United States v. Lum

• Decision Date: 28 February 1979
• Docket Number: Crim. A. No. 78-61.
• Citation: 466 F. Supp. 328
• Parties: UNITED STATES of America, Plaintiff, v. Stanley D. LUM, Defendant.
• Court: U.S. District Court — District of Delaware

466 F. Supp. 328

UNITED STATES of America, Plaintiff, v. Stanley D. LUM, Defendant.

Crim. A. No. 78-61.

United States District Court, D. Delaware.

February 28, 1979.

COPYRIGHT MATERIAL OMITTED

John H. McDonald, Asst. U. S. Atty., Wilmington, Del., for plaintiff.

L. Vincent Ramunno, Wilmington, Del., for defendant.

OPINION AND ORDER

STEEL, Senior District Judge:

This matter comes before the Court on the defendant's motion for a judgment of acquittal or, in the alternative, for a new trial.¹ For the reasons which follow, defendant's motion will be denied.

Defendant, Stanley D. Lum, was indicted on three counts. Count I charged a conspiracy to possess and to distribute heroin, in violation of 21 U.S.C. § 846. Count II charged possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Count III charged distribution of heroin, in violation of 21 U.S.C. § 841(a)(1). A trial was held on December 19, 20, and 21, 1978. At the close of all the evidence, Lum moved for a judgment of acquittal, pursuant to Rule 29(a) Fed.R. Crim.P. The Court reserved decision on the motion, pursuant to Rule 29(b) Fed.R. Crim.P., and submitted the case to the jury. The jury returned a verdict of guilty on Count I and not guilty on Counts II and III.

After the jury was discharged, the defendant renewed his motion for a judgment of acquittal, pursuant to Rule 29(c) Fed.R. Crim.P., and moved, in the alternative, for a new trial pursuant to Rule 33 Fed.R.Crim.P. Defendant's motion is based on five grounds which are discussed seriatum.

I. The Evidence

The facts introduced by the government at trial were the same regarding all three counts. Briefly summarized, the government established the following by the testimony of George E. Dorsey, a Special Agent of the Drug Enforcement Agency. Agent Dorsey testified that he arrived at the home of Clarence Brisco at approximately 5:45 P.M. on September 6, 1978, to purchase heroin from Brisco. Although Dorsey did not meet Brisco immediately, at approximately 6:00 P.M. Brisco, Lum, and Nathaniel Williams entered the living room together from the second floor of Brisco's house. (Tr. 33). Dorsey and Brisco then discussed the amount of heroin that Dorsey wished to purchase. (Tr. 268). Lum did not participate in the conversation, but was standing approximately 6 to 8 feet away in the living room. (Tr. 35).

After this conversation, Brisco made a telephone call, held another conversation with Dorsey, and left the house accompanied by Lum and Nathaniel Williams. (Tr. 37). Approximately one hour later, Brisco and Lum returned to the house. Brisco then informed Dorsey that he did not have enough heroin to complete the transaction, but indicated that Lum could procure the additional amount. (Tr. 270). Brisco then spoke with Lum in the dining room. (Tr. 41). Following this conversation, Lum left the house. He returned approximately 15 minutes later, handed Brisco a clear plastic bag containing an off-white, brownish powder, and proceeded to the second floor of the house with Brisco. (Tr. 42). Approximately 5 minutes later, Brisco and Lum came downstairs together and Brisco, with Lum remaining in the living room, ushered Dorsey into the kitchen and gave him a clear plastic bag containing an off-white, brownish powder. Dorsey handed Brisco $275 and left the house. (Tr. 43).

II. Defendant's Motion for a Judgment of Acquittal

(a) Weight and sufficiency of the evidence

Rule 29(a) Fed.R.Crim.P. provides for the entry of a judgment of acquittal "if the evidence is insufficient to sustain a conviction . . .." In ruling upon a motion for a judgment of acquittal the Court:

Scrutinizes the evidence, including reasonable inferences to be drawn therefrom, from the point of view most favorable to the government and assumes the truth thereof. If there is substantial evidence justifying an inference of guilt, irrespective of the evidence adduced by the defendant, the Court must deny the motion. United States v. Wolfson, 322 F.Supp. 798, 806 (D.Del.1971), aff'd, 454 F.2d 60 (3d Cir.), cert. denied, 406 U.S. 924, 92 S.Ct. 1792, 32 L.Ed.2d 124 (1972), quoting United States v. McGonigal, 214 F.Supp. 621, 622 (D.Del.1963). See also, United States v. Trotter, 529 F.2d 806 (3d Cir. 1976).

To support a conviction for a violation of 21 U.S.C. § 846, the government must produce sufficient evidence to prove beyond a reasonable doubt that the conspiracy was knowingly formed and that the defendant wilfully participated in the unlawful plan, with the intent to advance or further the illegal purpose of the conspiracy. See United States v. Thompson, 533 F.2d 1006, 1009 (6th Cir.), cert. denied, 429 U.S. 939, 97 S.Ct. 353, 50 L.Ed.2d 308 (1976); United States v. James, 510 F.2d 546 (5th Cir.), cert. denied, 423 U.S. 855, 96 S.Ct. 105, 46 L.Ed.2d 81 (1975); United States v. McKnight, 439 F.Supp. 536 (E.D. Pa.1977). It is not necessary that the government prove an overt act to sustain a conviction under 21 U.S.C. § 846. United States v. Dreyer, 533 F.2d 112, 117 n. 6 (3d Cir. 1976).

The evidence, viewed in a light most favorable to the government, was more than sufficient to justify the jury's conclusion beyond a reasonable doubt that Lum knowingly, intentionally, and actively assisted Brisco in the sale of heroin to Agent Dorsey on September 6, 1978. Consequently, Lum's motion for a judgment of acquittal must be denied.

III. Defendant's Motion for a New Trial

(a) Inconsistent Verdicts²

The defendant argues that the jury's verdict was inconsistent in that they acquitted him on the substantive counts while convicting him of conspiracy. Consistency in a jury's verdict on separate counts of an indictment, however, is not required when the indictment charges different offenses requiring different elements of proof. See United States v. Haynes, 554 F.2d 231, 233 (5th Cir. 1977); United States v. Harris, Crim.No. 78-32 (D.Del. November 22, 1978). As the Third Circuit has stated:

Where different offenses are charged in separate counts of a single indictment, an acquittal on one or more of the counts does not invalidate a verdict of guilty on another even where the same evidence is offered in support of each count. United States v. Vastine, 363 F.2d 853, 854-55 (3d Cir. 1966).

In Dunn v. United States, 284 U.S. 390, 393-94, 52 S.Ct. 189, 190-191, 76 L.Ed. 356 (1931), Justice Holmes explained the reason for the rule as follows:

Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment. . . . If separate indictments had been presented against the defendant for possession and for maintenance of a nuisance, and had been separately tried, the same evidence being offered in support of each, an acquittal on one could not be pleaded as res judicata of the other. Where the offenses are separately charged in the counts of a single indictment the same rule must hold. As was said in Steckler v. United States, 2 Cir., 7 F.2d 59, 60:

The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.

* * * * * *

That the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But the verdicts cannot be upset by speculation or inquiry into such matters. (citations omitted).

(b) The charge on circumstantial evidence

The defendant argues that the Court's failure to inform counsel that it would give an instruction on circumstantial evidence violated Rule 30 Fed.R.Crim.P. and unfairly prevented defense counsel from making a full and complete closing argument to the jury.

Rule 30 reads in part:

At the close of the evidence . . . any party may file written requests that the court instruct the jury on the law as set forth in the requests. . . . The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed.

After giving its announced instructions to the jury, the court added the following instruction on circumstantial evidence:

I want to say a word about direct and circumstantial evidence. There are two types of evidence from which you may find the truth as to the facts of the case, direct and circumstantial evidence. Direct evidence is the testimony of one who asserts actual knowledge of a fact, such as an eye witness. Circumstantial evidence is proof of a chain of facts and circumstances indicating the guilt or innocence of the defendant.

The law makes no distinction between the weight to be given to either direct or circumstantial evidence, nor is a greater degree of certainty required of circumstantial evidence than of direct evidence. You should therefore, weigh all the evidence in the case, direct and circumstantial, and after weighing all the evidence, if you are not convinced of the guilt of the defendant beyond a reasonable doubt, you must find him not guilty. (Tr. 443-44).

The Court's instruction on circumstantial evidence correctly stated the law, see Devitt and Blackmar, Federal Jury Practice and Instruction, § 72.02 at 600 (3d ed. 1977), and the defendant does not contend otherwise. Consequently, the only question is whether the Court failed to comply with Rule 30, when it gave the charge on circumstantial evidence without prior notice to the defendant that it would do so.

Rule 30 does not guarantee that counsel be advised of all jury instructions. Rather, it only requires the Court to advise counsel of its rulings on counsel's requested instructions. United States v. Newson, 531 F.2d 979, 983 (10th Cir. 1976); United States v. Clarke, 468 F.2d 890, 892 (5th Cir. 197...