U.S. v. Pupo

• Decision Date: 10 March 1988
• Docket Number: 86-5152,Nos. 86-5151,s. 86-5151
• Citation: 841 F.2d 1235
• Parties: UNITED STATES of America, Plaintiff-Appellee v. Alfonso Adalberto PUPO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. George GOVANTES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1235

841 F.2d 1235

UNITED STATES of America, Plaintiff-Appellee v. Alfonso Adalberto PUPO, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. George GOVANTES, Defendant-Appellant.

Nos. 86-5151, 86-5152.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 1, 1987.

Decided March 10, 1988.

Rehearing Denied in No. 86-5152 April 22, 1988.

Philip Steward Marstiller, Richmond, Va., (J. Jay Litten, Litten, Sipe and Miller, Harrisonburg, Va., Barbara J. Gaden, Jeffrey C. Southard, Hazel, Thomas, Fiske, Beckhorn & Hanes, P.C., Richmond, Va., on brief); Milton Gordon Widenhouse, Jr., Raleigh, N.C., Todd Clark Conormon, for defendants-appellants.

Sara Bradkin Criscitelli, Dept. of Justice, Washington, D.C., William Graham Otis, Asst. U.S. Atty., Alexandria, Va., (Samuel T. Currin, U.S. Atty., Raleigh, N.C., Henry E. Hudson, U.S. Atty., Alexandria, Va., on brief), for plaintiff-appellee.

Before WINTER, Chief Judge, and RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, ERVIN, CHAPMAN, WILKINSON and WILKINS, Circuit Judges, sitting en banc.

DONALD RUSSELL, Circuit Judge:

Appellants Pupo and Govantes were indicted for (I) conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. Sec. 846 (1982); (II) interstate travel in aid of a racketeering enterprise in violation of 18 U.S.C. Sec. 1952(a) (1982); (III) possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) (1982); and (IV) distribution of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) (1982). Pupo alone was also indicted for (V) use of a communications facility in furtherance of a narcotics offense in violation of 21 U.S.C. Sec. 843(b) (1982). At the close of the government's case the court granted the defendants' motion for judgment of acquittal as to Count II. Pupo's objection, entered at that time, was that counts III and V of the indictment were invalid for failure to include an essential element of the crime charged. The omission was the failure to include a scienter allegation ("knowingly or intentionally"). In reaching its conclusion the district court relied on United States v. Arteaga-Limones, 529 F.2d 1183 (5th Cir.1976), cert. denied, 429 U.S. 920, 97 S.Ct. 315, 50 L.Ed.2d 286 (1976). After submission to the jury, Govantes was later convicted on Count I and given a five-year sentence with immediate eligibility for parole. He was acquitted on Counts III and IV. Pupo was convicted on all four remaining charges. For Counts I, III, and IV he received twelve-year sentences to be served concurrently; for Count V he received a four-year sentence, also to be served concurrently.

The appellants appealed their convictions asserting numerous errors. We find no merit in any of the alleged claims of error with the exception of the contention of invalidity in Counts III and IV of the indictment. These cases were originally heard by a panel different from that in United States v. Hooker, 841 F.2d 1225, decided along with these cases but in a separate opinion. Because these cases and Hooker involved primarily the same dispositive legal issues, we consolidated the cases for hearing en banc, but we decide the cases in separate opinions, which are being filed simultaneously.

We accordingly reverse Pupo's convictions on Counts III and IV because the indictments were fatally defective and affirm all other objections.

I.

Govantes individually contends that the evidence was insufficient to support his conviction for conspiracy to distribute cocaine. The evidence shows that on May 10, 1986, Govantes accompanied Pupo from Florida to North Carolina where they were met by Winford Grainger and Raymond Allen. When the four men arrived at Allen's auto shop, Govantes brought in a tote bag, and Pupo opened it. The bag contained a sizeable quantity of cocaine, which Allen tested in the presence of the others. Again in Govantes' presence the other three men discussed the purity of the cocaine. Allen then removed the cocaine from the office and returned with a small quantity, which all four men snorted. Govantes and Pupo then booked a nearby motel room in North Carolina where they remained for nearly three days. On May 13, 1986, Pupo received a telephone call at the motel from Allen during which Pupo and Allen discussed both the ongoing drug transaction and a possible future sale. During that conversation Allen said "George [Govantes] is going crazy, man."

Govantes argues that mere knowledge, acquiescence, or approval of a crime is not enough to establish that an individual is part of a conspiracy to distribute drugs. See United States v. Manbeck, 744 F.2d 360 (4th Cir.1984). Nor is mere presence at the scene of a distribution of drugs sufficient to prove participation in a conspiracy. See United States v. Soto, 716 F.2d 989 (2d Cir.1983). This statement of the law is, of course, correct. We cannot say, however, that a reasonable jury could not have concluded, from the evidence presented, that Govantes was a knowing participant in the conspiracy. He carried the tote bag containing the cocaine, and he remained in a motel room with Pupo for three days until Allen called to report that the transaction was complete. The jury could properly conclude that these actions were more consistent with participation than they were with mere acquiescence. The jury could further believe from Pupo's statement, "George is going crazy, man," that Govantes was a participant in the conspiracy.

Although the evidence of Govantes' participation in the conspiracy was not compelling, it was sufficient to support the verdict. We therefore affirm Govantes' conviction on Count I.

II.

The attack on Counts III and IV by Pupo is more serious. Counts III and IV were single-paragraph counts charging possession with intent to distribute and actual distribution of cocaine. ¹ A comparison between the elements of the offense shown in the indictment and the elements set out in the statute shows that both of these counts failed to allege, either expressly or through words of import, that the defendants acted "knowingly or intentionally." ² It is well established that an indictment is defective if it fails to allege elements of scienter that are expressly contained in the statute that describes the offense. Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861 (1932). "Knowingly or intentionally" is a definite element of the offense charged under 18 U.S.C. Sec. 841(a)(1) (1982). Under similar circumstances, we held in Finn v. United States, 256 F.2d 304, 306 (4th Cir.1958), that "[w]here willfulness or knowledge is made an element of the crime, the statutory requirement is not to be ignored. The charge must either include these terms, or words of similar import." ³ The words "knowingly or intentionally" themselves "or words of similar import" did not appear in the count attacked, and, therefore, the count was found defective. That case is apposite here.

We refuse to follow the case on which the district court relied in dismissing the objection, United States v. Arteaga-Limones, 529 F.2d 1183 (5th Cir.1976), cert. denied, 429 U.S. 920, 97 S.Ct. 315, 50 L.Ed.2d 286 (1976), in which the court held that scienter was adequately charged if the indictment also cited the statute itself. That position is contrary to our own precedents as well as the law in a majority of the circuits. See Finn, supra. We have uniformly dismissed on objection before verdict indictments for failure to include an essential statutory element despite the inclusion of a citation to the statute itself in the indictment. See United States v. Hooker, 841 F.2d 1225 (4th Cir.1988)); United States v. Hayes, 775 F.2d 1279, 1282 (4th Cir.1985); United States v. Pomponio, 517 F.2d 460, 461 (4th Cir.1975), cert. denied, 423 U.S. 1015, 96 S.Ct. 448, 46 L.Ed.2d 386 (1975). We hold that a mere citation to the applicable statute does not give the defendant notice of the nature of the offense. An indictment that must rely on a statutory citation does not "fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished." See Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907-08, 41 L.Ed.2d 590 (1974). Furthermore, a statutory citation does not ensure that the grand jury has considered and found all essential elements of the offense charged. It therefore fails to satisfy the Fifth Amendment guarantee that no person be held to answer for an infamous crime unless on indictment of a grand jury. See Hooker, supra.

As we stated in Hooker, when an indictment fails to include an essential element of the offense charged, it thereby fails to charge any federal offense and a conviction under the indictment may not stand, provided the omission is timely raised. Such an objection is timely filed at any time prior to verdict. Fed.R.Crim.P. 12(b). In this case, the objection was raised at the conclusion of the government's case and before verdict. The objection in this case was thus timely and should have been sustained. The argument of the government for a liberalization of the rule that the failure of the indictment to include an essential element of the crime would render the indictment in this case valid in this case overlooks that such liberalization is allowable only where the objection is raised after verdict. This is implicit in the language in Finn v. United States, supra, 256 F.2d at 307, in which Judge Sobeloff said:

Indictments and informations are construed more liberally after verdict than before, and every intendment is then indulged in support of the sufficiency.

The contention here was raised before verdict and the liberalization rule is inapplicable. Nor will the fact that the district judge in his jury instructions correctly identified all the elements of the crime charged render the omission in the indictment of such allegation harmless, provided,...