United States v. Hopkins, Crim. A. No. 72-458.

• Decision Date: 06 February 1973
• Docket Number: Crim. A. No. 72-458.
• Citation: 354 F. Supp. 634
• Parties: UNITED STATES of America v. Arthur HOPKINS et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

354 F. Supp. 634

UNITED STATES of America v. Arthur HOPKINS et al.

Crim. A. No. 72-458.

United States District Court, E. D. Pennsylvania.

February 6, 1973.

Thomas McBride, Asst. U. S. Atty., for plaintiff.

Ronald J. Brockington, Philadelphia, Pa., for Hopkins.

Edward H. Weiss, Philadelphia, Pa., for Fletcher.

Kenneth S. Harris, Philadelphia, Pa., for Dinkins.

OPINION

GORBEY, District Judge.

At a trial by jury, defendant Arthur Hopkins (Hopkins) was found guilty of aiding and abetting in the distribution of 5.81 grams of a controlled substance (i. e. heroin)¹ and conspiracy to distribute a controlled substance² as charged by counts 2 and 3 of the indictment. Defendant James Dinkins (Dinkins) was found guilty of distribution of a controlled substance³ and conspiracy to distribute a controlled substance⁴ as charged by counts 1 and 3 of the indictment. Defendant Alfred S. Fletcher was found not guilty as charged by counts 2 and 3 of the indictment which charged him with aiding and abetting in the distribution of a controlled substance and conspiracy. Defendant James Reid is a fugitive; and therefore has not been tried.

Following the trial, defendants Hopkins and Dinkins moved for a new trial. Defendant Dinkins alleges that there was not sufficient evidence from which the jury could find him guilty of sale and possession of a controlled substance. The test on a motion for judgment of acquittal is whether the evidence is such that reasonable minds could find guilt beyond a reasonable doubt. Mortensen v. United States, 322 U.S. 369, 64 S.Ct. 1037, 88 L.Ed. 1331 (1944); United States v. Allard, 240 F. 2d 840 (3d Cir. 1957); cert. denied sub nom., Fishman v. United States, 353 U. S. 939, 77 S.Ct. 814, 1 L.Ed.2d 761 (1957). In considering such motion the evidence must be viewed in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Pratt, 429 F.2d 690 (3d Cir. 1970). This includes, in a case which involves circumstantial evidence, the indulgence in all permissible inferences in the government's favor. United States v. Bowles, 428 F.2d 592, 597 (2d Cir. 1970), cert. denied, 400 U.S. 928, 91 S.Ct. 193, 27 L.Ed.2d 188 (1970). When the evidence is seen in this light there is clearly sufficient evidence to support the present convictions.

From the testimony the jury may have found that a federal agent, accompanied by Calvin Butler (Butler), a known narcotics user, engaged in a successful purchase of narcotics. Butler, who had been searched by the agent prior to the undercover operation, turned over two bundles of heroin to the agent after he came out of a bar. The defendant Dinkins had been observed conversing with Butler before they entered a bar together. Dinkins was observed leaving and re-entering the bar while Butler was inside. Immediately after Butler emerged from the bar, he handed over two bundles of heroin to the agents. At the trial Butler testified that he purchased the heroin in question from Dinkins for $200, which was supplied to him by the agent for that purpose.

At the trial the defendant Dinkins testified to deny that a sale had taken place. The question was clearly one of credibility; with the jury apparently choosing to believe the testimony of the federal agents and Butler. Accordingly, we cannot say that the evidence was clearly insufficient within any reasonable guideline. United States v. Migliorino, 238 F.2d 7 (3d Cir. 1956).

Next, defendant Dinkins contends that the court erred in instructing the jury on the credibility of witnesses. The testimony in the case showed that bundles of heroin turned over by Butler to the government agent contained two packets less than the usual number of packets and bundles sold on the street. The defendant feels that this fact entitles him to a charge that the jury should infer that Butler took the two packets and is therefore not worthy of belief. In addition to failing to cite any authority that the testimony of a witness may be impeached by evidence which tends to establish larceny, the defendant at trial failed to ask for such an instruction. A review of the court's instructions to the jury indicates an impeachment of a witness' credibility was adequately covered. Further, evidence of a witness' arrest for larceny may not be introduced to impeach credibility. Since arrest is not sufficient to show the witness is guilty of a crime involving crimen falsi (United States v. Katz, D.C., 78 F. Supp. 435, aff'd, 173 F.2d 116 (3d Cir. 1949)) a fortiori evidence upon which an arrest might be made is even less of a showing. Further, it should be noted that counsel for defendant Dinkins made no objection to the charge at the time it was read.

Lastly, defendant Dinkins argues he is entitled to a new trial owing to a prejudicial joinder. In support of this motion, he quotes Fed.R.Crim.P. 14 and Cross v. United States, 118 U.S. App.D.C. 324, 335 F.2d 987 (1964) to show that the counts were prejudicially joined. Defendant Dinkins was charged in separate counts of the indictment with distribution of a controlled substance and conspiracy to distribute a controlled substance. Both of these counts arose out of the same incident. This is substantially different from Cross where the defendant was charged in separate counts of the indictment with robbery of a tourist home and robbery of a church rectory (i. e. two separate incidents).

Further, the reason for prejudice in Cross, supra, was that the defendant wished to testify on one count and remain silent on the other. Joinder of the counts required that the defendant offer dubious testimony on the count upon which he would otherwise remain silent, in order to avoid the damaging implication of testifying on only one of the two joint counts. Here there was no such dubious testimony by the defendant Dinkins. His testimony was largely a denial that he had even met or sold narcotics to Butler, a denial that he ever met or knew the alleged co-conspirators, and an explanation of the source of the money found in his possession when he was arrested. None of the defendant's testimony could be characterized as more dubious than other portions which would be the case where a strong alibi was offered for one offense and a dubious alibi for another. Cross, supra, must also be distinguished by the fact that the defendant's motion to sever the counts was made before trial. Here the issue has been raised for the first time after trial. The defendant has failed to meet his burden of showing something more than the fact that a separate trial "might offer him a better chance of acquittal", Tillman v. United States, 406 F.2d 930 (5th Cir. 1969).

Defendant Dinkins' motion for judgment of acquittal or in the alternative new trial is therefore denied.

Defendant Hopkins alleges that there was not sufficient evidence from which the jury could...