U.S. v. Pino, 78-5097
| Decision Date | 01 November 1979 |
| Docket Number | No. 78-5097,78-5097 |
| Parties | 5 Fed. R. Evid. Serv. 187 UNITED STATES of America, Appellee, v. Benjamin PINO, Jr., Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
James B. Craven, III, Durham, N. C. (Everett, Everett, Creech & Craven, Durham, N. C., on brief), for appellant.
Michael Owens, U.S. Atty. (George M. Anderson, U. S. Atty., Herman E. Gaskins, Jr., Asst. U. S. Atty., and Jane P. Gray, Third Year Law Student, Raleigh, N. C., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, and WINTER and MURNAGHAN, Circuit judges.
Benjamin Pino, Jr., appellant, and Marshall James Herring were jointly charged with unlawful distribution of heroin in violation of 21 U.S.C. § 841(a)(1) and Title 18 U.S.C. § 2 ().
A government informant had arranged to purchase heroin from Herring for $600. Not able to locate Herring, the informant approached Pino about Herring's whereabouts. Pino indicated that he knew the terms of the arrangement and for the $600 would himself turn over the "package". The informant and Pino then proceeded to a trash dump where a fruitless search of approximately ten to twenty minutes ensued for a container in which the heroin was supposedly concealed. The informant's contact with Pino, therefore, did not lead to a successful completion of the transaction.
Subsequently, on the same day, the informant met with Herring, accompanied him to the trash dump and in another area than the one in which the earlier search had taken place Herring located and delivered to the informant a beer can which contained heroin. At the conclusion of the trial, the case was submitted to the jury against Pino solely on theories that he was a principal or an aider and abettor. That has opened the door to defendant to argue that only an attempt by him was made.
However, that argument fails to take into account that his "attempt" was part of his effort to complete the transaction between Herring and the informant. One is no less an aider and abettor because one's efforts, while diligent, are not crowned in every respect with success. The success which is controlling is the actual consummation of the distribution transaction. While Pino did not locate the beer can containing heroin, he clearly wished to keep the transaction alive and actively brought it closer to completion. His actions served to keep the prospective purchaser's interest engaged. As stated in United States v. Licursi, 525 F.2d 1164, 1167 (2d Cir. 1975), also a case involving transfer of a controlled substance where the defendant was not the party making the delivery:
. . . 'In order to aid and abet another to commit a crime it is necessary that a defendant "in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed." ' Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 769, 93 L.Ed. 919 (1949), Quoting from United States v. Peoni, 100 F.2d 401, 402 (2 Cir., 1938); United States v. Manna, 353 F.2d 191, 192 (2 Cir., 1965), Cert. denied, 384 U.S. 975, 86 S.Ct. 1868, 16 L.Ed.2d 685 (1966), Rehearing denied, 385 U.S. 893, 87 S.Ct. 25, 17 L.Ed.2d 126.
The evidence, viewed in the light most favorable to the government, clearly demonstrates that Licursi took an active part in the consummation of Caufield's crime of selling cocaine and that he sought, by his own action, the success of the venture.
While Pino did not actually succeed in locating the can of heroin, he did Wish to do so. He did Seek to succeed. Herring, so aided and abetted, did succeed.
Furthermore, the foundation of the argument that Pino was not guilty because only an attempt by him was proven is flimsy. It exists solely because the district judge's instructions were restricted to theories of (a) direct action by the principal leading to a completed delivery and (b) aiding and abetting. Under the law, the case could properly have been submitted on the theory that Pino, as a principal, was guilty of distribution even if the proof established only an attempt to transfer. 21 U.S.C. § 802(8) and (11).
Moreover, had the government lacked evidence with which to convict Pino of...
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