U.S. v. Murray, 74--4226

• Decision Date: 18 February 1976
• Docket Number: No. 74--4226,74--4226
• Citation: 527 F.2d 401
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Hargis Ray MURRAY, Joe Wesley McDonald, Edd C. Douglas, A/k/a E. C. Douglas, Leon Buhl, Jr., Arthur Jackson Douglas, and Elbert C. Douglas, Jr., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 401

527 F.2d 401

UNITED STATES of America, Plaintiff-Appellee, v. Hargis Ray MURRAY, Joe Wesley McDonald, Edd C. Douglas A/k/a E. C. Douglas, Leon Buhl, Jr., Arthur Jackson Douglas, and Elbert C. Douglas Jr., Defendants-Appellants.

No. 74--4226.

United States Court of Appeals Fifth Circuit.

Feb. 18, 1976.

Rehearing and Rehearing En Banc

Denied April 6, 1976.

Kenneth C. Whiteley, Bedford, Tex. (Court appointed), for Murray.

Richard L. Bourland, Ft. Worth, Tex. (Court appointed), for McDonald.

L. Clifford Davis, Ft. Worth, Tex., for Edd Douglas and Elbert C. Douglas.

Jack W. Beech, Ft. Worth, Tex. (Court appointed), for Buhl.

Craig A. Washington, Houston, Tex., for A. Douglas.

Frank D. McCown, U.S. Atty., W. E. Smith, John W. Sweeney, Jr., Asst. U.S. Attys., Ft. Worth, Tex., for plaintiff-appellee.

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

Before COLEMAN, CLARK and INGRAHAM, Circuit Judges.

COLEMAN, Circuit Judge.

Nature of the Case

Edd C. Douglas (a/k/a E. C. Douglas), Arthur Jackson Douglas, Elbert C. Douglas, Jr., Leon Buhl, Jr., Joe Wesley McDonald and Hargis Ray Murray all appeal from their convictions for conspiracy. Arthur Jackson Douglas, Buhl and McDonald also appeal from convictions on substantive charges of distributing heroin. The appellants were indicted under a six count indictment filed September 12, 1974. Count 1 of the indictment alleged that from approximately April 1, 1974 until July 30, 1974 Edd C. (a/k/a E. C.) Douglas, Arthur Jackson Douglas, Elbert C. Douglas, Jr., Leon Buhl, Jr., Joe Wesley McDonald, Hargis Ray Murray, Arthur Ray Jones, ¹ and Edward Nelson Rockwell ² did knowingly and intentionally 'combine, conspire, confederate and agree' with each other and with other named and unnamed co-conspirators to commit offenses in violation of 21 U.S.C. § 841(a)(1) ³ to-wit: 'To knowingly and intentionally possess with intent to distribute and to distribute heroin.' Eight overt acts, all of which were meetings between various co-conspirators and undercover agents, were alleged as committed in furtherance of the conspiracy in violation of 21 U.S.C. § 846. ⁴

In addition to the conspiracy charge contained in Count 1, the indictment contained allegations of distribution of heroin to undercover government agents by four of the appellants. Joe Wesley McDonald was charged with distribution by Count 2; Leon Buhl, Jr., by Count 4; Arthur Jackson Douglas by Count 5; and Edd C. Douglas by Count 6.

After the persentation of the government's case, the Court granted appellant E. C. Douglas' motion of acquittal with respect to Count 6 of the indictment. The jury found all appellants guilty as charged on the remaining counts of the indictment.

We affirm the convictions of Arthur Jackson Douglas, Buhl and McDonald as to the substantive charges of distributing heroin. We also affirm the convictions of Edd C. Douglas and Joe Wesley McDonald as to the conspiracy count of the indictment. Finding the evidence insufficient to connect Arthur Jackson Douglas, Elbert C. Douglas, Jr., .leon Buhl, Jr., and Hargis Ray Murray to a conspiracy, we reverse their conviction as to the conspiracy charged in Count 1 of the indictment.

The appellants assign numerous errors, both collectively and individually. We have thoroughly reviewed the over 2,300 pages of the trial record and find only four aspects of the case that warrant discussion: (1) the sufficiency of the evidence as to the conspiracy charge; (2) whether the trial judge abused his discretion in not allowing appellants to examine Deborah Godwin; (3) whether an erroneous in-court identification of appellant Arthur Jackson Douglas constituted reversible error; and (4) the trial court's evidentiary rulings concerning certain hearsay statements, testimony allegedly contrary to the government's answers to appellant's Bill of Particulars, and testimony concerning the June 14th sale of what turned out to be lactose.

Judge Tuttle recently wrote in United States v. Killian, 5 Cir. 1975, 524 F.2d 1268, that whenever the sufficiency of the evidence is challenged in a conspiracy case our inquiry must be twofold:

The first question is whether a conspiracy was proven within the intendment of the indictment. If this question is answered in the affirmative, the next question is: 'Against which of the defendants was there adequate proof that he was a party to the conspiracy?' 524 F.2d at 1271.

We have little trouble in answering the first question. We find ample evidence that several people conspired to distribute heroin during the named period and also that heroin was sold. It is the second question that is troublesome. Against which of the defendants was there adequate proof that he was a party to the conspiracy? To answer this question we must necessarily state the evidence as to each appellant in some detail.

THE EVIDENCE AS TO E. C. DOUGLAS

The government contends that E. C. Douglas was the central figure in a conspiracy to distribute heroin in the Fort Worth, Texas area. Harold Reed, an individual cooperating with federal Drug Enforcement Administration agents, testified that on the night of April 8, 1974, he was negotiating to buy some heroin from co-defendants Joe McDonald and Arthur Jones. He testified that he requested a sample of the heroin and was told by Joe McDonald that it would take some time because they would have to go see E. C. Douglas.

On the evening of May 3, 1974, between 8:00 and 10:00 p.m., federal DEA Agent Charles Mathis and Mr. Reed were at the Sugar Hill Lounge on Evans Street in Fort Worth. They saw E. C Douglas cross the street and approach his brother, Elbert C. Douglas, Jr., who was standing at the curb. Reed went over to E. C. Douglas and told him that they had been trying to score a half ounce from Junior Buhl, but Buhl had acted like he did not want to sell the dope. Reed then asked E. C. Douglas, 'Can you do it for us?' After chatting awhile E. C. said that he would try to get them an ounce that night. Reed and Mathis stayed around for awhile, but when E. C. Douglas failed to return they left.

On June 12, 1974, a cooperating individual, Albert Bovance, saw E. C. Douglas, stopped him and told him that he had someone who wanted to buy an ounce of dope. E. C. said, 'Well, okay, bring them over and Junior (Elbert C. Douglas, Jr.) will take care of business.' The next day Bovance and Mathis went to see Elbert C. Douglas, Jr., and told him they wanted to buy an ounce of dope and that E. C. had sent them. After consulting a friend, Elbert C. Douglas, Jr. said, 'I think I am going to pass and I don't want E. C. fooling with it, neither.' Bovance went to see E. C. Douglas later that day and told him that he had seen Junior but that he didn't want to make any money. E. C. said that he would take care of that and for Bovance to bring Mathis back over the next day.

On June 14, 1974, agent Mathis and Albert Bovance had a meeting with E. C. Douglas in the 2100 block of Evans Street in Fort Worth. Bovance introduced Douglas and Mathis, whereupon Douglas asked Mathis, 'What do you want, a piece?' ⁵ Mathis replied that he did and asked how much it would be. E. C. Douglas said it would be $800.00. E. C. told him, 'Go into the club and sit down and I will send somebody in there.' A short time after Agent Mathis and Bovance entered the club, Hargis Ray Murray came in and asked, 'What are you looking for?' Agent Mathis told him he was trying to score dope, but that he had already made a deal with E. C. and was waiting on that to go down. Murray responded, 'He sent me, that is what I got, he sent me.' Murray told Mathis to wait and left the club. A little later Mathis and Bovance observed E. C. Douglas go to the passenger's side of a pickup truck and open the door. He leaned down and reached either underneath or behind the seat and removed a small package. Bovance testified that Douglas called Hargis Ray Murray over and gave him the package which Murray put in his pocket. E. C. Douglas then got in his truck and left. About an hour later Bovance talked to Murray and Murray said he was going to do business with Bovance and that Mathis could watch the deal going down. Bovance and Murray walked over to a green garbage can and Murray retrieved a package from the can. Murray gave Bovance the package containing a white powder in exchange for $800. Chemical analysis of the powder subsequently showed that it was only lactose and contained no opium derivative.

The next day, Bovance saw E. C. Douglas in the 2100 block of Evans Street and complained that what E. C. had sold them was not dope. E. C. asked Bovance what color it was and Bovance replied that it was white. E. C. then said that his dope was brown. Three days later, on June 18, 1974, Mathis and Bovance again saw E. C. Douglas. Mathis protested to E. C. that he had been 'burned'. Mathis testified that Douglas told him, 'Yeah, I heard you got burned, you shouldn't have given him all of your money.' E. C. Douglas then told him to meet him back at the club in 30 minutes, and he would 'make it right'. However, Douglas never came to the club.

Agent Mathis had seen Hargis Ray Murray earlier on June 18th and complained to him that he had been 'burned', and demanded his money back. Murray said that he thought the dope was good. He first stated that E. C. Douglas had burned them but then he cnanged his story and said that someone else had stolen the dope and substituted it.

Manuel R. Trevino, Jr., who had pleaded guilty in another case and agreed to testify for the government, stated that in late June, 1974, he purchased grams of heroin from Whillie Arthur 'Joe Boy' Douglas, an unindicted co-conspirator. Trevino returned to purchase heroin the next week from 'Joe Boy' but was told to hold on a second because he didn't have any more on him. 'Joe Boy' then went across the street and walked up to E. C. Douglas who was standing there alone. 'Joe Boy' then...