The opinion of the court was delivered by: NICKERSON
Defendants Ken Clark, Eric Romandi and Doris Jackson move for an acquittal or in the alternative for a severance. They and ten others were indicted for conspiracy to import from Bangkok and distribute quantities of heroin and for various acts of importation or distribution of heroin. 21 U.S.C. § 846ff. Clark was named in two substantive importation counts and Romandbi and Jackson in one.
Following a lengthy trial the jury found three defendants, including Charles Praetorius, the conspiracy's asserted organizer and manager, guilty of the conspiracy to import and distribute heroin. Clark, Romandi and Jackson were found not guilty of conspiracy. The jury was unable to reach a verdict as to any of the importation counts or as to any of the other defendants on the conspiracy count.
On the government's motion the substantive counts were dismissed as to the three defendants convicted of conspiracy. Now the government seeks a joint trial of all remaining defendants on all charges as to which the jury hung. In moving to dismiss the importation charges, or in the alternative to sever their trial, Clark, Romandi and Jackson claim that the acquittal of conspiracy bars the government from proceeding against them for importation, that the evidence used to prove their participation in the conspiracy may not be introduced again and without that evidence there is insufficient proof of their commission of the importation offenses, and that in any event their trial with the other defendants would be an impermissible joinder under Rule 8 of the Federal Rules of Criminal Procedure or at least so prejudicial as to require a severance under Rule 14.
For reasons hereafter stated the motions to dismiss are denied and the motions to sever are granted.
The government's theory at trial was that the conspiracy was organized and managed by Praetorius, who recruited other defendants to make trips to Bangkok and return with heroin which he then arranged to distribute. Separate substantive counts allege separate trips in which different groups of defendants jointly participated. All defendants were charged with membership in the overall conspiracy and with importing or aiding and abetting the importation of heroin on the trips which they took. Each of the substantive offenses is thus part of the alleged conspiracy.
Clark, Romandi and Jackson argue that the same evidence offered to prove their importation was also introduced to show their participation in the conspiracy and that the acquittal on the latter charge bars the government from now using that evidence to show importation. Since no evidence against them not relevant to the conspiracy charge was introduced, they say that the government was left without sufficient proof to establish a prima facie case.
But the government is not precluded from proving the charge of importation by evidence which the jury found insufficient to establish conspiracy. The crime of conspiracy, that is, of an agreement to commit an illegal act, here the importation of heroin, is a different crime from that of committing the substantive offense. Sealfon v. United States, 332 U.S. 575, 578, 68 S. Ct. 237, 92 L. Ed. 180 (1948); Pinkerton v. United States, 328 U.S. 640, 643, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946). The jury could have found from the evidence that the three defendants imported the heroin but that they did not enter into the alleged conspiracy to do so. All three returned to the United States within a day or two of leaving Bangkok. There was testimony that in Bangkok the drug was taped to the bodies of Clark and Romandi. From Clark's admissions the jury could have found that he arrived in the United States still packed with the heroin. In addition Clark made up some of the packages of heroin by stamping them down. As to Jackson there was proof that she was present in Bangkok when the heroin was weighed, that she picked it up, that Praetorius gave it to her companion defendant Carlotta Ragan with whom she departed the room, and that Ragan and Jackson returned to be examined by Praetorius to determine whether noticeable bulges appeared through their clothing.
The jury plainly could conclude that Clark brought the drug back into the United States without finding that he had entered into an agreement with Praetorius to do so. Indeed, there was evidence that Clark was carrying "for himself" and not for Praetorius.
The jury could have reached a similar conclusion as to Romandi, who testified on his own behalf. He claimed he went to Bangkok to buy jewelry for his fiance, had no prior knowledge of the conspiracy, and returned prematurely when asked to bring back heroin. A jury could have believed his version as to the extent of his knowledge of the conspiracy and yet have discredited his denial that he carried back heroin.
Jackson was pictured by her counsel at the trial as the mere dupe or hand maiden of Ragan. Praetorius hardly spoke to Jackson, and the jury could well have decided that she was not party to any conspiracy with him, whatever her relationship to Ragan, and yet had returned with heroin.
As to all three defendants the evidence supporting a finding of importation would also have justified an inference that they had become part of the Praetorius conspiracy. But that evidence did not make such an inference inevitable.
Moreover, as to all three the evidence was sufficient to justify a verdict of guilty for aiding and abetting the importation. The testimony that Clark stamped on the heroin to package it for others could have been believed without requiring the conclusion that he was acting pursuant to a prearranged conspiracy to import. The proof, if accepted, of Romandi's act of allowing himself to be packed with heroin permitted the inference that he was aiding in the importation without necessitating a finding that he had joined the ...