United States v. Johnson

United States Court of Appeals for the Fifth Circuit · 1978 · Evidence

575 F.2d 1347 (5th Cir. 1978)

Updated August 22, 2026

Evidencecontinuing criminal enterprise21 U.S.C. § 848variancebill of particularsexpert testimonyRule 702Rule 403

Facts

The government presented evidence, chiefly through John de Pianelli and corroborating witnesses, that Charles Johnson financed and coordinated multiple marijuana importations from Colombia into Florida and Alabama between 1971 and 1974. The evidence showed Johnson arranged front money, secured houses and boats, coordinated deliveries and distribution, and acted with at least five other participants, including de Pianelli, Captain Storey, J. Moen, David Barca, George Driver, and Bill Lawrence. Other defendants were linked to particular transactions through testimony about their presence and participation at importation sites and through surveillance and marina evidence. No marijuana was seized, so the government relied in part on de Pianelli's experience-based opinion that the marijuana came from Colombia.

Issue

Whether the convictions should be reversed because of variances between the indictment or bill of particulars and the proof at trial, erroneous admission of expert and surveillance testimony, inadequate jury instructions, ineffective assistance of counsel, or insufficient evidence. As to Johnson specifically, the case also asked whether the evidence supported his continuing criminal enterprise conviction and whether his conspiracy conviction could stand alongside it.

Rule

An indictment that charges an offense in the words of the statute is sufficient if the trial proof establishes the statutory elements; a fatal variance requires surprise and prejudice in preparation of the defense. A bill of particulars serves to inform the defendant of the nature of the charge, not to disclose the government's evidence in detail, and may be amended in the trial court's discretion absent actual prejudice or clear abuse. Under Rule 702, expert qualification may rest on experience as well as formal training, and admission of such testimony is reviewed for manifest error. Under 21 U.S.C. § 848, a continuing criminal enterprise requires a continuing series of felony drug violations undertaken in concert with five or more persons with respect to whom the defendant occupies an organizer, supervisory, or managerial role, and from which he obtains substantial income or resources.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

A federal indictment in Houston charges Nolan Reyes with engaging in a continuing criminal enterprise by tracking the statutory language of 21 U.S.C. § 848 and alleging no names of the five or more persons involved. At trial, the government proves that Reyes coordinated financing, storage, and delivery with six identified participants, but the identities of those six were not listed in the indictment.

Reyes argues that the proof at trial fatally varied from the indictment because the indictment did not specify the individuals he allegedly organized or supervised. How should the court rule?

Explanation. The majority held that a § 848 indictment stated in the words of the statute is sufficient. There is no fatal variance where the proof at trial establishes the same statutory elements charged. A defendant must show surprise and prejudice, not merely that the indictment lacked greater factual detail.