U.S. v. Umentum, 76-1210

• Citation: 547 F.2d 987
• Decision Date: 24 November 1976
• Docket Number: No. 76-1210,76-1210
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clark J. UMENTUM, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 987

547 F.2d 987

UNITED STATES of America, Plaintiff-Appellee, v. Clark J. UMENTUM, Defendant-Appellant.

No. 76-1210.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 21, 1976.

Decided Nov. 24, 1976.

James M. Shellow, Milwaukee, Wis., for defendant-appellant.

William J. Mulligan, U.S. Atty., Randall J. Sandfort, Asst. U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Before HASTING, Senior Circuit Judge, and PELL and WOOD, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

On June 4, 1975, defendant, together with four others, was charged in Count I of the indictment with conspiracy to possess and distribute cocaine, a Schedule II Narcotic Drug Controlled Substance, in violation of 21 U.S.C. § 841(a)(1) and § 846, and 18 U.S.C. § 2; and in Count II with possession with intent to distribute and distribution of 878.5 grams of cocaine, a Schedule II Narcotic Drug Controlled Substance, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Two other counts are not involved in this appeal. Three of the defendants entered pleas of guilty to certain counts, one was found not guilty. The defendant was found guilty of both Counts I and II following trial by jury and sentenced to two concurrent seven year imprisonment terms, followed by a statutory three year special parole period. In United States v. Umentum, 401 F.Supp. 746 (E.D.Wis.1975), the pretrial matters in this case are considered.

The transactional evidence is not in dispute. Following two telephone conversations in April, 1975, between a special agent of the Drug Enforcement Administration with one of defendant's co-conspirators, two special agents not known by the defendant to be special agents, met in person with the defendant and other co-conspirators for the purpose of concluding a sale of 25 ounces of cocaine for $40,625. This meeting terminated with the arrest of the defendant and the seizure by the agents of the plastic bag of white powder which had been represented by the defendant to be cocaine.

The defendant raises six issues on appeal:

(1) Failure of the Government to produce certain internal memoranda of the Drug Enforcement Administration;

(2) Duplicity of the indictment resulting from charges of possession with intent to distribute and distribution;

(3) Duplicitous instructions;

(4) Failure of the court to give an instruction with Count I, the conspiracy allegation, concerning the requirement of a finding of the commission of an overt act;

(5) The giving of a partial instruction on reasonable doubt; and

(6) Other objectionable instruction matters.

I.

The memoranda which the defendant claims were exculpatory and should have been produced prior to trial were certain internal government memoranda which related generally to the topic of isomers of cocaine and testing procedures which might be used to identify the isomers of cocaine. These memoranda did not directly relate to this case. This material was made available to the defense during trial and admitted as defense exhibits 8, 9, and 9A. These documents which were desired by the defense for cross-examination purposes were used for that purpose. The trial court granted defendant's motion for a continuance after the trial had begun due to some additional tests run by the Government witness shortly before trial. During this time the defendant came into possession of the Government's memoranda and was permitted to reopen cross-examination of the Government witness to make use of the memoranda.

We do not believe that these internal memoranda were required to be produced pursuant to Fed.R.Crim.P. 16 or Brady ¹ as recently interpreted in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). We consider the memoranda neither exculpatory nor material to the defendant's defense. This same issue is discussed more fully in United States v. Orzechowski, 547 F.2d 978, an opinion issued simultaneously with this opinion. In addition, in the present case the defendant had the use of these memoranda during trial. As the trial judge stated, to hold otherwise "would mean that the government would be obliged to turn over every single piece of internal study, research, communication, and point of view that the laboratories of the D.E.A. may have utilized on any phase of the world of cocaine."

II. and III.

The issue of the duplicity in Count II charging possession with intent to distribute and distribution has likewise been resolved adversely to defendant in Orzechowski, supra, and merits no further discussion here. The issue of the instructions being likewise duplicitous is similarly resolved in Orzechowski, supra.

IV.

Count I of the indictment charging conspiracy alleges no overt act in furtherance of the conspiracy, nor was the jury instructed as to any requirement that such an overt act need be found from the evidence before a guilty verdict could be reached.

First, it is to be noted that neither § 846 of Title 21 nor its predecessor § 174, in contrast to the general conspiracy statute, 18 U.S.C. § 371, has in its language any requirement concerning an overt act.

In the lower court defendant claimed that it was necessary for the Government to charge an overt act in the indictment. He does not pursue that here, taking notice of numerous cases contrary to that claim, including United States v. King, 521 F.2d 61 (10th Cir. 1975), which, however, defendant relies on to require an overt act instruction. See also United States v. Garfoli, 324 F.2d 909 (7th Cir. 1963); United States v. DeJesus, 520 F.2d 298 (1st Cir. 1975), cert. denied, 423 U.S. 865, 96 S.Ct. 126, 46 L.Ed.2d 94. Nor is the issue on appeal the absence of proof of acts which might have been labeled overt acts since they are obvious in the record as the defendant candidly concedes in footnote 8 in his brief, page 18.

The issue remaining is should the jury have been instructed nevertheless that there was an overt act proof requirement upon the Government? The defendant relies upon United States v. King, supra. That court held that such an instruction was necessary in a § 846 conspiracy charge regardless of the absence in the statute of an overt act requirement, and regardless of the strength of the evidence. Other cases cited by defendant, such as United States v. Hutchinson, 488 F.2d 484 (8th Cir. 1973), cert. denied, 417 U.S. 915, 94 S.Ct. 2616, 41 L.Ed.2d 219 (1974), seem to assume that an overt act is a requirement of § 846 without the issue being directly raised. Hutchinson cites for its assumption cases involving a § 371, Title 18, charge, or a charge under its predecessor, which by their language required an overt act. ²

Defendant further relies on other cases, such as United States v. Robinson, 503 F.2d 208 (7th Cir. 1974), cert. denied, 420 U.S. 949, 95 S.Ct. 1333, 43 L.Ed.2d 427 (1975), a prosecution under 18 U.S.C. § 241, which likewise contains no overt act requirement. In that case there was proof of overt acts. The opinion does not reveal whether or not overt acts were also alleged. The issue we have here was not raised. However, in United States v. Morado, 454 F.2d 167 (5th Cir. 1972), cert. denied, 406 U.S. 917, 92 S.Ct. 1767, 32 L.Ed.2d 116 it was held that § 241 does not require that any overt act be shown.

Defendant also cites other cases, such as United States v. Floyd, 496 F.2d 982 (2d Cir. 1974), cert. denied, 419 U.S. 1069, 95 S.Ct. 654, 42 L.Ed.2d 664, a § 846 prosecution, in which it appears that overt acts were charged in the indictment. Therefore the particular issue we have was not raised.

We do not believe that these cases are controlling. The matter has been previously touched on in this circuit. In United States v. Cortwright, 528 F.2d 168 (7th Cir. 1975), a § 846 conspiracy prosecution in which overt acts were alleged, the court was concerned with the sufficiency of the evidence. The court, however, explains that all that is required in a § 846 prosecution is an agreement between two or more persons to commit any offense under the Controlled Substances Act, and at 528 F.2d 172 n.1 elaborates:

This circuit has not required allegation or proof of an overt act in furtherance of a drug conspiracy. United States v. Garfoli, 324 F.2d 909 (7th Cir. 1963).

In Garfoli, supra, Judge Duffy, writing for the panel, stresses that § 174, now repealed but similar to the present § 846, contains no requirement that an overt act be alleged or proved in contrast to a § 371 conspiracy prosecution. The court held that the act of conspiracy was by itself sufficient, citing Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232 (1913).

In Nash, a Sherman Act prosecution, the Court considered a situation where no overt act was alleged. It held that the Act punished conspiracies on a common law footing in that the Act did not contain a requirement for the doing of any other act beyond conspiring. The Court distinguished other statutes which contain the added requirement and declined to read into the Sherman Act more than it found there.

In the later case of Singer v. United States, 323 U.S. 338, 65 S.Ct. 282, 89 L.Ed 285 (1945), a Selective Training & Service Act conspiracy prosecution, the Court recognized that that Act also did not require an overt act for the offense of conspiracy but punished conspiracy "on the common law footing."

Cases other than Cortwright, supra, in other jurisdictions, have also recognized the precedent of older cases holding that no overt act was required under the prior act. These cases aid in the determination of whether an overt act is required under § 846. Nothing in the congressional history of § 846 weakens the force of the earlier interpretations. United States v. DeJesus, supra; United States v. DeViteri, 350 F.Supp. 550 (E.D.N.Y.1972); United States v. Miller, 387 F.Supp. 1097 (D.Conn.1975).

We see no justification for departing from the reasoning of these latter cases and this circuit's Cortwright and Garfoli decisions, supra.

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