Appeals from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. F Cr 78-32 -- Jesse E. Eschbach, Judge.
Before Sprecher, Gewin*fn* and Tone, Circuit Judges.
Appellant Richard Q. Felts was charged with the knowing and intentional distribution of cocaine in violation of 21 U.S.C. § 841(a)(1). Appellant Christopher Havens, appellant Felts and three others were charged with unlawfully, knowingly and willingly conspiring to distribute cocaine in violation of 21 U.S.C. § 846. Both appellants waived a jury trial and were found guilty by the court.
Both appellants assert that the indictments were fatally defective for failing to allege a lack of authorization to distribute a controlled substance. Havens maintains that while the indictment alleged only one conspiracy, the evidence established two conspiracies resulting in a variance which substantially prejudiced his rights. Havens also challenges the sufficiency of the evidence. We find the arguments void of any merit and accordingly affirm.
On October 2, 1977 John McLeroth was arrested at the Miami airport and charged with importation of cocaine. He subsequently plead guilty and became the key government witness in appellants' trial concerning the events that transpired from March, 1977 through October 2, 1977.
McLeroth testified that in March 1977, appellant Havens' father, J. Lee Havens, recruited him to bring cocaine into the country from Peru. During the first of April of 1977 McLeroth met with appellant Havens and his father to discuss the details of his trip to Peru. On April 25, 1977 the three met at the father's house and appellant Havens gave McLeroth expense and "buy" money for the trip to Peru. Appellant Havens' father and McLeroth arrived in Peru the following day.
While in Peru they met with Augusto Gonzales-Virgil who supplied them with approximately four pounds of cocaine that was taped to McLeroth's body. They cleared customs without incident and the cocaine was turned over to J. Lee Havens.
There was a delay in McLeroth receiving the remainder of his payment, but J. Lee Havens assured him that appellant Christopher Havens was working very hard at selling it because Christopher had selected an automobile he desired to purchase. J. Lee Havens informed McLeroth of a further delay when the buyers rejected the cocaine because it contained some impurities. McLeroth was assured that "Chris" and "Rick" were attempting to purify it so that it would meet the necessary standard. McLeroth testified that he had seen "Rick" on two occasions and that he resembled appellant Richard Felts. In late May 1977 Christopher paid McLeroth the final $1,000 for his part in the smuggling operation.
Soon afterwards, they began preparations for McLeroth's second trip to Peru. Appellant Havens and his father designed and fitted McLeroth with a T-shirt with inside pockets to be worn by McLeroth to smuggle in the cocaine. In late July while the three were meeting, Christopher alluded to a domestic scheme for a purchase and resale of cocaine in the United States to fund the buy for an overseas trip.
On September 6, 1977 Christopher gave McLeroth the T-shirt with the buy money that he and Richard had sewed into the shirt. They were unable to purchase any cocaine in Peru and returned to the United States.
McLeroth left on his ill-fated trip to Peru on September 26, 1977. J. Lee Havens purchased the cocaine from Gonzales and the three of them placed the cocaine into little bags and placed them inside the T-shirt. McLeroth wore the T-shirt on the flight back to the United States. He was arrested in the Miami airport by customs officials.
James Bercot, a named co-conspirator, testified on behalf of the government that he and Jamie Kenwood (presently the wife of appellant Havens) smuggled cocaine from Peru for payment from appellant Felts. James Bercot, his brother Michael, appellant Felts and Naomi Felts lived together in a rented farmhouse. While living in the farmhouse Felts and James Bercot attempted to rid 3 to 4 pounds of cocaine of impurities. The owner of the farmhouse testified that appellant Havens had accompanied the Felts when they rented the farmhouse. James Bercot also testified that appellant Felts told him that Christopher Havens had recruited two "mules" for the smuggling operation, McLeroth and J. Lee Havens. Appellants Felts and Havens discussed, on several occasions, in the presence of Bercot, the problems with the defense of J. Lee Havens. Appellant Felts suggested the possibility that they might assert that the T-shirt was manufactured evidence.
Both James Bercot, and his brother Michael, also a named co-conspirator, testified about the sale of cocaine to an undercover agent on July 27, 1978. Richard Felts was driving appellant Havens' car when he brought them the cocaine to sell. The money from the sale was turned over to appellant Felts.
The undercover agent substantiated their account of the sale, adding that Bercot told him that Christopher had made a buy the day before and that approximately five more ounces were available if he hurriedly sold the two ounces that he had just purchased. Another law enforcement officer substantiated the movements of appellant Felts on the day of the ...