United States v. Mori

• Decision Date: 04 June 1971
• Docket Number: No. 27908.,27908.
• Citation: 444 F.2d 240
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jean Robert MORI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

444 F.2d 240 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Jean Robert MORI, Defendant-Appellant.

No. 27908.

United States Court of Appeals, Fifth Circuit.

June 4, 1971.

Barry L. Garber, Miami, Fla., for defendant-appellant.

Robert W. Rust, U. S. Atty., Michael J. Osman, William C. White, Asst. U. S. Attys., Miami, Fla., Will Wilson, Asst. Atty. Gen., Beatrice Rosenberg, Roger A. Pauley, Attys., Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Before THORNBERRY, GOLDBERG, and AINSWORTH, Circuit Judges.

GOLDBERG, Circuit Judge:

Jean Robert Mori was indicted in 1967 on two counts involving narcotics violations: Count 1, conspiracy to commit an offense against the United States in violation of 18 U.S.C.A. § 371, the general conspiracy statute; and Count 3, conspiracy to import a narcotic drug into the United States in violation of 21 U.S.C.A. § 174.¹ Following a jury trial, defendant Mori was found guilty on both counts. He was subsequently sentenced to five years and a fine of $7,500 as to Count 1, and twenty years and a fine of $20,000 as to Count 3, the sentences of confinement to run concurrently. From these convictions and sentences defendant now appeals.

Mori first argues that the trial court erred in determining that he could be convicted and sentenced on both counts. In essence defendant contends that Counts 1 and 3 constitute a single conspiracy, not separate conspiracies. We agree.

Count 3 charged defendant Mori with conspiracy to import a narcotic drug in violation of the narcotic conspiracy section of 21 U.S.C.A. § 174.² Count 1, on the other hand, charged defendant with conspiracy to commit an offense against the United States under the general conspiracy statute, 18 U.S.C.A. § 371.³ The offense against the United States which Mori was alleged to have conspired to commit was traveling in foreign commerce to promote unlawful activity in violation of 18 U.S.C.A. § 1952.⁴ Rounding out this somewhat circuitous, three-tiered scheme, the indictment charged that the unlawful activity which defendant traveled abroad to promote was the importation of a narcotic drug in violation of the substantive provisions of 21 U.S.C.A. § 174.⁵

A bare reading of the indictment readily reveals that in essence defendant was charged with participation in a single, indivisible conspiracy to import narcotic drugs, which conspiracy had several illegal objects and violated two criminal conspiracy statutes. The parties, the duration, and the overt acts alleged in both conspiracy counts were the same.⁶ Thus, regardless of the number of criminal statutes involved, the essence of the offense for which Mori was indicted was a single criminal agreement:

"For when a single agreement to commit one or more substantive crimes is evidenced by an overt act, as the statute requires predecessor to 18 U.S.C.A. § 371, the precise nature and extent of the conspiracy must be determined by reference to the agreement which embraces and defines its objects. Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one." Braverman v. United States, 1942, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23.

Therefore, even though the conspiracy charged here envisioned the violation of several substantive provisions, including 18 U.S.C.A. § 1952 and 21 U.S.C.A. § 174, it was a single agreement which constituted a single offense subject to a single punishment. See generally Youst v. United States, 5 Cir. 1945, 151 F.2d 666.

The further fact that this single agreement theoretically violated the general conspiracy statute as well as the more specific narcotics conspiracy statute is similarly irrelevant. Our case is unlike American Tobacco Co. v. United States, 1946, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575, where the Supreme Court held that a conspiracy to violate section 1 of the Sherman Act, 15 U.S.C.A. § 1, and a conspiracy to violate section 2 of the Sherman Act, 15 U.S.C.A. § 2, gave rise to separate, distinct statutory offenses. Sections 1 and 2 specifically provide that conspiracies to violate their provisions constitute separate criminal acts. In the instant case, however, we do not have two independent criminal conspiracy statutes. Rather, the defendant herein was indicted under a specific conspiracy statute and a general conspiracy statute. Under general principles of statutory constructions, the catchall provisions of section 371 become subsumed under the particular, specific provisions of section 174. Moreover, even in American Tobacco, the Court recognized that its holding would not apply to a course of conduct which constituted a single, indivisible agreement:

"We believe also that in accordance with the Blockburger case Blockburger v. United States, 1932, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, §§ 1 and 2 of the Sherman Act require proof of conspiracies which are reciprocally distinguishable from and independent of each other although the objects of the conspiracies may partially overlap." 328 U.S. at 788, 66 S.Ct. at 1129.

See generally United States v. Edwards, 2 Cir. 1966, 366 F.2d 853, 866-867; Masi v. United States, 5 Cir. 1955, 223 F.2d 132, cert. denied, 350 U.S. 919, 76 S.Ct. 208, 100 L.Ed. 805; United States v. Anderson, 7 Cir. 1939, 101 F.2d 325; United States v. DeSapio, S.D.N.Y.1969, 299 F.Supp. 436, 440-442; United States v. American Honda Motor Co., N.D.Cal. 1967, 271 F.Supp. 979, 982-987. Since we find that defendant Mori was involved in only a single conspiracy, not "independent" and "distinguishable" conspiracies, cumulative punishment was impermissible under the rationale of Blockburger, Braverman, and American Tobacco. Accordingly, the trial court erred in imposing punishment on both counts.

Nevertheless, the Government contends that defendant was not prejudiced since the sentences of confinement were imposed to run concurrently. This argument, however, fails to take account of the fact that the trial court imposed cumulative fines on both counts with the result that the total fine exceeded the maximum possible fine under either conpiracy statute.⁷ Moreover, as we held in United States v. White, 5 Cir. 1971, 440 F.2d 978, where separate sentences on two or more counts are impermissible, the error is not cured by the existence of concurrent sentences. See also Holland v. United States, 5 Cir. 1967, 384 F.2d 370. Rather, in most instances the proper remedy is to vacate the sentences and remand to the district court for resentencing on one count.

Defendant would have us go further and remand for a new trial. In support of this position he cites Milanovich v. United States, 1961, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773. In Milanovich the Supreme Court held that simple resentencing was insufficient to cure the error of convicting and sentencing a single defendant for robbery and receiving under the Federal Bank Robbery Act, 18 U.S.C.A. § 2113. Since robbery and receipt of stolen money were inconsistent offenses, the Milanovich Court held that the jury must be instructed that it can return a verdict of guilty on either offense, but not on both. However, in United States v. White, supra, we held that where the counts are not inconsistent, but instead overlapping, the proper remedy is simple resentencing. That is the situation in the instant case. Counts 1 and 3, charging separate conspiracies, are simply cumulative and overlapping. The counts are not inconsistent. Cf. United States v. Maryland State Licensed Bev. Ass'n, 4 Cir. 1957, 240 F.2d 420; Williams v. United States, 5 Cir. 1956, 238 F.2d 215, cert. denied, 352 U.S. 1024, 77 S.Ct. 589, 1 L.Ed.2d 596. Thus, while punishment on both counts is impermissible, a new trial is not required. See Braverman v. United States, supra. We therefore vacated the sentences of fine and imprisonment and remand the case to the district court for resentencing on one count. See Masi v. United States, supra; Farnsworth v. Zerbst, 5 Cir. 1938, 97 F. 2d 255.

In addition defendant argues that a new trial is required because of prejudicial comments made by the trial judge during the course of the trial. The record reveals that the court instructed the defendant that if he testified he would have to submit to cross-examination by the Government. Mori contends that this comment, shown by the record to have taken place in the presence of the jury, constituted an impermissible comment on his failure to take the stand and testify. See Griffin v. California, 1965, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106.

Subsequent to the filing of defendant's brief on appeal, the Government petitioned the trial court under Federal Rule of Appellate Procedure 10(e)⁸ to correct the record to reflect that the challenged comment took place outside the presence of the jury. After hearing arguments by counsel for the defendant and by counsel for the Government, the trial court, without a further evidentiary hearing granted the Government's motion to correct the record. Defendant objects to the timing of the Government's motion and the procedure employed to resolve the dispute. These objections are without merit.

Under Rule 10(e) it is clear that the district court may consider a motion to correct the record even after appeal has been taken. Once the motion is made, the differences between the parties "shall be submitted to and settled by" the district court. Counsel in the instant case had notice of the motion and opportunity to present argument before the district court. There was here no necessity for a complete evidentiary hearing. See Federal Rule of Appellate Procedure 10(c); 9 J. Moore, Federal Practice ¶ 210.08 3, at 1653. The trial judge ordered the record corrected pursuant to his recollection of the events at...