Mack v. United States

• Decision Date: 21 January 1964
• Docket Number: No. 16903.,16903.
• Citation: 326 F.2d 481
• Parties: Jerome Kenneth MACK, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

326 F.2d 481 (1964)

Jerome Kenneth MACK, Appellant, v. UNITED STATES of America, Appellee.

No. 16903.

United States Court of Appeals Eighth Circuit.

January 21, 1964.

David G. Dempsey, Clayton, Mo., Eaker, Dempsey, Heath & Dempsey, Clayton, Mo., for appellant.

John A. Newton, Asst. U. S. Atty., St. Louis, Mo., Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., for appellee.

Before JOHNSEN, Chief Judge, and MATTHES and MEHAFFY, Circuit Judges.

MEHAFFY, Circuit Judge.

Facts

Appellant Jerome Kenneth Mack stands convicted on two counts of an indictment alleging separate narcotic violations under 21 U.S.C.A. § 174¹ and 26 U.S.C.A. § 4705(a).²

The grounds of appellant's appeal are twofold. He raises the question of the sufficiency of the evidence supporting the jury verdict rendered against him and complains of a deprivation of his right to a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution.

Focusing our attention firstly to the problem of the adequacy of evidence to support the verdict of guilty under the statutes involved, this Court is mindful of the fact that the government prosecuted appellant on the basis he aided and abetted in the unlawful possession and sale of narcotics by one Ivory C. Moore, who, at the time of appellant's trial, had pleaded guilty and been convicted of the commission of these offenses. Because under 18 U.S.C.A. § 2 one who aids and abets in the commission of a crime stands in the shoes of the principal insofar as imposable punishment is concerned, the burden of proof must encompass the same elements required of the government to convict the principal offender. Hernandez v. United States, 300 F.2d 114 (9th Cir. 1962); United States v. Jones, 308 F.2d 26 (2nd Cir. 1962). In the language of this Court in Johnson v. United States, 195 F.2d 673, 675 (8th Cir. 1952):

"(T)o find one guilty as a principal on the ground that he was an aider and abetter, it must be proven that he shared in the criminal intent of the principal and there must be a community of unlawful purpose at the time the act is committed."

Since the jury's verdict must be sustained if there is substantial evidence to support it, the following resumé of the pertinent facts must therefore be cast in a light most favorable to the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); McKenna v. United States, 232 F.2d 431 (8th Cir. 1956).

The evidence indicated that on the afternoon of March 3, 1961, United States narcotic agent, James Parker, working undercover at the time, contacted in person Ivory C. Moore, at a bar in St. Louis, Missouri, for the purpose of arranging a sale of narcotics. After meeting Moore and agreeing to pay $80.00 for forty "plays" of narcotics, Parker was escorted by Moore out of the bar and across the street to where the appellant was seated behind the steering wheel of appellant's car parked at the curbside. Parker seated himself in the right rear seat of the vehicle while Moore sat down in the right front passenger seat next to appellant. Shortly thereafter, two men at separate intervals approached appellant's car from the curbside and conversed with Moore through the car's open window. On both occasions, the men handed Moore money in bill form through the window, whereupon Moore reached his hand outside the window three or four times placing his closed fingers in the outstretched palms of the unidentified recipients in a manner which gave the appearance of a transfer of small objects. Then Moore, in appellant's presence, requested agent Parker to give him $83.00 so that he could "give the man (meaning appellant) something for the trip". Parker complied, at which time Moore instructed him to get out of the car and await his return with Moore's reassurance, "do not worry, I'll be back with the stuff". Within less than one-half hour of their departure, appellant and Moore returned in the former's car to where Parker had remained waiting for them on the street. Moore exited the car, standing next to Parker alongside the open front door on the sidewalk. Parker entered the front seat of the car, sitting not over six inches from appellant who was behind the steering wheel. Parker observed a small tinfoil wrapped package on the front seat between himself and appellant. Parker then held the tinfoil package up before him, opened it, and observed its contents to be many small capsules containing a white powder substance. Parker queried Moore, who had remained outside the automobile, if everything was straight, and Moore replied affirmatively. Parker subsequently departed and rejoined an accompanying narcotic agent who had driven to the scene of the sale and had kept the activities of the transaction under surveillance from a government vehicle parked approximately two blocks away. That same day the agents counted the tinfoil package's contents, finding forty capsules therein and marked the package with their initials for identification. Ultimately, the capsules were analyzed by a United States chemist with the Alcohol and Tax Division of the Internal Revenue Service in Omaha, Nebraska, who testified they contained heroin hydrochloride, a narcotic derivative of opium.

The only evidence offered by appellant was the testimony of Ivory C. Moore. Moore denied any sale or transfers of narcotics to the two men who approached him in appellant's car but explained the incident as being only a conversation about an earlier discussion the three had concerning sharing of the cost of some drinks. Moore admitted his sale of the narcotics to Parker but denied that appellant had knowledge of or was a party to the transaction in any fashion. Moore testified he told appellant he would pay him a couple of dollars to drive to the house of Moore's brother to pick up some clothing he intended to pawn and that appellant was unaware of the real nature of Moore's trip.

Opinion.

Essentially, § 174 proscribes the knowledgeable illegal importation of narcotics into the United States and disposition thereafter knowing of the unlawful entry. In lieu of proof of these proscribed activities, the statute also provides that mere proof of possession of narcotics by the defendant is sufficient evidence to authorize conviction unless he explains the possession to the satisfaction of the jury. The authorities interpreting the form of possession required proven to raise the presumption of guilt have consistently held that constructive as well as physical or actual possession suffices. Rodella v. United States, 286 F.2d 306 (9th Cir. 1960), cert. denied, 365 U.S. 889, 81 S.Ct. 1042, 6 L.Ed.2d 199 (1961); United States v. Santore, 290 F.2d 51 (2nd Cir. 1960), cert. denied, 365 U.S. 834, 81 S.Ct. 745, 5 L.Ed.2d 743 (1961); Cellino v. United States, 276 F.2d 941 (9th Cir. 1960); United States v. Landry, 257 F.2d 425 (7th Cir. 1958). Constructive possession, as opposed to physical custody, presupposes a power to exercise dominion and control over the narcotics, susceptible of proof by either direct or circumstantial evidence. Hernandez v. United States, supra; United States v. Jones, supra; Lucero v. United States, 311 F.2d 457 (10th Cir. 1962).

The government, however, may not short-circuit its proof of possession as to appellant on the theory that he aided and abetted the principal offender in whom possession of the drug existed. As succinctly pointed out to the contrary by the court construing this statutory provision in Lucero v. United States, supra, 311 F.2d at 459, actual or constructive possession of the aider and abetter must be proven:

"Otherwise, an aider and abetter would be required to explain away not his possession but the possession of another."

Moreover, the principal's mens rea may not be imputed to the aider and abetter in order to sustain the latter's conviction, but his specific knowledge and intent to commit the crime must be proven by the prosecution. Hernandez v. United States, supra; United States v. Jones, supra; Johnson v. United States, supra.

Therefore, the issue is whether appellant had actual or constructive possession of the narcotics coincident with the requisite criminal intent or knowledge. Appellant submits that although his car was used to deliver the narcotics, he could not possess that which he did not know existed. From the evidence, appellant unquestionably knew that Moore, the vendor, sold agent Parker, the vendee, something for the approximate price of $83.00, the sale having been consummated in appellant's car and presence. Appellant also knew that the need for hire of his car and the purpose of Moore's trip was to obtain the "stuff" promised Parker upon their return, and not as Moore testified to run a personal errand for himself. While appellant's guilt cannot be dependent upon mere association with a dope peddler, this association and the suspicious circumstances enshrouding Moore's "sales" to the unidentified purchasers are sufficient to charge appellant, apparently an average intelligent adult, with knowledge of Moore's connoted reference to narcotics in his subsequent use of the word "stuff". The courts have previously recognized this term's narcotic trade significance under similar circumstances and context of use. Parente v. United States, 249 F.2d 752 (9th Cir. 1957); Enriquez v. United States, 293 F.2d 788 (9th Cir. 1961); cf. Batsell v. United States, 217 F.2d 257 (8th Cir. 1954). But more significantly, the most destructive evidence of appellant's argument he was unaware of the existence of narcotics in his car are the facts surrounding the narcotics' delivery to agent Parker during daylight hours on the front seat of appellant's automobile while appellant was seated nearby with an unobstructed view of the event. Parker found the tinfoil wrapped container of narcotics lying in plain view on the front seat a scant six inches from where appellant was seated. In close proximity to appellant, Parker unwrapped...