U.S. v. Kasvin
| Decision Date | 13 March 1985 |
| Docket Number | No. 84-1292,84-1292 |
| Citation | 757 F.2d 887 |
| Parties | 17 Fed. R. Evid. Serv. 993 UNITED STATES of America, Plaintiff-Appellee, v. Richard KASVIN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
David S. Mejia, Chicago, Ill., for defendant-appellant.
Mary F. Harkenrider, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.
Before POSNER, Circuit Judge, SWYGERT, Senior Circuit Judge, and DUPREE, Senior District Judge *
Richard Kasvin along with seven others was charged in Count I of a four-count indictment with conspiring to knowingly and intentionally distribute and possess with intent to distribute marijuana in violation of 21 U.S.C. Sec. 846 and in Count IV of the indictment with the substantive offense of possession with intent to distribute 234 pounds of marijuana in violation of 21 U.S.C. Sec. 841(a)(1). Following a directed verdict of acquittal as to Count IV Kasvin was convicted by a jury of Count I, the conspiracy count, and he appeals from a sentence of five years' imprisonment and a $15,000 fine. Finding no error in the trial, we affirm.
Six of Kasvin's co-defendants entered guilty pleas, and he and the remaining co-defendant, Tom Galiffa, were each tried and convicted in a joint trial held in April, 1983. Shortly thereafter Galiffa appealed his conviction, but as a result of Kasvin's post-trial motions for judgment of acquittal and in the alternative for a new trial final judgment in his case was not entered until January, 1984. Meanwhile the appeal in Galiffa's case had been argued on November 8, 1983, and the decision was rendered on May 11, 1984 while Kasvin's case was still pending on appeal. United States v. Galiffa, 734 F.2d 306 (7th Cir.1984). As we shall see, the decision in Galiffa provides much of the controlling law in the case at bar.
In late 1977 or early 1978 four of Kasvin's co-defendants named in the indictment agreed to purchase, sell and distribute marijuana. Over the next five years some twenty individuals were associated with the conspiracy and were engaged in such activities as couriers, distributors, bookkeepers, drivers, warehousers and dealers. The headquarters for the operation became a house in Ingleside, Illinois. As a result of surveillance by federal law enforcement officers this house was raided on April 9, 1982 at which time defendant Kasvin and seven others were arrested inside the house. A valid search warrant produced 234 pounds of marijuana, some cocaine, an electronic scale, $10,440 in cash, narcotics paraphernalia and records of numerous drug transactions.
In order to link Kasvin to the conspiracy the government called to the stand several of his co-defendants who had entered guilty pleas and one or more unindicted co-conspirators. These witnesses testified that Kasvin was known to them as "Smith" or "Smyth"; that the persons associated with the operation were given numbers and that Kasvin's number was 5; that No. 5 was the single largest "customer" of the business but that at times he provided the organization with some high quality marijuana apparently obtained by him through some other source; and that for more than a year Kasvin was seen at the organization's place of business several times weekly. A record of his phone number was kept by the organization in code.
A reconstruction of the records which the organization began keeping about July of 1981 showed that in the ensuing eight months prior to the raid on April 9, 1982 Kasvin obtained approximately 3,600 pounds of marijuana from the business and delivered to it well over $1,000,000 in cash.
At the close of the government's evidence the district judge expressed the opinion that the evidence outlined above did not suffice to show that Kasvin was a member of the conspiracy or that he had knowingly and intentionally possessed with intent to distribute the 234 pounds of marijuana seized in the raid. Accordingly, Count IV as it related to Kasvin was dismissed, but at the same time the judge expressed the view that the evidence was sufficient to go to the jury on the question of whether Kasvin was guilty of aiding and abetting the conspiracy. He therefore declined to dismiss Count I.
The defendants on trial, Kasvin and Galiffa, offered no evidence, and the case was submitted to the jury on Counts I and IV against Galiffa and Count I (the conspiracy count) against Kasvin. On Count I the jury was instructed as follows:
* In order to establish the offense of conspiracy the government must prove these elements beyond a reasonable doubt: (1) that the alleged conspiracy existed, and, (2) that the defendant knowingly and intentionally became a member of the conspiracy.
A conspiracy is a combination of two or more persons to accomplish an unlawful purpose. A conspiracy may be established even if its purpose was not accomplished.
In determining whether the alleged conspiracy existed, you may consider the actions and statements of all the alleged participants. The agreement may be inferred from all the circumstances and the conduct of all the alleged participants.
In determining whether the defendant became a member of the conspiracy you may consider only the acts and statements of that particular defendant.
To be a member of a conspiracy, the defendant need not join at the beginning or know all the other members or the means by which the purpose was to be accomplished. A defendant need not personally perform all the acts alleged in Count 1. The government must prove beyond a reasonable doubt, from the defendant's own acts and statements, that he was aware of the common purpose and was a willing participant.
Section 846 of Title 21 of the United States Code, which is the section under which Count 1 is brought, provides in pertinent part:
"Any person who conspires to distribute or possess with the intent to distribute a controlled substance commits an offense against the United States."
* * *
* * *
You are instructed as a matter of law that marijuana is a Schedule I controlled substance. It is not defined as a narcotic drug in the statute.
Any person who knowingly aids, abets, counsels, commands, induces or procures the commission of a crime is guilty of that crime. However, that person must knowingly associate himself with the criminal venture, participate in it, and try to make it succeed.*
** You are instructed that the mere relationship of a buyer and seller of drugs does not alone establish a conspiracy.
While the relationship of buyer and seller is insufficient to make the buyer a conspirator with the seller, a buyer and seller in marijuana transactions can be conspirators together if they have an agreement to act in concert. This agreement can be proven by circumstantial evidence.
Presence at the scene of the crime and knowledge that a crime is being committed are not sufficient to establish the defendant's guilt.** 1
After several hours of deliberations the jury returned the following verdict as to defendant Kasvin:
We, the jury, find the defendant, RICHARD KASVIN, GUILTY as charged in Count One of the indictment.
As previously stated, the case was submitted to the jury only on Count I as to Kasvin. The jury returned a guilty verdict against Galiffa as to Counts I and IV.
On appeal Kasvin asserts as error the trial court's instructions to the jury on aiding and abetting the conspiracy and the admission of the records kept by the conspirators under an exception to the hearsay rule. 2
The decision in the case of Kasvin's co-defendant, United States v. Galiffa, 734 F.2d 306 (7th Cir.1984), established the following principles of law which apply with equal force in this case:
1. A defendant can be convicted of aiding and abetting a conspiracy for deeds other than acting as a liaison for the parties to the conspiratorial agreement provided the defendant has knowledge of the conspiracy's existence at the time of his act.
2. One can aid and abet a conspiracy without necessarily participating in the original agreement.
3. The charge of aiding and abetting under 18 U.S.C. Sec. 2(a) "need not be specifically pleaded and a defendant indicted for a substantive offense can be convicted as an aider and abettor" upon a proper demonstration of proof so long as no unfair surprise results.
4. No fatal amendment to an indictment occurs where a defendant may have been convicted as a principal in a conspiracy by aiding and abetting it even though he was not charged with aiding and abetting in the original indictment.
In order to determine the applicability of these principles to the case at hand it is necessary to make only two factual inquiries: Whether Kasvin knew of the conspiracy's existence at the time of his acts and whether his acts aided and abetted the business of the conspiracy. In our view the evidence overwhelmingly supports an affirmative answer to each of these inquiries. For several years he had visited the headquarters of the conspiracy several times weekly, had been assigned a number just as some of the admitted members of the conspiracy had been assigned, his telephone number had been encoded, on occasion he provided the organization with marijuana for use in its business, his transactions with the conspiracy ran into hundreds of thousands of dollars annually but unlike an ordinary customer of a business, he simply picked up quantities of marijuana from headquarters, presumably disposed of it through a distribution network, and brought the money back from time to time in amounts which, so far as the records show, bore no definite relationship to the amounts of marijuana carried away at any particular time. To suggest in the face of this evidence that he was not aware of the conspiracy's existence would be to ascribe to him a naivete seldom seen in participants in a criminal venture of this magnitude. It is equally obvious that as a...
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