U.S. v. Moser, Nos. 74--1635 and 74--1638

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore FAIRCHILD and TONE, Circuit Judges, and PERRY; TONE
Citation509 F.2d 1089
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ronnie MOSER and Carl Mullins, Defendants-Appellants.
Decision Date29 January 1975
Docket NumberNos. 74--1635 and 74--1638

Page 1089

509 F.2d 1089
UNITED STATES of America, Plaintiff-Appellee,
v.
Ronnie MOSER and Carl Mullins, Defendants-Appellants.
Nos. 74--1635 and 74--1638.
United States Court of Appeals,
Seventh Circuit.
Argued Jan. 9, 1975.
Decided Jan. 29, 1975.

Page 1090

Howard S. Grimm, Jr., Auburn, Ind., Belle T. Choate, Indianapolis, Ind., for defendants-appellants.

John R. Wilks, U.S. Atty., Fort Wayne, Ind., for plaintiff-appellee.

Before FAIRCHILD and TONE, Circuit Judges, and PERRY, Senior District Judge. *

TONE, Circuit Judge.

Defendants were convicted in a trial before a jury of unlawful possession with intent to distribute lysergic acid diethylamide, commonly known as LSD. They argue that there is a variance between the indictment and the proof, or alternatively an insufficiency in the evidence, because although the indictment charges and the evidence shows that they possessed and distributed LSD, the evidence also shows that they described the material only as psilocybin and mescaline. Defendant Mullins also contends that the evidence in support of Count I of the three-count indictment was insufficient as to him because it does not show that he was involved in the transaction proved under that count. 1

Defendants offered no evidence. The government's evidence was as follows:

On the evening of May 29, 1973, a confidential informant and Charles E. Hampshire, who was working with the Narcotics and Dangerous Drugs Section of the Indiana State Police, met the two defendants at a residence in Gas City, Indiana. Moser asked Hampshire what he was interested in, and Hampshire asked what 'they' had. Moser answered 'that they had psilocybin, mescaline, PCP and coke.' 2 Hampshire asked 'what their prices were,' and Moser

Page 1091

gave the prices of the various drugs he had mentioned. Hampshire stated that he 'would be interested in purchasing an ounce of the psilocybin and a gram of the coke, and that if it proved satisfactory (he) would possibly want a half pound or a pound.' Moser then stated that Hampshire and the confidential informant should return between 9:00 and 10:00 P.M. Later they returned and again met with the two defendants. Moser stated that he had the psilocybin but the coke had not been any good. Mullins said that he had injected himself with $25 worth of the cocaine and that 'he still was not very high.' Hampshire then said that he would not want the coke but 'would try the psilocybin.' Moser then handed Hampshire a bag containing reddish powder in exchange for $55. Moser stated that he would contact his supplier the next day and would have some additional coke that night.

The following evening Hampshire and the confidential informant returned to the same residence and met again with the defendants. Moser stated that he had not contacted his coke supplier yet but still had mescaline and gave the prices for various amounts. Hampshire said he would be interested in an ounce of the mescaline and 'if it moved well' he might be interested in 'half pound each of the psilocybin and the mescaline.' Moser said that he did not have the mescaline bought yet and Hampshire should return later. Hampshire and the confidential informant left and returned later, at which time Moser handed Hampshire a package containing a blue powder that he said was mescaline in retur for $55.

On July 10 Hampshire again met the defendants, this time at a residence near Jonesboro, Indiana. Mullins stated he wanted to take Hampshire and the confidential informant to his 'stash,' i.e., the place where he kept his drugs. The defendants got into Hampshire's car and directed him to a place along a railroad track. Mullins left the car and returned shortly with a plastic bag containing a blue powder, which he handed to Hampshire, stating 'that it was pure and that it would cut to a pound . . . that it was $550 a pound and $575 buffed.' Hampshire asked the price of half a pound and Mullins said '$275 pure and $300 buffed.' Hampshire then looked at Moser, who nodded his head in the affirmative. Hampshire told them he would 'be interested in a half a pound buffed, if he could watch them buff it.' They all then returned to the residence where they had met earlier. Moser left 'to get the scales and stuff,' and...

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23 practice notes
  • U.S. v. Jewell, No. 74-2832
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 27, 1976
    ...the state of mind necessary for conviction even if he does not know which controlled substance he possesses. Cf. United States v. Moser, 509 F.2d 1089, 1092-93 (7th Cir. In the course of in banc consideration of this case, we have encountered another problem that divides us. Appellant defin......
  • Lee Const. Co. v. Fed. Reserve Bank of Richmond, Civ. No. K-81-3090.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • August 6, 1982
    ...to recover bid preparation costs in the Court of Claims, courts have denied injunctive relief. Cincinnati Elecs. Corp. v. Kleppe, supra, 509 F.2d at 1089; cf. William F. Wilke, Inc. v. Department of the Army, 485 F.2d 180, 182 (4th Cir.1973) (Fourth Circuit affirmed district court's denial ......
  • U.S. v. Olinger, No. 83-3247
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 15, 1985
    ...twice for the same offense. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); Page 1301 United States v. Moser, 509 F.2d 1089 (7th 711 F.2d at 795. In Kramer, the indictment alleged conspiracy to distribute marijuana and amphetamines. The trial judge instructed the j......
  • U.S. v. Valencia, Nos. 89-1235
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 16, 1990
    ...that was lost. Knowledge and intent in narcotics cases often must be proved largely by circumstantial evidence. United States v. Moser, 509 F.2d 1089, 1092 (7th Cir.1975). The intent to distribute drugs has been inferred from the possession of a quantity of drugs larger than needed for pers......
  • Request a trial to view additional results
23 cases
  • U.S. v. Jewell, No. 74-2832
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 27, 1976
    ...the state of mind necessary for conviction even if he does not know which controlled substance he possesses. Cf. United States v. Moser, 509 F.2d 1089, 1092-93 (7th Cir. In the course of in banc consideration of this case, we have encountered another problem that divides us. Appellant defin......
  • Lee Const. Co. v. Fed. Reserve Bank of Richmond, Civ. No. K-81-3090.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • August 6, 1982
    ...to recover bid preparation costs in the Court of Claims, courts have denied injunctive relief. Cincinnati Elecs. Corp. v. Kleppe, supra, 509 F.2d at 1089; cf. William F. Wilke, Inc. v. Department of the Army, 485 F.2d 180, 182 (4th Cir.1973) (Fourth Circuit affirmed district court's denial ......
  • U.S. v. Olinger, No. 83-3247
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 15, 1985
    ...twice for the same offense. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); Page 1301 United States v. Moser, 509 F.2d 1089 (7th 711 F.2d at 795. In Kramer, the indictment alleged conspiracy to distribute marijuana and amphetamines. The trial judge instructed the j......
  • U.S. v. Valencia, Nos. 89-1235
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 16, 1990
    ...that was lost. Knowledge and intent in narcotics cases often must be proved largely by circumstantial evidence. United States v. Moser, 509 F.2d 1089, 1092 (7th Cir.1975). The intent to distribute drugs has been inferred from the possession of a quantity of drugs larger than needed for pers......
  • Request a trial to view additional results

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