Manuel v. State

GARRITY, Judge. Appellants Edward Manuel, Charles Onwuneme, Celestine Aniunoh, Cajetan Ohakwe, and Joshua Brewer were charged with conspiracies to possess and to distribute heroin and with other crimes involving controlled dangerous substances (CDS). All of the appellants were convicted of conspiracy to distribute heroin. All of the appellants except Onwuneme were convicted of conspiracy to possess heroin with intent to distribute.

Appellant Manuel was also convicted of conspiracy to distribute cocaine. In addition, appellant Aniunoh was convicted of conspiracy to distribute cocaine and six counts each of distribution of heroin and possession with intent to distribute heroin. The appellants present the following questions for review: I. Did the lower court err by permitting more than one conviction for conspiracy of appellants Aniunoh, Brewer, Manuel and Ohakwe and by failing to merge each appellant’s conspiracy conviction into a single conviction?

II

Did the lower court err by denying appellant Manuel and appellant Onwuneme’s motions to dismiss on double jeopardy grounds?

III

Did the lower court err by denying each appellant’s request for a severance of his trial from that of all the other defendants? ⁷ IV. Did the lower court err by allowing amendment of the conspiracy indictments and by denying postponements in light of the amendments? V. Did the lower court err by failing to dismiss the charges against the appellants because Rule 4-271 had been violated?

VI

Did the lower court err by overruling the appellants’ objections to Mr. Tabansi as an expert translator?

VII

Did the lower court err by refusing to give appellant Aniunoh’s requested jury instructions?

VIII

Was the evidence insufficient? I. The appellants’ 1 arguments with respect to merger are threefold. Aniunoh, 2 who was indicted and convicted of six separate instances of distribution of heroin and the lesser-included offense of possession with intent to distribute heroin, assigns error to the trial court’s imposition of sentences on the lesser-included offenses. Second, appellants ⁸ Aniunoh, Brewer, Manuel, and Ohakwe 3 contend that the trial court erred when it failed to merge each appellant’s two heroin conspiracy convictions into one heroin conspiracy conviction.

Finally, appellants Aniunoh and Manuel, 4 each of whom was convicted of conspiracy to distribute cocaine and conspiracy to possess cocaine with the intent to distribute, contend that these convictions should merge into one conspiracy conviction encompassing both the cocaine and heroin conspiracies. A. The evidence adduced at trial showed that the appellants were part of a continuing conspiracy to distribute heroin from Nigeria and to possess that heroin with the intent to distribute. These objects of the conspiracy are considered the same offense for purposes of merger based on the reasoning in Hagans v. State, 316 Md. 429 , 559 A.2d 792 (1989). Faced with the issue of whether a defendant could be convicted of an offense which is not charged but which is a lesser-included offense of one which is charged, the Hagans Court adopted the “required evidence” test as the basis for determining what is a lesser-included offense.

Hagans, supra, at 449 , 559 A.2d 792 . The Court wrote, “[a]ll the elements of the lesser included offense must be included in the greater offense. Therefore, it must be impossible to commit the greater without also having committed the lesser.” Id. Likewise, in Hankins v. State, 80 Md.App. 647, 659 , 565 A.2d 686 (1989), we held that where ⁹ the possession with intent to distribute cocaine and the distribution of cocaine emanate from the same transaction, “distribution includes and subsumes possession with intent to distribute because the evidence required to prove distribution includes control over the substance.” Id.

Therefore Aniunoh’s six convictions for possession of heroin with intent to distribute should be merged with his corresponding convictions for distribution of heroin. Accordingly, the sentences for the lesser-included offenses should be vacated. B. The appellants contend and the State concedes that their multiple heroin conspiracy convictions should be merged into one heroin conspiracy conviction per appellant. We agree.

In Tracy v. State, 319 Md. 452, 454 , 573 A.2d 38 (1990), the Court of Appeals held that convictions for conspiracy to commit murder and conspiracy to commit armed robbery, based on one continuing conspiratorial relationship, must merge. “It is well settled in Maryland that only one sentence can be imposed for a single common law conspiracy no matter how many criminal acts the conspirators have agreed to commit.” Id. at 459 , 573 A.2d 38 . Likewise in Mason v. State, 302 Md. 434, 445 , 488 A.2d 955 (1985), the Court held that “a defendant who distributes a number of controlled dangerous substances in accordance with a single unlawful agreement commits but one crime: common law conspiracy.” Id. at 445 , 488 A.2d 955 . The Court cautioned, however, that before reaching this conclusion the nature of the agreement must be analyzed to determine whether there are single or multiple conspiracies. Id.

Accordingly, we turn now to the nature of the agreement between the appellants. The trial transcripts are replete with evidence of a massive Nigerian drug trafficking operation. In January, 1987, Detective Sergeant Warren Rineker commenced an investí ¹⁰ gation of this drug ring as a result of information provided by a registered confidential informant named James Thomas, who was deceased by the time of trial. Through Thomas the police learned that appellant Aniunoh was a mid-level supplier of heroin.

During the course of the investigation the police obtained Aniunoh’s telephone number. On August 24, 1987, they placed a pen register 5 on Aniunoh’s home telephone which recorded the telephone numbers later associated with Manuel, Ohakwe and Eze. 6 After obtaining a court order for a wire tap, the police conducted the tap between October 6, 1987 and November 27, 1987. Other wire taps were conducted on alleged co-conspirators and co-defendants Eze, Okoroafor and Obi. 7 As a result, the police recorded and transcribed thousands of telephone calls which revealed that Aniunoh was a middle-level dealer who obtained heroin from suppliers, including Eze; that he was at the same level as associates Manuel and Ohakwe; and that he was a level above the street suppliers whom he supplied, such as Brewer and Thomas, the informant. The police set up a large three ounce heroin buy scheduled to occur on December 18, 1987 at informant Thomas’ Baltimore City residence.

Appellant Manuel arrived. After Thomas displayed the $18,000 cash, Manuel left to “get my man.” He returned with appellant Onwuneme and the heroin. The prospective buyers rejected the heroin. Consequently, Manuel and Onwuneme left.

They travelled from Baltimore City to Baltimore County where the police, after arresting the appellants, retrieved the three ounces of her ¹¹ oin from beneath the passenger seat of the vehicle where Onwuneme had been sitting. Pursuant to a search and seizure warrant obtained as a result of the arrest, the police searched Onwuneme’s Tow-son hotel room. The police learned that Onwuneme arrived from Nigeria on December 15, 1987, and he was scheduled to return in a few days. His telephone bill showed calls to Manuel and Thomas.

Papers seized from Manuel revealed, inter alia, telephone calls to, or the telephone number of, Okoroafor, Ohakwe, Aniunoh, Thomas, and a person from Nigeria designated “Bossman” Chief Charles, Charles Onwuneme. This evidence firmly establishes a single conspiracy among appellants to distribute heroin and to possess heroin with the intent to distribute. The wiretaps and the staged heroin transaction clearly establish the connection between and the roles of the appellants in the drug ring. Since the evidence demonstrates a single conspiracy, the appellants multiple heroin conspiracy convictions must be merged into one conviction per appellant for conspiracy to distribute heroin.

C. The final merger issue is raised by appellants Aniunoh and Manuel who contend that their cocaine conspiracy convictions should be merged with their heroin conspiracy convictions. While we do not agree with that position, we believe that like the multiple heroin conspiracy convictions, the multiple cocaine conspiracy convictions should be merged into one cocaine conspiracy conviction. In light of Mason, supra, we must consider whether the nature of the agreement among the members of the drug ring extended to cocaine trafficking. Of the thousands of telephone calls intercepted by the police and the numerous conversations recorded via Thomas’ body wire, there are four distinct components of one cocaine transaction.

In the course of a heroin deal which ¹² occurred on October 15, 1987, Aniunoh told Thomas that he could obtain some “girl,” the street name for cocaine, if Thomas was interested. Aniunoh revealed possible sources in Virginia and in Atlanta. Aniunoh then contacted a possible supplier, Kingsley, in Mississippi, who disclosed his terms and invited Aniunoh to Mississippi to conclude the deal. Aniunoh also discussed with Manuel the terms of the cocaine supplier with whom the latter was familiar.

Aniunoh then contacted Thomas to further negotiate the cocaine trafficking scheme. While the conspiracy to distribute cocaine emanated from the heroin conspiracy, it was a separate, distinct agreement. The cocaine scheme was the offspring solely of conspirators Aniunoh and Manuel, whereas the heroin ring was the prodigy of Onwuneme, Ohakwe, Brewer, Aniunoh, Manuel and many others. The heroin conspirators did not broach the topic of cocaine distribution; rather their focus centered on heroin.

The cocaine conspiracy is further distinguishable due to the use of different suppliers. The cocaine derived from a source in the southeast portion of the United States whereas the heroin primarily originated in Nigeria. Finally, the two conspiracies covered different periods of time. The heroin trafficking spanned from January 1987 through February 1988, approximately a thirteen-month period, while the cocaine conspiracy covered a two-month stretch between October 1987 and December 1987.

Under these circumstances the cocaine conspiracy constituted a separate offense which does not warrant merger with the heroin conspiracy conviction.

II

Manuel and Onwuneme pleaded guilty in Baltimore County to a charge of possession with intent to distribute heroin. The Baltimore County prosecution was based on the incident on December 18, 1984 when Manuel and Onwuneme were arrested after they crossed into Baltimore County following an aborted attempt to sell three ounces of ¹³ heroin to police who were posing as buyers. 8 Subsequent to their guilty plea, the appellants were tried in Baltimore City on conspiracy charges. Manuel and Onwuneme requested the trial court to dismiss the case based on double jeopardy grounds. On appeal, they assign error to the court’s denial of their motions.

The appellants claim that the principles of collateral estoppel and res judicata support their contention. The Fifth Amendment to the United States Constitution and the Maryland common law provide that no person should be put in jeopardy twice for the same offense. Ashe v. Swenson, 397 U.S. 436 , 90 S.Ct. 1189 , 25 L.Ed.2d 469 (1970); Robinson v. State, 307 Md. 738, 741-743 , 517 A.2d 94 (1986). In Grady v. Corbin, — U.S. --, 110 S.Ct. 2084 , 109 L.Ed.2d 548 (1990), the Supreme Court announced a two-step approach for resolving double jeopardy questions like those at issue here.

To determine whether a subsequent prosecution is barred by the Double Jeopardy Clause, a court must first apply the traditional Blockburger [v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180, 182 , 76 L.Ed. 306 (1932),] test. If application of that test reveals that the offenses have identical statutory elements or that one is a lesser included offense of the other, then the inquiry must cease, and the subsequent prosecution is barred. Brown [v. Ohio, 432 U.S. 161, 166 , 97 S.Ct. 2221, 2225 , 53 L.Ed.2d 187 (1977).] Grady , — U.S. at-, 110 S.Ct. at 2090 . [But] a subsequent prosecution must do more than merely survive the Blockburger, test. As we suggested in [Illinois v. Vitale, [ 447 U.S. 410 , 100 S.Ct. 2260 , 65 L.Ed.2d 228 (1980),] the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prose ¹⁴ cuted.

This is not an ‘actual evidence’ or a ‘same evidence’ test. The critical inquiry is what conduct the State will prove, not the evidence the State will use to prove that conduct. Grady , — U.S. at-, 110 S.Ct. at 2090 (footnotes omitted). The crime of conspiracy and the substantive offense that is its object are separate and distinct under the Blockburger required evidence test.

Apostoledes v. State, 83 Md.App. 519, 523 , 575 A.2d 792 (1990). As the Court of Appeals stated in Gilpin v. State, 142 Md. 464, 468 , 121 A. 354 (1923) (quoting 16 C.J. 280), “ ‘[njeither an acquittal nor a conviction of a conspiracy to commit a crime is a bar to prosecution for the commission of that crime or for aiding and abetting another to commit it.’ ” Having met the Blockburger prong, we turn now to the second prong of the test. The conduct for which Manuel and Onwuneme were prosecuted in Baltimore City was their participation in a heroin ring engaged in ongoing importation and distribution of heroin. The essence of the crime of conspiracy 9 is the agreement itself, not the overt acts done in furtherance of it or which may be probative of it.

Greenwald v. State, 221 Md. 245, 250 , 157 A.2d 119 , cert. denied, 363 U.S. 721 , 80 S.Ct. 1599 , 4 L.Ed.2d 1521 (1960). In addition, a conspiracy is an agreement to accomplish an act “in futuro; the purpose of conspiracy is to do something.” Jones v. State, 8 Md.App. 370, 379 , 259 A.2d 807 (1969). While it is true that evidence that Manuel and Onwuneme were stopped and arrested with the heroin in Baltimore County was presented to the jury, that evidence was only a small piece of the voluminous evidence presented at their Baltimore City trial to prove their participation as actors in the ongoing heroin conspiracy. The trial court, therefore, properly denied the appellants’ motions to dismiss. ¹⁵ III.

All of the appellants claim that trial of their cases should have been severed from trial of the other charged conspirators and co-defendants. Each of them argues that the jury should have heard only the evidence accumulated during the State police investigation that involved him specifically. These assertions are meritless. The matter of severance or joinder is one lying within the discretion of the trial judge.

State v. Edison, 318 Md. 541, 546 , 569 A.2d 657 (1990). “In the exercise of its discretion, the court is guided by the mutuality of evidence principle. If, in separate trials, evidence as to each individual offense would be mutually admissible, the offenses may be joined.” Id. at 548 , 569 A.2d 657 , citing McKnight v. State, 280 Md. 604, 612 , 375 A.2d 551 (1977); accord Frazier v. State, 318 Md. 597, 609 , 569 A.2d 684 (1990). Maryland Rule 4-253(a) provides that “the court may order a joint trial for two or more defendants charged in separate charging documents if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.” The purpose of the rule is to save the time and expense of separate trials, but, if justice requires, the rule permits separate trials. Stevenson v. State, 43 Md.App. 120, 130 , 403 A.2d 812 (1979), aff'd, 287 Md. 504 , 413 A.2d 1340 (1980). “[J]oinder [of multiple defendants] for trial is dictated under circumstances where most, if not all, of the evidence admitted at trial would have been admissible in each trial if the several defendants had been tried separately.” Id.

(citation omitted). Conspiracy involves a common scheme or design that constitutes a single, continuing conspiracy evidenced by a series of acts in furtherance of the criminal scheme. Greenwald v. State, 221 Md. at 250-51 , 157 A.2d 119 . “If it be proved that the defendants sought the same objective and that one performed one function and the other another in the attainment of that objective, the inference that they ¹⁶ were engaged in a conspiracy will be justified.” Id. at 250 , 157 A.2d 119 . If the conspiracy contemplates the continued cooperation of the conspirators in a series of offenses, it continues until the final accomplishment of the overall purpose, or abandonment of the purpose.

Id. at 250-51 , 157 A.2d 119 . One type of continuing conspiracy typically associated with the distribution of narcotics is a “chain” conspiracy. 2 LaFave & Scott, Substantive Criminal Law, § 6.5, at 98 (1986). In such cases, the evidence need not show direct communication between all persons in the chain of importation, supply and retailing of the narcotics. The parties’ knowledge of the existence and importance of the other links in the distribution chain may be inferred from the circumstances, and it is sufficient to show the combination and community of interest.

Id. at 99-100. The combination necessary for conspiracy must often be shown by inference from the circumstances. Greenwald, 221 Md. at 250 , 157 A.2d 119 . It is also well established that the declarations of one conspirator, made during the pendency and in furtherance of the conspiratorial purpose, are admissible against the other co-conspirators.

Grandison v. State, 305 Md. 685 , 506 A.2d 580 (1986); Greenwald, 221 Md. at 254-55 , 157 A.2d 119 ; and Ezenwa, 82 Md.App. at 512-13 , 572 A.2d 1101 ; Irvin v. State, 23 Md.App. 457, 470-73 , 328 A.2d 329 (1974); aff'd, 276 Md. 168 , 344 A.2d 418 (1975). The reason for this rule is that a conspirator is, in effect, the agent of each of the other co-conspirators during the life of the conspiracy. As such, any statement made or act done by him in furtherance of the general plan and during the life of the conspiracy is admissible against his associates and such declarations may be testified to by third parties as an exception to the hearsay rule. Terrell v. State, 34 Md.App. 418, 425 , 367 A.2d 95 (1977).

Further, the acts of co-conspirators evidencing the general plan are admissible even if they occur prior to the date ¹⁷ charged in the indictment. Greenwald, 221 Md. at 250 , 157 A.2d 119 . All of the appellants were charged with a single, continuing conspiracy to possess and distribute heroin, with each other and with other named and unnamed conspirators, between January 27, 1987 and February 17, 1988. The State’s theory was that there was a single, continuing heroin conspiracy.

The appellants do not challenge that characterization; indeed, in their merger argument they allege that it was a single conspiracy to distribute heroin. At trial, the State presented evidence showing heroin dealings between all the appellants and appellant Aniunoh during that period. In addition, all of the appellants had direct dealings with one or more of the other appellants or charged co-conspirators. The permissible inference was that they were all links in a Nigerian-headed scheme to import and sell heroin in the Baltimore-Washington area, and that each was expressly or inferentially aware of the others’ roles in that scheme.

Thus, the acts and statements of each during the conspiracy were admissible against the other under the aforestated law pertaining to the acts and declarations of co-conspirators, and the law of participation, even if each of them was not involved in every overt act committed by the others. Moreover, although we held in our discussion of the merger issue that the cocaine conspiracy between Aniunoh, Manuel and Thomas was a separate one, it occurred during the time span of the heroin conspiracy, and the evidence proving it was so connected to the evidence involved in the broader heroin conspiracy, and the transactions were so closely related, that the cocaine conspiracy counts were also properly joined. See Maryland Rule 4-253(a); Tracy, 319 Md. at 459 , 573 A.2d 38 (defendant not prejudiced by joint trial on all counts where charges so interrelated that evidence as to all mutually admissible); Stevenson, 43 Md. App. at 130 , 403 A.2d 812 (joinder of multiple defendants dictated where most, if not all, evidence admitted at trial would be admissible at separate trial of each defendant). ¹⁸ Considering these facts and the weeks required to try this case, the interests of avoiding the time and expense of separate trials clearly outweighed the alleged need for severance.

IV

On January 4, 1989, the State indicated that it intended to amend the conspiracy indictments so as to expand the period of conspiracy. Following a hearing upon this question during preliminary matters prior to trial the next day, January 5, 1989, the court allowed the State to amend the indictment so that the conspiracy was alleged to have occurred between January 27, 1987 and February 17, 1988, rather than between August 1, 1987, and February of 1988. Upon review of the relevant Maryland case law, the court held that the amendment of the date did not change the character of the offense charged. All of the appellants took exception to the ruling.

On appeal, the appellants summarily contend that expansion of the dates changed the character of the conspiracy charged against the appellants. Their conclusion is unsupported by the applicable law, which was properly applied by the trial judge. Maryland Rule 4-204 provides, in part, that a court “at any time before verdict may permit