U.S. v. Winston, 81-5886

• Decision Date: 31 August 1982
• Docket Number: No. 81-5886,81-5886
• Citation: 687 F.2d 832
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Russell WINSTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 832

687 F.2d 832

UNITED STATES of America, Plaintiff-Appellee, v. Russell WINSTON, Defendant-Appellant.

No. 81-5886.

United States Court of Appeals Sixth Circuit.

Argued June 23, 1982.

Decided Aug. 31, 1982.

J. N. Raines, Memphis, Tenn., J. Houston Gordon, Covington, Tenn., for defendant-appellant.

W. Hickman Ewing, Jr., U. S. Atty., Timothy DiScenza, Asst. U. S. Atty., Memphis, Tenn., for plaintiff-appellee.

Before KEITH and KRUPANSKY, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

PHILLIPS, Senior Circuit Judge.

This is an appeal from a judgment entered by District Judge Robert M. McRae following a non-jury trial in a criminal case. Judge McRae found the defendant-appellant guilty under 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 of aiding and abetting in the possession of cocaine with the intent to distribute. He sentenced the defendant to one year of imprisonment with release on parole after serving one-third of the term and with a three-year special parole term to follow the one-year sentence.

Appellant was charged in one count of a four count indictment by a Federal Grand Jury for aiding and abetting Helen Couvillon in the possession of seven ounces of cocaine with the intent to distribute the substance and aiding and abetting in the distribution of the cocaine. The other three counts of the indictment charged similar offenses against Ms. Couvillon alone in one count and against Ms. Couvillon with another defendant, John Cressman, Jr., in two other counts.

Appellant waived his right to a jury trial and his case was severed from those of the other defendants. Appellant and the Government stipulated to most of the facts and to the testimony of appellant. One witness, Dr. W. C. Pigford, a Government informant, was called to testify.

At the close of the trial, the district judge entered a finding of guilty. After a separate sentencing hearing, the district judge entered the final judgment from which the present appeal is taken.

I

The facts of this case are simple and essentially undisputed. This appeal presents the purely legal question of whether the actions of the defendant amounted to aiding and abetting as a matter of law.

The defendant, who was 30 years old at the time of his trial, was an attorney. On January 22, 1981, he was called by Dr. W. C. Pigford, a long time personal friend of the family. Unknown to appellant, at that time Dr. Pigford was assisting the police in narcotics investigations. ¹

Dr. Pigford asked if appellant could help him obtain one-quarter gram of cocaine. Appellant stated that he thought he could. A second call was made to confirm the transaction and make arrangements. During the second call, appellant told Dr. Pigford to meet him at Louie's Restaurant in Memphis that evening.

That night appellant met Dr. Pigford in the restaurant and introduced him to Helen Couvillon. Dr. Pigford already was acquainted with Ms. Couvillon, but did not know her as a cocaine source. The three went outside to Dr. Pigford's automobile where Ms. Couvillon produced seven one- gram, individually-wrapped packages of cocaine. She gave them to Dr. Pigford in exchange for $575. Appellant took no part in the actual exchange, but was present in the car during the entire time. In addition, he purchased one gram of cocaine from Ms. Couvillon and paid her $100 for it while the three were in the car.

Following the transaction, Dr. Pigford was informed by Ms. Couvillon that he no longer needed to contact appellant to purchase cocaine and that he could deal directly with her.

On February 9, 1981, Dr. Pigford called appellant again at the appellant's law office. This conversation was recorded by the police. Dr. Pigford told appellant that the cocaine he had received from Ms. Couvillon was acceptable and that he wanted to buy some more. Appellant informed Dr. Pigford that he should contact Ms. Couvillon and that she had some cocaine which was better than the last.

II

Appellant contends that the above facts do not constitute evidence sufficient to support a guilty verdict of aiding and abetting in the distribution of cocaine. ² He claims that he merely introduced the buyer and the seller and that he had no interest or stake in the outcome of the transaction. It is his contention that such activity does not rise to the level of participation in and association with the venture necessary to support a conviction of aiding and abetting. We disagree and affirm his conviction.

Any inferences that are to be drawn from the evidence must be made in the light most favorable to the Government, since we are reviewing the sufficiency of the evidence. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). Our task is to decide whether a reasonable mind might find guilt beyond a reasonable doubt. United States v. Gibson, 675 F.2d 825 (6th Cir. 1982).

It is a well recognized rule that to be found guilty of the crime of aiding and abetting in a criminal venture, a defendant must " 'in some sort associate himself with the venture that he participate in it as in something he wishes to bring about, seek by his action to make it succeed.' " Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 769, 93 L.Ed. 919 (1949), quoting Judge Learned Hand in United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938). Drawing an exact line of sufficient participation, especially in drug distribution cases, is difficult if not impossible. We conclude, however, that the conduct of appellant was over any such line that might be drawn.

We reject the contention of appellant that it must be found that he had an interest or stake in the transaction before he could be convicted for aiding and abetting. See United States v. Taylor, 612 F.2d 1272, 1275 (10th Cir.), cert. denied, 444 U.S. 1092, 100 S.Ct. 1060, 62 L.Ed.2d 782 (1980). Although the existence of a stake or interest in the outcome of the transaction is a factor to be considered in an aiding and abetting prosecution, it is not a controlling factor. Requiring a participant in a criminal venture to have a stake in the outcome of the crime would limit severely the reach of the aiding and abetting offense and would restrict unduly the enforcement of laws such as those dealing with drug enforcement.

Moreover, it is not necessary that appellant actually touched or possessed the cocaine. See n. 2. It merely must be shown that appellant "act(ed) or fail(ed) to act with the specific intent to facilitate the commission of a crime by another." United States v. Bryant, 461 F.2d 912, 920 (6th Cir. 1972).

We agree with appellant that "mere presence at the scene of the crime and guilty knowledge of the crime" are not sufficient alone, United States v. Bryant, supra, 461 F.2d at 921, quoting Pinkney v. United States, 380 F.2d 882, 886 (5th Cir. 1967), cert. denied, 390 U.S. 908, 88 S.Ct. 831, 19 L.Ed.2d 876 (1968), and that "the defendant (must be) a participant rather than merely a knowing spectator," id., before he can be convicted of aiding and abetting. We cannot agree with the factual assertion of appellant, however, that he "was merely a knowing spectator" and that "his presence at the scene of the crime was surplusage and the crime would have transpired without him."

Appellant was the catalyst who put this transaction together. In essence, he acted as a salesman for Ms. Couvillon. He set up the sale. He introduced the parties. He quoted a price to Dr. Pigford after he was told the amount of cocaine Dr. Pigford desired to purchase. The ultimate inference is that appellant acted with the specific intent to facilitate the sale of the cocaine from Ms. Couvillon to Dr. Pigford. He clearly knew what was going on, and he intended by his actions to make the illegal venture succeed. See United States v. Bryant, supra, 461 F.2d at 911-20 (evidence sufficient to support a conviction for aiding and abetting in the sale of untaxed whiskey, but conviction reversed for inadequate jury instructions).

Appellant contends that his situation is closely parallel to the situation of one of the defendants in the decision of this court in Morei v. United States, 127 F.2d 827 (6th Cir. 1942). In that case, Government narcotics agents devised a plan in which informers called upon a...