United States v. Holland

• Decision Date: 01 August 1980
• Docket Number: Crim. No. J-80-0232.
• Citation: 494 F. Supp. 918
• Parties: UNITED STATES of America v. Ancel James HOLLAND et al.
• Court: U.S. District Court — District of Maryland

494 F. Supp. 918

UNITED STATES of America v. Ancel James HOLLAND et al.

Crim. No. J-80-0232.

United States District Court, D. Maryland.

August 1, 1980.

Glenn L. Cook, Steven A. Allen, Asst. U.S. Attys., Baltimore, Md., for plaintiff.

Howard Cardin, Baltimore, Md., for Ancel J. Holland.

William Zinman, Baltimore, Md., for Lionel Louden.

William Beale, Baltimore, Md., for Eugene Holland.

Jack I. Hyatt, Baltimore, Md., for Tyrone Holland.

Steven Thomas, Baltimore, Md., for Ava Holland.

Dean P. Gunby, Baltimore, Md., for Marvin Dawson.

Bruce C. Bereano, Annapolis, Md., for Ronald Ross.

Joseph Kiel, Towson, Md., for Aubrey Pitts.

Thomas Ward, Baltimore, Md., for Albert Brown.

Clewell Howell, Jr., Towson, Md., for Ricardo Myers.

Theodore A. Cavacos, Baltimore, Md., for Derric Thomas.

Steven C. Friedman, Baltimore, Md., for Harold Moody.

Phillip Sutley, Baltimore, Md., for Bruce Wise.

Stanley Reed, Baltimore, Md., for Herbert Wyche.

Tucker Dearing, Baltimore, Md., for Stephanie Smith.

MEMORANDUM OPINION

SHIRLEY B. JONES, District Judge.

Numerous defendants¹ have filed pretrial motions for severance pursuant to Fed.R. Crim.P. 14 (Relief from Prejudicial Joinder) in this case. The common thread that runs through all these motions is that each defendant contends his alleged participation as charged is minimal and thus substantial prejudice would be unavoidable. Additionally, each claims that at a joint trial, the potential for the introduction of co-defendant's statements which may incriminate them without the relief of cross-examination and confrontation if that co-defendant does not testify is too prejudicial to be tolerated on the claim of judicial economy.

The Government, in a Superseding Indictment filed on June 25, 1980, has alleged that all of the defendants participated, at some time, from the spring of 1976 up to the date of the indictment in a conspiracy to unlawfully distribute and possess with the intent to distribute heroin and cocaine. 21 U.S.C. § 846. Counts two, three and fourteen allege that Ancel J. Holland on two different occasions traveled in interstate commerce with the intent to promote, manage, establish, etc., an unlawful activity, to wit, a business enterprise involving the manufacture and distributing of heroin and cocaine. 18 U.S.C. § 1952(a)(3). Counts four through thirteen, and fifteen through twenty-four charge various defendants, sometimes one sometimes more, with various violations of 21 U.S.C. § 843(b) (unlawful use of telephone to cause or facilitate the commission of conspiracy to distribute heroin and cocaine) and 21 U.S.C. § 841(a)(1) (manufacture, distribute, etc. or possess with intent to manufacture or distribute heroin or cocaine). For the reasons set forth below, it is not necessary to elaborate on the charges or the defendants on each count, for the purpose of this motion. Finally, count twenty-five alleges that Ancel J. Holland has maintained a continuing criminal enterprise in violation of 21 U.S.C. § 848.

The issue before the Court on this motion is twofold. First, because of the limited involvement of each defendant, a joint trial, it is claimed, will prejudice each. As defense counsel at oral argument contended, any evidence as to one defendant would have a "spill-over" effect on the rest. Second, and more important, counsel for Herbert Wyche have formally filed a severance motion contending that joinder of defendants under Fed.R.Crim.P. 8(b)² is improper in that the single conspiracy alleged by the Government in Count One is, in reality, multiple conspiracies. Counsel for several other defendants orally adopted the motion on behalf of their clients. Because of the importance of this issue from a practical standpoint, and because this case is at a different procedural posture from United States v. Walker, 430 F.Supp. 609 (D.Md. 1977) (motion for new trial), aff'd, 584 F.2d 1354 (4th Cir. 1978), cert. denied, 439 U.S. 1118, 99 S.Ct. 1027, 59 L.Ed.2d 78 (1979), a further word is warranted.

Single vs. Multiple Conspiracy

Professor Perkins has defined conspiracy as "a combination for an unlawful purpose." Perkins, Criminal Law at 529 (1957 ed.). The Supreme Court has stated more narrowly that a "conspiracy is an inchoate offense, the essence of which is an agreement to commit an unlawful act." Iannelli v. United States, 420 U.S. 770, 777, 95 S.Ct. 1284, 1289, 43 L.Ed.2d 616 (1975). While mere presence at the site of the substantive offense charged in a conspiracy does not make one automatically a co-conspirator, one need not know all the members of the alleged conspiracy or be a participant in all overt acts charged in the conspiracy to be a member of it. United States v. Burman, 584 F.2d 1354, 1357 (4th Cir. 1978), cert. denied, 439 U.S. 1118, 99 S.Ct. 1026, 59 L.Ed.2d 77 (1979); United States v. Blackshire, 538 F.2d 569, 571 (4th Cir.), cert. denied, 429 U.S. 840, 97 S.Ct. 113, 50 L.Ed.2d 108 (1976) (defendant "at the periphery of the conspiracy"). Also, "a single act may involve a person in a conspiracy if from the act an intent to participate may reasonably be inferred." United States v. Harris, 409 F.2d 77, 83 (4th Cir. 1969). Thus, the key in determining whether one charged in a conspiracy is in fact a co-conspirator is the focusing on the conduct of the accused and whether that conduct is or can be permissibly inferred to be in furtherance of the aims of the conspiracy. LaFave & Scott, Criminal Law, § 61 at 461 (1972 ed.). While obviously relevant, it is not dispositive that each accused conspirator is not charged with a substantive offense, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), or that each did not know of the conspiracy. See United States v. Michel, 588 F.2d 986, 995 (5th Cir.), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979); United States v. Kearney, 560 F.2d 1358, 1362 (9th Cir.), cert. denied, 434 U.S. 971, 98 S.Ct. 522, 54 L.Ed.2d 460 (1977). Nor must the Government prove each overt act alleged in count one. "Proof that at least one overt act was committed in furtherance of the conspiracy is sufficient." United States v. Anderson, 611 F.2d 504, 510 (4th Cir. 1979).

As Judge Murray of this Court recognized in United States v. Walker, 430 F.Supp. 609 (D.Md.1977), the issue as to whether a multiple or single conspiracy is involved begins with an examination of Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Id. at 614. In Kotteakos, the Supreme Court determined, as relevant here, that a number of conspiracies were made out and not a single conspiracy as alleged in the Indictment. Kotteakos v. United States, 328 U.S. at 755, 66 S.Ct. at 1243-44.³ The Court also recognized that any variance in the proof as compared with the allegations in the Indictment must, under Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), "`affect the substantial rights' of the accused." Kotteakos v. United States, 328 U.S. at 757, 66 S.Ct. at 1244 (quoting Berger v. United States, 295 U.S. at 82, 55 S.Ct. at 630-31). In United States v. Walker, supra, Judge Murray in the context of a motion for a new trial, examined the evidence that had been produced and his instructions to the jury. In the second (Burman) trial, Judge Murray instructed the jury that "whether there was one conspiracy, several, or no conspiracies at all is a fact for you to determine in accordance with the instructions that I have given you with regard to a conspiracy." United States v. Walker, 430 F.Supp. at 614. Thus, in reviewing Kotteakos and Berger, Judge Murray rejected the defendant's contention that it was error in failing to instruct the jury that if the Government's proof indicated that there was more than a single conspiracy, defendants were entitled to an acquittal. Id. It was within the province of the jury to determine as a matter of fact whether there was a single or multiple conspiracy. See United States v. Burman, 584 F.2d at 1356.⁴ By appropriately instructing the jury, this "minimizes the possibility of any substantial prejudice resulting from proof of multiple conspiracies." United States v. Walker, at 617.

It appears clear that the determination of whether a multiple or single conspiracy exists is generally a question of fact for the jury to determine. United States v. Macker, 608 F.2d 223, 228 (5th Cir. 1979); United States v. Thomas, 586 F.2d 123, 132 (9th Cir. 1978); United States v. Heath, 580 F.2d 1011, 1022 (10th Cir. 1978); United States v. Panebianco, 543 F.2d 447, 452 (2d Cir. 1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1128, 51 L.Ed.2d 553 (1977).

Defendants continue their assault on count one of this Indictment, arguing that on its very face it alleges multiple conspiracies with Ancel J. Holland as the "hub" of the wheel and the other co-defendants as the spokes. Relying on Kotteakos, defendants argue that this wheel has no rim connecting all the co-defendants in a single conspiracy with Ancel Holland as its head.⁵ Regardless of whether this is a wheel or chain conspiracy⁶ it is not clear at this point that multiple conspiracies are involved necessitating severance. Count one alleges that Ancel Holland was the head of a narcotics business enterprise and that all of the other defendants were allegedly couriers, cutters, packagers, distributors, dealers or money collectors. All of the defendants, except Albert Brown and Stephanie Smith, are alleged, in paragraph seven of count one, to have at all times relevant to the Indictment "distributed narcotics to individuals known and unknown to the Grand Jury." While perhaps this allegation is not set forth in the clearest of terms, it does comply with the requirements of Fed. R.Crim.P. 7(c)(1) as to a plain statement of the essential facts of the offense charged. In paragraph three, Albert Brown is alleged to have distributed narcotics for Ancel Holland in the Baltimore Metropolitan area and in...