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U.S. v. Reyes

filed: April 11, 1991; As Amended May 15, 1991.

UNITED STATES OF AMERICA, APPELLEE,
v.
CARLOS JULIO REYES, APPELLANT



On Appeal from the United States District Court for the Middle District of Pennsylvania; D.C. Crim. No. 89-00205-02.

Becker, Nygaard and Alito, Circuit Judges.

Author: Alito

ALITO, Circuit Judge

Carlos Julio Reyes (Reyes) and two co-defendants were indicted in 1989 by a federal grand jury in the Middle District of Pennsylvania. Reyes was named in three counts. Count I charged Reyes and his co-defendants with a conspiracy having three objectives: distribution of cocaine, in violation of 21 U.S.C. § 841(a); distribution of cocaine to persons under the age of 21, in violation of 21 U.S.C. § 845(a); and distribution of cocaine within 1,000 feet of a school, in violation of 21 U.S.C. § 845(a). Reyes was also charged with the substantive offense of distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count VI), and with using and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count VII). After a jury trial, Reyes was convicted on all counts.

At Reyes' sentencing hearing, the judge found that the conspiracy involved more than five kilograms of cocaine and that Reyes was an organizer or leader of the conspiracy. Based on these findings, Reyes was sentenced to concurrent sentences of 250 months of incarceration on Counts I and VI. Reyes was sentenced to a consecutive term of 60 months of incarceration on Count VII.

On appeal, Reyes advances four arguments. First, he contends that the conspiracy count (Count I) charged three separate offenses and was therefore defective. Second, he argues that the evidence proved the existence of two separate conspiracies, not the single conspiracy charged in the indictment. Third, he asserts that the evidence was insufficient to support a conviction for using or carrying a firearm during and in relation to a drug trafficking offense. Finally, he asserts that there was insufficient evidence in the record to sustain the findings of the sentencing judge that the conspiracy involved more than five kilograms of cocaine and that he was an organizer or leader of the conspiracy. We reject Reyes' arguments concerning the validity of his conviction, but we vacate the sentence imposed by the district court and remand for further sentencing proceedings.

I.

Reyes contends that the conspiracy count of the indictment*fn1 is defective because it charges three separate offenses.*fn2 While Reyes is correct that each offense charged in an indictment must be set out in a separate count (Fed. R. Crim. P. 8(a); see United States v. Pungitore, 910 F.2d 1084, 1135 (3d Cir. 1990); United States v. Starks, 515 F.2d 112, 116 (3d Cir. 1975)), the conspiracy count of Reyes' indictment does not charge three separate offenses but a single offense, i.e., a conspiracy having multiple objectives. It is well established that "the allegation in a single count of a conspiracy to commit several crimes is not duplicitous." Braverman v. United States, 317 U.S. 49, 54, 63 S. Ct. 99, 102, 87 L. Ed. 23 (1942); see also United States v. Bucey, 876 F.2d 1297, 1312 (7th Cir.), cert. denied, 493 U.S. 1004, 110 S. Ct. 565, 107 L. Ed. 2d 560 (1989). The conspiracy is one crime "'however diverse its objectives.'" Braverman, 317 U.S. at 54; see also United States v. Daily, 921 F.2d 994, 1001-01 (10th Cir. 1990); United States v. Sullivan, 919 F.2d 1403, 1435 n.53 (10th Cir. 1990).

II.

Reyes next contends that the trial evidence was insufficient to prove the single conspiracy charged in Count I. Specifically, Reyes maintains that the evidence did not connect the conspiracy in which he joined with the evidence of drug distribution near two schools. In assessing Reyes' argument, we must determine whether the record, viewed in the light most favorable to the government, contains substantial evidence to support the jury's verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680 (1942); United States v. Kelly, 892 F.2d 255, 258 (3d Cir. 1989), cert. denied, 497 U.S. 1006, 110 S. Ct. 3243, 111 L. Ed. 2d 754 (1990); United States v. Furst, 886 F.2d 558, 565 (3d Cir. 1989), cert. denied, 493 U.S. 1062, 110 S. Ct. 878, 107 L. Ed. 2d 961 (1990). Applying this standard, we find no merit in Reyes' argument.

In Blumenthal v. United States, 332 U.S. 539, 559, 92 L. Ed. 154, 68 S. Ct. 248 (1947), the Supreme Court held that a single conspiracy had been proved because "all [defendants] knew of and joined in the overriding scheme . . . . All by reason of their knowledge of the plan's general scope, if not its exact limits, sought a common end. . . ." This circuit has held that a single conspiracy is proved when there is "evidence of a large general scheme, and of aid given by some conspirators to others in aid of that scheme." United States v. Kenny, 462 F.2d 1205, 1216 (3d Cir.), cert. denied, 409 U.S. 914, 935 S. Ct. 233, 34 L. Ed. 2d 176 (1972); see United States v. Theodoropoulos, 866 F.2d 587, 593 (3d Cir. 1989); United States v. Adams, 759 F.2d 1099, 1109-10 (3d Cir.), cert. denied, 474 U.S. 906, 88 L. Ed. 2d 236, 106 S. Ct. 275 (1985).

We have reviewed the record, and we find sufficient evidence to support a finding of a single conspiracy that included the distribution of drugs near the schools. For example, there was evidence that Reyes and Juan Basilio Montilla-Davila were partners in the distribution of drugs, and the evidence strongly tied Montilla-Davila to the drug distribution near the schools. In addition, there was evidence that Reyes conspired with Jorge Porte, who was also closely tied to the activity near the schools. Taken together, the evidence was sufficient to permit the jury to infer that the drug distribution near the schools and the other overt acts were all part of the large general scheme in which Reyes joined.

III.

Reyes asserts that there is insufficient evidence to sustain his conviction for "using or carrying" a firearm "during and in relation to . . . a drug trafficking offense," in ...


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