United States v. Holmes, 17722-17729.

Citation452 F.2d 249
Decision Date27 March 1972
Docket NumberNo. 17722-17729.,17722-17729.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Auckland HOLMES et al., Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)




John Powers Crowley, Melvin B. Lewis, Frederick F. Cohn, Sam Adam, Frank W. Oliver, Anna R. Lavin, James S. Montana, Gerald M. Werksman, R. Eugene Pincham, Jo-Anne F. Wolfson, Edward M. Genson, Chicago, Ill., for defendants-appellants.

William J. Bauer, U. S. Atty., D. Arthur Connelly, Chief Civil Div., Chicago, Ill., for plaintiff-appellee; John Peter Lulinski, Jeffrey Cole, Asst. U. S. Attys., of counsel.

Before SWYGERT, Chief Judge, PELL and STEVENS, Circuit Judges.

Certiorari Denied March 27, 1972. See 92 S.Ct. 1291, 1302.

STEVENS, Circuit Judge.

Each of the eight appellants was convicted on one or more counts of an indictment charging conspiracy and substantive violations of the Federal narcotics laws.1 The conspiracy allegedly continued from as early as August of 1966, to and including October 18, 1967. On that date an indictment which had been returned in March, and which named only five of the appellants as defendants, was superseded by a second indictment naming them all. The substantive counts related to four specific transactions, all of which were also identified as acts pursuant to the continuing conspiracy.

The first three transactions were purchases negotiated and consummated by one Hudson Bonner, an informer, who used Government funds, delivered the purchased heroin to Government agents, was under continual surveillance, and carried a concealed transmitter during his critical discussions with defendant Earl Matthews. On November 2, 1966, he obtained 29.5 grams of heroin, 24% pure, from Matthews for $675; on November 8, 55 grams for $1,200; and on December 7, 81.5 grams for $1,500. In each instance the money was paid to Matthews in advance and a series of conversations, usually by telephone, took place before Matthews finally advised Bonner where and when he would receive delivery of the heroin.

The fourth transaction was witnessed by 12 Government agents. It was an attempted partial distribution of 6,000 grams of heroin by defendants Matthews and Pearman to defendants Stephens, Oliver and Westbrook on the sidewalk in front of 7808 South Morgan Street in the evening of March 5, 1967. The heroin was in small packages, which in turn were carried in a large brown paper bag. As the five defendants were standing in a circle, three with hands outstretched to receive delivery, and Pearman with his hand reaching into the paper bag, one of the agents announced his office and placed all five under arrest. They scattered and fled in different directions, but all were promptly apprehended and the bag of heroin was recovered. Based on the prices paid by Bonner in the earlier transactions, the heroin seized on March 5, 1967, had a value of about $120,000.

The conspiracy encompassed not only the four specific transactions identified in the substantive counts, but other incidents as well. On January 25, 1967, Bonner had made an advance payment of $1,500 to Matthews who returned the funds several days later because he was unable to deliver the heroin. On the evening of March 5, 1967, when the five defendants congregated at 78th and Morgan, Bonner was waiting for Matthews in a nearby tavern to consummate a $2,000 purchase which they had previously arranged. One Willard Evans, originally named as a defendant and severed before trial, testified that he also purchased narcotics from Matthews. On one occasion in November, 1966, he received a package of heroin from Matthews near 75th and Stewart immediately after he witnessed delivery of that package to Matthews by defendant Stephens who was a passenger in a station wagon driven by defendant Wilbert Holmes. Three of the five defendants arrested on March 5, 1967, had Wilbert Holmes' unpublished telephone number in their possession.2

Defendants Auckland Holmes and Earl Williamson were not shown to have been present at the delivery of any narcotics. Each was seen in the company of other defendants on various occasions. On one such occasion defendant Pearman exchanged attache cases with Auckland Holmes in a parked car; the case delivered to Holmes was filled with cash. On another occasion Auckland Holmes and Earl Williamson met in a car wash station and carried on a conversation which was partially overheard by two agents; in that conversation they referred to Pearman, to the transactions between Matthews and Bonner, and to the collections to be made the next day, and discussed the need to consult counsel about certain aspects of their business.

Statements by Matthews to Bonner, which were described in detail in Bonner's testimony, and many of which were overheard by agents via the concealed transmitter, contained a number of references which could fairly be understood to relate to Auckland Holmes, Wilbert Holmes and Earl Williamson, and to their participation at an executive level in the organized distribution of narcotics. Many of these references were in colloquial and ambiguous form, but the guilty verdicts require such evidence to be construed favorably to the Government.

Appellants have advanced a veritable spate of contentions. We have considered them all with care but find that only a few raise questions of substance. Each appeal has been briefed and argued separately, but we shall discuss the contentions in categories.

I. Sufficiency of the Evidence.

Four of the defendants raise questions concerning the adequacy of the proof.

A. Wilbert Holmes.

Wilbert Holmes was convicted on the conspiracy count but was not charged with any substantive offense. Assuming that the evidence of conspiracy was adequate as to the other defendants, he argues that his intent to cooperate in an unlawful enterprise cannot be inferred either from his presence when a single unlawful act was committed or from his mere association with conspirators.

In evaluating this argument we start with the premise that the existence and nature of the conspiracy has already been established, and that the evidence relating to Wilbert Holmes was all admissible and credible. The question is whether that evidence, taken as a whole, supports the conclusion that he was a knowing participant.

The witnesses Bonner and Evans made repeated purchases from the enterprise. In each instance the arrangements preceding the delivery by Matthews included precautions which would minimize the likelihood of observation or apprehension. The mere presence of a third party would strongly suggest that he was intended to perform a useful function in connection with the transaction.

In November of 1966, when a package of heroin was delivered to Matthews near 75th and Stewart, Wilbert Holmes was not merely present; he drove the car to what must have been a prearranged delivery point; he saw Stephens hand Matthews the package, and apparently engaged in a brief conversation with him. There is no question about the nature of the transaction itself (Evans having witnessed it and described it in his testimony) or about the fact that it was in furtherance of the conspiracy. It is reasonable to infer that Holmes knew exactly what was happening and that he was driving the station wagon at that time and place because he was a participant. That inference is not contradicted by any evidence offered on Holmes' behalf.3

On the contrary, it is corroborated by other circumstances. Participants in the conspiracy used unpublished telephone numbers; so did Holmes. They knew each other's unpublished numbers. Three of the five who were arrested as Pearman and Matthews were making a distribution from a bag of 6,000 grams of heroin had Wilbert Holmes' unpublished number in their possession, one on a matchbook cover and one on a scrap of paper. His address book, seized at the time of his arrest, contained Stephens' address and the unpublished numbers of defendants Williamson, Pearman and Westbrook, as well as his brother, Auckland Holmes. A business, rather than purely social, relationship between those defendants and Wilbert Holmes may reasonably be inferred. The only common business activities disclosed by the record was their joint participation in the distribution of heroin. Taking the evidence as a whole in the light most favorable to the Government, and noting the absence of contradictory evidence, the jury could properly infer that Wilbert Holmes was a knowing participant in the conspiracy when he and Stephens delivered a package of heroin to Matthews in November, 1966. That fact is sufficient to sustain his conviction under Count I. See United States v. Spadafora, 181 F.2d 957, 959 (7th Cir. 1950) cert. denied, 340 U.S. 897, 71 S.Ct. 234, 95 L.Ed. 650.

B. Auckland Holmes.

According to the Government's version of the evidence, Auckland Holmes was the top executive in the joint venture.4 His principal contention is that the evidence linking him to the conspiracy and to sales to Bonner is unworthy of belief.

He does not seriously attack the credibility of the evidence that Pearman delivered a briefcase full of cash to him in a parked car or the evidence of his association with other defendants. He concentrates his attack on the agents' testimony concerning the conversation with Earl Williamson which they claimed to have overheard in a car wash near 79th and St. Lawrence. He argues that the testimony is inherently incredible because an alleged mastermind of a million dollar narcotics business would not be so stupid as to permit himself to be overheard in an incriminating conversation in a public place ; because the two white agents would obviously have attracted suspicion in the heart of a black neighborhood; and because the physical evidence, as explained by the owner of the...

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