U.S. v. Mitchell, s. 76-1709
| Decision Date | 20 May 1977 |
| Docket Number | 76-1710,Nos. 76-1709,s. 76-1709 |
| Citation | 556 F.2d 371 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Boyce MITCHELL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Nolan Ray WILLIAMSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Albert C. Harvey, Memphis, Tenn. (court-appointed), for defendant-appellant in No. 76-1709.
Joe A. Dycus, Asst. Federal Public Defender, Memphis, Tenn., for defendant-appellant in No. 76-1710.
Thomas F. Turley, Jr., U. S. Atty., Larry E. Parrish, Memphis, Tenn., for the United States.
Before PHILLIPS, Chief Judge, McCREE * and ENGEL, Circuit Judges.
Boyce Mitchell, Nolan Ray Williamson, and Clyde W. Jenkins were charged with conspiracy to possess and distribute controlled substances and to use a communication facility to commit the crime of possessing and distributing drugs in violation of 21 U.S.C. §§ 843, 846. Jenkins was tried and convicted separately. See United States v. Jenkins, 525 F.2d 819 (6th Cir. 1975). The indictment charged that the conspiracy continued from February 22, 1972 up to and including February 24, 1972, and alleged ten overt acts.
Proof at the trial was developed primarily through the testimony of one Robert Thurston Davis, who, after having been caught by government agents in possession of stolen securities, agreed to become a paid government informer. With complete government support, Davis moved into Memphis, Tennessee with a lady friend and established himself as a successful underworld figure using the alias of James Bonner. While his wife and family were being cared for by the government outside of Washington, D. C., Davis was furnished a townhouse in Memphis, a salary of $1,000 per month, and the use of an expensive automobile. With his consent, Davis' townhouse was fully equipped with electronic devices and from time to time he was supplied with a body transmitter whereby his conversations could be overheard when he was outside the apartment. Although the conspiracy which was ultimately charged in the indictment related to the possession and distribution of drugs, the initial objective of the mission was to uncover illegal counterfeit money activity.
Davis moved into the Memphis townhouse in January 1972 and immediately set to work establishing contacts by talking with prior acquaintances Boyce Mitchell and Paul "Pep" Patterson. Davis first learned about Williamson when his name was mentioned in a conversation with Mitchell, who indicated that he had had dealings before with him. At Davis' urging, Mitchell endeavored to get in touch with Williamson for the purpose of dealing in counterfeit money, but he proved elusive. In the course of Davis' activities he learned that Patterson could possibly supply certain amphetamines and a number of prescription-type drugs.
On February 10, 1972 Davis and Mitchell made a trip to Patterson's farm near Oxford, Mississippi, ostensibly to obtain an automatic weapon. At that time Davis obtained a list of the drugs from Patterson. Later, Davis, wearing a body transmitter, returned to Patterson's farm to see the drugs and picked up several samples, leaving a $200 deposit as security. These drug samples were turned over to a government agent who instructed Davis to arrange for the purchase of all the drugs that Patterson had shown him. Many telephone conversations ensued, culminating in Davis' agreement to buy the drugs. On February 22 Patterson delivered them to Davis' apartment in Memphis. On a pre-arranged signal, Patterson was arrested and the drugs were seized and locked up as evidence. 1
Meanwhile Mitchell was proceeding in his efforts to involve Williamson in the possible purchase of the drugs which Patterson claimed to have for sale. Mitchell was not himself present at the time Patterson was arrested, nor does he appear to have known about it until some time later.
Davis testified that he and Mitchell had developed a partnership arrangement whereby they were to split the profits from deals involving counterfeit money, automatic weapons, stolen securities and drugs. With Mitchell's intercession Davis was finally able to talk with Williamson on February 22, 1972, while the latter was occupying a room in the Quality Courts Motel in Memphis. During the conversations Williamson said, "Mitch said you had a list I would be interested in seeing." They agreed that Williamson would come to Davis' apartment at 11:00 p.m. that night and in fact around 11:30 p.m., Williamson, together with Jenkins and James Thomas Frazier, 2 arrived at the apartment, where their conversations were recorded by the hidden equipment.
The tapes of this conversation form the principal basis for the charges of conspiracy. Williamson appeared to be more interested in counterfeit money than in drugs, but at the same time his two confederates, Frazier and Jenkins, proceeded to evaluate the drugs on the Patterson list and to discuss the possibility of their buying part or all of the collection. At one point Williamson turned the conversation to coke (cocaine) which he mentioned he could procure from California in any quantity that Davis might want. The parties closed their conversation that evening with an informal agreement to get together to negotiate a price on the drugs furnished by Patterson and to establish a continuing relationship for the sale of cocaine and counterfeit money, both of which Williamson offered to supply through his California sources.
On February 23 Williamson talked by telephone with Davis and advised him that he had called his connection in California concerning cocaine, but it was too early to talk to the people. He also said that he was going to talk to Frazier and Jenkins about the Patterson list of drugs. Again, on February 24, 1972, Davis' girl friend took a telephone call from Williamson, who identified himself and indicated that he wanted Davis to know that "I want to talk business with him." Shortly thereafter the undercover operation ceased, the apartment was closed down, and the indictments issued. The proposed deals in the drugs and counterfeit money never took place.
In their appeals, Mitchell and Williamson raise nineteen variously stated claims of error.
Both Mitchell and Williamson challenge the sufficiency of the evidence to show a conspiracy between them and Jenkins. Basically they claim that " Williamson and the others never agreed to do anything with drugs other than to talk about them."
The conspiracy charged in the indictment was of limited duration, February 22 to and including February 24. There is no evidence that Mitchell and Williamson actually met during that period, although, of course, Williamson and Jenkins together visited Davis' townhouse and participated in negotiations there. Mitchell was not present during that crucial meeting on the evening of February 22. Nevertheless we are satisfied that there was sufficient evidence to establish a conspiracy during those days between Mitchell, Williamson and Jenkins. The several telephone calls between the various parties and the testimony of Robert Thurston Davis established the illegal agreement.
The meeting at Davis' apartment was the result of a number of telephone calls between Mitchell, Davis and Williamson. Williamson had originally asked Davis to come to his room at the Quality Court Motel. However, in a later call it was agreed that Williamson would come to Davis' townhouse instead. He arrived at approximately 11:30 p.m. in the company of Clyde Jenkins and James Thomas Frazier.
For the next 45 minutes or so Davis, Williamson, Frazier, and Jenkins conversed at length over a wide variety of subjects. Davis produced a copy of the list of drugs which had earlier been supplied by Patterson. A general conversation followed. Frazier and Jenkins were going over the list item by item and discussing its merits and the types of drugs involved, while Davis and Williamson engaged in amenities, it being rather apparent that Williamson was trying to determine Davis' reliability. Although very careful at the beginning, Williamson eventually dropped his guard in increasingly more congenial conversation with Davis concerning prior acquaintances and experiences in other cities. Eventually they moved on to an exploration of the possibility of doing business in counterfeit money, in guns, and in personal identification cards such as draft cards and driver's licenses. Davis indicated to Williamson that he was going to try to set up a warehouse in Memphis. In turn, Williamson cautioned him about involvement in Memphis crime because of the unreliability of police cooperation. 3 The conversation ultimately turned to hard drugs. After probing Williamson as to whether the latter could use any "hard dope or anything," in contrast to the type of drugs acquired from Patterson, Williamson indicated he had no interest in buying any dope. However, the recorded conversation revealed his desire to supply hard drugs: 4
"Bonner (Davis): But I can use some good hard dope . . .
Williamson: Yeah. You want some uh smack.
Bonner: Yeah. I want something I can get rid of. This , that , you're gonna have to get rid of to somebody that can use.
Jenkins: You got to have somebody who's got an outlet for it.
Williamson: Right.
Frazier: This guy, this guy can move it.
Jenkins: That's why, when we just had in mind. When they told us what it was, well we said, well we know a guy that with it and move it.
Bonner: Yeah.
Williamson: You got an outlet for any coke?
Bonner: Yes.
Williamson: That crystal coke.
Bonner: Yes.
Williamson: I can get you all of that that you want, now. That That, comes from California, too, ya know.
Bonner: Is it cut down pretty good or is it (undiscernible word)
Williamson: No, you get good stuff. I know them people, ya know. They do business right, ah "
Thereafter they discussed the price, Williamson stating that...
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