U.S. v. Thompson, s. 75-1933

Citation533 F.2d 1006
Decision Date22 April 1976
Docket NumberNos. 75-1933,75-1934,s. 75-1933
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Millard Philmore THOMPSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. George Wilbur HAMMOND, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Norman L. Zemke, Zemke & Lustig, Southfield, Mich., for defendant-appellant Millard Philmore Thompson.

S. Allen Early, Jr., Detroit, Mich., for defendant-appellant George Wilbur Hammond.

Ralph B. Guy, Jr., U. S. Atty., Robert D. Sharp, J. Brian McCormick, Detroit, Mich., for plaintiff-appellee.

Before WEICK and McCREE, Circuit Judges, and CECIL, Senior Circuit Judge.

CECIL, Senior Circuit Judge.

Millard Philmore Thompson and George Wilbur Hammond, Defendants-Appellants, herein, appeal from their convictions in the United States District Court for the Eastern District of Michigan, Southern Division, on a charge of conspiracy to violate Section 841(a)(1) of Title 21 U.S.C.

The appellants were named in a one count indictment with five other defendants, alleged to be co-conspirators. One Franklin D. Westbrook was named as a co-conspirator but not indicted. It is alleged that the appellants and their co-defendants agreed to knowingly and unlawfully possess with the intention to distribute and to sell and distribute various quantities of heroin and cocaine, controlled Narcotic Drug Substances, Schedules I and II, respectively. The conspiracy is alleged to have extended from February 8, 1974 to February 21, 1974. Overt acts charged against these appellants are:

"1. On or about February 8, 1974, Millard Thompson placed a telephone call to Franklin D. Westbrook at Los Angeles, California."

"11. On or about February 21, 1974, Millard Thompson, George W. Hammond and Sonja Brown arrived at Room 615 located at the Howard Johnson Motor Inn, Detroit, Michigan;"

The appellants were tried jointly with Frederick J. Hammond and Sonja Brown. Defendant Marian Joan Lewis one of the indicted co-conspirators was dismissed before trial. A mistrial was declared for Frederick J. Hammond in the midst of the trial because of illness. Sonja Brown was convicted but is not included in these appeals.

The issues presented on these appeals are:

(1) whether there was evidence of a conspiracy to possess with the intention of distributing drugs or merely some attempted sales of narcotics and (2) whether certain monitored telephone calls were admissible in evidence.

Franklin D. Westbrook, the unindicted co-conspirator, lived in Los Angeles and on several occasions had brought narcotics to Detroit for illegal distribution and sale. His source of supply was Clarence Allen, also a resident of Los Angeles and one of the indicted co-conspirators. On February 21, 1974, as Westbrook deplaned in Detroit on one of his trips from Los Angeles to distribute narcotics he was arrested by David Cigich, Special Agent of the Drug Enforcement Administration. His luggage was searched and it was found to contain twenty-two pieces (ounces) of heroin and five pieces (ounces) of cocaine. Westbrook agreed to cooperate with the Drug Administration Agents and plans were set up to involve his prospective customers in criminal narcotics violations of the law.

Westbrook was a long time friend of appellant Thompson and had at one time lived in the home with Thompson and his mother. On February 8, 1974, Thompson called Westbrook in Los Angeles and discussed with him the subject of bringing some narcotics to Detroit for distribution. Westbrook went the same day to see Allen and arranged to get a supply of heroin and cocaine to be distributed in Detroit. Following this a "runner" for Allen brought to Westbrook's apartment twenty-two pieces of heroin and five pieces of cocaine.

Then on or about February 12th, Westbrook flew to Detroit with a quantity of narcotics for distribution. It is not quite clear from the evidence whether he had ten pieces of heroin or the twenty-two pieces of heroin and five pieces of cocaine he had received from Allen's runner. Upon his arrival in Detroit he checked into the Caribe Motel on Woodward Avenue. He contacted George Lowry, one of the indicted co-conspirators who came over and got one ounce of heroin.

On Saturday morning of the week of this trip Westbrook called Thompson and told him he was in town. He then took a cab and met Thompson at his residence. Thompson telephoned appellant George Hammond who came to the Thompson residence and purchased some heroin. Hammond on this occasion purchased two or three pieces of heroin from Westbrook for which he paid $1000 each and then left.

After George Hammond left, Thompson and Westbrook left in a car in search of Frederick Hammond another prospective customer and an indicted co-conspirator. They found him in his automobile along with George Lowry, on Maplewood near Grand River Ave. All four men proceeded to Fred Hammond's apartment where Westbrook sold him five or six pieces of heroin for approximately six thousand dollars. Westbrook went back to Los Angeles on Sunday evening.

On his return to Los Angeles he had approximately $11,000 which he took to co-conspirator Clarence Allen and received his "payoff" of one thousand dollars. On Monday or Tuesday evening following this return Westbrook had a telephone call from Fred Hammond. The substance of this conversation was that he wanted to deal directly with Westbrook and did not want to be involved with George Lowry as a third party. He also wanted to know when he would return to Detroit and urged him to bring as much (drugs) as he could. It is noted that the trial judge sustained an objection to this conversation as to George Hammond.

Westbrook also had a telephone call from Thompson at about the same time in which Thompson indicated that he was interested in some drugs. The trial judge overruled objections to this conversation on behalf of the Hammonds but maintained his ruling as to Sonja Brown. After these phone calls, Westbrook went to Clarence Allen's house and discussed with him the amount of drugs he had available for another trip to Detroit. He had twenty-two pieces of heroin and five pieces of cocaine. The trial judge admitted this conversation without limitation.

Westbrook flew to Detroit with this quantity of drugs and arrived there on the morning of February 20 or 21st. On his arrival in Detroit he was arrested as has been previously stated. Upon his arrest he made telephone calls to Thompson and Fred Hammond to tell them that he was in town and had some drugs for distribution. These calls were monitored by Special Agents of the Drug Administration. Westbrook checked into the Howard Johnson Motel and made further monitored calls to Thompson and Fred Hammond. In these calls he told them where he was and told them to come on down.

Objections were made on behalf of the Hammonds and Thompson to the admission of the conversations on these telephone calls. The trial judge overruled these objections and held that at this point there was evidence of a conspiracy between the Hammonds, Thompson and Westbrook. He held that the transactions Westbrook had with the Hammonds on his visit of February 13th, with the aid of Thompson, was evidence from which an agreement to violate the narcotic laws could be inferred.

As a result of these telephone conversations two groups of persons came to the Motel to meet Westbrook. Joe Gordon, a Special Agent of the Drug Enforcement Administration was in the room with Westbrook as he interviewed these groups of people. He was introduced as one traveling with Westbrook because he was carrying large amounts of drugs and he needed someone to back him up. There were also Special Agents of the Drug Administration in a room adjoining the room in which Westbrook was located.

The first prospective customers to visit Westbrook in the Motel were Fred Hammond and his friend Marian Lewis, an indicted co-conspirator. A discussion, in which Joe Gordon participated was had concerning the purchase of drugs, the price and the quality, etc. Westbrook's supply had been confiscated and there were no drugs for actual sale. When Hammond was committed to make a purchase, Joe Gordon left the room and the agents from the adjoining room came in and arrested Hammond, his friend Lewis and also Westbrook. Following the visit of this first group Thompson, George Hammond and Sonja Brown came to the motel. The conversation proceeded with each one participating concerning the purchase of narcotics, the price, the quality, etc. Joe Gordon also entered into the discussion. When these prospective customers were committed to sales Joe Gordon left the room on the pretence of getting the drugs. The Agents in the adjoining room moved in, arrested the three...

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