United States v. Williams

¶4TRASK, Circuit Judge:

¶5Morris Garfield Williams Jr. was found guilty, following a jury trial, on six counts of an indictment charging violations of federal narcotics laws arising out of two separate drug transactions. A motion for judgment of acquittal was granted as to the first three counts which concerned a transaction alleged to have occurred on February 9, 1968. Appellant now stands convicted on two counts of violating 21 U.S.C. § 1741 and one count of violating 26 U.S.C. § 4705(a).2

¶6All three counts concern a transaction alleged to have occurred on February 20, 1968.

¶7The court sentenced the appellant to the custody of the Attorney General for a period of 5 years on each of the three *644counts, IV, V and VI, the sentences to be served concurrently.

¶8This court’s jurisdiction to review the conviction rests on 28 U.S.C. § 1291.

On this appeal the appellant contends:

1. That Counts IV and V must be reversed because there was a failure of proof of the illegal importation of the cocaine and of appellant’s knowledge of the illegal importation;

2. That there was no evidence that’ the appellant intended a sale of cocaine in violation of 26 U.S.C. § 4705(a);

3. That evidence was generally insufficient to support the judgment of conviction on any of the three counts IV, V and VI.

¶9We recount the essential facts which were presented to the court and jury. In doing so we view them, as we must, in the light most favorable to the government since the government was the prevailing party.3

¶10Proof of illegal importation of cocaine and knowledge of that illegal importation is an essential element of the crimes charged against Williams. He complains of a failure of procf.

¶11Frank Tarallo, an agent of the Federal Bureau of Narcotics and Dangerous Drugs, acting in an undercover capacity testified that he had had conversations with one Wallace Wong about making a purchase of cocaine. During the course of these conversations Wong introduced Tarallo to the appellant. On February 19, 1968, Agent Tarallo met with Wong at Wong’s apartment, following an appointment made by telephone. Tarallo testified that Wong stated that he had five ounces of cocaine that belonged to “Morrisy” (the appellant). Wong further stated that Morrisy wanted to sell it. Tarallo then asked where it came from and Wong replied: “From Mexico.” R.T. 90. Arrangements were then made for the purchase to take place the following day at an address on LaSalle Street in Los Angeles.

¶12Tarallo and another undercover man, Agent Gordon, arrived at the rendezvous point at the appointed hour but Wong did not appear. Shortly, a person “in the location” informed Tarallo that Wong would call him in a few minutes. This occurred and Wong asked if Tarallo had the money. Tarallo answered that he did and asked Wong if he had the “coke.” Wong said, “yes,” and then went on to say that “Morrisy wants to talk to you.” Thereupon Williams got on the phone and after repeating the inquiries about having the money and “coke” ready, Williams instructed the agent to “come down here to China Boy’s,” indicating Mr. Wong’s apartment.4 R.T. 91.

¶13Tarallo and his partner Gordon went immediately to the second address. When they arrived Tarallo observed Williams sitting in the car outside. The two undercover agents proceeded to Wong’s apartment where further assurances were exchanged about the money and the merchandise being available. Wong said Morrisy had the cocaine outside. Wong then left and Tarallo followed. Tarallo saw Wong go to the front door and observed the appellant standing at the rear of his car. The appellant pointed to a particular spot. Wong went to the spot and returned with a bag containing the cocaine. Wong was then placed under arrest and appellant arrested shortly thereafter.

¶14Other agents were on hand at nearby locations and one of them, Mr. Ortiz, was located at a vantage point directly across the street from the LaSalle ad*645dress keeping the appellant under surveillance. He observed appellant place a package in the spot where Wong later picked up the bag of cocaine and verified Tarallo’s testimony about appellant’s signal to Wong. He also made a positive in-court identification of the appellant. Likewise Agent Gordon verified the events which took place in his presence.

¶15 Appellant’s argument that proof of illegal importation and knowledge of illegal importation was inadequate because it was based upon a statement of Wong that the cocaine came from Mexico, and not an admission of appellant, is unconvincing. With respect to the admissibility of Wong’s statement, no objection was made at the time and no motion to strike later. Had such an objection been made it could not have been sustained. 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. Kay v. United States, 421 F.2d 1007 (9th Cir. 1970); United States v. Messina, 388 F.2d 393 (2d Cir.), cert. denied, 390 U.S. 1026, 88 S.Ct. 1413, 20 L.Ed.2d 283 (1968); Fuentes v. United States, 283 F.2d 537 (9th Cir. 1960); United States v. Olweiss, 138 F.2d 798 (2d Cir.), cert. denied, 321 U.S. 744, 64 S.Ct. 483, 88 L.Ed. 1047 (1943). The rule was most eloquently stated by Judge Learned Hand in Olweiss:

“It was proper to charge them as principals — which they probably were in any event — even though they were only accessories. (§ 550, Title 18, U. S.C.A.); and any evidence admissible against Olweiss was admissible against them, so far as it consisted of conduct in furtherance of the joint venture in which all three were engaged. The notion that the competency of the declarations of a confederate is confined to prosecutions for conspiracy has not the slightest basis; their admission does not depend upon the indictment, but is merely an incident of the general principle of agency that the acts of any agent, within the scope of his authority, are competent against his principal.” 138 F.2d at 800.

¶16Nor should the rule be confined to those who are co-defendants at the same trial.5 Judge Hand relied on the general principle§ of agency as did the Supreme Court in Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 249, 38 S.Ct. 65, 72, 62 L.Ed. 260 (1917), involving a similar situation in a civil context:

“The rule of evidence is commonly applied in criminal cases, but is of general operation; indeed, it originated in the law of partnership. It depends upon the principle that when any number of persons associate themselves together in the prosecution of a common plan or enterprise, lawful or unlawful, from the very act of association there arises a kind of partnership, each member being constituted the agent of all, so that the act or declaration of one, in furtherance of the common object, is the act of all, and is admissible as primary and original evidence against them.”

¶17Here the evidence of concerted action between Wong and Williams was amply demonstrated. It was established by the testimony of three agents. That being so, the statement of Wong that the cocaine being sold came from Mexico was clearly admissible.

¶18Although Wong testified, he did not deny the statement attributed to him concerning the source of the contraband. The appellant took the stand and denied all connection with the negotiations, the arrangements for the sale, and its consummation. His position was that he was an innocent bystander. The jury heard him testify. They did not believe him but did believe the testimony of the government agents, including what Tarallo said Wong stated as to the foreign *646origin of the cocaine. The credibility of witnesses and the weight to be given their testimony is for the jury to decide. “[T]he uncorroborated testimony of an accomplice is sufficient to sustain a conviction” and, “the testimony of one witness, if believed, is sufficient to prove a fact.” Proffit v. United States, 316 F.2d 705, 707 (9th Cir. 1963); Audett v. United States, 265 F.2d 837 (9th Cir. 1959); United States v. Gudino, 432 F.2d 433 (9th Cir. 1970). Because the importation of any cocaine is unlawful, 21 U.S.C. § 173,6 the uncontradicted statement of Wong concerning the Mexican origin of the cocaine was sufficient to prove both the fact of illegal importation and the fact of Wong’s knowledge of the illegal importation.

¶19The jury was properly instructed upon the question of a common scheme or plan and the caution to be used in weighing the uncorroborated statements of an accomplice to the scheme. The jury was also properly instructed on the necessity of proof of unlawful importation. No exception was taken to these instructions at the trial and no issue was raised about them here.7

¶20The second issue raised by appellant on appeal is that there was no evidence that he intended a sale of cocaine in violation of 26 U.S.C. § 4705(a). The statute makes it an offense to sell a narcotic drug “except in pursuance of a written order of the person to whom such article is sold” on an official form provided for that purpose. No such form was tendered or was available. A sale without it was a violation of the statute. The appellant acknowledges that a violation of 26 U.S.C. § 4705(a) does not require a criminal intent. Davis v. United States, 306 F.2d 317 (8th Cir. 1962), cert. denied, 372 U.S. 920, 83 S.Ct. 734, 9 L.Ed.2d 725 (1963). Here the totality of the circumstances, the clandestine nature of the transaction, the devious manner of communication and of meeting, the secretive arrangements, all belie a bona fide legal *647transaction. This contention of appellant is patently frivolous.

¶21The final argument that the evidence is insufficient to support the judgment of conviction on any of the three counts, IV, V and VI, is a restatement of the arguments already discussed.

¶22The conviction is affirmed.

¶32ELY, Circuit Judge

¶33(dissenting):

¶34I respectfully dissent. As I read the record, the prosecution evidence was insufficient to establish an essential element of the offenses charged in counts IV and V, namely, that Williams knew that the cocaine had been illegally imported. Long ago, our court held that it could not be presumed, from one’s possession of cocaine, that he knew that such drug, widely manufactured in our country, had been illegally imported. Erwing v. United States, 323 F.2d 674 (9th Cir. 1963). In our opinion in that case, written by Judge Jertherg, we correctly anticipated the Supreme Court’s later opinion in Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970).

¶35What do we have here? A person named Wong, with whom Williams was not charged to have engaged in a conspiracy, made a hearsay statement to someone, outside the presence of Williams, that the drug came “from Mexico.” That is all. On the basis of that hearsay statement, the majority holds that Williams himself knew that the drug had been illegally imported from Mexico. In being able to jump this far, my good Brothers have found, I submit, a super judicial, if not supernatural, degree of agility.1