TUTTLE, Circuit Judge:
Appellants Olie Duane Jones and Lemuel H. Stockmar were convicted in the District Court for the Middle District of Florida on three counts of an indictment charging numerous violations of the Drug Abuse Prevention and Control Act of 1970, 21 U.S.C.A. § 801 et seq. Finding that none of the several errors assigned on this appeal is meritorious, we affirm.
The original indictment against both these defendants was in seventeen counts, Stockmar being charged in thirteen and Jones in seven
The government's case rested largely on the testimony of certain co-conspirators, particularly that of a Bobby C. Wells who was involved in the alleged smuggling operation from its inception until its termination. Taken in the light most favorable to the government the evidence introduced at trial established the following: On the evening of May 6, 1971, Ralph Thomas Malloch, Jr., James Durden, Jesse E. Farris, James Edwin Stephens, and Bobby C. Wells met in Atlanta, Georgia, to discuss the possibility of importing marijuana into the United States from the Caribbean area. The next day Malloch, Durden, Farris, and Wells, having borrowed Stockmar's private airplane, flew to Miami, Florida, where they attempted to locate a boat suitable for marijuana smuggling or alternatively a Miami contact with ties to a commercial airline. These efforts proved unsuccessful and the four returned to Atlanta.
Thereafter, Malloch, Wells, and Stockmar met at a truck stop near Douglasville, Georgia, where they discussed the possibilities of using a private airplane to smuggle marijuana into the country. The following day, Wednesday, May 12, 1971, Malloch, Durden, Stephens, Farris, Wells, and Stockmar worked out the mechanics of their first actual smuggling venture. Without going into the details of this plan, subsequently altered slightly, and without describing the pre-arrangements undertaken, we think it sufficient to say that on May 19, 1971, Wells and Stockmar, who were by then in Kingston, Jamaica, flew in Stockmar's airplane to an abandoned Jamaica airstrip where they purchased from a local contact named "Jack" approximately 212 pounds of marijuana. With the marijuana aboard Wells and Stockmar then flew to an abandoned airstrip in the Bahamas where the cargo was dropped temporarily in order that the two might clear customs at a nearby commercial airport, Andros International. Having cleared Bahamian customs, Wells and Stockmar returned to the abandoned airstrip, picked up the load of marijuana, and flew directly from the Bahamas to an abandoned airport in Volusia County, Florida. There they were met by Durden, Malloch, and Farris who unloaded the marijuana from Stockmar's airplane and transferred it to a waiting automobile which was then driven to Atlanta by Farris and Durden. This marijuana was subsequently sold for a substantial price and the profits were distributed among the participants.
Shortly thereafter Stockmar, Wells, and Stephens decided to cut Malloch, Durden, and Farris out of the operation. At the same time another marijuana run was planned.
On about the 26th of May, 1971, Stephens, Wells, Mrs. Stockmar, and Stockmar, by pre-arrangement, met appellant Jones at a local airport near Atlanta. Jones, who had previously discussed the matter with Stockmar, agreed to act as the "lookout man" at the abandoned airstrip in the Bahamas. Another individual, Victor Burns, was to meet the aircraft in Florida when it returned from the Bahamas with the next load of marijuana.
A new venture was planned, this time to utilize two aircraft, one to be flown by Stockmar and Stephens to make the initial pickup, the other with Jones and Wells aboard to meet Stockmar's airplane at the abandoned airstrip in the Bahamas where the load would be transferred and flown directly from the Bahamas to Florida by Jones and Wells. On June 14, 1971, pursuant to this plan, Wells and Jones flew to the abandoned airfield in the Bahamas where they met Stephens and Stockmar as scheduled. The four men transferred, according to Wells' testimony, about 1,000 pounds of marijuana from the one plane to the other and Wells and Jones then flew to the Sebastian Airport in Florida where they were met by Burns. At the Sebastian Airport Wells and Burns unloaded the bundles of marijuana onto the ground and then Wells and Jones flew to Jacksonville, Florida, to clear customs.
That same afternoon law enforcement officers recovered at Sebastian Airport approximately 40 bundles of a substance weighing 900 pounds which later was tested by the U. S. Customs Laboratory at Savannah, Georgia, and found to be marijuana.
Having been advised by Burns that the load had been "busted" Stockmar, Jones, Stephens, and Wells returned to the Sebastian Airport in a rental car, but were unsuccessful in their efforts to find the marijuana left there earlier.
Shortly thereafter a fourth, and what proved to be the final, venture was planned. It was this venture, occurring on June 30, 1971, which was the subject matter of Counts 11 and 12 of the indictment and for which both Jones and Stockmar were convicted by the jury. Without detailing the operation as testified to by Wells, we would point out that it involved basically the same type of modus operandi as the previous trip.
Jones and Stockmar urge vigorously that the foregoing facts demonstrate the existence, not a single conspiracy, as charged by the government in Count 17 of the indictment, but a multiplicity of conspiracies. They argue that since the several efforts at smuggling marijuana, alleged in the indictment as constituting an ongoing conspiracy, involved varying casts of characters and different modes of operation, each of these transactions
We are of the view, however, that the evidence is consistent with the jury's finding of a single conspiracy. Without repeating all that was said in the lengthy recitation of facts, we would point out that at least Stephens and Wells were involved in the operation from its very inception, that is, prior to the abortive trip to Miami in search of a smuggling boat. Of course, this fact alone would doubtless not support a finding of a single, ongoing conspiracy. However, the evidence indicates that the original conspirators (Malloch, Durden, Farris, Wells, and Stephens), when the plan was first conceived, intended to set up a regular smuggling operation rather than to undertake a one-shot smuggling venture. Durden, who testified as a prosecution witness, stated that the original conspirators at their first meeting "were talking about the possible ways that we could bring in marijuana. We discussed using a boat to bring it in and a possibility of bringing it in by one of the commercial airlines." When both of these methods for smuggling proved unfeasible, the conspirators decided to undertake the operation by means of a private aircraft.
Thomas Malloch, Jr., later testified substantially to the same effect with regard to the intentions of the original conspirators. When asked by the prosecuting attorney about their discussion as to the purpose of the trip to Miami, Malloch replied, "This particular trip we were going down about trying to get a boat or about the best operation to get going."
"Get going for what?" Answer: "For marijuana."
Finally, as to this same discussion, Wells, on direct examination, testified as follows:
In view of the foregoing we think it unnecessary to quote further from the extensive testimony in the trial transcript which likewise supports the government's theory that the original plan was to set up a marijuana smuggling operation, not limited to a single trip, from the Caribbean to the United States. We note that Stockmar, the owner and operator of a private aircraft, was enlisted into the conspiracy when it became apparent to the original conspirators that smuggling by means of boat or commercial airline was unworkable. Jones was added to the roster when it was decided by the participants to enlarge the operation by converting to a two plane system. That neither was a participant at the time the original scheme was concocted does not vitiate their convictions on the conspiracy count. As this court said in Nelson v. United States, 415 F.2d 483, 486 (5th Cir. 1969):
Appellants next contend that it was error for the trial court to admit into
We note, however, that following this incident the trial court conducted a voir dire hearing at which both Wells and Austin were thoroughly queried as to whether they had at any time during the trip discussed the pending case against Jones and Stockmar. Both denied that they had and the court concluded that none of the defendants would be prejudiced by the government's failure to adhere to the court's explicit instructions. Having carefully examined the transcript of the voir dire hearing, we are satisfied that the trial court did not abuse its discretion in allowing Wells thereafter to make a positive identification of the Sebastian Airport. See, e. g., Del Cristo v. United States, 327 F.2d 208 (5th Cir. 1964).
On the basis of that identification the several hundred pounds of marijuana seized on June 14, 1971, at Sebastian Airport by law enforcement officers were admitted into evidence. As we have noted, this was the only marijuana actually introduced and admitted at trial and it was admitted solely as evidence bearing on the conspiracy charge. Inasmuch as the June 30th shipment of marijuana, which was the subject of the substantive charges contained in Counts 11 and 12 of the indictment, had allegedly been disposed of by the defendants, it was never introduced into evidence. Appellants contend that the government failed at trial to prove an essential element of the crimes charged in Counts 11 and 12, that is, that the substance involved was in fact marijuana.
Lacking the physical evidence the government undertook to prove this element of the crime by circumstantial evidence. Wells identified as marijuana the substance which was dropped at the Sebastian Airport and which was later seized by law enforcement officers. He then testified that this was the same substance as that which had been smuggled into the United States on June 30, 1971, and which formed the subject matter of Counts 11 and 12. Subsequent to his testimony the government introduced an expert witness, Sidney Waldhour, Jr., who testified that the Sebastian Airport substance was marijuana. Based on this evidence the trial court instructed the jury that it could consider Wells' ability to identify the Sebastian Airport substance as evidence of his ability to identify marijuana with respect to the substantive counts. Appellants urge that such testimony was incompetent and therefore inadmissible. We disagree.
Wells was subjected to thorough cross-examination with respect to his ability to recognize marijuana and while he admitted that prior to the smuggling operation he had had little experience with the substance, he did state that thereafter he had smoked it on two or three occasions and that he had examined
Stockmar next urges that he was improperly denied the opportunity to challenge administratively the classification of marijuana as a controlled substance prior to his trial.
Both appellants urge that the specifications in the indictment and the statute (21 U.S.C. § 801 et seq.) upon which the indictment was based are unconstitutionally vague. It is argued chiefly that the statutory procedures for administrative reclassification of controlled substances are too indefinite and uncertain to be given constitutional sanction. The short answer to this contention is that Congress itself put marijuana in its current classification and thus the substance has never been administratively reclassified. Of course, the statutes under which Stockmar and Jones were indicted are quite specific as to the type of activity proscribed.
Stockmar next contends that the district court abused its discretion in denying the bulk of his pre-trial motions for discovery, including a motion
We have carefully considered the other errors assigned by appellants on this appeal and find them to be without merit. The judgments of conviction are therefore affirmed.