United States v. Bey, 18740.

• Decision Date: 27 January 1971
• Docket Number: No. 18740.,18740.
• Citation: 437 F.2d 188
• Parties: UNITED STATES of America v. Stevenson Stone BEY, Frederick Howard, Stevenson Stone Bey, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

437 F.2d 188 (1971)

UNITED STATES of America v. Stevenson Stone BEY, Frederick Howard, Stevenson Stone Bey, Appellant.

No. 18740.

United States Court of Appeals, Third Circuit.

Argued November 20, 1970.

Decided January 27, 1971.

H. David Rothman, Matson & Rothman, Pittsburgh, Pa., for appellant.

Charles F. Scarlata, Asst. U. S. Atty., Pittsburgh, Pa. (Richard L. Thornburgh, U. S. Atty., Douglas D. McBroom, Asst. U. S. Atty., Pittsburgh, Pa., on the brief) for appellee.

Before HASTIE, Chief Judge, and McLAUGHLIN and ADAMS, Circuit Judges.

OPINION OF THE COURT

GERALD McLAUGHLIN, Circuit Judge.

Appellant, Stevenson Stone Bey, was found guilty, upon jury's verdict, of all five counts of an indictment charging him with selling heroin and cocaine in violation of 26 U.S.C. § 4704(a) (two counts), and 26 U.S.C. § 4705(a) (two counts) and conspiracy in violation of 26 U.S.C. § 7237(a) and (b).

On the afternoon of June 27, 1968, Glennon Cooper, an undercover agent with the Bureau of Narcotics and an undisclosed informant entered the Hillside House Bar in Pittsburgh, Pennsylvania, to await the arrival of appellant Bey. They had been advised by Bey's mother earlier in the day that he would meet them there. Appellant arrived at 12:10 A.M. on June 28. The informant engaged him in conversation and introduced him to agent Cooper. After a brief conversation between Bey and Cooper, the informant stated, in Bey's presence, that "Stoney wants to sell us a bundle of heroin plus some cocaine for $140", a bundle of heroin being 20 glassine envelopes containing the drug. Cooper asked Bey if the package would be worth $140 to which Bey replied that Cooper could make $2 on each bag by selling it for $7. Cooper agreed to make the purchase. Bey then summoned a man who had been standing at the bar and spoke privately with him for a few minutes, after which that individual left. Bey then called the informant over to talk to him, at the same time waving Cooper away. Following a short conversation with the informant Bey left.

Approximately one half hour after Bey departed, Frank Howard, the unapprehended co-defendant, entered the bar and called the informant outside. Cooper went with the men. No discussion of narcotics took place, the only conversation occurring when the agent attempted to hand Howard $140. Howard refused to take it, saying that he could only take money from the informant. Cooper then gave the money to the informant, who handed it to Howard. He counted the money and said "There is only $140 here," and "Stoney told me to get $200." Upon further inquiry Howard indicated that Cooper was getting $200 worth of drugs. Cooper gave him an additional $60. Howard and the informant then walked down the street, with Cooper five to six feet behind. Howard gave the informant a package, which upon later examination was found to contain thirteen capsules of cocaine. Further down the street, Howard pointed to a basket on the corner. As Howard walked away, the informant went to the basket and retrieved a blue napkin filled with nineteen balloons containing eighteen glassine envelopes of heroin. The cocaine and heroin bore no tax stamps, nor were order forms used in the transaction.

On July 5, 1968, Cooper and the informant again met with Bey at the Hillside House Bar. At this time the conversation centered about the purchase of an ounce of heroin, which Bey indicated that he could obtain. Bey disclosed to Cooper his involvement in narcotics traffic and hinted that he was anxious to have Cooper as a steady customer. A deal was arranged whereby Cooper would pay Bey $675 for the ounce of heroin. Bey explained that one of his people would deliver it in about one half hour but that delivery would be made to the informant and not to Cooper. Cooper, however, would be able to view the entire transaction. Bey then took the money from Cooper. About twenty minutes later, appellant stormed back into the bar and threw the money into the agent's lap, shouting "those * * * feds are up the street." He then rushed out of the bar, with Cooper and the informant following. As he got into his car, Bey stated "I should kill you two guys."

Appellant first claims that the trial court erred in admitting the hearsay statement of Frank Howard, the co-defendant, in which Howard stated "Stoney told me to get $200." It is claimed that this statement did not come within the co-conspirator exception to the hearsay rule because there was no clear independent evidence of joint action or a conspiracy between the two. In a connected argument, appellant contends the statement was inadmissible and that there was no independent evidence of joint action, therefore that the government failed to prove the conspiracy count and his conviction thereon should be reversed. Bey further asserts that there is no proof of concerted action between himself and Howard and that the issue of his guilt as to the completed transaction of June 27-28 should not have been submitted to the jury, since on his theory the evidence showed that he engaged only in negotiating a sale, never delivering any narcotics.

Because all of appellant's contentions are based on the admissibility of the Howard statement, we turn to that problem. While it is true that hearsay statements are inadmissible when no independent evidence links the declarant to the defendant, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), the threshold requirement for admissibility is satisfied by presenting a likelihood of an illicit association even though it may later eventuate that the independent evidence proves to be insufficient to justify submitting to the jury the question of defendant's alleged guilty involvement with declarant. United States v. Ragland, 375 F.2d 471, 477 (2 Cir. 1967), cert. denied, 390 U.S. 925, 88 S.Ct. 860, 19 L.Ed.2d 987 (1968); United States v. Borelli, 336 F.2d 376, 387 (2 Cir. 1964), cert. denied sub nom. Mogavero v. United States, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965); United States v. Ross, 321 F.2d 61, 68 (2 Cir. 1963), cert. denied, 375 U.S. 894, 84 S.Ct. 170, 11 L. Ed.2d 123 (1963). The trial judge has wide discretion and need only be satisfied, if he accepts the independent evidence as credible, that such evidence is sufficient to support a finding of joint undertaking. United States v. Ragland, supra.

The court below clearly recognized the situation presented in the trial of this conspiracy charge. Judge Sorg cautioned the prosecution that, in order for the hearsay statement to be admissible, it would be essential for the prosecution to prove some connection between Bey and Howard.

Recently in United States v. Geaney, 417 F.2d 1116 (2 Cir. 1969), the court, in discussing the particular recurring point faced by trial judges, stated:

"While the practicalities of

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