U.S. v. Cosby, 75--1570

• Decision Date: 27 February 1976
• Docket Number: No. 75--1570,75--1570
• Citation: 529 F.2d 143
• Parties: UNITED STATES of America, Appellee, v. William COSBY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 143

529 F.2d 143

UNITED STATES of America, Appellee, v. William COSBY, Appellant.

No. 75--1570.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 10, 1975.

Decided Feb. 9, 1976.

Rehearing and Rehearing En Banc Denied Feb. 27, 1976.

Robert A. Hampe, St. Louis, Mo., for appellant.

Richard A. Heidenry, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before LAY, BRIGHT and HENLEY, Circuit Judges.

HENLEY, Circuit Judge.

William Cosby, appellant here and defendant below, was convicted by a jury in the United States District Court for the Eastern District of Missouri ¹ on two counts of a ten-count indictment that charged that during January and February, 1975 the defendant and two other men, Phelbert Angle and Danny Joseph Mayer, had unlawfully distributed substantial quantities of heroin in the City of St. Louis, Missouri in violation of 21 U.S.C. § 841(a)(1). The defendant was convicted on Counts IV and VII of the indictment in which counts both he and Angle were named as defendants. The district court imposed concurrent sentences of twelve years imprisonment on each count to be followed by a special parole term of three years. Defendant appeals.

The fourth count of the indictment charged that on or about January 30, 1975 the defendant and Angle unlawfully distributed 6.80 grains of heroin, and the seventh count charged that on or about February 26, 1975 the defendant and Angle unlawfully distributed 2.42 grains of heroin. ² It will be observed that in neither of those counts was the distributee of the drug identified nor was a distributee identified in any of the other counts of the indictment.

Numerous pretrial motions were filed on behalf of the defendant and he was able to obtain a good deal of information, most of it negative, from government counsel. Counsel for the defendant did not move for a bill of particulars and did not specifically request that the distributee of the drugs mentioned in Counts IV and VII be identified. Counsel did call upon the government to produce any informant involved in the case, and the government responded by saying that no informant was involved.

At the commencement of the trial defense counsel submitted seven written questions that he asked to be propounded by the trial judge to the members of the jury panel in the course of voir dire examination which was to be conducted by the trial judge personally. See Fed.R.Crim.P. 24(a). Four of those questions would have inquired of the members of the panel as to whether they agreed with certain fundamental concepts of American criminal procedure such as the presumption of innocence, burden of proof, and reasonable doubt. The other three questions dealt with other matters, including the possibility of racial prejudice. Cosby is a black man.

The district court indicated that he would interrogate the jury with respect to the ground covered by the last three questions but would not propound the first four because 'I will instruct the jury on what the law is on those matters and I assume they'll follow my instructions,' We will return to this subject in due course.

After opening statements had been made, the government called a number of witnesses, introduced certain exhibits, and rested. Counsel for the defendant then moved for a judgment of acquittal on the ground that there was a fatal variance between the charges against him and the government's proof. That motion was denied. The defendant then rested with the government; the case was argued, and the jury instructed. As indicated, the defendant was found guilty on both of the counts against him.

The defendant contends for reversal that the district court erred in refusing to propound, at least in substance, the first four voir dire questions suggested by defense counsel, ³ and that the district court erred in denying the defendant's motion for a judgment of acquittal.

From the evidence in the case the jury was justified in finding substantially the following facts, which were not disputed except to the extent that defense counsel undertook by cross examination to break down the testimony of government witnesses:

In the winter of 1975 the defendant was selling heroin in St. Louis, and Angle and Mayer were customers of his. Both Angle and Mayer were heroin addicts. Angle had been using the drug for some twenty or twenty-five years; Mayer had been using it for about four years. During January, 1975 Angle and Mayer shared the same apartment in St. Louis, but Angle had moved out shortly before the date alleged in Count VII of the indictment.

During January and February, 1975, Benny L. Green, a detective employed by the St. Louis Police Department, was conducting an undercover operation relating to the illicit drug traffic in the City. Green had dealings with both Angle and Mayer, neither one of whom was aware that Green was a law enforcement officer. Green had no direct dealings with the defendant.

On the occasion mentioned in Count IV of the indictment, Green was able to obtain from the defendant the quantity of heroin mentioned in that count. The defendant dealt directly with Angle who was acting as Green's intermediary; Angle paid for the heroin with money furnished by Green and turned the drug over to Green. Green obtained the heroin mentioned in Count VII of the indictment in substantially the same way in which he had obtained the drug mentioned in Count IV. As to the transaction which resulted in Count VII, Mayer participated to some extent, supplied some of the money that was given to Angle and that went ultimately to the defendant, and received for his own use or resale some of the heroin that Angle acquired from the defendant.

The defendant knew of course that he was selling heroin to Angle, and he probably also knew that Angle was in turn disposing of all or part of the substance by selling or otherwise distributing it to others. Naturally, the defendant did not know that Angle was turning the drugs over to an undercover police officer. Neither did Angle or Mayer.

Defendant's claim of variance is that the indictment charged the defendant and Angle with a joint distribution of heroin to a third person whereas the proof showed that actually the defendant sold the heroin to Angle, and that Angle later 'distributed' the drug to Green. To put it slightly differently, defendant argues that the indictment charges that he and Angle were engaged in a 'joint venture' of selling drugs to third parties whereas there was no such joint enterprise.

In view of the evidence in the case we see no merit in this contention.

Fed.R.Crim.P. 52(a) provides that an error, defect, irregularity, or variance that does not affect substantial rights is to be disregarded. A variance between indictment and proof in a criminal case may prejudice a defendant substantially if it prevents him from presenting his defense properly, if it takes him unfairly by surprise, or if it exposes him to the risk of double jeopardy. But unless such a variance prejudices the defendant in one or more of those ways, it is not fatal. United States v. Good Shield,515 F.2d 1 (8th Cir. 1975), and cases there cited.

We will assume, at least for purposes of discussion, that a variance exists where an indictment charges a joint distribution of heroin by two defendants to an unidentified distributee and the proof shows that the defendant complaining of the variance in fact sold the heroin to the other defendant who in turn passed it on to an ultimate distributee identified in the evidence. In this case, however, we do not see that the assumed variance ⁴ adversely affected any substantial rights of the defendant.

In a prosecution for an unlawful distribution of heroin under § 841(a)(1) the identity of the distributee is not an essential element of the offense charged, and the government is not required to identify the distributee in the indictment. United States v. Martin, 482 F.2d 202 (8th Cir. 1973). The same rule prevailed with respect to indictments returned under then existing prohibitions of sales of narcotics appearing in the Internal Revenue Code of 1954. United States v. Crockett, 421 F.2d 649 (8th Cir. 1970); McWilliams v. United States, 394 F.2d 41 (8th Cir. 1968), cert, denied, 393 U.S. 1044, 89 S.Ct. 643, 21 L.Ed.2d 593 (1969); Hemphill v. United States, 392 F.2d 45 (8th Cir.), cert. denied, 393 U.S. 877, 89 S.Ct. 176, 21 L.Ed.2d 149 (1969); Aggers v. United States, 366 F.2d 744 (8th Cir. 1966), cert. denied, 385 U.S. 1010, 87 S.Ct. 719, 17 L.Ed.2d 548 (1967).

The very fact that the defendant and Angle were charged with what may be construed as a joint distribution to an unnamed distributee was in itself sufficient to put the defendant and his attorney on notice that a third person was involved, and defense counsel must have known in view of the indictment that the third person was in all probability either an informant or a law enforcement officer who would surface in due course. Had counsel filed a motion for a bill of particulars inquiring as to the identities of the distributees in question, that information would in all probability have been supplied. See Aggers v. United States, supra, 366 F.2d at 746--47. But no such motion was filed.

The government did not mislead counsel when it advised that no informant was involved in the case because Green, Angle and Mayer were not informants. Green was a police officer on duty, and Angle and Mayer were drug users and peddlers who did not know that they were dealing with an officer and that they would be prosecuted for their dealings.

With knowledge that no informant was involved, the defense probably knew that the unidentified distributee was an officer. In any event, it is plain from the record that the defendant and his attorney were not surprised at trial when Detective Green took the stand and when he and other witnesses revealed that the heroin that had passed originally from the defendant to Angle had in turn been passed on to...