U.S. v. King, 82-4249

• Decision Date: 06 April 1983
• Docket Number: No. 82-4249,82-4249
• Citation: 703 F.2d 119
• Parties: 12 Fed. R. Evid. Serv. 1633 UNITED STATES of America, Plaintiff-Appellee, v. James Albert "Sonny" KING, Hattie Ray King, Johnny Wayne King and Jerome Lewis, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 119

703 F.2d 119

12 Fed. R. Evid. Serv. 1633

UNITED STATES of America, Plaintiff-Appellee, v. James Albert "Sonny" KING, Hattie Ray King, Johnny Wayne King and Jerome Lewis, Defendants-Appellants.

No. 82-4249.

United States Court of Appeals, Fifth Circuit.

April 6, 1983.

William Liston, Winona, Miss. (Court-appointed), for Johnny Wayne king.

Michael Mills, Aberdeen, Miss., Tommy Reynolds, Charleston, Miss., for James and Hattie King.

H.E. Kellum, III, Jackson, Miss. (Court-appointed), for Jerome Lewis.

Glen H. Davidson, U.S. Atty., John R. Hailman, Asst. U.S. Atty., Oxford, Miss., for plaintiff-appellee.

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

Before GARZA, POLITZ and JOHNSON, Circuit Judges.

GARZA, Circuit Judge:

The defendants, Johnny Wayne King, Jerome Lewis, James Albert "Sonny" King and Hattie Ray King were charged in a three-count indictment. Count one (1) charged Sonny King with distributing cocaine "on or about" April 16, 1981, to Mississippi Bureau of Narcotics undercover agent Shirlene Anderson and also charged Jerome Lewis and Johnny King with aiding and abetting that cocaine distribution. Counts two (2) and three (3) charged that Sonny King was aided and abetted by Hattie Ray King, Johnny King and Jerome Lewis in distribution of cocaine and marihuana to Anderson "on or about" June 26, 1981. Jury trial was held, and all the defendants were found guilty on all counts.

The defendants' problems began on approximately April 13, 1981, when agent Anderson met with an informant and defendant Lewis for the purpose of arranging a meeting with Sonny King. Several days later Anderson met Lewis and the informant at a shopping center. Lewis and the informant got in Anderson's car and were approached by Mr. Woodall who, at Lewis' invitation, joined them in the car. The four of them left Grenada and drove about twenty miles into Tallahatchie County to a place called "King's Place," a combination used car lot and lounge. While Anderson waited in the car, the informant and Woodall went in the lounge and Lewis approached an older man, a woman and a younger man who were later identified as Sonny King, Hattie King and Johnny Wayne King. Sonny King was angry with Lewis for bringing so many people but told Lewis he would sell them cocaine for one hundred dollars a gram. Anderson and Woodall each gave Lewis one hundred dollars to purchase a gram of cocaine. Lewis gave the money to the Kings and purchased the cocaine. The cocaine was mailed to the Mississippi State Crime Lab where it was received on April 20, 1981.

On a date Anderson recalled to be June 26, 1981, Lewis and Anderson drove back to "King's Place." When they arrived, Sonny and Johnny King were standing outside. Lewis approached them and came back and told Anderson that Sonny had gone up to one hundred twenty dollars per gram on the cocaine and would only deal in pounds of marihuana. Anderson then approached King and began to negotiate. Sonny agreed to sell her two grams of cocaine at one hundred ten dollars per gram and two ounces of marihuana at thirty dollars an ounce for a total price of two hundred and eighty dollars. Hattie King brought the bag with the cocaine and marihuana into the lounge, Sonny King gave it to Anderson and Anderson gave Sonny King the money. Anderson later mailed the bag to the Crime Lab where it was received on June 29, 1981.

The government offered tape recordings, transcripts and oral testimony that Anderson had followed up on their dealings and recorded conversations with Sonny King and Hattie King about buying more drugs on August 11, 14, 15, 17, and 20, 1981 and on October 30, 1981. Anderson also testified in chambers, as part of the government's proffer, that she met in person and discussed buying drugs with Sonny King and Hattie King at the lounge on August 6 and 21, 1981 and with Sonny alone on October 30, 1981. The district court also listened to tapes and read transcripts of the telephone conversations, which were corroborated by toll records of the telephone calls. The district court excluded all evidence relating to incidents occurring after June 26 from use in the government's case-in-chief; the court, however, did not preclude the use of the evidence on rebuttal.

All of the defendants presented alibi defenses offering testimony concerning their activities on April 16, 1981, and June 26, 1981. Lewis testified he was at home on April 16 and that he had gone to Galveston, Texas "a couple of days before" June 26 to visit his injured stepson. Hattie King testified that in April and June 1981 she did not know or know of Anderson; on April 16 she did not know where she was but did remember that Sonny King was attending auto auctions in Memphis; and on June 26, 1981, she and Sonny were in Memphis. The district court permitted cross-examination of Hattie King on whether she talked with Anderson after June 26 because she denied knowing Anderson. Johnny King testified that on April 16 and the week surrounding that date he was working all day on a rent house and that from June 22 to June 28 he was in bed with arthritis. Johnny, also, denied having any contact with Anderson prior to seeing her in court. In testimony riddled with inconsistencies Sonny King stated that on April 16 and June 26 he was in the Memphis area on business; he denied ever having met Anderson prior to August 6, 1981, when he met her outside his lounge; and he admitted talking to Anderson more than a month after the August 6 meeting.

On rebuttal the government re-proffered the tape recordings, transcripts and testimony of Anderson which had previously been excluded. The district court permitted rebuttal testimony by Anderson relating to her personal contact with the Kings and how often she dealt with them. Anderson was not allowed, however, to testify as to the contents of the conversations and the tape recordings and transcripts were excluded.

The jury returned verdicts of guilty on all counts as to all defendants. The defendants' motion for new trial was denied and the defendants bring this appeal raising several points of error. After reviewing the record and the pertinent law, we find the defendants' contentions to be without merit.

The defendants first contend that the trial court's jury instruction was in error. The portion of instruction the defendants find objectionable is as follows:

The indictment in this case charges that each offense was committed on or about a particular date. The evidence need not establish with certainty the exact date of the alleged offense. It is sufficient if the evidence does establish beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged in the indictment. Evidence has been introduced by the defendants on trial seeking to establish an alibi, that is to say that a defendant was not present at the place or at the time when he is alleged to have committed an offense charged against him or her in the indictment.

Now, it is, as I have told you, the government's burden to establish beyond a reasonable doubt each of the essential elements of the offense and if after consideration of all the evidence in the case you have a reasonable doubt as to whether a defendant was present at the time and place alleged in the particular count, then you must acquit him or her as to that count. And also if you have a reasonable doubt as to whether a defendant has been identified as having participated in a crime beyond a reasonable doubt, if you have a reasonable doubt as to the identification of a defendant, of course, you cannot convict such a defendant. Proof of guilt must be beyond a reasonable doubt.

Now, in this case the defendant James Albert "Sonny" King asserts a defense of alibi to the charges contained in count 1 of the indictment by saying that on April 16, 1981, at the time Agent Anderson made the sales, allegedly made the sales set forth in count 1 of the indictment, he was in Horn Lake, Mississippi, attending a used car sale. And his further defense is that on June 26th, at the time of the alleged sales in counts 2 and 3, he was in Memphis, Tennessee.

Hattie Ray King's defense or alibi to the charges made against her in counts 2 and 3 of the indictment was that on June 26th, at the time of the alleged sales, she was in Memphis, Tennessee.

As to the defendant Johnny Wayne King, he asserts an alibi defense to the alleged sale in which he is claimed to have participated in counts 1, 2 and 3 by saying he was not present at the time and place alleged in the counts.

Similarly, the defendant Jerome Lewis asserts a defense of alibi to the sales of drugs which Agent Anderson testified, as alleged in counts 1, 2 and 3, by saying that he was at his home on April 16, 1981, and that he was at Galveston, Texas, on June 26, 1981.

Now, it is up to you to weigh the defenses of alibi. And if you have a reasonable doubt as to the guilt of any one of the defendants, it would be your duty to vote not guilty as to that defendant.

On the other hand, if you are convinced of guilt beyond a reasonable doubt, you reject the defenses interposed by these defendants. If you believe that, it would be your duty.

Finally, if you believe all the other elements of the offense were committed beyond a reasonable doubt, it would be your duty to convict.

The defendants contend that since the alibi defense was raised the court should not have given the jury an "on or about" instruction. They concede that normally time is not a material element of a criminal offense unless made so by the statute creating the offense, Ledbetter v. United States, 170 U.S. 606, 612, 18 S.Ct. 774, 776, 42 L.Ed. 1162 (1898); United States v. DeBrouse, 652 F.2d 383, 391 (4th Cir.1981), and that the "on or about" instruction is normally proper. United States v. Brody, 486 F.2d 291, 292 (8th Cir.1973), cert. denied, 417 U.S. 949, 94 S.Ct. 3077, 41 L.Ed.2d 670 (1974)....