U.S. v. LaChance

• Citation: 788 F.2d 856
• Decision Date: 14 April 1986
• Docket Number: D,No. 1378,1378
• Parties: UNITED STATES of America, Appellee, v. William G. LaCHANCE, William F. Zimmerli, John Schlagenhauf and Thomas Ciccaglione, Appellants. ockets 84-1415, 84-1435, 84-1451 and 84-1453.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 856

788 F.2d 856

UNITED STATES of America, Appellee, v. William G. LaCHANCE, William F. Zimmerli, John Schlagenhauf and Thomas Ciccaglione, Appellants.

No. 1378, Dockets 84-1415, 84-1435, 84-1451 and 84-1453.

United States Court of Appeals, Second Circuit.

Argued June 27, 1985.

Decided April 14, 1986.

Holly B. Fitzsimmons, Asst. U.S. Atty., Bridgeport, Conn. (Alan H. Nevas, U.S. Atty., D. Conn., on brief), for appellee.

Nina J. Ginsberg, Alexandria, Va. (Zwerling, Mark, Ginsberg & Lieberman, Alexandria, Va., on brief), for appellant LaChance.

Ira B. Grudberg, New Haven, Conn. (Alice S. Miskimin, Jacobs, Grudberg & Belt, on brief), for appellant Zimmerli.

James Michael Merberg, Boston, Mass., for appellant Schlagenhauf.

M. Yvonne Gonzalez, Boston, Mass., for appellant Ciccaglione.

Before KEARSE and CARDAMONE, Circuit Judges, and WYATT, ^* District Judge.

WYATT, District Judge:

These are separate appeals, consolidated in this court, of four defendants--William G. LaChance, William F. Zimmerli, John Schlagenhauf, and Thomas Ciccaglione--named in a superseding indictment returned against them and many other persons by a grand jury in the United States District Court for the District of Connecticut. Appellant Schlagenhauf was named in the superseding indictment as, and is often called in other papers of record, "John Schlaganauf," apparently a misspelling of his surname; for convenience, he will usually be referred to herein as "John." Appellant Ciccaglione will usually be referred to, for convenience, as "Thomas."

This prosecution had its beginnings on September 14, 1983, when the Coast Guard stopped and boarded the sailing vessel "Tho" in Long Island Sound some two miles from the mouth of the Connecticut River in the District of Connecticut. Appellant LaChance was aboard as Captain of the Tho and, after 4,300 pounds of marijuana was found on the ship and seized, LaChance and the two crew members were turned over by the Coast Guard to Drug Enforcement Administration (DEA) agents who placed them under arrest. Marijuana is a Schedule I controlled substance (21 U.S.C. Sec. 812(c) (Schedule I) (c)(10)), the distribution, possession with intent to distribute, and importation of which is unlawful (21 U.S.C. Secs. 841(a)(1) and 952).

An indictment was returned on September 21, 1983, by a federal grand jury at Bridgeport in the District of Connecticut. A superseding indictment was returned by the same federal grand jury on March 6, 1984, against the four appellants and many other persons; there were twenty-nine counts in the superseding indictment. The indictment and superseding indictment were assigned to Chief Judge Daly.

The superseding indictment covered a time period from January 1976 to the date it was returned. The subject matter was the importation into the United States of marijuana from the Caribbean and Colombia, and its distribution in the United States, principally in the District of Connecticut. There was a charge against Zimmerli and his brother-in-law Francolini, of engaging in a continuing criminal enterprise (21 U.S.C. Sec. 848); two charges of conspiracy against many defendants, one to import marijuana into the United States (21 U.S.C. Sec. 963) and one to possess and distribute marijuana (21 U.S.C. Sec. 846); and many charges of substantive law violations over a seven-year period for importing marijuana (21 U.S.C. Sec. 952) and for possessing marijuana in the United States with intent to distribute it (21 U.S.C. Sec. 841(a)(1)).

On September 17, 1984, appellant LaChance pleaded guilty to the counts against him in the superseding indictment (counts two, fifteen, sixteen, seventeen, and eighteen) and his plea was then accepted by Chief Judge Daly. In this connection, defendant LaChance was permitted to reserve the right on appeal from the judgment to review of the adverse determination of a motion by him and other defendants to dismiss the indictment to the extent that such motion was based on the improper selection of grand jurors (Fed.R.Crim.P. 11(a)(2)). On November 8, 1984, sentence was imposed on LaChance by the district court; we are told by the government (Brief, p. 4) that the total effective sentence was ten years' imprisonment and a $60,000 fine. On November 15 and 27, 1984, notices of appeal were filed by LaChance. The notice of appeal filed November 15, stated that "LaChance ... hereby appeals ... from the Court's denial of his 'Verified Motion to Dismiss Indictment and Stay Proceedings on Grounds of Substantial Failure to Comply with Law in the Selection of Grand and Petit Jurors'...." The notice of appeal filed November 27, 1984, described the appeal as from the order "entered in this action on May 2, 1984 (Denial of Motion to Dismiss for Failure to Comply with Law in Selection of Grand Jurors)." This appeal was given Docket No. 84-1415 in this court.

Trial of the superseding indictment began on September 17, 1984 at Bridgeport before Chief Judge Daly and a jury. The jury returned its verdict on October 17, 1984, against the remaining defendants then on trial.

Appellant Zimmerli was found guilty on counts one through fifteen and eighteen, and not guilty on count twenty-nine. On November 30, 1984, sentence was imposed on Zimmerli by the district court; we are told by the government (Brief, p. 4) that the total effective sentence was eighteen years' imprisonment and a $410,000 fine. On December 6, 1984, a notice of appeal was filed for Zimmerli. This appeal was given Docket No. 84-1435 in this court. We are told in the Brief for appellant Zimmerli (p. 5) that on January 24, 1985, the sentences imposed on counts two and eighteen were vacated, "thereby reducing the 13 1/2 year consecutive sentence by 3 years and cutting the fines imposed by $125,000."

We are told in the Brief for appellant John (p. 2) that the jury found him "guilty on all counts." The record on appeal does not seem to include any transcript of the return of the jury verdict, nor does the Defendants' Joint Appendix. We are told in the Brief for appellant John (p. 2) that he was sentenced, among other counts, on count "twenty-one"; we are puzzled because in the superseding indictment shown in the record on appeal (BV I, document 21; "BV" references are to the two brown volumes in the record on appeal) and in Defendants' Joint Appendix (A177; "A" references are to pages of the Defendants' Joint Appendix), count "twenty-one" does not charge Schlagenhauf. There is a possible explanation for the apparent mistake. John was charged in count twenty-two of the superseding indictment, and the jury found him "guilty on all counts" (Brief, p. 2). According to the judgment of conviction (SA 1; "SA" references are to pages of John's "Supplemental Appendix"), John was not sentenced on count twenty-two. Therefore, the sentence on count twenty-one could have been intended to be on count twenty-two. In any event, we assume that the sentence on count twenty-one does not affect the time to be served in prison because it was made to run "concurrently to Counts Eighteen and Twenty-Three" (SA 1).

On November 29, 1984, sentence was imposed on John by the district court; we are told by the government (Brief, p. 4) that the total effective sentence was eight years' imprisonment. On December 12, 1984, a notice of appeal was filed for John and for Craig Randall, another defendant in the same superseding indictment and in the same trial. This appeal was given Docket No. 84-1451 in this court. On April 11, 1985, an order of this court was filed dismissing the appeal of Craig Randall on his consent.

Appellant Thomas was found guilty on count twenty-one and not guilty on count eighteen. On November 28, 1984, sentence was imposed on Thomas by the district court; we are told by the government (Brief, p. 5) that the sentence was two years' imprisonment and a $15,000 fine. On December 10, 1984, a notice of appeal was filed for Thomas. This appeal was given Docket No. 84-1453 in this court.

We are told by the government (Brief, p. 5) that the notices of appeal of the four appellants were all "timely filed."

We affirm the several judgments from which these appeals were taken.

A. The Appeal of William G. LaChance

On September 17, 1984, LaChance pleaded guilty to all counts in which he was charged. Chief Judge Daly accepted his plea. LaChance had properly reserved the right to review the denial of his motion to dismiss the indictment to the extent that such motion was based on the improper selection of grand jurors (Fed.R.Crim.P. 11(a)(2)).

As noted earlier, LaChance filed two notices of appeal. One notice states, and the other indicates, that the appeal is from the district court's order denying his motion to dismiss the indictment for improper selection of jurors.

These notices of appeal raise a question not mentioned by the government, but which should be addressed. By stating or indicating in the notices of appeal that his appeal is from the district court's order of May 2 denying his motion, LaChance failed to comply technically with Fed.R.Crim.P. 11(a)(2). Rule 11(a)(2) allows a defendant who has entered "a conditional plea of guilty" to reserve the right to review of an "adverse determination of any specified pretrial motion" on "appeal from the judgment" (emphasis supplied). Therefore, rather than appealing from the May 2 order, LaChance should have stated that his appeal was from the judgment of conviction entered against him November 19, 1984. Nevertheless, in light of Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978), we conclude that LaChance's appeal is properly before us. In discussing the effect of mistakes in a notice of appeal, the Sanabria Court stated: "A mistake in designating the judgment appealed from is not always fatal, so long as the intent to appeal from a specific ruling can fairly be inferred by probing the notice and the other party was not misled or prejudiced." Id. at 67 n. 21,...