United States v. MacDonald, 71-1153

• Decision Date: 16 February 1972
• Docket Number: No. 71-1153,71-1225.,71-1154,71-1153
• Citation: 455 F.2d 1259
• Parties: UNITED STATES of America, Appellee, v. Paul MacDONALD et al., Appellants.
• Court: U.S. Court of Appeals — First Circuit

455 F.2d 1259 (1972)

UNITED STATES of America, Appellee, v. Paul MacDONALD et al., Appellants.

Nos. 71-1153, 71-1154, 71-1225.

United States Court of Appeals, First Circuit.

Heard December 6, 1971.

Decided February 16, 1972.

Certiorari Denied May 30, 1972.

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William P. Homans, Jr., Boston, Mass., with whom Featherston, Homans & Klubock and Thomas G. Shapiro, Boston, Mass., were on brief, for Paul MacDonald, appellant.

Ira L. Schreiber, Providence, R. I., for Michael F. Kelley, appellant.

Harvey A. Silverglate, Boston, Mass., with whom Zalkind & Silverglate, Boston, Mass., was on brief, for Lance H. Trott, appellant.

Paul F. Ware, Jr., Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee.

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

Certiorari Denied May 30, 1972. See 92 S.Ct. 2070, 2073.

COFFIN, Circuit Judge.

This is a consolidated appeal involving three defendants, MacDonald, Kelley and Trott, who were convicted in a jury trial of violating and conspiring to violate 26 U.S.C. § 4705(a) by dealing in cocaine not in pursuance of a written order form issued for that purpose.¹ MacDonald and Kelley were sentenced on both the substantive and conspiracy counts to ten years imprisonment, to be served concurrently; Trott was sentenced to five years imprisonment.²

From the evidence produced at trial, it appears that the initial contact in contemplation of a sale of cocaine was made by defendant MacDonald with a fellow student who worked as a paid informer for the Bureau of Narcotics. Preliminary arrangements were completed at subsequent meetings between MacDonald, the student, her "money man" and a "friend" to sell the student a half-pound of cocaine for $6,000. Shortly thereafter, MacDonald, who had been joined at this point by his "partner, Lance Trott", accompanied the student and the two undercover narcotics agents to a Cambridge store owned by defendant Kelley. Kelley, who had been introduced as MacDonald's "source," gave a small amount of a white powdery substance to the student for testing. As soon as the substance was verified as cocaine, all three defendants were arrested.

Defendants Trott and MacDonald complain first of the district court's refusal to instruct the jury that they should return not guilty verdicts if they found that Trott and MacDonald were mere agents of the buyers. While we have recognized that status as a buyer's agent can occasionally be a defense to a charge brought under 26 U.S.C. § 4705(a), see United States v. Barcella, 432 F.2d 570 (1st Cir. 1970), the circumstances justifying a "buyer's agent" charge are extremely rare. Before such a charge is given, there must be some evidence that the defendant's involvement was confined solely to acting as the agent of the recipient, physically handling drugs whose ownership had already passed to such recipient and hence not personally engaging in the sale, barter, exchange or gift proscribed by § 4705(a). Id. at 571-72. Since there was not a scintilla of evidence here that would have justified a jury finding that Trott and MacDonald were mere buyers' agents, the court was duty-bound to refuse to give the instruction. See United States v. Platt, 435 F.2d 789, 792 (2d Cir. 1970); United States v. Vole, 435 F.2d 774, 776-778 (7th Cir. 1970); United States v. Leach, 427 F.2d 1107, 1112 (1st Cir.), cert. denied, Tremont v. United States, 400 U.S. 829, 91 S.Ct. 57, 27 L.Ed.2d 59 (1970).

All three of the defendants attempt to draw sustenance from our opinion in United States v. Flannery, 451 F.2d 880 (1st Cir. 1971), for their contention that the prosecutor impermissibly commented on MacDonald's failure to take the stand in a manner prejudicial to them all. In his closing remarks, the prosecutor characterized MacDonald's position as follows:

"MacDonald is saying, I was entrapped. He is saying, I was innocent and by the womanly guile of this young lady that took the stand in front of you, this otherwise innocent individual MacDonald who testified he had previously—excuse me, who did not testify, but of whom there was testimony he was previously involved in drugs and was in fact a drug counselor at the time he was so willing to sell this cocaine . . .." (portion objected to in italics)

Although Flannery's prophylactic rule is prospective, this court has long been sensitive to the possible prejudice to defendants that may accompany prosecutorial comment on what is both a constitutionally and statutorily-protected right to remain silent.³ See, e. g., Desmond v. United States, 345 F.2d 225 (1st Cir. 1965). But we do not regard this as an instance calling even for censure—much less for reversal. Defendants concede that the prosecutor's reference to MacDonald's not testifying was wholly inadvertent, that is, that it represented a verbal slip rather than a premeditated bad faith effort to extract advantage out of the defendants' decisions not to testify while cleverly guarding against risk of reversal. This fact alone would not immunize a comment if when placed in context it could have prejudiced any of the defendants. But we are satisfied that no prejudice occurred here since the context makes clear that defendant's silence was not referred to as impliedly confirmatory of the prosecutor's case, and the court gave an adequate curative instruction at the conclusion of the argument.

A more troublesome issue is raised by the trial court's instruction on reasonable doubt. The court variously instructed the jury that a reasonable doubt means "proof to a moral certainty, proof beyond a doubt for which you can give a reason"; at two other junctures, proof for which you can state "an intelligent reason". We have not before been faced with an instruction on reasonable doubt phrased in precisely these terms, although the overwhelming majority of courts which have confronted instructions containing a definition of reasonable doubt as a doubt "based on reason" or for which the juror can "give a reason" have not found reversible error.⁴ In the context of the entire charge, we are convinced that the intent and effect of the court's reference to a "reason" or to an "intelligent reason" was solely to emphasize to the jury that its verdict should be the product of a rational thought process. Individual jurors were not charged with either articulating a supportable ratio decidendi or capitulating to the will of opposing jurors, but instead were cautioned in terms, which were perhaps unwisely emphatic, that a reasonable doubt was more than an irrational hesitancy to convict based on pure conjecture. We do not regard this formulation reversible as a matter of law.

We nevertheless feel constrained to add a cautionary note. Whatever their value in other areas of the law in adding zest or currency to otherwise all too predictable proceedings, personal variations on elements such as reasonable doubt seldom represent sound judicial practice. A common effect of such variations is to excite both controversy and appellate litigation without any offsetting assurance that the attempted clarification is either necessary, see 8 Moore's Federal Practice ¶ 30.06, or successful, see Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954). Courts have consistently approved several standard formulations of the reasonable doubt standard and we cannot conceive of any compelling need for an innovation such as that at issue here. Furthermore, we share the concern of those courts which, although tolerating similar instructions, have disapproved of them as flirting unnecessarily with an impermissible lessening of the government's burden of proof. We therefore suggest that district courts in this circuit refrain in the future from going outside of the consistently approved stock of charges on reasonable doubt with variations such as the one employed here.

Defendants' fourth contention is that the court erred in refusing to instruct the jury that it could not convict them of conspiracy to sell cocaine unless it found that they had a specific intent to violate the order form requirement contained in 26 U.S.C. § 4705(a). This contention was disposed of in United States v. Bradley, 455 F.2d 1181 (1st Cir. 1972), which held that the mental element required for conviction of conspiracy to violate 26 U.S.C. § 4705(a) is an intent to transfer narcotics illegally rather than an intent not to use an order form. The court's instructions, phrased in terms of the necessity of finding that the defendants specifically intended "to do something which the law forbids", appropriately conveyed this distinction.⁵

Defendant Kelley further urges us to find error in the district court's negative ruling on his motion to suppress both the "sample" of cocaine given the student-informer and the larger quantity of cocaine seized in his shop at the time of his arrest. He argues that the sample should be excluded because of an alleged failure by the government to satisfactorily establish an unbroken chain of custody and that the larger quantity should have been excluded because it was seized without a warrant and without probable cause for getting one. We find no merit in either contention. The sample was tested, found to be cocaine and marked for identification purposes by the government agents assigned to the case. Both agents testified at trial regarding the procedure followed in testing and marking the sample and both identified the glassine bag introduced by the government at trial as the one containing the sample which they had tested. The jar containing the larger quantity of cocaine was not taken after a general exploratory search was conducted of the type condemned in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Given the high risk that the larger quantity of cocaine would be moved before a search warrant could be obtained, the knowledge that the sample had been drawn from...