United States v. Maurice

• Decision Date: 17 September 1969
• Docket Number: No. 24117.,24117.
• Citation: 416 F.2d 234
• Parties: UNITED STATES of America, Appellee, v. Richard P. MAURICE, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

416 F.2d 234 (1969)

UNITED STATES of America, Appellee, v. Richard P. MAURICE, Appellant.

No. 24117.

United States Court of Appeals Ninth Circuit.

September 17, 1969.

William L. Osterhoudt (argued), James F. Hewitt, Harry C. Singer, San Francisco, Cal., for appellant.

Paul G. Sloan (argued), Asst. U. S. Atty., Cecil F. Poole, U. S. Atty., David P. Bancroft, Jerrold M. Ladar, Asst. U. S. Attys., San Francisco, Cal., for appellee.

Before ELY and CARTER, Circuit Judges, and SMITH, District Judge.^*

ELY, Circuit Judge:

Maurice, together with a co-defendant named Spargo, was indicted for having unlawfully sold five hundred tablets of a drug commonly known as LSD. The sale was charged to have constituted an offense under 21 U.S.C. § 331(q) (2). Maurice and Spargo were jointly tried. The jury determined that they were guilty, and judgments of conviction followed. Only Maurice appeals.

In an excellent brief, counsel for Maurice hang their plea for reversal upon Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Our study convinces us that Bruton cannot be so far extended as to supply an adequately supportive foundation for the argument advanced in Maurice's behalf; hence, we affirm.

Viewing the evidence in the light most favorable to the Government, as we are required to do, we see the pertinent facts as follows: The first arrangements for the sale were made between a Government agent named Voorhees and a man by the name of Jay Eagen. Pursuant to a prearranged appointment, these two had met at San Francisco's International Airport. After a discussion between them, Eagen made a telephone call to Maurice and handed the telephone to Voorhees, who was present. Voorhees and Maurice discussed several matters pertaining to Voorhees' possible purchase of a quantity of LSD, including the price and Maurice's suggestion to Voorhees that if Eagen were eliminated from the transaction, a reduction in the price might be effected. Voorhees acquiesced, and Maurice requested that Voorhees telephone him at a later time in order to make final arrangements. Voorhees made the later call as requested, and Maurice told Voorhees that he, Maurice, would reach the airport in about one-half an hour and that he would be accompanied by another individual who would have the drug in his possession. In this same telephone conversation, Maurice told Voorhees that he would identify himself with the name of "Rusty," described the dress which he would wear, and said that his companion would remain in the airport at such a distance from Maurice that, if signaled by Maurice, he might escape with the LSD which, according to Maurice, would then be in his companion's possession. These arrangements were implemented. Maurice and Spargo appeared at the airport, and an exchange followed with Spargo delivering the drug, in five plastic bags, to the Government's agent.

While Eagen was charged in the common indictment with having aided and abetted Maurice and Spargo in the commission of the offense, he was not present at the trial. It is represented that he was a fugitive. The defense offered by Maurice was to the effect that the Government's evidence did not sufficiently establish that he was a party to the sale and delivery. Spargo's defense, essentially, was that he was ignorant of the nature of the material which he delivered.

Spargo did not testify, but his attorney, in his opening statement at the beginning of the trial, made certain comments which are emphasized in connection with the contention that Bruton requires reversal. The whole of these particular comments are set forth in the margin.¹ Their effect, in sum, is that while Spargo was visiting Maurice at the latter's home, listening to phonograph records, Maurice asked Spargo to accompany him "to the airport to see somebody." Further, that when Spargo agreed and as they departed on Maurice's motorcycle, Maurice requested Spargo, the passenger, to carry "five bags" for Maurice. This, according to the representation made by Spargo's attorney in his opening statement, was all that Spargo did.

Maurice's trial attorney did not object to the opening statement of Spargo's counsel, and we are now told that he did not do so because of his then expectation that Spargo would testify and that there would be an opportunity for cross-examination.

It is argued, adroitly, that Spargo's attorney, by the specified comments, effectively represented to the jury that Maurice, the appellant here, was the moving party in the transaction and the only reprehensible culprit. It is urged that we must assume, as undeniable fact, that Spargo's attorney necessarily received all of his information from Spargo and that, hence, the questioned comments constituted, in effect, a statement by Spargo himself which was intolerably prejudicial to his appealing co-defendant. Compare Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965).

There are at least three reasons why we must affirm. The first, and most important, is that Bruton is not controlling. In Bruton, the Supreme Court was confronted with a situation wherein the confession of a co-defendant in Bruton's trial was received as evidence. The confessor did not testify. The admitted confession gravely incriminated Bruton. It was held that Bruton had been deprived of his Sixth Amendment right of confrontation and that even though the jury had been instructed that it was to consider the confession only as to the confessing co-defendant, the infringement of Bruton's constitutional right was so severely prejudicial as to require that his conviction be vacated. Here, we have a far different case, more nearly fitting Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969)....