U.S. v. Superior Growers Supply, Inc.

• Decision Date: 14 April 1993
• Docket Number: No. 92-1087,92-1087
• Citation: 982 F.2d 173
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. SUPERIOR GROWERS SUPPLY, INCORPORATED; Jeffrey A. Gibson; Christopher D. Schneider; Derick Hall, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 173

982 F.2d 173

UNITED STATES of America, Plaintiff-Appellant, v. SUPERIOR GROWERS SUPPLY, INCORPORATED; Jeffrey A. Gibson;

Christopher D. Schneider; Derick Hall,

Defendants-Appellees.

No. 92-1087.

United States Court of Appeals, Sixth Circuit.

Argued Aug. 4, 1992.

Decided Dec. 11, 1992.

Rehearing Denied April 14, 1993.

John C. Bruha (argued and briefed), Office of the U.S. Atty., Grand Rapids, MI, for plaintiff-appellant.

James S. Brady (argued and briefed), Grand Rapids, MI, for Superior Growers Supply, Inc., Jeffrey A. Gibson.

Larry C. Willey, Grand Rapids, MI, for Christopher D. Schneider.

J. Terrance Dillon, Dykema, Gossett, Spencer, Goodnow & Trigg, Grand Rapids, MI, for Derick Hall.

Before: NELSON, NORRIS, and SUHRHEINRICH, Circuit Judges.

SUHRHEINRICH, Circuit Judge.

This case presents the novel question of whether an indictment charging defendants, a garden supply store, its owners and an employee, with "conspiracy to aid and abet the manufacture of marijuana"

                states a crime where it does not allege that the alleged aiding and abetting actually furthered the manufacture of marijuana.   The district court dismissed the indictment for failing to allege an illegal agreement.   Like the district court, we believe that an essential element of the crime charged in the indictment is defendants' knowledge that their customers were manufacturing marijuana or intended to manufacture marijuana.   We therefore AFFIRM
                

I.

Defendants Superior Growers Supply Inc.; its two shareholders, Jeffrey Gibson and Christopher Schneider; and employee, Derick Hall; were charged on December 11, 1990 in a one-count indictment with conspiracy to aid and abet the manufacture of marijuana in violation of 21 U.S.C. §§ 846 and 841(a)(1) and 18 U.S.C. § 2. The charging portion of the indictment provides:

COUNT I

(Conspiracy to Aid and Abet the Manufacture of Marijuana)

From in or about August of 1983 to in or about October of 1989, in the Western District of Michigan, Southern Division, and elsewhere,

SUPERIOR GROWERS SUPPLY, INC.,

JEFFREY A. GIBSON,

CHRISTOPHER D. SCHNEIDER, and

DERICK HALL,

defendants herein, did knowingly, willfully and unlawfully combine, conspire, and confederate and agree together, and with each other, and with other persons known and unknown to the grand jury, to aid and abet the manufacture of marijuana, a Schedule I controlled substance, in violation of Title 21, United States Code, section 841(a)(1) and Title 18, United States Code, section 2.

MEANS AND METHODS

It was part of the conspiracy that the defendants would manufacture, sell and distribute equipment and supplies used for the illegal manufacture and cultivation of marijuana.

It was further part of the conspiracy that defendants would advertise their products in "High Times" magazine and other marijuana-related publications.

It was further part of the conspiracy that the defendants would sell or give publications concerning the growing of marijuana and other marijuana-related publications to many of their customers.

It was further part of the conspiracy that the defendants would, on occasion, provide information and advice on the growing of marijuana to various customers.

It was further part of the conspiracy that, on occasion, defendants Jeffrey A. Gibson and Christopher D. Schneider would accept marijuana or hashish in partial payment for equipment and supplies sold by Superior Growers Supply, Inc.

The indictment also averred 89 overt acts allegedly committed in furtherance of the conspiracy. The overt acts alleged can be grouped into four categories: the sale of hydroponic ¹, or indoor gardening equipment, the purchase of various publications on growing marijuana, the sale of these publications to various customers, and the giving of advice and information on growing marijuana to customers.

Defendants pled not guilty, and filed a motion to dismiss the indictment. The district court granted the motion, holding:

... a conspiracy to aid and abet is unlawful only if the acts defendants conspired to commit are unlawful. Acts alleged to constitute aiding and abetting are unlawful only if they actually induce or procure an underlying crime.

....

There is no allegation in the indictment here of any underlying crime. Therefore I'm satisfied the acts alleged to constitute the aiding and abetting were not unlawful, and the conspiracy to commit the acts was not unlawful. Since there was no underlying crime here, the indictment fails to allege an unlawful act and will therefore be dismissed.

On appeal, the government argues that the district court confused the elements of aiding and abetting with the elements of conspiracy to aid and abet. The government states that while it is necessary to show actual commission of the underlying offense in order to convict a defendant of an aiding and abetting offense; it is not necessary to show commission of the underlying offense when conspiracy is charged.

II.

The Notice Clause of the Sixth Amendment, as protected by Fed.R.Crim.P. 7(c) ², guarantees a criminal defendant the right to be informed of the charges brought against him. ³ Russell v. United States, 369 U.S. 749, 761, 82 S.Ct. 1038, 1045, 8 L.Ed.2d 240 (1962). In general, an indictment is constitutionally adequate "if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974); Russell, 369 U.S. at 763-64, 82 S.Ct. at 1046-47; United States v. Sturman, 951 F.2d 1466 (6th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 2964, 119 L.Ed.2d 586 (1992); United States v. Paulino, 935 F.2d 739, 749 (6th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 315, 116 L.Ed.2d 257 (1991). ⁴

An indictment will usually be sufficient if it states the offense using the words of the statute itself, as long as the statute fully and unambiguously states all the elements of the offense. Hamling, 418 U.S. at 117, 94 S.Ct. at 2907; Paulino, 935 F.2d at 750. The Supreme Court has cautioned, however: "Undoubtedly the language of the statute may be used in the general description of the offense, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description with which he is charged." Hamling, 418 U.S. at 117-18, 94 S.Ct. at 2907-08 (citation omitted). When the indictment charges a conspiracy:

[I]t is well settled that an indictment for conspiring to commit an offense--in which the conspiracy is the gist of the crime--it is not necessary to allege with technical precision all the elements essential to the commission of the offense which is the object of the conspiracy.

United States v. Reynolds, 762 F.2d 489, 494 (6th Cir.1985) (quoting Wong Tai v. United States, 273 U.S. 77, 81, 47 S.Ct. 300, 301, 71 L.Ed. 545 (1927)).

In reviewing an indictment this court "must ask whether the omission complained of deprives the defendant of one of the protections which the guaranty of a grand jury indictment was meant to ensure." Sturman, 951 F.2d at 1479 (citing Russell, 369 U.S. 749, 763, 82 S.Ct. 1038, 1046, 8 L.Ed.2d 240 (1962)). To be legally sufficient, the indictment must assert facts which in law constitute an offense; and which, if proved, would establish prima facie the defendant's commission of that crime. Fleisher v. United States, 302 U.S. 218, 58 S.Ct. 148, 82 L.Ed. 208 (1937) (per curiam); see also United States v. Polychron, 841 F.2d 833 (8th Cir.), cert. denied, 488 U.S. 851, 109 S.Ct. 135, 102 L.Ed.2d 107 (1988). Whether an indictment adequately alleges the elements of the offense is a question of law subject to de novo review. United States v. Chaney, 964 F.2d 437, 446 (5th Cir.1992). A bill of particulars cannot cure a legal deficiency; rather the proper result is dismissal of the indictment. See Sturman, 951 F.2d at 1479.

III.

We now turn to the issue at hand--the constituents of the crime of "conspiracy to aid and abet the manufacture of marijuana." In arguing that it need not charge and prove the underlying section 841(a)(1) crime to bring the instant charge, the government argues:

Here, the indictment alleged an agreement to aid and abet the manufacture of marijuana. It is illegal to manufacture marijuana, 21 U.S.C. § 841(a)(1); it is illegal to aid and abet the manufacture of marijuana, 21 U.S.C. § 846, 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Thus, the indictment alleged an unlawful object of the conspiracy; i.e. aiding and abetting the manufacture of marijuana.

Government's brief at 7-8. The district court rejected this reasoning, stating:

I'm satisfied that the flaw in the argument is that it skips a vital step. The acts that constitute the aiding and abetting are not illegal unless they actually do further the manufacture of marijuana. Thus, a conspiracy to commit these acts is not illegal unless the acts would further the actual, ongoing manufacture of marijuana.

We agree with the government that the operative charge here is conspiracy and that the essence of conspiracy is an agreement to commit an illegal act, not its accomplishment. See United States v. Fruehauf Corp., 577 F.2d 1038, 1071 (6th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978) (citations omitted). In other words, the conspiracy itself is a complete offense. United States v. Dempsey, 733 F.2d 392, 396 (6th Cir.), cert. denied, 469 U.S. 983, 105 S.Ct. 389, 83 L.Ed.2d 323 (1984). "To obtain a conviction under section 846 [21 U.S.C. § 846], ⁵ the government must prove the existence of an agreement to violate the drug laws and that each conspirator knew of, intended to join and participated in the conspiracy." United States v. Blakeney, 942 F.2d 1001, 1009 (6th Cir.1991) (citations...