United States v. Cortwright

528 F.2d 168
CourtCourt of Appeals for the Seventh Circuit
DecidedDecember 9, 1975
DocketNos. 75-1246 to 75-1250
StatusPublished
Cited by25 cases

This text of 528 F.2d 168 (United States v. Cortwright) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Cortwright, 528 F.2d 168 (7th Cir. 1975).

Opinion

SPRECHER, Circuit Judge.

These appeals, arising from the convictions of five persons for conspiring to distribute controlled substances in violation of 21 U.S.C. § 846 and the conviction of one of these five on a substantive count of distributing narcotics in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, primarily present questions as to the sufficiency of the evidence.

I

The sufficiency of the evidence in a conspiracy prosecution requires close scrutiny. As Mr. Justice Jackson noted in Krulewitch v. United States, 336 U.S. 440, 449, 69 S.Ct. 716, 721, 93 L.Ed. 790 (1949) (concurring opinion), “[t]he looseness and pliability of the [conspiracy] doctrine present inherent dangers which should be in the background of judicial thought whenever it is sought to extend the doctrine to meet the exigencies of a particular case.” One of the major factors contributing to these dangers is the co-conspirator exception to the hearsay rule. The exception requires, at least in theory, a two-stage examination of the evidence:

Strictly, the prosecution should first establish prima facie the conspiracy and identify the conspirators, after which evidence of acts and declarations of each in the course of its execution are admissible against all. But the order of proof of so sprawling a charge is difficult for a judge to control. As a practical matter, the accused often is confronted with a hodgepodge of acts and statements by others which he may never have authorized or intended or even known about, but which help to persuade the jury of existence of the conspiracy itself. In other words, a conspiracy often is proved by evidence that is admissible only upon assumption that conspiracy existed.

Id. at 453, 69 S.Ct. at 723.

Thus, a reviewing court must make an independent evaluation of the record to determine, first, whether sufficient evidence was presented for a jury to con-[172]*172elude beyond a reasonable doubt that the conspiracy existed and, second, whether there was sufficient non-hearsay evidence by which the jury could tie each defendant to the conspiracy.

Conspiracy in its broadest definition “is a partnership in criminal purposes.” United States v. Kissel, 218 U.S. 601, 608, 31 S.Ct. 124, 126, 54 L.Ed. 1168 (1910). All that is required under 21 U.S.C. § 846 is an agreement between two or more persons to commit any offense under the Controlled Substances Act, in this case 21 U.S.C. § 841(a)(1).1 The present conspiracy concerns a drug distribution network revolving around two main figures who acted as suppliers or wholesalers of illegal drugs and the appellants here who would best be classified as retail salesmen or pushers. In a conspiracy of this sort, “[t]he formalities of an agreement are not necessary and are usually lacking.” United States v. Varelli, 407 F.2d 735, 741 (7th Cir. 1969).

While the parties to the agreement must know of each other’s existence, they need not know each other’s identity nor need there be direct contact.
If there is one overall agreement [explicit or otherwise] among the various parties to perform different functions in order to carry out the objectives of the conspiracy, the agreement among all the parties constitutes a single conspiracy.

Id. at 742.

The government need only establish that a defendant joined in the agreement, and this may be proved by circumstantial evidence.

A single act may be the foundation for drawing the actor within the ambit of a conspiracy. . . . But, since conviction of conspiracy requires an intent to participate in the unlawful enterprise, the single act must be such that one may reasonably infer from it such an intent.
* * * * * *
From evidence of knowledge of the conspiracy and a transaction with one of its members it would be reasonable to infer intent to participate in it.

United States v. Aviles, 274 F.2d 179, 189-90 (2d Cir. 1960) (citations omitted). Accord, United States v. Cardi, 478 F.2d 1362, 1368-69 (7th Cir. 1973).

The evidence adduced at trial showed that the conspiracy upon which the indictment was based was indeed a partnership in crime. The two ringleaders of the conspiracy, Richard Elder and Ewing Moore, pleaded guilty during the trial and testified for the government. Both £'* mitted being the major drug “wholesalers” for a group of people who dealt in drugs in Indiana, Michigan and parts of the South. The conspiracy was alleged to have taken place from August of 1973 to March of 1974. Sometime in the late summer or early fall of 1973, Elder and Moore became equal partners in their drug distribution operations. They both testified that they dealt in cocaine and methamphetamine (speed) and Elder testified that he also dealt in lysergic acid diethylamide (LSD) and methaqualone (an animal tranquillizer). Clearly, a conspiracy in violation of 21 U.S.C. § 846 existed.

In regard to the defendants who have appealed here, the evidence shows that all knew either Moore or Elder personally. Taking the defendants in the order they appeared in the indictment, we examine defendant Michael Cortwright’s ties to the conspiracy first. [173]*173Three witnesses testified that Cortwright offered to sell them “speed” (i. e., some type of amphetamine drug). One of these testified that Cortwright offered to sell him a quarter of a pound of speed, stating that “it was the same stuff that Elder had.” Moore testified that he sold Cortwright an ounce of cocaine in the late summer of 1973, and Elder admitted having given drugs to Cortwright. Another witness testified that she helped Cortwright move his and his roommate’s drugs to his parents’ house because Cortwright was afraid of police detection. From this, the jury could have concluded that Cortwright dealt in drugs and that he was affiliated with and was supplied with drugs by Moore and Elder. Thus, there was sufficient evidence for the jury to find that Cortwright was part of the conspiracy.

Edwin Rice, another defendant-appellant here, was Cortwright’s roommate during the period of the conspiracy. He knew Elder, and Elder testified that he had given drugs to Rice. Rice had drug dealings with the partnership, as Moore testified that he had sold Rice one pound of methamphetamine (speed) for $2,200 in Elder’s apartment during January of 1974.

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Bluebook (online)
528 F.2d 168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cortwright-ca7-1975.