U.S. v. Creamer

• Decision Date: 29 March 1977
• Docket Number: No. 76-1480,76-1480
• Citation: 555 F.2d 612
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Terrence CREAMER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 612

555 F.2d 612

UNITED STATES of America, Plaintiff-Appellee, v. Terrence CREAMER, Defendant-Appellant.

No. 76-1480.

United States Court of Appeals Seventh Circuit.

Argued Feb. 7, 1977.

Decided March 29, 1977. ^*

Rehearing and Rehearing En Banc Denied May 16, 1977.

Julius Lucius Echeles, Chicago, Ill., for defendant-appellant.

Samuel K. Skinner, U. S. Atty., John L. Sullivan, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CUMMINGS, PELL and TONE, Circuit Judges.

CUMMINGS, Circuit Judge.

In December 1975, the defendant, Terrence Creamer, a Chicago police officer, was indicted along with Waroon Netisingha and Lee Martin on one count of conspiracy to distribute heroin in violation of 21 U.S.C. § 846, and three substantive counts of heroin distribution in violation of 21 U.S.C. § 841(a) (1). Both Netisingha and Martin entered guilty pleas prior to Creamer's trial, but only Martin offered testimony at the trial. ¹ After a three-day trial beginning on March 30, 1976, the jury found defendant guilty on all four counts and Creamer received 15-year concurrent sentences on each count. This appeal ensued. We affirm.

Attacks on Evidence as Insufficient in Law

Defendant argues that the evidence was insufficient as a matter of law to support the charges in the indictment. ² Creamer first maintains that there was a fatal variance between the indictment as supplemented by the Government's answers to his bill of particulars. The three substantive counts alleged distribution to named agents while the proof, as the Government concedes, demonstrated that Creamer had distributed heroin only to Martin.

Historically, the "fatal variance" doctrine arose in order to provide a defendant with notice of the charges against him so that he could intelligently marshall his defense and to protect him against a subsequent prosecution for the same offense. United States v. Cassell, 452 F.2d 533, 536 (7th Cir. 1971). Creamer's reliance on United States v. Raysor, 294 F.2d 563 (3d Cir. 1961) is misplaced. In Raysor, a two-count substantive indictment alleged a narcotics sale to one Dillworth, a federal narcotics agent, although the evidence showed the actual sale was to one Charity, a narcotics addict informer employed by the federal narcotics officer. This " manifestly sloppy" indictment technically did not prevent a subsequent prosecution of the sale to Charity and did not fully apprise the defendants of the charges against them. Here the indictment adequately notified Creamer that the Government would proceed against him on a joint-venture basis. Count I of the indictment, the conspiracy count, explicitly incorporated substantive Counts II-IV as overt acts in furtherance of the conspiracy. Moreover, the Government's answer to defendant's bill of particulars query on who distributed the heroin in Counts II-IV correctly recited that "(u)nder the principles of law, all three defendants distributed the heroin." United States v. Schennault, 429 F.2d 852, 854 (7th Cir. 1970). Thus defendant received fair notice of the charges against him and faced no double jeopardy risk.

Defendant next challenges the sufficiency of the evidence adduced to support a conspiracy/joint-venturer theory. Taking Martin's testimony as true, defendant argues that Martin was an independent contractor, purchasing drugs from Creamer and disposing of them totally as he pleased without any regard for a joint objective. A simple buyer/seller relationship cannot be transformed into a conspiracy solely on the basis of one transaction. United States v. Braico, 422 F.2d 543, 544 (7th Cir. 1970), certiorari denied,398 U.S. 912, 90 S.Ct. 1712, 26 L.Ed.2d 74. Of course, this conclusion results theoretically from the premise that no agreement to achieve ends beyond the one transaction can be inferred from an isolated sale. But even if Martin and Creamer were buyer and seller, if sufficient evidence exists to prove a concert of action, a conspiracy will have been made out as a matter of law. United States v. Varelli, 407 F.2d 735, 748 (7th Cir. 1969).

Taking the testimony in the light most favorable to the Government, as we must, Martin's testimony along with the corroborative surveillance evidence of virtually all the meetings between this case's cast of characters amply supports the verdict that Creamer, Netisingha and Martin conspired to distribute heroin as joint-venturers. Martin's testimony details a $500 sale of a quarter ounce between Martin and Creamer on November 4, 1975. Part of this heroin lot was cut and sold to an Illinois Bureau of Investigation Special Agent, Robert Johnson, working undercover for the Federal Drug Enforcement Administration. Martin told Johnson and DEA Agent Robert Fanter that his heroin had come from a "Chicago copper (Creamer)."

The agents expressed interest in buying two ounces of heroin from "the cop" and Martin said he would try to arrange it. On November 6, 1975, Martin called Agent Johnson, telling him that Martin had met with "the cop" and that Creamer's $2,000 an ounce price was firm. On November 7, 1975, arrangements were completed and the initial part of the deal was transacted in a parking lot in Chicago. The agents displayed the $4,000 agreed amount to Martin, and he left to check with "Terry" (Creamer) how the deal was to transpire. Martin met with Creamer who suggested a method of exchange of the heroin for the cash. Martin returned to the agents who rejected the plan because it required them to "front" the money. Martin returned to Creamer to ask for modified instructions, and two more plans of exchange, which Martin represented as being put forward by "the cop" or by "Terry," were successively offered to and rejected by the agents. The fourth plan was acceptable since Martin left his son with the agents as security for their cash. Martin gave the cash to Netisingha in Creamer's presence, received the heroin and delivered it to the agents.

Creamer also met with Martin on November 14, two days after the agents had asked Martin for more heroin. The agents met with Martin at Bubba's Tavern where Creamer called and told Martin to go to a YMCA. Creamer appeared at the YMCA and motioned for Martin to follow him to the locker room. Netisingha arrived with the heroin and Martin gave him $4,000 cash for a package containing 50.65 grams of pure heroin.

On December 4, the agents asked Martin about buying a pound of heroin and flashed a $40,000 roll at him. Martin met with Creamer on the same day and discussed a per pound price. Martin then told the agents that $40,000 would buy 20 ounces of heroin. The next day Martin picked up a sample at Creamer's hot dog stand to show the agents. Later that day, Martin received a call at Bubba's Tavern from Creamer telling him that 18 ounces of heroin would be at the YMCA. Martin and the undercover agents went to the YMCA and Creamer arrived shortly thereafter. Johnson exchanged $37,000 with Netisingha for the heroin in the locker room. Contemporaneously, Johnson observed Creamer in the locker room area.

Once outside the YMCA, Martin and Netisingha were arrested, with Creamer being taken into custody shortly thereafter at his hot dog stand. In a search incident to Creamer's arrest, the arresting officer found the paper Martin had previously given Creamer with the phone numbers for Bubba's Tavern and Martin's home. After being advised of his rights, Creamer stated, "I knew something was coming down," and in another conversation Creamer said, "I don't want to be a bother after what I have done," although he later denied making these statements.

With credibility determinations taken in favor of the Government, the evidence of the existence of a joint venture is overwhelming. Indeed, defendant concedes the evidence supports a conspiracy, claiming in his reply brief only that there was sufficient evidence to find Martin was on a fling of his own (R. Br. 7). We disagree that the evidence could support an independent contractor theory and, in any event, defendant's concession conclusively forecloses a substantial evidence attack. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680.

Nevertheless, defendant maintains it was error not to offer an instruction that if the jury found Martin to be an independent contractor, Creamer would have had to be acquitted. A criminal defendant is entitled to have a jury instruction on any defense which provides a legal defense to the charge against him and which has "some foundation in the evidence, 'even though the evidence may be weak, insufficient, inconsistent, or of doubtful credibility.' " United States v. Hillsman, 522 F.2d 454, 459 (7th Cir. 1975). But a jury instruction is only needed if the evidence raises a jury question. United States v. Grimes, 413 F.2d 1376, 1378 (7th Cir. 1969). And in this context, if it cannot be said that a reasonable person "might conclude" the evidence supports a certain instruction, then the instruction need not go to the jury. Cf. United States v. Feinberg, 140 F.2d 592, 594 (2d Cir. 1944) (L. Hand, J.), certiorari denied, 322 U.S. 726, 64 S.Ct. 943, 88 L.Ed. 1562.

Defendant points to four widely separated pages of the transcript which reveal that although Creamer told Martin the price to the agents for the December 5 purchase would be $30,000, Martin in fact quoted a price of $37,000, intending to keep the extra $7,000 for himself. At best these transcript references show that Martin intended to cheat Creamer by skimming a part of the purchase price. But there is no testimony whatsoever to support the theory that Martin purchased the December 5 heroin from Creamer and then delivered it to the agents apart from Creamer's directions. Thus the instruction was properly refused. United States v. Tritton, 535 F.2d 359, 361 (7th Cir. 1976). ³

The Jury's Consideration of Equivocal Inculpatory Statements

Defendant also argues that the equivocal nature of the admissions he made after arrest...