508 F.

2d 566

UNITED STATES of America, Appellee,

v.
Geoffrey HONNEUS, Defendant-Appellant.
No. 74-1112.

United States Court of Appeals, First Circuit.

Argued Oct. 7, 1974.
Decided Dec. 24, 1974, Certiorari Denied April 28, 1975, See
95 S.Ct. 1677.

Daniel Klubock, Boston, Mass., with whom Kirk Y. Griffin and

Featherston, Homans, Klubock & Griffin, Boston, Mass., on brief, for
appellant.
Lawrence P. Cohen, Asst. U.S. Atty., with whom James N. Gabriel, U.S.
Atty., Boston, Mass., on brief, for appellee.
Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit
Judges.
LEVIN H. CAMPBELL, Circuit Judge.

After a jury trial Geoffrey Honneus was convicted in the district court upon
charges arising from his participation in a scheme to buy marihuana in bulk in
Jamaica and transport it back to New England in an auxiliary yacht chartered
for the purpose. His contentions on appeal, and the facts material to them, are
discussed below.

* Honneus contends that it was improper to convict and sentence him under
three conspiracy counts all stemming from the same conspiracy. In the six
count indictment Honneus and others were charged with three substantive
offenses and three counts of conspiring to accomplish the substantive offenses.
The substantive counts were for importing marihuana in violation of 21 U.S.C.
952(a); distributing and possessing marihuana with intent to distribute in
violation of 21 U.S.C. 841(a)(1); and smuggling marihuana in violation of 18
U.S.C. 545. The count charging a conspiracy to import and that charging a

conspiracy to distribute and possess were brought under separate drug

conspiracy statutes, respectively 21 U.S.C. 963 and 21 U.S.C. 846. The count
charging a conspiracy to smuggle was brought under the general federal
conspiracy statute, 18 U.S.C. 371.
3

Identical overt acts were listed in the indictment under each conspiracy count;
and Honneus argues that since the evidence disclosed but a single agreement,
the fact that the objects of the agreement amounted to three distinct crimes did
not transform one conspiracy into three. In Braverman v. United States, 317
U.S. 49, 53, 63 S.Ct. 99, 102, 87 L.Ed. 23 (1949), the Supreme Court said:

'Whether the object of a single agreement is to commit one or more crimes, it is

in either case that agreement which constitutes the conspiracy which the statute
punishes. The one agreement cannot be taken to be several agreements and
hence several conspiracies because it envisages the violation of several statutes
rather than one.'

In Braverman the defendant had been sentenced upon each of several

conspiracy counts brought under 37 of the then Criminal Code charging a
conspiracy to violate different provisions of the Internal Revenue laws. The
Supreme Court held that only a single sentence could be imposed and remanded
for resentencing.

In Braverman, where all counts violated but a single conspiracy statute, it could
without difficulty be said that the single conspiracy differed 'from a single act
which violates two statutes.' Id. at 54, 63 S.Ct. at 102. In the present case, each
conspiracy count was brought under a different federal conspiracy statute. In
addition, the statutory penalties vary slightly as between statutes, and there
appears to be some difference as to standards of proof respecting overt acts.
The Government contends that these factors turn the one criminal agreement
into a trilogy of crimes.

We disagree. While undoubtedly Congress meant to attack the drug trade with
severity, see Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d
1405 (1957), we doubt that it meant to authorize, or could authorize, a court to
impose three punishments for one conspiracy. Congress may treat different
aspects of the same conduct as separate crimes only if there is a meaningful
distinction between the elements constituting each offense. See id.; American
Tobacco Co. v. United States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575
(1946); Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76
L.Ed. 306 (1931). Here, unlike in American Tobacco, the agreement was

identical in all three alleged conspiracies; the Government concedes as much.

In Braverman the Court held that all separate criminal objects are 'embraced'
within the single continuing agreement. 'The conspiracy is the crime, and that is
one, however diverse its objects.' 317 U.S. at 54, 63 S.Ct. at 102, quoting from
Frohwerk v. United States, 249 U.S. 204, 210, 39 S.Ct. 249, 63 L.Ed. 561
(1918) (Holmes, J.). We hold that charging a single illicit agreement under
several statutes does not make it more than one conspiracy. United States v.
Noah, 475 F.2d 688 (9th Cir. 1973); United States v. Mori, 444 F.2d 240 (5th
Cir. 1971).
8

We do not question Congress' power to enact the three statutes nor the
Government's power to charge under them; but we find only one crime for
which only a single sentence could be imposed. We therefore disagree with
Honneus that he is entitled to a new trial. Cf. Braverman, supra, 317 U.S. at 55,
63 S.Ct. 99; Mori, supra, 444 F.2d at 246. An election was required in
connection with sentencing, but not before. For practical reasons, we think the
Government was entitled to request separate verdicts under all three statutes.
The conspiracy with its several objects could, it is true, have been charged in a
single count, Braverman, supra, 317 U.S. at 54, 63 S.Ct. 99. But had this been
done, the court would not have known whether Honneus was found by the jury
to have conspired to achieve all or only some of the illegal objects, and thus
would not have known which of the statutory sentences were available. Other
problems could perhaps have arisen had the court provided for special verdicts
or asked special questions. See United States v. Spock, 416 F.2d 165 (1st Cir.
1969). Alternatively, if the Government had been forced to elect before trial, it
would have had to gamble on proving one illegal object when there were, in
fact, several, any one of which would have supported a finding of the
agreement's illegality.

We thus find no error, nor do we believe there was prejudice, in submitting all
three counts to the jury. But since there was but one crime, only one sentence
could be imposed. We accordingly vacate the separate concurrent sentences
under Counts 1, 3 and 5 and remand for sentencing upon any of the three counts
the United States may select. Surplus counts are to be dismissed.1
II

10

Respecting Count 4,2 which charged the distribution and possession of

marihuana with intent to distribute, Honneus makes several arguments about
venue and jurisdiction. First he says that the indictment was defective for
failure to allege where the offense took place. But it is well established that an
indictment is not legally insufficient for failure to include such an allegation.

See, e.g., United States v. Branan, 457 F.2d 1062 (6th Cir. 1972); Carbo v.
United States, 314 F.2d 718 (9th Cir. 1963), cert. denied, 377 U.S. 953, 84
S.Ct. 1625, 12 L.Ed.2d 498 (1964). Honneus would have been entitled to the
information had he sought a bill of particulars. He did not do so. Our attention
is directed to a co-defendant's motion for particulars which was allowed and to
which, Honneus now argues, the Government responded inadequately. This is
of no assistance to Honneus. His sole connection with the motion is a paper
filed later by his attorney2A purporting to join in 'each and any and all of the codefendant's motions, requests and petitions.' Apart from the fact that it was
'denied' by the court, the shotgun joinder obviously did not alert the court that
Honneus was seeking information as to the place of possession, or that he was
dissatisfied with information in the Government's bill of particulars filed in
response to a co-defendant's motion.
11

Also in conjunction with Count 4, Honneus argues that he was entitled to an

instruction on 'venue'. There was evidence that Honneus, who lived in
Massachusetts, flew to Jamaica and, with others, purchased the marihuana there
and arranged to have it loaded on a vessel which had been sailed from Duxbury,
Massachusetts to Jamaica expressly to make the pickup. After the vessel was
loaded, it sailed back to Massachusetts, where its owner contacted Honneus and
arranged to have the marihuana off-loaded in Maine coastal waters. Finally
there was evidence from which the jury could have found that Honneus had in
his possession and sold some of the marihuana in Massachusetts prior to his
arrest in that state. The latter evidence of illicit possession and distribution
within Massachusetts was ample to support both the jury's verdict under Count
4 and venue within the District of Massachusetts, F.R.Crim.P. 18; see 18 U.S.C.
3237.

12

But Honneus argues that since the jury may have rested its conviction only
upon the evidence of possession within Jamaica, the court erred in not
instructing that possession had to be found in Massachusetts. The premise of
this argument is doubtful. One might question whether a jury which found
Honneus guilty on all counts, including ones for smuggling and conspiracy,
was likely to have rejected the evidence of possession and distribution within
Massachusetts. It is also quite possible, although we do not decide the question,
that possession in Jamaica by a U.S. resident intending to distribute within the
United States and later doing so, is within the reach of United States criminal
jurisdiction and was prosecutable in the district of Massachusetts where
Honneus was arrested.3 18 U.S.C. 3238.

13

[9,10] But even if it is assumed that Honneus would have been entitled upon
appropriate request to an instruction requiring a finding of possession within the

geographical confines of Massachusetts, we are not convinced that it was plain

error for the court not to have given one. A failure to instruct on venue is not
normally plain error. See United States v. Guy, 456 F.2d 1157, 1163 (8th Cir.
1972); Bellard v. United States, 356 f.2d 437 (5th Cir. 1966). Honneus was
tried in the district both where he was living and where the criminal plans were
laid and took effect. Cf. Travis v. United States, 364 U.S. 631, 81 S.Ct. 358, 5
L.Ed.2d 340 (1969). We see in this instance no reason that would exempt him
from the usual, salutory requirement that one complaining about an omitted
instruction must have tendered a request and objected to its omission. United
States v. Lachman, 469 F.2d 1043 (1st Cir. 1972). We note that the
Government had proposed an instruction permitting conviction for possession
outside the jurisdiction. The court declined to give it, and Honneus might have
concluded that any instructions on the subject could only be to his detriment.
Not only did he not assert lack of venue or jurisdiction as a ground for acquittal
in motions made during the trial, but his only request for instruction arguably
raising the matter seemed to focus on a different issue4 -- namely, whether the
marihuana had to be Cannabis sativa L. See Part IV infra. This request might
have been enough had Honneus objected after the court had instructed the jury.
Instead, Honneus' counsel, although he raised other objections, indicated no
dissatisfaction an the ground at issue. The case bears little resemblance to one
cited by appellant, United States v. Rodriguez, 465 F.2d 5 (2d Cir. 1972), in
which the counsel's failure to object to the charge was offset by his other
actions and by the court's own recognition of venue as a prime issue.
14

We hold that no instruction was required. We find no merit in the different

venue argument addressed to Count 2.
III

15

Appellant argues that rulings of the court excluding certain responses of

witnesses were erroneous in that they reflected a mechanical application of the
so-called 'federal' rule limiting cross-examination to matters presented during
direct. See 6 J. Wigmore, Evidence 1885-91 (3d ed. 1940). The most serious
complaint of this nature stems from circumstances relating to Honneus' claim
that he was approached before trial by one Martha Snyder on behalf of a
government witness, William Helliesen, with an offer that Helliesen would keep
silent for $10,000. Honneus' counsel reported the alleged solicitation to the
Government, whose agents thereafter interrogated Helliesen. It was after these
events, which were made known to the court, that, prior to his crossexamination of Helliesen, Honneus' counsel announced an intention to ask
Helliesen 'if he knew one Martha Snyder, in fact, his girl friend.' Although
counsel said the question was for impeachment purposes, the court insisted that

the 'scope of the cross-examination is set by the scope of the direct

examination,' and that 'your alleged purpose does not set the rules of the
ballgame.' From the court's remarks, counsel could understand that he was to
make no inquiry of Helliesen about the purported bribe solicitation. The district
court erred. Counsel was entitled to inquire whether Helliesen knew Martha
Snyder and whether Helliesen had asked her to communicate an offer on his
behalf to Honneus. The 'federal' rule, even is its most draconian form, does not
deny to a cross-examiner reasonable latitude to inquire into relevant matters that
may show a witness's bias or prejudice or otherwise impeach his credibility.
Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931);
Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1967). Whether
Helliesen had sought to sell his testimony was such a matter. The court had
broad discretion, of course, to control the extent of examination and to decide
when a particular subject was exhausted. Once Helliesen denied
communicating any offer through Martha Snyder, it could have curtailed
further inquiry, and dampened any improper effort by counsel to ask questions
framed so as to inform the jury of the supposed bribe attempt. But it should not
have shut off all inquiry.
16

The denial of cross-examination upon a proper subject for cross-examination is

a ground for reversal 'if the denial appears to have been harmful.' Wheeler v.
United States, 351 F.2d 946, 947 (1st Cir. 1965). In Wheeler, defense counsel
made an offer of proof that the witness would, if permitted to answer, have
given an answer favorable to the defense. Here, on the other hand, counsel
never outlined the questions he proposed to ask, nor did he say that he had
reason to believe that Helliesen would admit participating in the bribe
solicitation. This fact alone does not discharge the Government's burden. The
right having been erroneously denied, the burden was upon the Government to
establish the harmlessness of the denial; Honneus need not show 'that the crossexamination, if pursued, would necessarily have brought out facts tending to
discredit . . ..' Alford, supra, 282 U.S. at 692, 51 S.Ct. at 219. On the other hand
the error, serious as it was, is not to be viewed in isolation in determining
whether it was harmful. Later in the trial the Assistant United States Attorney,
in the presence of defense counsel, detailed the steps taken to investigate
Honneus' story. He represented that Helliesen, when interrogated by federal
agents, had flatly denied having made any such solicitation and had termed the
story a defense ploy; he also stated that Martha Snyder had declined to discuss
the matter and would claim her privilege against self incrimination. Honneus'
attorney, who was free to interview Helliesen, never challenged the
representation that Helliesen denied the story nor suggested any reason that
Helliesen would admit to it or that there were facts with which to confront him.
And later, when Martha Snyder was subpoenaed by the defense, her attorney

informed the court that she would claim her privilege against self incrimination
and she was excused without testifying. Bearing in mind also that Helliesen's
direct testimony was strongly corroborated by other witnesses and evidence,
and that Honneus' counsel was permitted an otherwise searching crossexamination of Helliesen who, the jury learned, was in jail and had received
inducements from the Government to testify, we are satisfied that the error was
harmless.
17

Honneus' other complaints of limitations upon cross-examination are less

substantial. It is true that the so-called 'federal' rule, if useful as a general guide,
should never be rigidly applied. A cross-examiner has a right to reasonable
leeway for inquiry into facts which modify or explain away other facts
developed on direct examination. But most of the disputed rulings were
justified apart from a mechanistic application of the 'rule'. Some questions were
of marginal relevancy or went into matters already explored. The court had
discretion to exclude them, at least without an offer of proof or other indication
where they would lead. In several instances the excluded questions were asked
on recross, not cross. More strictly than with cross-examination, a court may
limit recross to the subject matter of redirect and may exercise extensive
discretion over its scope.

18

Honneus further attacks the exclusion of questions put to Richard Thurlow, a

former confederate truned government witness. Counsel was allowed to bring
out that Thurlow had been a user of many types of drugs, but was stopped when
he inquired, 'And you told me that you had a nervous breakdown, didn't you?'
Also excluded was the question, 'Were you in the Jackson Memorial Hospital in
Miami, Florida?' The court indicated that it would not permit such
impeachment without a 'hospital record'.

19

The court acted within its discretion. By revealing the dates and condition for
which treatment was provided, a hospital record would at least have provided a
basis for gauging the materiality of the inquiry. While insanity or abnormality
at the time of observing the facts testified to or at the time of testimony are
provable, a 'nervous breakdown' at some unspecified time is too remote. Cf.
Sinclair v. Turner, 447 F.2d 1158, 1162-1163 (10th Cir. 1971); 3A J. Wigmore,
Evidence 935 (3d ed. 1970). No offer of proof was made that Thurlow's
condition could be shown to relate to his competency or qualifications as a
witness. The court was entitled to weigh the potential unfairness of a free
wheeling inquiry intended to stigmatize the witness against whatever
materiality the evidence might have. While of course a hospital record is not
the only proper way to establish mental impairment, see 3A Wigmore, supra,
878, 879, the court could impose the requirement in this instance since it could

exclude the inquiry, as made, altogether.

20

Appellant complains that the court's impatience created a hostile atmosphere

for the cultivation of a successful cross-examination. We are not persuaded that
this was so. The Government presented a strong case, and a factual defense was
virtually nonexistent. In such circumstances it may be especially hard to detect
the threshold beyond which legitimate cross-examination becomes an idle
fishing expedition. A court must allow inquiry that is germane and probative,
but it need not bend over backwards to encourage the structuring of fanciful
defenses. While the court's rulings here were on the side of strictness, we
cannot say (except in the one respect already mentioned) that they improperly
cut off any material avenues of inquiry, nor does it appear that the court's
deportment was lacking in essential fairness. We therefore find no abuse of
discretion.
IV

21

Honneus has persistently insisted that the Government never proved him guilty
of dealing in 'Cannabis sativa L.'. The offenses in Counts 1-4 all have to do with
dealings in 'marihuana', listed as a controlled substance in 182 schedule I(c)
(10). Marihuana is defined in 802(15) as certain parts of 'the plant Cannabis
sativa L.'.

22

Honneus sought to introduce testimony by Dr. Richard Schultes5 that the

Cannabis plant is a genus having three species, sativa, indica, and ruderalis, and
that both sativa and indica presently grow in Jamaica. As the Government
recovered no marihuana for analysis, there was no proof that the type or types
of Cannabis Honneus purchased in Jamaica and later shipped to the United
States were not indica rather than sativa.

23

Dr. Schultes testified during a voir dire that the disputed nomenclature could be
traced back to Linnaeus' famous eighteenth century botanical compendium
which listed under the genus Cannabis only a single species, sativa. A
generation later, Lamarck named a Cannabis specimen collected in India,
'indica', and in the 1920's Russian botanists published in their native country a
study naming a third variant 'ruderalis'. Nonethless, according to Dr. Schultes,
the 'usually accepted view' (which he himself 'echoed') until a few years ago
was that there was only one species of Cannabis. Now, after more study, Dr.
Schultes believes there are three. Compare Schultes, Random Thoughts and
Queries on the Botany of Cannabis, in C. Joyce & S. Curry, The Botany and
Chemistry of Cannabis 11-38 (1970), with Schultes, Klein, Plowman &

Lockwood, Cannabis: An Example of Taxonomic Neglect, 23 Harv. Botanical

Museum Leaflets 325 (1974). See also R. Schultes & A. Hoffman, The Botany
and Chemistry of Hallucinogens 58 (1973).
24

The district court, urling in a Memorandum and Order that Congress meant to
include any and all marihuana-producing Cannabis in specifying 'Cannabis
sativa L.', excluded Dr. Schultes' testimony and denied Honneus' motions for
acquittal and for jury instructions. Courts in three circuits have similarly held,
based upon the statutory history of the 1970 Act's predecessor, the marihuana
Tax Act of 1937, 26 U.S.C. 4761, from which the definition of marihuana was
taken. United States v. Rothberg, 351 F.Supp. 1115 (E.D.N.Y. 1972), aff'd, 480
F.2d 534 (2d Cir. 1973), cert. denied, 414 U.S. 856, 94 S.Ct. 159, 38 L.Ed.2d
106; United States v. Moore, 330 F.Supp. 684, 686 (E.D.Pa.1970), aff'd, 446
F.2d 448 (3d Cir. 1971), cert. denied, 406 U.S. 909, 92 S.Ct. 1617, 31 L.Ed.2d
820; United States v. Gaines, 489 F.2d 690 (5th Cir. 1974). In testimony on the
Marihuana Tax Bill before the House Committee on Ways and Means,
Commissioner of Narcotics Anslinger in 1937 stated that 'Cannabis indica, or
marihuana, has as its parent the plant known as Cannabis sativa'. The
Commissioner went on to say,

25

'It's popularly known in India as Cannabis indica; in America, as Cannabis

American; in Mexico as Cannabis Mexicana, or marihuana.

26

'It is all the same drug, and is known in different countries by different names.
It is scientifically known as Cannabis sativa . . ..' Hearings on H.R. 6385 before
the Comm. on Ways & Means, 75th Cong., 1st Sess. at 37-38 (1937).

27

Dr. Lyster Dewey, a botanist formerly in charge of the Agriculture

Department's fibre division, also testified that there was 'only one species
known as hemp.' Id. at 55.6 Honneus argues that this certainty as to only one
species is misleading, that others concerned with the 1937 Act were much less
clear that sativa included other types if there were any others. There is indeed
evidence of confusion over terminology,7 but none that Congress meant to
exclude from regulation any type of the plant producing the hallucinogenic
material popularly known in this country as 'marihuana'. See H.R.Rep.No.792,
75th Cong., 1st Sess. at 3-4 (1937); 81 Cong.Rec. 1440-41 (June 11, 1937)
(appendix); 81 Cong.Rec. 5689-90 (June 14, 1937). Appellant's suggestion that
sativa was selected because of an intention to deal only with the type most
commonly grown in America is not borne out by the legislative record. Such an
approach would have amounted to exemption of material from easily
procurable plants having the same properties as the ones regulated. See
generally 81 Cong.Rec. 5690 (June 14, 1937). We are persuaded that Congress

adopted 'Cannabis sativa L.' believing it to be the term that scientists used to
embrace all marihuana-producing Cannabis; the other named sorts were not
seen as separate Cannabis species. Linnaeus had listed but the one species, 8 and
appellant's own expert concedes that until recently the monotypic view has
been the 'usually accepted' one. This is not to try to refute Dr. Schultes' present
view. The issue is not whether marihuana is monotypic or polytypic but what
Congress meant when it used the term 'Cannabis sativa L.'. We hold that the
district court's urling and exclusion of Dr. Schultes' testimony were correct.
28

A remaining question is whether the definition was adequate to forewarn

Honneus of the crimes for which he was later charged. We think it was. Right
or wrong, the monotypic classification has had considerable currency until very
recently at least; use of 'Cannabis sativa L.' was, we think, sufficient to put a
procurer on notice that he acted at his peril, see Rothberg, supra, and of course
there is no evidence whatever that Honneus sought only 'indica' rather than
'sativa' or believed that he was acting legally. To the contrary, the venture was
clandestine, and its participants clearly recognized its illegality. Had the
question arose in connection with a drug less widely publicized than marihuana,
the definition might take on greater importance. Here we find it too obvious for
discussion that Honneus understood in advance that the importation and
distribution were crimes.
V

29

Honneus argues that his former associates, Robert Puffer and Helliesen, should
not have been permitted to give opinion testimony concerning a resemblance
between the material they handled in 1972 and marihuana. Puffer testified that a
sack brought from Jamaica contained darkish-green, leafy plant material that
appeared similar to marihuana (which he testified to having smoked and seen
growing before). Helliesen said the material was 'greenish material resembling
marihuana'. (Helliesen further testified to having smoked marihuana on
numerous occasions.) A third associate, Richard Thurlow, gave similar
testimony to which appellant does not, however, object, since it merely
described the material as 'a greenishbrown vegetable matter', similar to
'material' he had previously smoked. The witnesses, though without scientific
expertise, had personal experience with marihuana. Their comparisons with the
material at issue, based on personal observations, did not involve inferences
which the jury could have equally well made from the witnesses' descriptions
absent the comparison to marihuana. See generally 7 J. Wigmore, Evidence
1918 (3d ed. 1940). Nor, on the other hand, did the witnesses' testimony purport
to be definite representations that the material was marihuana; we thus need not
consider whether they would have been competent to express such a definite

opinion. Cf. People v. Kenney, 30 N.Y.2d 154, 331 N.Y.S.2d 392, 282 N.E.2d
295 (1972). We think it was within the discretion of the court to have allowed
the comparisons that were made.
30

The more basic question is whether, absent a report of laboratory analysis,

there was ample evidence to support findings that the material was marihuana.
We believe there was. The circumstantial and direct evidence when added
together was extremely strong. This is not a case where the nature of a drug is
sought to be established merely by a naive subject's reaction to a puff or two on
a cigarette. It was testified that the parties, including Honneus, constantly spoke
of the material as 'marihuana' or 'grass'. The sole object was to purchase and
distribute marihuana. There was extensive direct evidence of Honneus'
negotiations with sellers in Jamaica resulting in the purchase of what Honneus
plainly believed to be marihuana. The same substance was later resold in
Massachusetts at prices of $175-$250 a pound and Honneus admitted it was
'grass' in conversations. The material was smoked, produced a high, and had the
outward appearance of marihuana.

31

We need not consider whether in different cases the absence of a specific and
conclusive laboratory report would be fatal. Much depends on the totality of the
evidence. A user's report, standing alone, might in some cases be a shaky reed,
but that question is not before us. The evidence here was compelling that the
substance was marihuana; indeed, barring an unlikely hoax fooling Honneus
and his experienced associates, and those to whom they later sold, the
substance had to be marihuana.
VI

32

Honneus makes one final complaint, namely, the court's failure to give
promptly adequate limiting instructions with respect to hearsay conspiracy
testimony. Early in the trial (as a precedent for a number of occasions
thereafter) the Government asked a witness whether he had had a conversation
with one of the defendants (in this instance Honneus) relating to the others.
Counsel for another defendant objected. Before receiving the testimony the
court instructed the jury that declarations affecting other alleged members of
the conspiracy, not present at the time the statements were made, were not to be
considered against them unless the jury was satisfied that they were in fact
members of the conspiracy. The court failed, however, to instruct as to the
second aspect of this matter, that the existence of the conspiracy and
defendant's participation therein had to be established by independent nonhearsay evidence before the jury could consider against defendant a coconspirator's hearsay statement. No counsel pointed out this omission, although

later Honneus made a request-- of an incorrect nature-- as to the first aspect.

The court did not cover the second aspect until the charge, and Honneus says
that this was too late. To sustain this contention he must show plain error.
F.R.Crim.P. 52(b).
33

The limiting instruction that the court did give initially is perhaps the more
important of the two conditions. Cf. Lutwak v. United States, 344 U.S. 604,
618-619, 73 S.Ct. 481, 97 L.Ed. 593 (1953). The other, however, is of
importance as well. It is to be borne in mind that a jury has no experience in, or
presumably knowledge of, the hearsay rule. Unguided, it would be most natural
for the jury, in endeavoring to ascertain whether the defednants were in fact
members of the conspiracy, to consider all evidence that apparently bore
thereon. We must agree with United States v. Apollo, 476 F.2d 156, 163 (5th
Cir. 1973), where the court said that there is a 'minimum obligation on the trial
judge in a conspiracy case in which extrajudicial statements of alleged coconspirators are proffered to give a cautionary instruction on the limited uses of
hearsay testimony, explaining clearly to the jury the requirement that the
conspiracy itself and each defendant's participation in it must be established by
independent nonhearsay evidence which must be given either prior to the
introduction of any evidence or immediately upon the first instance of such
hearsay testimony.'

34

No previous case in this circuit has established that it may ever be plain error
not to charge, a priori, on this second aspect. Moreover, in the present case the
independent non-hearsay evidence tying Honneus to the conspiracy was
adequate by any standard. We thus do not find plain error. The Apollo rule
should, however, be observed in conspiracy cases hereafter tried in this circuit.
Failure to do so will result in reversal in any case where we believe the
omission to have affected substantial rights.

35

We affirm the judgment of the district court except for the separate concurrent
sentences under Counts 1, 3, and 5. We vacate those sentences and remand the
case for sentencing upon any one of the three conspiracy counts the United
States may select, and for dismissal of the other two conspiracy counts.

36

So ordered.

In future cases of this nature, a district court may after verdict enter concurrent
sentences on the multiple counts with the proviso that all except one of the
counts and sentences shall be dismissed upon appellate affirmance of the

specified count and sentence

We do not endorse charging the same conspiracy in several counts unless there
are different conspiracy statutes with different statutory sentences.
2

We by-pass as without merit the contention that Count 3, as worded, failed to

state an offense
2A Honneus' counsel on appeal did not represent him at trial.

See Kawakita v. United States, 343 U.S. 717, 72 S.Ct. 950, 96 L.Ed. 1249
(1952); United States v. Flores, 289 U.S. 137, 53 S.Ct. 580, 77 L.Ed. 1086
(1933); Ford v. United States, 273 U.S. 593, 47 S.Ct. 531, 71 L.Ed. 793 (1927);
cf. Travis v. United States, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340 (1960);
Hall, et al., Modern Criminal Procedure 867 n. 3; Rivard v. United States, 375
F.2d 882, 885-888 (1967); Empsom, The Application of Criminal Law to Acts
Committed Outside the Jurisdiction, 6 Am.Crim.L.W. 32 (1967); 18 U.S.C. 7

Honneus requested the following instruction:

'The court instructs the jury that, as to Count Four, the burden is on the
government to prove beyond a reasonable doubt that defendant, Geoffrey
Honneus, possessed Cannabis Sativa L., in the District of Massachusetts. If the
government fails to satisfy you beyond a reasonable doubt that the defendant,
Honneus, possessed that substance, then you shall find him not guility of Count
Four.'

Professor of Natural Sciences and Director, Botanical Museum, Harvard

University

See also Hearings on H.R. 6906 before the Senate Comm. on Finance, 75th
Cong., 1st Sess. at 23 ('botanists now recognize hemp as consisting of only one
specie')

Dr. s. Hilton of the American Pharmaceutical Association referred to Cannabis

indica throughout his testimony. Hearings on H.R. 6385 before the Comm. on
Ways & Means, 75th Cong., 1st Sess. at 121-22 (1937). See generally 81
Cong.Rec. 5575 (June 10, 1937) (remarks by Rep. Vinson)
Early drafts of the Uniform Narcotics Act of 1938 used multiple species
nomenclature, and one court has relied heavily on this fact in concluding that
the drafters of the 1938 Act made a conscious choice with complete awareness
that 'botanical literature reflect the possible existence of more than one species.'
United States v. Collier, 14 Crim.L.Rept. 2501 (D.C.Sup.Ct. 1974). We do not

follow the Superior Court in Collier because we believe the use of various
names is consistent with the explanation given to Congress in 1937 that there
was only one species, though many local names.
8

C. Linnaeus, Special Plantarum, A Facsimile of the First Edition 1753, at 1027

(1959 ed.). Although Linnaeus gave India as the country of origin of Cannabis
sativa, he apparently based his original description on hemp grown in northern
Europe in 1737, which he knew in a living state. See Stern, Typification of
Cannabis Sativa L., 23 Harv. Botanical Museum Leaflets 325, 330 (1974).
Linnaeus' use of diagnostic phrase names under Cannabis sativa may indicate
that he believed other species of the genus might possibly exist and would need
to be contrasted with this species, id., but his use of only one species could
nevertheless have persuaded botanists and lawmakers that varieties were
derivative from the sole species, Cannabis sativa