U.S. v. Heath

• Citation: 580 F.2d 1011
• Decision Date: 31 August 1978
• Docket Number: Nos. 76-2158,s. 76-2158
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Vernon HEATH, Donald Ralph Babb, Sharon Rose Babb, Deborha Gayle Hyams, Ray Richmond, Alice Jean Powell, Ted Richardson, and Tony Richardson, Defendants-Appellants. to 76-2165.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1011

580 F.2d 1011

UNITED STATES of America, Plaintiff-Appellee, v. James Vernon HEATH, Donald Ralph Babb, Sharon Rose Babb,

Deborha Gayle Hyams, Ray Richmond, Alice Jean

Powell, Ted Richardson, and Tony

Richardson, Defendants-Appellants.

Nos. 76-2158 to 76-2165.

United States Court of Appeals, Tenth Circuit.

Argued March 16, 1978.

Decided June 30, 1978.

Rehearing Denied Aug. 31, 1978.

John E. Green, Acting U. S. Atty., Oklahoma City, Okl., for plaintiff-appellee.

Rick Chew, Oklahoma City, Okl. (J. Andrew Williams, Legal Intern, on the brief), for appellants James Vernon Heath and Donald Ralph Babb.

Michael C. Salem of Rawdon, Salem & McCoy, Norman, Okl., for appellants Sharon Rose Babb, Deborha Gayle Hyams, Ray Richmond, Ted Richardson and Tony Richardson.

Jack S. Dawson, Oklahoma City, Okl., for appellant Powell.

Before SETH, Chief Judge, and DOYLE and McKAY, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

The defendants-appellants James Vernon Heath, Donald Ralph Babb, Sharon Rose Babb, Deborha Gayle Hyams, Ray Richmond, Ted Richardson, Tony Richardson and Alice Powell have here appealed convictions on heroin charges from the judgments entered by the United States District Court for the Western District of Oklahoma.

Count I is the conspiracy charge in which 20 people are alleged to have conspired to distribute heroin, contrary to 21 U.S.C. § 108. Named in this count are six unindicted co-conspirators.

Count II charges that on or about the 29th day of September 1975, James Vernon Heath, Roger Sanders and Earl Jones knowingly and intentionally imported approximately five ounces of heroin, a Schedule I controlled substance, in violation of 21 U.S.C. § 952.

Count III charges that on or about the 29th day of September 1975, James Vernon Heath knowingly and willfully distributed to Barry Bruce Bolding approximately three ounces of heroin, a Schedule I controlled substance, in violation of 21 U.S.C. § 841(a)(1).

The remaining counts of the indictment charged substantive offenses against Roger Sanders and Jackie Hoffman in Count IV, Donald Ralph Babb and Sharon Rose Babb in Count V, Alice Powell in Count VI, Ted Richardson in Count VII, Tony Richardson in Count VIII, John Cahill in Count IX, Ray Richmond in Count X, Laura Talkington in Count XI, Robert Leroy Quirk in Count XII and Emit Powell in Count XIII. The substantive offenses described particular sales.

Two defendants, Laura Talkington and Robert Leroy Quirk, were acquitted. Mistrials were granted as to Earl Jones, Tammy and Deborah Ramsey, and Connie and Conrad Janko. In those instances the jury was unable to agree as to the guilt of these persons of conspiracy.

Appellant Heath was convicted on three counts, namely, the general conspiracy count, the importation count and the distribution count described above. The Babbs, Donald and Sharon, were convicted of conspiracy and of distribution. Ted and Tony Richardson were convicted of conspiracy and of distribution, as was Alice Powell. Appellants Ray Richmond and Deborha Hyams were convicted of conspiracy.

The theory of the prosecution's case was that Vernon Heath was the leader of the conspiracy, which involved continuous heroin importation from Mexico and organized distribution. The other persons named in the conspiracy, according to the further theory of the government, were engaged in selling heroin at wholesale and retail levels.

Much of the testimony was given by Mary Jo Hulsey, who was given immunity In her testimony, Mary Jo Hulsey described a number of trips to Mexico and back, in fact, 50 such trips. She started making these trips in the summer of 1975 for Earl Jones because she owed him money. On the first trip Roger Sanders, one of the absent indicted persons, gave her a package of heroin and told her to place it inside her body and carry it across the border. She followed this routine over a considerable period of time. In each instance, she would carry about $6,000 to Mexico and would there obtain four ounces of raw heroin. Throughout 1975, she worked for Roger Sanders, getting the money from Roger, who told her that it was Heath's money. On two occasions she said that Heath gave the money to her himself. She also said that Roger Sanders and Heath were partners, but that Heath controlled the financial aspects of the partnership.

and who, although named in the indictment, was not charged, and Barry Bolding, who was also given immunity in exchange for his testimony.

When she returned from Mexico, she brought the heroin to Roger, who cut it, after which she would sometimes deliver some to both Heath and Jones. She said that Roger had told her not to tell Jones that Heath was getting some of the heroin. On one occasion, according to Ms. Hulsey, Donald Babb and Eddie Lawson came to a motel and received some of the heroin from Roger. She said that she knew nothing about the Powells, the Hyamses, the Ramseys, Richmond or the Jankos.

She told the court and jury about her arrest in June 1976, by an Oklahoma policeman, Jack Hill, who was in charge of the investigation. The arrest was for possession of heroin with intent to distribute, but, according to her, Hill did not file any charges against her. She also testified that she had a long acquaintanceship with Earl Jones and also that she transported the heroin across the border at the behest of and under the direction of Roger Sanders; that Heath did not direct her in any dealings.

A controversial part of her testimony was a statement which she gave more or less spontaneously to the lawyer for Earl Jones, who was then cross-examining her, that she had delivered some cocaine to his law office.

Defendant Heath urges that her cross-examination revealed a certain amount of inconsistency with respect to the extent of her knowledge of dealings with Vernon Heath.

Another witness who was given immunity was Barry Bolding. He testified that he was a heroin user starting in 1974, and said also that he obtained his heroin from one Billy Baker, who was now dead, who got it from Vernon Heath. Later, Baker introduced him to Heath in order for him (Bolding) to be able to pick up the heroin from Heath. Bolding said that he frequently visited Heath's apartment and bought heroin from him, and on some of these occasions Heath would have Ray Richmond, who resided with him, go get the heroin. Finally, Bolding became a "wholesaler" for Heath, and he said that the Babbs, the Powells and the Hyamses were similarly engaged. Bolding further testified that when Heath went out of town he would tell him that he could get his heroin from Donald Babb, who was Heath's nephew. He told about an occasion when he had gone to the Babbs' apartment and bought heroin from them. Bolding testified about setting up an agreement to buy with Bobby Hyams. This involved three ounces of heroin and it also involved calling Deborha Hyams and asking her to bring the heroin to his apartment. This transaction was corroborated by narcotics officers who were with Bolding at the time. Deborha Hyams was arrested on that occasion and the three ounces of heroin were revealed in connection with the search of her car. Bolding also testified that he had purchased one-fourth ounce of heroin from Alice Powell, having arranged the purchase with her husband. Bolding said that he was not acquainted with Earl Jones, the Richardsons or the Jankos.

Melody Bolding, wife of Barry, testified to Ray Richmond having hidden heroin for Jerry Gray testified to having sold heroin for Billy Baker and to accompanying Baker when he went to Heath's apartment for the purpose of paying for the drugs or to pick up heroin. Gray said that he had never actually observed these transactions because Baker and Heath would go upstairs. Gray further testified that Baker worked for Heath and lived in McCloud at this time. He also said that he had heard rumors that Billy's death had been murder.

the benefit of Heath and to receiving heroin from Richmond and paying Heath for it.

Johnny Hopcus testified that he was a purchaser of heroin from Barry Bolding and from Donald and Sharon Babb when the latter lived in McCloud. He testified to the fact that the Babbs' source of heroin was Heath. He also said that Billy Baker, the Boldings, Emit Powell and Bobby Hyams also sold for Heath. (He suspected that Heath was responsible for Billy Baker's death.)

Eddie Lawson was another one of the group who was granted immunity in order to testify. He said that he had been an addict and also a heroin dealer. During the year 1974, he commenced buying from Ted and Tony Richardson. He said that they got their heroin from Babb and Emit Powell. Later, Lawson bought heroin from Donald Babb every day for several months. Lawson said that he also bought heroin from Laura Talkington two or three times and that she introduced him to "Boston Bob," a "connection" who lived with Donald Babb and got heroin from him. Later, Babb's relationship with "Boston Bob" broke down and he offered Lawson money to kill Bob. The two of them beat up "Boston Bob" and threatened to kill him if he did not leave town.

Lawson also said that Emit Powell, Bolding and Donald Babb sold for Heath; that Tom Ramsey was a heroin dealer; that Babb was his "connection"; and that he had gone with Ramsey to get heroin from Emit Powell. He also testified to Babb's telling him that May Jo Hulsey was one of the people engaged in bringing the heroin across the border. Lawson corroborated Mary Jo Hulsey's story regarding the meeting between Babb, Roger Sanders and Lawson at the motel. He said that Babb had sent Quirk to deliver heroin once.

A.

The points which are relied on by Heath and Babb for reversal include the following:

First, that there was prosecutorial misconduct throughout the trial which included the Assistant United States Attorney's coaching a witness to give an answer to a question in cross-examination which constituted an attack on the morality of the attorney for...