604 F.2d 1102 (8th Cir. 1979), 78-1695, United States v. Williams

Docket Nº:78-1695 to 78-1697, 78-1710 and 78-1799.
Citation:604 F.2d 1102
Party Name:UNITED STATES of America, Appellee, v. Michael S. WILLIAMS, Appellant. UNITED STATES of America, Appellee, v. Hilton L. SMITH, Jr., Appellant. UNITED STATES of America, Appellee, v. Deffanie J. MORGAN, Appellant. UNITED STATES of America, Appellee, v. Norman L. WILLIAMS, Appellant. UNITED STATES of America, Appellee, v. James Michael ERVIN, Appella
Case Date:August 21, 1979
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1102

604 F.2d 1102 (8th Cir. 1979)

UNITED STATES of America, Appellee,

v.

Michael S. WILLIAMS, Appellant.

UNITED STATES of America, Appellee,

v.

Hilton L. SMITH, Jr., Appellant.

UNITED STATES of America, Appellee,

v.

Deffanie J. MORGAN, Appellant.

UNITED STATES of America, Appellee,

v.

Norman L. WILLIAMS, Appellant.

UNITED STATES of America, Appellee,

v.

James Michael ERVIN, Appellant.

Nos. 78-1695 to 78-1697, 78-1710 and 78-1799.

United States Court of Appeals, Eighth Circuit

August 21, 1979

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Submitted Feb. 12, 1979.

As Amended Aug. 22, 1979.

Rehearing and Rehearing En Banc Denied in No. 78-1697 Sept. 4, 1979.

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James H. Green, Kansas City, Mo., on brief, for appellant, M. S. williams.

E. Timothy Shea, III, Kansas City, Mo., on brief, for appellant, H. L. Smith.

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Stanley L. Wiles, Kansas City, Mo., on brief, for appellant, D. J. morgan.

Louis Wagner, Kansas City, Mo., on brief, for appellant, N. L. Williams.

John R. Coffin, Kansas City, Mo., on brief for appellant, J. M. Ervin.

Floyd R. Finch, Jr., Kansas City, Mo., filed appearance form as counsel for appellant, J. M. Ervin. Mr. Coffin was permitted to withdraw as counsel for appellant, J. M. Ervin, by order of this Court.

Before HEANEY and McMILLIAN, Circuit Judges, and SCHATZ, [*] District Judge.

McMILLIAN, Circuit Judge.

Norman L. Williams, Michael S. Williams, James Michael Ervin, Hilton J. Smith, Jr., and Deffanie J. Morgan appeal from judgments entered in the district court 1 upon jury verdicts finding them guilty of conspiracy and substantive violations of federal narcotics laws. 18 U.S.C. § 2; 21 U.S.C. §§ 841(a)(1), 844(a), 846. For the reasons discussed below, we affirm in part and reverse in part.

The multi-count indictment charged appellants with participation in a heroin conspiracy and distribution scheme, operating primarily in December, 1977, and January, 1978, in Kansas City, Missouri. Norman L. Williams was characterized as the "source" or wholesale supplier; the other appellants functioned as mid-level distributors. Michael S. Williams also stored drugs at his house. As developed through the testimony of a confidential informant, James J. Jones, 2 the government showed the drug distribution network in operation in July, 1976. Jones testified that in 1976 he had witnessed several drug transactions, including one between Norman L. Williams and Michael S. Williams, and that he was a drug distributor for James Michael Ervin. Much of the evidence at trial consisted of the testimony of undercover DEA agents and local police officers and surveillance reports of the movements of appellants to and from each other's residences and places of drug transactions.

Appellants were charged as follows: Count I charged all appellants with conspiracy to distribute heroin and cocaine from June, 1976, to the date of the indictment (June 12, 1978); Count II charged Ervin with distribution of heroin on December 12, 1977; Count III charged Ervin with distribution of heroin on December 15, 1977; Count IV charged Ervin with distribution of heroin on January 20, 1978; Count V charged Ervin with distribution of heroin on January 24, 1978; Count VI charged Smith and Morgan with distribution of heroin on January 12, 1978; Count VII charged Norman Williams with distribution of heroin on January 12, 1978; Count VIII charged Smith and Morgan with distribution of heroin on January 16, 1978; Count IX charged Norman Williams with distribution of heroin on January 16, 1978; Count X charged Smith and Morgan with distribution of heroin on January 18, 1978; Count XI charged Norman Williams with distribution of heroin on January 18, 1978; Count XIII 3 charged Smith and Morgan with distribution of heroin on January 27, 1978; Count XIV charged Smith with distribution of heroin on February 2, 1978; Count XV charged Michael Williams with distribution of heroin on February 2, 1978; Count XVI charged Norman Williams with possession with intent to distribute heroin on January 19, 1978; Count XVII charged Michael Williams with possession with intent to distribute heroin on February 2, 1978; and Count XVIII charged Ervin with possession with intent to distribute cocaine on December 15, 1977.

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As indicated by the counts charged, the facts in this case involved two series of narcotics transactions, that between undercover police officers Doug Clark and Earl Craven and appellants Morgan and Smith, and that between Ervin, undercover police officer William Wilson and confidential informant Jones. Both series of transactions were linked by a common source of supply, Norman Williams and occasionally Michael Williams. Therefore, we shall develop the facts separately for each series of transactions.

On December 12, 1977, confidential informant Jones initially contacted the Kansas City DEA office and indicated he wanted to cooperate with the DEA. Jones testified that he was then addicted to narcotics and unable to support his habit; had been threatened by his contact, whom he identified as appellant Ervin; and was facing several state and federal charges. On December 12, 1977, Jones, under the supervision of the DEA, telephoned Ervin to arrange a drug transaction. The conversation was tape-recorded and introduced into evidence and played to the jury. 4 Jones was fitted with a transmitting device and given prerecorded government money. Jones had arranged to meet Ervin at his (Jones') house. The DEA set up surveillance at Jones' house. Ervin arrived at Jones' house and was given the money. Ervin told Jones that he could pick up the heroin at Ervin's house later that day. Ervin later telephoned Jones and they arranged to meet at Ervin's house at 2112 East 16th Street. Jones walked to Ervin's house; Ervin arrived shortly thereafter and gave Jones the heroin (Count II).

On December 15, 1977, Jones again called Ervin to arrange another drug transaction. The conversation was made under the supervision of the DEA and recorded. Jones was fitted with the transmitting device and given prerecorded government funds. He was under DEA surveillance throughout the transaction. Jones met Ervin at a downtown street corner; they exchanged the drugs (heroin and cocaine) and money while shaking hands (Counts III and XVIII).

On January 19, 1978, Jones again telephoned Ervin to arrange another drug transaction. They agreed to meet at 16th and Woodland in Kansas City. Jones and undercover officer Wilson drove to the intersection; Ervin arrived a few minutes later. Jones went to Ervin's car and gave him the money (prerecorded government funds). Jones testified that Ervin had to pick up the drugs at "his cousin's house, Norman Lee Williams," and would be back in about an hour and a half. Jones returned to the DEA car; he and Wilson waited for Ervin to return. DEA surveillance followed Ervin's car to 2112 East 16th Street (Ervin's house). A few minutes later, Ervin left and drove to a house at 4146 College. DEA agent James Connor observed Norman Williams leaving that address about five minutes after Ervin arrived.

At this point agent Connor radioed another surveillance unit to follow Williams. Connor then radioed a marked police car to stop Williams. The marked police car stopped Williams and took him to the Linwood Boulevard Police Station for questioning. This stop will be discussed in detail below.

Later that afternoon Ervin returned to the intersection and, according to Jones' testimony, explained that something had happened and that his cousin had been picked up by the police. Ervin asked Jones and Wilson to go to his house where he would explain further. Jones and Wilson entered Ervin's house and discussed the situation. Ervin reassured them that they would get their drugs as soon as Norman Williams was released. Jones and Wilson testified that Ervin told them Norman Williams was his source and that he had given Norman Williams their money. The next day, January 20, 1978, Ervin telephoned

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Jones that "the package" was ready. Officer Wilson arranged to meet Ervin that day; Ervin then delivered the narcotics to Wilson (Count IV).

The final drug transaction involving Ervin occurred on January 24, 1978 (Count V). Jones informed Wilson that Ervin was interested in selling more drugs. Wilson called Ervin and arranged a meeting. Jones and Wilson met Ervin at his house early in the afternoon, about 1 p. m. Wilson paid Ervin in advance, using prerecorded government funds. Wilson testified that Ervin told him that he had to go to his source and would probably return in an hour or two, certainly before 5 p. m. Jones and Wilson left. Surveillance followed Ervin from his house to the apartment of Morgan and Smith, and then, about ten minutes later, to a house at 4010 East 123rd Street, the home of Norman Williams. Ervin then returned to Morgan and Smith's apartment, stayed only a few minutes and finally went home.

Later in the afternoon, about 4 p. m., Ervin was observed leaving his office and was followed home and then to Norman Williams' house, 4010 East 123rd Street. Ervin entered the house; ten minutes later Ervin and another man were seen leaving the house. They were followed to an address on the outskirts of Kansas City, to a house identified by Agent Connor as the home of Lorenzo Page. Less than an hour later, Ervin was seen leaving this address and was followed home. A little later Wilson arrived at Ervin's house; Ervin got in Wilson's car and delivered the drugs to Wilson.

Meanwhile, after receiving a complaint in early...

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