United States v. Williams, 73-1155.

Decision Date11 July 1973
Docket NumberNo. 73-1155.,73-1155.
Citation481 F.2d 735
PartiesUNITED STATES of America, Appellee, v. Leon Thomas WILLIAMS, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Phillip B. Sachs, Clayton, Mo., for appellant.

Michael W. Reap, Sp. Atty., U. S. Dept. of Justice, Office for Drug Abuse Law Enforcement, St. Louis, Mo., for appellee.

Before CLARK, Associate Justice, Retired,* and HEANEY, Circuit Judge, and SCHATZ, District Judge.**

HEANEY, Circuit Judge.

Leon Thomas Williams appeals from his conviction on two counts of knowingly and intentionally distributing heroin, in violation of 21 U.S.C. § 841 (a) (1). He was sentenced to ten years imprisonment to be followed by a three-year mandatory parole period on each count, the sentences to run concurrently.

Williams first contends that there was insufficient evidence to support his conviction. He asserts that the testimony given by prosecution witnesses does not support the conclusion that delivery (distribution) of heroin by the defendant to a government informant was actually effected, and he, thus, reasons that an essential element of the crime was not proven. We disagree.

The government proved that delivery had taken place through the testimony of agents who witnessed the two transactions between the defendant and a paid government informant, Charles Bullock. In each case, the procedures surrounding the transactions were as follows:

(a) The informant was initially searched by an experienced narcotics agent and no narcotics or money was found.

(b) The informant was given money by the agents to make the purchase.

(c) The agents kept the informant under continuous observation to the designated meeting place with the defendant.

(d) Observation of the defendant transferring something to the informant and the transfer of something from the informant to the defendant was made by the agents with the aid of binoculars.

(e) The observation continued through the informant's return to the agents' car, whereupon the informant turned over the packets, later determined to contain heroin.

(f) The informant was again searched and no money was found.

The defendant maintains here, as he did before the jury, that the initial search of the informant by the government agents was inadequate, and that the testimony of the agents alone was insufficient to prove beyond a reasonable doubt that the defendant delivered heroin to the informant. We disagree. The evidence must be viewed in a light most favorable to the prevailing party, and the verdict must be sustained where, as here, there is substantial evidence to support it. See United States v. Warner, 428 F.2d 730, 736 (8th Cir.), cert. denied, 400 U.S. 930, 91 S.Ct. 194, 27 L.Ed.2d 191 (1970). Uncontradicted testimony in the record indicates that an experienced narcotics agent conducted a thorough search. Furthermore, we note that this Court on a number of prior occasions has held that there was sufficient evidence to support a jury finding that a defendant delivered heroin to an informant where the evidence in the record was similar to that present here. See, e. g., United States v. Martin, Jr., 482 F.2d 202 (8th Cir., 1973); United States v. Mosby, 422 F.2d 72 (8th Cir.), cert. denied, 399 U.S. 914, 90 S.Ct. 2217, 26 L.Ed.2d 571 (1970).

Williams also contends that the jury, by rendering a guilty verdict, acted contrary to the District Court's instruction that each element of the offense must be proven beyond a reasonable doubt. Consistent with his first contention, he maintains that the proof provided was insufficient to establish beyond a reasonable doubt that the defendant delivered heroin to the informant on each occasion. We disagree. The trial court's jury instructions were proper and clear, and we must assume that the jury followed them. See, Mee v. United States, 316 F.2d 467, 470 (8th Cir. 1963), cert. denied, 377 U.S. 997, 84 S.Ct. 1923, 12 L.Ed.2d 1049 (1964).

Williams' final contention is that the trial court erred in not requiring the informant to testify or, in the alternative, by failing to give an "absent witness" instruction.1

First, in regard to the failure of the trial court to require the informant to testify, the applicable rule in this Circuit is that stated by...

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  • U.S. v. Kirk, s. 75-1359
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 17, 1976
    ...to the government. The propriety of such an instruction is largely within the discretion of the trial court. United States v. Williams, 481 F.2d 735 (8th Cir.), cert. denied, 414 U.S. 1026, 94 S.Ct. 453, 38 L.Ed.2d 318 (1973). In view of the fact that appellants made no adequate showing tha......
  • U.S. v. Williams, s. 78-1695
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 22, 1979
    ...v. Kirk, 534 F.2d 1262, 1280 (8th Cir. 1976), Cert. denied, 433 U.S. 907, 97 S.Ct. 2971, 53 L.Ed.2d 1091 (1977); United States v. Williams, 481 F.2d 735, 738 (8th Cir.), Cert. denied, 414 U.S. 1026, 94 S.Ct. 453, 38 L.Ed.2d 318 (1973). In the present case, the government intended to call Of......
  • U.S. v. Hoelscher, s. 89-2973
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 29, 1990
    ...have been used. The propriety of giving such an instruction is clearly within the discretion of the trial court. United States v. Williams, 481 F.2d 735, 738 (8th Cir.1973), cert. denied, 414 U.S. 1026, 94 S.Ct. 453, 38 L.Ed.2d 318 (1973). "Absent unusual circumstances such as knowingly con......
  • United States v. Barnes, 73-1227.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 2, 1973
    ...whereabouts. 5 The government is, of course, not required to use the informant as a witness. For this reason, United States v. Williams, 481 F.2d 735 (8th Cir. 1973); United States v. Martin, 482 F.2d 202 (8th Cir. 1973), and United States v. Mosby, 422 F.2d 72 (8th Cir.), cert. denied, 399......
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