U.S. v. Smith

• Decision Date: 15 April 1985
• Docket Number: No. 84-3277,84-3277
• Citation: 757 F.2d 1161
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Timothy Rand SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1161

757 F.2d 1161

UNITED STATES of America, Plaintiff-Appellee, v. Timothy Rand SMITH, Defendant-Appellant.

No. 84-3277.

United States Court of Appeals Eleventh Circuit.

April 15, 1985.

Clyde M. Taylor, Jr., Tallahassee, Fla., for defendant-appellant.

David McGee, Asst. U.S. Atty., Tallahassee, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before JOHNSON and CLARK, Circuit Judges, and LYNNE ^*, District Judge.

JOHNSON, Circuit Judge:

A jury in the Northern District of Florida convicted Timothy Rand Smith of conspiracy to distribute cocaine, distribution of cocaine and four counts of using a communications facility to commit a felony. He was also convicted on related charges in the Western District of North Carolina. This is the appeal from the Florida trial.

The arrest in this case grew out of an FBI sting operation in which agents in Tallahassee, Florida, posed as money launderers and providers of other financial services in order to apprehend drug smugglers. Agent Pelligrino, who participated in the operation, met Smith in July of 1982. After Pelligrino had provided a number of financial services to Smith such as purchasing assets under a corporate name and filling out fraudulent tax returns, Smith asked if he was interested in buying a large quantity of cocaine. Pelligrino introduced Smith to Agent Howard Glavin, posing as a large-scale buyer of cocaine.

Smith and Glavin met twice in Pelligrino's office. At the first meeting Smith gave Glavin a 1.2 gram sample of the cocaine. The two men finalized their negotiations during the second meeting: Glavin agreed to purchase 10 kilograms of cocaine for $410,000 followed by 60 kilograms for $2,400,000. Smith mentioned that his source of cocaine, a Colombian family with whom he had dealt for several years, had "fronted" the cocaine (that is, they had given him the cocaine with the understanding that they would be paid from the proceeds of any eventual sale by Smith). He planned to deliver their share of the money to a Colombian man who served as their agent in Florida. Smith also told Glavin that he kept the cocaine in a "stash house" managed by an unnamed man.

Smith insisted that the exchange take place in Charlotte, North Carolina. The initial transfer of 10 kilograms took place as expected on September 13, 1983, in North Carolina and federal agents arrested Smith after the sale. He was indicted by grand juries in both North Carolina and Florida.

Before the trial in Florida, Smith moved for a continuance in order to develop evidence supporting his defense of entrapment or government overreaching. The court granted a one month continuance. At the end of that month, Smith moved for another continuance on the same grounds and for dismissal of the charges on double jeopardy grounds, claiming that the North Carolina and Florida trials involved the same offenses. The district court denied both motions. During the trial, the government asked that Smith's attorney be prevented from arguing inconsistent theories to the jury, namely, that Smith did not participate in any conspiracy and that Smith was entrapped. The court ruled that Smith would have to choose one defense and abandon the other. Afterwards, Smith moved for a severance of the conspiracy count from the other five counts, a motion denied by the court. The jury ultimately returned guilty verdicts on all six counts.

Smith challenges his conviction on four grounds: (1) one of the charges was barred on double jeopardy grounds, (2) the court abused its discretion in failing to grant the second motion for continuance, (3) there was insufficient evidence of a conspiracy to support a conviction, and (4) the court erred in forcing Smith's attorney to choose between competing theories in his arguments to the jury.

I. Double Jeopardy

In the Florida case, the government charged Smith with distribution of 1.2 grams of cocaine; it charged him with distribution of 10 kilograms of cocaine in the North Carolina case. Smith claims that the North Carolina case, tried several days before the Florida case, created a double jeopardy bar that should have prevented the government from trying him for distribution in Florida. ¹

Smith attempts to support his double jeopardy claim first by showing that each of the two trials turned on similar evidence and arguing that overlapping evidence indicates that two offenses are really the same for double jeopardy purposes under Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) and Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). Blockburger, however, merely states that two offenses are the same when the elements of one crime include all the elements of another crime. The fact that the same evidence appears in two different trials has some bearing on a double jeopardy claim, ² but in this case it is not enough to create a double jeopardy problem. The same evidence might be used to prove several distinct elements of different crimes. See United States v. Phillips, 664 F.2d 971, 1006 (5th Cir. Unit B 1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982).

Smith argues secondly that the distribution of the 1.2 gram sample and the distribution of the 10 kilograms were not two distinct criminal acts, but part of a single transaction. Congressional intent determines in large part whether the government may seek separate punishments for the distribution of a shipment of cocaine and a sample of that shipment, each distribution carried out pursuant to the same agreement. Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981).

The statute in question, 21 U.S.C.A. Sec. 841(a)(1), prohibits any person from distributing a controlled substance. Distribution is defined elsewhere in the statute as a delivery or an "actual, constructive, or attempted transfer of a controlled substance." 21 U.S.C.A. Secs. 802(8), (11). The language plainly indicates that the government may prosecute a person for each separate act of distribution even if one distribution facilitates the next one. United States v. McDonald, 692 F.2d 376 (5th Cir.1982), cert. denied, 460 U.S. 1073, 103 S.Ct. 1531, 75 L.Ed.2d 952 (1983). Of course, this court interprets statutes under the presumption that Congress would not allow the government to manipulate the charges against a person so as to obtain multiple punishments for what is in essence the same offense. Whalen v. United States, 445 U.S. 684, 691-92, 100 S.Ct. 1432, 1437-38, 63 L.Ed.2d 715 (1980). Yet the two distributions here took place on separate days and were, under any normal meaning of the word, separate "acts." Since the statutory offense here consists of a distinct physical act rather than a state of mind, cf. United States v. Flick, 716 F.2d 735 (9th Cir.1983), a single charge is not susceptible to improper subdivision.

Smith contends, however, that Congress could not have meant to punish separately the various distributions involved in a single drug transaction because allowing two convictions instead of one might make him prematurely eligible for severe sentencing under the special offender provisions of the statute, 21 U.S.C.A. Sec. 849. ³ But if Congress had meant to exempt from the special offender provisions persons such as Smith who make several distributions during the same overall transaction, it could have refined the definition of the offense or narrowed the definition of a special offender or placed some reference to the problem in the legislative history. It would not be unreasonable to treat Smith as a special offender. Under these circumstances, silence demonstrates that Congress understood the clear relationship between these two sections of the same subchapter. See Albernaz v. United States, 450 U.S. at 341-42, 101 S.Ct. at 1143-44. The government acted consistently with the intent of Congress in bringing these two distribution charges against Smith.

II. Motion for Continuance

The trial court granted the defendant's first motion for continuance on January 13, 1984, giving him one extra month in which to gather evidence to support his theory of governmental misconduct. The court denied the second motion, which was based on essentially the same grounds as the first motion, one month later. Smith claims that this was reversible error. In order to obtain relief on the basis of a denial of a motion for continuance, a defendant must show that the denial was an abuse of discretion and that it produced specific substantial prejudice. United States v. Wuagneux, 683 F.2d 1343, 1355-56 (11th Cir.1982), cert. denied, --- U.S. ----, 104 S.Ct. 69, 78 L.Ed.2d 83 (1983).

Smith alleged in the district court that the FBI had committed criminal acts and had engaged in general misconduct that might have been serious enough, if true, to have constituted a violation of due process. The defendant, however, never uncovered evidence to substantiate the allegations. He had five months from the time of arrest to the time of trial, including the one-month continuance granted in January. Yet he could not explain to the court in February why his future discovery efforts would be any more successful than his past efforts had been. The specific information he sought and his proposed discovery both appeared to be quite speculative; there was no substantial reason to believe that further discovery would have produced the necessary evidence. Hence, the district court did not abuse its discretion in refusing to grant the second motion for continuance. ⁴

III. Sufficiency of Conspiracy Evidence

Smith was convicted of conspiracy to distribute cocaine. He points out that a defendant may not conspire with government agents, United States v. Tombrello, 666 F.2d 485, 490 n. 3 (11th Cir.), cert. denied, 456 U.S. 994, 102 S.Ct. 2279,...