UNITED STATES of America, Appellee, v. Joseph Louis BURNETT, Appellant.
No. 75-1460.
United States Court of Appeals, Eighth Circuit.
Decided Feb. 18, 1976.
531 F.2d 436
Submitted Jan. 14, 1976.
Donald R. Cooley, Smith, Smith & Cooley, Springfield, Mo., for appellant.
Richard D. Billeaud, Asst. U. S. Atty., St. Louis, Mo., for appellee.
Before CLARK, Associate Justice, Retired,* and BRIGHT and HENLEY, Circuit Judges.
PER CURIAM:
Joseph Louis Burnett stands convicted by a jury of conspiring to violatе the narcotics laws,
1. The gist of the conspiracy was that Joseph Cranage would secure heroin from his principal supplier, Eugene Kirk; it
On February 7, 1975, at the specific request of Government agents, Cranage telephoned Burnett and after a few pleasantries, asked him about a balance of $200 Burnett owed on some drugs; the latter readily acknowledged the debt. Thereafter Cranage asked Burnett if he could “turn a button deal.” Burnett responded: “Well, I сan turn it here. I‘ve got a guy who really knows what to do, now.” Cranage then asked Burnett to call him at another telephone number later in the day. Burnett did this, and arrangements werе made for the purchase of Burnett‘s heroin “operation.” The second count of the indictment is based on this telephone call.
2. Burnett raises eight points of error: (1) the district court, on motion of the Government, struck overt act No. 11 of Count I of the indictment, which deprived Burnett of his fifth amendment right to a trial upon the indictment of a grand jury; (2) the еvidence was at variance with the bill of particulars filed by the Government;
3. We shall discuss seriatim those points which we have found to have merit:
(a) Eleven overt acts were included in Count I of the indictment as returned by the grand jury. Overt act number 11 stated: “On or about February 7, 1975, Joseph P. Cranage and Joseph Louis Burnett, the defendant herein, spoke on the telephone.” This was, indeed, the same telephone conversation covered by Count II of the indictment. The general rule is that an indictment may not be amended, Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887); however, the court may amend by striking out anything “merely a matter of form,” Russell v. United States, 369 U.S. 749, 770, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), or where it is surplusage and nothing is thereby added to the indictment, and the remaining allegations state an offense, Salinger v. United States, 272 U.S. 542, 548-549, 47 S.Ct. 173, 71 L.Ed. 398 (1926), especially where the elimination limits the charge of the indictment, rather than broadening it, Mellor v. United States, 160 F.2d 757, 762, 763 (8th Cir. 1947). Furthermore, a finding of prejudice to the defendant must be present before an amendment is held imрermissible. United States v. Spector, 326 F.2d 345, 347-348 (7th Cir. 1963); Stillman v. United States, 177 F.2d 607 (9th Cir. 1949). We rather think that the striking of one out of eleven overt acts was merely a clearing out of “surplusage” and was trivial, of useless value, and innocuous effeсt. This is especially true in a case where no overt acts are required (
(b) Count II of the indictment gives us more pause. We are disturbed about the entrapment techniques utilized by the Government, and the fact that Cranage was in the custody or control of the Government when he put in the telephone call to Burnett. Moreover, both Kirk and Ms. Barnett had been аrrested. Hence the conspiracy had ended, says Burnett. However, we have concluded that the conspiracy had not ended. Indeed, the record shows that Burnеtt had continued to distribute heroin; he knew of Kirk and Barnett and their role in the conspiracy, and they still remained at large and might well be continuing their wholesaling of drugs. The test is not thе arrest of some of the conspirators, but whether the remainder of the conspirators were able to continue with the conspiracy. United States v. Russano, 257 F.2d 712, 715 (2d Cir. 1958); United States v. DeSapio, 435 F.2d 272 (2d Cir. 1970), cert. denied, 402 U.S. 999, 91 S.Ct. 2170, 29 L.Ed.2d 166 (1971).
As to the entrapment, wе note that Burnett voluntarily initiated the last telephone call to Cranage. We do not believe under the facts here that the conduct of the Government was “so оutrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction.” United States v. Russell, 411 U.S. 423, 431-432, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973). While Hampton v. United States, 507 F.2d 832 (8th Cir. 1974) is now before the Supremе Court, we do not believe that even though the Court reversed Hampton, it would control the disposition here. The conduct of the agents here was but to gain evidencе of Burnett‘s continued illegal activity, an appropriate motive, and the telephone call involved in the charge was placed by Burnett, not Cranage.
(c) Nor do we find the existence of two conspiracies here. The nature of the agreement was that each of the parties
* * * the law rightly gives room for allowing the cоnviction of those discovered upon showing sufficiently the essential nature of the plan and their connections with it, without requiring evidence of all its details or of the participation of others.
We, therefore, conclude that the proof developed a single conspiracy to distribute heroin as charged in Count I.
(d) We have studiеd the record as to the reprehensible testimony of the defense witness Castaldi. We find that when the prosecutor, on cross-examination, asked Castaldi if he had seеn Burnett during the year “‘68,” Castaldi‘s answer was not only unexpected but was entirely spontaneous. While the prior insistence of Burnett‘s counsel that the court admonish the prosecutor not to pursue the inquiry indicates that defense counsel may have arranged the answer, we need not and do not find so. In fact the prosecutor indicated that defense counsel was equally surprised at the answer of Castaldi. One never is able to predict what a prisoner will say on the witness stand, especially a three-timеs convicted one. Prisoners seem to be conjurers of deceit when called to testify, surprising not only the court but practitioners as well. As a consequence, thеy are seldom used by either party. In any event, using an oldtimer such as Castaldi as a staunch backstop may well have been a signal to the jury that Burnett himself was no virgin. We, therefore, conclude that if there was error, it was harmless.
We have considered the remaining assignments of error and find them to be without merit and not deserving of discussion. The judgment is
Affirmed.
BRIGHT, Circuit Judge, concurring.
I entеrtain a good deal of doubt that Count II should not be reversed, either on the basis that the conspiracy had ended or that the alleged telephone violation was directly induced by the Government‘s placing of the questioned telephone call. Nevertheless, I concur. I find it unnecessary to resolve the validity of Count II, relying on the concurrent sentence doctrine.