United States v. Walker
| Decision Date | 15 April 1977 |
| Docket Number | Crim. No. HM76-0635. |
| Citation | 430 F. Supp. 609 |
| Parties | UNITED STATES of America v. Joseph WALKER et al. |
| Court | U.S. District Court — District of Maryland |
Jervis S. Finney, U. S. Atty., D. Md., Asst. U. S. Attys. Andrew Radding and Neal Janey, Baltimore, Md., for U. S.
Joel Hirschhorn, Miami, Fla., for defendants Joseph Walker and Julia Walker.
James J. Gitomer, Baltimore, Md., for defendant Charles Burman, Sr.
The purpose of this Memorandum and Order is to rule on an important issue presented in the motion of defendants Joseph and Julia Walker for new trial and in the motion of defendant Charles Burman, Sr. for new trial. That issue is whether there was a fatal variance between the allegations in the indictment and the proof at trial. One aspect of this issue concerns the appropriateness of the court's instructions to the jury relating to the question of multiple conspiracies.
The above-named defendants, along with nine other defendants who entered guilty pleas, were indicted for conspiracy to distribute heroin in violation of 21 U.S.C. Section 846. Said conspiracy is alleged to have taken place from January 1973 up to the date of the indictment. Basically, Count One of the indictment charges a conspiracy to distribute heroin in Baltimore, Philadelphia and Miami. It is alleged that the Walkers were large-scale heroin dealers in the Miami metropolitan area and that they would themselves or through couriers travel to Los Angeles, California, to obtain drugs from defendant Edward Robinson and unindicted co-conspirator Felix Mike. (Paragraph 14 of Count One). It is further alleged that defendant Robinson and Mike would bring heroin to the Walkers in Miami. (Paragraph 15 of Count One).
As to defendant Burman, the indictment charges that he was a large-scale heroin dealer in Baltimore City and Baltimore County and that he obtained large quantities of heroin from defendants James Kinner Conway and Leroy Tiller, Jr. for resale, said heroin having been obtained from defendant Robinson. (Paragraph 10 of Count One).
It is further alleged that defendants Sheppard, Mayo and Boyd distributed heroin obtained from defendant Robinson in the Philadelphia area. (Paragraphs 11-14 of Count One).
Finally, it is alleged that defendant Robinson, the main supplier of heroin to defendants in Baltimore, Miami and Philadelphia, in turn obtained heroin from defendants Padilla-Sanchez and Calvillo-Flores. (Paragraphs 4 and 18 of Count One).
Defendants Joseph and Julia Walker and defendant Burman were tried before a jury in a trial that began on January 31, 1977. At the trial, the government presented evidence which, if believed by the jury, was sufficient to prove all of the indictment allegations mentioned above. The jury returned a verdict of guilty as to the Walkers on February 19, 1977, but was unable to reach a verdict as to Burman. The court declared a mistrial as to Burman on February 20, 1977. Burman was tried again before a jury from March 24, 1977 to March 30, 1977 and was found guilty.
The Walkers filed a motion for new trial and in arrest of judgment on March 10, 1977, and Burman filed such a motion on April 4, 1977. The main point raised in both motions is whether there was a fatal variance between the allegations in Count One of the indictment and the proof at trial in violation of the rule of Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). In the court's view, there has been no fatal variance, and the defendants' motions for new trial on this ground must be denied.
Due to the increasing frequency of conspiracy indictments in narcotics cases and to the lack of authority on this question in the Fourth Circuit, the court considers it necessary to state the reasons for its ruling in this written opinion. As one commentator has stated, the rationale of Kotteakos v. United States, supra, imposes three major requirements on the district judge, one of which is ". . . articulation when denying motions for new trial based on claims of prejudicial variance, in order to provide the appellate courts with some of the benefits of first-hand observation." See Note, "Federal Treatment of Multiple Conspiracies," 57 Colum.L.Rev. 387 (1957) at 405.
The controlling decision on the question of a single conspiracy being charged and multiple conspiracies being proven is Kotteakos v. United States, supra. In that case, the government indicted thirty-two persons for a single conspiracy to induce various financial institutions to make loans which would then be insured by the Federal Housing Administration on the basis of fraudulent information. Nineteen of these persons were brought to trial, and seven were convicted. The evidence proved eight or more separate conspiracies by separate groups of conspirators which had little or no connection with each other. The Supreme Court reversed, stating:
But if the practice here followed were to stand, we see nothing to prevent its extension to a dozen, a score, or more conspiracies and at the same time to scores of men involved, if at all, only separately in them. The dangers of transference of guilt from one to another across the line separating conspiracies, subconsciously or otherwise, are so great that no one really can say prejudice to substantial right has not taken place. (328 U.S. at 774, 66 S.Ct. at 1252).
It is important to note that not every variance between the indictment and proof can or should be characterized as a fatal variance. The crucial question is whether the defendant has been prejudiced by the variance. This factor was highlighted by the Supreme Court in Kotteakos in the initial sentence of the opinion which states:
The only question is whether petitioners have suffered substantial prejudice from being convicted of a single general conspiracy by evidence which the Government admits proved not one conspiracy but some eight or more different ones of the same sort executed through a common key figure, Simon Brown. (328 U.S. at 752, 66 S.Ct. at 1241, emphasis supplied).
It is to this question of substantial prejudice which the court will now turn.
In briefly reviewing the government's proof at trial, the court will consider first the trial of the Walkers and then the second trial of Burman. At the Walkers' trial, the court ruled that it was for the jury to decide whether the government had proved one single overall conspiracy or several subordinate conspiracies. Thus, the situation differs from that in Kotteakos where it was clear, and the government admitted, that one single conspiracy had not been proved. This court held that the jury could find that the government had proved a single, overall conspiracy, the object of which was the importation of heroin from Mexican sources by Eddie Robinson and/or Felix Mike in Los Angeles and the distribution of quantities of that heroin to various other named defendants resident in Baltimore, Miami and Philadelphia. The court further held that the jury could find separate conspiracies, such as a conspiracy relating to alleged deals between the Philadelphia defendants and Robinson or Mike for the purchase of heroin obtained by Robinson or Mike from Padilla or Flores, another relating to similar alleged deals between the Miami defendants and Robinson and Mike in California, and a third relating to alleged deals between Burman through Tiller or Conway for purchase of heroin from Robinson.
At Burman's separate trial, the court also held that it was for the jury to determine whether the government had proved one single conspiracy or separate conspiracies such as those mentioned in the preceding paragraph. The main difference between the first and second trials is that the government introduced practically no evidence concerning the Miami and Philadelphia defendants at the second trial, the only defendant in the second trial being Charles Burman of Baltimore.
It is defendants' contention that the government failed to prove the existence of a single overall conspiracy as alleged in the indictment but rather proved a series of separate schemes involving Mexican sources of heroin, common Los Angeles major dealers, and separate outlying buyers in the cities named in the indictment. The outlying buyers are likened in their connection to Robinson and his sources to the spokes of a wheel, unconnected by any unifying rim. This is said to violate the principals laid down in Kotteakos. Accordingly, defendants contend that they are entitled to a new trial at which the jury should be instructed that it must acquit the defendants if the government fails to prove the one conspiracy alleged in the indictment. The court did not give such an instruction at the previous trial and does not consider such an instruction appropriate in a case where the jury could find either one overall conspiracy or several separate conspiracies. In light of defendants' contention, the court will turn to a review of the instructions given on multiple conspiracies and of the reasons for giving such instructions.
In relevant part, the court instructed as to the Walkers:
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