U.S. v. Collins, s. 76-1741 and 76-1766

• Decision Date: 28 March 1977
• Docket Number: Nos. 76-1741 and 76-1766,s. 76-1741 and 76-1766
• Citation: 552 F.2d 243
• Parties: 1 Fed. R. Evid. Serv. 1337 UNITED STATES of America, Appellee, v. Jesse COLLINS, Appellant. UNITED STATES of America, Appellee, v. Leon HAMMONDS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 243

552 F.2d 243

1 Fed. R. Evid. Serv. 1337

UNITED STATES of America, Appellee, v. Jesse COLLINS, Appellant.

UNITED STATES of America, Appellee, v. Leon HAMMONDS, Appellant.

Nos. 76-1741 and 76-1766.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 14, 1977.

Decided March 28, 1977.

Rehearing Denied in No. 76-1741 May 5, 1977.

Stephen J. Murphy, Affton, Mo., for Collins.

Clifford Schwartz, Clayton, Mo., for Hammonds. Charles M. Shaw, Clayton, Mo., on brief.

Richard A. Heidenry, Asst. U. S. Atty., St. Louis, Mo., for appellee. Barry A. Short, U. S. Atty., and Richard E. Coughlin, Asst. U. S. Atty., St. Louis, Mo., on briefs.

Before HEANEY and STEPEHENSON, Circuit Judges, and STUART, ^* District Judge.

STUART, District Judge.

Jesse Collins and Leon Hammonds appeal from judgments of conviction, entered following a jury trial, of conspiracy to distribute and distribution of heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846. Collins and Hammonds were charged in a four-count indictment. Count I charged both with conspiracy to distribute heroin from prior to October 15, 1975, until March 18, 1976, and Count II charged both with distribution of approximately 14.937 grams of heroin on October 15, 1975. Counts III and IV charged Hammonds with distribution of heroin on March 2 and 18, 1976, respectively.

Collins contends on appeal that there was insufficient evidence to sustain his conviction on Counts I and II. Both Collins and Hammond contend that the trial court's ¹ instruction characterizing extrajudicial statements of appellants, which were introduced at trial, as confessions constituted prejudicial error. Appellant Hammonds asserts that there was insufficient evidence of his involvement in a conspiracy to warrant introduction into evidence of tape-recorded conversations between other alleged conspirators; that the trial court erred in permitting impeachment by a prior felony conviction when imposition of sentence had been suspended under Missouri law; and that the trial court erroneously instructed the jury on impeachment and reasonable doubt. We affirm the convictions on all issues raised on appeal.

The relevant evidence viewed in the light most favorable to the Government as the prevailing party, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942) follows. On several occasions, prior to October 15, 1975, James C. Lewis, an informant for the United States Drug Enforcement Agency, telephoned Collins attempting to establish contact with one Donnell Pickens. Subsequently, Lewis, Special Agent Ankton and Collins drove to a house located at 7326 Midland View, St. Louis, Missouri. Eventually Pickens arrived and money and heroin were exchanged. Collins tested the heroin, received the money from Lewis and transferred it to Pickens. Collins was not, however, the one who purchased or sold heroin. On March 2, 1976, the federal agents bypassed Collins and dealt directly with Donnell Pickens. Upon receiving a quantity of money, Pickens obtained heroin from Hammonds and transferred it to the agents. A similar transaction took place between the agents, Pickens and Hammonds on March 18, 1976.

Sufficiency of the Evidence Collins Count I

Collins presents no serious challenge to the actual existence of a conspiracy; rather he asserts that although a conspiracy may have existed, the evidence is insufficient to establish that he was a part of it. In considering a challenge to the sufficiency of the evidence, this court must accept as established all reasonable inferences from the evidence that tend to support the jury's verdict. United States v. Overshon, 494 F.2d 894, 896 (8th Cir.), cert. denied, 419 U.S. 853, 95 S.Ct. 96, 42 L.Ed.2d 85 (1974). It is the general rule that the evidence need not "exclude every reasonable hypothesis except that of guilt but simply that it be sufficient to convince the jury beyond a reasonable doubt that the defendant is guilty." United States v. Shahane, 517 F.2d 1173, 1177 (8th Cir.), cert. denied, 423 U.S. 893, 96 S.Ct. 191, 46 L.Ed.2d 124 (1975). See also United States v. Jackson, 549 F.2d 517 (8th Cir., 1977). Mere association with those individuals engaged in the actual sale of heroin does not create an inference of guilt. United States v. Hassell, 547 F.2d 1048 (8th Cir., 1977); United States v. Frol, 518 F.2d 1134, 1137 (8th Cir. 1975); United States v. Quintana, 508 F.2d 867, 880 (7th Cir. 1975). Knowledge of the existence or acquiescence in a conspiracy does not serve to render one a part of the conspiracy. There must exist some element of affirmative cooperation or at least an agreement to cooperate. United States v. Hassell, supra; United States v. Amato, 495 F.2d 545, 550 (5th Cir.), cert. denied, 419 U.S. 1013, 95 S.Ct. 333, 42 L.Ed.2d 286 (1974); Miller v. United States, 382 F.2d 583, 587 (9th Cir. 1967), cert. denied, 390 U.S. 984, 88 S.Ct. 1108, 19 L.Ed.2d 1285, rehearing denied, 391 U.S. 971, 88 S.Ct. 2037, 20 L.Ed.2d 888 (1968). A particular individual's participation in a conspiracy may be established by evidence that otherwise seems slight. United States v. Hassell, supra; United States v. Verdoorn, 528 F.2d 103, 105 (8th Cir. 1976); United States v. Baumgarten, 517 F.2d 1020, 1026 (8th Cir.), cert. denied, 423 U.S. 878, 96 S.Ct. 152, 46 L.Ed.2d 111 (1975); United States v. Overshon, supra.

We conclude that there was sufficient evidence to connect appellant Collins with the conspiracy. Collins secured the introduction of federal agents to Pickens, arranged and attended the meeting at which the sale took place, and was affirmatively involved in the transaction itself. There was clearly sufficient evidence for the jury to find Collins guilty of being involved in the conspiracy to distribute heroin. See United States v. Kirk,534 F.2d 1262 (8th Cir. 1976).

Sufficiency of the Evidence Collins Count II

Collins next contends that because his only involvement with the actual transaction was as a conduit in the exchange of money and heroin, the evidence is insufficient to sustain his conviction of actual distribution under 21 U.S.C. § 841(a)(1). This argument is clearly without merit. Collins was not charged with the sale of a controlled substance. Rather, he was charged under the provisions of the Comprehensive Drug Abuse Prevention and Control Act of 1970 which makes it unlawful to knowingly and intentionally distribute heroin. According to the statutory definition "distribute" means "to deliver * * * a controlled substance." 21 U.S.C. § 802(11). Moreover, the statute defines "deliver" as the "actual, constructive or attempted transfer of a controlled substance, whether or not there exists an agency relationship." 21 U.S.C. § 802(8). Collins' actions, whether sufficient to support a conviction for the sale of heroin, are clearly within the scope of the statutory definition of distribution. The argument advanced by Collins in this respect has been rejected by every circuit which has considered it. See United States v. Snow, 537 F.2d 1166, 1169 (4th Cir. 1976); United States v. Marquez, 511 F.2d 62, 64 (10th Cir. 1975); United States v. Oquendo, 505 F.2d 1307, 1310 (5th Cir. 1975); United States v. Pierce, 162 U.S.App.D.C.170, 498 F.2d 712 (1974); United States v. Pruitt, 487 F.2d 1241 (8th Cir. 1973); United States v. Hernandez, 480 F.2d 1044 (9th Cir. 1973); United States v. Masullo, 489 F.2d 217 (2d Cir. 1973). As chief Judge Gibson observed:

These prior concepts have been discarded in the Controlled Substances Act which contains no sale or buying requirement to support a conviction; there is now an offense of participation in the transaction viewed as a whole. * * * Any individual who participates in any manner in the unauthorized distribution of such "controlled substances" is amenable to the Act and the sanctions provided therein.

United States v. Pruitt, supra at 1245. The contention in this regard is without merit.

Instruction Concerning Extrajudicial Statements

Both Collins and Hammonds next assert that the trial court's instruction concerning certain extrajudicial statements made prior to trial was prejudicial. The instruction submitted provided in pertinent part:

Evidence relating to any statement, or act or omission, claimed to have been made or done by a defendant outside of court, and after a crime has been committed, should always be considered with caution and weighed with great care; and all such evidence should be disregarded entirely, unless the evidence in the case convinces the jury beyond a reasonable doubt that the statement, or act or omission, was knowingly made or done.

If the evidence in the case does not convince beyond a reasonable doubt that a confession was made voluntarily and intentionally, you should disregard it entirely. On the other hand, if the evidence in the case does show beyond a reasonable doubt that a confession was in fact voluntarily and intentionally made by a defendant, you may consider it as evidence in the case against the defendant who voluntarily and intentionally made the confession.

Appellants do not dispute that certain inculpatory statements were made nor that they were properly admitted into evidence. They contend rather that characterizing the statements as confessions rather than as admissions invades the province of the jury and is prejudicial. However, it appears from the record that no objection was taken to any of the court's instructions until after the jury had retired to begin its deliberations. Consequently, any objection to the jury instructions was untimely. Fed.R.Crim.P. 30 provides in part:

No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.

Accordingly, the right to assign as error the instruction now attacked has been waived. See Willis v. United States, 530 F.2d 308,...