U.S. v. King, s. 74-1459
| Decision Date | 15 August 1975 |
| Docket Number | Nos. 74-1459,74-1460,s. 74-1459 |
| Citation | 521 F.2d 61 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. James E. KING and Michael Scrivo, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
David J. Phillips, Asst. Federal Defender, Kansas City, Kan., for defendants-appellants.
Richard D. Simpson, Asst. U. S. Atty., Kansas City, Kan. (Robert J. Roth, U. S. Atty., and Monti L. Belot, Asst. U. S. Atty., Kansas City, Kan., on the brief), for plaintiff-appellee.
Before LEWIS, Chief Judge, and BREITENSTEIN and McWILLIAMS, Circuit Judges.
James E. King, Michael Scrivo, and Linda Miller were charged in a single-count indictment with conspiring to distribute cocaine in violation of 21 U.S.C. § 846. A jury trial was held in the United States District Court for the District of Kansas, and verdicts of guilty were returned as to each defendant. King and Scrivo appeal from their judgments of conviction; Miller does not appeal, having been placed on probation.
An earnest and energetic appellate presentation has been made to this court by the Federal Public Defender questioning the sufficiency of the evidence to support conviction and urging the existence of trial error of a prejudicial nature in the admission of evidence. We are satisfied that the evidence is sufficient to support the judgments although the prosecution was projected against a unique factual background. 1 We see no need to consider the claims of error in the admission of testimonial evidence because we are compelled to reverse the judgments for a more basic reason. The claims relating to the testimonial evidence will be avoidable on retrial.
Defendants contend that the trial court committed clear error in failing to instruct the jury that one of the elements of a criminal conspiracy is the commission of an overt act in furtherance of such conspiracy by one or more of the conspirators. The government counters with what we consider to be a self-denying argument.
Relying primarily on United States v. Murray, 9 Cir., 492 F.2d 178, 192, Cert. denied, 419 U.S. 942, 95 S.Ct. 210, 42 L.Ed.2d 166, the government asserts that an indictment such as we here consider need not charge overt acts. But, says the government, it would be perfectly proper for an indictment under section 846 to allege overt acts and, if so alleged, the government concedes that "the decisions are correct in requiring the two-pronged element test." We summarily reject the view that the government's method of pleading is determinative of the elements of a federal crime.
We agree that an indictment under section 846 need not allege overt acts and is basically sufficient if set out substantially in the words of the...
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...376.) The federal circuits, however, are not unanimous in this interpretation of the relevant conspiracy statute (see United States v. King (10th Cir.1975) 521 F.2d 61, 63), and the People argue that in the Ninth Circuit, which includes the district court where defendant entered his guilty ......
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...two distinct agreements. As we have previously noted, "an indictment under Section 846 need not allege overt acts" United States v. King, 521 F.2d 61, 63 (10th Cir.1975). Thus the 26 overt acts set forth for each count are basically surplusage and not determinative of the elements of the cr......
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...The law in this circuit is in doubt. In United States v. King, 521 F.2d 61, 63 (10th Cir.1975), we stated that "an indictment under section 846 need not allege overt acts," but we held that it was essential to prove the completion of "an overt act by one or more of the conspirators." Howeve......
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...78, 86-88, 35 S.Ct. 682, 684-685, 59 L.Ed. 1211 (1915). Two other Courts of Appeals were led down the same path, see United States v. King, 521 F.2d 61, 63 (CA10 1975); United States v. Hutchinson, 488 F.2d 484, 490 (CA8 1973), but both subsequently recognized the misstep and rejected their......