United States v. Jackson

• Decision Date: 23 July 1973
• Docket Number: 72-1792 and 72-1793.,No. 72-1653,72-1653
• Citation: 482 F.2d 1167
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Herman JACKSON et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

482 F.2d 1167 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. William Herman JACKSON et al., Defendants-Appellants.

Nos. 72-1653, 72-1792 and 72-1793.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted April 9, 1973.

Decided July 23, 1973.

Rehearing Denied August 21, 1973.

Rehearing Denied August 31, 1973.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Walter L. Gerash and Louis M. Fischer, Denver, Colo., for defendant-appellant Jackson.

Richard H. Duke, Denver, Colo., for defendants-appellants Price and Gainous.

Paul D. Cooper, Asst. U. S. Atty., (James L. Treece, U. S. Atty., Denver, Colo., on the brief), for plaintiff-appellee.

Before PHILLIPS, HILL and DOYLE, Circuit Judges.

Rehearing Denied in Nos. 72-1792 and 72-1793 August 21, 1973.

Rehearing Denied in No. 72-1653 August 31, 1973.

HILL, Circuit Judge.

Appellants Jackson, Price and Gainous, together with one Serles, were indicted on two counts of smuggling heroin into the United States. The first count charged the illegal importation or aiding and abetting in the importation of heroin¹ into the United States. The second count charged them with conspiracy² in commission of the above stated offense. A jury convicted appellants Jackson and Price of Count One and all three appellants of Count Two. The defendant Serles previously entered a plea of guilty to the indictment.

The attempted smuggling was first observed at U-Tapao Airfield, Thailand. Upon reaching Travis Air Force Base, California, customs authorities opened the smuggled package and discovered over 7800 grams of 85 percent pure heroin hidden inside. The package was then sent to its destination point, Lowry Air Force Base, Colorado, where powdered soap was substituted for most of the heroin. Finally it was placed in the appropriate warehouse until picked up by unknown persons on January 11, 1972. Subsequently four persons were arrested, three of whom are appellants in this case.

Serles was the prosecution's chief witness. His testimony is crucial to the government's case and thus will be recited extensively. While stationed at U-Tapao Airfield, Serles became friends with Johnny Trice. These two men discussed shipping contraband into the United States on military flights, but as Trice was later transferred to Tinker Air Force Base, Oklahoma, the discussions went no further.

In June or July, 1971, Serles suggested to appellant Jackson that he knew a way to ship goods into the United States. Jackson's reply was "stay cool" and contact him later. Their next visit was in September, when Jackson contacted Serles. He handed Serles a paper containing instructions for shipping cargo to Tinker Air Force Base, and questioned him on his understanding of the instructions. Convinced that Serles understood shipping procedures, Jackson suggested they meet again later in the day at Jackson's "American Star Bar." When they met later that day, the conversation centered on shipping goods to the United States on military cargo flights. Jackson stated he would like to ship a package weighing over seven kilos and worth more than its weight in gold. Jackson promised the package would be packed airtight to prevent discovery by dogs, and if Serles would help out he would be paid $15,000 for his efforts. Serles accepted the offer but first wanted to ship a test package to discern whether it would pass customs inspection.

The following night Serles met Andrew Price at Jackson's tavern. Price assured Serles that Jackson had told him everything, so it was all right to proceed with the planning. At the end of their conversation Serles was given $300 in Thai money to bribe Thai workers loading the military cargo.

In the latter part of September Serles and Price began executing the plan. They picked up the test package from Jackson's house. Serles then typed up false shipping documents to be sent with the package. This package was delivered to a Thai national at Dong Muong Airfield outside Bangkok. From there it was flown to U-Tapao where another Thai worker forwarded it to Tinker Air Force Base.

At this point we shift to Trice's testimony. Trice testified he informed appellant Gainous of the discussion with Serles concerning smuggling goods into the United States. Later Gainous suggested Trice visit the "big man" at Jackson's tavern, but Trice declined. When Trice was back in the United States on a thirty-day leave, Gainous contacted him by telephone and suggested he come to a party in the south. All expenses would be paid if Trice would make the trip, but ultimately Trice decided not to go.

After his leave, Trice was stationed at Tinker Air Force Base. In August Gainous journeyed to Tinker for the purpose of offering Trice $10,000 to pick up a package sent from Thailand. Gainous also wrote down shipping instructions to aid Trice in identifying the package and urged him to write Serles concerning the shipment. In the early part of October Gainous sent Trice more instructions by special delivery. He also met with Trice to find out the best method for shipping a package from Thailand to Tinker.

It was during this time that Serles sent the test package to Tinker. Because Trice did not pick up the package, Gainous visited him again, this time to offer him $15,000 to go along with the scheme. Apparently all plans concerning Trice were thereafter discarded, as the next time Gainous contacted him was in January, 1972. This call was to inform Trice that Serles had been picked up for questioning. Trice was cautioned to "be cool" and only tell the authorities that he had known Gainous since 1966.

Serles' testimony explains the rest. Because the first test shipment was not picked up, all parties were told to "freeze." Only in December, 1971, did they proceed with their original plans. A second test package was shipped, this time to Lowry Air Force Base. Price instructed Serles on how to send this package and gave him another $300 to pay the Thai workers. Once again the package made it through customs inspection, but once again it was not picked up at its destination point. Nevertheless, on December 24 or 25, Price and Serles completed the smuggling scheme. Serles typed up false shipping documents from information supplied by Price. The real package was then picked up at Jackson's house and delivered to Thai workers who forwarded it to Lowry Air Force Base. As mentioned earlier, appellants and Serles were arrested for the attempted smuggling and subsequently convicted.

On appeal Jackson and Price contend there is insufficient evidence to support a conviction for illegally importing heroin. Jackson asserts there is no proof he participated in the smuggling. Admittedly he talked to Serles about shipping something "across the water" but the conversation went no further. Jackson's position is the prosecution failed to link him with either possession or transportation of the heroin package.

Price argues he and Serles never discussed narcotics, so any testimony by Serles concerning narcotics was mere conjecture. Price's position is that Serles admitted pictures taken at Travis of the smuggled box showed it to have been altered; since the package disappeared at U-Tapao Airfield for several days before being delivered to Travis, the chain of evidence as to the package's contents is broken.

The standard of evidentiary review in criminal cases is well settled. The evidence "must be viewed in the light most favorable to the government to ascertain if there is sufficient evidence, direct and circumstantial, together with the reasonable inferences to be drawn therefrom, from which the jury may find the defendant guilty beyond a reasonable doubt." United States v. Butler, 446 F.2d 975, 978 (10th Cir. 1971). The record indicates Jackson told Serles he wanted to ship something back to the United States weighing more than seven kilos and worth more than its weight in gold. What eventually was sent did weigh over seven kilos and was reportedly worth $10,000,000. Jackson handed Serles instructions for shipping a package to Tinker Air Force Base. At approximately the same time Jackson talked to Serles, Gainous asked Trice to pick up a package destined to Tinker from Thailand. Jackson offered Serles $15,000 to send a package to the United States and promised the contents would be packed airtight to prevent discovery by police dogs. Jackson played an important part in other aspects as well. Price mentioned Jackson in his conversations with Serles. Jackson's bar was the focal point for much of the operations; it was there where Price and Serles first met. Gainous suggested to Trice that he meet the "Big Man" at Jackson's tavern. Serles was told to meet Jackson at the tavern on the night Jackson offered him $15,000. Jackson's house also entered the picture. It was there where Price picked up the first test package and where Price and Serles picked up the real package.

The evidence against Price is also convincing. Serles testified that Price was the one with whom he had the most dealings. Price gave Serles the money to pay off the Thai workers. Price informed Serles when and where the shipments were to be sent. It was Price who delivered the packages and gave Serles the necessary shipping documents. Serles testified the heroin package reaching Travis Air Force Base was the one he received from Price.

It is evident there is substantial evidence to convict Jackson and Price. What counsel asks is that we hold Serles' and Trice's testimony insufficient to warrant a conviction; but this we cannot do because the weight to be given testimony is a function of the jury rather than of the appellate court. United States v. Frazier, 434 F.2d 238 (10th Cir. 1970). Admittedly much of the evidence linking Jackson and Price to the smuggling attempt was circumstantial, but as we have mentioned before, the evidence supporting guilt may be circumstantial. United States v. Henry, 468 F.2d 892 (10th Cir. 1972). The evidence...