United States v. Apollo
| Decision Date | 18 May 1973 |
| Docket Number | No. 72-2005.,72-2005. |
| Citation | 476 F.2d 156 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Michael APOLLO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
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Robert J. Lerner, William M. Coffey, Milwaukee, Wis., for defendant-appellant.
William S. Sessions, U. S. Atty., Wayne F. Speck, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.
Before ALDRICH,* SIMPSON and CLARK, Circuit Judges.
Michael Apollo was convicted after a jury trial on two counts related to smuggling untaxed marijuana into the United States from the Republic of Mexico. The first count alleged that Apollo engaged in a conspiracy with thirteen other defendants to import marijuana in violation of 21 U.S.C. § 963. The second count charged Apollo and three others with the substantive offense of importing approximately 700 pounds of marijuana in violation of 21 U.S.C. § 952(a) and 21 U.S.C. § 960(a)(1). He appeals. We reverse.
Apollo contends that the evidence presented at trial was insufficient to support his conviction and therefore that his motion for a directed acquittal was improperly denied.1 We recite the proof in the light most favorable to the jury's verdict. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).
Direct evidence consisting of the testimony of guilty-pleading co-defendants and an unindicted co-conspirator established the existence of an extensive marijuana smuggling operation known to the participants as The Company. The central parties of this conspiracy were Dr. Willis B. Hollingsworth and members of the Estes family.2 To assist in the importation and distribution of marijuana, The Company enlisted the assistance of additional parties including David Willingham, a licensed aircraft pilot, and Philip Homburg who served as sales agent for The Company in Indianapolis, Indiana. Between May and September 1971, The Company's aircraft made at least seven trips to northern Mexico and returned to the United States with substantial quantities of marijuana. The next-to-the-last of these trips occurred on September 10 when Willingham delivered 1,100 pounds of Mexican marijuana to Homburg in Indianapolis. The following day, after a stop-over in Milwaukee, Wisconsin, to pick up William Estes and 5,000 dollars, Willingham flew back to Sabinas Hidalgo, Mexico, where the 5,000 dollars was used by Dr. Hollingsworth to purchase another shipment of 700 pounds. A few hours later Hollingsworth and Willingham were arrested by customs officers at the San Antonio, Texas airport. Two days later, Homburg was arrested while transporting the prior 1100-pound delivery of marijuana from Indianapolis to Milwaukee.
Through Philip Homburg, The Company had made connection with Charles Cocroft, a wholesale dealer in marijuana in Milwaukee. In August 1971, Homburg made several deliveries of Company marijuana to Cocroft. By the end of the month Cocroft informed The Company that he had a potential purchaser for much larger quantities of the weed — up to 1,000 pounds per week — if the price could be reduced to 100 dollars per pound. On September 11 William Estes went to Milwaukee to authorize this reduced price contract for The Company. During these negotiations with Estes, Cocroft left the meeting with approximately 100 pounds of marijuana, then returned with the 5,000 dollars, and announced that the deal with the large-scale retail dealer had been consummated. Cash in hand, Estes and Willingham left immediately on the first leg of the ill-fated round trip to Sabinas Hidalgo.
Michael Apollo's alleged role in the conspiracy was as the retail distributor to whom Cocroft sold and agreed to sell Company marijuana. At the date of Apollo's trial Cocroft, who had been arrested and released on bond, was a fugitive from justice. Since none of the other alleged conspirators ever dealt directly with Apollo, proof of his conspiracy participation rests on testimony of witnesses who described what they saw and heard of the negotiations between Cocroft and Apollo, or who simply repeated what Cocroft told them. The Government's evidence against Apollo consisted of (1) testimony of Philip Homburg concerning three meetings between Cocroft and Apollo; (2) testimony of Dean Johnson about transfers of marijuana and accompanying conversations between Cocroft and Apollo; (3) testimony of co-defendants Homburg and William Estes regarding statements made to them by alleged co-conspirator Cocroft that Michael Apollo was the retail distributor with whom Cocroft had worked out an agreement to sell Company marijuana; (4) testimony of Carol Hoagland, a girl Apollo dated, that in November 1971 Apollo told her he was then dealing in marijuana; and (5) two bricks of marijuana which were found in Apollo's car when it was seized in March 1972.
In Montford v. United States, 200 F.2d 759, 760 (5th Cir. 1952), this court laid down the rules governing the sufficiency of evidence in cases where, as here, testimony is introduced to prove the defendant's connection with a conspiracy by hearsay statements and declarations of persons named as his co-conspirators but not otherwise proven to be such:
The declarations of one conspirator made in furtherance of the objects of the conspiracy, and during its existence, are admissible against all members of the conspiracy. Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429. But a defendant\'s connection with a conspiracy can not be established by the extrajudicial declarations of a co-conspirator, made out of the presence of the defendant. There must be proof aliunde of the existence of the conspiracy, and of the defendant\'s connection with it, before such statements become admissible as against a defendant not present when they were made. Glasser v. United States, 315 U.S. 60, 74, 62 S.Ct. 457, 86 L.Ed. 680, 701 . . . .
In testing the sufficiency of the evidence to support Apollo's conviction, we must therefore disregard the extensive testimony which recited Cocroft's statements to his fellow conspirators implicating Apollo as the retail outlet for The Company's marijuana. See Panci v. United States, 256 F.2d 308 (5th Cir. 1958).
The proof that tended to link Apollo with dealing in marijuana two to six months after the alleged conspiracy and importing offenses for which he was on trial was improperly admitted. At the outset it must be borne in mind the evidence did not show convictions although they strongly tended to indicate conduct which would violate the laws of Wisconsin. Next, we consider that it was the Government's assertion that the probity of this proof lay in its tendency to show a pattern or scheme of conduct. The problem for this theory is that Apollo was not on trial for being a marijuana pusher but for illicitly introducing the weed into the United States.
The proper test for balancing the substantial relevance and materiality such subsequent misconduct evidence must possess against the less-than-subtle prejudice it carries is well defined in prior precedent and need not be reiterated. See United States v. Johnson, 453 F.2d 1195 (5th Cir. 1972) and the cases there cited. See also the proposed Rules of Evidence for United States Courts and Magistrates § 404(b) and 2 J. Wigmore on Evidence § 304.
Apollo's November admission to Miss Hoagland that he was then dealing in marijuana and the discovery of two bricks of the substance in a search of his car in March obviously constituted two strikes against him with the jury.3 Just as with prior conviction evidence, such proof of subsequent suspicious activity must be limited to that which substantially relates to an element of the present offense to be admissible. This proof won't pass muster and it should not have been allowed.4
Stripped of the toxic hearsay and prejudicial "bad man" evidence, the Government's proof is reduced to establishing four meetings between Cocroft and Apollo. The first occurred in mid-August 1971, immediately after Philip Homburg had delivered a load of Company marijuana to Cocroft's Milwaukee apartment. Both Homburg and Johnson testified that they saw Apollo enter Cocroft's bedroom which served as a warehouse for Company marijuana; however, neither witness overheard any conversation which may have occurred therein. Johnson testified that upon leaving the bedroom Apollo was carrying a closed, plastic sack containing what Johnson believed to be compressed bricks of marijuana. At that moment and in Johnson's presence, the following exchange occurred:
Homburg testified that he was in Cocroft's apartment during two additional meetings between Cocroft and Apollo in late August or early September. However, on neither occasion did Homburg overhear private conversations between the two men nor did he observe a transfer of marijuana or any other incriminating activity.
Johnson testified that he was present at a fourth meeting between Cocroft and Apollo on September 11, the day of William Estes' visit to Milwaukee. At this time Johnson observed the transfer of suitcases by Cocroft and Apollo from Cocroft's automobile to Apollo's car. During the transfer, Johnson overheard the following conversation:
Apollo...
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