United States v. Jones

Decision Date24 November 1975
Docket NumberCrim. No. 72-265.
Citation404 F. Supp. 529
PartiesUNITED STATES of America v. Robert Otha JONES.
CourtU.S. District Court — Eastern District of Pennsylvania

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Kenneth Dixon, Asst. U. S. Atty., Philadelphia, Pa., for plaintiff.

Robert A. Stein, Stephen A. Madva, Defender Ass'n of Philadelphia, Philadelphia, Pa., for defendant.

MEMORANDUM AND ORDER

BRODERICK, District Judge.

This matter comes before the Court on the defendant's Motion for an Arrest of Judgment, or Judgment of Acquittal, after a jury verdict of guilty on Count II of a three count indictment charging the defendant with possession with intent to distribute a Schedule I narcotic drug controlled substance, in violation of 21 U.S.C. § 841(a)(1). The defendant was originally found guilty by a jury on Count II of the indictment on August 2, 1972. That same jury found the defendant not guilty of the offense charged in Count I, distribution of heroin, and the Court granted the government's motion to dismiss Count III which charged the defendant with possession of heroin in violation of 21 U.S.C. § 844(a). The Court of Appeals reversed the defendant's original 1972 conviction and ordered a new trial in an opinion dated February 20, 1974. United States v. Jones, 3 Cir., 492 F.2d 239. The defendant was subsequently retried on Count II of the indictment and after a five day jury trial ending on July 16, 1974, was again found guilty of possession with intent to distribute heroin. The defendant's post-trial motion which attacks his 1974 conviction on a variety of grounds was timely filed on July 22, 1974. The Court has determined that the defendant's motion in connection with the finding of guilty at the second trial is without merit and must be denied.

Sufficiency of the Evidence.

At trial, the Court denied the defendant's oral motion for a judgment of acquittal based on the sufficiency of the evidence which was made after the government closed its case and was renewed at the conclusion of the trial. The defendant contends that these rulings were in error and that the government's evidence was insufficient as a matter of law to sustain his conviction. In reviewing the denial of a motion for judgment of acquittal, the pertinent question is whether the trial court had reason to believe that there was sufficient evidence on which the jury could find guilt beyond a reasonable doubt. United States v. Leach, 427 F.2d 1107 (1st Cir. 1970). It is not for the Court, ruling on a motion for a judgment of acquittal, to assess the credibility of witnesses or to weigh the evidence. 2 Wright, Federal Practice and Procedure: Criminal § 467, at 259. Rather, the Court must view the evidence in a light most favorable to the government. United States v. Armocida, 515 F.2d 29 (3d Cir. 1975); United States v. Pratt, 429 F.2d 690 (3d Cir. 1970). If a conviction is based on circumstantial evidence, the evidence need not be inconsistent with every conclusion save that of guilt, provided it does establish a case from which the jury can find the defendant guilty beyond a reasonable doubt. United States v. Giuliano, 263 F.2d 582 (3d Cir. 1959). Applying this test, and viewing the evidence most favorable to the government, we conclude that there was more than sufficient evidence for the jury reasonably to find the defendant guilty beyond a reasonable doubt.

On August 26, 1971 Special Agent Glenn C. Brown of the Drug Enforcement Agency (DEA) was working on special assignment in an undercover capacity in Philadelphia. After receiving a telephone call at approximately 10:00 p. m., Agent Brown, accompanied by another Special Agent, Joseph McMillan, proceeded to the Wanda Inn, located at 12th and Mount Vernon Streets in Philadelphia. Shortly after entering the Wanda Inn, the agents were joined by a government informant, Aubrey Lewis. Soon thereafter, the agents and informant Lewis were joined by the defendant. The defendant and Agent Brown then entered into a conversation during which the defendant offered to sell Agent Brown one and one half ounces of heroin for $1,800.00. The defendant told Agent Brown that the heroin was of such quality that it could take a "five cut". Agent Brown testified that he then told the defendant that he would have to have a sample of the heroin before he would pay him any money. The defendant left the bar and returned in five or ten minutes and told Agent Brown that the requested sample would arrive shortly. Thereafter, the defendant left the bar again and re-entered at approximately 11:30 that night.

Upon returning, the defendant took a seat at the bar apart from the agents and the informant. He motioned to informant Lewis who got up from his stool, walked over to the defendant and engaged in a conversation with him of less than two minutes. Agent Brown testified that he saw the movement of hands between the defendant and informant Lewis while the two were having their discussion. Upon the conclusion of their discussion, informant Lewis left the defendant and returned directly to Agent Brown and handed him two glassine bags which contained a white powder. Agent Brown immediately called the defendant over to where he was sitting and showed the two glassine bags to the defendant and acted as though he was requesting an explanation of their contents. The defendant then pointed to the two bags and told Agent Brown that the larger bag was ready to be cut and the smaller bag was ready for the street. Agent Brown then told the defendant that he and McMillan were leaving the bar for the purpose of making a test on the contents of the two bags. The defendant replied that he would wait until they returned.

Agents Brown and McMillan then left the Wanda Inn. They met two other DEA Special Agents, John McCready and Donald Abrams, who conducted a field test to determine the presence of an opium derivative. After receiving a positive result from the field test at about midnight, Agents Brown and McMillan returned to the Wanda Inn where they again talked to the defendant who told them that he had left the bar for a short time and discovered that he was being followed and that he recognized an undercover officer outside the bar. The defendant then said that under the circumstances he was calling the deal off.

The defendant contends that the evidence presented by the government in this case was insufficient to convict the defendant of possession with intent to distribute heroin. This contention is no doubt precipitated by the following passage from the Court of Appeals' opinion following the 1971 conviction.

It is necessary also that the government surmount the hurdle posed by United States v. Pratt, 429 F.2d 690 (3d Cir. 1970). Since a new trial must be had, however, we do not pass upon those issues here. 492 F.2d at 241.

In Pratt, the defendant and a codefendant, Wilson, were charged with the illegal sale of heroin. Wilson pleaded guilty and did not testify at Pratt's trial. The evidence upon which Pratt was convicted showed that an undercover agent negotiated with Pratt's codefendant Wilson for the purchase of heroin. After a trip in a car with the undercover agent, Wilson left the car and walked some distance and met Pratt. Pratt then left Wilson, walked past the agent's car and looked in the windshield. Pratt then returned to Wilson. Both Pratt and Wilson got into the agent's car and the three drove away. Wilson then gave the agent two glassine bags of heroin. Both the undercover agent and a policeman who observed the conversations between Pratt and Wilson testified that they did not see any package or object pass from Pratt to Wilson. The Third Circuit Court of Appeals reversed Pratt's conviction for the illegal sale of heroin holding that the evidence was insufficient to establish that Pratt ever had the two bags of heroin in his possession or that he sold them to the undercover agent.

The evidence presented in the instant case differs substantially from that produced by the government in Pratt. Here, Agent Brown testified that he conducted negotiations for the sale of the heroin directly with the defendant and the defendant stated to Brown that he would sell to him one and one half ounces of heroin for $1,800.00. In Pratt, the negotiations for the sale of heroin were conducted only with the codefendant, and not, as here, with the defendant himself. Furthermore, the testimony in this case showed that after the negotiations as to the price of the heroin, the defendant told the undercover agent that he would leave the bar and return with samples of the heroin; that the defendant left the bar and upon his return a short time later he took a seat at the bar across from the undercover agent; that he immediately called the informant to come join him; that the undercover agent witnessed the movement of the defendant's hands and the informant's hands; that the informant remained within the view of the undercover agent and returned directly to him at which time the informant handed the undercover agent two glassine bags; that the undercover agent immediately called the defendant over to where he was sitting and showed the two glassine bags to the defendant and acted as though he was requesting an explanation of their content; and that the defendant pointed to the two bags and told Agent Brown that the larger bag was ready to be cut and that the smaller bag was ready for the street.

We are satisfied that the evidence outlined above, viewed in a light most favorable to the government, is sufficient to support a jury verdict of guilty on the Court charging possession with intent to distribute heroin. The jury could have reasonably concluded beyond a reasonable doubt from the evidence presented that the defendant had either actual or constructive possession of the heroin involved herein, United States v. Crippen, 459 F.2d 1387 (3d Cir. 1972), with the requisite intent to distribute.

Absence of Informant at Trial.

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