U.S. v. Dozier, 823
Decision Date | 27 August 1975 |
Docket Number | D,No. 823,823 |
Citation | 522 F.2d 224 |
Parties | UNITED STATES of America, Appellee, v. Jacqueline DOZIER, Appellant. ocket 74-2594. |
Court | U.S. Court of Appeals — Second Circuit |
Sheila Ginsberg, New York City (William J. Gallagher, The Legal Aid Society, New York City), for appellant.
Samuel H. Dawson, Brooklyn, N. Y. (David G. Trager, U. S. Atty., E. D. N. Y., and Paul B. Bergman, Asst. U. S. Atty., of counsel), for appellee.
Before FRIENDLY and FEINBERG, Circuit Judges, and LASKER, District Judge. *
Jacqueline Dozier appeals from conviction after trial on a one-count indictment of aiding and abetting the possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1), in the United States District Court for the Eastern District of New York, Orrin G. Judd, J. Dozier was sentenced under the Youth Correction Act, 18 U.S.C. § 5010(e) to a 90-day period of study and observation. Although appellant does not challenge the sufficiency of the evidence against her, she contends that the trial judge erred in portions of his charge to the jury and that the conviction must be reversed because the verdict was rendered by less than twelve competent jurors, in violation of Rule 23(b) Federal Rules of Criminal Procedure.
The facts are uncomplicated. A friend of appellant's, Mary Lou Dantzler, 1 arranged to sell cocaine to two New York City undercover policemen. According to plan, the officers drove to Dantzler's home on the night of December 11, 1973. Dantzler and Dozier met them on the street. Dantzler told one of the policemen that she had the package but that the "deal" would take place elsewhere. While Dantzler went to get the cocaine, appellant, at Dantzler's request, entered the officers' car and directed them to a movie theater. When they reached the theater, the three went inside and waited approximately fifteen minutes for Dantzler to arrive. While they were waiting, appellant assured her companions that Dantzler did "straight business." When Dantzler arrived, she and one of the officers entered the men's restroom while Dozier and the other officer stood guard outside the door. Shortly afterward, Dantzler and Dozier were arrested. According to appellant's version, Dantzler had asked her, without further explanation, whether she would escort the men to the movie theater. Dozier denied overhearing any conversation outside Dantzler's house, and testified that she did not ask Dantzler where she was going or why, at the time Dantzler went to pick up the cocaine. She maintained that the wait for Dantzler at the theater did not arouse her suspicions and that she did not want to know the reason for the rendezvous in the men's restroom.
Appellant first claims error in the judge's charge on the question of conscious avoidance of knowledge. He stated:
We find nothing objectionable or erroneous in the charge nor in the court's supplemental instructions on the subject. 2 In one of two appeals decided " 'studied ignorance' of a fact may, under decisions of the Supreme Court and of this court, constitute an awareness of so high a probability of the existence of the fact as to justify the inference of knowledge of it." United States v. Joly, 493 F.2d 672, 675 (2d Cir. 1974). 3
last year which approved similar instructions, this court stated:
See also, United States v. Olivarez-Vega, 495 F.2d 827 (2d Cir. 1974). Moreover, Joly specifically held, in rejecting a contention similar to that made here, that an inference of knowledge that the subject of the transaction is narcotics "does not automatically disappear because other evidence arguably points the other way." United States v. Joly, Supra, 493 F.2d at 676. See, also, United States v. Olivarez-Vega, supra, 495 F.2d at 830. Contrary to appellant's argument, neither Joly nor Olivarez-Vega turned on the fact that the narcotics were at some point in the defendants' possession, but pointed to that item as one of the several pieces of evidence which could support an inference of knowledge. United States v. Joly, supra, 493 F.2d at 676; United States v. Olivarez-Vega, supra, 495 F.2d at 830.
Dozier's other objections to the charge are not persuasive. The trial court's instruction on the credibility of a defendant as a witness was not improper, United States v. Tyers, 487 F.2d 828 (2d Cir. 1973); United States v. Mahler, 363 F.2d 673 (2d Cir. 1966); United States v. Sullivan,329 F.2d 755 (2d Cir.) Cert. denied, 377 U.S. 1005, 84 S.Ct. 1943, 12 L.Ed.2d 1054 (1964) and, particularly in the context of the entire charge, was not prejudicial. Nor did the trial court transgress its legitimate role by its brief comments on the evidence. United States v. Touraine, 428 F.2d 865, 869 (2d Cir. 1970).
Dozier's final point is based on a note given to the trial judge after the jury had been deliberating for a day. The note stated:
(Emphasis in original.)
On receipt of the note the judge recalled the jurors and instructed them as follows:
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