United States v. Doran

• Decision Date: 13 August 1973
• Docket Number: No. 72-1210.,72-1210.
• Citation: 483 F.2d 369
• Parties: UNITED STATES of America, Appellee, v. John C. DORAN, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

483 F.2d 369 (1973)

UNITED STATES of America, Appellee, v. John C. DORAN, Jr., Defendant-Appellant.

No. 72-1210.

United States Court of Appeals, First Circuit.

August 13, 1973.

William P. Homans, Jr., Boston, Mass. with whom Featherston, Homans, Klubock & Griffin and Francis C. Lynch, Jr., Boston, Mass., were on brief, for defendant-appellant.

Alan R. Hoffman, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

McENTEE, Circuit Judge.

John C. Doran appeals from his conviction on two counts of a four count indictment charging him with conspiring to distribute and distributing heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846. In addition to challenging the district court's denial of his motion for a judgment of acquittal, Doran asserts that he was prejudiced by an erroneous statement of the evidence during the prosecutor's summation to the jury, and by the trial judge's frequent and allegedly hostile questioning of himself and other defense witnesses. We find no error in the proceedings below and accordingly affirm the judgment of the district court.

The somewhat complicated facts of this case involve three distinct narcotics transactions which took place in appellant's house during late November and early December 1971. Appellant's basic defense at trial was that these transactions occurred either without his knowledge or without his active participation, and that at no time did he intend to aid in the distribution of heroin in the sense of affirmatively seeking to bring about such a distribution. See Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 93 L.Ed. 919 (1949). Specifically, appellant contended that the events in question took place at the instigation of codefendant George Tucker, who was then living at Doran's residence as his tenant. The indictment alleged the appellant's participation, with Tucker and several others, in a conspiracy to distribute heroin between November 29 and December 6, 1971, and also his actual distribution of the drug on December 2 of that year. The relevant facts concerning the three incidents involved in this case are as follows.

The November 29 Transaction

On November 29, 1971, federal agents Lemon and Maloney, acting pursuant to information received from a government informant, met one Michael Principe (also a codefendant in this case) in Cambridge, Massachusetts for the purpose of arranging a heroin transaction. At Principe's direction, the two agents and the informant drove to appellant's house in Arlington, Massachusetts, where the sale was to take place. On the way to Arlington, Principe described his "connection" as being a radar engineer who owned a $30,000 house and a new Cadillac. Upon arrival at their destination, Lemon and Principe left the car and entered appellant's house with Tucker. After some general conversation with Tucker concerning the heroin to be purchased, Lemon overheard one end of a telephone conversation between Tucker and an individual whom the latter referred to as "Jack." This conversation was to the effect that Tucker was still waiting for a person named "Jimmy" to arrive at the house. When Tucker hung up, Lemon asked him whether he had been talking to his "connection." Tucker denied this, saying instead that he had been speaking with the owner of the house who was upset because a drug transaction was going to take place there. Sometime later, one James Hill (also a codefendant) arrived and was admitted by Tucker. Hill and Tucker then entered the kitchen, and when they returned to the living room, Tucker gave Lemon a tinfoil package containing an ounce of heroin and the agent in turn handed Hill $1,000. As Lemon and Principe were about to depart, Doran entered the house through the front door. There was no conversation between appellant and Lemon at this time.

During the return trip from Arlington, however, there was a further discussion between Lemon and Principe. In the course of this converstion, Principe outlined the various roles of the above-mentioned individuals in the narcotics business. According to Principe, Tucker and Hill were merely underlings of Doran, who was the overall supplier of heroin. Principe also claimed that a "stash" of narcotics was kept in Hill's apartment and that the rent for this apartment was paid by appellant.

The December 2 Transaction

On December 2 Tucker called Lemon to tell him that another heroin sale had been arranged and that he and Maloney should come to Doran's house at 11 a. m. on that day. The two agents arrived at the house in accordance with these instructions and were admitted by Tucker. Shortly thereafter, Doran entered the living room where the two agents and Tucker were awaiting the arrival of Hill. Lemon asked Doran whether he objected to Lemon's "doing business" in his house. According to the agents, Doran replied that he did not mind, but that he objected to a lot of people coming into the house since his neighbors were "very suspicious." Lemon then asked Doran whether his sister, who lived next door, was aware of his "involvement," presumably with heroin. As recounted by the agents, appellant asnwered that his sister knew of his past involvement with narcotics, but was unaware that he was "still in the traffic."¹ At sometime during this conversation, Agent Lemon asked Tucker to call Hill in order to determine whether he had left yet. Doran then stated that he had just called Hill and gotten no answer, and that he therefore assumed that he was on his way. Doran added that Hill had probably had to stop somewhere to pick up the heroin.

At about 12:30 p. m. Hill arrived and was admitted by Doran who advised him in rather strong language that he was late. Doran, Tucker, Hill and Lemon then entered the kitchen, where Hill produced two tinfoil packages containing heroin, handing one to Doran and one to Lemon. Doran immediately removed a "cooking" device from a cabinet and, after measuring a quantity of heroin from the package which Hill had given him, left the kitchen to enter his bedroom. Tucker commented that the heroin given to Doran was for their own use (presumably Tucker's and Doran's) and did not belong to Lemon. After appellant had left the kitchen, Lemon gave Hill $1,000 and the agents left.

The December 6 Incident

On December 6 Lemon received a telephone call from Tucker informing him that Hill was on the way to Doran's house for the purpose of another heroin transaction, and that he and Maloney should therefore proceed to Arlington. The two agents then went to appellant's house where they found Tucker and one Ralph Arcieri. The four men engaged in a general conversation concerning narcotics until about 3 p. m. when Hill arrived followed directly by Doran. Hill immediately announced that he "had the stuff," and showed a tinfoil package to Lemon. All present, including the appellant, were then arrested by the agents.

I

Appellant contends that, on the above evidence, the district court erred in denying his motion for judgment of acquittal. We do not agree. Admittedly, this case was a very close one.² Nevertheless, we think that the evidence as a whole, considered in the light most favorable to the government, together with all legitimate inferences to be drawn therefrom,³ Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Parker v. United States, 378 F.2d 641, 644-645 (1st Cir.), cert. denied, 389 U.S. 842, 88 S.Ct. 81, 19 L.Ed.2d 107 (1967), was clearly sufficient to sustain appellant's conviction. While it is true that appellant did not directly participate in the events of November 29, the jury could have inferred, on the basis of Tucker's telephone conversation with an individual named "Jack," who owned the house in which Tucker lived, that Doran had prior knowledge of the November 29 transaction and was anxious to be kept informed as to its progress. Similarly, appellant's attempted phone call to Hill on December 2, his remark that Hill had probably stopped to pick up the heroin, and his apparent annoyance at Hill's tardiness were all susceptible to the inference that appellant was an active particpant in the sale of heroin which took place on that date. This inference is strengthened when considered in connection with Doran's statement to the agent that he was "still in the traffic," his expressed lack of objection (beyond some worry about the suspicions of his neighbors) to a drug transaction being conducted in his house, and his simultaneous arrival with Hill on December 6. Moreover, this independent evidence of appellant's particpation in a criminal conspiracy was sufficient to justify the admission of the agent's hearsay testimony as to Principe's incriminating statements about Doran's involvement.⁴See United States v. Johnson, 467 F.2d 804, 807 (1st Cir. 1972), cert. denied, 410 U.S. 909, 93 S.Ct. 963, 35 L.Ed.2d 271 (1973). Finally, the jury would have been warranted in finding that the use of appellant's house as the scene of successful or abortive drug sales on three separate occasions was not entirely without significance. We conclude that the above evidence was sufficient to allow the jury to fairly find the appellant guilty beyond a reasonable doubt, both as to the conspiracy count and the substantive offense.

II

Appellant also argues that he was unfairly prejudiced by the prosecutor's misstatement of a portion of the evidence during his summation to the jury. As noted above, appellant's primary defense at trial was that Tucker had arranged the drug sales in question, and that the extent of his own involvement had not gone beyond mere acquiescence. In support of this theory, appellant testified that he had been enraged upon his discovery of the November 29 transaction, and had ordered Tucker to leave his house as a result. According to Doran, he had allowed Tucker to return only upon the latter's promise...