United States v. Duff, 15346-15348.

• Decision Date: 03 June 1964
• Docket Number: No. 15346-15348.,15346-15348.
• Citation: 332 F.2d 702
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ollie DUFF, Edith Williams and William Johnson, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Richard BOYD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. John R. AUSTIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

332 F.2d 702 (1964)

UNITED STATES of America, Plaintiff-Appellee, v. Ollie DUFF, Edith Williams and William Johnson, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Richard BOYD, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. John R. AUSTIN, Defendant-Appellant.

Nos. 15346-15348.

United States Court of Appeals Sixth Circuit.

June 3, 1964.

Milton R. Henry, Pontiac, Mich., on the brief; Lawrence W. Massey, Detroit, Mich., of counsel, for appellants Ollie Duff, Edith Williams and William Johnson.

Argued by Jack F. Gardner, Detroit, Mich., on the brief for appellant Richard Boyd.

Vivien E. Lynch, Detroit, Mich.; Goldfarb & Hudnut, Albert A. Goldfarb, Detroit, Mich., on the brief, for appellant John R. Austin.

Geraldine B. Ford, Asst. U. S. Atty., Detroit, Mich., Lawrence Gubow, U. S. Atty., James Francis Finn, Asst. U. S. Atty., Detroit, Mich., on the brief, for appellee.

Before MILLER, CECIL and PHILLIPS, Circuit Judges.

CECIL, Circuit Judge.

These appeals are from judgments of conviction of the defendants-appellants in the United States District Court for the Eastern District of Michigan, Southern Division. The defendants were all jointly indicted in count one of an indictment charging them with entering into a conspiracy (Section 371, Title 18, U. S.C.) to violate the narcotics laws.¹ The defendant Ollie Duff was charged in count two of the indictment for selling narcotics in violation of Section 4705(a), Title 26, U.S.C. The defendants Ollie Duff and Edith Williams were jointly indicted in count three for selling narcotics in violation of Section 4705(a), Title 26, U.S.C. The defendant Williams was charged as an aider and abettor in accordance with Section 2(a), Title 18, U.S.C. All of the defendants were convicted on the respective charges against them.

The substance of count one of the indictment is that all of the defendants entered into an agreement whereby they would engage in the illicit and unlawful traffic in cocaine, heroin and marihuana. It is alleged that this illegal business was to embrace all phases of the narcotics traffic, such as receiving, concealing, buying, selling, distributing and possessing of the contraband articles.

It is alleged in the indictment that the conspiracy began on or about August 31, 1961, and extended to on or about February 9, 1962. Overt act No. 1 charges that Ollie Duff made a sale of 11.43 grams of heroin to a special employee of the bureau of narcotics on August 31, 1961. This is the sale which is the subject of count two of the indictment. During the progress of the trial counsel for the government conceded that the conspiracy did not start until September 1, 1961. The trial judge so instructed the jury. This then leaves the sale of August 31, 1961 as an isolated offense by the defendant Ollie Duff alone. No question is raised on the appeal of Ollie Duff concerning the conviction on this count of the indictment.

The second overt act charges that the defendant Ollie Duff aided and abetted by Edith Williams sold 2.50 grains of heroin to a special employee of the bureau of narcotics on September 1, 1961. This is the sale which is the subject of count three of the indictment. The defendant Ollie Duff does not contest this conviction by his appeal to this Court. He was given sentences of six years on each of these convictions, the sentences to run concurrently. The defendant Edith Williams claims that there is not sufficient evidence of her participation in this sale to have warranted the submission of the case to the jury charging her as an aider and abettor. This question will be considered later in this opinion.

It is alleged in the third overt act that Edith Williams held a conversation with a special employee of the bureau of narcotics relative to the purchase of heroin on September 28, 1961. According to the testimony, Cecil Cautious Oliver was the special employee referred to in these three overt acts. The first time that the defendants John R. Austin and Richard Boyd were in any way connected with the alleged conspiracy was on December 7, 1961. At this time they had a meeting with Ollie Duff and Edward Bradford. (Overt Act No. 4) Special employee Oliver did not know the defendants Austin and Boyd. The testimony does not disclose that the defendants Duff and Williams had any connection or relations with the defendants Austin and Boyd between September 28th and December 7th, a period of almost three months. Duff was living in Williams' apartment and they were associated together. Their relationship would hardly give rise to a conspiracy. Therefore, the evidence does not support the theory of the formation of a conspiracy between Duff and Williams any time between September 1st and December 7, 1961. If there was a conspiracy as alleged it had to have its inception in the meeting of December 7, 1961.

The one assignment of error common to all of the defendants involves the sufficiency of the evidence to take the case to the jury on the charge of conspiracy. In considering count one of the indictment, we will examine first the nature and circumstances of the meeting of December 7, 1961.

We approach the consideration of this meeting with the knowledge that two of the principal characters of the alleged conspiracy have a background of trafficking in narcotics. Ollie Duff made illegal sales on August 31st and September 1st, for which he was subsequently convicted in counts two and three of the indictment now before us and from which no appeals were taken. Edith Williams, in whose apartment Duff lives, was present and witnessed the sale of September 1st. Her knowledge of this sale was such as to raise a question of her participation in it for which she was indicted as an aider and abettor in count three of the indictment. On September 28th she held a conversation with a special employee of the United States narcotic bureau relative to a sale of heroin.

The December 7th meeting of the alleged conspirators was in the evening at the home of a friend of Austin on Kendall avenue. Among those present at the meeting were Edward Bradford, Ollie Duff, John Austin and Richard Boyd. Bradford, Duff and Boyd rode to the meeting in the car of Edith Williams. Austin was already there when the rest arrived. The alleged purpose of the meeting was to play chess. Edward Bradford, on behalf of the government, testified to the circumstances of this meeting. During the course of the evening the subject of narcotics was discussed. The subject arose in connection with the arrest of one Lester Ramsey for violation of the narcotics laws. The subject was discussed among Bradford, Duff, Boyd and Austin who were the only ones present at the time. The subject of money was discussed and some one, probably Duff, suggested that they could buy narcotics for $3800. Bradford testified that the substance of the discussion was that the narcotics were to cost $3800 and that all were to come back between December 18th and 21st with $4000. No one was to raise more than $1000. Bradford did not identify anyone with any particular part of the conversations. There is no evidence that this part of the alleged conspiracy was ever carried out.

We are of the opinion that there is sufficient evidence here to have warranted submitting the question of the formation of a conspiracy to the jury. The defendant Austin objects to the testimony of Bradford concerning the December 7th meeting on the ground that the witness' statements were general and did not identify the speakers in the conversations. The witness placed all four alleged conspirators together, with no one else present, and testified that all were to bring in four thousand dollars ($1000 each) for the purchase of narcotics. Conspirators do not usually make oral or written agreements of their illegal plans with exactitude. We are of the opinion that this evidence was competent and that the jury might find from it that each one participated in the plan.

We look to the further actions and conduct of the parties for executing the conspiracy thus formed. On December 13, 1961, Bradford went to Chicago with Ollie Duff in the Williams car. Bradford returned on a plane with a package which Duff had given him in Chicago. Bradford testified that he did not know what was in the package.

On January 14, 1962, Bradford accompanied by Edith Williams, in her car, drove Duff and Boyd to the Metropolitan Airport. Edith Williams had made reservations for Duff and Boyd, under the assumed names of A. Jones and R. Jones, for a flight from Detroit to New York. On January 16th, Bradford, again accompanied by Edith Williams, picked up Boyd and Duff at the airport and drove them to Edith Williams' apartment. At the apartment, in the presence of Boyd and Williams, Duff gave Bradford something called "cocaine" which he (Bradford) "sniffed" up his nose. Bradford testified that on January 16th he received a telephone call at the apartment of Duff and Williams from Austin saying that the house was being watched.

Duff was arrested on January 16th and on the 17th Bradford, Edith Williams, Duff, John Austin and a girl named Sidney met in Edith Williams' apartment. There was a discussion about narcotics, particularly concerning Duff's arrest and who made a sale against him.

The trial judge instructed the jury with reference to conspiracy, as follows: "A conspiracy is a combination of two or more persons by concerted action to accomplish some unlawful purpose or to accomplish a lawful purpose by unlawful means. * * *

"However, the evidence need not show that the members entered into any express or formal agreement, or that they directly, by words spoken, or in writing, stated between themselves what their object or purpose was to be, or the details thereof, or the means by which the object or purpose was to be achieved. What the evidence must show, in order to establish proof that a conspiracy existed, is that members in some...