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United States v. Gomberg

decided: August 30, 1983.

UNITED STATES OF AMERICA, APPELLEE,
v.
DAVID GOMBERG, APPELLANT IN NOS. 82-1258/1534; UNITED STATES OF AMERICA, APPELLEE, V. HAROLD LEVY, APPELLANT IN NO. 82-1477; UNITED STATES OF AMERICA, APPELLEE, V. MICHELLE D'AMICO, APPELLANT IN NO. 82-1478; UNITED STATES OF AMERICA, APPELLEE, V. ALBERT SPIELVOGEL, APPELLANT IN NO. 82-1479; UNITED STATES OF AMERICA, APPELLEE, V. JOSEPH DISANTIS, JR., APPELLANT IN NO. 82-1485



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.

Weis and Higginbotham, Circuit Judges, and Stanley Seymour Brotman, District Judge.*fn*

Author: Weis

Opinion OF THE COURT

WEIS, Circuit Judge.

In these appeals from drug convictions, we reject the defendants' contention that a count charging a conspiracy with two objectives was duplicitous. We also find no merit to the challenge that there was a variance between the conspiracy alleged in the indictment and the evidence produced at trial. We agree, however, that a defendant sentenced under the Comprehensive Drug Abuse Prevention and Control Act for engaging in a continuing criminal enterprise should not also receive separate sentences for conspiracy and the underlying predicate offenses. As to the defendant convicted of the continuing criminal enterprise, we remand for resentencing. The convictions and sentences of the other defendants are affirmed.

A six-count indictment charged Joseph DiSantis, Jr., David Gomberg, Albert Spielvogel, and Michelle D'Amico with violations of the Comprehensive Drug Act, 21 U.S.C. § 801 et seq. Count One charged all defendants with conspiracy under section 846 "to manufacture and distribute methamphetamine, and to distribute and possess with the intent to distribute phenyl-2-propanone." Harold Levy was charged in a separate indictment with participating in the conspiracy. The main indictment further alleged that defendants had violated various substantive provisions of the Act. In addition, DiSantis was charged with engaging in a continuing criminal enterprise, id. § 848.

The two indictments were consolidated for a jury trial which lasted thirteen days. Much of the evidence came from Ronald Raiton, a leader of the conspiracy who testified for the prosecution as part of a plea bargain. The jury found defendants guilty as charged, except that D'Amico was acquitted on one count.

Defendants raise numerous issues in these appeals, but after careful review we deem it necessary to discuss only a few of them in detail. The appendix to this opinion lists the remainder of the contentions, all of which we find without merit.

I

Defendants contend that the indictment was duplicitous because the conspiracy count charges them with two separate offenses. They also argue there was a variance between the conspiracy charged in the indictment and the proof offered at trial.

Duplicity is the joining of two or more distinct offenses in a single count, so that a general verdict does not reveal exactly which crimes the jury found the defendant had committed. 1 C. Wright, FEDERAL PRACTICE AND PROCEDURE § 142 (1982). According to defendants, Count One charges two separate conspiracies -- one to manufacture and distribute methamphetamine, and another involving P2P. They rely on United States v. Starks, 515 F.2d 112, 116 (3d Cir. 1975), where we instructed trial courts to require the government to elect between duplicitous charges at trial, or else suffer dismissal of the indictment.

Starks does not support the defendant's position. The single-count indictment in that case charged the defendants with conspiracy to extort and attempt to extort -- two separate crimes. In contrast, the count at issue here charges defendants with only one crime: a conspiracy. Although the illegal agreement had two objectives, the count is not duplicitous. "The conspiracy is the crime, and that is one, however diverse its objects. " Braverman v. United States, 317 U.S. 49, 54, 87 L. Ed. 23, 63 S. Ct. 99 (1942), quoting Frohwerk v. United States, 249 U.S. 204, 210, 39 S. Ct. 249, 63 L. Ed. 561 (1919). See also W. LaFave and A. Scott, CRIMINAL LAW § 62 (1972) ("An agreement to commit several crimes is but one conspiracy."). Accordingly, we reject the defendant's duplicity attack.

We turn next to the variance argument. Defendants assert the proof at trial showed the existence of many different and unrelated conspiracies, and the spillover of evidence prejudiced them.They rely on Kotteakos v. United States, 328 U.S. 750, 90 L. Ed. 1557, 66 S. Ct. 1239 (1946), where the Supreme Court reversed the convictions of individuals who had been indicted as participants in a single conspiracy because the prosecution proved the existence of several unrelated schemes. See also United States v. Camiel, 689 F.2d 31 (3d Cir. 1982). In reviewing the defendants' argument, we must examine the record to determine whether, viewed in the light most favorable to the government, there is sufficient evidence of a single conspiracy to support the verdict. United States v. Boyd, 595 F.2d 120, 123 (3d Cir. 1978).

At trial, the government proved the existence of an international drug ring that grossed millions of dollars. In the summer of 1978, DiSantis made Raiton a partner in his methamphetamine laboratory in Plymouth Meeting near Philadelphia. The two men soon decided to expand production, and opened a new laboratory in Upper Darby. This facility was shut down after DiSantis and one of the chemists were arrested for narcotics possession, but DiSantis and Raiton later started another one in Bucks County and hired a different chemist. During this time, the partners employed Gomberg and Spielvogel, who formed sham companies to purchase the essential ingredients for methamphetamine, particularly P2P. Levy, an attorney who shared office space with the partners, was retained in an attempt to gain the release of a shipment of P2P seized by federal drug agents.

DiSantis and Raiton also arranged to have P2P brought into the United States from France and Germany. Some deliveries were sent to a sham company in Philadelphia; others were routed through Miami. In addition, Levy organized a forwarding company in Canada to import the European P2P and hold it for shipment into the Philadelphia area.

When the supply of P2P exceeded their own manufacturing needs, DiSantis and Raiton began to sell the chemical to other drug dealers. The partners hired D'Amico to assist Gomberg in making deliveries and collecting money. On one occasion, D'Amico siphoned P2P into smaller containers in a ruse to throw drug enforcement agents off the trail.

DiSantis and Raiton continued their mutual dealings even after the partnership was dissolved in late 1979. DiSantis kept the methamphetamine operation, and Raiton supplied him with P2P. During this time, Spielvogel was instrumental in smuggling P2P into the United States from the Bahamas. The entire operation was finally broken up after Raiton and one of his customers agreed to cooperate with the government in 1981.

These facts suffice to show the existence of a single conspiracy in which all defendants knowingly participated. A division of labor among conspirators in pursuit of a common goal does not necessitate a finding of discrete schemes. See United States v. Elam, 678 F.2d 1234, 1246-47 (5th Cir. 1982); United States v. Boyd, 595 F.2d at 123. Moreover, the trial judge explicitly directed the jury's attention to the unitary conspiracy issue. See also United States v. Kenny, 462 F.2d 1205, 1217 (3d Cir.), cert. denied, 409 U.S. 914, 93 S. Ct. 233, 34 L. Ed. 2d 176 (1972). He charged the jury: "What you must do is determine whether the single conspiracy charged in the indictment existed between two or more conspirators. If you find that no such conspiracy existed then you must acquit the defendants as to that charge . . . . In other words, to find a defendant guilty you must find that he was a member of the conspiracy charged in the indictment and not some other separate conspiracy." In applying these instructions to the evidence, the jury could reasonably find that defendants had all agreed to participate in one common drug enterprise.

In a related argument, defendants contend that the trial judge erred in refusing to instruct the jury that a defendant could be found guilty only if "he agreed to perform the two things charged, to manufacture methamphetamine and to distribute P2P." The jury was told instead that "one may become a member of a conspiracy without full knowledge of all of the details of the alleged unlawful scheme . . . . So if a defendant with an understanding of the unlawful character of a plan knowingly and willfully joins in an unlawful scheme on one occasion that is sufficient to convict him for conspiracy . . . ."

These instructions were proper. The test for conspiracy is whether a defendant agreed to participate in an unlawful scheme, with knowledge of its "essential nature." Blumenthal v. United States, 332 U.S. 539, 557, 92 L. Ed. 154, 68 S. Ct. 248 (1947). A conspirator need not know all the details of the enterprise, United States v. Boscia, 573 F.2d 827, 834 (3d Cir.), cert. denied, 436 U.S. 911, 98 S. Ct. 2248, 56 L. Ed. 2d 411 (1978), nor join in all its illegal objectives. See also United States v. Murray, 618 F.2d 892, 898 (2d Cir. 1980); United States v. Carman, 577 F.2d 556, 567 (9th Cir. 1978); United States v. Bolts, 558 F.2d 316, 325-26 (2d Cir.), cert. denied, 434 U.S. 930, 98 S. Ct. 417, 54 L. Ed. 2d 290 (1977).*fn1

Finally, some defendants contended at trial that their participation in the conspiracy ended before P2P was listed as a controlled substance in February 1980. They attack their convictions on the ground that the jury might have found that their roles were limited to possessing and distributing P2P at a time when it was not illegal to do so.

The limiting instruction given by the trial judge met the defendants' objection. The jury was told that a conspiracy merely to deal in an uncontrolled substance was not illegal. The judge carefully explained that a defendant implicated "solely in the possession, importation or distribution of P2P before that time [February 1980]" could not be found guilty, "unless he knew that the P2P was to be used in the manufacture of methamphetamine . . . and . . . he joined the conspiracy with the intent of aiding the conspiracy to carry out that illegal purpose." This limiting interpretation of the conspiracy did not amount to an improper amendment of the indictment, see United States v. Milestone, 626 F.2d 264 (3d Cir.), cert. denied, 449 U.S. 920, 66 L. Ed. 2d 148, 101 S. Ct. 319 (1980), nor did it deny defendants notice of the crime charged.

In short, we find no reversible error on the conspiracy convictions.

II

DiSantis argues that he was sentenced improperly on Counts Two through Five. After being found guilty on all counts, he received the following sentences:

COUNT VIOLATION SENTENCE

I Conspiracy to manufacture Five years ...


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