U.S. v. Lane, Nos. 76-1717 and 76-1718

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore SETH, Chief Judge, and LEWIS; LEWIS
Citation574 F.2d 1019
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Fred Arthur LANE, III and William Kent Jones, Defendants-Appellants.
Decision Date30 May 1978
Docket NumberNos. 76-1717 and 76-1718

Page 1019

574 F.2d 1019
UNITED STATES of America, Plaintiff-Appellee,
v.
Fred Arthur LANE, III and William Kent Jones, Defendants-Appellants.
Nos. 76-1717 and 76-1718.
United States Court of Appeals,
Tenth Circuit.
Argued and Submitted Sept. 30, 1977.
Decided April 6, 1978.
Rehearing Denied May 30, 1978.

Page 1020

Kenneth A. Senn, Aspen, Colo., for defendant-appellant Lane.

Thomas T. Crumpacker, Aspen, Colo., for defendant-appellant Jones.

Rodney W. Snow, Asst. U. S. Atty. (James L. Treece, U. S. Atty.), Denver, Colo., for plaintiff-appellee.

Before SETH, Chief Judge, and LEWIS, Circuit Judge, and BRIMMER, * District Judge.

LEWIS, Circuit Judge.

Defendants appeal from a judgment of the district court entered on a jury verdict of guilty in a prosecution for distribution of cocaine. 21 U.S.C. § 841(a)(1). On appeal defendants claim numerous errors, some claims being made jointly and some individually.

Page 1021

We begin by addressing defendant Lane's claim that the evidence was insufficient to prove his guilt beyond a reasonable doubt.

Viewing the evidence in a light most favorable to the government, as we must, the undercover agent's testimony established that his first discussion with Lane about this transaction was on February 24, 1976. On that date Lane suggested he and defendant Jones had a cocaine deal they thought the agent would be interested in. Lane suggested that the agent discuss the details with Jones and Jones subsequently handled the negotiations on price and amount. Lane's next involvement was on February 26 when Jones told the agent over the phone that he and Lane would deliver the drug in Denver by placing it in a van parked at the Denver Airport. After the agent delivered the purchase money to Jones, the agent was directed to the van and inside found a paper bag containing white powder. Lane appeared at that time and asked the agent if he had found the bag and if it looked alright. Both Lane and Jones were arrested at the scene after the agent performed a chemical test on the powder in the bag which indicated the presence of cocaine.

We believe the above evidence was sufficient to find defendant Lane guilty beyond a reasonable doubt of distributing cocaine. Under the statutory definition, "distribute" means "actual, constructive, or attempted transfer." 21 U.S.C. §§ 802(11), 802(8). The testimony of the government agent established Lane's participation in the transfer of cocaine. The fact that the testimony was largely uncorroborated is not significant in this context because we have previously held that the testimony of an undercover agent alone is sufficient to convict under 21 U.S.C. § 841(a)(1). See United States v. Martin, 10 Cir., 526 F.2d 485, 486.

The second issue requiring our consideration is one raised by both defendants. Error is claimed in comments made by the prosecutor in closing argument. 1 Defendants argue the government attorney attempted to bolster the credibility of his principal witness by giving his personal opinion of the agent's trustworthiness and by associating the testimony with the U. S. Attorney's office. Defendant Jones moved for a mistrial based on the comments but the motion was denied. We believe the district court was correct.

Although we have in the past ordered a new trial on the basis of prosecutorial misconduct, the cases in which it has occurred exhibit substantially more serious misconduct than occurred here. See, e. g., United States v. Ludwig, 10 Cir., 508 F.2d 140. Indeed, from a reading of the record we find the statement which defendants claim is most objectionable (see note 1 supra ) somewhat ambiguous. Under these circumstances, accompanied by the fact that a cautionary instruction was given negativing any improper inference the jury might have drawn, we do not believe reversible error exists.

In a third allegation of error, defendant Jones argues...

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24 practice notes
  • United States v. Gruberg, No. 79 Crim. 447 (WCC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 29, 1979
    ...the geographic disparity resulted from the exercise of hardship excuses based on distance from the courthouse, United States v. Lane, 574 F.2d 1019, 1022 (10th Cir. 1978); Test II, supra at 582 n.4; Fernandez, supra at 734 (though distance excuses "have the inevitable effect of tending to c......
  • People v. Shedrick
    • United States
    • New York Supreme Court Appellate Division
    • December 14, 1984
    ...a given locale form the basis for a jury pool (see United States v. Foxworth, 1st Cir., 599 F.2d 1; United States v. Lane, 10th Cir., 574 F.2d 1019, cert. den. 439 U.S. 867, 99 S.Ct. 193, 58 L.Ed.2d 177; United States v. Mase, 2nd Cir., 556 F.2d 671, cert. den. 435 U.S. 916, 98 S.Ct. 1472, ......
  • U.S. v. Bernard, No. 78-3033
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 27, 1979
    ...in context. We have found no case where the Harris-Robinson rule has been applied to rough surveillance notes. In United States v. Lane, 574 F.2d 1019, 1022 (10 Cir. 1978), the court found surveillance notes distinguishable from interview notes, saying in However, the cited cases each consi......
  • U.S. v. Szycher, No. 77-1345
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • October 16, 1978
    ...See 21 U.S.C. § 812 and 21 C.F.R. § 1308.12(b)(4). Page 445 Our court has recently rejected similar arguments. United States v. Lane, 574 F.2d 1019, 1022 (10th Cir.); United States v. Smaldone,484 F.2d 311, 319-20 (10th Cir.), cert. denied, 415 U.S. 915, 94 S.Ct. 1411, 39 L.Ed.2d 469. Congr......
  • Request a trial to view additional results
24 cases
  • United States v. Gruberg, No. 79 Crim. 447 (WCC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 29, 1979
    ...the geographic disparity resulted from the exercise of hardship excuses based on distance from the courthouse, United States v. Lane, 574 F.2d 1019, 1022 (10th Cir. 1978); Test II, supra at 582 n.4; Fernandez, supra at 734 (though distance excuses "have the inevitable effect of tending to c......
  • People v. Shedrick
    • United States
    • New York Supreme Court Appellate Division
    • December 14, 1984
    ...a given locale form the basis for a jury pool (see United States v. Foxworth, 1st Cir., 599 F.2d 1; United States v. Lane, 10th Cir., 574 F.2d 1019, cert. den. 439 U.S. 867, 99 S.Ct. 193, 58 L.Ed.2d 177; United States v. Mase, 2nd Cir., 556 F.2d 671, cert. den. 435 U.S. 916, 98 S.Ct. 1472, ......
  • U.S. v. Bernard, No. 78-3033
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 27, 1979
    ...in context. We have found no case where the Harris-Robinson rule has been applied to rough surveillance notes. In United States v. Lane, 574 F.2d 1019, 1022 (10 Cir. 1978), the court found surveillance notes distinguishable from interview notes, saying in However, the cited cases each consi......
  • U.S. v. Szycher, No. 77-1345
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • October 16, 1978
    ...See 21 U.S.C. § 812 and 21 C.F.R. § 1308.12(b)(4). Page 445 Our court has recently rejected similar arguments. United States v. Lane, 574 F.2d 1019, 1022 (10th Cir.); United States v. Smaldone,484 F.2d 311, 319-20 (10th Cir.), cert. denied, 415 U.S. 915, 94 S.Ct. 1411, 39 L.Ed.2d 469. Congr......
  • Request a trial to view additional results

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