U.S. v. Knuckles

• Decision Date: 30 June 1978
• Docket Number: Nos. 582,D,690 and 821,s. 582
• Citation: 581 F.2d 305
• Parties: 3 Fed. R. Evid. Serv. 331 UNITED STATES of America, Appellee, v. Marion KNUCKLES, Rose Smith and Raymond Brown, Appellants. ockets 77-1402, 77-1460 and 77-1426.
• Court: U.S. Court of Appeals — Second Circuit

Page 305

581 F.2d 305

3 Fed. R. Evid. Serv. 331

UNITED STATES of America, Appellee, v. Marion KNUCKLES, Rose Smith and Raymond Brown, Appellants.

Nos. 582, 690 and 821, Dockets 77-1402, 77-1460 and 77-1426.

United States Court of Appeals, Second Circuit.

Argued May 2, 1978.

Decided June 30, 1978.

Jay Goldberg, New York City, for appellant Knuckles.

Michael S. Washor, Brooklyn, N. Y., for appellant Smith.

Martin E. Gotkin, New York City, for appellant Brown.

Scott G. Campbell, Asst. U. S. Atty., S. D. N. Y., New York City (Robert B. Fiske, Jr., U. S. Atty., Allan Levine and Robert J. Jossen, Asst. U. S. Attys., S. D. N. Y., New York City, of counsel), for appellee.

Before MOORE, OAKES and GURFEIN, Circuit Judges.

GURFEIN, Circuit Judge:

Marion Knuckles, Raymond Brown, and Rose Smith appeal from judgments of conviction entered after a jury trial in the Southern District of New York. The indictment charged Knuckles, Brown, and Smith, as well as Yolanda Simpson, ¹ with two counts of violating the federal narcotics laws. Count One charged the defendants with conspiracy to distribute and to possess with intent to distribute Schedule I and Schedule II controlled substances, in violation of 21 U.S.C. § 846. ² Count One alleged various overt acts in furtherance of the conspiracy, including a delivery of heroin by Knuckles to Simpson in October 1976, and the processing and packaging of heroin in October 1976. Count Two charged the defendants with distribution of heroin and possession with intent to distribute heroin on or about October 1, 1976, in violation of 21 U.S.C. § 841(a)(1). ³ Simpson pleaded guilty to Count One, and appeared as a

witness for the Government. The jury convicted Knuckles and Brown on both counts, and Smith on Count One. ⁴

I THE CLAIM OF VARIANCE

Simpson, the Government's principal witness, testified that on several occasions she and the defendants had processed and packaged heroin for distribution. Her testimony related particularly to two nights in the summer and autumn of 1976 when Simpson and the defendants met at two different locations to process and package several thousand bags of what Simpson testified was heroin. Counsel for Knuckles, in cross-examining Simpson, brought out that some of the participants in the processing and packaging operation had brought cocaine to Simpson's apartment and had used it on the night of the second packaging operation, which took place sometime around October 1, 1976. Counsel for Smith, in his cross-examination of the Drug Enforcement Agency officer who seized narcotics paraphernalia from Simpson's apartment on April 19, 1977, developed that some of the utensils seized showed cocaine traces. ⁵

At the close of the Government's case, the defendants made motions for acquittal on the ground that the substance involved in the defendants' activities was cocaine, not heroin. Later, in the conference on requests to charge, the defense counsel urged that though the indictment alleged a conspiracy related to heroin, and distribution and possession with intent to distribute heroin, the jury could conclude from the evidence in the case that the actions of the defendants were related to cocaine rather than heroin, and that there was therefore a substantial variance. After the court pointed out that the conspiracy count referred to "Schedule I and II narcotic drug controlled substances," which included both heroin and cocaine, defense counsel limited their variance argument to the substantive count, Count Two. The Government's attorney argued that there was too little evidence of cocaine to make this a serious issue, but that even if there were some grounds for supposing that cocaine rather than heroin was involved, the resulting variance between the indictment and the proof would be immaterial. The district court, persuaded by the Government's latter argument, charged the jury that they could convict on either count if they were convinced beyond a reasonable doubt that the substance involved was either heroin or cocaine. ⁶ No objection was made to the On appeal, the defendants now contend that there was insufficient evidence that the substance was cocaine to sustain the convictions. They contend also that the district court violated the defendants' Fifth Amendment right by amending the indictment to allow conviction for conspiracy to possess and distribute Cocaine and for possession with intent to distribute, and distribution of, Cocaine, though the indictment charges that the substance was Heroin.

charge on the ground of insufficient evidence that the substance was cocaine.

The defense brought the issue of cocaine into the case through the cross-examination of several Government witnesses. There was little evidence of cocaine, and had the Government's case rested only on this evidence, a dismissal would have been appropriate. But the Government's case in chief was directed to proof of dealings in heroin, and the defendants directed their motion for acquittal to the insufficiency of the evidence to prove possession of Heroin ; ⁷ the district court properly denied their motion.

In the conference on instructions to the jury, however, the defense argued that the evidence that the substance might have been cocaine was enough to raise the variance issue. Indeed, they emphasized that the jury could find that the substance involved in the case was cocaine. The defense urged that this was a prejudicial variance between the indictment and the proof, and required dismissal of the case.

An argument that there is a substantial variance assumes that there is sufficient evidence to establish a different offense from the offense charged. If the defendant believes that such evidence is not enough to allow the offense different from the offense charged to go to the jury there is, by definition, no variance.

The variance argument raised by the defense accordingly had to acknowledge implicitly that there was sufficient evidence from which the jury could conclude that the substance involved in the conspiracy and in the substantive count was cocaine. When the district court accepted that premise, but concluded to treat the variance as immaterial, the defense quite logically made no objection based on the insufficiency of the proof of cocaine, for that was the cornerstone of their defense of variance.

The defendants now seek reversal on a tortuous line of reasoning. They now urge There are several answers. First, as we have noted, the very motion to dismiss on the ground of variance assumed a prima facie case on cocaine, for otherwise the motion would have been transparently frivolous. Second, the defendants having accepted the position that there was a prima facie case on cocaine cannot, on appeal, shift their position. Third, we believe that, though in the light of the meager evidence of cocaine the Government should not have pressed the court to make the charge in the alternative, no serious harm was done, in any event, under the teaching of Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935).

that the judge committed reversible error by charging that the jury could find the defendants guilty if the defendants possessed cocaine rather than heroin, upon the asserted ground that the evidence that the substance was cocaine was insufficient to go to the jury. From this they deduce that since no one can say that the jury did not acquit the defendants on heroin and convict them only on cocaine, the verdict may not stand.

The defendants, having adopted their position on the cocaine proof in the district court, cannot assert for the first time on appeal that there was insufficient evidence of cocaine to support a verdict on either count. The reliance of the trial judge on the assistance of counsel in shaping the issues to be decided by the jury does not permit us to countenance such a flagrant shifting of position on appeal. The rules requiring timely filing of pretrial defenses and objections, timely motions for acquittal because of insufficient evidence, timely objections to the jury charge, and providing for filing by the parties of requests for jury instructions (Fed.R.Crim.P. 12, 29, 30) are grounded in the need to fix the legal outlines of the case in the trial court. Counsel may not adopt one view of the proof in the trial court, thereby limiting the legal issues, and then adopt a different view of the evidence in order to raise other issues on appeal. In United States v. Braunig, 553 F.2d 777, 780 (2d Cir.), Cert. denied, 431 U.S. 959, 97 S.Ct. 2686, 53 L.Ed.2d 277 (1977), we said:

"Rule 12(f) F.R.Crim.Pro. makes clear that '(f)ailure by a party to raise defenses or objections or to make requests which must be made prior to trial, . . . shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver.' The law in this Circuit is clear that where a party has shifted his position on appeal and advances arguments available but not pressed below, United States v. Schwartz, 535 F.2d 160, 163 (2d Cir. 1976), and where that party has had ample opportunity to make the point in the trial court in a timely manner, United States v. Rollins, 522 F.2d 160, 165 (2d Cir. 1975), Cert. denied, 424 U.S. 918, 96 S.Ct. 1122, 47 L.Ed.2d 325(324) (1976), waiver will bar raising the issue on appeal."

When the defendant not only fails to move for acquittal on the ground of insufficiency of the evidence but also adopts a position that presupposes sufficiency, the issue of sufficiency cannot be raised on appeal.

In this case, we have no doubt that had the defense maintained throughout that the cocaine evidence was insufficient for conviction under either Count One or Two, it could have sought and secured appropriate jury instructions from the trial court to that effect. But that would not have been part of the game plan. As the defense concedes, the case was tried as a heroin case, and the defense could have obtained an instruction...