U.S. v. Smith

• Decision Date: 20 November 1987
• Docket Number: No. 86-1292,86-1292
• Citation: 832 F.2d 1167
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Joseph SMITH, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1167

832 F.2d 1167

UNITED STATES of America, Plaintiff-Appellant, v. Joseph SMITH, Defendant-Appellee.

No. 86-1292.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 10, 1987.

Decided Nov. 20, 1987.

Hart & Wolff, Brook Hart, Honolulu, Hawaii, for defendant-appellee.

Michael A. Santoki, Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff-appellant.

Appeal from the United States District Court for the District of Hawaii.

Before WALLACE, NORRIS and NOONAN, Circuit Judges.

WALLACE, Circuit Judge:

The government appeals from the district court's order granting a new trial following Smith's conviction by a jury for possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). Disagreeing with the district court, the government contends that there was sufficient evidence to convict Smith for aiding and abetting the commission of the substantive offense charged in the indictment. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 and 18 U.S.C. Sec. 3731. We reverse the district court's order and reinstate Smith's conviction.

I

From the late 1960's until the early 1980's, Makaweo and Harbin were partners in a conspiracy to distribute cocaine in Hawaii. Smith supplied cocaine to Makaweo through Suber, a person whose role was to obtain large quantities of cocaine for the Makaweo organization for subsequent redistribution. Suber testified that he made three of his cocaine purchases for Makaweo from Smith.

Suber first met Smith in Hawaii in the spring of 1983. Approximately one year after this initial encounter, Smith visited Hawaii and informed Suber that he could supply cocaine in multi-kilogram quantities. On April 22, 1984, Suber called Smith, who was then in San Francisco, and told him that he was coming to San Francisco to purchase a kilogram of cocaine. Smith said that he could provide the cocaine and that Suber should contact him when he arrived. The following day, Suber and Hunt, another middleman in the Makaweo organization, traveled to San Francisco with a large sum of money for the purpose of purchasing a kilogram of cocaine to bring back to Hawaii. That evening, they met with Smith and consummated the purchase of cocaine. The following day, they returned to Hawaii.

In the next four to five months, Suber and Smith completed two more cocaine sales. In both of these transactions, unlike the first, Smith traveled to Hawaii with the cocaine. Makaweo himself was directly involved on these occasions in the exchange of money for cocaine. On one of these visits, Smith was within sight of Makaweo.

In October 1984, Suber traveled to San Francisco to purchase more cocaine from Smith and to establish a new "code" for the next transaction. Although Suber and Smith met, the proposed transaction was never completed because Suber was arrested on an unrelated drug charge.

Suber eventually agreed to cooperate with the Drug Enforcement Administration (DEA) in securing evidence against the distribution ring. Between January 31, 1985, and May 23, 1985, Suber placed a series of tape-recorded telephone calls to Smith to arrange additional cocaine transactions. In these recorded telephone conversations, the two men arranged for a two kilogram purchase using code language. This transaction, however, was never completed, apparently because Smith could not assemble the necessary quantity of cocaine. In subsequent tape-recorded conversations, Smith expressed both a willingness and ability to go forward with the planned transaction. Nonetheless, no additional transaction ever resulted from these conversations.

A thirty-four count indictment was filed in the district court in Hawaii against twenty persons alleged to be participants in the drug ring. On the basis of the first sale of cocaine to Suber in San Francisco in April 1984, Smith was charged with possession of cocaine with intent to distribute and with conspiracy to distribute cocaine. During the trial, the jury was instructed on the possession count based upon two separate theories. The first theory was that Smith had aided and abetted Suber in the possession of cocaine with intent to distribute in Hawaii. The second theory was that Smith, if found guilty of the conspiracy charge, could be convicted of the possession by Suber as a co-conspirator under a Pinkerton theory. United States v. Pinkerton, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). The jury returned a verdict convicting Smith on the possession count. Because the jury was unable to decide whether Smith should be convicted on the conspiracy count, a mistrial on that count was declared as to Smith.

Smith moved for a new trial on the possession count. The district judge granted the motion. He reasoned that because the jury failed to convict Smith of conspiracy, his conviction for possession could not be sustained on a Pinkerton theory. Hence, the only basis on which the jury could have convicted Smith of possession was on the aiding and abetting theory. The district court, however, concluded that the evidence failed to support a conviction on an aiding and abetting theory because nothing more was established than a single, isolated sales transaction. That San Francisco sale, the district judge held, was not connected, by itself, to the possession for distribution of the purchased cocaine in Hawaii. In arriving at his conclusion, the district judge held that an aiding and abetting theory could be supported only by evidence relating to the specific sale charged in the indictment, and not by any prior or subsequent events.

II

On appeal, the government asserts that the district court's order granting a new trial was really a judgment notwithstanding the verdict and hence on review, we must reinstate the jury's verdict so long as there was evidence from which any rational trier of fact could find Smith guilty beyond a reasonable doubt. Smith, on the other hand, argues that the district court's order granting a new trial was precisely that and consequently, we can reverse the order only if we find that granting a mistrial under the circumstances was an abuse of discretion. We need not resolve this dispute, however, because the first issue before us does not involve a review of the evidence, but is one of law: what evidence may be considered in determining whether a defendant has aided and abetted the commission of a crime. Thus, we conclude that the de novo standard of review is appropriate. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). Based on that standard, we conclude that the district court erroneously held that any evidence in support of the aiding and abetting theory must concern the specific sale for which Smith was indicted. We hold instead that evidence of negotiations and illicit transactions both prior and subsequent to the specific sale described in the count can be used to establish a seller's guilt as an aider and abettor.

In Nye & Nissen v. United States, 336 U.S. 613, 618, 69 S.Ct. 766, 769, 93 L.Ed. 919 (1949) (Nye & Nissen ), the Supreme Court enunciated the elementary rule of accomplice liability: one who aids and abets the commission of a crime "is as responsible for that act as if he committed it directly." Congress has incorporated this principle into 18 U.S.C. Sec. 2, which provides that anyone who "aids, abets, counsels, commands, induces or procures" the commission of a federal offense "is punishable as a principal." See United States v. Barnett, 667 F.2d 835, 841 (9th Cir.1982) (Barnett ). "Aiding and abetting, as used in 18 U.S.C. Sec. 2, means to assist the perpetrators of a crime." Id., quoting United States v. Lane, 514 F.2d 22, 26 (9th Cir.1975). Both our court and other circuits have held that a supplier of controlled substances can be convicted for aiding and abetting the recipient's subsequent possession for distribution. See, e.g., United States v. Mehrmanesh, 682 F.2d 1303 (9th Cir.1982) (Mehrmanesh ); United States v. Buckhanon, 505 F.2d 1079 (8th Cir.1974); United States v. Aguirre-Aguirre, 716 F.2d 293, 298 (5th Cir.1983); United States v. Brantley, 733 F.2d 1429 (11th Cir.1984), cert. denied, 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985); United States v. Raper, 676 F.2d 841 (D.C.Cir.1982).

To convict Smith for aiding and abetting Suber in the crime of possession of cocaine with intent to distribute, the evidence must establish that Smith "associate[d] himself with the venture, that he participate[d] in it as something he wish[ed] to bring about, and that he [sought] by his action to make it succeed." Nye & Nissen, 336 U.S. at 619, 69 S.Ct. at 770, quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir.1938). Although convicting a person for aiding and abetting requires proof that he "shared in the criminal intent of the principal," Hernandez v. United States, 300 F.2d 114, 123 (9th Cir.1962), quoting Johnson v. United States, 195 F.2d 673, 675 (8th Cir.1952), the government need not prove that the defendant was aware of every detail of the impending crime, Mehrmanesh, 682 F.2d at 1308; United States v. Short, 493 F.2d 1170, 1172 (9th Cir.), cert. denied, 419 U.S. 1000, 95 S.Ct. 317, 42 L.Ed.2d 275 (1974), nor that he be present at, or personally participate in, committing the substantive crime. Mehrmanesh, 682 F.2d at 1308-09; United States v. Sampol, 636 F.2d 621, 676 (D.C.Cir.1980). The evidence linking the defendant to the substantive offense can be circumstantial. See Nye & Nissen, 336 U.S. at 619, 69 S.Ct. at 769-70. We believe, moreover, that to the extent that evidence of prior and subsequent negotiations and illicit transactions bears on the issue of a defendant's intent to assist in the perpetrating of the specific criminal act charged in the indictment, such evidence can be used to convict a defendant of aiding and abetting.

III

To determine whether the district court's erroneous application of...