U.S. v. Cooper

Decision Date07 November 1979
Docket NumberNo. 79-5048,79-5048
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Bernard COOPER, Defendant-Appellant. Summary Calendar. *
CourtU.S. Court of Appeals — Fifth Circuit

Maurice T. Hattier, Asst. Federal Public Defender, New Orleans, La., for defendant-appellant.

John Volz, U. S. Atty., Louis Moore, Jr., Asst. U. S. Atty., New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before COLEMAN, FAY and RUBIN, Circuit Judges.

PER CURIAM:

The defendant-appellant, Bernard Cooper, was convicted by a jury on four counts charging him with heroin-related offenses: conspiracy to distribute heroin hydrochloride and conspiracy to possess with intent to distribute it, in violation of 21 U.S.C. § 846; distribution of heroin in violation of 21 U.S.C. § 841(a)(1); and two separate counts of knowing use of a communication facility to distribute heroin unlawfully in violation of 21 U.S.C. § 843(b). He was sentenced to ten years imprisonment followed by a special parole term of three years on the first two counts, and to four years on each of the others. All of the sentences were to run concurrently with the ten-year sentence on the first count.

I

Having considered the three separate challenges to the constitutionality of the drug conspiracy statute, 21 U.S.C. § 846, we find the statute valid. In permitting the government to bring conspiracy charges in any district where an overt act was alleged to have been committed, the statute is not inconsistent with the Sixth Amendment right of the accused to "trial, by an impartial jury of the State and district wherein the crime shall have been committed." U.S.Const. amend. VI.

There is no allegation that the particular venue chosen here was unrelated to the offense, that another district would have been more appropriate or that the jury chosen to try the case was biased. A conspiracy may be "committed" in the constitutional sense in a number of places, particularly when it continues over a period of time and is pursued by overt acts in a number of places. Hyde v. United States, 1912, 225 U.S. 347, 362-63, 32 S.Ct. 793, 800, 56 L.Ed. 1114, 1124. The constitutionality of a statute permitting the prosecution to choose among relevant forums in conspiracy prosecutions has long been upheld under the Sixth Amendment. Hyde v. United States, supra; Downing v. United States, 5 Cir. 1965, 348 F.2d 594, Cert. denied 1965, 382 U.S. 901, 86 S.Ct. 235, 15 L.Ed.2d 155.

The controlled substances conspiracy statute does not place impermissible restrictions on First Amendment freedoms of association and expression. If a course of conduct contains both "speech" and "non-speech" elements, and if Congress has undoubted constitutional power to regulate the non-speech conduct, incidental restrictions on freedom of speech are not constitutionally invalid. United States v. O'Brien, 1968, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672. Any incidental restriction here on the freedoms of association and expression is De minimis in view of the government's undoubted power to regulate traffic in illicit drugs. See United States v. Umentum, E.D.Wis.1975, 401 F.Supp. 746, 749, Aff'd 7 Cir. 1976, 547 F.2d 987, Cert. denied 1976, 430 U.S. 983, 97 S.Ct. 1677, 52 L.Ed.2d 376.

Section 846 withstands scrutiny under the Fifth Amendment; it adequately informs the public of the criminal potential of the conduct proscribed. Under "common understanding and practices," the statute, by reference, sufficiently apprises all persons of the illegality of any agreement to possess and distribute a totally prohibited drug such as heroin. Jordan v. De George, 1951, 341 U.S. 223, 231-2, 71 S.Ct. 703, 708, 95 L.Ed. 886, 892.

II

The evidence was clearly sufficient to support the convictions as to the first two counts; three witnesses identified appellant as the man who brought heroin to 77 Imperial Drive in New Orleans in 1975 for preparation ("cutting") and distribution. One witness testified that he paid appellant $600 for his share of the drug on that occasion. There was also additional testimony supporting these charges. While it is true that these witnesses were accomplices in the instant offenses, any question concerning the credibility of their testimony was for the jury.

The convictions for using an interstate communication facility rested on the testimony of one witness that she sent appellant several Western Union money...

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    ...are continuing offenses which under 18 U.S.C. § 3237 may be tried in any district in which the crime took place."); United States v. Cooper, 606 F.2d 96, 97 (5th Cir. 1979), cert. denied, 444 U.S. 1024, 100 S. Ct. 685, 62 L. Ed. 2d 657 (1980) ("A conspiracy may be 'committed' in the constit......
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