U.S. v. Paiz

• Decision Date: 21 June 1990
• Docket Number: 89-1285,89-1307,Nos. 89-1264,89-1308 and 89-1315,89-1304,89-1282,s. 89-1264
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sam PAIZ, Douglas Rector, Dick Selby, Leann Cooper, Joe Rector, Barbara Allen, and Tim Rector, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1014

905 F.2d 1014

UNITED STATES of America, Plaintiff-Appellee, v. Sam PAIZ, Douglas Rector, Dick Selby, Leann Cooper, Joe

Rector, Barbara Allen, and Tim Rector,

Defendants-Appellants.

Nos. 89-1264, 89-1282, 89-1285, 89-1304, 89-1307, 89-1308

and 89-1315.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 15, 1990.

Decided June 6, 1990.

As Modified June 21, 1990.

Rehearing and Rehearing En Banc Denied in No. 89-1315 Sept.

13, 1990.

Andrew B. Baker, Jr., Asst. U.S. Atty., Hammond, Ind., for U.S Sean T. Maloney, Chapman & Cutler, Chicago, Ill., for Sam Paiz.

John L. Kelly, Jr., Vegter, Fisher, Kelly & O'Toole, Merrillville, Ind., for Douglas Rector.

David L. Chidester, Valparaiso, Ind., for Dick Selby.

Charles W. Lahey, South Bend, Ind., for Leann Cooper.

Clifford L. Davis, Tallahasse, Fla., for Joe Rector.

Donald W. Pagos, Sweeney, Dabagia, Donaghue & Thorne, Michigan City, Ind., for Barbara Allen.

Clyde M. Taylor, Jr., Tallahasse, Fla., for Tim Rector.

Before CUMMINGS and CUDAHY, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

Joe Rector and his sons Ron, Doug, and Tim were drug dealers. They obtained drugs in Indiana and Nebraska, then shipped them "downstream" to Florida or New York where they moved the drugs to others in the drug-distribution pipeline. This group, Rector & Sons, ¹ was caught. Joe, Doug, Tim, and a host of others who worked from time to time with Rector & Sons were prosecuted in federal court, convicted there, and sentenced. This consolidated criminal appeal involves a number of issues raised by some of these persons, individually or en masse, with respect to happenings below.

I.

The Rectors were in the marijuana business. In July 1983, Doug Rector and others picked marijuana in Indiana and drove it down to Florida. In October 1983, Joe Rector, Doug Rector, and others went to Nebraska to pick marijuana. After a plentiful harvest, things went awry; police seized the gathered marijuana, arresting Joe and Doug. Despite this setback, the Rectors' drug-dealing ambitions remained high. Business continued. From 1983 to 1985 Tim Rector bought marijuana from Indiana suppliers and drove or had it shipped to him in Florida. Some of the marijuana obtained by these suppliers was from Sam Paiz, who had picked it in Nebraska. Though the business was good, relationships between the distributors were not always cordial. This is evidenced by an argument Paiz had with some Indiana suppliers over wet marijuana, an argument observed by Joe Rector.

In 1984 the Rectors suffered another setback. One of Tim Rector's Indiana suppliers shipped some marijuana to Doug Rector's house in Florida. The police seized it there, and Doug Rector was arrested, convicted, and incarcerated. His absence from the business left a void, but it was soon filled by brothers Tim and Ron. They expanded the presence of their network: Tim found new markets in Florida; Ron, with the help of Paiz, secured new sources of supply in Indiana.

In January 1986, Doug was released from jail. Upon his return to Rector & Sons, business boomed. Doug secured a new customer in New York, Edguardo Velez, and shipped him marijuana he obtained in Indiana from Paiz and brother Ron. Velez also made occasional trips to Florida. On one trip he obtained a "load" of marijuana, about 200 pounds, from Joe Rector. Business was good for the Rectors and good for Velez, but, again, relationships were not always cordial. At one meeting among Velez, Joe, Doug, and Tim, Joe told Velez, "Make sure that you don't say anything about [the marijuana deals] because you will look funny in a pine box." And, as always, the business suffered setbacks: one of Doug's transporters, for example, was twice arrested--once in Pennsylvania, once in New Jersey--while running marijuana to New York.

As the volume of deals grew, bottlenecks developed in the supply end of the business, particularly in the transport phase. Thus, Ron Rector had persons recruited to drive marijuana from Indiana to Florida (where the marijuana could be distributed in South Florida or reshipped to New York). Many persons became involved as drivers or drivers' chaperons for Ron or brother Tim. Sam Paiz was one of them. Barbara Allen, Leann Cooper, and Dick Selby were others. Allen, Cooper, and Selby also transported marijuana from Nebraska to Florida.

The supply bottlenecks were overcome, and 1986 was a banner year for Rector & Sons. Ron secured marijuana in Indiana and Nebraska, Doug sold it in Florida and elsewhere. Tim did a little of both. Joe handled finances. Paiz was involved in transport, as were Allen, Cooper, and Selby. The scheme generated lots of cash and benefits for everyone.

The good times continued until the spring of 1987. The last known transaction was a March 1987 shipment of marijuana from Ron in Indiana to Doug in New York.

II.

On May 12, 1988, a grand jury returned an indictment against 36 defendants. On October 13, 1988, the indictment was superseded, a new 38 count indictment issuing against 20 defendants. Among those 20 were the appellants: Sam Paiz, Doug Rector, Dick Selby, Leann Cooper, Joe Rector, Barbara Allen, and Tim Rector. All of them were charged, in Count 3, with conspiracy to distribute and to possess with intent to distribute marijuana, in violation of 21 U.S.C. Sec. 846. Sam Paiz also was charged with six counts of possession of over 50 kilograms of marijuana with intent to distribute it, in violation of 21 U.S.C. Sec. 841(a)(1). Doug Rector similarly was charged with nine counts of possession. He also was charged with four counts of travel in interstate commerce to facilitate the unlawful distribution of marijuana, in violation of 18 U.S.C. Sec. 1952(a)(3). Dick Selby was charged additionally with one count of violating 21 U.S.C. Sec. 841(a)(1) and one count of violating 18 U.S.C. Sec. 1952(a)(3). Tim Rector, in addition to being charged with conspiracy, was charged with six counts of 21 U.S.C. Sec. 841(a)(1) violations involving marijuana (five involving over 50 kilograms of marijuana, one involving a lesser amount), two counts of 21 U.S.C. Sec. 841(a)(1) violations involving cocaine, and six counts 18 U.S.C. Sec. 1952(a)(3) violations. The appellants were arraigned. They entered pleas of not guilty.

On November 29, 1988, trial by jury began. On December 22, 1988, the jury returned its verdict. It found all of the appellants guilty of violating 21 U.S.C. Sec. 846, as charged in Count 3. It also found Sam Paiz guilty of five of his possession counts, Doug Rector guilty of seven of his possession counts and all four of his Travel Act counts, Tim Rector guilty of five of his marijuana possession counts (four involving over 50 kilograms of marijuana, one involving less), but not guilty of his other counts, and Dick Selby not guilty of his possession counts. Motions for judgment of acquittal were made and denied.

We now face a flood of issues concerning these convictions. We address only those with arguable merit.

The first concerns a purported variance between the indictment and the proof at trial. The appellants all made motions for judgment of acquittal on Count 3, claiming that the one broad conspiracy charged therein, encompassing 117 overt acts and running from "the early part of 1983" to the "first part of April or May of 1987," was not borne out by the evidence at trial, which they believe showed, instead, a host of multiple, narrower, conspiracies. The appellants claimed, in the words of Justice Rutledge, that "[c]riminal they may be, but it is not the criminality of [one] mass conspiracy." See Kotteakos v. United States, 328 U.S. 750, 773, 66 S.Ct. 1239, 1252, 90 L.Ed. 1557 (1946). They also claimed that the purported variance caused prejudice to their "substantial rights." The district court found their claims lacking and denied their motions.

The appellants argue that the district court erred. They assert that our review of its decision should turn on the following question: "Did the evidence at trial show the occurrence of one overall conspiracy, as charged in the indictment, or the occurrence of multiple, narrower, conspiracies?" If we were to tackle this question we would start with the definition of conspiracy: A conspiracy is "a combination or confederation between two or more people formed for the purpose of committing by their joint efforts, a criminal act," United States v. Mayo, 721 F.2d 1084, 1088 (7th Cir.1983); see also United States v. Whaley, 830 F.2d 1469, 1473 (7th Cir.1987), cert. denied, 486 U.S. 1009, 108 S.Ct. 1738, 100 L.Ed.2d 202 (1988); United States v. Herrera, 757 F.2d 144, 149 (7th Cir.1985), the gist of which "is an agreement among the conspirators to commit an offense, attended by an act of one or more of them to effect the object of the conspiracy." United States v. Bruun, 809 F.2d 397, 405 (7th Cir.1987). Armed with this definition we then would examine the proof and identify the conspiracy or conspiracies therein by determining the agreement or agreements (attended by overt acts), the parties thereto, and the illegal purpose or object of each. Having done so, we next would inquire whether the conspiracy or one of the conspiracies shown was that which was charged in Count 3. This inquiry would involve the identification of each conspiracy's bounds. To do this we would scrutinize the agreement around which the conspiracy turned, for "[t]he scope of the agreement determines the scope of the conspiracy," id., and, in this particular context, "[i]t is the nature and scope of the agreement that is the determinative factor in distinguishing between single and multiple conspiracies." United States v. Sababu, 891 F.2d 1308, 1322 (7th Cir.1989); United States v. Napue, 834 F.2d 1311, 1332 (7th Cir.1987); United States v. Towers, 775 F.2d 184, 189 (7th Cir.1985).

These things we would do were we to take up the question suggested by the appellants. But we will not take...