United States v. Wright, 73-1286

Decision Date13 February 1974
Docket NumberNo. 73-1286,73-1128.,73-1127,73-1286
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Charles Edgar WRIGHT, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Nathaniel STUBBLEFIELD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Willie Black CRAWFORD, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

COPYRIGHT MATERIAL OMITTED

Thomas A. Conroy (court-appointed), Cincinnati, Ohio, on brief, for Nathaniel Stubblefield (No. 73-1127).

James J. Chalfie (court-appointed), Cincinnati, Ohio, on brief, for Willie Black Crawford (No. 73-1128).

William J. Dammarell (court-appointed), Cincinnati, Ohio, on brief, for Charles Edgar Wright (No. 73-1286).

William W. Milligan, U. S. Atty., Byron E. Trapp, Asst. U. S. Atty., Cincinnati, Ohio, on briefs, for United States of America.

Before EDWARDS and PECK, Circuit Judges, and CECIL, Senior Circuit Judge.

CECIL, Senior Circuit Judge.

The defendants-appellants, Charles Edgar Wright, Nathaniel Stubblefield and Willie Black Crawford appeal from their convictions before a jury in the United States District Court for the Southern District of Ohio. The appellants were tried jointly but each one has filed a separate appeal. We will consider all of the appeals in this opinion.

There were four counts in the indictment upon which the appellants were tried and convicted. The first count charges appellant Wright with unlawfully distributing about 38.519 grams of cocaine, a schedule II controlled substance. (Sec. 841(a)(1), Title 21, U.S.C.). Count two charges appellants Stubblefield and Crawford with aiding and abetting Wright in the commission of the offense charged in the first count of the indictment. (Sec. 2(a), Title 18, and Sec. 841(a)(1), Title 21, U.S.C.). Count three charges all of the appellants with unlawfully possessing with intention of distributing about 10,338 grams of cocaine. (Sec. 841(a)(1), Title 21, U.S.C.). The fourth count involves appellant Crawford, only, charging him with carrying a firearm during the commission of a felony against the United States, to wit, aiding and abetting the commission of an offense as charged in count two and possession of cocaine as charged in count three.

Charles Edgar Wright was found guilty under counts one and three of the indictment and sentenced to ten years imprisonment on each count, the sentences to run concurrently. Nathaniel Stubblefield was found guilty under counts two and three of the indictment and sentenced to five years imprisonment on each count, the sentences to run concurrently. Willie Black Crawford was found guilty under counts two, three and four of the indictment and sentenced to five years imprisonment on each of counts two and three and to one year of imprisonment on count four, all of the sentences to run concurrently.

On December 8, 1971, the appellant Wright, according to his testimony, went to the Dennis Tire Company in Cincinnati to buy a tire. Wright was a native of Cincinnati but had recently returned there after spending a couple of years in Cleveland. At the Dennis Tire Store he met Jerry Price, sometimes called Jerry Wright, whom he had known for about eight years. In conversation with Jerry Price, as we will refer to him, the appellant Wright said he was unemployed and needed some money. Price said that there was a lot of money in the narcotics traffic.

This led to some telephone conversations and ultimately to a meeting with Price in his room at the Alms Hotel. At another meeting with Price at the Alms Hotel, the appellant, Wright, was introduced to Donald L. Ashton, a government undercover agent. Ashton took over at this point and after some negotiations between him and appellant Wright a deal was set up for the evening of February 22, 1972, which culminated in the arrest of all three of the appellants.

At about six o'clock in the evening arrangements were completed between Ashton and Wright, by a telephone call to Wright's home, for Wright to deliver a quantity of cocaine to Ashton at the Sharonville Holiday Inn Motel. Wright went by "bootleg taxi" to the Kum Bak Inn where according to his testimony he requested appellant Stubblefield to drive him out to the Motel to see a girl. Wright claimed that his car was impounded and that he didn't have the money to take a taxi. As they were leaving the Inn Stubblefield asked Crawford to accompany them. Wright testified that when he arrived at the Inn he had two sacks containing cocaine which he carried in his outside overcoat pocket.

When they arrived at the Motel Wright left Stubblefield and Crawford in the automobile while he went to meet Ashton in his room. Wright checked to see if Ashton had the money and if everything was "cold". He then went back to the automobile and procured one of the sacks of cocaine which had been left in the automobile. As he was in the process of delivering this cocaine to Ashton he was placed under arrest. At this point Ashton radioed a signal to officers waiting on the outside of the Motel who placed appellants Stubblefield and Crawford under arrest.

It is claimed on behalf of appellants Wright and Stubblefield that the court erred in refusing to grant their requests to waive a jury. The case was tried on December sixth and both parties cite a headline in the Cincinnati Post of December fourth reading "Drug abuse at epidemic level". In addition to the inflammatory and prejudicial potential of this headline Wright claims that his defense of entrapment which requires the admission of the fact of possession is too technical for the jury to comprehend. He also claims that he was "hooked" by a professional informer and the deal directed by a federal agent and that the informer was not presented at the trial by the prosecutor. (We see no relation between this and the refusal to grant a waiver of jury.) Stubblefield claimed potential prejudice to a jury by reason of the newspaper headline and the admissions of Wright in his entrapment defense.

Waiver of a jury in a criminal case is governed by Rule 23(a) of the F.R. of Cr.P.

"Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government."

Both appellants claim that there may be an exception to this rule where the circumstances are such that the parties could not have a fair trial to a jury. Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630. The court held in this case that trial by jury was the Constitutional method for a criminal trial. It inferred that there might be circumstances where the "Government's insistence on trial by jury would result in the denial to a defendant of an impartial trial" p. 37, 85 S.Ct. p. 791. In Adams v. U. S. ex rel. McCann, 317 U.S. 269, 63 S.Ct. 263, 87 L.Ed. 268, cited by counsel for Wright, there was waiver by the defendant and consent of the prosecutor and approval of the court.

Whether the facts and circumstances of a case come within the exception suggested by the court in Singer, is in the first instance a matter of discretion with the trial judge. We do not consider that the newspaper headline would per se be so prejudicial as to deny the appellants an impartial trial. Neither do we consider that the defense of entrapment would be so technical that it could not be considered by a jury. It is not unusual for defendants to invoke the defense of entrapment in jury trials. The trial judge did not abuse his discretion in denying the appellants Wright and Stubblefield the right to trial without a jury. We find no merit to the claims that the requests to waive a jury were denied.

In the brief on behalf of appellant Wright the argument is limited to the question of jury waiver. While no argument is made on the defense of entrapment there is scant evidence in support of it. The trial judge submitted this defense to the jury under proper instructions and we find no error either in the instructions or the verdict of the jury. In our opinion it is discernible from the evidence that Wright was ready and willing to engage in the illicit drug traffic and that Jerry Price and Ashton merely gave him an opportunity to become involved but did not persuade or induce him to do it. Barring the entrapment defense appellant Wright was obviously guilty under the first and third counts of the indictment.

We come now to a consideration of whether the hearsay testimony of Ashton allegedly quoting Wright with reference to his suppliers was so prejudicial to appellants Stubblefield and Crawford as to require reversal as to them.

When Ashton in his testimony first mentioned that he had met appellant Wright, counsel for appellant Crawford objected on the ground that such testimony had no relevance to Crawford. The trial judge then gave an explanation of the exception to the hearsay rule to the effect that if two or more persons joined together to accomplish a common end then each of them was responsible for what each did and said. He qualified this by saying that the exception was only applicable after there was evidence of a combination or concerted action on the part of defendants. Although conspiracy was not charged in the indictment this was a proper instruction relative to joint defendants.

In United States v. Williams, 435 F.2d 642, 645 (C.A. 9), cert. den., 401 U.S. 995, 91 S.Ct. 1241, 28 L.Ed.2d 533 (1971), the court said,

"The admissions and statements of a co-defendant are admissible as against the other even in the absence of a conspiracy count where there is independent evidence of a concert of action."

See also United States v. Rinaldi, 393 F.2d 97, 99 (C.A. 2), cert. den., 393 U.S. 913, 89 S.Ct. 233, 21 L.Ed.2d 198 (1968); Davis v. United States, 409 F.2d 1095, 1100 (C.A. 5); Campbell v. United States, 415 F.2d 356, 357 (C.A. 6); United States v. Jones, 438 F.2d 461, 466 (C.A. 7); United...

To continue reading

Request your trial
9 cases
  • United States v. Braunstein
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • July 3, 1979
    ...of Judge Kilkenny in connection with whether a writ should issue. There was no motion for a non-jury trial involved. U. S. v. Wright, 491 F.2d 942 (CA-6, 1974) was a drug case in which a motion for a non-jury trial was denied by refusal to approve the waiver. Non-consent of the government s......
  • U.S. v. James, s. 77-5188
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 12, 1979
    ...that the defendant was a member, and that the statement was made during and in furtherance of the conspiracy. United States v. Wright, 491 F.2d 942, 946 (6th Cir. 1974); United States v. Mendoza, 473 F.2d 692, 695 (5th Cir. 1972); see text following note 2 Supra. But see United States v. Ha......
  • People v. Miller
    • United States
    • United States State Supreme Court (New York)
    • September 24, 1990
    ...United States v. Holmen, 586 F.2d 322 [4th Cir., 1978]; United States v. Alpern, 564 F.2d 755 [7th Cir., 1977]; United States v. Wright, 491 F.2d 942 [6th Cir., 1974]; United States v. Holt, 333 F.2d 455 [2d Cir., 1964], cert. den. 380 U.S. 942, 85 S.Ct. 1020, 13 L.Ed.2d 961 [1965]; Hall v.......
  • Vines v. Muncy, 76-2026
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • March 28, 1977
    ...cert. den. 402 U.S. 948, 91 S.Ct. 1602, 29 L.Ed.2d 117 (1971).9 See 380 U.S. at 37 and 38, 85 S.Ct. at 791; cf. United States v. Wright (6th Cir. 1974) 491 F.2d 942, 945, cert. denied 419 U.S. 862, 95 S.Ct. 113, 42 L.Ed.2d 97 (1974); United States v. Farries (3d Cir. 1972) 459 F.2d 1057, 10......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT