U.S. v. Jennings

• Decision Date: 26 February 1976
• Docket Number: No. 74-4230,74-4230
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward L. JENNINGS, a/k/a Biggum Jennings, Robert Louis Hawkins and Bobby Gene Younger, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 862

527 F.2d 862

UNITED STATES of America, Plaintiff-Appellee, v. Edward L. JENNINGS, a/k/a Biggum Jennings, Robert Louis Hawkins and Bobby Gene Younger, Defendants-Appellants.

No. 74-4230.

United States Court of Appeals Fifth Circuit.

Feb. 26, 1976.

J. Dwayne Wilcox, Euless, Tex. (Court appointed), for Jennings.

Emmett Colvin, Dallas, Tex., for Hawkins.

Roland H. Hill, Jr., Ft. Worth, Tex. (Court appointed), for Younger.

Frank D. McCown, U.S. Atty., Alex H. McGlinchey, Asst. U.S. Atty., Ft. Worth, Tex., Judith A. Shepherd, Asst. U.S. Atty., Dallas, Tex., for plaintiff-appellee.

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

Before GEWIN, BELL and SIMPSON, Circuit Judges.

GEWIN, Circuit Judge:

Edward L. Jennings, Robert Louis Hawkins, and Bobby Gene Younger appeal from their convictions on drug trafficking charges. A seven-count indictment charged each appellant with one count of conspiracy to possess with intent to distribute and conspiracy to distribute heroin, in violation of 21 U.S.C. Secs. 841(a)(1) and 846. In addition, Jennings and Hawkins were charged with distribution of ten grams of heroin, and Younger with possession with intent to distribute ten grams of heroin, in violation of 21 U.S.C. Sec. 841(a)(1). The grand jury also indicted William Charles "Popsie" Curtis on the conspiracy count and various substantive counts. Curtis had not been apprehended at the time of appellants' trial, but he figures prominently in the facts of the case. ¹ Following a jury trial, a verdict of guilty was returned against each appellant on each count against him. All sentences imposed were to be served concurrently and were less than the maximum penalty. This appeal followed.

Appellants raise several points on appeal: (1) the admission without limiting instructions of co-conspirator hearsay testimony prior to proof of the existence of the conspiracy; (2) the admission of hearsay testimony concerning acts and statements allegedly not in furtherance of the conspiracy charged; (3) comments by government counsel during the summation and closing statement; and (4) sufficiency of the evidence. We have carefully reviewed the record of the case and considered the contentions of the parties in their briefs and an oral argument. The convictions are affirmed.

I

Testimony concerning the appellants' involvement in the alleged conspiracy and substantive offenses centered on a drug sale occuring on May 10, 1974. The prosecution's principal witness was Harold Reed, an informant. Except as to certain important events at which only Reed and one or more of the defendants were present, Reed's testimony was corroborated by Drug Enforcement Administration (DEA) agents Eddie Brown and Charles Mathis, who were involved in the transaction in an undercover capacity. We must, of course, examine the facts in the light most favorable to the jury's verdict. Glasser v. United States, 315 U.S. 60, 86 L.Ed. 680, 62 S.Ct. 457 (1941).

On May 9, 1974, Reed and DEA agents Mathis and Brown had a fortuitous meeting with Popsie Curtis, the fugitive co-defendant, in Fort Worth, Texas. Curtis stated that he had a good heroin connection in Dallas and that he and another man were going there the next day to make a purchase. Curtis advised Reed and agent Mathis that they could buy heroin from the same source, and they all arranged to meet the following day in a small shopping center in Dallas. On May 10, both Reed and Mathis telephoned Curtis to confirm the appointment; Curtis told Reed that if he (Curtis) was late arriving, the men should check with "Hawk" in a shoeshine parlor in the shopping center.

Reed, Mathis, and Brown arrived at the appointed time; after waiting several minutes for Curtis, Reed entered the shoeshine parlor. Upon asking for "Hawk", Reed was directed to appellant Hawkins, who told him that Curtis had not arrived. Reed returned to the car and waited with Mathis and Brown until Curtis appeared in a car driven by appellant Younger. Curtis greeted the agents and then excused himself to talk to his "man", ² whereupon he and Younger conversed with a group that included Hawkins and two other men. After a brief discussion, Curtis returned, told Reed and the agents that he and Younger planned to purchase $600 worth of heroin, and asked them how much they were prepared to spend. Brown indicated that they would pay $800 for an ounce of the drug, so Curtis returned to tell "the man" what they wanted. While Curtis talked with Hawkins and the two other men, Younger directed Reed and the agents to a billiards parlor in the shopping center.

Reed left the agents in the car and entered the King's Room, a private area adjacent to the billiards parlor, where he observed Curtis "snorting" or inhaling a white powder; Younger, appellant Jennings, and an unidentified man were also present. Reed asked Curtis how long it would take to "score and split," i.e., buy the drugs and leave, and Curtis assured him that it would take only a few minutes. At this point, Curtis and Reed left the billiards parlor. Curtis met with Hawkins, who then drove away. In response to the agents' query, Curtis told them that his "man" had left and would return shortly with the heroin, at which point Reed and the agents left on a pretext and returned to the DEA office for the purchase money.

Reed and agent Brown returned to the billiards parlor later that afternoon. Brown remained in the car while Reed entered the King's Room, where he found Curtis, Younger, Jennings, and an unidentified man. Curtis informed Reed that the drugs had not arrived yet. Reed then stated that he and Brown would not pay more than $500 without a sample of the heroin. Reed and Curtis went outside to discuss the matter of price with Brown, who reiterated Reed's statement. Reed and Curtis returned to the King's Room, and when Reed commented upon the delay, Jennings stated that if Curtis had come directly to him (Jennings), the purchase could have been completed already. Jennings tried unsuccessfully to locate Hawkins by telephone, and then offered to procure a sample for Reed. Jennings and Younger left in Younger's car, and returned within one-half hour with a sample of the heroin, which Younger handed to Curtis and which Curtis, Jennings, Younger, and Reed all tested by "snorting."

Subsequently, Hawkins returned to the billiards parlor, was greeted by Curtis, and the two of them went inside. A few minutes later, Curtis came out to the car and told Brown and Reed, "The man is here, give me the bread." Brown asked to meet Curtis's source, but Curtis refused to introduce them. Hawkins then came out of the pool hall, summoned Curtis, and whispered something to him, whereupon Curtis told Brown to give Reed the money for the heroin, which was done; Reed passed the money to Curtis, and they went inside.

Reed, Curtis, and the appellants entered what Reed described as a back room off the King's Room. Younger gave Hawkins an unspecified amount of money, and Curtis gave Hawkins agent Brown's money, which Hawkins counted and pocketed. Hawkins then produced a red balloon and Younger asked for a test "snort." Jennings provided a knife, the balloon was cut, and Curtis and Younger each inhaled some of the powder from the balloon.

Jennings suggested that they go to his house to divide the narcotics, and Jennings, Curtis, and Younger, followed by Reed and Brown, drove to a residence about a mile away. Brown remained outside while the others entered the house. Jennings handed Curtis the balloon and a record album cover, upon which Curtis spread and divided the heroin. Curtis gave Brown his portion in a yellow balloon while Younger packaged the remaining heroin.

Reed also testified, over objection, to other conversations and transaction involving Curtis, and, in some instances, agent Mathis.

The defense called one witness, Donald Walker, appellant Hawkins's half-brother and and employee at the billiards parlor, which Hawkins owned. Walker denied that Reed had ever entered the King's Room on the day in question, and testified that the room in which Reed claimed the sale occurred, and which Reed had been unable to describe beyond the characterization "back room," was in fact a small restroom with the usual fixtures, and clearly marked as such.

II

We address first the appellants' contention that they were denied a fair trial by the court's refusal to exclude extrajudicial acts and declarations of co-conspirators prior to establishment by independent evidence of the existence of a conspiracy and the defendants' participation therein, or in the alternative to give a cautionary instruction upon the admission of such testimony. The appellants made a clear and complete objection on these grounds upon the first instance of such hearsay testimony, and renewed it at several points throughout the trial; each time, the objection was overruled.

Courts have recognized the discretion of trial judges to control the order of proof, and in conspiracy trials the court may admit hearsay acts and statements of alleged co-conspirators subject to later proof by independent evidence of the existence of the conspiracy and the defendant's connection therewith. E.g., United States v. Apollo, 476 F.2d 156, 163 (5th Cir.1973); Nelson v. United States, 415 F.2d 483, 487 (5th Cir.1969), cert denied, 396 U.S. 1060, 90 S.Ct. 751, 24 L.Ed.2d 754 (1970). We therefore direct our attention to the court's refusal to give a cautionary instruction.

The hearsay testimony admitted against appellants included acts and declarations admissible only under the co-conspirator exception to the hearsay rule, such as Curtis's conversations with Reed and the agents, and therefore dependent on proof aliunde of the conspiracy and the defendants' involvement. ³ Also included was testimony that was admissible without meeting the requirements of the co-conspirator exception, but only against the declarant and, in proper...