U.S. v. Meacham

• Decision Date: 26 September 1980
• Docket Number: No. 79-5190,79-5190
• Citation: 626 F.2d 503
• Parties: 7 Fed. R. Evid. Serv. 1038 UNITED STATES of America, Plaintiff-Appellee, v. Thomas MEACHAM, Joseph Ward, Edward William Gilroy, Bobby Gene Hayes and Donald L. Metsger, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 503

626 F.2d 503

7 Fed. R. Evid. Serv. 1038

UNITED STATES of America, Plaintiff-Appellee, v. Thomas MEACHAM, Joseph Ward, Edward William Gilroy, Bobby Gene Hayes and Donald L. Metsger, Defendants-Appellants.

No. 79-5190.

United States Court of Appeals Fifth Circuit.

Sept. 26, 1980.

Barry Hess, Mobile, Ala., for Meacham.

Howard M. Zeidwig, Fort Lauderdale, Fla., for Ward.

Theodore S. Worozbyt, Atlanta, Ga., for Gilroy and Hayes.

Thomas M. Haas, Mobile, Ala., for Metsger.

Wm. A. Kimbrough, Jr., U. S. Atty., William R. Favre, Jr., Asst. U. S. Atty., Mobile, Ala., for the U. S.

Appeals from the United States District Court for the Southern District of Alabama.

Before WISDOM, POLITZ and SAM D. JOHNSON, Circuit Judges.

POLITZ, Circuit Judge:

Appellants Thomas Meacham, Joseph Ward, Edward William Gilroy, Bobby Gene Hayes and Donald L. Metsger, along with three others, were indicted on three counts of violating laws relating to controlled substances. Count One charged that the eight had attempted in violation of 21 U.S.C. § 846 to possess marijuana with intent to distribute. Count Two charged that they had conspired in violation of 21 U.S.C. § 846 to attempt to distribute marijuana and to possess it with the intent to distribute. Count Three charged that they had conspired in violation of 21 U.S.C. § 963 to attempt to import marijuana. Meacham pleaded guilty to Count Three, and the other charges were dropped. Ward, Gilroy, Hayes and Metsger were tried. At the close of the government's case, the court granted the defendants' motions to dismiss Count One. ¹ Ward, Gilroy and Hayes were convicted on Counts Two and Three; Metsger was convicted on Count Three and acquitted on Count Two. ²

This appeal presents a plethora of issues. Meacham makes a three-pronged attack on the validity of his guilty plea. The four other appellants claim that Counts Two and Three failed to charge an offense. ³ Hayes and Gilroy complain that the conduct of the government agents who investigated the conspiracy was so "outrageous" that the charges should have been dismissed. Ward claims that the district court's refusal to allow him to cross-examine a government witness concerning certain recorded telephone conversations deprived him of his Sixth Amendment right to confront witnesses against him. And, finally, Ward and Metsger complain of the district court's refusal to sever Ward's trial from theirs. Having concluded that Counts Two and Three do not charge an offense, we reverse all the convictions and vacate Meacham's guilty plea.

FACTS

The evidence establishes that the appellants conspired to import marijuana from Colombia into the United States. They arranged to have a pilot named Travis Paul and a copilot Paul had selected fly from Ocean Springs, Mississippi, to Colombia to get a load of marijuana. The two pilots were to have flown the marijuana from Colombia to a small airstrip in Newborn, Georgia. Much to the appellants' distress, Paul turned out to be a Drug Enforcement Administration (DEA) informant, and the copilot turned out to be an undercover agent. On October 8, 1978, at the direction of the appellants, Paul and the copilot began their flight in a plane owned by Metsger. ⁴ Just before reaching the Colombian coast, the plane developed fuel problems and crash-landed in the sea. The crew of a passing ship rescued Paul and the copilot.

On the night of October 10, DEA Special Agent Jack Taylor, who was in charge of the investigation, staged the return of Paul and the copilot to Newborn. Two of the defendants were apprehended at the Newborn airstrip that night. The others were arrested during the following weeks.

It seems likely that, by using the evidence introduced at trial, the government successfully could have prosecuted the appellants on charges of conspiring to import, of conspiring to possess with intent to distribute, of attempting to import or of attempting to possess with intent to distribute. But the government instead charged something new conspiracy to attempt. It is the effect of this creative indictment-scrivening that we must consider.

Conspiracy to Attempt

Count Two of the Indictment alleged a violation of 21 U.S.C.S. § 846, and Count Three alleged a violation of 21 U.S.C.S. § 963. These statutes are identical. They provide:

Any person who attempts or conspires to commit any offense defined in this title is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

"This title" as used in § 846 refers to the Controlled Substances Act. "This title" as used in § 963 refers to the sections in the drug abuse chapter on Imports and Exports. ⁵ Each of the statutes is a part of Chapter 13 of Title 21 of the United States Code.

Count Two of the indictment alleged that the defendants "did conspire to attempt" to violate 21 U.S.C. § 841, the substantive-offense statute that proscribes the possession of marijuana with intent to distribute. Count Three alleged that the defendants "did conspire to attempt" to violate 21 U.S.C. § 952, the substantive-offense statute that proscribes the importation of marijuana.

Sufficiency of Indictments

The leading case concerning the sufficiency of indictments is Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), in which the Court declared:

In a number of cases the Court has emphasized two of the protections which an indictment is intended to guarantee, reflected by two of the criteria by which the sufficiency of an indictment is to be measured. These criteria are, first, whether the indictment 'contains the elements of the offense intended to be charged, "and sufficiently apprises the defendant of what he must be prepared to meet," ' and, secondly, ' "in case any other proceedings are taken against him for a similar offence, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction." Cochran and Sayre v. United States, 157 U.S. 286, 290, (15 S.Ct. 628, 630, 39 L.Ed. 704); Rosen v. United States, 161 U.S. 29, 34, (16 S.Ct. 434, 480, 40 L.Ed. 606).'

369 U.S. at 763-64, 82 S.Ct. at 1047. See also United States v. Contris, 592 F.2d 893 (5th Cir. 1979); United States v. Guthartz, 573 F.2d 225 (5th Cir.), cert. denied, 439 U.S. 864, 99 S.Ct. 187, 58 L.Ed.2d 173 (1978); United States v. Smith, 523 F.2d 771 (5th Cir. 1975), cert. denied, 429 U.S. 817, 97 S.Ct. 59, 50 L.Ed.2d 76 (1976). The first criterion listed by the Supreme Court has two parts. In addition to apprising the defendant of what he must meet, an indictment must allege each element of the offense charged. United States v. Mullens, 583 F.2d 134 (5th Cir. 1978); United States v. Purvis, 580 F.2d 853 (5th Cir. 1978), cert. denied, 440 U.S. 914, 99 S.Ct. 1229, 59 L.Ed.2d 463 (1979); Honea v. United States, 344 F.2d 798 (5th Cir. 1965). It is axiomatic that the elements alleged must amount to an offense. As we noted in United States v. London, 550 F.2d 206, 211 (5th Cir. 1977), "The questions whether an indictment sufficiently apprises a defendant of the charges against him and whether an indictment states an offense are both conceptually and procedurally distinct."

Here, as in Russell, the indictment clearly satisfies the second Russell requirement. The appellants should have no difficulty knowing to what extent this indictment protects them from being put in double jeopardy. The indictment also satisfies the second half of the first Russell requirement, i. e., that the defendants be apprised of what they are to be prepared to meet. Because, however, the elements listed in the indictment failed to state an offense against the United States, the indictment was insufficient and should have been dismissed.

The Charges

The appellants were convicted of conspiracies: conspiracy to attempt to import marijuana and conspiracy to attempt to distribute marijuana and to possess it with the intent to distribute. In order successfully to prosecute a conspiracy, the government must be able to point to two separate provisions: one making the act of conspiring a crime and one making the object of the conspiring a crime. United States v. Clay, 495 F.2d 700 (7th Cir.), cert. denied, 419 U.S. 937, 95 S.Ct. 207, 42 L.Ed.2d 164 (1974); Powe v. United States, 109 F.2d 147 (5th Cir.), cert. denied, 309 U.S. 679, 60 S.Ct. 717, 84 L.Ed. 1023 (1940). The language of §§ 846 and 963 underscores this proposition; the sections make it a crime to conspire to commit an "offense defined in this title."

The indictment in this case alleged that the crimes the appellants had conspired to commit were (1) attempting to possess marijuana with the intent to distribute and (2) attempting to import marijuana. The parties are in disagreement over whether the government can point to a provision making these attempts criminal. The parties agree that, absent a statute providing to the contrary, an attempt to commit a federal offense is not itself a federal offense. United States v. York, 578 F.2d 1036 (5th Cir.), cert. denied, 439 U.S. 1005, 99 S.Ct. 619, 58 L.Ed.2d 682 (1978). The government contends that §§ 846 and 963 make certain attempts criminal. We agree. It is the next step in the government's argument that occasions the problem. The government asserts that the sections simultaneously create two substantive offenses and provide the government with the authority to prosecute conspiracies to commit those offenses.

Without question §§ 846 and 963 make certain attempts and conspiracies criminal. These statutes could have been used to prosecute the appellants for conspiring to violate or for attempting to violate the substantive-offense provisions of the drug laws to which they apply. But this was not done. The government seeks yeoman's performance out of §§ 846 and 963 by using them as conspiracy statutes and as substantive-offense statutes through which the...