*1 Second, the proce- lax dischargee. practice York in the New dures America, UNITED STATES of Department, discharges as it Police City Appellee, officers without a state- probationary v. hearing, encourage of reasons ment Perry that Roth and very harm Grady QUICKSEY, Appellant. Here, from what prevented. be urged America, known, Velger’s accusers are not UNITED STATES little is Appellee, are not and his actions described named in which any detail. framework v. alleged attempt occurred in- suicide Mary QUICKSEY, Appellant. Jane of five fellow train- presence cluded ees, explanation no exists for such America, UNITED STATES of attempted to an su- unlikely audience Appellee, or hour for the No date incident icide. v. oc- allegedly Although specified. trainee, his Velger was a while curred DUMEUR, Appellant. Alfred patrolman was seven appointment Nos. 74-1559 to 74-1561. he been with old and had months years discharge three before force Court of Appeals, United States action, supposedly upon based the earlier Circuit. Fourth incident, taken. Argued Jan. stated in Lom so well this Court As July Decided of Education The Board bard Supplemental Opinion Aug. 28, 1975. York, (1974): F.2d 631 of New City illness, Certiorari purportedly mental Denied 26, 1976. charge of Jan.
A See 96 finding of an adminis- by a S.Ct. 878. supported heavy burden for a is a body, trative through life. A carry person young question arises if constitutional
serious opportunity no to meet the had has
he charge by in an adver- confrontation Id. 637—8.
sary proceeding. Remedy: therefore, that the find hold
We, proof that no court trial
ings clearly erroneous. are was made stigma any material not have need result This of not afford practice upon impact dischar probationary hearing change their appellees gees. the dis prevent procedures disclosure possibly derogatory and semination unless notice allegations stigmatizing af hearing are first charges Otherwise, ru dischargee. to the forded process due re dimentary procedural and a charges notice that such
quires a dismissal before hearing be afforded Reversed. be effective.
can *2 Lovett, Charleston,
Chester W. Va. (James Cooper T. on brief), for Mary Quicksey. Jane Henderson, Herbert H. Huntington, [Court-appointed W. counsel], Va. Dumeur. Alfred *3 Field, III, A. John U. Atty. S. for the District Southern Virginia (Rob- West Ray King, Hampton, II, ert B. L. Jolliffe, E. Frank Asst. U. Attys., S. on brief), appellee. for HAYNSWORTH, Before Chief Judge, WIDENER, and BUTZNER and Circuit Judges.
BUTZNER,
Judge:
Circuit
Grady Quicksey, Mary Jane Quicksey,
appeal
Dumeur
and Alfred
from a judg-
convicting them in
ment
Count I of a
indictment of conspiring
multicount
the Travel
18
violate
U.S.C. §
Comprehensive Drug
and the
Abuse Pre-
vention and Control Act of
21
and 846.
841
With respect
§§
U.S.C.
count, we shall withhold judgment
this
thirty
government
to allow
days
for
whether
consent
consider
to a re-
sentencing.
the government
Should
consent, we shall vacate their convictions
for a new trial on
and remand
Count I.
I
841(a)(1) provides
21
Title
U.S.C. §
part
it is unlawful to
distribute nar-
drugs
or to
these
possess
cotics
with in-
them.
tent
distribute
Section
846
punishes
conspiracy
841(a)(1) by a maximum sentence of
§
years’ imprisonment or
fifteen
a maxi-
$25,000, both,
mum fine of
for a first
offender,
by more
severe penalties
offenders.
repeating
Title
U.S.C.
forbids
§
inter-
with intent
to' “promote,
state travel
establish, carry on, or
manage,
facilitate”
enterprise
involving
business
narcot-
to violate
conspiracy
ics. A
§
punishable
general
under the
statute,
U.S.C. maximum
Lonesome, Charleston,
years’ imprisonment
term
five
William L.
W.
or $10,000,.
Va.,
Quicksey.
maximum fine
Grady
both.
court, however,
under
371. The
fine
I of
indictment
their
rejected
contentions and imposed
to violate
conspired
defendants
terms
846 in
prison
under §
excess of
and 21 U.S.C.
U.S.C.
both 18
years
$10,000.
fines in excess of
five
bill
particulars
In a
841(a)(1).
I
that Count
indicated
government
appeal
On
reiterate
only the narcotics
violation of
charged a
that Count must be dismissed because
statute,
21 U.S.C. §
violating
them with
two
sepa-
attorney insisted
the district
during trial
statutes;
rate
alternatively,
18 U.S.C.
this statute
that both
they
they
contend that
cannot be sen-
court
The district
applicable.
general
under
verdict
tenced
or at the
expanded interpretation of
accepted
can
they
be sentenced
most
and denied the defend-
the indictment
statute,
require
government
motion
ants’
special
and not
narcotics con-
the conclusion of its case
to elect
statute,
government
846. The
*4
spiracy
proceeding
was
under
the
it
whether
that the
contends
evidence was sufficient
371,
statute,
or the
conspiracy
general
a
justify
to
conviction for
conspiracy to
Thus,
statute,
conspiracy
special
drug
the
violate
laws and that conse-
jury
case
the
the
allowed
of
the law
the sentences
quently
by
authorized
a
or
either
for
convict
proper.
were
846
not
conspiracy, but
it was
a narcotics
a
The
special
return
verdict.
required
We find no reason to dismiss
the
that
it
jury
instructed
court
I,
it
duplicitous.
for was not
The
en-
it
the defendants
if
believed
convict
conspiracy
element of a
essential
is
inter-
conspiracy involving
in
gaged
and
agreement,
may
it
embrace the com
pos-
the
in connection with
travel
state
of several substantive
mission
offenses.
of narcotics.1
session
reference
to different
conspiracy
The
necessarily
does not
charge
statutes
jury found
the defendants
all
one agreement,
than
but it
more
causes
specifying
guilty under Count without
by authorizing
confusion
general
inconsistent
they
guilty
were
of a
whether
Amato,
See United
v.
penalties.
States
special
371 or a
con-
conspiracy
F.Supp.
(S.D.N.Y.1973);
sentencing,
Before
spiracy under §
Moore, Federal Practice
8.03.
argued
they could
It
is
that
H
the defendants
that
the evidence is
clear
sufficient
verdict
general
under a
punished
not be
conspiracy
a conviction for
I,
subject
sustain
they
at most
or
on Count
Act,
to violate the Travel
$10,000
it
and
five-year
sentence and
to a
jury,
Instructing
court ex-
the
the district
travel and cause travel between the South-
charge
conspiracy
plained
Virginia
of
as follows:
the
ern District of
and
West
New York
City,
beyond
and elsewhere
the State of
charges
of
indictment
one
the
“Count
Virginia,
promote,
West
with intent
man-
.
.
.
all four
defendants
[that]
establish,
age,
carry
and
on and to facilitate
activity
conspir-
engaged in an unlawful
—a
promotion, management,
establishment,
the
involving
acy
interstate travel
connection
carrying
activity,
and
on of an unlawful
said
possession
Nar-
and distribution of
with
activity being
enterprise
unlawful
a business
Substance,
Drug
in this case
Controlled
cotic
involving
heroin;
.
.
.
of
violation
part
indictment
contains the
heroin.
Code,
Title
United States
Section 1952.”
language:
following
charge,
Later
in the
the district court
said:
conspiracy
part of
that
was a
said
“It
jury
beyorid
“If the
should find
a reason-
co-conspirators would
and
defendants
said
able doubt from the
unlawfully,
evidence in the
knowingly,
case that
and
did
inten-
and
conspiracy existence of the
in the
tionally
possess with the in-
distribute and
proved,
during
has
indictment
been
and that
.
.
.
.
.
heroin
to distribute
tent
the existence of the
one of
Code,
Title
United States
in violation
alleged
knowingly
by
overt acts
was
done
841(a)(1).
Sections
conspirators
one of the
in furtherance
part
conspiracy—
further
said
“It was
object
purpose
conspiracy,
or
some
reading
the indictment—
from
I am still
proof
then
offense
co-conspirators
defendants and
the said
complete.”
did,
knowingly,
intentionally and
would
be,
government
principal
sug-
as the
witness
may well
transaction
accomplice,
was sufficient
was the
the evidence
who
gests,
testified that
drug
to violate
she
transported
for a
convict
Quicksey
cocaine,
the court refused
Act. But
the was
not heroin. No
Drug
other wit-
to require
drug.
the ness identified the
motion
defendants’
statute
to elect which
government
was.
52(a)
Rule
of the Federal Rules
on,
jury
and the
instructed
relying
requires
Criminal Procedure
us to dis
guilt under Count I if
that it could find
regard a variance which does not affect
conspired
it believed
rights
substantial
of the accused. The
with
the Travel Act
intention of
substantiality
test of
is found in Berger
involving
facilitating a business
narcot-
United
295 U.S.
55 S.Ct.
Indeed,
charge may
the court’s
have
ics.
629, 630, (1935),
L.Ed. 1314
which re
gra-
this was the
jury
to believe
led
quires:
event,
I.
In
of Count
vamen
“(1) that
the accused shall be defi-
verdict,
special
it is
absence
nitely informed as to the charges
whether
to ascertain
possible
him,
against
so that he may be en-
the defendants guilty
to find
intended
present
abled to
his defense and not be
the Travel Act
conspiracy to violate
by
taken
surprise
the evidence of-
both Acts.
Drug
trial;
(2)
fered at the
that he may
ambiguity,
Because of this
we
be protected against
prosecu-
another
judgment as to Count I
our
withhold
tion for the same offense.”
*5
government
days.
If the
thirty
within Berger
if,
also teaches that
upon exami-
a resentencing
un
time consents
that
record,
nation of the entire
the variance
court,
this
we
by notifying
371
der §
does not appear to have
preju-
caused
affirm the convictions on
shall
that dice, the error
be regarded
must
as
If,
sentencing.
remand for
on
and
count
harmless.
hand,
government
the
does not
the other
The record
prejudice.
discloses no
consent,
vacate
we shall
convictions
transactions mentioned
II,
The
IV, V,
in Counts
trial.2
for a new
See Brown
and remand
be readily
and VI could
identified
U.S.App.D.C.
112
v. United
allegations
from other
without reference
(1962).
438
299 F.2d
Thus,
exact
Quicksey
to the
fairly
dates.
was
charges.
apprised
II
Further
more,
depicts
the record
the offenses in
Grady Quicksey,
defendant
unique
protected
such
detail that he is
offenses,
with substantive
con-
subsequent prosecutions
from
for the
tends that
there was
fatal variance
same crimes. The district judge commit
dates of
between
offenses al-
by denying
ted no error
motions for a
leged in the indictment and the dates
of
judgment
acquittal because of the
by the evidence in
II,
disclosed
Counts
in the dates. Cf.
variance
United States
IV, V,
also complains
and VI. He
of "a
Covington,
(4th
the a conspiracy indictment surplusage. section as mere We did that statutes, separate violate four one of Cir., in Davis United 4th punishable only which was under F.2d where there was a miscitation other three while the had their own con- statute in the with spiracy prohibitions higher maxi- indictment. We held that the miscita- There was penalties. general mum preclude sentencing did not tion jury to the and a general submission (cid:127)the harsher laws.2 Here there narcotic and, guilt, from finding of the court’s in the in- than a miscitation was more opinion, appears entirely possible that dictment, got for the matter into the may jury the have found the defendants jury. to the When instructions judge’s guilty of a violate evidence, how- charge, light the punishable only U.S.C.A. the one speculation no room ever, leaves Here, hand, 371.1 on other brought guilty its verdict jury attempted demonstrate, as I have having found defendants without have jury simply not found under the Drug of a guilty innocent of a con- of Davis con- principle I think the spiracy Drug Act but Brown, principle rather than trols guilty to violate the uncertainty real as depends upon which jury Travel Act. not told of find, uncertainty did to what penalties any differences in the vary- here. present might which consequences flow from reasons, respectfully dis- these For a conviction one offense rather than sent. other, so that there is no possibility that it made distinction or undertook its to exercise discretion to of a convict SUPPLEMENTAL OPINION offense, though beyond lesser convinced PER CURIAM: a reasonable doubt of the defendants’ opinion supplements opinion This greater Indeed, guilt of a offense. *7 25, July court filed of the
jury
told the indictment charged
offense,
single
United
Attorney
States
has con-
having Grady
distribute heroin in which
Quicksey
interstate
sented
and
proscribes
1. Section 1403
charged
the use
of a
which
other statutes
commu-
in
indict-
facility
committing
attempting
nication
or
ment related.
must
This
have been so or the
commit,
causing
facilitating
or
court would not
the com-
have said it could not
tell
jury
Here,
mission of
offense
aor
what
to com-
found.
we can.
relating
mit an offense under other statutes
holding
2. Our
in Davis
frequently
has been
importation
the sale and
of narcotics
their
Bates,
followed. United States v.
cordingly, Comprehensive Drug
to violate and Control Act of Prevention
Abuse 841 and are va- 21 U.S.C. §§ conspiring convictions of Their
cated. Travel U.S.C. §§ as in Count I of the
indictment, are affirmed. The case is resentencing Grady for the
remanded Mary
Quicksey Quicksey Jane
18 U.S.C. Attorney
The United States has not the resentencing of Alfred
consented Accordingly, his conviction for
Dumeur. as I of
conspiracy,
indictment, vacated, is and his case is a new trial.
remanded Haynsworth
Judge specially concurs in opinion supplemental without modi- views that he
fying expressed in his
concurring dissenting opinion filed 25, 1975.
July
The clerk directed to issue the man-
date forthwith. al., BRONSON et
Mona
Plaintiffs-Appellants,
BOARD OF the CITY OF EDUCATION
SCHOOL DISTRICT OF CINCINNA
TI, members, al., Defendants-Ap its et
pellees.
No. 75-1244. Appeals,
United States Court of
Sixth Circuit. *8 Argued April
Cause Sept.
Decided
Rehearing Denied Oct.