APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA D.C. Crim. No. 76-209-3, 76-209-5, 76-209-11, 76-209-15, 76-209-14
Before Gibbons, Hunter, Circuit Judges, and Weber,*fn* District Judge.
In this case appellants raise several grounds for reversal of their convictions of conspiracy and substantive offenses relating to the manufacture and distribution of methamphetamine in the Philadelphia area during 1975. Although we have reviewed all of the contentions raised by appellants,*fn1 we shall discuss only two issues: 1) whether a prejudicial variance existed between the conspiracy count of the indictment and the proof adduced at trial; and 2) whether the trial judge erred in allowing the jury to consider evidence of illegal acts occurring after the conspiracy alleged in the indictment had terminated. Because we find that the admission of postconspiracy crimes was prejudicial error, we reverse.
This case arises from a sixteen-count indictment returned by a grand jury in the Eastern District of Pennsylvania naming sixteen individuals. Count one of the indictment alleged a conspiracy to manufacture and distribute methamphetamine, a Schedule II controlled substance; fourteen other counts related to methamphetamine distribution.*fn2 The government prosecuted the five appellants William Boyd, James D'Metri, Michael Lipton, George Parr and Stephen Powell together, along with Marthana Heyman, who has not appealed her conviction.
The government's case relied heavily on the testimony of Agent Laurence Kutney of the Pennsylvania Department of Justice, Bureau of Drug Control, and James Love, a government informant. Love introduced Kutney to appellant Boyd in July 1975 as a friend and narcotics dealer from Ohio. Through Boyd, Love and Kutney were introduced to the other appellants on the assumption that Kutney would serve as a source of supply for phenyl-2-propanone (P-2-P), a precursor involved in the manufacture of methamphetamine. Kutney first agreed to supply P-2-P in exchange for a share of the methamphetamine produced. At that time, the group included himself, Love, Boyd, D'Metri, and one other partner. Appellant D'Metri functioned as a chemist for the manufacturing process, and with the assistance of others, attempted to manufacture methamphetamine at a laboratory located on Ridge Avenue in Northeast Philadelphia. The attempt failed; Boyd himself indicated that the substance was not of good quality, and evidence at trial indicated that the substance produced was not methamphetamine. Nevertheless, at least part of the batch was sold, through Boyd and appellant George Parr.
After the failure of the Ridge Avenue attempt to manufacture the drug, Boyd brought Kutney into contact with Parr in August 1975. Through Parr, Kutney was introduced to appellants Lipton and Powell, who were to assist Parr in establishing a laboratory in Bucks County. Again, Kutney was to serve as the source of supply for P-2-P, in exchange for a share of the methamphetamine produced.
This arrangement proved to be more successful, and Kutney was provided with quantities of methamphetamine apparently manufactured at a laboratory in Bucks County. After the deliveries to Kutney, the defendants became suspicious of him, and his involvement with the group dropped off. The defendants were later arrested. The grand jury's indictment was returned in April 1976, and trial commenced on September 7, 1976.
Appellants raise the question of variance between the indictment and the government's proof at trial in two different ways. Parr, Lipton and Powell directly challenge the sufficiency of the evidence of the single conspiracy charged. D'Metri raises as error the trial judge's denial of his motion to sever his case from his co-defendants.
Appellants Parr, Lipton and Powell contend that their convictions should be reversed because the proof at trial indicated that the Ridge Avenue scheme and the Bucks County scheme were two separate conspiracies to manufacture and distribute methamphetamine rather than the single conspiracy charged in the indictment. They argue that under Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946), the prejudice inherent in eliciting before the jury the events surrounding the plans and actions of the earlier Ridge Avenue conspiracy affected their substantial rights.
Under Kotteakos, supra, proof at trial which establishes the existence only of multiple conspiracies when a single conspiracy is charged in the indictment constitutes a variance. If substantial rights of the defendants might have been affected by a variance, their convictions on the conspiracy count must be reversed. In determining whether a variance has occurred, we must first ascertain if, viewing the evidence in light most favorable to the government, substantial evidence supports the jury's determination of ...