U.S. v. Wilson

• Decision Date: 30 September 1981
• Docket Number: 79-5610,Nos. 79-5609,s. 79-5609
• Parties: 9 Fed. R. Evid. Serv. 215 UNITED STATES of America, Plaintiff-Appellee, v. Harold Thomas WILSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Bobby Eugene HENDRIX, Defendant-Appellant. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 755

657 F.2d 755

9 Fed. R. Evid. Serv. 215

UNITED STATES of America, Plaintiff-Appellee, v. Harold Thomas WILSON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Bobby Eugene HENDRIX, Defendant-Appellant.

Nos. 79-5609, 79-5610.

United States Court of Appeals Fifth Circuit.

Unit A

Sept. 30, 1981.

Robert P. Scott, Houston, Tex. (Court-appointed), for defendants-appellants.

Terence J. Lynam, William C. Bryson, Dept. of Justice, Washington, D. C., for plaintiff-appellee.

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

Before GEE, TATE and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Harold Thomas Wilson and Bobby Eugene Hendrix, appellants, were indicted in a twenty-one defendant, thirty-five count indictment aimed at breaking an alleged heroin distribution ring in South Dallas, Texas. Wilson was charged with conspiracy to distribute heroin in violation of 21 U.S.C. § 846 (1976) (Count 1), possession of heroin with intent to distribute it in violation of 21 U.S.C. § 841(a)(1) (1976) (Count 9), and distribution of heroin, also in violation of 21 U.S.C. § 841(a)(1) (1976) (Count 18). Hendrix was charged with conspiracy to distribute heroin in violation of 21 U.S.C. § 846 (1976) (Count 1), and possession of heroin with intent to distribute it in violation of 21 U.S.C. § 841(a)(1) (1976) (Count 4). ¹ Tried jointly with two other codefendants, ² appellants were convicted by a jury on these respective counts. Each appellant was sentenced to concurrent terms of eight years imprisonment and four years on special parole for each offense.

Each appellant now appeals his convictions, claiming that: (1) the evidence was insufficient to sustain a conviction on each of the counts; (2) joinder with codefendant Turner was improper as a matter of law under Fed.R.Crim.P. 8; (3) the trial court abused its discretion in denying severance from the trial of codefendant Turner; and (4) in the case of Wilson, his right to a speedy trial was violated. We affirm Wilson's and Hendrix's convictions under the conspiracy count, but reverse their convictions on the other counts because of the lack of sufficient evidence. We also vacate the special parole term imposed on each appellant as part of his conspiracy conviction. We find that appellants' remaining contentions are without merit. We consider each issue separately.

I. Sufficiency of the Evidence

Both Wilson and Hendrix raise claims of insufficiency of the evidence as to each count on which each one was convicted. Specifically, Wilson contends that the evidence was insufficient to support his convictions on Count 1, the conspiracy count, Count 9, the possession with intent to distribute count, and Count 18, the distribution count. Similarly, Hendrix argues that the evidence was insufficient to sustain his convictions on Count 1, the conspiracy count, and Count 4, the possession with intent to distribute count.

When the sufficiency of the evidence for a criminal conviction is challenged on appeal, the standard of review inquires as to whether the jury could have reasonably found that the evidence was inconsistent with every reasonable hypothesis of innocence. United States v. Moreno, 649 F.2d 309, 312 (5th Cir., 1981); United States v. Rodgers, 624 F.2d 1303, 1306 (5th Cir. 1980), cert. denied, --- U.S. ----, 101 S.Ct. 1360, 67 L.Ed.2d 342 (1981). In applying this standard of review, we must consider the evidence and all reasonable inferences therefrom in a light most favorable to the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Moreno, 649 F.2d at 312. For purposes of clarity and order, we evaluate seriatim the sufficiency of the evidence for each conviction of each appellant.

A. Wilson

1. Conspiracy Count

Wilson first challenges the sufficiency of the evidence supporting his conviction for conspiracy. We reject this challenge.

"The essence of a conspiracy is an unlawful agreement." United States v. Middlebrooks, 618 F.2d 273, 278 (5th Cir.), modified on other grounds, 624 F.2d 36 (5th Cir.), cert. denied, --- U.S. ----, 101 S.Ct. 401, 66 L.Ed.2d 246 (1980). Ordinarily, the fundamental elements of the offense of conspiracy are an agreement between two or more persons to commit a crime and an overt act by one of them in furtherance of the agreement. United States v. Malatesta, 590 F.2d 1379, 1381 (5th Cir.) (en banc), cert. denied, 440 U.S. 962, 99 S.Ct. 1508, 59 L.Ed.2d 777 (1979); United States v. Gordon 580 F.2d 827, 834 (5th Cir.), cert. denied, 439 U.S. 1051, 99 S.Ct. 731, 58 L.Ed.2d 711 (1978). However, in a conspiracy prosecution under 21 U.S.C. § 846, as is involved here, the government need not prove any overt act in furtherance of the conspiracy. United States v. Gordon, 580 F.2d at 834; United States v. Littrell, 574 F.2d 828, 832 (5th Cir. 1978). Accordingly, in a prosecution under 21 U.S.C. § 846, the government must establish, beyond a reasonable doubt, that a conspiracy existed, that the defendant knew of it, and that he voluntarily participated in it. United States v. Middlebrooks, 618 F.2d at 278; United States v. Littrell, 574 F.2d at 832. The agreement between the coconspirators and the defendant need not be proved by direct evidence but may be inferred from concert of action. United States v. Malatesta, 590 F.2d at 1381; United States v. King, 532 F.2d 505, 508 (5th Cir.), cert. denied, 429 U.S. 960, 97 S.Ct. 384, 50 L.Ed.2d 327 (1976). Further, it is not necessary for all coconspirators to know each other or to work together on every phase of the criminal venture. United States v. James, 590 F.2d 575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979).

After reviewing the record, we find that there is sufficient evidence to sustain Wilson's conviction for conspiracy. The evidence indicates that Wilson obtained heroin for further distribution from a Larry Don Counter ³ and Robert Earl Turner, a codefendant in this case and a heroin distributor working for Counter. Glen Ray Johnson, a government witness, approximately thirty to forty times observed Wilson pay Counter proceeds from heroin Wilson sold for Counter. Johnson also saw Counter supply Wilson with heroin for further distribution on several occasions; and, on one occasion, Wilson accompanied Counter when the latter gave Johnson twenty five capsules of heroin for sale to third parties. ⁴

Robert Earl Turner, a distributor for Counter and a codefendant called as a prosecution witness, supplied Wilson, among others, with heroin from Counter to sell to third parties. Under the arrangement between Counter and his various distributors, the distributors sold heroin capsules to heroin users for $12.00 each. From each sale, Counter received.$7.00 and the street dealer, such as Wilson, received $5.00. Turner transferred the money received from the dealers, including Wilson, to Counter. At one point, Turner reduced the shares of Wilson and the other street dealers on a $12.00 heroin capsule from $5.00 to $4.00. Wilson objected to this cut and stated that he would from then on deal directly with Counter, eliminating his contact with Turner. In the summer of 1978, Turner supplied Wilson with heroin to sell on about six occasions, including the day Wilson was arrested, and he once saw Counter directly supply Wilson with heroin capsules.

This evidence clearly establishes the existence of a conspiracy to distribute heroin in South Dallas, that Wilson knew of the conspiracy, and that, with his knowledge, he voluntarily participated in the conspiracy. United States v. Middlebrooks, 618 F.2d at 278.

Wilson claims, however, that some of the evidence adduced at trial by the government concerning his involvement in the conspiracy was inadmissible under United States v. James, 590 F.2d 575. ⁵ Under James, an extra-judicial, hearsay statement of a coconspirator may be admitted against a criminal defendant only if the statement was made (1) by one who conspired with the party against whom the statement is offered, (2) during the course of the conspiracy and (3) in furtherance of the conspiracy. United States v. Grassi, 616 F.2d 1295, 1300 (5th Cir.), cert. denied, --- U.S. ----, 101 S.Ct. 363, 66 L.Ed.2d 220 (1980); United States v. James, 590 F.2d at 578. These requirements must be established by a preponderance of independent evidence. United States v. Grassi, 616 F.2d at 1300-01.

Wilson does not identify any specific evidence in his claim of a James violation. His contention, though, seems to be directed generally at the testimony of Robert Earl Turner. Regardless of the evidence to which Wilson is referring, however, we reject his contention that the rule of James was violated. James applies only to hearsay statements of coconspirators. See United States v. Grassi, 616 F.2d at 1300. None of the evidence upon which we rely to uphold Wilson's conspiracy conviction was hearsay. Instead, the evidence involved the witnesses' observations and personal knowledge of the acts of and arrangements between Wilson, Counter, and other persons. We therefore reject Wilson's James claim.

2. Possession Count ⁶

Wilson next challenges his conviction for possession of heroin with intent to distribute it. Finding the evidence insufficient, we reverse.

The evidence introduced to prove Wilson's guilt under this count indicates that on April 3, 1978, the Dallas police received a tip from an informant that persons at the 3700 block of Dildock Street in Dallas, Texas, were in possession of and selling heroin. Two Dallas police narcotics officers went to that location and found Wilson and two other men engaged in a small stakes dice game. The officers discovered on the ground in some bushes about ten feet from the two men two contraceptive prophylactics containing forty-four ⁷ capsules of heroin. Wilson had no drugs on him. He was arrested along with the other two...