United States v. William Dale Smith, and Julius Chris Fisherman

Appellants Smith and Fisherman, along with many others, were indicted for conspiracy to violate 21 U.S.C. § 846 , 21 U.S.C. § 848 and for possession and distribution of a controlled substance (heroin) in violation of 21 U.S.C. §§ 841 (a)(1), 845(a). The indictment named over 20 co-defendants and a large group of unindicted co-conspirators as participants in a massive heroin importation and distribution conspiracy throughout California, Canada, Thailand and China. The jury found Fisherman guilty of conspiracy as charged, and found Smith guilty on 6 counts of the 15-count indictment, including Count I, the conspiracy count. Upon these consolidated appeals many errors are assigned by both appellants, with two of which this opinion deals.

1. Smith was found guilty of “continuing criminal enterprise” under 21 U.S.C. § 848 . Subsection (a)(1) of that section makes it a criminal offense to engage in a continuing criminal enterprise. Subsection (b) then provides:

The only dispute presented relates to the requirement that the series of violations be undertaken “in concert with five or more other persons.” It is clear that Smith acted in concert with many more than five persons throughout…