U.S. v. Smith, s. 81-1914
| Citation | 692 F.2d 693 |
| Decision Date | 01 November 1982 |
| Docket Number | 81-2080,Nos. 81-1914,s. 81-1914 |
| Parties | 11 Fed. R. Evid. Serv. 1924 UNITED STATES of America, Plaintiff-Appellee, v. Timothy SMITH, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Francis Leland Pico, Asst. U.S. Atty., Cheyenne, Wyo. (Richard A. Stacy, U.S. Atty., and Carol Statkus, Legal Intern, Cheyenne, Wyo., with him on the brief), for plaintiff-appellee.
Before HOLLOWAY, SEYMOUR and KELLY *, Circuit Judges.
Timothy Smith was convicted after a jury trial of conspiracy to distribute marijuana in violation of 21 U.S.C. Sec. 846 (1976). On appeal Smith contends that: (1) the indictment was insufficient; (2) venue was improper; (3) the trial court erred in permitting an alleged coconspirator to testify; (4) tape recorded conversations between the defendant and an undercover agent were erroneously admitted; and (5) there was insufficient competent evidence to support the conviction. We find these contentions to be without merit and affirm the conviction.
The government's case relied heavily on the testimony of Smith's alleged coconspirator, Kenneth Vann, who had pled guilty to conspiracy charges. Vann testified that he had met Smith about three years before. In the fall of 1978, Vann sold Smith about thirty pounds of Colombian marijuana in Fort Lauderdale, Florida. Several days later Smith returned about twenty pounds of that marijuana to Vann because of its poor quality. When Vann could not return it to his supplier, Smith agreed that Vann would take the marijuana to Wyoming and sell it so that Smith could get his money back. Vann thereafter sold the marijuana in Gillette, Wyoming, paying Smith part of the proceeds.
Later, Vann testified, he called Smith in Florida to ask if Smith could help him purchase some Sensimillian marijuana in Tulsa, Oklahoma, which would be more convenient for Vann because it was closer to Gillette than was Fort Lauderdale. Smith gave Vann the phone number of Joe Pierre in Tulsa, who on about three occasions supplied Vann with marijuana which he sold in Gillette. In November 1979, Vann met Smith and Pierre in Tulsa, where Smith "fronted" Vann about thirty pounds of Thai sticks (marijuana) worth about $16,000. Vann was to sell the marijuana and then pay Smith. When Vann returned to Gillette, he was unable to sell the marijuana and could not pay Smith the money he owed him.
Vann's testimony was corroborated by several other witnesses who testified that Vann knew Pierre and Smith. Charles Miller, one of Vann's friends in Gillette, testified that Smith called him three or four times looking for Vann. He also testified that he called Smith in January 1980, at which time Smith said Vann owed him about $20,000. Telephone records also showed that calls had been made between houses where Vann stayed in Gillette, and Pierre's house in Tulsa and Smith's number in Fort Lauderdale.
Kent Florence, a Drug Enforcement Administration agent, testified concerning six taped telephone conversations he had had with Smith between February 28 and May 29, 1980. The tapes were admitted into evidence. In those conversations, agent Florence represented himself as "Vern from Montana" and claimed to be looking for Vann, who owed him some money. Smith's responses indicated that he knew Vann and that Vann also owed him money. Tom Pagel, a special agent with the Wyoming Division of Criminal Investigation, testified that he had been present when Florence made the tapes. He also identified Smith's voice on the tapes, based on his meeting with Smith in June 1980.
Smith charges the indictment was fatally vague. It reads:
"Between approximately January 1, 1978 and December 31, 1980, in the District "It was part of this conspiracy that the Defendant TIMOTHY SMITH and co-conspirator Kenneth Vann supplied each other with various types of marijuana, such as Columbian, Sensimillian and Thai sticks, for purposes of resale and redistribution to others in Gillette, Wyoming, and elsewhere.
of Wyoming and elsewhere, the Defendant TIMOTHY SMITH did unlawfully, knowingly and intentionally conspire with Kenneth Vann and others as yet unknown, to distribute and possess with intent to distribute quantities of marijuana, a controlled substance.
"In violation of 21 U.S.C. Sec. 846."
Rec., vol. I, at 1. We begin by noting "that an indictment under section 846 need not allege overt acts and is basically sufficient if set out substantially in the words of the statute." United States v. King, 521 F.2d 61, 63 (10th Cir.1975) (per curiam). The indictment here meets that requirement.
Smith argues that the indictment is nevertheless inadequate to inform him fairly of the charge against which he was required to defend, and to enable him to plead former jeopardy in the event future proceedings are brought against him for a similar offense. See Russell v. United States, 369 U.S. 749, 763-66, 82 S.Ct. 1038, 1046-48, 8 L.Ed.2d 240 (1962). Smith refers us to United States v. Cecil, 608 F.2d 1294 (9th Cir.1979), where the Ninth Circuit held invalid an allegedly similar indictment:
In this case, however, we do not have an open-ended time frame but a beginning date of January 1, 1978, and an ending date of December 31, 1980. In addition, although Vann is the only coconspirator named, this was not a large conspiracy, and he was the most significant individual in the picture of the conspiracy that the prosecution presented to the jury. Moreover, the indictment contains additional facts not included in the Cecil indictment. It lists three types of marijuana that Smith and Vann allegedly supplied each other, and specifies Gillette, Wyoming, as one site for its resale. These details satisfy us that the indictment was sufficient to inform Smith fairly of the charge against him. Moreover, "this is not a case where the grand jury may have had a concept of the scheme essentially different from that relied on by the Government before the trial jury." United States v. Radetsky, 535 F.2d 556, 565 (10th Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 68, 50 L.Ed.2d 81 (1976).
Smith was also provided a bill of particulars by the Government. As we noted in Radetsky:
Id. at 563 (citations omitted). The bill of particulars in this case incorporated the transcript of a statement by Vann. Although it was supplied only three weeks before trial and specific dates of alleged transactions were not included, we believe that Vann's statement was sufficiently specific to enable Smith to prepare a defense. Furthermore, defense counsel was allowed to inspect the government's file and the grand jury testimony of witnesses about eight days before trial and on the day of trial, respectively. Transcripts of the tapes were provided, and the tapes were made available for inspection or copying shortly after arraignment.
Finally, our review of the indictment, the bill of particulars, and the record satisfies us that Smith is fully protected against the possibility of double jeopardy from future prosecutions. See id.
VENUE
Smith contends that venue was improper in the District of Wyoming because the alleged crime was not committed there and he had never been in Wyoming. Smith's argument lacks merit because "[i]t is settled that 'venue as to prosecution of all members of a conspiracy lies either in the jurisdiction in which the conspiratorial agreement was formed or in any jurisdiction in which an overt act in furtherance of the conspiracy was committed by any of the conspirators.' " United States v. Petersen, 611 F.2d 1313, 1333 (10th Cir.1979) (quoting United States v. Overshon, 494 F.2d 894, 900 (8th Cir.1974)), cert. denied, 447 U.S. 905, 100 S.Ct. 2985, 64 L.Ed.2d 854 (1980). Clearly Vann's sales of marijuana in Gillette and his telephone calls to Pierre and Smith from Gillette were overt acts in furtherance of the conspiracy. Venue was proper in Wyoming whether or not Smith had ever been there himself.
COCONSPIRATOR TESTIMONY
Smith argues that it was error for the trial court to permit Vann to testify. He points out that under Petersen and United States v. Andrews, 585 F.2d 961 (10th Cir.1978), the admission...
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