United States v. Spanos, 71-2342.
Decision Date | 21 August 1972 |
Docket Number | No. 71-2342.,71-2342. |
Citation | 462 F.2d 1012 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Leo SPANOS, Defendant-Appellant. |
Court | U.S. Court of Appeals — Ninth Circuit |
Edward L. Cragen (argued), San Francisco, Cal., for defendant-appellant.
Larry S. Flax, Asst. U. S. Atty. (argued), Eric A. Nobles, Asst. U. S. Atty., William D. Keller, U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.
Before MERRILL, DUNIWAY and KILKENNY, Circuit Judges.
Spanos appeals from a judgment of conviction under an indictment charging him with conspiring (18 U.S.C. § 371) with one Godwin and others to violate former 21 U.S.C. § 331(q)(2) and (3), (added by Pub.L. 89-74, § 5, 79 Stat. 226, 232, repealed by Pub.L. 91-513, § 701(a), 84 Stat. 1236, 1281) which prohibited sale and possession of certain stimulant drugs (21 U.S.C. § 511(b) and (c) as they read prior to their repeal by Pub.L. 91-513, supra, § 1101(a) (10)). This case is kept alive by §§ 702 (a) and 1103(a) of Pub.L. 91-513. We reverse.
What happened here is an abuse of the conspiracy charge; the government failed to prove its case. There was a good case for convicting Spanos for one unlawful sale of amphetamines at San Carlos, California, in the Northern District of California. One reason for the conspiracy charge was to place the offense in the Central District of California, where the case was tried. Many years ago Judge Learned Hand in United States v. Peoni, 2 Cir., 1938, 100 F.2d 401, 403, warned against just this sort of abuse. In a case in which the defendant was charged as an accessory and as a conspirator, he said:
The conspiracy here charged is as follows:
There follows a list of six overt acts.
The Supreme Court has held that before the extrajudicial statements of a co-conspirator can be considered as evidence against a defendant, the government must establish by evidence, restricted to proof aliunde, that the conspiracy existed. Glasser v. United States, 1942, 315 U.S. 60, 74-75, 62 S.Ct. 457, 86 L.Ed. 680. The test, under our interpretation of the rule in Carbo v. United States, 9 Cir., 1963, 314 F.2d 718, is whether the independent evidence makes a prima facie case, "one which would support a finding". Id. at 737. This means substantial independent evidence of the conspiracy charged.
When this limitation is imposed on the record in this case, the evidence which remains, when fairly considered, is insufficient to make out prima facie proof of the charged conspiracy. The testimony (as opposed to extra-judicial statements) of Godwin, the co-conspirator, and the other evidence, that can be claimed to tend to support a finding that the charged conspiracy existed consists of the following:
1. The October 1969 sale, Godwin testifying.
Godwin bought 50,000 amphetamine tablets from Spanos in San Carlos.
2. The November 4, 1969 incident, Godwin testifying.
Godwin flew to San Francisco with narcotic agent Ozment and others. He left Ozment at a restaurant in San Carlos and went alone to Spanos' house. "We talked and he Spanos didn't have anything, so I Godwin didn't make a deal for the pills." Godwin went there to attempt to get 100,000 pills. He had made "the arrangements" by phone. He and Spanos, at the latter's house, just disagreed about the pills, the method of the purchase, and he left.
3. The November 19, 1969 incident.
About three days before, he arranged with Spanos by phone to "get some whites." Spanos said he could. On November 19 Godwin, Ozment, and a pilot flew to San Carlos in a chartered plane. They rented a car, and Ozment and the pilot were left at a restaurant. Godwin went to Spanos' house and asked Spanos for "whites." Spanos refused. Godwin told Spanos that Spanos would have to tell "the people" himself, and that Godwin would introduce them. Godwin went back to the restaurant. Then Spanos arrived and Godwin introduced him to Ozment, and Spanos and Ozment conversed. Godwin did not recall the conversation.
4. Other direct evidence relating to Spanos.
On November 26, 1969, at Godwin's home, Godwin telephoned Spanos.
Herring had no more dealings with Godwin, much less with Spanos.
In October, 1969, he had known Spanos for about a year and a half. On occasions, he had been buying pills from Spanos. He flew to San Carlos on occasions to get them.
On November 19, 1969, he saw Ozment meet Spanos at the restaurant in San Carlos.
Apart from the considerable damaging testimony by agents Herring and Ozment about what Godwin said Spanos said and did, that is all the evidence there is that connects Spanos with the charged "conspiracy." It is not enough to make a prima facie case.
It is important, in considering this evidence, to remember the nature of the charged conspiracy, which is that Godwin, Spanos and others agreed, within the Central District of California, that Spanos "would supply Godwin . . . whenever Godwin located a buyer or buyers" and that,
Godwin sold the pills that he bought in October to Herring, but there is no evidence that Spanos had agreed with Godwin that Godwin was to resell to Herring or to anyone else. This does not show the charged conspiracy, even prima facie. The November 4 incident proves even less. It shows only an unsuccessful attempt by Godwin to buy pills from Spanos. For all that appears, "the arrangements" may have been only to meet, rather than to buy and sell. The November 19 incident is strikingly similar. However, this time, before Godwin went to San Carlos he asked Spanos, by telephone, if he could "get some whites" and was told that he could. So far as appears, all that Spanos learned from Godwin's advance phone call was that Godwin wanted to buy; he did not learn that Godwin had located a buyer. But when Godwin arrived, Spanos refused to sell. So far as the pertinent evidence shows, it was only on November 19 that Spanos learned that Godwin had resold any pills, or that Ozment or someone associated with him had bought the pills that Spanos sold to Godwin in October. He also learned that Ozment wanted more. What happened? Spanos refused.
There is much evidence about meetings between Godwin and narcotics agents in Southern California, and the arrangements between them for trips to San Carlos. Thus Godwin and the agents were busy conspiring. But there is no evidence other than hearsay that Spanos was a part of that conspiracy, assuming that it was charged, which it was not.
In United States v. Peoni, supra, Peoni sold counterfeit bills to Regno and Regno re-sold them to Dorsey, who tried to pass them. Each of the three knew that the bills were counterfeit. Peoni was charged with conspiring to have Dorsey pass the bills. He was convicted, but on appeal the conviction was reversed. Judge Learned Hand said:
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