U.S. v. Tyler, 697

• Decision Date: 26 March 1985
• Docket Number: No. 697,D,697
• Citation: 758 F.2d 66
• Parties: UNITED STATES of America, Appellee, v. Warren TYLER, Defendant-Appellant. ocket 84-1329.
• Court: U.S. Court of Appeals — Second Circuit

Page 66

758 F.2d 66

UNITED STATES of America, Appellee, v. Warren TYLER, Defendant-Appellant.

No. 697, Docket 84-1329.

United States Court of Appeals Second Circuit.

Argued Jan. 21, 1985.

Decided March 26, 1985.

Robin Charlow, The Legal Aid Society, Federal Defender Services Unit, New York City (Sylvia Peck, The Legal Aid Society, Federal Defender Services Unit, New York City, of counsel), for defendant-appellant.

Arthur W. Mercado, Asst. U.S. Atty., S.D.N.Y., New York City (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Martin L. Perschetz, Asst. U.S. Atty., S.D.N.Y., New York City, of counsel), for appellee.

Before VAN GRAAFEILAND, MESKILL and WINTER, Circuit Judges.

MESKILL, Circuit Judge:

Warren Tyler appeals from a judgment of conviction entered in the United States District Court for the Southern District of New York, Cannella, J., on a jury verdict. Following a two day trial, the jury found Tyler guilty of conspiracy to distribute heroin in violation of 21 U.S.C. Sec. 846 (1982) and of aiding and abetting the distribution of heroin in violation of 18 U.S.C. Sec. 2 (1982) and 21 U.S.C. Sec. 841 (1982). Tyler was sentenced to concurrent terms of two years imprisonment on each of the two counts, to be followed by a five year special parole term on the aiding and abetting count. He is currently serving his sentence.

Tyler advances one claim on appeal. He argues that the evidence presented at trial was insufficient to establish his guilt beyond a reasonable doubt. For the reasons that follow, we accept Tyler's argument with respect to the conspiracy count but reject it with respect to the aiding and abetting count.

BACKGROUND

Tyler's arrest, indictment and conviction stemmed from a purchase of heroin by New York City Police Detective Cleveland Baxter. Baxter made the actual purchase of heroin from James Bennett. Tyler was arrested because Baxter identified Tyler as the man who had introduced him to Bennett. Tyler was charged in two counts of a four count indictment. Count one charged conspiracy to distribute heroin and count two charged aiding and abetting the distribution of heroin.

At trial, Baxter was the government's main witness. He testified that on May 10, 1984, he went to Harlem as part of an undercover narcotics operation. His goal was to make at least two purchases of drugs. As he was walking along the street he encountered Tyler. After an exchange of greetings, Tyler asked Baxter "if everything was all right." Tr. at 15. Baxter told Tyler that he "was looking for some good dope." (Dope is the street name for heroin.) Id. Tyler told Baxter that "he would take care of [him]." Id.

The two began to walk down the street. They stopped and Tyler went off to the side and spoke briefly to an unidentified individual. Tyler returned to Baxter and told him that "he was trying to get [him] something that was good, because there was a lot of dope on the street that was not good." Id. The two then continued to walk down the street.

They next encountered Bennett. Tyler and Bennett stepped off to the side and had a brief conversation, after which Bennett walked over to Baxter and asked "how many did [he] want." Tr. at 16. Baxter told him three. Baxter and Bennett then began to walk down the street. As they were walking, they exchanged three glassine envelopes containing heroin for thirty dollars.

After completing the transaction with Bennett, Baxter turned around and walked back up the street. As he was walking away, Tyler approached him and asked him for some change. Baxter told him that he was low on cash and "that maybe he could check with [Bennett] and [Bennett would] take care of him." Tr. at 17. Baxter testified that Tyler replied "yes, but he just wanted to have more change, he was trying to get something." Id. Baxter gave Tyler seventy-five cents and the two parted company. Baxter reported the buy to his back-up team and they arrested Tyler approximately twenty minutes later. At the time of his arrest, Tyler was carrying two dollars and seventy-five cents.

Tyler was the only witness called by the defense. He testified that although Baxter asked him about drugs, he did not take Baxter to Bennett nor did he have any role in the sale. He did testify, however, that he saw the sale take place and that after it was completed he approached Baxter to ask him for some money.

After two days of deliberations the jury found Tyler guilty on both the conspiracy count and the aiding and abetting count. Tyler's motion for entry of judgment of acquittal notwithstanding the verdict or for a new trial was denied. The appeal before us ensued.

DISCUSSION

1. Conspiracy

Tyler's first argument is that there was insufficient evidence of an agreement between him and Baxter to establish the existence of a conspiracy to distribute heroin. The parameters of an appellate court's inquiry into the sufficiency of the evidence supporting an appellant's conviction are clear.

A defendant challenging the sufficiency of the evidence carries "a very heavy burden". United States v. Carson, 702 F.2d at 361 [ (2d Cir.1983) ]; United States v. Losada, 674 F.2d 167, 173 (2d Cir.), cert. denied, 457 U.S. 1125, 102 S.Ct. 2945, 73 L.Ed.2d 1341 (1982). "The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it." Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). Further, "pieces of evidence must be viewed not in isolation but in conjunction", United States v. Carson, 702 F.2d at 362, and a reviewing court must draw all available inferences, and resolve all issues of credibility, in favor of the jury's verdict. United States v. Bagaric, 706 F.2d 42, 64 (2d Cir.), cert. denied, --- U.S. ----, ----, ----, 104 S.Ct. 133, 134, 283, 78 L.Ed.2d 128, 128, 261 (1983).

United States v. Young, 745 F.2d 733, 762 (2d Cir.1984).

In addition, we have recognized that " '[a] conspiracy by its very nature is a secretive operation.' " Id. (quoting United States v. Provenzano, 615 F.2d 37, 45 (2d Cir.), cert. denied, 446 U.S. 953, 100 S.Ct. 2921, 64 L.Ed.2d 810 (1980)). Thus, we have held that the existence of "a conspiracy ... may be established ... through circumstantial evidence." United States v. Sanzo, 673 F.2d 64, 69 (2d Cir.), cert. denied, 459 U.S. 858, 103 S.Ct. 128, 74 L.Ed.2d 111 (1982). Moreover, to be sufficient "the evidence need not have excluded every possible hypothesis of innocence." United States v. Soto, 716 F.2d 989, 993 (2d Cir.1983).

Our narrow standard of review, however, does not require us to affirm all conspiracy convictions. On the contrary, we have found the evidence insufficient to sustain a conspiracy conviction in a number of cases. See, e.g., Young, 745 F.2d at 764; United States v. Gaviria, 740 F.2d 174, 184 (2d Cir.1984); Soto, 716 F.2d at 991-93. Likewise, we find the evidence in the instant case insufficient to sustain Tyler's conspiracy conviction.

The government's evidence against Tyler consisted mainly of Baxter's testimony. According to Baxter's version of the transaction, Tyler told Baxter that he would get him some good dope. After making some type of inquiry of an unidentified individual, Tyler encountered Bennett. Tyler had a brief side conversation with Bennett and Bennett then approached Baxter. Bennett and Baxter walked away from Tyler and consummated their deal. The two then separated and Tyler walked up to Baxter and asked him for some change. Conspicuously absent from this scenario is any evidence that Tyler asked Baxter how much heroin he sought to purchase, that Tyler indicated that he had a specific source of heroin in mind for Baxter, that Tyler knew where to find Bennett or expected him to be in the area, or that Tyler had made any previous deals with Bennett. ¹

The evidence adduced by the government merely shows that Tyler helped a willing buyer locate a willing seller. As we have stated in the past, such evidence, standing alone, is insufficient to establish the existence of an agreement between the facilitator and the seller. United States v. Hysohion, 448 F.2d 343, 347 (2d Cir.1971) ("The fact that Rimbaud told Everett, a willing buyer, how to make contact with a willing seller does not necessarily imply that there was an agreement between that seller ... and Rimbaud."); United States v. Torres, 519 F.2d 723, 726 (2d Cir.), cert. denied, 423 U.S. 1019, 96 S.Ct. 457, 46 L.Ed.2d 392 (1975) ("membership in a conspiracy is not established ... by the fact that a defendant told a willing buyer how to make contact with a willing seller" (citations omitted)). ²

In an attempt to fill in the holes in its case, the government relies on the jury's obvious disbelief of Tyler's testimony to support the conspiracy conviction. We agree with the government that " '[o]nce a defendant offers evidence after the denial of a motion for acquittal at the close of the Government's case ... [he] waives any claim as to the sufficiency of the Government's case considered alone.' " United States v. Maniego, 710 F.2d 24, 28 (2d Cir.1983) (per curiam) (quoting United States v. Keuylian, 602 F.2d 1033, 1040-41 (2d Cir.1979)); see also United States v. Pui Kan Lam, 483 F.2d 1202, 1208 n. 7 (2d Cir.1973), cert. denied, 415 U.S. 984, 94 S.Ct. 1578, 39 L.Ed.2d 881 (1974). We also agree that the jury has a right to consider the defendant's lack of credibility in reaching its verdict. See United States v. Panza, 750 F.2d 1141, 1150 (2d Cir.1984); United States v. Bagaric, 706 F.2d 42, 66 (2d Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 133, 134, 283, 78 L.Ed.2d 128 (1984); United States v. Callabrass, 607 F.2d 559, 565 (2d Cir.1979), cert. denied, 446 U.S. 940, 100 S.Ct. 2163, 64 L.Ed.2d 794 (1980); United States v. Singleton, 532 F.2d 199, 204 (2d Cir.1976); United States v. Rizzuto, 504 F.2d 419, 420-21 (2d Cir.1974); Pui Kan Lam, 483 F.2d at 1208; United States v. Arcuri, 405 F.2d 691, 695 (2d Cir.1968), ...