U.S. v. Teal

• Decision Date: 20 October 1978
• Docket Number: No. 77-5729,77-5729
• Citation: 582 F.2d 343
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank Douglas TEAL, Frances Katherine Carpenter, a/k/a Kathy Ann Summers, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 343

582 F.2d 343

UNITED STATES of America, Plaintiff-Appellee, v. Frank Douglas TEAL, Frances Katherine Carpenter, a/k/a Kathy

Ann Summers, Defendants-Appellants.

No. 77-5729.

United States Court of Appeals, Fifth Circuit.

Oct. 20, 1978.

Andrew L. Vogel, Dee Lee Thomas, Jr., Fort Worth, Tex., for Teal.

Frank D. McCown, Fort Worth, Tex., for Carpenter.

Kenneth J. Mighell, U. S. Atty., Fort Worth, Tex., Arnaldo Cavazos, Harry Koch, Asst. U. S. Attys., Dallas, Tex., for plaintiff-appellee.

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

Before GEWIN, RONEY and GEE, Circuit Judges.

GEWIN, Circuit Judge:

Frances Katherine Carpenter and Frank Douglas Teal were found guilty by a jury and convicted of conspiracy to possess with intent to distribute heroin and cocaine in violation of 21 U.S.C. § 846. In these consolidated appeals both appellants challenge the sufficiency of the evidence to support their convictions. We affirm.

At approximately 7:35 p. m. on March 9, 1977, Walter Fisher, special agent with the Drug Enforcement Administration, and Richard Pendergraft, a paid government informant, met appellant Teal at Jester's Court, a bar in Fort Worth, Texas. Pendergraft had arranged the meeting. When Fisher and Pendergraft entered the bar, Teal was using a telephone. The two men sat down at a table and Teal joined them a few minutes later. Pendergraft introduced Teal to Fisher and a discussion ensued, the general subject of which was narcotics. After about five minutes, Teal arose from the table and made a second telephone call.

Approximately ten minutes later defendant Mrs. Carpenter entered the bar and joined the three men. Teal introduced Fisher and Pendergraft to Mrs. Carpenter by saying, "This is Richard and Walt, the people I was telling you about", or other words to that effect.

A conversation ensued and Mrs. Carpenter informed Fisher and Pendergraft that she could supply them with heroin and cocaine through sources she knew in Los Angeles, California. She stated that Fisher and Pendergraft would have to go to Los Angeles to purchase an initial sample quantity of heroin, and explained that she would contact her California sources that night and arrange the purchase. Mrs. Carpenter offered to escort them to California. The two men and Mrs. Carpenter agreed that she would be paid $1,000.00 for the introduction to the California sources. Teal was present at the table during the entire conversation, but did not participate.

On March 14, 1977, Mrs. Carpenter's husband Sammie Lee Carpenter, ¹ met with Fisher and Pendergraft. At the meeting, Mr. Carpenter planned a trip to California for himself and the two men for the following day to purchase an initial sample quantity of heroin. During the meeting Mr. Carpenter stated that he has spoken by phone to the Los Angeles sources on the evening of Teal, Fisher, and Pendergraft's meeting with Mrs. Carpenter and that the sources had assented to make the sale. Fisher and Pendergraft agreed to pay Mr. Carpenter the $1,000.00 commission promised Mrs. Carpenter. Two days later Fisher paid at least a portion of the money to Mr. Carpenter.

On March 15, 1977, Mr. Carpenter, Fisher and Pendergraft flew to Los Angeles where Agent Fisher, pursuant to Mr. Carpenter's directions, purchased two ounces of heroin from a Mr. Coleman. ² Upon their return flight home, the three were met by Mrs. Carpenter at the Fort Worth-Dallas airport. Mrs. Carpenter asked Agent Fisher how the deal had gone and if he was satisfied with it. When he gave a negative response, she commented that "she hoped things would go better in the future, that maybe next time around it would be a little bit easier."

On April 6, 1977 Agent Fisher again met with defendant Teal at Jester's Court. They discussed the purchase of heroin in Los Angeles. Fisher gave Teal a $100 bill for introducing Fisher to Mrs. Carpenter. At the same time the agent expressed his dissatisfaction with the sale and the quantity of the heroin purchased. Teal accepted the $100, commenting "that was not very much money for him."

Appellants' sole contention is that because of the insufficiency of the evidence against them the district court erred in denying their motions for judgments of acquittal. More specifically, both Teal and Mrs. Carpenter argue that the government failed to adduce sufficient evidence at trial to establish their participation in a conspiracy. This court has held that the standard to be applied in determining the sufficiency of the evidence is as follows On a motion for judgment of acquittal, the test is whether, taking the view most favorable to the Government, a reasonably-minded jury could accept the relevant evidence as adequate and sufficient to support the conclusion of the defendant's guilt beyond a reasonable doubt.

The same test . . . should apply whether the evidence is direct or circumstantial. (W)e must accept as established all reasonable inferences that tend to support the action of the jury, and any conflicts in the evidence must be resolved in favor of the jury verdict.

United States v. Warner, 441 F.2d 821, 825, 831 (5th Cir. 1971), Cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971), Quoted in United States v. Carrillo, 565 F.2d 1323, 1325 (5th Cir. 1978).

The essential elements of the crime of conspiracy are an agreement between two or more persons to commit a crime and an overt act in furtherance of the agreement. United States v. Gutierrez, 559 F.2d 1278, 1280 (5th Cir. 1977); United States v. Barrerra, 547 F.2d 1250, 1256 (5th Cir. 1977); United States v. Isaacs, 516 F.2d 409, 410 (5th Cir. 1975), Cert. denied, 423 U.S. 936, 96 S.Ct. 295, 46 L.Ed.2d 269 (1975). Once the existence of a conspiracy is established, however, only slight evidence is required on appellate review to establish that an individual participated in the conspiracy. United States v. Dearden, 546 F.2d 622, 624 (5th Cir. 1977); United States v. Warner, 441 F.2d 821, 831 (5th Cir. 1971), Cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971). This standard of review is applicable where the defendants are "clearly connected to the conspiring group or are found acting in such a manner as unmistakably to forward its purposes. In such instances . . . slight additional evidence suffices to base an inference that one who had been shown beyond a reasonable doubt to be a participant was as well a knowing participant." United States v. Alvarez, 548 F.2d 542, 544 (5th Cir. 1977), Quoted in United States v. Trevino, 556 F.2d 1265, 1268 (5th Cir. 1977).

Appellants do not contest the existence of a conspiracy to possess and distribute drugs, but only their connection with the common scheme. The evidence clearly supported a finding by the jury that two or more persons agreed to execute an illegal sale of drugs and committed overt acts in furtherance of that purpose. Mrs. Carpenter on March 9 agreed to arrange a sale of heroin and cocaine through her California sources; her husband, Sammie Lee Carpenter, contacted the same sources that same night and the sources agreed to make the sale. Mr. Carpenter traveled to California with Fisher and Pendergraft and arranged the meeting between Fisher and Mr. Coleman and the subsequent sale. Mr. Carpenter received a portion of the $1000 promised Mrs. Carpenter for her services and defendant Teal received $100.00 for the introduction to Mrs. Carpenter. Proof of conspiracy normally depends upon "inferences drawn from relevant and competent circumstantial evidence . . . ." Warner, supra at 830, and the jury's determination here that a conspiracy existed was a reasonable inference from the facts.

With the conspiracy established, the paramount question remaining is whether the requisite "slight evidence" was adduced to establish that appellants' participation in the scheme was as well knowing...