U.S. v. Littrell

• Citation: 574 F.2d 828
• Decision Date: 07 June 1978
• Docket Number: No. 77-5294,77-5294
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eugene LITTRELL and Marc Davi, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 828

574 F.2d 828

UNITED STATES of America, Plaintiff-Appellee, v. Eugene LITTRELL and Marc Davi, Defendants-Appellants.

No. 77-5294.

United States Court of Appeals, Fifth Circuit.

June 7, 1978.

Alan E. Weinstein, Miami Beach, Fla., for Littrell.

Melvyn Kessler, Miami, Fla., for Davi.

Jack V. Eskenazi, U. S. Atty., James E. McDonald, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before WISDOM, THORNBERRY and RUBIN, Circuit Judges.

THORNBERRY, Circuit Judge:

Appellants Eugene Littrell and Marc Davi were indicted, along with three others, for possession of cocaine with intent to distribute, distribution of cocaine, and conspiracy. 21 U.S.C. §§ 841(a)(1) & 846. Davi was also charged with using a communications facility in the commission of a drug-related felony. 21 U.S.C. § 843(b). Both were convicted by a jury on all counts with which they had been charged. ¹

Littrell was sentenced to 18 months incarceration and a three-year special parole term, but all except six months of that sentence was suspended and a two-year probation was imposed. He received six-month prison terms for the other two counts, to run concurrently with the first six-month sentence, plus a three-year special parole term. Davi received two-year prison sentences for each of the four counts of which he was convicted, the sentences to run concurrently, and concurrent three-year special parole terms.

On appeal, both appellants contend there was insufficient evidence to support their convictions. Littrell also argues that the prosecutor improperly commented on his failure to testify on his own behalf and that the government's failure to produce, in timely fashion, material under the Jencks Act, 18 U.S.C. § 3500, deprived him of a fair trial. Davi claims that the district court erred in failing to advise the jury of the quantum of independent evidence necessary for admission into evidence of extra-judicial statements of co-conspirators and in denying his request for submission of special interrogatories to the jury. For the reasons stated below, we affirm as to Davi but reverse as to Littrell and remand his case for a new trial.

On October 4, 1976, special agent John Mantyla of the Drug Enforcement Administration, working undercover, taped a telephone conversation he had with one Vinny Kuhnen, who was indicted with Littrell and Davi but tried separately. Mantyla informed Kuhnen that he had buyers for two pounds of cocaine. Kuhnen responded that his initial source was no longer doing business but that he had a second source available. Mantyla called Kuhnen the next day and was told that "Marc" could handle the transaction. Kuhnen also provided Marc's phone number, and Mantyla phoned him on the same day and again on the following day, recording both conversations.

At about 2:30 p. m. on October 6, Mantyla and another DEA agent went to Kuhnen's hair styling shop, where they were introduced to Marc Davi. Handing Mantyla a "sample" of the cocaine he could provide, Davi explained that he was unable to obtain a kilogram as he had promised over the phone and that the best he could do was one pound at a price of $17,000 plus an ounce of the cocaine for himself. Mantyla expressed dissatisfaction with the lesser quantity and stepped outside with the other agent to their automobile, where they field tested the substance as cocaine. Mantyla returned to the shop and complained to Davi that the cocaine was of poor quality, Davi revised his price to $15,000, and Mantyla agreed.

Davi asked to see money, and Mantyla took him to the car and produced a "flash roll" ² of $32,000. Apparently satisfied, Davi returned to the shop and placed a phone call. Mantyla testified that he heard Davi say "in essence" that "everything is all right. Go ahead and bring it. You know where you're coming." At about 3:25 p. m. Davi said, "All right. The man is here." The two agents saw Littrell drive to the shop and park. He got out of the car, spoke briefly to Davi, and then entered a bar next door. Davi then approached the passenger side of the car, reached into the glove box, and removed a white paper sack that he indicated contained the cocaine. Mantyla then field tested the cocaine inside the shop and again voiced disapproval at its quality. Kuhnen assured him that Davi could be trusted, since he had previously furnished cocaine to the "shop." After getting a positive reaction in the test for cocaine, Mantyla went outside under the pretense of getting the money from his car and signalled to other agents to effect the arrests. Davi and Kuhnen were arrested in the shop, and Littrell was arrested in the bar.

Having unsuccessfully moved for a judgment of acquittal in the district court, Littrell and Davi now urge that the evidence summarized above was insufficient to support their convictions. They challenge their conspiracy convictions as well as their convictions for the substantive offenses. We will treat each appellant's arguments separately.

As for the substantive drug counts, Davi contends only that the jury was never instructed or even shown proof that cocaine is a Schedule II controlled substance. This argument is specious, for the district judge told the jury several times that the case involved cocaine, "a Schedule II narcotic controlled substance," and there is no doubt that cocaine is so classified. 21 U.S.C. § 812. Davi also argues that his conviction for using a communications device must fall if his convictions for distribution, possession, and conspiracy are struck down. The evidence makes crystal clear that Davi was caught red-handed in the midst of a drug deal. Thus, the convictions for possession and distribution are clearly supported by the evidence, and these convictions are sufficient to support the conviction for using a communications device in connection with a drug-related felony. Accordingly, we affirm Davi's convictions for the substantive offenses.

Davi attacks his conspiracy conviction on several grounds, arguing that the evidence does not prove the existence of a conspiracy, that there is no evidence of his intent, and that the government failed to establish a "wheel" conspiracy. The last contention can be quickly disposed of, for the record makes clear that the government did not prosecute this case on a "wheel" theory. Compare United States v. Baldarrama, 566 F.2d 560 (5 Cir. 1978), and United States v. Levine, 546 F.2d 658 (5 Cir. 1977).

We have little doubt that the evidence is sufficient to establish a conspiracy between Davi and Kuhnen, the latter having served as a "go-between" in the transaction between Davi and the DEA agent. Moreover, Kuhnen explained to Mantyla that Davi was his "second source" for cocaine and later indicated that Davi had supplied quality cocaine in the past. Kuhnen's comments also suggest that his hairstyling shop had been the setting for other drug "deals." See United States v. Ochoa, 564 F.2d 1155 (5 Cir. 1977); United States v. Thomas, 567 F.2d 638 (5 Cir. 1978). However, because evidence of Davi's guilt of the substantive offenses was so overwhelming and because he received concurrent sentences on the substantive and conspiracy counts, we apply the concurrent sentence doctrine and elect not to reach the merits of his sufficiency of the evidence argument as to the conspiracy conviction. See United States v. Ashley, 569 F.2d 975, 984 (5 Cir. 1978), and cases cited therein.

Littrell's case raises considerably more difficult questions, for the evidence against him can best be described as scant. Considering first the conspiracy conviction, our inquiry is whether the jury could reasonably, logically, and legally infer from the evidence presented that Littrell was guilty beyond a reasonable doubt. United States v. White, 569 F.2d 263 (5 Cir. 1978); United States v. Smith, 546 F.2d 1275 (5 Cir. 1977). Put another way, could the jury reasonably find that the evidence was inconsistent with every hypothesis of innocence? United States v. Prout, 526 F.2d 380 (5 Cir. 1976); United States v. Moore, 505 F.2d 620 (5 Cir. 1974); United States v. Warner, 441 F.2d 821 (5 Cir.), cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971). ³

Essential to the government's case is proof beyond a reasonable doubt, by either direct or circumstantial evidence, that a conspiracy existed, that the accused knew it, and, with that knowledge, voluntarily joined it. United States v. White, supra; United States v. Caro, 569 F.2d 411 (5 Cir. 1978); United States v. Gutierrez, 559 F.2d 1278 (5 Cir. 1977). In drug conspiracy cases brought under 21 U.S.C. §§ 846 & 963, no overt act in furtherance of the conspiracy need be proven, United States v. Thomas, supra; United States v. Palacios, 556 F.2d 1359 (5 Cir. 1977). Our focus here is whether the evidence demonstrates Littrell's "knowing participation" in the conspiracy.

The evidence against Littrell, viewed in a light most favorable to the government pursuant to Glasser v. U. S., 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), can be summarized as follows: (1) After satisfying himself that Mantyla was sincere about purchasing cocaine, Davi placed a phone call and told an unidentified party to "go ahead and bring it"; (2) Littrell drove to Kuhnen's hairstyling shop and parked, at which time Davi told the agents that "the man is here"; (3) Littrell got out of the car, had a fleeting conversation with Davi outside of the shop, and went into a nearby bar.

The government would have this court and the jury draw the following inferences from this evidence: (1) Davi's phone call had been to Littrell; (2) Littrell placed the cocaine in the car before driving to the shop (or, alternatively, that he knew the cocaine was already in the vehicle); (3) Littrell's brief conversation with Davi was drug-related, i. e., Littrell told him the cocaine was in the glove box; and (4) Littrell, who was Davi's...