White v. United States

• Decision Date: 04 June 1968
• Docket Number: No. 20566.,20566.
• Citation: 394 F.2d 49
• Parties: Charles Emanuel WHITE and John Lewis, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

394 F.2d 49 (1968)

Charles Emanuel WHITE and John Lewis, Appellants, v. UNITED STATES of America, Appellee.

No. 20566.

United States Court of Appeals Ninth Circuit.

April 9, 1968.

Rehearing Denied June 4, 1968.

COPYRIGHT MATERIAL OMITTED

William V. O'Neal (argued), San Diego, Cal., for appellant.

Shelby R. Gott (argued), Asst. U. S. Atty., Edwin L. Miller, Jr., U. S. Atty., San Diego, Cal., for appellee.

Before MERRILL and ELY, Circuit Judges, and STEPHENS, District Judge.

STEPHENS, District Judge:

John Lewis and Charles Emanuel White were charged in a five-count indictment and both convicted on count one of conspiracy to import narcotic drugs, 21 U.S.C. § 174. Lewis was convicted on count two (aiding and abetting the importation of heroin, 21 U.S.C. § 174, 18 U.S.C. § 2) and count three (aiding and abetting the importation of cocaine, 21 U.S.C. § 174, 18 U.S.C. § 2). Lewis was not named in counts four and five. White was not named in counts two and three. He was acquitted on count four by the court before the case was submitted to the jury and count five was dismissed.

Lewis was sentenced to twenty years' imprisonment on each count to run concurrently; a fine was also imposed on each count in the sum of $20,000 and the judgment expressly provided that the fines should be cumulative. Therefore, it is necessary to consider the appeal as it relates to each count.

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This court has jurisdiction pursuant to 28 U.S.C. §§ 1291 and 1294.

Although no point on appeal expressly claims that the evidence is insufficient to support the verdict, this is in fact the principal contention of appellants. This contention appears from the collection of annotations which comprises the bulk of Point One, entitled, "Defective Indictment," and Point Four, entitled, "Admission of Hearsay Evidence which Should Have Been Held to Be Inadmissible, of A Prejudicial Nature." We are persuaded by a review of the record that the evidence was sufficient to support the verdict. Consideration of this point first will supply the facts and facilitate discussion of the other points.

It should be borne in mind that in considering the sufficiency of the evidence to sustain a verdict of guilty, the evidence must be viewed in the light most favorable to the prosecution. In support of this principle, see Glasser v. United States, 315 U.S. 60 at 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Moody v. United States, 376 F.2d 525 at 527 (9th Cir., 1967) and Mott v. United States, 387 F.2d 610 at 612 (9th Cir., 1967). The evidence of conspiracy is largely circumstantial but as pointed out in Diaz-Rosendo v. United States, 357 F.2d 124 at 129 (9th Cir., 1966), the nature of a conspiracy is such that it can rarely be proved any other way. The jury is entitled to reach its verdict not only upon the evidence actually produced before it, but also upon such inferences as reasonable persons might draw from the evidence. Mathes and Devitt, Federal Jury Practice and Instructions, §§ 8.03, 8.04; Tot v. United States, 319 U.S. 463 at 467, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943); United States v. Romano, 382 U.S. 136 at 141, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965).

Four persons were named in count one as parties to the conspiracy: Lewis, White, Swindell McNeal and Edna Nesmith. They were all residents of New York. They all left New York, flew to Los Angeles and proceeded to Tijuana by automobile. They traveled in pairs. Appellant Lewis and Swindell McNeal left New York on November 7, 1964 and stayed overnight in Detroit. The following day they flew to Los Angeles, rented one car in Los Angeles and another in San Diego and drove both cars to Tijuana. Appellant White and Nesmith left New York on November 8, 1964 and flew directly to Los Angeles, rented a car and drove to Tijuana. The two pairs arrived in Tijuana on the same day, at the same place, at approximately the same time. A short time later three of the parties were arrested when they attempted to enter the United States. Lewis was arrested in Detroit on January 18, 1965.

Prior to commencing this excursion, McNeal, who had worked for Lewis in New York, had a discussion with Lewis about a trip to Mexico. On another occasion, about a week before starting their trip, McNeal and Otis Johnson were in Lewis' New York apartment and McNeal overheard a conversation between Lewis and Otis Johnson. Otis Johnson was appellant White's brother-in-law. Lewis and Johnson were apparently arguing about money. At that time Johnson gave Lewis a sum of money and although McNeal was not sure of the exact amount, the sum of $4,500.00 was discussed.

On November 7, 1964, while in Detroit, McNeal overheard a telephone conversation between Lewis and an unknown person at which time Lewis remarked, "You know I have a 5:00 o'clock appointment, and every time there is a mess-up with somebody." In another telephone conversation on the same day, McNeal overheard Lewis say, "Why can't you get a flight," and "There's a flight at all times of night."

While Lewis and McNeal were preparing for their trip to Mexico, appellant White and Edna Nesmith were doing the same thing (with an assist from Lewis). White told Miss Nesmith on November 7, 1964 that she would receive a telegram from Detroit stating that her brother was ill. This was to make it easier for her to leave work and go with White to California. He told her that he had arranged the telegram with John Lewis. She did receive such a telegram from Detroit on the night of November 7, 1964. Lewis was in Detroit at that time. It is reasonable to infer that he sent it pursuant to prior arrangement with White.

The next morning, November 8, 1964, White and Miss Nesmith were driven to the airport in New York by White's brother-in-law, Otis Johnson. En route White and Johnson were discussing an appointment in Mexico. White wanted to catch the 10:00 o'clock plane so that he could get to California in time. However, they did not leave New York until about 12:00 o'clock and arrived in Los Angeles about 3:30 or 4:00 o'clock. White rented an automobile and he and Miss Nesmith drove directly to the Foreign Club parking lot in Tijuana, Mexico. They arrived after dark and were issued parking ticket number 2067.

When Lewis and McNeal arrived in Los Angeles on November 8, 1964, Lewis rented an automobile in Los Angeles. The Avis representative in Los Angeles remembered renting a car to Lewis on that date. The two men then drove to San Diego where McNeal rented another car. The Avis representative in San Diego remembered renting the car to McNeal. The two men drove both cars to the Foreign Club parking lot in Tijuana, arriving at the same time. McNeal was issued parking ticket number 2059.

It should be noted that the number of the parking ticket issued to White was only eight numbers from the ticket issued to McNeal. The parking lot attendant identified both Lewis and White and testified that he saw them in the Foreign Club parking lot on November 8, 1964 at approximately the same time. He further testified that parking tickets came in bunches of 25 and that they were issued by the attendant in numerical order. Since McNeal's parking ticket was number 2059 and White's was number 2067, it could reasonably be inferred that they were originally in the same bunch and being numerically so close together they tend to corroborate the attendant's testimony that Lewis, who arrived about the same time as McNeal, and White were in the parking lot at about the same time. The numerical sequence would also suggest that Lewis and McNeal arrived before White and Nesmith.

Lewis told McNeal to go into the Foreign Club and have a drink and that he, Lewis, would return shortly. McNeal did as instructed and Lewis drove his car out of the parking lot. After a while, Lewis returned to the Foreign Club bar and remarked to McNeal, "People never keep appointments." Lewis again left the Foreign Club and when he returned, found McNeal asleep in the car McNeal had rented. He instructed McNeal to follow him and the two men drove into the hills around Tijuana. McNeal observed Lewis place the narcotics into two blue flight bags and put the blue bags into the McNeal car. They then drove their respective automobiles to the border. McNeal was told to drive on ahead when they reached the border and that Lewis would catch up with him after they had crossed. McNeal was arrested as he entered the United States.

When White and Nesmith arrived at the Foreign Club, White went into the Club and later returned to the car. Possibly, this was while McNeal was in the bar having a drink. However, White and McNeal did not know each other. When White returned to his automobile, he and Nesmith drove around Tijuana for five or ten minutes and then returned to the Foreign Club. White again entered the Club and came back to the car, remarking to Nesmith, "I missed him."

White and Nesmith then drove to the border. They were arrested as they entered the United States at San Ysidro about 7:40 P.M., about an hour before McNeal crossed the border and was arrested. In White's car the customs agents found a bottle of cough syrup containing codeine, a briefcase containing $6,400.00 and the Foreign Club parking ticket. Packages of heroin and cocaine were found on the person of Edna Nesmith. In McNeal's car, the agents found the two blue flight bags containing 23 ounces of heroin and about one-half ounce of cocaine. On the morning of November 9, 1964, White and Nesmith were examined by a doctor. White was certified as addicted to heroin and Nesmith admitted to using cocaine. The narcotics users had the money and the other couple had the narcotics.

From this evidence the jury was warranted in finding that there was a conspiracy between Lewis and White as charged in the indictment. These were four New Yorkers who had no apparent legitimate reason to travel across the continent for a brief presence in Mexico....