U.S. v. James
| Decision Date | 26 March 1975 |
| Docket Number | No. 74--2067,74--2067 |
| Citation | 510 F.2d 546 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Elorance JAMES, William Stanfield, and Antonio Vasquez, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Sam C. Bashara, Van G. Hilley, San Antonio, Tex., for James.
J. Joe Harris, San Antonio, Tex. (Court-appointed), for Stanfield.
Ruben Montemayor, San Antonio, Tex. (Court-appointed), for Vasquez.
William S. Sessions, U.S. Atty., Joel D. Conant, Jim Bock, Asst. U.S. Attys., San Antonio, Tex., for plaintiff-appellee.
Appeals from the United States District Court for the Western District of Texas.
Before THORNBERRY, MORGAN and CLARK, Circuit Judges.
On November 3, 1973, Georgia Bennett, a government undercover agent, arrived at the residence of appellant Elorance James in San Antonio, Texas. She had gone there pursuant to the instructions of Clarence Jackson for the purpose of traveling to another location and consummating a heroin sale. Jackson was waiting for Bennett on the porch, and James was inside the house. All three waited in the living room for approximately ten minutes, at which time appellant William Stanfield arrived. Stanfield and Bennett remained there while James and Jackson went to a bedroom out of their hearing. When the two returned, James gave Jackson and Stanfield pistols. Jackson then said, 'Let's go,' or 'Let's move it,' and he and Bennett left. They drove to Baptist Memorial Hospital in downtown San Antonio where they were met by James and Stanfield, who had preceded them. Bennett asked Jackson why Stanfield and James were there, and he replied that they were acting as lookouts for the police.
Shortly thereafter, federal agents, posing as buyers, arrived and Bennett walked over to their car. Upon returning to her own car, she heard James tell Jackson that, 'the contact had been made.'
In response to one of the agent's requests for a sample, Jackson entered the hospital to obtain it from Frank Garcia, who had arrived in a separate car driven by appellant Antonio Vasquez. Jackson and Bennett delivered the sample, but a slight delay ensued when Garcia insisted that the sale take place inside the hospital while the agent refused to deal except in the parking lot. Garcia went back to his car, and Vasquez began to drive away from the hospital. He was driving very slowly, however, and the agent was able to stop the car in the middle of the street 1 and persuade Garcia to make the sale. Carmen Jaramillo, a passenger, requested Vasquez to pull into the parking lot, which he did. He then got out of the car, went over a small abutment and began looking up and down the street. Garcia and the agent finalized their deal, and as the agent raised the government car's trunk to 'get the money,' James, Stanfield, Vasquez, Jackson, Garcia, and Jaramillo were arrested. After a jury trial, James and Stanfield were found guilty of violating 21 U.S.C. § 846 by conspiracy to possess with intent to distribute approximately ten ounces of heroin, and of aiding and abetting such offense, in violation of 18 U.S.C. § 2. Appellant Vasquez was acquitted of the conspiracy count but convicted of aiding and abetting. We affirm the convictions of all three appellants.
Appellants James and Stanfield argue that the court erred in permitting Bennett to repeat Jackson's statement to her that they were acting as lookouts for the police. We hold that the statement, although hearsay, was properly admitted as the declaration of a co-conspirator made during the course of the conspiracy and in furtherance of it.
Of course, in order for a statement made out of the presence of the defendant to be admissible under this exception, there must be proof aliunde of the existence of the conspiracy and of the defendant's connection with it. Glasser v. United States, 315 U.S. 60, 74, 62 S.Ct. 457, 86 L.Ed. 680 (1942), Montford v. United States, 200 F.2d 759, 760 (5th Cir. 1952). That requirement was clearly satisfied in this case. The government introduced uncontradicted evidence that Jackson arranged the presale rendezvous at James' house, at which time James gave pistols to Jackson and Stanfield after conferring with Jackson; that James and Stanfield arrived at the location for the deal prior to Jackson; that James told Jackson that 'the contact' had been made; and that a loaded pistol was found on the floor-board of the car driven by James and Stanfield. Further, several government agents testified that after their arrival on the scene but before the arrest, James and Stanfield spent their time walking around the area, constantly looking around, as if 'they had muscle spasms or something in their neck,' according to one witness. They interrupted this activity on several occasions to converse with Bennett or Jackson, both of whom were attempting to finalize the transaction.
The trial judge has substantial discretion in determining whether there is adequate independent evidence of a conspiracy. Such evidence need only be credible and sufficient to support a finding of a joint undertaking; 2 the conspiracy's existence need not be proved beyond a reasonable doubt. 3 We think it plain that the trial judge here was correct in finding that adequate independent evidence had been presented to establish the existence of the conspiracy.
But in order to be admissible against one not present when the statement was made, it must have been made 'in furtherance of the conspiracy.' Although this phrase has a talismanic ring to it, we must not apply the standard too strictly, lest we defeat the purpose of the exception. It is true, of course, that mere conversation between conspirators is not admissible under this exception. United States v. Birnbaum, 337 F.2d 490, 495 (2nd Cir. 1964). That is not what we have here, however. Jackson, of course, was unaware that Bennett was a government agent; he considered her a full-fledged partner in crime. She had not known of James' and Stanfield's involvement, and therefore had legitimate reasons to be suspicious of their presence Jackson was acting in the interests of the conspiracy by allaying these suspicions. The statement was made in furtherance of the conspiracy. 4
Appellants argue that the trial judge erred by acting as a prosecutor and failing to maintain the requisite judicial impartiality. Specifically, they object to the judge's admonitions to counsel for appellant James. We conclude that although the judge may have been unnecessarily severe in his comments to counsel, his actions did not so prejudice the jury as to deprive appellants of a fair trial, and are therefore not reversible error.
Appellants complain of the following judicial interventions: the court instructed counsel to 'proceed to the next question' after he had asked the same question, and been answered, three times; the court insisted that a certain street was 'a minimum of fifteen feet' wide, while counsel wished to stipulate a width of twelve feet; he admonished counsel, finally, when counsel asked permission to make an offer of proof, the judge replied,
As we have noted on many occasions, a federal trial judge is more than a moderator; in fulfilling his duty to see that the law is administered properly, he may question witnesses and comment on the evidence. Gomila v. United States, 146 F.2d 372 (5th Cir. 1944). He must be especially careful, however, given the great influence he exercises over the jurors, to intervene in a timely, non-prejudicial manner. United States v. Jacquillon, 469 F.2d 380, 387 (5th Cir. 1972); United States v. DeLaughter, 453 F.2d 908 (5th Cir. 1972). Above all, he must maintain his impartiality, never giving the jury an impression of his feelings as to the accused's guilt or innocence.
The judge in this case very nearly violated this cardinal rule in telling James' attorney that he could, To a mind moderately sophisticated in legal matters, this comment could readily be understood as meaning that the judge presumed that James would be convicted and would therefore appeal to this court. Three factors have persuaded us, however, that although the comment should not have been made, it does not constitute reversible error. First, we believe that a jury composed of laymen understood the statement to mean, 'If your client is convicted and appeals, you can take up this matter with the Fifth Circuit.' Second, we must remember that this dialogue occupied but a few seconds of a lengthy trial, and concerned a procedural question far removed from the substantive issues to be decided by the jury. In this context, it is appropriate to recall the warning of Justice Frankfurter:
In reviewing criminal cases, it is particularly important for appellate courts to relive the whole trial imaginatively and not to extract from episodes in isolation abstract questions of evidence and procedure. To turn a criminal appeal into a quest for error no more promotes the ends of justice than to acquiesce in low standards of criminal prosecution. Johnson v. United States, 318 U.S. 189, 202, 63 S.Ct. 549, 555, 87 L.Ed. 704 (1943).
Third, even if the jury was influenced by the judge's comments, we believe his curative instruction in his charge overcame any possible prejudicial effect, including any prejudice resulting from the criticism about cluttering up the record. 5
Finally, we find no merit in any of appellants' other complaints of judicial intervention.
Appellants' next contention is that the trial court erred in refusing to permit counsel for James to recall...
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