United States of America, Plaintiff-appellee, v. Major Cobb and Thomas Spivey, Defendants-appellants, 455 F.2d 405 (2d Cir. 1971)

Defendants-appellants Major Cobb and Thomas Spivey with co-defendants, Allen Davidowitz, Rafael Astor, Richard Levin, Walter Hernick and Harold Epstein were indicted on January 25, 1967, for conspiring with each other and with Murray Lapidus, Danny Klein, Henry Cardona, and Richard Kamberg to receive, conceal, buy, sell and transport marijuana which had been imported contrary to law. 21 U.S.C. § 176a. Cobb and Spivey were convicted. The case against the remaining defendants was severed. On appeal this Court affirmed. 396 F.2d 158 (1968). On May 3, 1971, 402 U.S. 937, 91 S. Ct. 1602, 29 L. Ed. 2d 105 the Supreme Court granted certiorari, vacated the convictions and remanded the case to this Court for "reconsideration in light of this Court's [its] decision in Leary v. United States, 395 U.S. 6, [89 S. Ct. 1532, 23 L. Ed. 2d 57] (1969) and United States v. United States Coin & Currency, 401 U.S. 715, [91 S. Ct. 1041, 28 L. Ed. 2d 434] (1971)." 402 U.S. 937, 91 S. Ct. 1602 (1971). The judgment of this Court of May 27, 1968, accordingly was vacated. On remand additional briefs from the parties were requested. Such briefs have been submitted and the points raised therein have been considered. The evidence presented at the trial has been reconsidered as it relates to the points now in issue.

The Government concedes insufficiency of evidence to establish knowledge of illegal importation as to Spivey and that he "is entitled to have his conviction reversed." Govt. Br. 4, 6. The case, however, as to Cobb is quite different. Information was given to Cobb by a co-conspirator that the marijuana was being imported from Mexico. His request that the co-conspirator defer delivery does not negate his knowledge of the source.

Cobb also argues that with the trial court's dismissal of the indictment as to co-conspirator Allen Davidowitz and the reversal as to Spivey, he "will remain as a 'single conspirator' requiring reversal under Judge Waterman's decision in U. S. v. Roupinion, et al., (decided August 23, 1971)."¹  This conclusion is not supported by the facts. Cobb at no time was a single conspirator. Amongst others were Astor, Levin, Hernick, Epstein, Lapidus, Klein, Cardona and Kamberg. The proof connected Cobb with one or more of this group.

Cobb's conviction affirmed; Spivey's conviction reversed and indictment as to him dismissed.