U.S. v. Craig

• Decision Date: 23 September 1975
• Docket Number: No. 75-1013,75-1013
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John CRAIG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 29

522 F.2d 29

UNITED STATES of America, Plaintiff-Appellee, v. John CRAIG, Defendant-Appellant.

No. 75-1013.

United States Court of Appeals Sixth Circuit.

Argued June 12, 1975.

Decided Sept. 23, 1975.

Joe A. Dycus, Asst. Federal Public Defender, Memphis, Tenn., Travis Buckley, Laurel, Miss., for defendant-appellant.

Thomas F. Turley, Jr., U. S. Atty., W. Hichman Ewing, Jr., Asst. U. S. Atty., Memphis, Tenn., for plaintiff-appellee.

Before WEICK, MILLER and ENGEL, Circuit Judges.

WILLIAM E. MILLER, Circuit Judge.

This appeal is from a jury conviction on a forty-eight count indictment charging defendant with possession of controlled substances with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Defendant was sentenced to ten years' imprisonment.

The relevant facts may be summarized as follows. One Davis, agreeing to cooperate with the government in an undercover capacity after his arrest on a stolen securities charge, was assigned to occupy a rented apartment in Memphis, Tennessee. The apartment was equipped with electronic monitoring devices installed in the telephone and at other places in the apartment.

Davis established contact, through a series of meetings, with one Paul Patterson who was subsequently a co-defendant with defendant Craig. The initial purpose of this contact was to attempt to obtain counterfeit currency from Patterson, at the request of the Secret Service. In the course of these meetings it was learned that Patterson claimed to be able to supply drugs. Davis then began attempts, in cooperation with federal narcotics agents, to negotiate a drug purchase from Patterson. At one point in the negotiations Davis visited Patterson's farm in Oxford, Mississippi, where he was shown a room in which a number of persons were present and a large quantity of narcotics was displayed. On this occasion, Davis talked with an unidentified man concealed behind a curtain in the room and armed with a shotgun. Later, an agreement was reached for a purchase of narcotics which Patterson was to deliver to Davis' apartment in Memphis.

At the appointed time, Patterson arrived at Davis' apartment in defendant Craig's pick-up truck. Craig remained in the truck as Patterson carried a closed box containing drugs into the apartment. Federal agents in the apartment, posing as buyers, opened the box of drugs. They then transmitted a prearranged signal to other agents in cars stationed near the apartment. When these officers in their unmarked vehicles moved toward the apartment, Craig suddenly departed the scene in the truck at a high rate of speed. In the process, he almost lost control of the truck, striking another truck and finally making his escape on foot when his vehicle became mired in mud. Approximately two years later, he was apprehended at his parents' home in Mississippi. Until the encounter at Davis' apartment, the federal agents had never seen Craig nor had his name been mentioned in the presence of Davis or the federal agents.

Both Craig and Patterson were indicted for illegal possession of a controlled substance with intent to distribute. The indictment contained no charge of conspiracy between Patterson and Craig. Patterson pleaded guilty and Craig not guilty. Craig did not testify at his own trial nor offer any proof. While Patterson did not testify at Craig's trial, numerous accounts by Davis and other witnesses of statements made by Patterson were admitted in evidence, over defendant's objections, under the co-conspirator exception to the hearsay rule. ¹ The court instructed the jury, when such objections were made and in its final charge, that it must first find, from independent evidence, that a conspiracy existed between Patterson and Craig before it could consider the hearsay testimony of Davis and others concerning Patterson's statements. At the close of the government's case, defendant moved for a directed verdict, and, in the alternative, for a mistrial on the ground that no conspiracy had been proved and that he had been denied a fair trial as a result of the admission of hearsay evidence. Both motions were denied. The jury returned a verdict of guilty on all counts.

While defendant raises a number of issues on appeal, the most critical assignments of error are that the court erred in admitting testimony of Patterson's extrajudicial statements and that there was insufficient competent evidence to convict Craig.

Under the co-conspirator exception to the hearsay rule, accounts of extrajudicial statements may be admitted if it is established by evidence other than hearsay that the defendant was involved in a criminal conspiracy with the declarant, Hitchman Coal and Coke Co. v. Mitchell, 245 U.S. 229, 38 S.Ct. 65, 62 L.Ed. 260 (1917); United States v. Talbot, 470 F.2d 158 (6th Cir. 1972), whether or not the indictment contains a formal conspiracy count. United States v. Townes, 512 F.2d 1057 (6th Cir. 1975); United States v. Perna, 491 F.2d 253 (6th Cir.), Cert. denied, 417 U.S. 934, 94 S.Ct. 2646, 41 L.Ed.2d 237 (1974); United States v. Talbot, 470 F.2d 158 (6th Cir. 1972).

To permit consideration of hearsay, there must be sufficient independent evidence apart from the hearsay to establish a conspiracy or joint criminal venture between the declarant and the defendant. ² United States v. Townes, 512 F.2d 1057 (6th Cir. 1975); United States v. Oliva, 497 F.2d 130 (5th Cir. 1974); United States v. Perna, 491 F.2d 253 (6th Cir.), Cert. denied, 417 U.S. 934, 94 S.Ct. 2646, 41 L.Ed.2d 237 (1974); United States v. Lucido, 486 F.2d 868 (6th Cir. 1973); United States v. Talbot,470 F.2d 158 (6th Cir. 1972).

A careful examination of the record fails to convince us that...