U.S. v. Harper
| Decision Date | 01 August 1978 |
| Docket Number | No. 77-1181,77-1181 |
| Citation | 579 F.2d 1235 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Maurice HARPER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Vernon E. Lewis, Asst. U. S. Atty., Kansas City, Kan. (James P. Buchele, U. S. Atty., and Douglas B. Comer, Asst. U. S. Atty., Topeka, Kan., with him on the brief), for plaintiff-appellee.
David J. Phillips, Asst. Federal Public Defender, Kansas City, Kan. (Leonard D. Munker, Federal Public Defender, Kansas City, Kan., with him on brief), for defendant-appellant.
Before SETH, Chief Judge, and McWILLIAMS and LOGAN, Circuit Judges.
This is an appeal from a conviction by a jury upon a charge of aiding and abetting the distribution of heroin, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The trial judge sentenced defendant-appellant Maurice Harper to a 12-year term, with a special parole term of 6 years, the sentence to be served consecutively to a previously imposed sentence under which defendant was incarcerated at the time of the trial.
Harper raises three issues on appeal: 1) the evidence is insufficient to support the verdict; 2) the court committed "plain error" in instructing the jury on the necessary elements of the offense; and 3) the refusal of a government witness to answer certain questions denied Harper his constitutional rights to confront witnesses against him and of due process.
The evidence adduced at trial showed that agents of the Drug Enforcement Administration (DEA) thought defendant Harper was dealing in drugs. They utilized a confidential informant, Richard Freeman, to attempt a controlled buy of heroin. The agents searched Freeman and his car to insure both were free of drugs, gave Freeman $600 and sent him to Harper's clothing store. Freeman waited outside until defendant Harper arrived and then both went inside. DEA agents maintained surveillance of all movements of the confidential informant from that time until many hours later when Freeman brought them the heroin.
While Freeman was inside the store with Harper, one Michael Hayden entered the shop and then a few minutes later left it. Freeman and Harper remained together the rest of the afternoon and evening, except during one period when Freeman dropped Harper off at a barbershop and later picked him up again. During that time they made trips to a bonding company (with Harper's father-in-law), visited the home of Harper's sister three times, drove to an apartment in Kansas City, Missouri, (with Hayden) and visited Trinity Lutheran Hospital.
Relevant to whether the evidence was sufficient to sustain the verdict, the surveillance indicated that Freeman and Harper went to defendant's sister Janice Harper's residence at about 6:30 p. m. Approximately 45 minutes later Hayden arrived at that residence. Ten minutes later Hayden, Freeman and defendant came out, drove to the Kansas City, Missouri, apartment where they stayed for about 20 minutes before they came out together and drove back to the residence of Janice Harper. After another 10 minutes, Hayden left. Then about 8:30 p. m. defendant and Freeman were observed leaving the residence and driving to Trinity Lutheran Hospital. After entering and leaving the hospital they again returned to defendant's sister's residence, where 15 minutes later Hayden showed up and stayed for about 15 minutes before driving away again. Ten minutes after this last departure of Hayden, Freeman came out, drove to the pre-arranged meeting place and handed DEA Agent Dempsey a substance which tested out as containing heroin.
The government's case consisted of the testimony by the surveillance agents about the controlled buy of the drug, proof of the tests on the drug, testimony of Hayden (who pleaded guilty to the charge of selling heroin), and the abbreviated testimony of Freeman. Defendant's evidence consisted of two individuals who were at the Janice Harper residence, one stating that he did not see defendant and Hayden enter any room together but did see Hayden and Freeman come out of a hallway together. The other stated that she sat on a couch with defendant Harper for several hours at the residence, that he never left the room, but she did see Hayden, Freeman and Janice Harper go into a bedroom together.
Hayden's testimony was that Harper introduced him to Freeman, and outside Freeman's presence asked him to find some heroin which Hayden understood was to be for Freeman. Hayden took money from the defendant, part of which was used to buy the heroin which he turned over to defendant Harper. He did not discuss the drug buy with Freeman because he did not know him, and did not talk to people he did not know. The morning of the trial he pleaded guilty to the charge of selling heroin to Freeman, but had not been sentenced at the time he was testifying.
Freeman testified that he knew the defendant, and on the date in question was working as an undercover informant for Agent Dempsey and the DEA. In that capacity he purchased a quarter of an ounce of heroin in a controlled drug buy, and turned it over to the agent. But when asked from whom he purchased the heroin, he refused to answer. He explained that because of a recent religious conversion he would talk about himself and his own actions, but would not testify either for or against anyone else. On cross-examination he admitted to having been a drug user and seller, and answered other questions about himself, but made the same refusal to indicate from whom he purchased the heroin.
The essential elements of aiding and abetting were summarized in Roth v. United States, 339 F.2d 863, 865 (10th Cir. 1964):
To be an aider and abetter requires that a defendant "associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed." The proof must establish the commission of the offense by someone and the aiding and abetting by the defendant so charged . . . (footnotes omitted).
In determining whether the evidence is sufficient to support the verdict, we must consider it in the light most favorable to the government, together with any inferences which fairly may be drawn therefrom. Mason v. United States, 408 F.2d 903 (10th Cir.), Cert. denied, 400 U.S. 993, 91 S.Ct. 462, 27 L.Ed.2d 441 (1971). Direct evidence, as distinguished from circumstantial, is not essential to a criminal conviction. McCarty v. United States, 409 F.2d 793 (10th Cir.), Cert. denied, 396 U.S. 836, 90 S.Ct. 95, 24 L.Ed.2d 87 (1969).
Here, even though much of the evidence was circumstantial, we hold it was sufficient to support Harper's conviction. While Freeman's testimony was limited, he did state that he made a controlled buy on the date in question. The proof was sufficient from the agents' testimony that Freeman took funds of the DEA and bought heroin from one or more of the persons with whom he came in contact during that surveillance period. Hayden...
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