United States v. Moses
| Decision Date | 28 February 1955 |
| Docket Number | No. 11455.,11455. |
| Citation | 220 F.2d 166 |
| Parties | UNITED STATES of America v. Marie MOSES, alias Marie Kelly, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
Edmund E. DePaul, Philadelphia, Pa. (Herman I. Pollock, Philadelphia Voluntary Defender Ass'n, Philadelphia, Pa., on the brief), for appellant.
Francis Ballard, Asst. U. S. Atty., Philadelphia, Pa. (W. Wilson White, U. S. Atty., Philadelphia, Pa., on the brief), for appellee.
Before McLAUGHLIN, KALODNER and HASTIE, Circuit Judges.
On December 16, 1952, an offense against the United States was committed by one Cooper when he sold narcotics to two federal agents in violation of Sections 2553(a) and 2554(a) of Title 26 United States Code. In connection with this transaction, appellant Marie Moses was indicted and, on four counts, convicted as a seller of the narcotics under Section 2 of Title 18 United States Code which provides that one who "aids, abets, counsels, commands, induces or procures" the commission of an offense against the United States is a principal. The central question on this appeal is whether appellant so conducted herself with relation to the sale made by Cooper that Section 2 of Title 18 makes her responsible as a seller.
Appellant, a single woman 26 years of age, is a drug addict. Two undercover federal narcotic agents had become unsuspected members of the wretched circle of addicts and their familiars in which appellant moved. On the afternoon in question these agents came uninvited to the apartment where appellant lived with her parents. They told her they wished to purchase some drugs and inquired whether she knew where such could be obtained. She replied that she did not have any, that one Cooper who was her supplier would be over in about a half hour and that she would be able to arrange for the agents to get some drugs from him, but that they might also be able to obtain drugs from another supplier named Mack. After waiting a while the agents asked her to call Mack because they were not sure whether Cooper would come or not. Appellant called Mack's home but was not able to reach him. As the agents were about to leave Cooper arrived. Appellant introduced the agents to Cooper and told him that they wished to purchase drugs. Cooper inquired of her whether they were all right and, when she replied in the affirmative, asked how she knew. Her answer was that she had seen them "over on the avenue" on other occasions. The agents then told Cooper the amount and type of drugs they desired and discussed the price with him. Appellant heard the conversation but took no part in it. The agents and Cooper left the house and separated. Some hours later that evening they reassembled at three different times and places. The money was paid at the second meeting and the drugs were delivered at the third meeting. Appellant was not present at any of these three meetings which occurred at places other than her home.
There is no evidence that appellant's relationship to Cooper's illicit business was other than that of a customer. On the day in question she merely introduced the prospective buyers to Cooper and vouched for them, all at the buyers' request, with the result that the principals accomplished a sale some hours later. On these facts the district court, sitting without a jury, found the defendant guilty as charged.
In charging a person under Section 2 of Title 18, the government must select and identify the particular "offense against the United States" in which the alleged wrongdoer has participated. Such selection makes a difference in this case because the criminal law characteristically analyzes and deals with traffic in contraband in two distinct aspects. The one aspect is the conduct of the seller; the other, the conduct of the buyer. Either or both may be punished, but the significant fact for present purposes is that the law treats selling and buying as distinct and separate offenses. See Sections 2553 and 2554 of Title 26 United States Code. Therefore, a participant in a particular transaction must be punished either as a seller or as a buyer. There is no general offense of participation in the transaction viewed as a whole.
The government has chosen to indict Marie Moses for her connection with the crime of selling rather than for any connection with buying. The conviction must stand, if at all, on her relation to the seller and his illicit enterprise. Any relation to the buyer actually militates against conviction of the charged offense of criminal complicity in selling.
The undisputed facts show the appellant acting solely at the behest of the prospective buyers and in their interest. At the buyers' request she did two things to facilitate their purchase. She introduced them to the seller and she vouched for their bona fides, if purchasers of contraband drugs can be so characterized. That is all that was proved. There was nothing to show that she was associated in any way with the enterprise of the seller or that she had any personal or financial interest in bringing trade to him. Although appellant's conduct was prefatory to the sale, it was not...
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State v. Hecht
...a party to the crime, cannot be sustained because his conduct falls squarely within that of the appellant described in United States v. Moses, 220 F.2d 166 (3rd Cir.1955). In Moses, the appellant introduced federal agents to a seller of drugs and also vouched for the agents' reliability. Id......
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...be punished as either a seller or a buyer. See United States v. Pruitt, 487 F.2d 1241, 1245 (8th Cir.1973) (quoting United States v. Moses, 220 F.2d 166, 168 (3d Cir.1955)). However, Congress, recognizing the well-known fact that narcotics such as cocaine often pass through at least five or......
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