U.S. v. James, s. 77-5188

• Decision Date: 20 July 1978
• Docket Number: Nos. 77-5188,77-5271,s. 77-5188
• Citation: 576 F.2d 1121
• Parties: 3 Fed. R. Evid. Serv. 815 UNITED STATES of America, Plaintiff-Appellee, v. Donald JAMES and David Anthony Butler, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Henry SMITH and Kenneth Wayne Whitmore, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1121

576 F.2d 1121

3 Fed. R. Evid. Serv. 815

UNITED STATES of America, Plaintiff-Appellee, v. Donald JAMES and David Anthony Butler, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Henry SMITH and Kenneth Wayne Whitmore, Defendants-Appellants.

Nos. 77-5188, 77-5271.

United States Court of Appeals, Fifth Circuit.

July 20, 1978.

Frank Joseph Petrella, Atlanta, Ga., for Donald James.

David Anthony Butler, pro se.

P. Bruce Kirwan, Federal Public Defender, John R. Martin, Asst. Federal Public Defender, Atlanta, Ga., for Henry Smith.

Murray M. Silver, Atlanta, Ga., for Kenneth W. Whitmore.

William L. Harper, U. S. Atty., William L. McCulley, Atlanta, Ga., Ann T. Wallace, Joseph S. Davies, Jr., Katherin Winfree, Attys., Dept. of Justice, Appellate Section, Criminal Div., Washington, D. C., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Georgia.

Before TUTTLE and CLARK, Circuit Judges and EDENFIELD, ^* District judge.

TUTTLE, Circuit Judge:

These appeals arise from two separate trials but involve the same alleged conspiracy, revolving around Fred Hill in Atlanta, to bring in heroin and cocaine from California for distribution in Atlanta and Philadelphia. Appellants James and Butler, who were tried first along with four other co-defendants, were convicted of conspiracy to possess heroin and cocaine with the intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846, but the jury was unable to reach a verdict as to Smith and Ernestine Bassey, the alleged California supplier. The court granted a motion for acquittal for one codefendant, Constance Smith (appellant Smith's daughter), and the jury acquitted Cheryl Dumas. A month later Smith was retried along with appellant Whitmore, who had failed to appear for the earlier joint trial. At the second trial, both Smith and Whitmore were convicted on the same charge as Butler and James, and all four appeal.

I. The Conspiracy

The evidence at both trials established that Hill obtained heroin from sources in California. Johnny Mack Gordon, an unindicted co-conspirator who testified for the prosecution, assisted Hill in distributing heroin from Hill's white Mercury Comet "stash" car, which was parked at Gordon's apartment. Gordon made deliveries to several people in Atlanta, as directed by Hill, and he collected $1,000 to $1,200 per one-ounce package when Hill told him to do so. Gordon had no personal knowledge that the packages contained heroin, but he said that Hill referred to the substance as "boy," a nickname for heroin. Gordon described the contents of the packages as a brown powder and "guessed" that it was heroin. When Gordon first began making deliveries for Hill early in 1974, the trunk contained 25 one-ounce packages. It was refilled on two later occasions, both times after Lillian Peeples, an unindicted co-conspirator, had transported drugs to Atlanta from California. The last supply was seized when Gordon was arrested in August 1974. Laboratory reports showed that the trunk of the stash car contained 44 ounces of heroin and three ounces of cocaine. Other drug paraphernalia were also seized. The jury was justified in inferring that the packages delivered by Gordon for Hill in Atlanta contained heroin and that it came from California.

There was also testimony from which the jury could conclude that Hill supplied heroin for distribution in Philadelphia. Marlene Cochran, an unindicted co-conspirator, testified that she flew to Atlanta from Philadelphia around New Year's Eve in 1973 with James and another individual. She and James received heroin from Hill, who took it from the trunk of a white Ford or Mercury parked in an apartment complex. Cochran repackaged the heroin at James' direction and carried it back to Philadelphia for James. We conclude, then, that the existence of the conspiracy alleged in the indictment was proved beyond a reasonable doubt.

We turn now to a consideration of each appellant's role in the conspiracy. The facts relating to each appellant's alleged participation are largely uncontested because none of them chose to offer any evidence in their defense. We must decide whether the evidence presented by the government was sufficient to support the convictions and whether one conspiracy or more were shown. Certain other issues, including a reconsideration of our court's treatment of the so-called co-conspirator hearsay exception, are also raised and are discussed below.

II. Sufficiency of the Evidence

We are compelled, of course, to view the evidence on appeal from a jury verdict of guilty in the light most favorable to the government and to accept all reasonable inferences and credibility choices which will uphold the verdict. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

A. James

In addition to the evidence already mentioned above concerning James' role in transporting heroin from Hill in Atlanta to Philadelphia, Cochran also testified that on a later occasion when she was staying at Smith's house in Atlanta, Hill called from Ohio looking for James because Hill had a package for him. Hill wanted James to pick it up so he could get it on the streets.

We believe that these two incidents are sufficient to support the jury's verdict of guilty beyond a reasonable doubt. James argues that Hill on one occasion went into a separate room to discuss a drug deal with Patrick Gonsalves, an unindicted co-conspirator, and that this proves that James was not privy to Hill's conspiracy. However, it is well settled that a conspirator need not be involved in every transaction comprising the conspiracy in order to be convicted. United States v. Becker, 569 F.2d 951 (5th Cir. 1978).

B. Butler

The most damaging evidence against Butler came from two witnesses: Gordon and Gonsalves. Gordon described two occasions on which he delivered one-ounce packages of heroin to Butler at his home in Decatur. Gonsalves testified about two incidents both of which link Butler to the drug distribution conspiracy. Gonsalves was present at Butler's home one time when Hill came over with two ounces of heroin for Butler so that Butler could strengthen an earlier delivery which had been overcut. Hill cut and bagged cocaine in Butler's presence. On another occasion Gonsalves met with Hill and Butler at a friend's apartment. Hill, who had a new shipment of heroin contained in three large bags, gave a small amount to Butler as a sample. This evidence is clearly sufficient to prove Butler's knowing participation in the alleged conspiracy.

C. Whitmore

The two main witnesses against Whitmore were Gordon and Gonsalves. Gordon testified that Whitmore had approached him at the airport where Gordon worked during the late spring or early summer of 1974. Whitmore told Gordon that he had discussed a transaction with Hill and wanted to get in touch with him. Hill was out of town and could not be reached. So Gordon drove with Whitmore to Gordon's apartment and left Whitmore in front while Gordon went to the stash car parked in the back, got two ounces of heroin, and delivered them to Whitmore. Gordon, who stated that he never told buyers where the stash car was located, did not take Whitmore to the car or tell him where it was. Gordon did not get any money from Whitmore because Whitmore did not say what arrangement he had made with Hill for payment. Gordon testified that he did not normally make deliveries without Hill's authorization, but he did so on this occasion because Whitmore said "it had been pre-arranged, and I couldn't get in touch with (Hill); I went ahead and did it." This incident constitutes the only nonhearsay evidence tying Whitmore to the conspiracy.

When Hill returned in a couple of days, Gordon told him what had occurred in his absence. Hill said Whitmore had lied to Gordon, that he had made no such agreement with Whitmore before he left, and that Gordon should not have done it. Hill also told Gordon that Whitmore already owed Hill money.

Gonsalves testified that he frequently purchased heroin from Hill either directly or through Gordon and that Hill had agreed to sell to Gonsalves through Gordon when Hill was out of town. In the summer of 1974 Hill asked Gonsalves if he had seen Whitmore. Hill said that he was looking for Whitmore because he had given him five ounces of heroin for which he had not been paid and that when Hill was out of town Gordon had given him five more ounces for which Hill had also not been paid. Gonsalves described Hill as angry. A few days later Hill told Gonsalves that he had seen Whitmore and had gotten his money. On cross-examination Gonsalves said that he did not know whether Whitmore was working with Hill and that he did not believe that the two worked together on getting drugs from California. Gonsalves had told the grand jury that Hill and Whitmore had separate California connections.

The only other evidence which related directly to Whitmore involved his failure to appear for trial on the date originally set. A police officer testified that he had arrested Whitmore in Los Angeles pursuant to a warrant issued after Whitmore's failure to appear. Whitmore denied his identity and had another person's driver's license in his pocket. This evidence was properly introduced to show flight and a guilty mind. United States v. Alonzo, 571 F.2d 1384 (5th Cir. 1978).

Although Whitmore argues that the independent nonhearsay evidence against him is insufficient to link him to the conspiracy, we disagree. Whitmore's own statement to Gordon, as related in Gordon's testimony, provides proof of all of the essential elements of the conspiracy charged. Whitmore's statement, admissible against him as an admission of a party opponent under Fed.R.Evid. 801(d)(2)(A), clearly demonstrates the existence of a consensual agreement between Hill and the appellant. Whitmore's discussion with Gordon also establishes that Whitmore knew that...