U.S. v. Lurz

Decision Date10 December 1981
Docket NumberNos. 80-5024,80-5032,80-5037 and 80-5048,s. 80-5024
Citation666 F.2d 69
PartiesUNITED STATES of America, Appellee, v. Raymond Thomas LURZ, Jr., Appellant. UNITED STATES of America, Appellee, v. Charles Daniel MAGILL, Appellant. UNITED STATES of America, Appellee, v. Michael R. STEEDMAN, Appellant. UNITED STATES of America, Appellee, v. Mark Michael NOVAK, Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Daniel J. Mellin, Richard W. Winelander, Ransom J. Davis, Baltimore, Md. (Michael E. Marr, Marr & Bennett, P.A., Baltimore, Md., B. Edward McClellan, Laurel, Md., Melvin J. Kodenski, Baltimore, Md., on brief), for appellants.

Glenn L. Cook, Asst. U. S. Atty., Baltimore, Md. (Russell T. Baker, Jr., U. S. Atty., John A. MacColl, Asst. U. S. Atty., Baltimore, Md., on brief), for appellee.

Before PHILLIPS, MURNAGHAN and ERVIN, Circuit Judges.

MURNAGHAN, Circuit Judge:

Two counts in a criminal case brought in the United States District Court for the District of Maryland asserting drug violations here generate no less than eleven issues requiring resolution. Count I charged each of the original twenty-three defendants with conspiracy to manufacture, distribute, and possess phencyclidine (PCP), an offense under 21 U.S.C. §§ 841(a)(1) and 846. Count II charged two of the defendants, Raymond Thomas Lurz, Jr. and Michael Roy Steedman, with conducting a continuing criminal enterprise in violation of 21 U.S.C. § 848.

Following a trial of ten of the defendants, guilty verdicts were returned under Count I against Lurz and Steedman, and two other defendants, also parties to the present appeal, Mark Michael Novak and Charles Daniel Magill, as well as against three other defendants not parties to the appeal. Verdicts of guilty were also rendered under Count II against Lurz and Steedman.

In the course of sentencing, Lurz received thirty years on Count II, to be served concurrently with state and federal sentences imposed on him. He received a five year concurrent sentence under Count I. 1 Steedman was sentenced to five years under Count I, with a concurrent sentence of ten years under Count II. 2 Magill and Novak each received three year sentences under Count I.

Evidence at trial permitted a finding that, from the spring of 1977 to the end of March, 1978, Lurz and Steedman were leaders of, and suppliers to, a network of wholesale PCP distributors in the vicinity of Baltimore, Maryland. The testimony was also ample to connect Novak and Magill with the distribution in Maryland.

On March 31, 1978, Lurz, while in Maryland, bought for $5,000 from a Drug Enforcement Administration ("DEA") agent phenyl-magnesium bromide ("PMB") (a PCP precursor), and promised in return to deliver to the DEA agent one gallon of liquid PCP. Subsequent surveillance revealed meetings between Lurz and Steedman, one in particular just before the departure of Lurz to Florida to engage in PCP manufacture. At Lurz's arrest on April 25, 1978 in Florida for manufacturing PCP, forty-three pounds of crystal PCC, a chemical produced prior to PCP, were seized. The forty-three pounds could have been converted to 5,000 pounds of PCP flakes, having a wholesale value on the illicit drug market of about $6,500,000.

Under an indictment returned in the United States District Court for the Middle District of Florida, a year before his conviction in the case pending before us, Lurz was found guilty under § 846 of conspiracy to manufacture, and of two other offenses not pertinent here, and sentenced to three consecutive five year terms. United States v. Lurz, 611 F.2d 621 (5th Cir. 1980) (per curiam).

Issue No. 1-Lurz's double jeopardy claim

The primary assertion of Lurz is one of double jeopardy. Lurz's contention is that there was but one continuing conspiracy to manufacture and distribute, not two distinct ones (a) to manufacture and (b) to distribute. Having previously been convicted under § 846 for his Florida activities, the argument runs, he cannot again be convicted of the crime charged in Count I (the Maryland conspiracy) because it is the same crime. The argument would have more force had the manufacture clearly preceded the distribution. However, things were predominantly the other way around. The events comprising the Maryland distribution activities were largely, if not completely, over before the occurrences establishing the behavior of Lurz leading to production of PCP in Florida began. The time span in the Florida indictment was alleged to be March 3, 1978 to April 25, 1978, and the Maryland conspiracy was concluded in early 1978. 3 It was also shown that Lurz and another were, in December 1978, arranging to make PCP in California, an additional fact permitting a finding that the manufacture was separate and distinct from the Maryland distribution activities.

The district judge gave careful and repeated consideration (at two pretrial hearings, and again at trial, at the end of the government's case) to the question of whether there was one or were two conspiracies. He allowed Lurz full opportunity to develop the record and to present arguments for his position. We are satisfied that the determination that there were two independent conspiracies was not clearly erroneous. Preparation and distribution could, of course, be part of a single integrated operation. Viewed as an abstraction, it is no less likely, however, that a principal in the operation, here Lurz, could limit the distribution ring participants to disposition of PCP, while making other arrangements with other persons independent of the distributors for acquisition of PCP.

While prosecution for conspiracy to commit two crimes, based on proof of but a single conspiracy, infringes a defendant's protection against being placed twice in jeopardy, Braverman v. United States, 317 U.S. 49, 53, 63 S.Ct. 99, 101, 87 L.Ed. 23 (1942), United States v. Castro, 629 F.2d 456 (7th Cir. 1980), the rule does not apply where there are two distinct conspiracies, even though they may involve some of the same participants. E.g., United States v. Papa, 533 F.2d 815, 821-22 (2d Cir. 1976), cert. denied, 429 U.S. 961, 97 S.Ct. 387, 50 L.Ed.2d 329 (1976).

In Short v. United States, 91 F.2d 614 (4th Cir. 1937), our predecessors found that there was but a single conspiracy. However, the issue is factual and, where the facts are different, so may the conclusion differ. 4 Here it is not incumbent upon us to devote extensive attention to possible distinctions between the "same evidence" test, on the one hand, 5 and the more recent "full study of indictments and evidence" (or "totality of the circumstances") approach, on the other. 6 Under each, the determination that there were separate and distinct conspiracies is fully justified.

First, and perhaps as dispositive as anything, is the consideration that the participants in the manufacturing activities were largely different from those involved in distribution. Of the twenty-three defendants named in the distribution related indictment only Lurz and Novak 7 were also charged in the Florida indictment directed at manufacture. On the other side of the coin, all persons other than Lurz who were implicated in the Florida manufacture, or in steps preparatory thereto, were not accused of distribution: Barry Mullins, Dennis Witt, and Paul Arthur Noll. Nothing indicates any involvement of those three in activities to effect distribution. 8

Second, geographically the two activities were widely separated. The distributorship web was confined to Maryland. Lurz negotiated the PMB purchase in Maryland, but thereafter the PCP manufacture had an exclusively Florida focus.

Lurz, nevertheless, purports to find a flaw in the arguments supporting the conclusion of the district judge that there were two distinct conspiracies. The flaw, he contends, leaps to view because the government, for all its pious insistence on the independence of the Maryland distribution and the Florida manufacture, succeeded in getting testimony of the Florida production goings-on before the jury. The contention is clever, and leads to a momentary pause. Nonetheless it fails. Introduction of the Florida evidence came under Count II (continuing criminal enterprise) rather than Count I (conspiracy to distribute). 9 We discuss the propriety of the use of the Florida evidence for that purpose below.

Accordingly, we reject the contention that Lurz was exposed to double jeopardy by being prosecuted under Count I a second time for the same crime which had led to his conviction in Florida. He was not tried a second time for a single conspiracy of which the Florida activities were a part. Rather they comprised a separate conspiracy from the one which took place in Maryland.

Issue No. 2-Lurz's claim of error in admitting evidence of the Florida conspiracy to prove the continuing criminal enterprise

Undeterred, Lurz next argues that, even if the conspiracies were distinct, still the government subjected him to double jeopardy by using evidence of the Florida conspiracy (a crime under § 846), of which he already stood convicted, to prove Count II, the continuing criminal enterprise (a violation of § 848). Verbal logic provides support for Lurz's position. The rule is clear that § 846 is a lesser included offense of § 848. Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977). Furthermore, a prior conviction of a lesser included offense bars a subsequent conviction for the greater offense. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). The government explicitly concedes both propositions in its brief. 10

The contention ignores, however, the variety of elements comprising a continuing criminal enterprise for purposes of § 848. Five elements make up the offense:

1) a felony violation of the federal narcotics laws;

2) as part of a continuing series of violations;

3) in concert with five or more persons;

4) for whom the...

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