United States v. Atkins, 72-1181.

• Decision Date: 17 January 1973
• Docket Number: No. 72-1181.,72-1181.
• Citation: 473 F.2d 308
• Parties: UNITED STATES of America, Appellee, v. Patricia ATKINS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

473 F.2d 308 (1973)

UNITED STATES of America, Appellee, v. Patricia ATKINS, Appellant.

No. 72-1181.

United States Court of Appeals, Eighth Circuit.

Submitted October 16, 1972.

Decided January 17, 1973.

Rehearing and Rehearing Denied February 21, 1973.

Irl B. Baris, St. Louis, Mo., for appellant.

Arthur W. Vance, Atty., Bureau of Narcotics and Dangerous Drugs, Criminal Div., Department of Justice, Washington, D. C., for appellee.

Before LARAMORE, United States Court of Claims Senior Judge, and BRIGHT and ROSS, Circuit Judges.

Rehearing and Rehearing En Banc Denied February 21, 1973.

ROSS, Circuit Judge.

The appellant appeals from a conviction, based upon a jury verdict, of aiding and abetting the purchase of heroin in violation of 26 U.S.C. § 4704(a).¹ Two issues are presented for determination by this Court: Whether the Government presented sufficient evidence to submit the case to the jury; and, whether the trial court erred when it permitted witnesses to express opinions that the substance involved was in fact heroin. We affirm.

I. Submissible case.

The appellant presented no evidence and the Government's evidence disclosed the following: In October 1970, Frank August and Clyde Penrose illegally brought two pounds of heroin into the United States from Thailand. August contacted Shirley McWorthy concerning the sale of his pound of heroin. McWorthy replied that she did not know of any buyers, but that "she would see." McWorthy then contacted the appellant who also replied she did not know of any buyers, but that "she would see." A day or so later the appellant, apparently by prearrangement, met McWorthy at a bar where McWorthy worked. The appellant introduced Agnes Brittain, who had not come in with the appellant, as someone who "might be able to help McWorthy." With the appellant still at the table, the subject turned to heroin and Brittain asked McWorthy for a sample. About a day later August brought McWorthy a sample of the heroin, McWorthy delivered the sample to Brittain, but the woman Brittain had brought along to test the heroin, Betty Carol Aleshire, stated the sample was not large enough. The appellant was not present at this meeting. A few days later another sample was given to Brittain by McWorthy which was of a sufficient quantity to test. Aleshire tested the sample and determined that "it was very good." The appellant was not present at this transaction. Subsequently August, his father, Murray Kimbrell, Brittain and Aleshire met at the bar where McWorthy had been introduced to Brittain by the appellant. The four then went to the Brittain residence where a larger quantity was again tested by Aleshire. Having again found the substance to be of good quality, the transaction was consummated when August transferred one-half pound of heroin to Brittain for $3,000.00. Subsequently McWorthy and the appellant continued to meet. In describing their conversation McWorthy testified that: "We just decided that we had been burned . . . The deal that we made hadn't been carried through." McWorthy also testified that the appellant did not say anything to her about expecting money.

The legal issue which confronts this Court is whether the Government produced substantial evidence from which a jury might properly find the appellant guilty of aiding and abetting Agnes Brittain in the purchase of narcotics beyond a reasonable doubt, viewing the evidence in the light most favorable to the Government together with the inferences which may be fairly drawn. See United States v. May, 419 F.2d 553, 555 (8th Cir. 1969); Tanner v. United States, 401 F.2d 281, 285 (8th Cir. 1968), cert. denied, 393 U.S. 1109, 89 S.Ct. 922, 21 L.Ed.2d 806 (1969). To answer this question it is remembered that in order to be guilty of aiding and abetting a crime

"there must be `purposive attitude\' which facilitates the unlawful deed. United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938). This means there must exist some affirmative participation which at least encourages the perpetrator." United States v. Thomas, 469 F.2d 145, 157 (8th Cir. 1972).

With the foregoing in mind, it is helpful to reiterate the evidence and the inferences that may be fairly drawn therefrom. First, McWorthy spoke to the appellant and asked her if she knew anyone who wanted to buy heroin. The appellant replied that she did not know anyone, but that "she would see." This evidence unequivocally demonstrates that the appellant was interested in more than casually naming names; she was willing to actively seek out buyers. The appellant could have rested on the fact that she was not aware of anyone wanting to buy heroin, but on the contrary the appellant elected, on her own, to expend her efforts to find a buyer.

Second, a day or so after the appellant spoke to McWorthy the appellant introduced McWorthy to Brittain at a bar as someone who "might be able to help McWorthy." With the appellant still at the table, the subject turned to heroin and Brittain asked McWorthy for a sample. Obviously there are a number of damaging inferences that may fairly be drawn from this evidence. The first inference is that the appellant's participation in these activities was not the product of unthinking action as she had a day or so to contemplate her plans. In addition, it is fair to infer that the appellant personally sought out Brittain, since the appellant previously was not aware of any buyers. Furthermore, a logical inference may be drawn that the appellant was concerned enough about consummating or helping to consummate the purchase of heroin that she went to the bar and introduced McWorthy and Brittain, instead of the easier, not to mention safer, course of simply giving Brittain McWorthy's name and allowing Brittain to contact McWorthy without the help of the appellant. Moreover, it is fair to infer that the appellant was not only concerned that Brittain meet McWorthy while the appellant was present McWorthy and Brittain were not acquainted prior to the meeting in the bar, but that the appellant was interested enough in the specifics of the purchase that she remained at the table during Brittain's conversation with McWorthy. Once again it would have been much safer to simply introduce the parties and leave; her continued presence can only be taken as an encouragement to Brittain to consummate the sale.

Third, after the eventual purchase of the heroin McWorthy and the appellant continued to meet. During the course of their conversation they discussed the fact that "we had been burned . . . ." An inference may be fairly drawn that the appellant's interest in the transaction was not fleeting, but rather was intense enough to continue even after the purchase had been consummated. Accordingly this evidence is highly probative of the appellant's state of mind when she engaged in the foregoing activity and is inconsistent with the assertion that the appellant did not care whether Brittain did or did not make the purchase.

The appellant places principal reliance upon Morei v. United States, 127 F.2d 827, 831-832 (6th Cir. 1942). The relevant facts of the Morei case are that Beach, an informer, approached Dr. Platt, the defendant, and told him that he wanted heroin to "soup" race horses. The informer testified that he gave the doctor names of certain horses who were to run in races in order that the doctor could bet on them, and he told the doctor that the heroin was to be used to stimulate the horses. Dr. Platt claimed that he did not have any heroin, but he allegedly did give the informer the name of Morei, Morei's address, told the informer to tell Morei that the doctor had sent him, and concluded that Morei "will take care of you." The court found that this evidence was insufficient to support the charge of aiding and abetting the purchase and sale of narcotics.

Without expressing an opinion as to whether or not Morei was correctly decided, that case is distinguishable from this case because of the appellant's personal participation in seeking out Brittain, her personal introduction of Brittain in a public place, and her continued presence at the table during Brittain's conversation with McWorthy. In Morei there was no evidence that Dr. Platt ever met or made contact with the seller, while here the appellant brought the buyer and seller's agent together. Further, in Morei there was no evidence that Dr. Platt knew anything about the specifics of purchase and sale, while here the appellant was well aware of the impending exchange of a heroin sample. Moreover, in this case, as opposed to the Morei case, there is evidence indicating that the appellant demonstrated an interest in the purchase on at least three occasions.

The case of Robinson v. United States, 262 F.2d 645, 648-649 (9th Cir. 1959) is also distinguishable. In Robinson the defendant gave one Cammack the name of a man from whom he might purchase heroin and twice supplied Cammack with the man's telephone number. The court held that the evidence was insufficient to support the charge of facilitating the sale of a narcotic drug. In Robinson there was no evidence from which an inference might be drawn that the defendant personally spent time locating the seller. In Robinson there was no evidence that the defendant personally met with the buyer and seller and remained during their conversation. And in Robinson there was no evidence that the defendant expressed an interest in the transaction after the consummation of the sale.

Likewise the case of United States v. Moses, 220 F.2d 166-169 (3d Cir. 1955), is distinguishable. In Moses two undercover agents approached the appellant at her apartment and inquired about the possibility of purchasing drugs. She indicated that she did not have any, but that her supplier would soon be there and she would arrange for the agents to get the drugs from him. When the supplier arrived the appellant introduced the agents and said that they were "all right." Sometime...