone to facilitate the distribution of methamphetamine. The district court imposed a $50.00 special assessment on each of Johnstone's four convictions.

I. The Conspiracy Conviction

Count two, the conspiracy count of the indictment, provided:

THE GRAND JURY FURTHER CHARGES THAT: From in or about January of 1985, and continuing thereafter to on or about December of 1986, in the Eastern District of Pennsylvania, defendants

GEORGE WETTON

KENNETH SCHWARTZ,

a/k/a "Kenny"

PAUL HERIEGEL

JAMES KIRBY,

a/k/a "Steve"

NANCY KELLY

DARLENE WETTON and

DONALD JOHNSTONE

did knowingly and intentionally conspire, combine and agree together and with each other, and with other persons known and unknown to the grand jury, to distribute methamphetamine, a Schedule II controlled substance, in violation of Title 21, United States Code, Section 841(a)(1)....

Appendix for Appellant at 3 (redacted indictment). Under the indictment, the plan and purpose of the conspiracy was to acquire, cut, bag and distribute large quantities of methamphetamine on a cash or consignment basis to other dealers. The indictment also detailed the specific conspiratorial roles of five of Johnstone's co-defendants, but not Johnstone's role.

Johnstone contends that by not mentioning his specific role, count two of the indictment was unconstitutionally vague. Because he was convicted largely on the basis of the testimony of one of his co-defendants, Nancy Kelly, who did not testify before the grand jury, he claims that the grand jury never considered the theory of culpability that resulted in his conviction. For reasons that follow, we hold that Johnstone's Fifth Amendment right to indictment by a grand jury was not violated.

First, Johnstone's argument misperceives the function of the grand jury and ignores the respective roles of a grand jury and a fact finder at trial. The grand jury is a "safeguard against unfounded accusations." S. Beale & W. Bryson. Grand Jury Law and Practice Sec. 1:07 at 35 (1986); see United States v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 617, 38 L.Ed.2d 561 (1974). The trier of fact, on the other hand, must determine whether the evidence presented establishes beyond a reasonable doubt every fact necessary to prove the offense. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970); United States v. Wexler, 838 F.2d 88, 90 (3d Cir.1988); see also United States v. Pine, 609 F.2d 106, 107 (3d Cir.1979). Obviously, the burden of proof at trial may require the presentation of evidence additional to that presented before the grand jury. The fact that testimony presented at trial was not presented to the grand jury does not make an otherwise valid indictment constitutionally infirm.

Second, Johnstone does not contend that the grand jury lacked probable cause to indict him for conspiracy, but only that the lack of specificity in the indictment allowed the government to obtain a conviction based on a factual theory not presented to the grand jury. In order to address this contention, we must review the record, and in particular the testimony of Nancy Kelly, one of Johnstone's co-defendants who pleaded guilty and testified as a government witness. Specifically, we examine Kelly's testimony to determine whether it corresponded to the conspiracy charged in the indictment. See United States v. Miller, 471 U.S. 130, 136, 105 S.Ct. 1811, 1815, 85 L.Ed.2d 99 (1985).

The drug operation in this case, principally the distribution of methamphetamine, was headed by George Wetton, another of Johnstone's co-defendants. Besides having several other persons "cook," distribute and collect money for illegal sales, Wetton himself cooked methamphetamine, supplied the raw materials to produce the drug, and arranged for storage of those materials and the finished "product". See Supp.App. at 23-27a, 33a (Kelly testimony).

Kelly's admitted role in the drug operation was to pick up money for Wetton. Supp.App. at 22a. She testified that Wetton told her that Johnstone was "working for him now," and that Wetton was not lawfully employed from October, 1985 to October, 1986. She also testified that around October, 1986, after Johnstone called Wetton's house, Supp.App. at 37-38, Wetton told her that he had to make sure Johnstone picked up a package at Wetton's wife's house. According to Kelly, the package contained methamphetamine. Supp.App. at 44-48. Furthermore, she testified that George Wetton's stepson, George, told her that Johnstone picked up a package in October, 1986. Supp.App. at 50. Finally, the record indicates several phone calls between Johnstone and Wetton during the time of the conspiracy alleged in the indictment. See Supp.App. at 108, 109, 112 (transcripts of telephone logs).

The evidence presented at trial, and Kelly's testimony in particular, outlined Johnstone's participation in the conspiracy charged in the indictment--i.e. a conspiracy to distribute methamphetamine between January, 1985 and December, 1986. There was no variance between the indictment and the proof. Cf. United States v. Adams, 759 F.2d 1099, 1110 (3d Cir.) (holding that variance, although harmless, occurred where proof at trial included evidence of defendants' involvement with a drug not listed in indictment), cert. denied, 474 U.S. 906, 106 S.Ct. 275, 88 L.Ed.2d 236 and 474 U.S. 971, 106 S.Ct. 336, 88 L.Ed.2d 321 (1985). "Convictions generally have been sustained as long as the proof upon which they are based corresponds to an offense that was clearly set out in the indictment." Miller, 471 U.S. at 136, 105 S.Ct. at 1815 (deciding whether Fifth Amendment prohibits conviction under 18 U.S.C. Sec. 1341 when proof at trial corresponded to fraudulent scheme narrower than that alleged in indictment); see also United States v. Castro, 776 F.2d 1118, 1121-23 (3d Cir.1985) (upholding conviction where evidence at trial established conspiracy narrower than that alleged in indictment), cert. denied, 475 U.S. 1029, 106 S.Ct. 1233, 89 L.Ed.2d 342 (1986).

Third, the indictment was not facially defective. An indictment is sufficient if it "contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and ... enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974) (citations omitted); see also United States v. Scanzello, 832 F.2d 18, 22 (3d Cir.1987); accord United States v. Tavelman, 650 F.2d 1133, 1137 (9th Cir.1981), cert. denied, 455 U.S. 939, 102 S.Ct. 1429, 71 L.Ed.2d 649 (1982).

Those criteria are met here. The statute under which Johnstone was charged covers "[a]ny person who attempts or conspires to commit any offense defined in this subchapter." 21 U.S.C. Sec. 846. Count two, alleging that Johnstone knowingly and intentionally conspired with his co-defendants to distribute methamphetamine, a controlled substance the distribution of which is prohibited under 21 U.S.C. Sec. 841(a)(1), then, contained every element of the offense charged under Sec. 846. See United States v. Morgan, 835 F.2d 79, 82 (5th Cir.1987). Furthermore, the indictment specified both the time frame and the geographical area of the conspiracy. It also specified the purpose of the conspiracy, and described the role of several of Johnstone's co-defendants. That information was sufficient to inform Johnstone of the conspiracy charged and to enable him to plead double jeopardy in future prosecutions for the same offense. ¹ See Tavelman, 650 F.2d at 1137; United States v. Smith, 692 F.2d 693, 696 (10th Cir.1982); United States v. Hultgren, 713 F.2d 79, 89 (5th Cir.1983).

The fact that the indictment does not specifically allege the role played by Johnstone in carrying out the conspiracy is not significant in this case. It is neither an element of 21 U.S.C. Sec. 846 nor a constitutional requirement that a defendant have committed an overt act in furtherance of the conspiracy. United States v. Bey, 736 F.2d 891, 894 (3d Cir.1984).

In these circumstances, we hold that Johnstone was not deprived of his Fifth Amendment right to be indicted by a grand jury.

II. Illegal Use of a Telephone

Johnstone was convicted of three counts of use of a telephone in...