U.S. v. Hassell

• Decision Date: 07 March 1977
• Docket Number: Nos. 76-1272,76-1290 and 76-1303,s. 76-1272
• Citation: 547 F.2d 1048
• Parties: 1 Fed. R. Evid. Serv. 607 UNITED STATES of America, Appellee, v. Leonard HASSELL, Appellant. UNITED STATES of America, Appellee, v. Kenneth McINTOSH, Appellant. UNITED STATES of America, Appellee, v. Robert McINTOSH, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1048

547 F.2d 1048

1 Fed. R. Evid. Serv. 607

UNITED STATES of America, Appellee, v. Leonard HASSELL, Appellant.

UNITED STATES of America, Appellee, v. Kenneth McINTOSH, Appellant.

UNITED STATES of America, Appellee, v. Robert McINTOSH, Appellant.

Nos. 76-1272, 76-1290 and 76-1303.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 14, 1976.

Decided Jan. 10, 1977.

Certiorari Denied March 7, 1977.

See 97 S.Ct. 1338.

Paul C. Hetterman, St. Louis, Mo., for appellants; Robert A. Hampe and Stuart Cofman, St. Louis, Mo., on brief.

David M. Rosen, Asst. U.S. Atty., St. Louis, Mo., for appellee; Barry A. Short, U.S. Atty., St. Louis, Mo., on brief.

Before VAN OOSTERHOUT, Senior Circuit Judge, BRIGHT and WEBSTER, Circuit Judges.

WEBSTER, Circuit Judge.

Leonard Hassell, Kenneth McIntosh, and Robert McIntosh appeal from judgments of conviction entered following a jury trial at which they were found guilty of various drug-related offenses. ¹ The primary issue on this appeal is whether the District Court ² erred in admitting into evidence certain hearsay statements by alleged coconspirators. Appellants also contend that a tape recording was admitted into evidence with insufficient foundation, and that the Court erred in permitting the jury to see transcripts of the tape recording.

The government's case in chief was based in large measure upon the testimony of Special Agent Vernon Ankton, who testified as to what he observed and what was said in his presence. He testified to the following facts: On October 1, 1975, Ankton informed appellant Hassell that he wanted to purchase some heroin. Ankton, Hassell, a woman named Dicie, and a female government informant then drove to the home of appellant Robert McIntosh. Ankton gave Hassell $300 which he took with him to the house. Kenneth McIntosh, nephew of Robert, answered the door and let Hassell in. Soon Hassell came out and informed Ankton that Kenneth was getting the package ready and would bring it out. Shortly thereafter Kenneth emerged from the house and spoke with Hassell. Hassell then told Ankton that Kenneth did not have enough heroin to fix up the package because the heroin was locked up and Robert's wife had left with the key. He returned Ankton's money.

Later that afternoon, Ankton, Hassell, and Dicie drove back to Robert McIntosh's home. Hassell took $325 from Ankton and went into the house. While they were alone in the car, Dicie told Ankton that Hassell had purchased heroin for other people before and that Kenneth would not "burn" him. Soon they saw appellant Robert McIntosh emerge from the house and drive away. After waiting in the car approximately fifty minutes, Ankton walked to the house. Kenneth McIntosh opened the door and told Ankton the package was almost ready and that Hassell would be down in about ten minutes. Ankton went back to the car and returned to the house fifteen minutes later. This time Kenneth answered the door and informed Ankton that Hassell was on the telephone. A woman then came to the door and identified herself as Robert's wife. She told Ankton that Robert had left with the money to go pick up a package and take care of some business, and that he should have been back already. She further stated that if she had $300 she would give Ankton his money back, but that she did not have $300. She said she did not usually talk to people about narcotics, but that Ankton could come into the house and wait for Robert. Ankton refused, and the woman left the door, saying she was going to the telephone. She returned to the door and said Robert had called and would be home in a few minutes.

Ankton returned to the car for fifteen minutes and then came back to the house. Hassell and Kenneth McIntosh came to the door. Hassell said Robert had just called and should be home soon. Ankton and Dicie then went into the house with Hassell and Kenneth. Soon the door opened and Ankton heard someone enter the house. Kenneth said, "Robert's back." Ankton looked outside and saw the car Robert had left in earlier. Shortly thereafter Kenneth gave Ankton a package of heroin.

Approximately one month later, on November 7, 1975, Agent Ankton purchased another package of heroin from Kenneth McIntosh. Appellants were thereafter indicted and convicted in a jury trial.

I

Appellants contend that it was prejudicial error to admit the hearsay statements of Mrs. Robert McIntosh and Dicie. They contend that the government failed to establish the declarants' participation in the conspiracy by independent evidence, and that their statements were therefore not admissible as exceptions to the hearsay rule. ³

In order for a statement by a coconspirator to be admissible against other conspirators, it must first be established that a conspiracy existed and that at the time the statement was made the declarant had joined the conspiracy by express agreement to cooperate or by willful participation in it. See United States v. Rich, 518 F.2d 980, 984 (8th Cir. 1975), cert. denied, 427 U.S. 907, 96 S.Ct. 3193, 49 L.Ed.2d 1200 (1976); United States v. Overshon, 494 F.2d 894, 896 (8th Cir.), cert. denied,419 U.S. 853, 95 S.Ct. 96, 42 L.Ed.2d 85 (1974). See also Fed.R.Evid. 801(d)(2)(E). Such participation may be established not only by evidence of acts or conduct of the declarant, but also by statements which are made in furtherance of the conspiracy and hence are in the nature of verbal acts. See United States v. Overshon, supra, 494 F.2d at 898; United States v. Burke, 495 F.2d 1226, 1232 (5th Cir.), cert. denied, 419 U.S. 1079, 95 S.Ct. 667, 42 L.Ed.2d 673 (1974).

Proof of the existence of a conspiracy is often a complex matter in terms of court presentation. A witness frequently has testimony which helps to establish the existence of a conspiracy and also evidence which may be used against particular alleged coconspirators once their participation has been established. The District Court has broad discretion to permit the government to present its evidence against individual conspirators in a logical order upon its representation that it will establish through subsequent evidence the requisite participation. See United States v. Williams, 529 F.2d 557, 559 (8th Cir.), cert. denied, 426 U.S. 908, 96 S.Ct. 2232, 48 L.Ed.2d 834 (1976); United States v. Kelley, 526 F.2d 615, 618 (8th Cir. 1975), cert. denied, 424 U.S. 971, 96 S.Ct. 1471, 47 L.Ed.2d 739 (1976); Brinlee v. United States, 496 F.2d 351, 354 (8th Cir.), cert. denied, 419 U.S. 878, 95 S.Ct. 142, 42 L.Ed.2d 118 (1974). Failure to so tie in a named conspirator will result in reversal. ⁴

A

We review first the independent evidence against Robert McIntosh. On October 1, he was seen leaving his house shortly after Hassell had entered the house with $325 to make a purchase of heroin. Earlier attempts by Hassell and Agent Ankton to obtain heroin at Robert's home through Kenneth McIntosh had failed. Ankton was admitted to the house, but he was unable to complete the purchase. Robert was observed returning shortly after 7 p. m., and at 7:30 p. m. Kenneth was able to deliver the heroin to Ankton and Hassell.

The testimony of Ankton, if believed, was sufficient to establish that Hassell, Kenneth McIntosh and Robert McIntosh were engaged in a conspiracy to distribute heroin. The real dispute is whether the government established that Dicie and Mrs. McIntosh had also joined the conspiracy; if they had joined the conspiracy, their damaging statements against Robert, Kenneth and Hassell were properly admitted as statements of coconspirators. Fed.R.Evid. 801(d)(2)(E).

Once the existence of a conspiracy has been established by satisfactory proof, a particular individual's participation may be established by evidence that otherwise seems light. United States v. Verdoorn, 528 F.2d 103, 105 (8th Cir. 1976); United States v. Baumgarten, 517 F.2d 1020, 1026 (8th Cir.), cert. denied, 423 U.S. 878, 96 S.Ct. 152, 46 L.Ed.2d 111 (1975); United States v. Overshon, supra, 494 F.2d at 896; United States v. Hutchinson, 488 F.2d 484, 490 (8th Cir. 1973), cert. denied, 417 U.S. 915, 94 S.Ct. 2616, 41 L.Ed.2d 219 (1974). Such proof may be established by circumstantial evidence. United States v. Overshon, supra, 494 F.2d at 895-96; Isaacs v. United States, 301 F.2d 706, 725 (8th Cir.), cert. denied, 371 U.S. 818, 83 S.Ct. 32, 9 L.Ed.2d 58 (1962).

We have little difficulty in concluding that there was sufficient evidence to support the District Court's ruling permitting use of Dicie's statements. First, she was present when the first arrangements were made to go from Hassell's house to Robert's house to buy heroin. Dicie accompanied Ankton and Hassell on both trips, and she was present in Robert's house when the purchase was made. Mere association with those engaged in an illegal enterprise does not create an inference of guilt, United States v. Frol, 518 F.2d 1134, 1137 (8th Cir. 1975); United States v. Quintana, 508 F.2d 867, 880 (7th Cir. 1975), nor does mere knowledge of the existence of a conspiracy or even acquiescence therein alone constitute a person a conspirator. There must be some element of cooperation or agreement to cooperate. See United States v. Amato, 495 F.2d 545, 550 (5th Cir.), cert. denied, 419 U.S. 1013, 95 S.Ct. 333, 42 L.Ed.2d 286 (1974); Miller v. United States, 382 F.2d 583, 587 (9th Cir. 1967), cert. denied, 390 U.S. 984, 88 S.Ct. 1108, 19 L.Ed.2d 1285, rehearing denied, 391 U.S. 971, 88 S.Ct. 2037, 20 L.Ed.2d 888 (1968). When Ankton became anxious after the purchase was successively delayed, Dicie reassured him by saying that Hassell had purchased heroin for other people and that Kenneth would not "burn" him. This statement was a verbal act in furtherance of the conspiracy and we hold that, taken with other circumstantial evidence of Dicie's willful participation, it was enough to constitute her a conspirator and make her statements to Ankton admissible against the others. See United States v. Burke, su...