U.S. v. Sellers
| Decision Date | 11 September 1979 |
| Docket Number | Nos. 79-1107,79-1112,s. 79-1107 |
| Citation | 603 F.2d 53 |
| Parties | UNITED STATES of America, Appellee, v. Preston SELLERS, Appellant. UNITED STATES of America, Appellee, v. Johnnie CARADINE, Appellant. UNITED STATES of America, Appellee, v. Donald ALLEN, Appellant. UNITED STATES of America, Appellee, v. William E. JEWETT, Appellant. UNITED STATES of America, Appellee, v. Dennis Lavern ENGLISH, Appellant. UNITED STATES of America, Appellee, v. William James MONROE, Appellant. to 79-1114, 79-1125 and 79-1126. |
| Court | U.S. Court of Appeals — Eighth Circuit |
John D. Hudson, Carney, Hudson & Williams, Des Moines, Iowa, for appellant, Sellers.
Mark W. Bennett, Des Moines, Iowa, for appellant, Jewett; R. Earl Barrett, Des Moines, Iowa, for appellant, Monroe; David C. Shinkle, Robert H. Laden, Frank A. Comito, Des Moines, Iowa, on the briefs.
John O. Martin, Sp. Asst. U. S. Atty., Kansas City, Kan., for appellee; Roxanne Barton Conlin, U. S. Atty., and Amanda M. Dorr, Asst. U. S. Atty., Des Moines, Iowa, on the brief.
Before GIBSON, Chief Judge, and ROSS and HENLEY, Circuit Judges.
Defendants were tried jointly for conspiracy to distribute heroin in violation of 21 U.S.C. § 846. The jury returned a verdict of guilty as to each, and the district court 1 sentenced each defendant to four years imprisonment to be followed by a special three year parole term, 21 U.S.C. §§ 841(a)(1) and 841(b) (1)(A). On appeal defendants challenge the sufficiency of the evidence to sustain their convictions, various rulings by the district court before and during trial, and the legality of their sentences. We affirm.
Defendants first contend that the evidence was insufficient to establish the existence of a conspiracy to distribute heroin. We disagree. The record overwhelmingly establishes a long-term, successful and profitable heroin distribution scheme in Iowa headed by Clifford Hobbs.
George Childress, a heroin supplier based in Los Angeles, testified that for approximately three years beginning in 1975, he sold heroin to Clifford Hobbs for distribution in Cedar Rapids and Des Moines, Iowa. While Hobbs or persons he designated usually picked up the heroin from Childress in California, occasionally Childress sent the narcotics to Hobbs in Iowa. Deliveries occurred approximately three times per month, averaging six ounces per sale, for a price of $850 an ounce.
A number of "lieutenants" (who held intermediate positions below Hobbs in the distribution scheme) and street dealers (who ranked below lieutenants) testified to the structure of Hobbs' organization, including the substantial profits at each level and identified participants in the operation. Their testimony was corroborated by Drug Enforcement Administration agents and Iowa state police as well as by tape recordings between government informants and members of the conspiracy.
We also find the evidence sufficient to connect each of the defendants to the conspiracy. 2 The record includes the following testimony.
Donald Larry Jones, a lieutenant in Hobbs' operation beginning in April 1977 and previously a street dealer working for another Hobbs lieutenant, reported his dealings with each of the defendants. While he was still a street dealer, Jones purchased heroin from Dennis English in December 1976 and January 1977. English told Jones that he was selling heroin for Hobbs. Jones was subsequently directed to William Jewett for a supply of heroin in return for work Jones had performed for Clifford Hobbs and for Mable Woods, with whom Hobbs lived. Jewett sold heroin to Jones in March and April 1977.
When Jones first became a lieutenant, Johnnie Caradine was one of three street dealers Jones supplied with heroin. In each transaction with Caradine, Jones provided 10 to 20 "bindles" or packets of heroin. Caradine sold these, returning $17.00 to Jones for each bindle. Jones subsequently turned these amounts over to Hobbs. In August 1977, Preston Sellers became a street dealer supplied by Jones.
In June 1977, Hobbs went to California to purchase heroin. Donald Jones telephoned him three times to determine when Hobbs would return and where Jones could obtain more heroin. When Hobbs returned to Des Moines, he instructed Jones to contact Don Williams, a member of Hobbs' organization, who was to direct Jones to the source of his next supply of Hobbs' heroin. Complying with these directions, Jones obtained 30 bindles of the promised heroin from defendant William Monroe. Monroe told Jones to return the profits from the sale of 20 bindles to Don Williams. Jones complied, and the next day he returned to Monroe for more heroin, again directed to do so by Don Williams. At that time Monroe stated that he had destroyed his remaining supply during an encounter with police.
Loraine Moomey, a police informant, testified that between January and August 1977, she purchased heroin from defendants English, Jewett, Caradine and Sellers, dealing several times with each. During most of this period, Moomey was working for Officer Jack Morton of the Des Moines police narcotics unit. Morton's testimony at trial corroborated Moomey's activities.
In addition, Joe Lewis, a heroin user, testified that he was paid in heroin for odd jobs he performed for Clifford Hobbs and Mable Woods. At Hobbs' direction, Lewis went to Dennis English, among others, for delivery of the heroin.
Ellen Sue Newton, a heroin user, testified that on various occasions she accompanied William Monroe to the home of Mable Woods' daughter. Each time Monroe entered the house alone, and when he returned Newton and Monroe immediately used heroin together.
Gail Hill, a heroin user and dealer supplied by Donald Jones, testified that Preston Sellers helped her sell heroin obtained from Jones and that Sellers sometimes sold some of Jones' supply alone. Another witness, Jill Seibert, reported that at her request, Preston Sellers supplied the first heroin she had ever used.
Defendants urge that the testimony of Jones and Moomey should be discounted as that of convicted felons, heroin addicts and immunized coconspirators. Nevertheless, unless incredible or unsubstantial on its face, the testimony of an accomplice is sufficient to sustain a conviction. United States v. Abrahamson, 568 F.2d 604, 607 (8th Cir. 1978). The credibility of these witnesses and the weight to accord their testimony are matters entrusted to the jury. United States v. Scholle, 553 F.2d 1109, 1119 (8th Cir.), Cert. denied, 434 U.S. 940, 98 S.Ct. 432, 54 L.Ed.2d 300 (1977). The evidence need not "exclude every hypothesis except that of guilt" as long as it is sufficient to convince the jury beyond a reasonable doubt that the defendant is guilty. United States v. Collins, 552 F.2d 243, 245 (8th Cir.), Cert. denied, 434 U.S. 870, 98 S.Ct. 214, 54 L.Ed.2d 149 (1977). Furthermore, United States v. Schmaltz, 562 F.2d 558, 560 (8th Cir.), Cert. denied, 434 U.S. 957, 98 S.Ct. 485, 54 L.Ed.2d 315 (1977). We have reviewed the record, and we find substantial evidence upon which the jury could have found affirmative cooperation and knowing participation in the Hobbs heroin distribution operation by each defendant. 3
William Jewett contends that three overt acts alleged in the indictment relating conduct specifically by him were not established by the evidence and that it was error to include them in the court's charge to the jury. However, Jewett does not suggest a failure of proof with respect to other overt acts alleged in the indictment. Furthermore, testimony by Donald Jones and Loraine Moomey provided proof of additional overt acts and a basis for the jury's finding of Jewett's complicity in the narcotics scheme.
In a conspiracy prosecution, the government is not limited to proof of only those overt acts charged in the indictment and in fact need not prove every overt act alleged. United States v. Harris, 542 F.2d 1283, 1300 (7th Cir. 1976), Cert. denied, 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779 (1977); United States v. Adamo, 534 F.2d 31, 38 (3d Cir.), Cert. denied,429 U.S. 841, 97 S.Ct. 116, 50 L.Ed.2d 110 (1976). In addition, if an alleged overt act has not been proved, its submission to the jury is harmless error when the jury is presented with other overt acts in furtherance of the conspiracy which were sufficiently supported by the evidence. United States v. Bletterman, 279 F.2d 320, 322 (2d Cir. 1960); Giardano v. United States,251 F.2d 109, 115 (8th Cir.), Cert. denied, 356 U.S. 973, 78 S.Ct. 1136, 2 L.Ed.2d 1147 (1958). 4
Before trial, Jewett moved for a continuance on the ground that his attorney could not be present at trial because of a scheduling conflict. However, Mr. Robert Taha, a partner of Jewett's attorney, appeared at trial on Jewett's behalf. Jewett concedes that he was well represented by Mr. Taha, and in fact the record reveals able, well-prepared and thorough representation. We find no prejudice or abuse of discretion in the district court's refusal to postpone the date of trial. See generally, United States v. Little, 567 F.2d 346, 348-49 (8th Cir. 1977), Cert. denied, 435 U.S. 969, 98 S.Ct. 1608, 56 L.Ed.2d 60 (1978).
In the indictment, specific details as to the role of defendant Donald Allen were not provided except for allegations that as a member of the conspiracy, he sold heroin to Loraine Moomey in February and March 1977. His pretrial motion for a bill of particulars was denied. At trial, William Givens, a member of Hobbs' organization, testified that he too had purchased heroin from Allen. Allen claims that he was unfairly surprised by Givens' testimony and...
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