United States v. Alexander, 11238.

• Decision Date: 16 March 1955
• Docket Number: No. 11238.,11238.
• Parties: UNITED STATES of America v. Fannie ALEXANDER.
• Court: U.S. Court of Appeals — Seventh Circuit

219 F.2d 225 (1955)

UNITED STATES of America v. Fannie ALEXANDER.

No. 11238.

United States Court of Appeals, Seventh Circuit.

January 14, 1955.

Rehearing Denied March 16, 1955.

Julius Lucius Echeles, Chicago, Ill., Frank W. Oliver, Chicago, Ill., for defendant-appellant.

Robert Tieken, U. S. Atty., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., for appellee.

Before FINNEGAN, SWAIM and SCHNACKENBERG, Circuit Judges.

SWAIM, Circuit Judge.

Fannie Alexander, the defendant, was convicted in a trial to the court on three counts of an indictment which charged her with the purchase, sale and transportation, and concealment of certain narcotics knowing the same to have been imported into the United States contrary to law in violation of 26 U.S.C.A. § 2553 (a), 26 U.S.C.A. § 2554(a), and 21 U.S. C.A. § 174, respectively. In these three counts the defendant was charged jointly with her sister, Marie Walker. The sister pleaded guilty to each of these three counts and to six other counts which charged her, with others than the defendant, of similar violations on two prior dates. The Government's theory as to the defendant is that she aided and abetted her sister, Marie Walker, in these violations and could therefore be charged as a principal, pursuant to 18 U.S.C.A. § 2(a).

The sole question presented in this appeal is whether or not there was sufficient evidence to sustain the court's finding that the defendant was guilty as a principal by having aided and abetted her sister in the violations charged.

The defendant's counsel insists that the aiding and abetting, to be within the terms of 18 U.S.C.A. § 2(a), must be conscious and intentional — that mere knowledge that a crime is being committed is not enough. The defendant cites Boyett v. United States, 5 Cir., 48 F.2d 482, to support his contention. We agree generally with this statement of the law, but we must point out that in the case cited the Court of Appeals reversed the conviction because the trial court had given an erroneous instruction to the jury as to the consequences of mere knowledge of the fact that a crime was being committed. In the Boyett case the court did say, 48 F.2d at page 484: "* * * mere knowledge that an offense is being committed is not equivalent to participation with criminal intent. Consent is a necessary element and must also be shown." But the court there added that the necessary consent might be inferred from all the circumstances disclosed, that it was always a question of fact for the jury.

So, in the instant case, the question of whether this defendant consciously and knowingly aided and abetted her sister in the admitted violations by her sister, was a question of fact for the trial judge to determine. The defendant was found guilty. Therefore, the trial judge necessarily found that the defendant did knowingly and intentionally aid and abet her sister in the commission of these offenses.

In United States v. Carengella, 7 Cir., 198 F.2d 3, 7-8, this court said: "We must regard the government's evidence in the light most favorable to it, and we must accept same as true, together with all reasonable inferences which the jury may have drawn therefrom. * * *" This is, of course, equally true where, as in the instant case, the trial court found the facts. With this rule in mind we have no hesitation in saying that the evidence in the instant case supported the defendant's conviction.

The defendant and her mother occupy a first floor apartment in a four story apartment building located at 4323 Forrestville Avenue in the City of Chicago. A second floor apartment is occupied by the defendant's sister, Marie Walker, and the sister's four children. One of the sister's daughters sleeps in the defendant's apartment regularly and Marie Walker and all of her children eat most of their meals in the defendant's apartment with the defendant and her mother. The defendant's mother-in-law owns the apartment building.

On April 7, 1953, the date of the alleged narcotic violations here in question, a third floor apartment in the building was vacant. The defendant assisted in the renting of vacant apartments and in looking after the upkeep of the apartment building. There was no telephone in Marie Walker's second floor apartment but she regularly used the phone in the defendant's apartment and spent much of her time in that apartment.

There was evidence in this case to support findings by the trial court that about noon on April 7, 1953, Norris M. Durham, a federal narcotics agent, called the defendant's telephone number and the call was answered by the defendant. When the call was made another narcotics agent, James T. Fields, was in the telephone booth and listened to Durham's part of the conversation. When the defendant answered the telephone Durham asked for Marie. The defendant told him that Marie was not there and asked who was calling. Durham told the defendant he was, "Herman, the fellow from Cleveland," and the defendant said, "Oh, yes, I remember you from last week." Durham then told her he "would like to get three shirts," and the defendant said: "Well, you come right on out. Marie will be here when you get here."

Pursuant to this conversation Durham went out to the defendant's apartment and when he arrived both the defendant and her sister, Marie Walker, were there. Durham then, in the presence of the defendant, gave Marie Walker $600 in Government money which was wrapped up in brown wrapping paper. The defendant was then sitting only six or seven feet from the point where her sister was given the money and there was nothing to obstruct her view of the transaction. When the agent gave the sister the money she folded back the brown paper and riffled through the money but did not count it. The sister, Marie Walker, then left the defendant's apartment for a few minutes. While she was gone Durham talked to the defendant and she told him that she was the person who had talked to him on the phone. The defendant then asked Durham if he had seen "Buda Red." Durham said he told the defendant that "he did not see much of him" and that "he was not very reliable and a dangerous man to fool with." And then the defendant said: "Yes, you can't take any chances with a man if he is not going to be reliable."

Marie Walker then came back into the room and gave Durham three pieces of heroin wrapped in brown paper. The heroin was in...