U.S. v. Urbanik

• Decision Date: 23 September 1986
• Docket Number: No. 85-5531,85-5531
• Citation: 801 F.2d 692
• Parties: 21 Fed. R. Evid. Serv. 931 UNITED STATES of America, Appellee, v. Axel URBANIK, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 692

801 F.2d 692

21 Fed. R. Evid. Serv. 931

UNITED STATES of America, Appellee, v. Axel URBANIK, Appellant.

No. 85-5531.

United States Court of Appeals Fourth Circuit.

Argued May 9, 1986.

Decided Sept. 23, 1986.

James A. Rothschild, Baltimore, Md., for appellant.

Robert C. Bonsib, Asst. U.S. Atty. (Catherine C. Blake, U.S. Atty., Baltimore, Md., on brief), for appellee.

Before WINTER, Chief Judge, and RUSSELL and PHILLIPS, Circuit Judges.

JAMES DICKSON PHILLIPS, Circuit Judge:

Axel Urbanik appeals his conviction of conspiracy to distribute and to possess with intent to distribute marijuana and cocaine. Urbanik challenges the sufficiency of the evidence to support his conviction of a conspiracy occurring within the applicable statute of limitations, and also contends that the district court erred in admitting, as nonhearsay, a coconspirator statement that was not "in furtherance" of the conspiracy as required by Fed.R.Evid. 801(d)(2)(E). Because we conclude that the co-conspirator evidence was improperly admitted, and that the error was not harmless, we reverse Urbanik's conviction and remand for a new trial.

I

Axel Urbanik was indicted on July 11, 1984, and the superseding indictment upon which he was tried charged him with conspiracy to distribute and possession with intent to distribute cocaine and marijuana in violation of 21 U.S.C. Sec. 846 (1982), as well as a violation of the Travel Act, 18 U.S.C. Sec. 1952 (1982). Count I of the indictment charged that Urbanik was a member of a drug conspiracy, during the period 1978 to 1983, that included, among others, Ernie Pelino, Steven Smith, Lloyd Furman, Lent Hunter, Richard Holzworth, Harry Bevans, Lynn Smith, Paul Kuntz, Robert George, and Michael Haselhuhn. Count IV charged that Urbanik and Pelino caused Holzworth to travel in interstate commerce in aid of a racketeering enterprise in violation of 18 U.S.C. Secs. 2, 1952. A jury convicted Urbanik of the conspiracy charges contained in Count I, but acquitted him of the Travel Act offense charged in Count IV.

The Government's witnesses at trial included four individuals named in the indictment as co-conspirators. Harry Bevans testified that he met Urbanik in Florida in 1978, and dealt with him four or five times in 1978 and 1979. Bevans stated that Urbanik worked with Jack Devereaux, and that he regularly purchased marijuana from Urbanik and Devereaux. Bevans testified that he last saw Urbanik in early 1979.

Richard Holzworth testified that he had known Pelino since 1969, that he had begun to transport and distribute drugs for Pelino in early 1979, and that his last involvement in drug trafficking was in late July or early August 1979. He stated that he dealt with Devereaux on his trips from Maryland to Florida for Pelino, and that Devereaux and Pelino introduced Urbanik to Holzworth as Devereaux's partner. On one trip, Holzworth indicated, Urbanik told him that Devereaux was involved with undercover agents, and that he should therefore deal only with Urbanik. He testified that on May 30, 1979, he purchased 100 pounds of marijuana from Urbanik, and that he conducted several other deals with Urbanik before ending his involvement in late July 1979. In an earlier statement to a Drug Enforcement Administration agent, Holzworth had stated that his final trip to Florida to meet with Urbanik occurred in either June or July 1979, but at trial Holzworth testified unambiguously that the last trip took place in late July 1979. He testified that on that trip, he purchased cocaine from Urbanik at Key West. Holzworth said that he remembered the trip because he combined it with a trip to visit family in Baton Rouge. Holzworth's credit card records showed a June 11 trip from Baton Rouge to Key West, but no other record of such a trip.

Lent Hunter testified that he purchased marijuana from Pelino between 1979 and 1982, either directly or from Pelino's dealers, including Holzworth.

Michael Haselhuhn had been purchasing cocaine from Bevans in late 1979 or early 1980 when he met Pelino, who undercut Bevans' price and began to supply Haselhuhn. Haselhuhn testified that until March 1981 he purchased cocaine and marijuana from Pelino on numerous occasions. After a hearing out of the jury's presence, Haselhuhn was permitted to testify about statements made to him by Pelino in the summer of 1980. At the time of the statements, Haselhuhn was at Pelino's house to pay for some drugs and obtain a new supply. He testified that after concluding their business, he and Pelino were engaging in casual conversation about weight-lifting, and using Pelino's weight-lifting equipment. In the course of discussing their own abilities, Pelino told Haselhuhn about a "friend in the Keys" named Axel from whom he obtained marijuana "at 1,000 pounds a clip" who was "a little short guy" but could bench press 300 pounds. The statements from Pelino to Haselhuhn were admitted under the co-conspirator exception to the hearsay rule, Fed.R.Evid. 801(d)(2)(E).

Special Agent William Athas of the Drug Enforcement Administration testified that in February 1984, he traveled with Holzworth to Urbanik's gym in Key West. In response to a request by Holzworth that Urbanik sell him drugs, Athas testified that Urbanik indicated he was "out of the business" of dealing in drugs, and had left the business because it had become "too dangerous." A number of defense witnesses also testified. Lynn Smith testified that in mid-1979, he attempted to contact Devereaux, reached Urbanik, and was told by Urbanik that there was no longer a partnership. Lloyd Furman, who had been named in the indictment as a co-conspirator, testified that he had met Urbanik while in Key West to obtain drugs, but that he did not know of any involvement by Urbanik in any drug distribution activities. Eric Adamson, who had dealt with Pelino, and had met Urbanik in Key West, also testified that he did not know of any drug involvement on the part of Urbanik. Urbanik's wife, who had known him since December 1979, testified that she had never seen her husband distribute cocaine or marijuana, and had never heard him discuss drugs.

Urbanik testified that his only involvement in drugs occurred when he introduced Devereaux to a marijuana dealer in 1977 or 1978, and when he introduced Holzworth to a marijuana dealer in 1979. He testified that his relationship with Pelino was limited to their weight-lifting activities.

Upon conviction of the offenses of conspiracy to distribute and possession with intent to distribute marijuana and cocaine, Urbanik was sentenced by the district court to a term of incarceration of four years. This appeal followed.

II

Urbanik first contends that the evidence at trial was insufficient to support a jury finding that he was involved in a single conspiracy taking place within the applicable statute of limitations. Because Urbanik was indicted on July 11, 1984, the five-year statute of limitations, 18 U.S.C. Sec. 3282 (1982), permitted Urbanik to be prosecuted only for acts occurring subsequent to July 10, 1979. Urbanik argues that the evidence at trial proved multiple conspiracies, rather than the single conspiracy for which he was indicted, and contends that, in any event, the evidence did not permit a finding that he was involved in a conspiracy after July 10, 1979. We reject both arguments.

Although it is improper to charge a single conspiracy when multiple conspiracies exist, see Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), the question whether the evidence shows a single or multiple conspiracies is for the jury. If the jury is properly instructed, the finding of a single conspiracy must stand unless the evidence, taken in the light most favorable to the government, would not allow a reasonable jury so to find. See United States v. Brito, 721 F.2d 743, 747 (11th Cir.1983); United States v. Holland, 494 F.Supp. 918, 922 (D.Md.1980).

A review of the evidence demonstrates that a jury could properly find the existence of a single conspiracy. Although there was evidence that Pelino and other distributors who purchased cocaine and marijuana from Devereaux also used other suppliers, that not all those who had dealings with Urbanik were acquainted with each other, and that not all of those who worked for Pelino in Maryland had met or even knew of Urbanik's involvement, the evidence, viewed in the light most favorable to the government, yet supports a finding of a single conspiracy. The principals may have performed their roles at different points in the distribution network, but the evidence suffices to support the inference of a single large conspiracy the object of which was the wide-scale possession and distribution of marijuana and cocaine. The jury was properly instructed that it might find a single conspiracy, separate conspiracies not charged in the indictment, or no conspiracy at all, and that they must convict Urbanik only upon their finding that he was a member of the single conspiracy charged in the indictment. That verdict was adequately supported by the evidence.

II

Urbanik next argues, however, that because there was no competent evidence to support a finding that he was still involved in the conspiracy after July 10, 1979, he was entitled to acquittal on the conspiracy count of the indictment. He suggests that the only competent testimony showing his participation in the conspiracy after the relevant date was that of Holzworth about his purchase of cocaine from Urbanik in Florida in late July 1979. Because that transaction was the subject of the Travel Act violation for which Urbanik was acquitted, Urbanik reasons that the jury disbelieved Holzworth's testimony that the transaction took place in July, rather than June. If the transaction took place in June, and if the Haselhuhn testimony that Pelino told him in 1980 that Urbanik was his marijuana supplier was improperly admitted, as Urbanik also argues, Urbanik then...