United States v. Leo Spanos

462 F.2d 1012

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 21, 1972
• Docket: 71-2342
• Status: Published

Opinions

DUNIWAY, Circuit Judge:

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Godwin and others to violate former 21 U.S.C. § 331 (q) (2) and (3), (added by Pub.L. 89-74, § 5, 79 Stat. 226, 232, repealed by Pub.L. 91-513, § 701(a), 84 Stat. 1236, 1281) which prohibited sale and possession of certain stimulant drugs (21 U.S.C. § 511(b) and (c) as they read prior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.

“In all criminal prosecutions, the accused shall enjoy the right to a . . . trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law. . . . ”

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 ease 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 oppression against which the Sixth Amendment is directed could be easily compassed by this device, because if the seller be a real accessory he may be removed to the place of the crime. Hoss v. United States, 8 Cir., 232 F. 328, 335; United States v. Littleton, D.C., 1 F.2d 751.

“The same reasoning applies to the conspiracy count. . . . ”¹

The conspiracy here charged is as follows:

“Beginning on or about October 21, 1969, and continuing to March 9, 1970, in the Central District of California, and elsewhere, defendant LEO SPANOS, and unindicted co-conspirator Rodney Francis Godwin, and other conspirators both known and unknown to the Grand Jury agreed, confederated, and conspired together to commit offenses against the United States in violation of Title 21, United States Code, Section 331(q) (2) and 331(q) (3), to wit:

1. to sell stimulant drugs contrary to law;

2. to possess for sale stimulant drugs contrary to law.

The objects of said conspiracy were to be accomplished as follows:

Defendant LEO SPANOS would supply unindicted co-conspirator Rodney Francis Godwin with amphetamine tablets whenever Godwin located a buyer or buyers. When Godwin located a buyer or buyers he would contact LEO SPANOS and a meeting would be arranged at which time Godwin would receive the amphetamine tablets from LEO SPANOS. Godwin would then deliver the drugs to the buyer or buyers.”

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 state-ents) 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 U, 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.

a. Godwin’s testimony.

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 God-win 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.

b. Ozment’s testimony.

“Q. What was the substance of that conversation ?

A. We discussed the previous purchase and I told him that we liked the merchandise we had gotten before. He said, in effect, this merchandise is the same as the last time, it has the labels on it like the others you got, and then he told me he didn’t want to do any business at that time because he knew he was being followed, and then he started to leave.”

4. Other direct evidence relating to Spanos.

a. Agent Herring testifying.

On November 26, 1969, at Godwin’s home, Godwin telephoned Spanos.

“He [Godwin] did ask to speak with Leo [Spanos], and part of the conversation that I heard was, well, are you going to do any business at all or not, for how long, Tuesday, okay, then I will be in touch. The conversation was then ended.”

Herring had no more dealings with God-win, much less with Spanos.

b. Godwin testifying.

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.

c. Agent Clark testifying.

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 God-win, Spanos and others agreed, within the Central District of California, that Spanos “would supply Godwin . whenever Godwin located a buyer or buyers” and that, “When Godwin located a buyer or buyers he would contact . Spanos and a meeting would be'arranged at which time Godwin would receive the amphetamine . . . from Spanos. Godwin would then deliver the drugs to the buyer or buyers.”

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:

“Assuming that Peoni and Regno agreed that Regno should have possession of the bills, it is absurd to say that Peoni agreed that Dorsey should have them from Regno. Peoni knew that somebody besides Regno might get them, but a conspiracy also imports a concert of purpose, and again Peoni had no concern with the bills after Regno paid for them. At times it seemed to be supposed that, once some kind of criminal concert is established, all parties are liable for everything anyone of the original participants does, and even for what those do who join later. Nothing could be more untrue. Nobody is liable in conspiracy except for the fair import of the concerted purpose or agreement as he understands it; if later comers change that, he is not liable for the change; his liability is limited to the common purposes while he remains in it. The confusion is perhaps due to the fact that everything done by the conspirators — including the declarations of later entrants — is competent evidence against all, so far as it may fairly be thought to be in execution of the concert to which the accused is privy, though that doctrine too is often abused.” (100 F.2d at 403) (Emphasis added.)

Nothing in the cases cited to us supports a claim that Peoni, as analyzed in United States v. Ragland, 2 Cir., 1967, 375 F.2d 471, 477, does not fit our facts or is no longer a controlling precedent, except in the very narrow field to which it directly applies, whatever that may be thought to mean. The only reference to Peoni in Ragland appears at 375 F.2d at p. 477. There, Judge Waterman quotes from Peoni, with apparent approval, the following:

“The accused must ‘in some sort associate himself with the venture, * * * participate in it as in something that he wishes to bring about * * * [or] seek by his action to make it succeed.’ ”

No other case is cited to us to support the argued characterization of the status of Peoni.

Moreover, Spanos’ case does fall within the very narrow field to which Peoni directly applies, if that language means anything. The charged conspiracy is that Godwin was to find buyers, then get the pills from Spanos and deliver them to the buyers. The proof is only that Godwin bought from Spanos, then tried twice to buy again and was refused. The proof is similar to what was proved in Peoni, and was there held insufficient. It certainly does not make out a prima facie case of the conspiracy charged.

Also in point is United States v. Cianchetti, 2 Cir., 1963, 315 F.2d 584, 587. There, there was a substantial conspiracy to import heroin into the United States and sell it. The conspirators needed a new outlet and Cianehetti was approached. He met with some of the conspirators, displayed considerable knowledge of the conspiracy, and discussed the difficulties of selling heroin once it was imported. He then, because he was already in trouble with the law, declined to participate. He did agree to a second meeting, at which he again refused to participate. After further talk, he said he might be able to help, but the conspirators never heard from him again. He was convicted as a member of the conspiracy. On appeal, the court said:

“Appellant Cianehetti, for purposes of this appeal, does not contest the Government’s proof that a conspiracy existed or that Cianehetti had knowledge of its operations. He argues, however, that there was insufficient evidence to warrant the conclusion that he entered, participated in, or furthered the conspiracy. We agree, and we therefore reverse his conviction and dismiss the indictment as to him.

There is little doubt that Cianehetti knew of the Marseilles group, for he admitted to Warycha in their conversation in September 1960 that he had known the Arancis for thirty years and that they had offered him large quantities of heroin; moreover, he discussed with Warycha the problems of distribution and of securing prompt and full payment. But knowledge of the existence and goals of a conspiracy does not of itself make one a cocon-spirator. . . .

Rather than revealing a stake in the conspiratorial venture or an affirmative attempt to further its purposes, Cianchetti’s statements of his intention were at least equivocal, at most clearly disclamatory. . . .

Neither we nor the District Court sits in judgment of an individual’s reasons for abstaining from an agreement to commit a crime. Cianchetti’s motives may not have been wholly laudatory [sic], but the fact remains that the evidence shows that he did indeed abstain. He did not cast in his lot with the conspirators, did nothing to further the success of the enterprise, and had no stake in its outcome. His conviction must be reversed." 587-588.) (PP-

The parallel between Cianchetti’s behavior and Spanos’ is striking, especially on November 19 and in the November 26 phone call.

It is true that the Peoni and Cianehetti cases deal with the sufficientcy of evidence to support a jury verdict, not the sufficiency of evidence to make out a prima facie ease under Carbo. But they did not involve what we have here, an extensive use of Godwin’s out of court statements, not testified to by Godwin at the trial, to bolster a supposed prima facie case and thus turn it into proof beyond a reasonable doubt. They deal with the type of behavior and knowledge that is evidence of a conspiracy at all. Thus, the principles they apply are also applicable here. Like Peoni, Spanos sold, presumably knowing that Godwin would probably resell; like Cianehetti, Spanos refused to make further sales, when for the first time (so far as the evidence shows) he learned the extent of Godwin’s sales and to whom he was selling. His motives, like Cianchetti’s, were not laudable, but as Cianehetti holds, that is immaterial.

This case also falls within the principles laid down by the Supreme Court in Direct Sales Co. v. United States, 1943, 319 U.S. 703, 63 S.Ct. 1265, 1269, 87 L.Ed. 1674. There, on evidence far stronger than in this case, the Court found that the conspiracy had been proved, but in doing so it laid down careful limitations on the conspiracy doctrine:

“There may be circumstances in which the evidence of knowledge is clear, yet the further step of finding the required intent cannot be taken. Con-cededly, not every instance of sale of restricted goods, harmful as are • opiates, in which the seller knows the buyer intends to use them unlawfully, will support a charge of conspiracy.” [Id. at 712.]

In a footnote to this passage the Court also stated:

“This may be true, for instance, of single or casual transactions, not amounting to a course of business, regular, sustained, and prolonged, and involving nothing more on the seller’s part than indifference to the buyer’s illegal purpose and passive acquiescence in his desire to purchase, for whatever end. A considerable degree of carelessness coupled with casual transactions is tolerable outside the . boundary of conspiracy. There may be also a fairly broad latitude of immunity for a more continuous course of sales, made either with strong suspicion of the buyer’s wrongful use or' with knowledge, but with stimulation or active incitement to purchase.” [Jd. fn. 8.]

The foregoing is a good description of what the evidence aliunde shows here. There is no doubt that the government could have charged Spanos with the October sale, but it did not. The government did not prove, even prima facie, what it charged; we cannot sustain the conviction because the government proved what it did not charge.

The judgment is reversed, with instructions to dismiss the indictment.

1 . The pertinent language of the Sixth Amendment reads: