United States v. Leo Spanos

(dissenting) :

INDEPENDENT EVIDENCE

Godwin, an unindicted co-conspirator who had been dealing in illegal drugs for a number of years, testified for the government. His testimony is summarized as follows: Prior to October, 1969, he had been acquainted with appellant for a period of approximately one and one-half years and during that period of time he had occasionally made trips to the San Francisco area and purchased “pills” 1 from appellant. Godwin resided in the Central District of California. Appellant resided in San Carlos, near San Francisco, in the Northern District of California. Generally, Godwin commuted between the Los Angeles area and the San Francisco area by plane. All advance arrangements for purchase of the “pills” were made by telephone. In October, 1969, Godwin made an arrange-

On November 4, 1969, after a telephone arrangement, Godwin made another trip by private plane from the Los Angeles area to the San Francisco Bay area with undercover agent Ozment to pick up 100,000 “pills”. Godwin left the agent at a restaurant and went to appellant’s home in San Carlos to obtain the pills. Delivery was not made on account of disagreement as to the financial arrangements…

Spanos appeals from a judgment of conviction under an indictment charging him with conspiring ( 18 U.S.C. § 371 ) with one Godwin and others to violate former 21 U.S.C. § 331 (q) (2) and (3), (added by Pub.L. 89-74, § 5 , 79 Stat. 226 , 232, repealed by Pub.L. 91-513, § 701 (a), 84 Stat. 1236 , 1281) which prohibited sale and possession of certain stimulant drugs ( 21 U.S.C. § 511 (b) and (c) as they read prior to their repeal by Pub.L. 91-513, supra, § 1101(a) (10)). This case is kept alive by §§ 702 (a) and 1103(a) of Pub.L. 91-513. We reverse.

What happened here is an abuse of the conspiracy charge; the government failed to prove its case. There was a good case for convicting Spanos for one unlawful sale of amphetamines at San Carlos, California, in the Northern District of California. One reason for the conspiracy charge was to place the offense in the Central District of California, where the ease was tried. Many years ago Judge Learned Hand in United States v. Peoni, 2 Cir., 1938, 100 F.2d 401, 403 , warned against just this sort of abuse. In a case in which the defendant was charged as an accessory and as a conspirator, he said:

The conspiracy here charged is as…

462 F.2d 1012 UNITED STATES of America, Plaintiff-Appellee, v. Leo SPANOS, Defendant-Appellant. No. 71-2342. United States Court of Appeals, Ninth Circuit. May 4, 1972. Rehearing Denied Aug. 21, 1972. Edward L. Cragen (argued), San Francisco, Cal., for defendant-appellant. Larry S. Flax, Asst. U. S. Atty. (argued), Eric A. Nobles, Asst. U. S. Atty., William D. Keller, U. S. Atty., Los Angeles, Cal., for plaintiff-appellee. Before MERRILL, DUNIWAY and KILKENNY, Circuit Judges. DUNIWAY, Circuit Judge: 1 Spanos appeals from a judgment of conviction under an indictment charging him with conspiring ( 18 U.S.C. Sec. 371 ) with one Godwin and others to violate former 21 U.S.C. Sec. 331 (q) (2) and (3), (added by Pub.L. 89-74, Sec. 5 , 79 Stat. 226 , 232, repealed by Pub.L. 91-513, Sec. 701 (a), 84 Stat. 1236 , 1281) which prohibited sale and possession of certain stimulant drugs ( 21 U.S.C. Sec. 511 (b) and (c) as they read prior to their repeal by Pub.L. 91-513, supra, Sec. 1101(a) (10)). This case is kept alive by Secs. 702 (a) and 1103(a) of Pub.L. 91-513. We reverse. 2 What happened here is an abuse of the conspiracy charge; the government failed to prove its case. There was a good…

(concurring) :

I concur in Judge Duniway’s opinion but wish to add a thought of my own with respect to conspiracies of the sort we face here.

The conspiracy for which the Government contends is founded not on an agreement between Spanos and Godwin that the latter would sell to Ozment or Herring, but rather on a business relationship and course of dealing from which an agreement respecting resales may be inferred. Because of that relationship and inferred agreement Spanos is charged with conspiratorial responsibility for Godwin’s sale of 50,000 amphetamine tablets to Agent Herring. In order thus to hold him responsible, it is not enough that resale was foreseeable. If an agreement respecting resales is to be inferred it must appear that Spanos to some extent shared Godwin’s interest in such transactions.

*1018 The record below (absent the questioned declarations), in my view fails to make out a prima facie case of such a relationship. To me it indicates quite the contrary. Godwin was not shown to be one of those retailers on whom the success of Spanos’ dealership depended. During a period of a year and a half he had “occasionally” dealt with Spanos. He had access to Spanos, but…