United States v. John Conley, Jr.

523 F.2d 650, 1975 U.S. App. LEXIS 12293

• Court: Court of Appeals for the Eighth Circuit
• Decided: October 21, 1975
• Docket: 75-1017
• Status: Published

Opinions

WEBSTER, Circuit Judge.

Appellant John Conley, Jr., was convicted of distributing heroin in violation of 21 U.S.C. § 841(a)(1) following a jury trial in the United States District Court for the Eastern District of Missouri.¹ Conley does not challenge the sufficiency of the evidence to support his conviction, but asserts instead that the District Court erred by (1) admitting into evidence testimony concerning conversations about narcotics sales not connected with the distribution for which Conley had been indicted, (2) allowing hearsay testimony relating to acts other than those for which Conley was being tried, and (3) improperly instructing the jury on the definition of “reasonable doubt.” Conley also contends that the sentence imposed upon him by the District Court was so excessive as to constitute an abuse of discretion. We affirm both the judgment of conviction and the sentence imposed by the District Court.

On August 1, 1973, Robert Stewart, a special employee of the Drug Enforcement Administration, met with John Conley, Jr., at the Regal Sports Lounge in St. Louis, Missouri, where he arranged to purchase heroin from Conley on the following day. At approximately 2:50 p. m. on August 2, Stewart, having previously been strip-searched, went to the Regal Sports Lounge accompanied by Eddie Guilbeaux, a DEA agent, who carried $1300 in marked government currency. They left when Conley did not appear. Later that afternoon, again having been strip-searched, Stewart returned to the Regal carrying the $1300 in marked government currency, again accompanied by Agent Guilbéaux. Stewart and Guilbeaux met Conley, talked for a few minutes and left. About 25 minutes later, Stewart returned and again met Conley. As the two of them were walking out of the Regal together, Stewart gave Conley the $1300 in exchange for approximately 47 grams of heroin. Guilbeaux observed the transaction from an automobile parked about 30 feet away.

Conley was arrested the next day, but none of the government’s marked money was ever recovered. He was later indicted for distributing heroin and for conspiring to distribute heroin. Following his trial and conviction for distributing heroin on August 2, 1973, he was sentenced to 15 years in prison and to a special term of 3 years parole.²

I.

At trial, testimony was admitted, over Conley’s relevancy objection, concerning conversations about the purchase and sale of narcotics which occurred in Conley’s presence on six different occasions over an 18 month period prior to August 2, 1973.³ Taken as a whole, the challenged evidence tended to show Conley’s continuous involvement in illegal narcotics traffic during this period. The District Court indicated to counsel out of the jury’s hearing that the testimony would be admitted for the limited purpose of showing Conley’s intent to distribute heroin on August 2, 1973. Conley charges that the admission of this testimony was erroneous and prejudicial. We are thus presented with still another case wherein we must decide the proper use of evidence of other crimes.

In this circuit, evidence of other crimes or criminal conduct is generally inadmissible, except that “[s]uch evidence is relevant to prove ‘(1) motive, (2) intent, (3) the absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, and (5) identity of the person charged with the commission of the crime on trial.’ ” United States v. Cochran, 475 F.2d 1080, 1082 (8th Cir.), cert. denied, 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973); accord, United States v. Lewis, 423 F.2d 457, 459 (8th Cir.), cert. denied, 400 U.S. 905, 91 S.Ct. 146, 27 L.Ed.2d 142 (1970).⁴

The government in this case faced a difficult task in proving its case. It was necessary to convince the jury that the defendant, a prominent politician and former member of the state legislature, distributed heroin to a government agent and a government special employee. The nature of the transaction between the defendant and these government men on August 2, 1973, would be one determined upon the credibility of the witnesses. In order to show that the government’s version of the August 2nd transaction was neither improbable nor incredible, the prosecution offered testimony of the emerging relationship between Conley and the government men. It began in 1972, with Conley present when narcotics activities were discussed by others, but not by Conley. It continued with another meeting at which Conley expounded upon ways to avoid being convicted by means of electronic bugging; it continued in 1973 with Conley’s referral of the government men to one Billy Thompson to buy heroin and a subsequent meeting at which Conley expressed knowledge of the buys from Thompson. A meeting with Conley on August 1st was described at which the parties set up the August 2nd buy.

While the disputed conversations extend over a substantial range of time, we find no difficulty in holding that the course of conduct depicted by this testimony displayed not only the defendant’s knowledge of the heroin traffic in which he was engaged and his intentional participation in an act which he knew to be illegal, but also a common plan or scheme to distribute heroin which emerged in the intervening months as “an uninterrupted course of action.” See United States v. Cochran, supra, 475 F.2d at 1082.

We recently observed that before any evidence of other crimes or criminal activity can be admitted, “it must be shown that (1) an issue on which other crime evidence may be received is raised; (2) that the proffered evidence is relevant to that issue; (3) that the evidence is clear and convincing; and (4) that the probative worth outweighs the probable prejudicial impact.” United States v. Clemons, 503 F.2d 486, 489 (8th Cir. 1974) . However, we also recently had occasion to reaffirm our statement in United States v. Cochran, supra, 475 F.2d at 1082 that

the trial court can in its discretion admit relevant evidence of other criminal acts and reversal is only commanded when “it is clear that the questioned evidence has no bearing upon any of the issues involved.”

United States v. Thompson, 503 F.2d 1096, 1098 (8th Cir. 1974); accord, Johnson v. United States, 506 F.2d 640, 644 (8th Cir. 1974), cert. denied, 420 U.S. 978, 95 S.Ct. 1404, 43 L.Ed.2d 659 (1975). Applying the fourfold test set forth in Clemons, supra, we find no abuse of discretion here.

It is urged that intent was not an issue in this case, and therefore the evidence of other criminal activity should be excluded under Clemons, supra. We disagree. This is not a case in which intent was not an element of the crime, see United States v. Crawford, 438 F.2d 441, 447 (8th Cir. 1971), or one in which the parties stipulated to the element of intent but chose to rely upon some other defense, such as failure to prove that the substance was heroin, e. g., United States v. Gavie, 520 F.2d 1346 (8th Cir. 1975) . See also United States v. Buckhanon, 505 F.2d 1079 (8th Cir. 1974). The government was bound to prove in this case that the distribution of heroin was intentional. It could not safely withhold evidence of the clandestine relationship between its witnesses and a man in public life until after the defendant had closed his case,⁵ because such evidence could then be offered only if the defendant took the stand. Moreover, the government was entitled to anticipate the defendant’s obvious defense. See United States v. Crillo, 499 F.2d 872, 888-89 (2d Cir.), cert. denied, 419 U.S. 1056, 95 S.Ct. 638, 42 L.Ed.2d 653 (1974). On the record before us, we hold that the evidence was admissible to show the defendant’s knowing and intentional development of a scheme to sell heroin and of a plan to do so consistent with the actual mode of distribution.⁶ United States v. Tatum, 496 F.2d 1282, 1284 (5th Cir. 1974); Von Feldt v. United States, 407 F.2d 95 (8th Cir. 1969). Moreover, the evidence, if believed, was clear and convincing, and under the facts in this case the probative value substantially outweighed the probable prejudicial impact.⁷

II.

Appellant further contends that government evidence describing the preAugust 2nd meetings⁸ included hearsay statements by third parties which were improperly admitted. We cannot agree.

The challenged evidence consists of testimony by Robert Stewart and Agent Guilbeaux concerning what third parties said in Conley’s presence. It was offered to show that the statements were made in Conley’s presence and was relevant whether or not the statements were true or accurate. This is not hearsay. E. Cleary, McCormick’s Handbook of the Law of Evidence § 249 (2d ed. 1972); cf. Creaghe v. Iowa Home Mutual Casualty Co., 323 F.2d 981, 984 (10th Cir. 1963).

Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of the matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.

E. Cleary, McCormick’s Handbook of the Law of Evidence § 246, at 584 (2d ed. 1972) ; accord, Fed.R.Evid. 801(c). Because the controverted testimony was fully subject to cross-examination and because its probative value, i. e., the fact of utterance, was in no way dependent upon the veracity of an out-of-court declarant we hold that the District Court did not err in admitting it.

Again we note the absence of a limiting instruction and the failure of defense counsel to request one. This may have been a trial tactic designed to prevent the underscoring of the testimony by the District Judge, but in any event, absent a specific defense request, failure to instruct the jury of the limited purpose for which it could consider these out-of-court statements was not error. United States v. Blount, 479 F.2d 650, 651 (6th Cir. 1973) .

Finally, even if the conversations should be regarded as hearsay, we think they were not prejudicial. The conversations by third parties in Conley’s presence dealt with criminal acts of others and in no way implicated him in those activities.⁹

III.

Appellant challenges the propriety of the instruction given by the District Court to the jury on the issue of reasonable doubt:

It is not required that the government prove guilt beyond all possible doubt. The test is one of reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense — the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that you would be willing to rely and act upon it unhesitatingly. Putting it in another way, a reasonable doubt means a doubt based on reason and not the mere possibility of innocence.

This instruction is substantially the same as that set forth in E. Devitt and C. Blackmar, Federal Jury Practice and Instructions § 11.01 (2d ed. 1970). The only difference is the addition by the District Court of the final sentence, and it is apparently this difference upon which appellant bases his challenge, directing our attention to United States v. Atkins, 487 F.2d 257 (8th Cir. 1973). This court has repeatedly stated that an instruction on reasonable doubt should be couched in terms of hesitation to act. E. g., United States v. Cole, 453 F.2d 902, 906 (8th Cir.), cert. denied, 406 U.S. 922, 92 S.Ct. 1788, 32 L.Ed.2d 122 (1972). Since that is precisely the substance of the challenged instruction, appellant’s contention is without merit. We hold that the District Court conveyed the proper concept of reasonable doubt. See United States v. Fallen, 498 F.2d 172, 176—77 (8th Cir. 1974); Hooper v. United States, 216 F.2d 684, 689 (10th Cir. 1954).

IV.

Finally, appellant complains that the District Court abused its discretion by imposing the maximum permissible sentence on Conley, a man who is fifty-four years old and who has suffered two heart attacks. However, “a sentence imposed by a federal district judge, if within statutory limits, is generally not subject to review.” United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972). Only where it is shown that the trial judge has failed to exercise his discretion or in doing so has manifestly or grossly abused that discretion will the appellate court intervene. See Woosley v. United States, 478 F.2d 139 (8th Cir. 1973); United States v. Nick, 503 F.2d 418 (8th Cir. 1974). The appellant has not carried that burden.¹⁰

This case has had a torturous history, including a mistrial, a new trial, and a second new trial. Under such circumstances, we have carefully reviewed the record to make certain that, aside from our rulings upon the specific issues, the conviction now before us on appeal emanated from a fair trial. Our reading of the entire transcript, together with our review of the exhibits and other matters admitted into evidence, convinces us that the District Judge conducted the trial with scrupulous fairness and with full regard for the rights of the defendant.

The judgment and sentence of the District Court are affirmed.

1 . The Honorable James H. Meredith presiding.

2 . Conley was originally charged in a three-count indictment with distributing heroin on July 21 and August 2, 1973, and with conspiring to distribute heroin. He was tried on these charges in December, 1973. During trial, the conspiracy charge was dismissed on the government’s motion. A mistrial was declared following the failure of the jury to reach a verdict.

Conley was retried in March, 1974. The jury convicted him of distributing heroin on August 2, 1973, but found him not guilty of the July 21 charge. We reversed this conviction because of references made during trial to prejudicial information. United States v. Conley, 503 F.2d 520 (8th Cir. 1974).

Upon remand, Conley was again tried and convicted in December, 1974, for distributing heroin on August 2, 1973.

3 . Included in the controverted evidence was testimony by government personnel about:

(1) a meeting in early 1972 at the home of Lloyd McIntosh at which Conley was present where the purchase and sale of narcotics was discussed by others in a conversation that did not involve Conley;

(2) another meeting at the McIntosh residence in May, 1972, where a sale of narcotics was arranged between third parties and where Conley described an electronic eavesdropping device being used by the government to intercept discussions between informants and narcotics dealers; Conley then said that, because of this, dealers should deal only with one customer at a time in order to avoid witnesses to a transaction;

(3) a conversation between Robert Stewart, Agent Guilbeaux and Conley at the Hi-Note Lounge in early 1973 wherein Conley asked them why they had not purchased a quantity of heroin that they were supposed to purchase from a Billy Thompson;

(4) a discussion between Guilbeaux, Stewart and Conley on April 3, 1973 — Conley told them to buy “dope” from Billy Thompson and that Conley would later put some “real stuff” in their hands;

(5) conversations between Guilbeaux, Stewart and Conley on May 14, 1973, wherein Conley told them they would have to buy at least eight ounces of heroin and asked them why they waited so long to complain to him about the quality of the heroin they had purchased previously; and

(6) the meeting on August 1, 1973, where the purchase of heroin was arranged which gave rise to this appeal.

4 . See also United States v. Marchildon, 519 F.2d 337 (8th Cir., 1975); United States v. Gocke, 507 F.2d 820 (8th Cir. 1974), cert. denied, 420 U.S. 979, 95 S.Ct. 1407, 43 L.Ed.2d 660 (1975); Johnson v. United States, 506 F.2d 640 (8th Cir. 1974), cert. denied, 420 U.S. 978, 95 S.Ct. 1404, 43 L.Ed.2d 659 (1975); United States v. Buckhanon, 505 F.2d 1079 (8th Cir. 1974); United States v. Howard, 504 F.2d 1281 (8th Cir. 1974); United States v. Clemons, 503 F.2d 486 (8th Cir. 1974); United States v. Thompson, 503 F.2d 1096 (8th Cir. 1974).

5 . But cf. United States v. Adams, 385 F.2d 548 (2d Cir. 1967).

6 . As an example, Conley’s earlier statements about not selling to more than one customer at a time were implemented in the August 2nd sale, wherein he changed his original instructions and said that he would not sell to Guilbeaux but would sell only to Stewart. Only after Guilbeaux and Stewart had left and Stewart had returned alone did the transaction take place. See United States v. Tatum, 496 F.2d 1282, 1284 (5th Cir. 1974) (evidence of drug transaction not charged relevant to show arrangement of the drug transaction for which defendant was indicted).

7 . We note that the District Court did not instruct the jury on the limited purpose for which the evidence of other crimes was admitted. In the absence of a specific defense request, however, no limiting instruction is required where the evidence was relevant to an issue in the case. United States v. Blount, 479 F.2d 650, 651 (6th Cir. 1973); E. Cleary, McCormick’s Handbook of the Law of Evidence § 59 (2d ed. 1972); Fed.R.Evid. 105. Our examination of the record discloses that no such request was made at Conley’s trial. Moreover, in his charge to the jury, the District Court clearly instructed the jury that “[t]he defendant is not on trial for any act or conduct not alleged in the indictment.”

8 . See note 3 supra, (1) and (2).

9 . On appeal the government argues alternatively that, since its evidence established the existence of a conspiracy, statements of co-conspirators were admissible against the defendant as an exception to the hearsay rule, In view of our holding, we do not reach this alternative contention,

10 . The record itself is likewise unpersuasive. Both the defendant and his counsel declined the District Court’s invitation at allocution to speak in mitigation of punishment.