U.S. v. Conley, 75-1017

• Decision Date: 21 October 1975
• Docket Number: No. 75-1017,75-1017
• Citation: 523 F.2d 650
• Parties: UNITED STATES of America, Appellee, v. John CONLEY, Jr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 650

523 F.2d 650

UNITED STATES of America, Appellee, v. John CONLEY, Jr., Appellant.

No. 75-1017.

United States Court of Appeals,

Eighth Circuit.

Submitted April 15, 1975.

Decided Aug. 15, 1975.

Rehearing and Rehearing En Banc Denied Oct. 21, 1975.

Allen I. Harris, St. Louis, Mo., for appellant.

Liam S. Coonan, Dept. of Justice, St. Louis, Mo., for appellee.

Before MATTHES, Senior Circuit Judge, and ROSS and WEBSTER, Circuit Judges.

WEBSTER, Circuit Judge.

Appellant John Conley, Jr., was convicted of distributing heroin in violation of 21 U.S.C. § 841(a)(1) following a jury trial in the United States District Court for the Eastern District of Missouri. ¹ Conley does not challenge the sufficiency of the evidence to support his conviction, but asserts instead that the District Court erred by (1) admitting into evidence testimony concerning conversations about narcotics sales not connected with the distribution for which Conley had been indicted, (2) allowing hearsay testimony relating to acts other than those for which Conley was being tried, and (3) improperly instructing the jury on the definition of "reasonable doubt." Conley also contends that the sentence imposed upon him by the District Court was so excessive as to constitute an abuse of discretion. We affirm both the judgment of conviction and the sentence imposed by the District Court.

On August 1, 1973, Robert Stewart, a special employee of the Drug Enforcement Administration, met with John Conley, Jr., at the Regal Sports Lounge in St. Louis, Missouri, where he arranged to purchase heroin from Conley on the following day. At approximately 2:50 p. m. on August 2, Stewart, having previously been strip-searched, went to the Regal Sports Lounge accompanied by Eddie Guilbeaux, a DEA agent, who carried $1300 in marked government currency. They left when Conley did not appear. Later that afternoon, again having been strip-searched, Stewart returned to the Regal carrying the $1300 in marked government currency, again accompanied by Agent Guilbeaux. Stewart and Guilbeaux met Conley, talked for a few minutes and left. About 25 minutes later, Stewart returned and again met Conley. As the two of them were walking out of the Regal together, Stewart gave Conley the $1300 in exchange for approximately 47 grams of heroin. Guilbeaux observed the transaction from an automobile parked about 30 feet away.

Conley was arrested the next day, but none of the government's marked money was ever recovered. He was later indicted for distributing heroin and for conspiring to distribute heroin. Following his trial and conviction for distributing heroin on August 2, 1973, he was sentenced to 15 years in prison and to a special term of 3 years parole. ²

I.

At trial, testimony was admitted, over Conley's relevancy objection, concerning conversations about the purchase and sale of narcotics which occurred in Conley's presence on six different occasions over an 18 month period prior to August 2, 1973. ³ Taken as a whole, the challenged evidence tended to show Conley's continuous involvement in illegal narcotics traffic during this period. The District Court indicated to counsel out of the jury's hearing that the testimony would be admitted for the limited purpose of showing Conley's intent to distribute heroin on August 2, 1973. Conley charges that the admission of this testimony was erroneous and prejudicial. We are thus presented with still another case wherein we must decide the proper use of evidence of other crimes.

In this circuit, evidence of other crimes or criminal conduct is generally inadmissible, except that "(s)uch evidence is relevant to prove '(1) motive, (2) intent, (3) the absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, and (5) identity of the person charged with the commission of the crime on trial.' " United States v. Cochran, 475 F.2d 1080, 1082 (8th Cir.), Cert. denied, 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973); Accord, United States v. Lewis, 423 F.2d 457, 459 (8th Cir.), Cert. denied, 400 U.S. 905, 91 S.Ct. 146, 27 L.Ed.2d 142 (1970). ⁴

The government in this case faced a difficult task in proving its case. It was necessary to convince the jury that the defendant, a prominent politician and former member of the state legislature, distributed heroin to a government agent and a government special employee. The nature of the transaction between the defendant and these government men on August 2, 1973, would be one determined upon the credibility of the witnesses. In order to show that the government's version of the August 2nd transaction was neither improbable nor incredible, the prosecution offered testimony of the emerging relationship between Conley and the government men. It began in 1972, with Conley present when narcotics activities were discussed by others, but not by Conley. It continued with another meeting at which Conley expounded upon ways to avoid being convicted by means of electronic bugging; it continued in 1973 with Conley's referral of the government men to one Billy Thompson to buy heroin and a subsequent meeting at which Conley expressed knowledge of the buys from Thompson. A meeting with Conley on August 1st was described at which the parties set up the August 2nd buy.

While the disputed conversations extend over a substantial range of time, we find no difficulty in holding that the course of conduct depicted by this testimony displayed not only the defendant's knowledge of the heroin traffic in which he was engaged and his intentional participation in an act which he knew to be illegal, but also a common plan or scheme to distribute heroin which emerged in the intervening months as "an uninterrupted course of action." See United States v. Cochran, supra, 475 F.2d at 1082.

We recently observed that before any evidence of other crimes or criminal activity can be admitted, "it must be shown that (1) an issue on which other crime evidence may be received is raised; (2) that the proffered evidence is relevant to that issue; (3) that the evidence is clear and convincing; and (4) that the probative worth outweighs the probable prejudicial impact." United States v. Clemons, 503 F.2d 486, 489 (8th Cir. 1974). However, we also recently had occasion to reaffirm our statement in United States v. Cochran, supra, 475 F.2d at 1082 that

the trial court can in its discretion admit relevant evidence of other criminal acts and reversal is only commanded when "it is clear that the questioned evidence has no bearing upon any of the issues involved."

United States v. Thompson, 503 F.2d 1096, 1098 (8th Cir. 1974); Accord, Johnson v. United States, 506 F.2d 640, 644 (8th Cir. 1974), Cert. denied, 420 U.S. 978, 95 S.Ct. 1404, 43 L.Ed.2d 659 (1975). Applying the fourfold test set forth in Clemons, supra, we find no abuse of discretion here.

It is urged that intent was not an issue in this case, and therefore the evidence of other criminal activity should be excluded under Clemons, supra. We disagree. This is not a case in which intent was not an element of the crime, See United States v. Crawford, 438 F.2d 441, 447 (8th Cir. 1971), or one in which the parties stipulated to the element of intent but chose to rely upon some other defense, such as failure to prove that the substance was heroin, E. g., United States v. Gavic, --- F.2d --- (8th Cir. 1975). See also United States v. Buckhanon, 505 F.2d 1079 (8th Cir. 1974). The government was bound to prove in this case that the distribution of heroin was intentional. It could not safely withhold evidence of the clandestine relationship between its witnesses and a man in public life until after the defendant had closed his case, ⁵ because such evidence could then be offered only if the defendant took the stand. Moreover, the government was entitled to anticipate the defendant's obvious defense. See United States v. Cirillo, 499 F.2d 872, 888-89 (2d Cir.), Cert. denied, 419 U.S. 1056, 95 S.Ct. 638, 42 L.Ed.2d 653 (1974). On the record before us, we hold that the evidence was admissible to show the defendant's knowing and intentional development of a scheme to sell heroin and of a plan to do so consistent with the actual mode of distribution. ⁶ United States v. Tatum, 496 F.2d 1282, 1284 (5th Cir. 1974); Von Feldt v. United States, 407 F.2d 95 (8th Cir. 1969). Moreover, the evidence, if believed, was clear and convincing, and under the facts in this case the probative value substantially outweighed the probable prejudicial impact. ⁷

II.

Appellant further contends that government evidence describing the pre-August 2nd meetings ⁸ included hearsay statements by third parties which were improperly admitted. We cannot agree.

The challenged evidence consists of testimony by Robert Stewart and Agent Guilbeaux concerning what third parties said in Conley's presence. It was offered to show that the statements were made in Conley's presence and was relevant whether or not the statements were true or accurate. This is not hearsay. E. Cleary, McCormick's Handbook of the Law of Evidence § 249 (2d ed. 1972); Cf. Creaghe v. Iowa Home Mutual Casualty Co., 323 F.2d 981, 984 (10th Cir. 1963).

Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of the matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.

E. Cleary, McCormick's Handbook of the Law of Evidence § 246, at 584 (2d ed. 1972); Accord, Fed.R.Evid. 801(c). Because the controverted testimony was fully subject to cross-examination and because its probative value, I. e., the fact of utterance, was in no way dependent upon the veracity of an out-of-court declarant we hold that the District Court did not err in admitting it.

Again we note the absence of a limiting...