U.S. v. Jones

• Decision Date: 09 January 1987
• Docket Number: No. 85-2662,85-2662
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Francis J. JONES, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 754

808 F.2d 754

UNITED STATES of America, Plaintiff-Appellee, v. Francis J. JONES, Jr., Defendant-Appellant.

No. 85-2662.

United States Court of Appeals Tenth Circuit.

Jan. 9, 1987.

Michael Lerner, Overland Park, Kan., for defendant-appellant.

Robert S. Streepy, Asst. U.S. Atty. (Benjamin L. Burgess, Jr., U.S. Atty., with him on the brief), Kansas City, Kan., for plaintiff-appellee.

Before BARRETT and SEYMOUR, Circuit Judges, and CHILSON, District Judge. ^*

SEYMOUR, Circuit Judge.

Dr. Francis J. Jones, Jr., was convicted in a jury trial of conspiracy to distribute Schedule III and Schedule IV controlled substances in violation of 21 U.S.C. Sec. 846 (1982). On appeal, Dr. Jones contends that the trial court erred in refusing to grant his motion for a judgment of acquittal. After carefully reviewing all of the evidence, we agree that it is insufficient to support Dr. Jones' conviction. Consequently, we reverse.

Defendant was jointly tried with two codefendants, John Paul Jones and Ethel Clagget. John Paul Jones, defendant's cousin, was found guilty of one count of conspiring to distribute controlled substances, seven counts of distributing controlled substances, and two counts of attempting to evade income taxes. He has separately appealed in our No. 85-2605. Ethel Clagget was found not guilty of conspiracy to distribute controlled substances.

Francis J. Jones is a doctor of osteopathy who owned the Central Clinic in Kansas City, Kansas. In the summer of 1979, Dr. Jones leased the clinic to Dr. Vernon Webb. Dr. Webb hired, as a physician's assistant, John Paul Jones, who had previously worked for Dr. Jones at the Central Clinic. John Paul Jones was charged in this case with illegally distributing controlled substances from 1979 to 1981 by masquerading as a physician and by issuing fraudulent prescriptions.

The Government contended at trial that Dr. Jones was a conspirator in his cousin's scheme to distribute drugs. In the summer of 1979, following a prior conviction for illegally distributing controlled substances, Dr. Jones' Drug Enforcement Administration (DEA) registration was revoked. Without a DEA registration number, Dr. Jones was unable to prescribe controlled substances, although he continued to be licensed to practice medicine. He then leased his clinic to Dr. Webb. According to the Government, Dr. Webb agreed with Dr. Jones to hire John Paul Jones as part of the lease agreement. The essence of the Government's theory was that Dr. Jones leased the clinic to Dr. Webb, who had a valid DEA registration number, and required Dr. Webb to hire John Paul Jones so that John Paul could illegally distribute controlled substances, using Dr. Webb's registration number. The Government contended that Dr. Jones helped John Paul to masquerade as a physician at the clinic by telling several patients that John Paul would be taking care of them after Dr. Jones left the clinic.

In reviewing a denial of a motion for a judgment of acquittal, this court must consider, in a light most favorable to the Government, all of the direct and circumstantial evidence and the inferences that may reasonably be drawn from that evidence. United States v. Hooks, 780 F.2d 1526, 1529 (10th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 1657, 90 L.Ed.2d 199 (1986); United States v. Parrott, 434 F.2d 294, 297 (10th Cir.1970), cert. denied, 401 U.S. 979, 91 S.Ct. 1211, 28 L.Ed.2d 330 (1971). The court must then determine whether "a reasonable jury could find the defendant guilty beyond a reasonable doubt." Hooks, 780 F.2d at 1531. The Government's evidence need not disprove every reasonable hypothesis of innocence. See id. at 1530. Nevertheless, the evidence supporting the conviction must be "substantial; that is, it must do more than raise a mere suspicion of guilt." United States v. Ortiz, 445 F.2d 1100, 1103 (10th Cir.), cert. denied, 404 U.S. 993, 92 S.Ct. 541, 30 L.Ed.2d 545 (1971).

"The essence of the crime of conspiracy is an agreement to commit an unlawful act." United States v. Dumas, 688 F.2d 84, 86 (10th Cir.1982). "Although the agreement may be inferred from the facts and circumstances of the case, and 'need not take any particular form, there must at some point be a meeting of the minds in the common design, purpose, or objects of the conspiracy.' " Id. (quoting United States v. Butler, 494 F.2d 1246, 1249 (10th Cir.1974)). "To be guilty of conspiracy, a defendant must possess 'at least the degree of criminal intent necessary for the substantive offense itself.' " Id. (quoting Ingram v. United States, 360 U.S. 672, 678, 79 S.Ct. 1314, 1319, 3 L.Ed.2d 1503 (1959)). "The defendant lacks the requisite criminal intent if he does not know the conspiracy's objective"; this knowledge must be shown by "clear, unequivocal evidence." Id. "A defendant's mere association with conspirators is not enough to support a conspiracy conviction." United States v. Austin, 786 F.2d 986, 988 (10th Cir.1986).

With those principles in mind, we review the evidence. As a central part of its case, the Government claimed that Dr. Jones' lease with Dr. Webb included an unwritten agreement that Dr. Webb would employ John Paul Jones at the Central Clinic. The Government's only witness on this point was Dr. Webb. He testified that he approached Dr. Jones regarding the possibility of leasing the clinic when he heard that it was available. Knowing that he would need help in the clinic, he first tried to hire Linda Teague, and then Joy Murray, both assistants of Dr. Jones. At that time, he had not heard of John Paul. One of the women initially agreed to work for Dr. Webb, but then decided not to stay. Thereafter, Dr. Webb asked Dr. Jones to recommend another physician's assistant, and Dr. Jones recommended John Paul. Although Dr. Jones failed to inform Dr. Webb that John Paul had previously been convicted for drug offenses, he did tell Dr. Webb that John Paul had had some trouble in the past. Dr. Webb testified unequivocally that under no circumstances was it a condition of the lease agreement that he hire John Paul. It is undisputed that Dr. Webb determined the qualifications of John Paul and hired him independent of Dr. Jones'...