U.S. v. Brown, 82-1011

Citation692 F.2d 345
Decision Date10 November 1982
Docket NumberNo. 82-1011,82-1011
Parties12 Fed. R. Evid. Serv. 173 UNITED STATES of America, Plaintiff-Appellee, v. Stephen Pfeiffer BROWN, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

J. A. Canales, Corpus Christi, Tex., for defendant-appellant.

Sidney Powell, San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before RUBIN and JOHNSON, Circuit Judges, and VERON *, District Judge.

VERON, District Judge:

This appeal arises from a jury trial at which Stephen Pfeiffer Brown was found guilty on five counts of an indictment. Count Two charged conspiracy to possess cocaine, with intent to distribute, in violation of 21 U.S.C. Secs. 841(a)(1) and 846; Counts Seven, Nine and Ten charged unlawful use of a communication device to facilitate the commission of a felony, in violation of 21 U.S.C. Section 843(b); and Count Eight charged aiding, abetting, counseling, inducing and procuring the possession, with intent to distribute, cocaine, in violation of 18 U.S.C. Section 2 and 21 U.S.C. Sec. 841(a)(1).

We reverse and remand for new trial on Count Eight, and affirm the remaining counts.

On March 26, 1981, appellant was indicted on five counts of a thirteen count indictment returned by a federal grand jury for the Western District of Texas, San Antonio Division.

The indictment resulted from a Government investigation of a San Antonio drug ring which culminated in a series of wire-tap recordings in which appellant implicated himself as a cocaine source.

Appellant raises eight issues of error which we have organized into four sections:

1. the jury charges;

2. the scope of the conspiracy;

3. the wire-tap and related evidence; and,

4. the sufficiency of the evidence.

I.

Appellant contends, and we agree, that the trial court committed plain error in failing to instruct the jury on each of the essential elements of the substantive offense in Count Eight (".. possession, with intent to distribute cocaine"). See United States v. Leon, 679 F.2d 534, 541 (5th Cir. 1982). We, therefore, reverse the conviction on Count Eight and remand for a new trial on that count alone.

Appellant next argues that the trial court failed to give the jury sufficient instructions as to each of the essential elements in Count Two ("conspiracy"). 1 Appellant contends that the trial court's failure to charge the jury with the burden of finding that appellant "knowingly committed an overt act" in furtherance of the conspiracy before rendering a guilty verdict deprived appellant of substantive rights and should result in reversal of the conviction.

We reject appellant's argument. This court has expressly held that an indictment charging conspiracy to violate the Drug Control Act, 21 U.S.C. Secs. 841 and 846, does not require allegation or proof of an overt act. United States v. Rodriguez, 612 F.2d 906, 919 n. 37 (5th Cir. 1980). The premise that an overt act need not be charged or proved logically compels the conclusion, and we so hold, that a jury instruction as to an overt act need not be given for an indictment charging conspiracy to violate the Drug Control Act, 21 U.S.C. Secs. 841 and 846. See United States v. Umentum, 547 F.2d 987 (7th Cir. 1976).

Finally, appellant protests that he was subjected to double jeopardy because identical evidence was used to prove Count Two ("conspiracy") and Count Eight ("aiding and abetting..."). Appellant's protest is not justified. The offenses charged are separate crimes, with different proof requirements, and the jury was so instructed. Record, vol. VII, at 387. This court has held ".. that there is no violation of a defendant's Fifth Amendment right against double jeopardy when convicted and punished for aiding and abetting as well as conspiring to commit the same offense even where the evidence adduced serves 'double duty' in establishing the elements of both offenses..." United States v. Cowart, 595 F.2d 1023, 1033 (5th Cir. 1979).

II.

Appellant contends that the trial court erred in admitting testimony about two cocaine sales by appellant's co-conspirators to a Government agent. These sales took place at the inception of the Government's investigation, at which time, the appellant's identity was undisclosed. Appellant argues that because he was not charged with possession, as to these specific sales, the Government should not be permitted to use the sales as part of its conspiracy case. Appellant suggests that the Government's evidence only shows a series of isolated transactions, not an over-all conspiracy. Therefore, appellant reasons that testimony about the sales is both irrelevant to the issue of his involvement with the conspiracy, and highly prejudicial, because the testimony implies a broader conspiracy than the evidence warrants.

In order to define the scope of the conspiracy and appellant's role, we must first examine the undisputed factual background.

During September, 1979, Government agents began a covert investigation of a San Antonio drug ring which led to the conspiracy indictment of appellant and four others. 2

After infiltrating the ring by posing as a Chicago narcotics dealer, Agent Fuentes made two small sample purchases of cocaine from appellant's co-conspirators, Flores and Casas. These purchases are the subject of appellant's charge of error.

At trial, Agent Fuentes' testimony about the two sales was admitted, over objection, as conditionally relevant in establishing a factual chain leading up to appellant's exposure as the cocaine source. 3 Fed.R.Evid. 104(b).

In reviewing the trial court's decision to admit Agent Fuentes' testimony, we are guided by the rule that a lower court has wide discretion in determining relevancy and should not be overruled in the absence of substantial abuse. See United States v. Garr, 461 F.2d 487, 489-90 (5th Cir. 1972), cert. denied, 409 U.S. 880, 93 S.Ct. 170, 34 L.Ed.2d 135 (1972). We find that the trial court did not abuse its discretion in ruling upon the admissibility of Agent Fuentes' testimony.

Once Agent Fuentes' testimony was admitted, the issue of multiple versus a single conspiracy became a factual question for the jury's determination. United States v. James, 576 F.2d 1121, 1126 (5th Cir. 1978).

We find that the record amply supports the jury's factual conclusion that the two earlier transactions, involving small amounts of cocaine, were only a prelude in the quest for over four pounds of cocaine.

III.

Throughout the winter of 1979-80, Agent Fuentes continued active negotiations with the drug ring, predominately through Sam Flores. Although Agent Fuentes made purchases of heroin, marihuana, and small amounts of cocaine from Flores, the Government failed to make significant progress in locating the cocaine source. Therefore, in March, 1980, the Government resorted to a wire-tap interception of Flores' telephone. It was during this telephone interception that the cocaine source was discovered to be appellant, Stephen Pfeiffer Brown.

Appellant attacks the interception order, which authorized the wire-tap, for two reasons: first, appellant alleges that there was sufficient evidence to indict members of the drug ring prior to the wire-tap, therefore, further investigation was unnecessary; and, second, appellant argues that the Government was successful in gathering indictable information by normal investigative means, therefore, extraordinary means were unwarranted. Appellant's sole support for his conclusions is an opinion affidavit filed by John Pinckney, an attorney for appellant's co-indictee, Carlos Alva.

Against appellant's uncorroborated conclusions, the government offered testimony that it used a variety of investigative techniques--including surveillance, a pen register, and undercover drug purchases--before applying for the interception order. These efforts were unsuccessful in uncovering the cocaine source. Therefore, the Government determined, and the authorizing court found, that ordinary investigative techniques were insufficient and that a wire-tap order was justified.

Prior to trial, appellant asked for an evidentiary hearing on a motion to suppress the interception order. The trial court conditioned the granting of a hearing upon an initial showing by appellant that the Government's agents were not credible. Record, vol. VIII, at 170-171. Appellant, only repeating his allegation that the agents were liars, offered no new evidence.

We find no support for appellant's allegation of Government falsity and, therefore, we hold that appellant has failed to meet the threshold requirements for an evidentiary hearing set forth in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). 4

Appellant's next challenge concerns the introduction of the wire-tap tapes at trial. The actual tapes heard at trial are composites prepared from one of two original sets. Because the originals run for over 69 hours and contain much irrelevant material, it was necessary for the Government to edit the tapes before presenting them at trial. However, no individual conversation was edited. In addition, written transcripts containing English translations of conversations in Spanish were given to the jury.

Appellant's claim of error is in two parts: first, he alleges that the original tapes were never introduced into evidence; and, second, he alleges that the transcripts were not adequately compared to the original tapes.

The record belies appellant's claim. Not only were the original tapes admitted into evidence, Record, vol. VII, at 208, but the transcripts were compared to the originals and found to be accurate. Record, vol. III, at 434-35. In addition, the trial court made the original tapes freely available, upon demand, to defense counsel. Record, vol. V, at 887.

This court has expressly rejected any formalistic standard for the admissibility of tapes and transcripts. United States v. Greenfield, 574...

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