Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. No. 84 CR 9 - Gene E. Brooks, Judge.
Before CUDAHY, COFFEY, and FLAUM, Circuit Judges.
FLAUM, Circuit Judge. David Williams, his wife Debbie Williams, and Wayne Russell are appealing from their convictions for conspiracy to violate drug laws, possession of illegal substances, and unlawful interstate travel. Each raises several issues for our review, and for the reasons stated below we reverse the one count against Debbie Williams. We affirm on all other counts.
The charges against these appellants arose out of a methamphetamine distribution ring operating in Evansville, Indiana area. According to the government's version of the facts, the methamphetamine was manufactured by Tim and David Harvey on their South Dakota ranch. Michael Riley and Darrell Ray Stephenson set up the Evansville distribution scheme in early 1981 and began purchasing quantities of the drug from the Harveys for sale in the Evansville area. By early 1982, Riley and Stephenson turned over the leadership of the ring to Michael Marlow and Bobby Dusch. Later that year, Stephenson became an informer for the Drug Enforcement Administration (DEA) and subsequently testified against the appellants at trial. After the Evansville ring eventually was uncovered by the DEA in 1984, Riley, Dusch, and Marlow, among others, were arrested and charged for their involvement. Each entered into a plea bargain agreement with the government and testified against the appellants at trial.
In the fall of 1981, David Williams was introduced to Michael Riley as a potential assistant in the distribution aspect of the scheme. When Riley turned over his participation in the drug ring to Marlow and Dusch, David Williams was among the customer-distributors he left them. Wayne Russell, who had known Marlow from childhood, apparently became a customer of Marlow and Dusch at about the same time. Bobby Dusch kept books and records of the drug transactions, and according to government exhibits, David Williams and Wayne Russell clearly were listed in those records as having purchased thousands of dollars worth of methamphetamine.
Throughout 1983 and the first half of 1984, David Williams (accompanied at times by Debbie Williams) and Wayne Russell engaged in various drug-related transactions and travels that will be discussed in more detail later in this opinion. During part of this time, the DEA gathered information about the drug scheme through wire interception of telephone conversations. Finally in August 1984, agents of the DEA obtained a warrant to search the Williams' residence and removed from that house some thirty-eight grams of methamphetamine and over $40,000 in cash, along with other items of evidence. At about the same time, the Harveys' South Dakota ranch was searched, revealing a laboratory for manufacturing methamphetamine and over thirteen pounds of the drug. David and Debbie Williams, Wayne Russell, and other members of the drug ring subsequently were arrested and indicted for their involvement.
A. Debbie Williams - Count One.
Debbie Williams was charged in Count One with conspiracy to possess and distribute methamphetamine in violation of 21 U.S.C. § 846 and in Count Twelve with interstate travel in violation of 18 U.S.C. § 1952(b)(1). Since she was acquitted of the Travel Act charge, Debbie Williams appeals only her conviction on the conspiracy count. We find that the district court erred in admitting a co-conspirator's statement against her, and that without that statement, there was insufficient evidence to convict her of conspiracy.
1. Pre-trial Santiago hearing.
A co-conspirator's hearsay statement is admissible against a defendant under Federal Rule of Evidence 801(d)(2)(E) "if it is more likely than not that the declarant and the defendant were members of a conspiracy when the hearsay statement was made, and that the statement was in furtherance of the conspiracy." United States v. Santiago, 582 F.2d 1128, 1134 (7th Cir. 1978). The district court must find that the government has established by a preponderance of the non-hearsay evidence that the above elements are present, before the district court can allow the hearsay evidence to be introduced against the defendant. See, e.g., United States v. Shelton, 669 F.2d 446, 465 (7th Cir.), cert. denied, 456 U.S. 934, 72 L. Ed. 2d 453, 102 S. Ct. 1989 (1982). We have held, however, that once the government proves the existence of the conspiracy, it need present only "slight evidence" to prove that a particular individual was a member thereof. See, e.g., United States v. Gironda, 758 F.2d 1201, 1217 (7th Cir. 1985); United States v. West, 670 F.2d 675, 685 (7th Cir.), cert. denied, 457 U.S. 1124, 102 S. Ct. 2944, 73 L. Ed. 2d 1340 (1982).
The district court here held a pre-trial " Santiago hearing" to determine the admissibility of the co-conspirator's statement against Debbie Williams. The statement at issue was allegedly made by David Williams to Michael Marlow during a drug transaction at which Debbie Williams was present. Apparently, David Williams told Marlow not to count the money that Marlow had been given in exchange for methamphetamine, because Debbie already had counted it. The non-hearsay evidence introduced at the Santiago hearing in support of the admissibility of this statement was as follows. DEA Special Agent McGivney testified that in July 1983, David and Debbie Williams met with Michael Marlow in Colorado Springs and delivered between $22,000 and $24,000 in cash to Marlow. Mr. Thar, the prosecuting attorney, clarified this testimony later in the hearing by stating, "to put it more accurately, Mrs. Williams is present when Mr. Williams hands the money over." Special Agent McGivney also testified that after the transaction, David and Debbie Williams returned to Indiana with Marlow's children. Special Agent Blackketter then testified about the search that was conducted pursuant to warrant in the Williams' house. The search revealed some thirty-eight grams of methamphetamine and approximately $40,020 in cash in the vanity under the bathroom sink. At the conclusion of the hearing, the district judge entered his ruling, over defense objections, that the co-conspirator's statement was admissible against Debbie Williams, based on his finding that "the government has established by a preponderance of independent non-hearsay evidence that there existed a conspiracy and that these defendants were co-conspirators as charged in the indictment."
Debbie Williams argues on appeal that the government failed to establish that she was a member of the conspiracy, and therefore that the trial court erred when it admitted the co-conspirator's statement against her. Based on a review of the record we agree, because the record of the Santiago hearing reveals that the government did not present even slight evidence that Debbie Williams was a member of the conspiracy. The testimony relating to her involvement demonstrates only that she was associated with a few co-conspirators, most notably her husband, and that she was present during a drug transaction. This court has emphasized several times, however, that mere association with co-conspirators or presence at the scene of an offense or knowledge that something illegal is going on is insufficient to establish membership in a conspiracy under the slight evidence standard. See, e.g., West, 670 F.2d at 685; United States v. Regilio, 669 F.2d 1169, 1175 (7th Cir. 1981); cf. United States v. Dalzotto, 603 F.2d 642, 645 (7th Cir. 1979). In West, for example, this circuit held that the admission of a co-conspirator's statement was error, since the government failed to establish that the declarant was a member of the conspiracy. The case involved a lucrative drug ring known as the "Family" and centered around a drug conspiracy operated by Family members incarcerated in Cook County Jail. One of the defendants, King, was a correctional officer at the jail who allegedly had accepted bribes in return for granting Family members special favors. The government sought to introduce a co-conspirator's statement to the effect that King was "all right" and would arrange for Family members at the jail to be tiered together. Testimony demonstrated that the declarant not only was a Family member, but also was incarcerated in the jail. The court held, however, that this established only the declarant's association with the conspiracy, and that without more, it failed to constitute even slight evidence that the declarant was a member of the conspiracy. 670 F.2d at 679, 685. See also United States v. Quintana, 508 F.2d 867, 880-81 (7th Cir. 1975) (evidence insufficient to convict defendant of conspiracy where it established only that defendant associated with co-conspirators, was present in vicinity of illegal narcotics, may have possessed heroin, and had the opportunity to join the conspiracy).
In contrast, cases such as United States v. Regilio and United States v. Dalzotto involve evidence of presence plus suspicious circumstances suggesting membership in the conspiracy, and as a result, admissions of co-conspirators' statement were affirmed. In Regilio, the record contained evidence of phone calls indicating that the defendant had been notified of drug transactions, apparent reconnaissance efforts of the defendant at the scene of the crime, and attempts to flee. The reviewing court found the record sufficient to satisfy the slight evidence rule, since it demonstrated "presence, suspicious behavior, and significant prior dealings." 669 F.2d at 1175. Similarly, the record in Dalzotto established presence plus suspicious circumstances suggesting membership because of evidence that both the defendant and the declarant "independently pursu[ed] the same ends" and that both had sold drugs to a witness. 603 F.2d at 645.
The government thus could not demonstrate that Debbie Williams was a member of the conspiracy without introducing some evidence that went to more than her association with co-conspirators or presence during conspiracy acts. The only evidence in the record of the Santiago hearing that conceivably could go beyond mere presence or association is the testimony regarding the items seized in the Williams' residence. Even this testimony, however, falls short of establishing suspicious circumstances, since it does not suggest that Debbie Williams had any involvement besides possible knowledge of her husband's participation in a drug conspiracy. Her seeming acquiescence in his role in the drug distribution scheme, reprehensible though it is, does not establish that she was a member of the conspiracy. We therefore conclude that the evidence adduced at the Santiago hearing failed to provide a basis for the admissibility of the co-conspirator's statement against Debbie Williams.
2. Sufficiency of non-hearsay evidence at trial.
Our analysis cannot end here, however, because we still must determine whether the government established Debbie Williams's membership in the conspiracy by non-hearsay evidence introduced at trial, or alternatively, whether the error in admitting the co-conspirator's statement was harmless because there was sufficient non-hearsay evidence to find her guilty beyond a reasonable doubt. We find that the answer to both inquiries is negative, since a review of the record demonstrates that the government failed to establish by a preponderance of the evidence (and thus a fortiori beyond a reasonable doubt) that Debbie Williams was a member of the conspiracy.
The evidence introduced at trial, viewed in the light most favorable to the government, reveals that Debbie Williams had no apparent involvement in the conspiracy other than her presence on certain occasions while her husband engaged in drug transactions. Aside from the evidence elicited during the Santiago hearing, the government presented testimony of another trip on which Debbie Williams accompanied her husband and was present while he made a payment for methamphetamine. The government also introduced evidence of additional items seized during the search of Williams' residence, namely $1,165 in cash and slips of paper containing notations of telephone and room numbers of hotels in which David Williams and Tim Harvey had stayed. Both of these items were seized from Debbie Williams's purse. Finally, a co-conspirator named Donald Ewers testified that he has used cocaine when Debbie Williams was present, although he never saw her use the drug. Ewers did testify the he had witnessed Debbie Williams use marijuana. This evidence does nothing more than establish that Debbie Williams was present during certain drug transactions and may have had knowledge of her husband's involvement in a drug conspiracy. It falls short, however, of demonstrating that she was in any way personally involved as a member of that conspiracy. Moreover, many of the government's witnesses testified that they were unaware of any conspiratorial involvement on the part of Debbie Williams. Thus, there is no evidence that Debbie Williams was guilty of anything more than association with co-conspirators.
It should be noted here that the jury did acquit Mitzi Russell, Wayne Russell's wife, of the same conspiracy charge, and that one might conclude that this demonstrates the jury's capacity not to convict one merely because he or she is associated with a drug dealer. This, however, is not a persuasive enough argument for affirmance of Debbie Williams's conviction because the jury's verdict was marred by the evidentiary error discussed above. In the absence of that erroneously admitted evidence, there is simply no basis upon which Debbie Williams could be characterized as a member of the conspiracy. Accordingly, we conclude that no rational trier of fact could have found Debbie Williams guilty of conspiracy beyond a reasonable doubt, and we reverse Debbie Williams's conviction on the grounds of insufficient evidence. See, e.g., Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1977); United States v. Mayo, 721 F.2d 1084, 1087 (7th Cir. 1983).
B. David Williams and Wayne Russell - Count One.
David Williams and Wayne Russell ask this court to overturn their convictions on the conspiracy count on the ground that there was a fatal variance between the indictment and the evidence adduced at trial, and that there was insufficient evidence to convict them of the conspiracy as charged. They further claim that the trial court gave the jury an erroneous instruction on the conspiracy count. Finally, David Williams challenges his Count One conviction because it was based in part on evidence gathered during the search of his home, evidence that he claims should have been suppressed. Each of these arguments is without merit.
1. Variance and sufficiency of evidence. The Superceding Indictment charged the defendants in the first paragraph of Count One with conspiracy "to knowingly possess with intent to distribute and distribute in the State of Indiana, Methamphetamine, a Schedule II Non-Narcotic Drug Controlled Substance in violation of Title 21, United States Code, Section 841(a)(1)." In seven unnumbered paragraphs following the first paragraph, the indictment alleged more specifically the roles of each of the co-conspirators. Finally, in numbered paragraphs, the indictment alleged various overt acts on the part of the co-conspirators. Williams and Russell claim that the conspiracy charged must be proved to cover all of the material contained in the unnumbered paragraphs. Thus, they argue, the government's failure to prove that their participation involved the same scope or breadth as alleged in the indictment means that there was either a fatal variance or an insufficient quantum of evidence on which the jury could convict.
This circuit has indicated that "'[a] variance occurs when the terms of the indictment are unaltered, but the evidence offered at trial proves facts materially different from those alleged in the indictment.'" United States v. Galiffa, 734 F.2d 306, 312 (7th Cir. 1984), quoted in United States v. Mosley, 786 F.2d 1330, 1335 (7th Cir. 1986). Based on a review of the trial record, we conclude that no variance existed between the indictment and the acts introduced at trial and that the evidence was sufficient to prove Williams and Russell guilty beyond a reasonable doubt.
The unnumbered paragraphs of the indictment, which are reproduced below,*fn1 merely set out in general terms the suspected roles of the co-conspirators in a single, conspiracy to distribute methamphetamine in the State of Indiana. The proof at trial centered around this distribution scheme, and evidence demonstrated that Williams and Russell generally participated just as the indictment suggested - as purchasers and distributors of the drug. The evidence adduced at trial, viewed in the light most favorable to the government, reveals the following facts, among others, that relate to Williams's and Russell's participation in the conspiracy. Both Williams and Russell were listed in Bobby Dusch's record book as having purchased methamphetamine in Indiana from Dusch and Michael Marlow. In March, 1983, Russell met Marlow in Denver, Colorado, where Marlow obtained about ten pounds of methamphetamine from Tim Harvey. Russell and Marlow then returned with the drugs to Evansville, Indiana. When DEA agents searched Dusch's apartment in April 1983, Marlow took three pounds of the ten-pound purchase to David Williams's house for safekeeping. One of Dusch's customers then obtained an amount of the drug from Russell.
Later that year, several other co-conspirators had conversations with Williams and Russell about Michael Marlow's role in the conspiracy. The co-conspirators were concerned that Marlow was taking advantage of them. Both Williams and Russell then met with Michael Riley and agreed to begin purchasing directly from him in order to sidestep Marlow. In October 1983, Williams and Russell met Riley in Spokane, Washington and drove with Riley to David Harvey's house in Hayden lake, Idaho, where they picked up six or seven pounds of methamphetamine. David Williams then met Riley in Los Angeles in November 1983 and paid Riley approximately $50,000. Early in 1984, Williams, Riley, and Donald Ewers discussed the fact that Marlow was purchasing methamphetamine at a substantially lower price than Riley, and voiced concern that Marlow might begin to compete directly with Williams and Riley in the Evansville area. Finally, the DEA's search of Williams's house in August 1984 uncovered large quantities of methamphetamine and cash.
This evidence overwhelmingly demonstrates that David Williams and Wayne Russell not only participated in the conspiracy to possess and distribute methamphetamine in Indiana, but also filled the general roles set out in the indictment's unnumbered paragraphs reproduced in footnote 1, supra pp. 9-11. Accordingly, we dismiss the claims of variance and hold that the evidence was sufficient to prove Williams and Russell guilty of conspiracy beyond a reasonable doubt.*fn2
2. Jury instruction. In its instructions to the jury, the trial court did not submit the seven unnumbered paragraphs as elements of the conspiracy charge. Instead, the court gave as an overarching charge its instruction number 20:
In order to establish the offense of conspiracy, the government must prove these elements beyond a reasonable doubt:
1. That the alleged conspiracy existed, and
2. That a defendant knowingly and intentionally became a member of that conspiracy.
The defendants claim that the instruction is erroneous because it omitted essential elements of the charge. We find, however, that the seven unnumbered paragraphs do not constitute essential elements of the conspiracy charged and that instruction 20, along with several other instructions, adequately charged the jury. This circuit has held that "the essential elements of conspiracy under section 846 are the existence of an agreement between two or more individuals, with the intent to commit an offense in violation of the Controlled Substance Act." United States v. Sweeney, 688 F.2d 1131, 1140 (7th Cir. 1982). See, e.g., United States v. Hinkle, 637 F.2d 1154, 1157 (7th Cir. 1981) ("Generally, an indictment is sufficient when it sets forth the offense in the words of the statute itself, as long as those words expressly set forth all the elements necessary to constitute the offense intended to be punished."). Thus, the government need not allege in the indictment, and the court need not instruct the jury to find, specific roles corresponding to the co-conspirators. See, e.g., United States v. Roman, 728 F.2d 846 (7th Cir.), cert. denied, 466 U.S. 977, 80 L. Ed. 2d 832, 104 S. Ct. 2360 (1984); United States v. Garfoli, 324 F.2d 909, 911 (7th Cir. 1963) (with regard to the precursor of * 846: 21 U.S.C. § 174). See also United States v. Mayo, 721 F.2d 1084, 1089 (7th Cir. 1983); United States v. Umentum, 547 F.2d 987, 991 (7th Cir. 1976) (§ 846 does not even require allegation, proof, or jury instruction as to overt acts), cert. denied, 430 U.S. 983, 97 S. Ct. 1677, 52 L. Ed. 2d 376 (1977).
The trial court's instructions in this case clearly contained the essential elements of a section 846 conspiracy charge - the existence of an agreement among individuals to intentionally commit offenses under the Act. Not only did the trial court instruct the jury on these elements in instruction number 20, but it also gave instructions defining the conspiracy and clarifying the jury's task:
- Count I of the Superceding Indictment is based upon a statute which was in full force and effect at all times pertinent to this case. Title 21, United States Code, Section 846 reads as follows:
Any person who attempts or conspires to commit any offense defined in this subchapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
- Counts 4, 5, 6, and 17 of the Superseding Indictment charge violations of Title 21, United States Code, Section 841(a)(1). That section provides in pertinent part that:
It shall be unlawful for any person knowingly or intentionally
(1) To manufacture, distribute, or dispense or possess with intent to manufacture, distribute or dispense, a controlled substance . . .
- A conspiracy is a combination of two or more persons to accomplish an unlawful purpose, or a lawful purpose by unlawful means. While it involves an agreement to violate the law, it is not necessary that the persons charged met together and entered into an express or formal agreement, or that they stated, in words or writing, what the scheme was, or how it was to be effected. It is sufficient to show that they came to a mutual understanding to accomplish an unlawful act.
- In order to show that the defendants conspired to possess with intent to distribute methamphetamine under the statute, the government need not prove that any particular overt act occurred in furtherance of the conspiracy, since the essence of a conspiracy to possess with intent to distribute methamphetamine is the criminal agreement itself, and not the success of the conspirators in carrying out the agreement.
In light of the above, we find that the trial court did not omit any of the essential elements of the charge from the jury instructions. We turn then to the defendants' final claim with regard to jury instruction number 20 - that it constituted a constructive amendment of the indictment. The general rule in this area is that the trial court cannot amend the indictment at the instruction stage by eliminating or charging an essential or material element of the crime. See Stirone v. United States, 361 U.S. 212, 217, 80 S. Ct. 270, 4 L. Ed. 2d 252 (1960); United States v. Kramer, 711 F.2d 789, 796 (7th Cir.), cert. denied, 464 U.S. 962, 78 L. Ed. 2d 339, 104 S. Ct. 397 (1983). As we noted above, the trial court's instructions contained all of the essential elements of the Count One conspiracy charge, and we therefore conclude that the instructions did not serve as a constructive amendment.
3. Suppression of evidence. With regard to Count One and the other counts on which he was convicted, David Williams challenges the admission of evidence seized during the search of his home. Although it is doubtful that this evidence, even if erroneously admitted, prejudiced Williams on the conspiracy count, we will address the admissibility question here in order to apply our holding to the other counts discussed below. Williams claims, as he did in the district court, that the evidence should have been suppressed because there was insufficient probable cause to support the search warrant. Williams has two bases for this claim: first, that the actual quantum of evidence detailed in the underlying affidavit was too small to create a reasonable belief that a crime was about to be ...