U.S. v. Walker

Citation621 F.2d 163
Decision Date09 July 1980
Docket NumberNo. 79-5569,79-5569
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Roy A. WALKER, Defendant-Appellant. Summary Calendar. *
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Jack Martin, Dallas, Tex., for defendant-appellant.

LeRoy Morgan Jahn, John E. Murphy, Asst. U.S. Attys., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before RONEY, KRAVITCH and TATE, Circuit Judges.

KRAVITCH, Circuit Judge:

Roy A. Walker was convicted by a jury of conspiracy to import marijuana in violation of 21 U.S.C. §§ 952(a) and 963 and conspiracy to possess marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846. On appeal, Walker challenges: (1) the jury instruction on the law of aiding and abetting; (2) the consecutive sentences for the convictions of both conspiracy to import marijuana and conspiracy to possess with intent to distribute when the conspiracies allegedly arose out of the same series of acts; (3) denial of his motion for mistrial after the prosecutor attempted to adduce evidence regarding a remote extraneous offense; and (4) denial of his motion for continuance. After carefully considering the record we find appellant's arguments meritless. Accordingly, we affirm.

I. Facts

On October 23, 1977, a Drug Enforcement Administration agent, investigating the crash of an airplane near Seguin, Texas, discovered John W. Mathews, injured and lying behind a barn near the wreckage of the plane. Approximately 1100 pounds of marijuana were found on the plane. Mathews subsequently agreed to cooperate with the government and testified at the trial of this case.

According to Mathews, during 1975 and 1976, acting under appellant's directions, he flew three plane loads of marijuana from Mexico to Texas. He was paid between $7,000 and $10,000 per trip. In August, 1977, Mathews and appellant met with several Mexicans in Pharr, Texas, to make arrangements for resuming their smuggling operation. Mathews and Walker, accompanied by the Mexicans, drove to a remote area in Mexico, approximately 15 miles from the border, to determine the suitability of an airstrip for use in the smuggling operation. Mathews and appellant then drove back to Dallas. A few days later, Mathews, acting on instructions from appellant, flew back to the Mexican airstrip to pick up the marijuana. Although the marijuana had been ruined by rain, Mathews returned to Texas with some packages which he disposed of.

After appellant renegotiated with his Mexican contacts to replace the spoiled marijuana, appellant and Mathews purchased an airplane under a fictitious name and both flew it to the Mexican airstrip. Mathews supervised the loading of the marijuana and after quickly inspecting the plane, he flew it out of Mexico. En route to Dallas he experienced mechanical difficulties with the plane and encountered bad weather. Mathews attempted to land the airplane, but lost control and crashed near Seguin, Texas, where he was found by the DEA agent the following day.

II. The Instruction Regarding "Aiding and Abetting"

Appellant first contends that the district court erred in instructing the jury that under 18 U.S.C. § 2 whoever aids or abets in the commission of an offense is punishable as a principal. 1 He argues that he was charged only with two conspiracy counts, not with aiding and abetting; the instructions regarding aiding and abetting erroneously expanded the theories upon which the jury could convict, allowing the jury to convict him of the separate and distinct crime of aiding and abetting rather than of the crimes of conspiracy with which he was charged; furthermore, the instructions, in effect, reduced the government's burden of proof.

The court did not err in giving an instruction on aiding and abetting even though the defendant was not specifically indicted on that count. As we noted in United States v. Bullock, 451 F.2d 884, 888 (5th Cir. 1971), 18 U.S.C. § 2 is an alternative charge in every count, whether explicit or implicit, "and the rule is well-established, both in this circuit and others, that one who has been indicted as a principal may be convicted on evidence showing that he merely aided and abetted the commission of the offense." 2

Neither can we agree that the charge embodying 18 U.S.C. § 2 allowed the jury to convict Walker on a separate charge from those stated in the indictment. 18 U.S.C. § 2 does not define a crime. It simply makes punishable as a principal one who aids or abets the commission of a substantive crime. United States v. Cowart, 595 F.2d 1023 (5th Cir. 1979); Powers v. United States, 470 F.2d 991 (5th Cir. 1972).

Appellant seeks to distinguish these cases, urging that he was charged not as a principal, but as a conspirator in a conspiracy, a distinct "inchoate" offense similar to, but different from aiding and abetting. However, if we accept the Eighth Circuit's ruling in United States v. Rector, 538 F.2d 223, 225 (8th Cir. 1976), cert. denied, 441 U.S. 963, 99 S.Ct. 2410, 60 L.Ed.2d 1068 (1979), that 18 U.S.C. § 2 is applicable to the entire criminal code, 3 it would be applicable to conspiracy. Indeed, the Ninth Circuit has upheld convictions for aiding and abetting a conspiracy. 4

Relying on language in Nye and Nissen v. United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919 (1949), appellant contends that the law of aiding and abetting is broader in scope than conspiracy; that by instructing the jury on the "broader" charge of aiding and abetting, the court reduced the government's burden of proof, thereby making a conviction more likely on the "narrower" charge of conspiracy.

Appellant's interpretation of Nye and Nissen is incorrect. In Nye and Nissen the Supreme Court held that aiding and abetting had a broader application than the rule announced in Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), in which the Supreme Court decided that a defendant may be found guilty of the substantive offense even though he did no more than join the conspiracy if the substantive offense was committed in furtherance of the conspiracy and as a part of it.

Justice Douglas in Nye and Nissen found that although there was not enough evidence to convict the defendant of the substantive counts, there was circumstantial evidence wholly adequate to support the finding of the jury that the defendant aided and abetted in the commission of the offenses:

We see therefore no reason to exculpate him as an aider and abettor. There was no inadequacy in the charge to the jury on that theory. Nor was the submission in conflict with Pinkerton v. United States, supra. The rule of that case does service where the conspiracy was one to commit offenses of the character described in the substantive counts. Aiding and abetting has a broader application. It makes a defendant a principal when he consciously shares in any criminal act whether or not there is a conspiracy. And if a conspiracy is also charged, it makes no difference so far as aiding and abetting is concerned whether the substantive offense is done pursuant to the conspiracy. Pinkerton v. United States is narrow in its scope. Aiding and abetting rests on a broader base; it states a rule of criminal responsibility for acts which one assists another in performing. The fact that a particular case might conceivably be submitted to the jury on either theory is irrelevant. It is sufficient if the proof adduced and the basis on which it was submitted were sufficient to support the verdict.

336 U.S. at 619-20, 69 S.Ct. at 770.

Thus, in Nye and Nissen the Court simply held that aiding and abetting makes a defendant liable as a principal when he consciously shares in any criminal act, whether or not there is a conspiracy. Accordingly, appellant can find no support in Nye and Nissen for his argument that the instruction on aiding and abetting reduced the government's burden of proof.

III. The Consecutive Sentences

Walker next argues that he could not have been convicted and sentenced to consecutive terms of imprisonment for both conspiracy to import marijuana and conspiracy to possess it, because the conspiracies allegedly arose out of the same series of acts.

In United States v. Rodriguez, 612 F.2d 906 (5th Cir. 1980) (en banc) we considered the propriety of imposing cumulative punishment for multiple conspiracies which arose out of the same series of transactions. In Rodriguez we construed 21 U.S.C. §§ 846 and 963 to authorize the imposition of consecutive sentences where a conspiracy with dual objectives was involved. Since appellant here admits that there was a diversity of objectives, importing marijuana as well as possessing with intent to distribute, the judge was within his discretion in sentencing Walker to two consecutive terms even if there was but one conspiratorial agreement.

IV. The Attempted Introduction of Inadmissible Evidence

During the course of the prosecutor's questioning of Mathews, the following exchange took place:

Q. Directing your attention to 1972, did you have an occasion to have a conversation with Mr. Walker concerning the event about which you just mentioned?

A. Yes. I used to drive . . .

Mr. Martin: Your Honor, I object to anything that happened in 1972 as being outside the scope of this indictment and totally irrelevant.

The Court: What do you say?

Mr. Kerr: Number One, the indictment charges that the conspiracy began on or before October, 1977, and I'm also offering this as a prior similar act of an identical nature.

Mr. Martin: It has no bearing to any matter before this jury.

The Court: Isn't that a little remote, 1972?

Mr. Kerr: Your Honor, it's only five years before the Mr. Martin: Now, your Honor . . .

The Court: Why don't you approach the bench?

A bench conference was then held outside the hearing of the jury during which the district court sustained the objection and denied appellant'...

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