U.S. v. Rosen

• Decision Date: 01 July 1985
• Docket Number: No. 84-5220,84-5220
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard A. ROSEN, Robert Esson Rew and David Benton Holmes, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 763

764 F.2d 763

UNITED STATES of America, Plaintiff-Appellee, v. Richard A. ROSEN, Robert Esson Rew and David Benton Holmes,

Defendants-Appellants.

No. 84-5220.

United States Court of Appeals, Eleventh Circuit.

July 1, 1985.

David Caywood, Memphis, Tenn., Charles O. Farrar, Jr., Coral Gables, Fla., for R. Rosen.

Bruce E. Wagner, Ft. Lauderdale, Fla., for R. Rew.

Jon A. Sale, Ira N. Loewy, Benedict A. Kuehne, Miami, Fla., for D. Holmes.

Stanley Marcus, U.S. Atty., Linda Collins-Hertz, Sonia O'Donnell, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before RONEY and TJOFLAT, Circuit Judges, and BROWN ^*, Senior Circuit Judge.

PER CURIAM:

Defendants Rosen, Rew and Holmes were convicted of various charges involving conspiracy, attempt, and importation relating to the smuggling of marijuana to the United States from Jamaica. On appeal defendants claim (1) insufficiency of the evidence; (2) inconsistency of the evidence with the charges in the indictment; and (3) erroneous sentencing in that the statutory maximum sentence for importation or attempted importation was exceeded. We affirm the convictions but hold the statutory maximum sentences were exceeded, which the Government does not contest, and remand to the district court for resentencing.

Rosen and Rew are pilots who flew an aircraft to Jamaica on September 2, 1981, to pick up a load of marijuana, but returned empty a day later, apparently because of a scheduling problem. The plan to bring in the marijuana was devised by codefendants Holmes and Savage. After the Jamaican mishap, Rosen refused to continue in the scheme. Rew and Savage, presently a fugitive, and codefendant Webster, who testified for the Government and was not prosecuted in this action, planned a further smuggling flight, this time from Colombia. Testimony at trial indicated that Rew piloted this plane, which crashed in rural St. Lucie County with 28 bales of marijuana aboard on October 19, 1981.

Viewed in the light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), the evidence was sufficient to convict Rosen and Rew of conspiracy and attempt. Guilt of conspiracy can be inferred from a "development and collection of circumstances." Id. Rosen claims that he was actually a confidential informer for the Government, but the record indicates that he was heavily involved in the drug trade outside of his informant "duties." The same is true of Rew, who claims he went along only because of Rosen's status.

The defendants' objective acts in attempting to import marijuana were unequivocal. The only reason Rosen and Rew returned empty-handed from Jamaica is that the marijuana was not ready when they arrived and the plane had picked up a military escort on the way down. Defendants' acts clearly supported the attempt conviction. See United States v. Mandujano, 499 F.2d 370 (5th Cir.1974), cert. denied, 419 U.S. 1114, 95 S.Ct. 792, 42 L.Ed.2d 812 (1975); United States v. McDowell, 705 F.2d 426 (11th Cir.1983).

As for Rew's conviction of marijuana importation, the Government had to prove only that Rew aided and abetted the importation. United States v. Brooks, 703 F.2d 1273 (11th Cir.1983). A review of the record shows that a reasonable jury could have found that Rew flew the ill-fated October 19, 1981 flight from Colombia which crashed in St. Lucie County with approximately 1400 pounds of marijuana packed in 28 bales aboard.

Rew's claim that the Government failed to prove the substance found aboard the crashed airplane was marijuana is meritless. The officers who investigated the crash scene were experienced and had identified marijuana on numerous prior occasions. Their testimony was sufficient for a reasonable jury to find the substance to be marijuana. See United States v. Sanchez, 722 F.2d 1501 (11th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 2396, 81 L.Ed.2d 353 (1984); United States v. Jones, 480 F.2d 954 (5th Cir.1973), cert. denied, 414 U.S. 1071, 94 S.Ct. 582, 38 L.Ed.2d 476 (1974); United States v. Ferguson, 555 F.2d 1372, 1373 (9th Cir.1977).

Holmes' argument that a variance existed between the proof at trial and the indictment is based on an allegation that the evidence at trial proved two separate conspiracies while the indictment alleged only a single conspiracy. Whether one or multiple conspiracies are proven depends on whether the evidence demonstrates a "single enterprise." Kotteakos v. United States, 328 U.S. 750, 769, 66 S.Ct. 1239, 1250, 90 L.Ed. 1557 (1946). That is a jury question. United States v. Michel, 588 F.2d 986, 995 (5th Cir.1979), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1980). No evidence in the record suggests the jury acted unreasonably in finding that Holmes was involved in a single marijuana conspiracy. The only goal of the conspiracy was to import marijuana. The fact that Holmes did not personally involve himself in the second flight from Colombia does not establish two separate conspiracies when the goal remained the same.

The Government agrees with defendant Holmes that the trial court erred in sentencing him to 12 years and fining him $25,000 on Count II, which charged him with intent to import marijuana. The maximum sentence for such a charge is five years imprisonment and a $15,000 fine. 21 U.S.C.A. Secs. 960(b)(2); 963. The only dispute is whether the whole sentence should be remanded for resentencing on both counts in Holmes' conviction or whether resentencing should be restricted to the one count. Holmes' sentence was as follows:

FIVE (5) YEARS as to Count 1. It is adjudged that on Count 2 that the defendant is hereby committed to the custody of the Attorney General ... for imprisonment for a term of TWELVE (12) YEARS. It is the further order of this Court that the defendant is fined the sum of $15,000 as to Count 1, and $25,000 as to Count 2. The fine in Count 2 is cumulative to that in Count 1....

The court could possibly have given a heavier sentence on Count I. The enhanced penalty provision of 21 U.S.C.A. Sec. 841(b)(6) was applicable there, because more than 1,000 pounds of marijuana was involved, but could not affect Count II.

The Third Circuit has held that in a direct appeal from multiple count criminal convictions, where the several sentences are interdependent, an appellate court may vacate all sentences even if only one is reversed on appeal. United States v. Busic, 639 F.2d 940, 947 (3rd Cir.), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981). There, defendants LaRocca and Busic were convicted on a multi-count indictment of narcotics and possession of firearms counts, and on two counts of armed assault on federal officers is violation of 18 U.S.C.A. Sec. 111. LaRocca was the triggerman and Busic an aider and abettor, although derivatively a principal under 18 U.S.C.A. Sec. 2. LaRocca was also convicted of using a firearm in a felony, 18 U.S.C.A. Sec. 924(c)(1), and Busic of carrying a firearm during a federal felony in violation of 18 U.S.C.A. Sec. 924(c)(2). They were sentenced to a total of 30 years imprisonment: five years on concurrent narcotics sentences, five as concurrent terms on the firearms and assault charges, and twenty for the Sec. 924(c) violations.

After a granting of rehearing, at which it was determined that LaRocca's sentence could not be augmented under both section 111 and section 924(c), then a reversal and remand by the Supreme Court, see Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980), which vacated the sentences imposed under section 924(c), the question before the court was whether it could vacate not only the erroneous section 924(c) sentences, but also those lawfully imposed under section 111. As in the instant case, the Government sought remand on the unchallenged counts because under those counts the district court could resentence the defendants under a special enhancement provision. The Supreme Court had noted the problem of remanding unchallenged counts for resentencing but refused to address it. Busic, 446 U.S. at 412, n. 19, 100 S.Ct. at 1756 n. 19.

The circuit court in Busic carefully analyzed the issue for double jeopardy concerns and found none. There was no question of multiple punishments for the same offense, only a resentencing to replace a sentence held invalid by the Supreme Court. 639 F.2d at 947. See also North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); United States v. Hodges, 628 F.2d 350 (5th Cir.1980). The court held that all sentences, challenged or not, could be remanded for resentencing "which may be greater than, less than, or the same as the original sentence." 639 F.2d at 953. To the argument that the court could not remand an unchallenged sentence, the court noted that "[w]hen a defendant challenges one of several interdependent sentences, he, in effect, challenges the entire sentencing plan." 639 F.2d at 947, n. 10.

Such is the case here. Holmes is challenging his entire conviction on direct appeal, not simply his sentence on Count II. His sentences are interdependent. They stem from the same criminal transaction.

Alleging that a double jeopardy violation will occur if the district court resentences him for a conviction on Count I,...