United States v. Prout

• Decision Date: 05 April 1976
• Docket Number: No. 75-1126.,75-1126.
• Citation: 526 F.2d 380
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Warren PROUT, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

526 F.2d 380

UNITED STATES of America, Plaintiff-Appellee, v. Warren PROUT, Jr., Defendant-Appellant.

No. 75-1126.

United States Court of Appeals, Fifth Circuit.

January 26, 1976.

Rehearing and Rehearing Denied April 5, 1976.

COPYRIGHT MATERIAL OMITTED

Bernard A. Horton, Wilfret R. McKee, Robert Glass, New Orleans, La., for defendant-appellant.

Gerald J. Gallinghouse, U.S. Atty., Mary Williams Cazalas, U.S. Atty., New Orleans, La., for plaintiff-appellee.

Before GEWIN, BELL and SIMPSON, Circuit Judges.

Rehearing and Rehearing En Banc Denied April 5, 1976. See 529 F.2d 999.

BELL, Circuit Judge:

Warren Prout, Jr. appeals from his conviction by a jury of one count of conspiracy with Richard Amos¹ and other unknown persons to possess and distribute cocaine, 21 U.S.C.A. § 846, three counts of distribution of cocaine, 21 U.S.C.A. § 841(a)(1), 18 U.S.C.A. § 2, and one count of possession with intent to distribute cocaine, 21 U.S.C.A. § 841(a)(1).

Prout alleges three points of error: (1) that the evidence was insufficient to prove him guilty of the conspiracy and distribution counts, (2) that the court erred in denying the motion to suppress evidence seized pursuant to allegedly defective search warrants, and (3) that the government knowingly suppressed evidence affecting the credibility of a witness.

I Sufficiency of the Evidence

Prout asserts that his motion for acquittal should have been granted as to the conspiracy and distribution counts on the ground of insufficiency of the evidence to establish his guilt beyond a reasonable doubt. As the somewhat lengthy recital of the facts which follows will show, the evidence was sufficient to sustain Prout's conviction on all counts.

On January 22, 1974, agent Bethay, a detective of the New Orleans Police Department assigned to the Drug Enforcement Administration Task Force,² arranged, through an informer, to purchase a half-ounce of cocaine for $650. Bethay obtained $650 in official government funds, and surveillance was arranged. At about 11:30 that evening Bethay and the informer were taken by another individual to the residence of Richard Amos, where Bethay offered to buy the cocaine from Amos. After some discussion, during which Amos unsuccessfully demanded payment in advance and Bethay alleviated Amos' suspicion which had been aroused by his spotting one of the surveillance officers on the street, Amos agreed to get the cocaine and meet Bethay later at a different place. Bethay and the others drove to the prearranged spot where they waited in the car. At about 1:25 a. m., Amos arrived and gave Bethay two foil packets of cocaine. Bethay field-tested the cocaine and determined that it was of high quality, but complained that it did not appear to be a half-ounce. Amos told Bethay that he knew it was a little short, but that the quality was very high, whereupon Bethay paid him the $650. Bethay returned to the Drug Enforcement Administration office and processed the evidence. Lab tests subsequently verified that the substance was cocaine.

Surveillance officers observed some of Amos' movements during the two-hour period, but did not have him under constant surveillance, and were thus unable to determine the location of Amos' source for the cocaine.

On February 13, 1974, Bethay phoned Amos at work to set up another purchase. They arranged to meet outside the Federal Reserve Bank, where Amos worked, at 5:45 p. m., because Amos said he had to go get the cocaine. Bethay agreed to buy one tablespoon of cocaine (approximately 5 grams) for $300. Amos explained that the price was so high because the quality was very high, and said that the drug would come from the same person as the first purchase.

Surveillance agents saw Amos leave the bank at 4:45 and drive directly to the Quick Sale Realty Office at 1001 Nunez Street, arriving at 5:10 p. m. Amos knocked and was admitted by Warren Prout. Amos remained inside for about twenty minutes, and then drove back to the Federal Reserve Bank.

At 5:45 Amos parked near the bank and joined Bethay in Bethay's car, where the agreed upon sale took place. Bethay again complained that the amount of cocaine was short. Amos agreed, but said it was very high quality, and again assured Bethay that it came from the same person as the high quality cocaine that Bethay had purchased from him before. Bethay gave Amos $300 in bills, whose serial numbers had been previously recorded.

When Amos returned to his own car, he again went to 1001 Nunez Street, where he knocked, and was admitted by Warren Prout at 6:35 p. m. Ten minutes later, he and Prout came out. Amos drove away. Prout was observed counting money, which he then put in his pockets.

On February 16, 1974, Bethay phoned Amos to negotiate another purchase of cocaine. Amos said that he would try to get his source to put in more cocaine to make up for the previous shortages. They met at Amos' residence at 2:10 p. m., where Bethay gave Amos the money. Bethay remained inside while Amos left and drove to 1001 Nunez Street where he was admitted by Prout. After a few minutes, they went across the street to a bar. Prout and another man left in a truck and returned at four o'clock. Prout and Amos went back into 1001 Nunez. At 4:20 Amos came out, putting money in his pocket. Amos returned home and gave Bethay his money back, telling him that his connection could not get the cocaine because of heavy parade traffic.

On February 19, 1974, Bethay phoned Amos at work and arranged to meet him at Amos' home at 6:15 p. m. to buy two tablespoons of cocaine for $600. Surveillance agents saw Amos leave work at 4:45. They lost surveillance for a while, but observed Amos arrive at 1001 Nunez at 5:45, where he was admitted by Prout. Five minutes later, Amos left. He met Bethay as agreed at 6:15. Bethay gave Amos $600 in bills which had been marked with ultraviolet dye and whose serial numbers had been recorded. Before leaving, Amos assured Bethay that the cocaine would come from the same source and that he would try to have the source put in extra to make up for the prior short quantities. Amos left and arrived at 1001 Nunez at 7:15, where he was again admitted by Prout. A surveillance agent saw Amos take out some money and fan it at Prout. Amos left 1001 Nunez at 8:20 and arrived home at 8:30 where he gave Bethay three foil packets of cocaine, explaining that his source had added a little extra.

At 8:45 p. m. agents armed with two search warrants, one for the premises and one for Prout's person, searched the Quick Sales Realty office and the upstairs apartment, where they arrested Prout and another man, Kermit Landry. An agent saw Prout drop a small bottle, which spilled white powder on the carpet. Prout then tried to spread out the powder on the carpet with his foot. The agents seized the portions of the carpet containing the powder, the brown bottle on the floor, a small plastic bag containing white powder, a foil package containing white powder, and a cocaine spoon coated with a white residue, all of which were later determined to contain cocaine. Four or five packages of cocaine were taken from Landry. Also seized were $460 taken from Prout's pants pocket, $100 from a jacket in the locker, and a pound can of lactose.³ The money seized from Prout's pocket had been marked with ultraviolet dye, as agents determined by placing it under a black light. The money also matched the money list on which the serial numbers had been previously recorded.

At trial Kermit Landry testified for the government that Amos had introduced Prout to him as a source of cocaine, and that Prout had sold him two bags of cocaine for $50 on January 21, 1974, and $100 worth of cocaine on January 27, 1974. Both sales took place at 1001 Nunez Street. On February 18, 1974, he contacted Prout again, who told him to come back the next day. He returned to 1001 Nunez on February 19, 1974, and was talking to Prout when the police arrived. The cocaine taken from him by the police after his arrest was part of the $100 purchase he had made from Prout on January 27.

A. The conspiracy count

Prout alleges that the evidence is insufficient to show either the existence of a conspiracy or his membership therein. He argues that there is no direct evidence that he supplied drugs to Amos, and that since the surveillance of Amos was not constant, there existed a possibility that Amos obtained cocaine from another source. Prout took the stand and asserted his innocence at trial, denying all knowledge of or participation in any drug transactions. He explained his possession of the marked bills given by Bethay to Amos by his testimony that Amos had repaid him for a prior loan with the money. Obviously the jury gave no credence to his testimony.

Where the jury has rendered a verdict of guilty, the appellate court must sustain the verdict if there is substantial evidence, taking the view most favorable to the government, to support it. Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680. All reasonable inferences and credibility choices must be made in favor of the jury verdict. See United States v. Black, 5 Cir., 1974, 497 F.2d 1039, 1041; Gordon v. United States, 5 Cir., 1971, 438 F.2d 858, 867.

On a motion for judgment of acquittal, the test is whether, taking the view most favorable to the government, a reasonably-minded jury could accept the relevant evidence as adequate and sufficient to support the conclusion of the defendant's guilt beyond a reasonable doubt. United States v. Warner, 5 Cir., 1971, 441 F.2d 821, 825. Whether the evidence is direct or circumstantial, the test is not whether the evidence excludes every reasonable hypothesis other than that of guilt, but whether reasonable minds could conclude that the evidence is inconsistent with the hypothesis of innocence. Id. See also United States v. Black, supra, 5 Cir., 497 F.2d at 1041.

It is no argument to say that the evidence is insufficient because...