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United States v. Johnstone

argued: July 11, 1988.

UNITED STATES OF AMERICA
v.
DONALD JOHNSTONE, APPELLANT



On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Criminal No. 87-00144-09.

Sloviter, Scirica and Weis, Circuit Judges.

Author: Scirica

Opinion OF THE COURT

SCIRICA, Circuit Judge.

In this appeal, Donald Johnstone challenges his jury conviction of offenses under the Comprehensive Drug Abuse Prevention and Control Act (Controlled Substances Act), specifically, 21 U.S.C. § 846 (1982) (conspiracy), and 21 U.S.C. § 843(b) (using a telephone to facilitate a conspiracy to distribute methamphetamine, and to facilitate the distribution of methamphetamine). Johnstone claims a violation of his Fifth Amendment right to indictment by a grand jury because the indictment did not allege his specific role in the conspiracy. He also challenges his convictions of using a telephone to facilitate the distribution of methamphetamine, maintaining that the government failed to prove an actual distribution. Furthermore, he contends that the district court selected, and improperly instructed the jury in accordance with, an incorrect standard concerning the burden of proof on the underlying drug felonies.

The district court sentenced Johnstone to three years imprisonment for the conspiracy conviction, five years probation and a $2,000 fine for conviction of illegal use of a telephone to facilitate the conspiracy, and a suspended sentence for each conviction of use of a telephone to facilitate the distribution of methamphetamine. The district court imposed a $50.00 special assessment on each of Johnstone's four convictions.

I. The Conspiracy Conviction

Count two, the conspiracy count of the indictment, provided:

THE GRAND JURY FURTHER CHARGES THAT: From in or about January of 1985, and continuing thereafter to on or about December of 1986, in the Eastern District of Pennsylvania, defendants

GEORGE WETTON

KENNETH SCHWARTZ, a/k/a "Kenny"

PAUL HERIEGEL

JAMES KIRBY, a/k/a "Steve"

NANCY KELLY

DARLENE ...


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