United States v. Patricia Atkins

Ellis, (2) That, have been Cf. while it would United States v. 461 F.2d judge par- (2 have better ticipated questioning appellants’ Finally, we have considered did, that he extent witnesses claims of find other error and we them scrutiny careful of the record our Appellants without merit. were convict- every instance us that satisfies of ed after a fair on the basis trial over- questioning directed toward his whelming, uncontradicted evidence of se- assisting clarifying the issues nearly years rious crimes committed ago. two understanding jury evi- order the mandate issue We pre- judge short, did In dence. forthwith. cisely we United what sanctioned DeSisto, 833, 834 States Affirmed. 1961): (2 Cir. criminal, judge as in

“A trial must, may, cases, indeed

civil

more than mere moderator or

umpire ain contest two between

parties in an before arena him. part

He should take sary where neces- clarify testimony and as- jury understanding

sist weighing America, task of its UNITED STATES Appellee, it in the resolution of issues of

fact.” ATKINS, Appellant. Patricia (3) That, importance, of decisive we 72-1181. No. single do not find a instance of con- part judge duct on the Appeals, Court United any way prejudiced any in pellants Eighth Circuit. slightest displayed 16, 1972. Submitted Oct. applies bias toward them. This 17, 1973. Decided Jan. judge's questioning witnesses, Rehearing Rehearing En Banc determining proper scope Feb. Denied exercising cross-examination and his discretion as to much of how testimony

witness’ should be read

back in the interest of completeness.

fairness See D’Anna, United States v. (2 1971); DeSisto, supra, States v. 834; Daley su- pra, 231 F.2d at 130. short, hold conduct we that the judge deprive them of a

the trial trial, say as- for we with fair

fair can hap-

surance, pondering “after all

pened stripping the erroneous without judg- whole, action from the swayed substantially ment ” Kotteakos . . . error . (1946). 750, U.S. Baris, Mo., Louis, appel-

Irl B. St. for lant. Vance, Atty., Arthur Bureau of W. Dangerous Drugs,

Narcotics and Crimi- Div., Department Justice, nal Wash- ington, C., appellee. D. LARAMORE, Before Judge, Court Claims Senior Judges. ROSS, BRIGHT and Circuit Judge. ROSS, Circuit appellant appeals convic- verdict, tion, upon of aid- based ing purchase of heroin 4704(a).1 in violation of 26 U.S.C. § presented for determina- Two issues are however, prosecution by repealed is barred that this 4704(a) 1. 26 U.S.C. § repeal, date Comprehensive Drug effective Preven Abuse subsequent repeal 91-513, to the date Act, Pub.L.No. tion and Control alleged (October indictment. 1101(b) (3), the offense 84 Stat. § 1105(a), contend, Stat. § Id. does when Au- transaction was consummated Whether Gov- Court: tion gust pound her- one-half transferred presented sufficient ernment $3,000.00. jury; and, oin to Brittain Subse- case submit McWorthy quently erred when trial court whether describing express opinions continued to their meet. permitted witnesses conversation testified that: involved the substance just had decided that we been “[W]e affirm. heroin. We burned deal . . . that we [T]he through.” made hadn’t carried been case. I. Submissible McWorthy appel- the also testified that appellant presented evidence The say anything lant did to her not about evidence disclosed and the Government’s expecting money. 1970, following: Frank the In October illegally Clyde legal August Penrose The issue which confronts brought pounds of into the two heroin this Court whether the Government is August produced from Thailand. evidence United substantial States concerning McWorthy might Shirley properly which a find the contacted appellant guilty abetting pound Mc- the of his of heroin. of sale Agnes Worthy replied know Brittain the she did not of nar beyond any buyers, doubt, see.” of that “she would cotics a but reasonable view ing appellant light McWorthy the then contacted the most evidence the favor together replied did not to who she know of able the Government day buyers, may fairly that “she would A but see.” inferences which be by appellant, apparently May, drawn. so later v. See United States 419 prearrangement, (8th 1969); McWorthy 553, met at a bar F.2d 555 Cir. Tanner McWorthy 281, appellant (8th v. where worked. The United Brittain, Agnes 1968), denied, 1109, not introduced who had cert. Cir. 393 U.S. appellant, 922, (1969). come as someone S.Ct. 21 L.Ed.2d 806 To “might help question to who able answer be this [Mc- remembered Worthy].” appellant guilty still at With the order to be table, subject turned to heroin crime a McWorthy and Brittain asked for a sam- ‘purposive must “[t]here be attitude’ ple. day August brought later About a which the unlawful deed. facilitates sample McWorthy heroin, Mc- Peoni, F.2d Brittain, Worthy sample delivered to 1938). This means there brought but Brittain woman had participa- must exist some affirmative along heroin, Betty test to Carol encourages tion which at least Aleshire, sample stated not was perpetrator.” Thom- large enough. appellant The not was as, 1972). present meeting. days this at A few mind, foregoing help- With given sample later Brit- another ful to reiterate the evidence the in- by McWorthy tain which was a suffi- fairly ferences that drawn there- be quantity cient to test. Aleshire tested First, McWorthy spoke ap- from. sample and determined that “it was pellant any- her if she and asked knew- very good.” appellant The 'was buy one who The wanted present Subsequent- at this transaction. pellant replied did she know ly August, Murray Kimbrell, father, his anyone, see.” but that “she would This Brittain Aleshire met bar unequivocally demonstrates McWorthy had where been introduced appellant interested appellant. Brittain four The naming casually names; more than she then went residence Brittain willing buyers. actively out seek larger again quantity where a test- appellant The could have rested on the again Having ed found the Aleshire. good anyone quality, substance that she was aware be enough to continue rather intense wanting on the con- buy con- own, had been elected, even after her on trary appellant Accordingly evidence is buyer. summated. this to find expend efforts highly probative state Second, day or after the so forego- engaged in the mind appellant intro- spoke to McWorthy ing activity and is inconsistent with at a bar to Brittain duced appellant did not care that the assertion help “might able who be someone Brittain did or not make whether appellant still [McWorthy].” With purchase. table, subject turned McWorthy for a sam- asked and Brittain ple. principal places reliance Obviously number of are a upon Morei may fairly damaging inferences rele- 831-832 first in- evidence. The drawn Morei case are vant facts participa- appellant’s is the ference that Beach, informer, approached an Dr. prod- not the tion in activities was these defendant, Platt, the told him that and unthinking a she had action as uct of day “soup” he heroin to horses. wanted race plans. contemplate In her or so to gave The informer testified that he the addition, it fair to infer that the is doctor names of horses certain who were Brittain, sought pellant personally out to run in races in order that the doctor appellant previously not was the them, could bet on and he told the doctor Furthermore, buyers. any aware of logical that the heroin towas be used to stimu- may the that inference be drawn the late horses. Platt claimed Dr. that enough appellant about concerned was alleg- did he not have but he consummating helping to consummate edly give did the the informer name of purchase went of heroin that she the Morei, address, Morei’s told inform- McWorthy and the bar and introduced er to tell Morei that doctor had sent easier, Brittain, not instead him, and that concluded Morei “will take giving simply safer, of course mention you.” of care The court found this allowing McWorthy’s name and Brittain support evidence was insufficient to McWorthy without to contact Brittain charge pur- of Moreover, appellant. help of chase and sale of narcotics. appellant was is infer that fair only meet that Brittain not concerned expressing opinion Without McWorthy appellant was while correctly or not Morei as whether decided, was present [McWorthy Brittain were distinguishable case meeting in acquainted prior to appellant’s from this case because of the bar], appellant in- but that the seeking personal participation in out enough specifics in the of terested personal Brittain, introduction purchase the table that she remained at public place, Brittain and her con during Brittain’s conversation during presence tinued Brit table McWorthy. again it have would Once McWorthy. In tain’s conversation with simply introduce the much safer been Morei there no evidence that Dr. leave; pres- parties her continued ever met or Platt seller, made contact with the encourage- only taken as an ence can be brought appellant while here the the sale. ment to Brittain consummate together. agent and seller's Further, no Third, in Morei there evidence after the eventual anything appellant Dr. Platt knew about the the heroin and the specifics sale, During while continued to meet. the course of appellant they here the was well aware their conversation discussed exchange sample. impending burned “we had been ” case, Moreover, opposed to the in this . An inference be fair- indicating case, Morei there is evidence ly appellant’s interest drawn that fleeting, appellant in- demonstrated the transaction was appellant present, sale of purchase on at least three terest in the drugs The court was consummated. occasions. no to show evidence held that there was any The case Robinson re- the seller and association with 1959) 648-649 versed the conviction distinguishable. In Robinson the abetting the sale. gave the name defendant one Cammack might purchase a man from whom difference between The critical supplied heroin and twice Cammack the case at bar is Moses case and telephone The court man’s number. actively in this case that the held insufficient the evidence was sought buyer. court The Moses out the charge facilitating support recognized implicitly this distinction drug. sale Robinson of a In narcotic said, is no “There evidence there an in- was no from which relationship Cooper’s might ference drawn that the defend- other than that of a illicit business was locating personally spent ant time In the Moses customer.” Id. at 168. seller. In Robinson evi- coming appel case seller was personally dence that the met defendant any eventuality; apartment all lant’s with the seller and remained introduce during their And in conversation. Rob- agents, already present, and who were inson there was no evidence that the de- fides.” vouch for their “bona expressed fendant an interest trying appellant spent case time to the transaction after the consummation buyer, find the had to act in an af she the sale. bring to to firmative manner the gether agent Likewise ease of United with for a the States the seller’s Moses, 1955), meeting, Moreover, public place. 220 F.2d 166-169 Cir. in a distinguishable. case, appellant In Moses unlike the the two under- Moses agents approached appellant cover the at could have left the bar after the intro apartment inquired duction seeing and about the had she not been interested in drugs. possibility purchasing purchase consummated, She in- the while any, dicated that did not have the defendant in the Moses she case would supplier expected that her not would soon be be leave her own to home. arrange agents case, and opposed would to Further as to the this get drugs case, sup- him. Moses from When the there is evidence of a conti plier nuity appellant purchase arrived the introduced of interest in the even agents they pu and said that after were “all consummation of e.2 right.” thereafter, Sometime with the rchas appellant The ted the that contends that the and Govern- prove original stamped was ment’s not in or from the failure to or actual con- package. possession Dillard, structive See States of the heroin (7th rendered 376 F.2d 365 case insufficient to submit Cir. fail prove possession prohibits jury. 4704(a) pro- ure § Ü.S.C. taking advantage : vides Government from statutory presumption posses person “It shall that be unlawful for purchase, sell, dispense, appropriate sion of taxpaid or narcotics without distribute drugs except stamps purchase, original a narcotic establishes example, stamped original package original for stamped not in or from the from the stamped previously package; package. As and the dis absence of appropriate cussed, taxpaid stamps is sufficient from evidence show nar- prima Moréover, drugs abetting. cotic be and it is clear facie shall evi- stamped dence by that the heroin of a violation of this was subsection purchased person possession package whose when it was as may It same be Aleshire so testified. also clear found.” . stamped posses If the did not the heroin Government show package purchased August sion of tes narcotics which did have the appropriate taxpaid stamps, smuggled tified that he the heroin into then must prove appellant Fur- aided and abet Thailand. 813, (8th conclude, therefore, appellant We 1968). Accordingly, purposeful proved attitude witness have “qualified expert by knowledge, pur- helped as an the unlawful facilitate which skill, experience, training, heroin, or education and that she affirma- chase ” . purchase, . . . tively participated Rules Evidence for encouraging Magistrates, 702, States Courts and extent of Rule least 183, assisting (on 20, 56 F.R.D. November Unit- seller. 1972, Thomas, supra. the Chief Justice was authorized ed Supreme Court to transmit Testimony Expert Congress) (em II. Rules Evidence to the phasis supplied). inherently It is not argues it was next implausible persons addicted to her August Betty Frank error to allow oin, years experience one with six testify the sub- Carol Aleshire given the other specifically so as purchased by in fact Brittain was stance to be able differentiate heroin from a indi- essence appearing might drug, possess similar testimony the that without cates necessary “experiential capacity” prove the sub- failed to Government testify question, the substance in no her- stance was and which use, both had occasion into oin was introduced g. in fact heroin. See e. Weaver v. regard to testified chemist United States, 603, make-up the substance. chemical 1940) (competent for a witness August an addict at Frank testify purchased by that substance him here, vari- times relevant who had used Ewing morphine); drugs. the various ous He testified that 1967), August drugs differently. him affected denied, cert. 390 U.S. 88 S.Ct. drugs years. He six had dealt (witness’s (1968) 19 L.Ed.2d 1299 con sampled that he the substance testified marijuana clusion that she had received question reaction received upheld upon prior was where founded received similar to the reaction he was experience, rolling cigarette herself, took heroin. Aleshire also had when he seeing like, what it looked and the fact “drug culture”, experience in al- “high”); that it made her Pennacchio v. though at the time she “tested” the sub- (2nd Cir.), United 263 F. 66 question in she was not an addict. stance denied, 497, 588, cert. 253 U.S. 40 S.Ct. giv- Previous to “test” she had her been (1920) (upheld 64 L.Ed. 1031 a habitual by boyfriend, was a en heroin her who opium testimony user’s that the sub pusher, she to tell so that be able would given him, used, stance he which co- the difference between heroin and opium); Johnson, inwas fact State v. Subsequent in caine. to the transaction (1972) 561, 54 Wis.2d 196 N.W.2d 717 question, Aleshire became addicted (extensive qualified LSD user procured solely from heroin which was give given opinion as whether substance August. by She was treated means user was face other LSD—in therapy auspices under methadone testimony, adduced from a PH.D in me of the and under the State Illinois chemistry, person dicinal that a could physician. private direction aof identify by the effects the sub LSD person may al a be Whether user). on stance had a express opinion expert lowed as event, any appellant’s In assertion normally the discretion of the within g., proving the no evidence trial court. See e. White v. United that tory presumption tlier, drugs evidence furtive prove legitimate of the a violation indicates pensing it is sufficient that was a dis- presump- pack- stamped statute tion, the aid of heroin without argument in age. Thus since the Government respect attempt advantage merit. of the statu- without take 314 heroin, absent substance involved was 745. Aleshire further testified taking opinions, by questioned addicted is incorrect. became to heroin

Agueci 817, given August, F.2d her 310 substance and a denied, (2d 1962), cert. 372 U. doctor 828 Cir. told she was addicted to her- 1016, 959, 10 L.Ed.2d 12 oin. S. 83 S.Ct. further This indicates (1963), the court stated: substance was in fact heroin. Unit- Cf. 1293, Cox, ed States v. 462 1304 F.2d component of with other “Just as Throughout 1972). (8th period Cir. crime, exis U.S.C. 174] [21 § parties relevant here all acted dealing of and narcotics tence consistent the idea the sub- proved evi circumstantial smug- stance was ; sample placed need dence there be no gling the substance into the United jury, nor tes need there be before bringing per- States from Thailand long timony by qualified chemists Chicago son from Louis “test” St. ground for as the evidence furnished the substance. inferring question material Accord, United narcotics.” As the v. Court said Toliver United Nuccio, 168, n. States, v. 373 F.2d 174 supra, States 745, 224 F.2d at (2d 1967), denied, cert. 387 U. Cir. ample record, find evi- “We in the 1688, 906, 18 L.Ed.2d 623 S. 87 S.Ct. jury could con- dence from which (1968). clude that heroin was involved opinion. absence of the witness’ own clearly indicated evidence paid price The exhorbitant [sic] substance involved substance; small amount August powder he form. testified that powder; Brown fact was a had gave sampled the him substance and previous had been a user had experienced he the same reaction had transactions narcotics with previously This used heroin. bought pellant; the sub- that Brown tendency proving the evidence has heroin; that Brown sold stance as question in fact substance as heroin substance to his customers Roviaro, States v. United Cf. none ‘kicked’ or com- 911, and that of them 1967); Cir. supplied plained, sufficient 207, (2d DeDominicis, for the to draw the inference Nichols, 1964); States powder was heroin.” See 681, 1963), cert. F.2d Morello, denied, 375 11 L. U.S. S.Ct. August 633-634 (1964). Ed.2d 415 testified that purchased pounds of two the sub only correct the trial Not court $2,600.00, in for stance Thailand he sold August Aleshire when it allowed and pound $3,000.00. to Brittain one-half express opinions, but there also their Aleshire testified that she sold was other substantial “spoon” substance, of the between have found that % which the could ounce, and of for $300.00. % in fact heroin. the substance was high price paid fact that has been ex- hereinbefore For the reasons tending to the substance is also evidence pressed, judgment of conviction is the indicate that it was in fact heroin. See affirmed. 252, Fiotto, United States v. 454 F.2d Cir.), denied, 918, 254 406 cert. U.S. (concur- Judge LARAMORE, Senior (1972); 1769, 92 S.Ct. 32 L.Ed.2d 117 dissenting part). ring in part in and 742, States, Toliver United testimony,” “expert of As to the issue 1955). 745 Aleshire also testi concurrence, to whether as complaints in but I am fied no that she received I must case” represented was a “submissible as there about she the substance accept the facts respectfully being dissent. I To it. she sold See when reflecting the majority as by States, out the supra, F.2d at set 224 liver v. United that she heroin? Does case, of I must but relevant facts personal introduction illustrate legal made a con- dispute and inferences purchase some- subsequent that based thereon. clusions bring thing about? which she wished presented here is crucial issue introduction, there is Can such conduct, as a whether participation, as be taken no further law, amount could matter sought demonstrating by her pur- Agnes abetting Brittain in and purchase succeed? to make actions the- is record chase these all I believe was, ^nswer in any proof that Atkins barren no, the conduct questions is Aiding fact, purchaser of the heroin. not, matter portrayed as a herein could abetting re- “a rule of criminal law, in constitute assists sponsibility which one for acts purchase of Nye Nissen performing.” & in another after the intro- 620, The facts disclose that 613, U.S. three additional duction were 766, “In (1949). 93 L.Ed. S.Ct. meetings sell- and the between another to commit order to aid abet agent con- his this sale was necessary appel- er or before it [an a crime summated, yet it is not contended himself ‘in associate some sort lant] or participated, assisted participate venture, in that he any way in in these successive aided something in that he wishes as dealings. purchase far While the bring action about, he seek his ” being likely certain or even at Id., at to make it U.S. succeed.’ introduction, no evi- time of there is 769, adopting the lan- 69 S.Ct. at attempted in dence that Atkins guage of J. Learned Hand through purchase (2d manner see the 401, 402 Peoni, Her- re- insure that succeed. would added.) (Emphasis maining table, in view of sub- foregoing, perti- view it is negotiations sequent necessary con- drawn nent review the inferences and her absten- summate essentially majority. There are therefrom, hardly tion can taken (1) expended Appellant three: time to see efforts succeed. (Brit- seeking effort out a point brought This out tain) ; enough (2) she was interested Robinson personal the transaction that she amade 1959) when it conchided: introduction remained table thereafter, giving simply rather than We find in cannot the evidence be- parties phone one anything name and fore us Robin- indicates other; (3) appellant’s number of in- (the alleged abettor) son aider and terest transaction not fleet- bring wished to about the sale Lowe ing, in that she continued discuss it very made to Cammack. He well have, after transaction alleged previous view of his was consummated. sales, proof there is of his wishes as to this sale! is not There questioning validity Without slightest evidence that Robinson point, these inferences at this the crucial possession narcotic, ever had of the question legal remains what is the effect participated sale, in received its or the evidence and said inferences. any proceeds [Empha- they thereof. appellant While demonstrate that sis added.] intentionally person introduced who selling wished to assist someone in case, else In that Robinson had directed person apparently heroin to a who had given to Cammack and twice Lowe him indicated to that she her interested telephone Lowe’s number. Robinson’s purchasing heroin, in can to intent majority such conviction was reversed. The introduce distinguishes be translated intent grounds into an Robinson on the to aid and abet Brittain in the (1) defendant therein not (2) locating seller, per- next infers “that the defendant ex- spend time seller, pressed buyer an in interest the transaction and sonally meet with in after the consummation of sale.” express interest (3) an and significant First, to it is note that while consummation after transaction grounds MeWorthy testified that their conversa- the same These are the sale. distinguishes subject majority tions included the that “we had on which burned,” explain- been F.2d 827 she admitted in Morei v. United ing expected 1942) this statement that she States 1955), had and United money participa- for as receive some Moses, nothing tion, principal in- had they Atkins said three from the stem any expecting money. in- her they so about Sec- conclude which ferences ondly, majority criminating. Thus, mer- does inferences not contend—as said they clearly testimony point to de- cannot—that at this such it examination closer supports distinguishing necessary value inference that termine their true validity inwas collaboration with Brit- of their basis. and Although may tain. such conversations majority “she had to spates appellant’s continuing show awareness bring manner act in an affirmative process that the transaction inwas and together the seller’s the agent * * eventually consummated, I fail see meeting but so how these conversations demonstrate At- Moses, Robinson, and did they Platt Dr. scheme, kins’ desire assist ef- told the gave phone or numbers bring about, forts it or on her actions parties they meet. Certain- could where part to make it This has court succeed. meet the ly, did not defendants these previously noted that associa- “[m]ere they majority’s “could advisement tion, sufficient to establish [they were] on fact that rested have * * * and it is also es- wanting buy anyone [or aware knowledge tablished that that a crime Instead, heroin.” the defendants sell] presence was to be committed and cases, major- respective in which generally scene the crime are not suf- distinguish, ity also en- endeavors to ficient.” Baker gaged acts; affirmative, purposive i. in fact, F.2d 368 “In seller, e., arranging and a for a has held been mere fact that other, theretofore unknown each present crime, one is at the scene of a meet for illicit transaction. sub- though sympathy even be in defend- stantive effect of various person committing it, will identical, fact ant’s actions is him render an aider and abettor.” personal introduc- Atkins made States, supra, Johnson v. United 195 F. tion is not a difference. The relevant Here, 2d at 675-676. not even factor Atkins situa- crucial which makes a contention that indistinguishable tion from those present negotiating Morei, Moses, Robinson and which consummating in- transactions after the culpability, is the vindicates them from troduction, less much that she assisted persons these did not share any way sought by them or her ac- buyers the criminal intent of ers, sell- tions to insure the success of the trans- they attempt to made no follow action. up on the insure their transactions to they had, effect, success. While Moreover, explained is not how together, brought principals they pellant’s continued conversations and as- had without the con- acted interest agent MeWorthy, sociation with sales, they summation had seller, could amount to principal parties left to their own abetting purchase. Brittain with the intents. “Any buyer [here, relation to the seller] against actually On the basis Atkins’ con- militates conviction of continued charged complici- majority MeWorthy, offense of criminal versations ty selling [here, purchasing].” circumstances; Mos- under favorable ** * es, supra Here the evi- thereafter 220 F.2d at 168. he entered into a shows, Mays anything, pur- to dence if assistance discussion with about the seller, e., buyer, heroin; procuring Mays for i. chase and that told negoti- capsules him he it is not could sell him contended for McNealey for ated with each. an in- $1.75 Brittain. showed arranged the introduc- record is clear that after terest in such offer and to directly Mays evening. tion Brittain dealt with Mc- meet bar August. Worthy only McNealey reported -or as- Brittain’s at the bar at the waiting in the sistance came Ale- scheduled time and after approached by shire whom cago to in from Chi- she had call while was Vernita testing Overton, Mays to her in assist who told him that had apparently message did not Brittain turn sent a that the deal was off did, pellant assistance, night or if Mays such for the but to meet obviously night refused. Further- next at the Riviera Club * -x- * * * noted, more, night in Moses court On the next “[although McNealey Mays conduct was met at the Riviera prefatory sale, Club, it was not collabo- Mays and was told that he [here, buyer].” seller telephone rative would receive a call from Id,., Mays evening. at 168. who acted with- has “[0]ne later that After re- [buying] turning out interest cannot McNealey home received a though [buyer] convicted as a even telephone Mays his call from at about * * conduct illegal in fact have *, facilitated 1:15 A.M. and was told to Id., go sale.” at 169. Here there pick up to the Turf Grill to his similarly nothing that At- McNealey show “stuff”. went the Turf enterprise kins was associated with Berry’s Grill and from there to room purchaser of the or that she had at the Grand Central Hotel. Mc- seeing personal Nealey or financial interest Berry told that he had seen purchased Mays that Brittain the heroin. Berry at the Riviera Club. McNealey cap- told that he had 110 Such was not case him, sules of heroin for and that he Tutino, 269 F.2d 488 charge cap- $1.75 instructed 1959) where the facts disclosed that McNealey sule. Thereupon, paid Ber- (the alleged “Riehman aider and abet- ry $192.50, furnished the Gov- tor) only performed an introduction ernment, delivery cap- took pains expense but went some Id., sules. [Emphasis at long get distance calls to the scheme added.] rolling try complete by and to locat- ing disappearance.” Tutino after his foregoing, Based on the this court Id., [Emphasis at 490. added.] ample held that “[t]here evidence to thereby court found that case distin- support Mays inference associat- guishable Moses and affirmed ed himself with the sale Richman’s conviction. sought bring that he about the sale. Id., addition, appellee [Emphasis In has us at 664. referred I find added.] only Mays Mays readily distinguishable case 1958) bar, supporting from the case appel- at because the lant therein appellant’s participation merely did not contention that introduce an abetting, interested stop constituted I a seller and Instead, it, fact, find that. oppo- he illustrates the declared that he could heroin; negotiat- sell him Mays, site. the desired the evidence disclosed he price sale; ed that: he made ar- * * * rangements for the to meet McNealey, the Govern- they seller agent, and when ment’s undercover could be com- secured an [appellant] Mays pleted introduction night, persisted on that making again through by seeing sale arrangements next on the contact

night; the seller as he instructed price heroin was to be at which support clearly actions Such sold. sought

necessary inference thereby providing sale, bring about requisite intent. criminal agree Mays, like Tutino I something more find it illustrative necessary to con-

than an introduction abetting. Here, un- stitute showing Tutino, there like pains to some “went * * * get expense scheme rolling * * complete try evidence,

Nor was

Mays, sought by her actions to that she

make the succeed. foregoing,

On the basis of the I find clear conduct could

not as a matter-of law constitute of heroin.

Thus, the ease should not have been

presented jury, and the motion acquittal

for directed verdict on this

count should have been sustained. Plaintiff-Appellant, OCHOA,

Alfred COMPANY,

MONSANTO Defendant- Appellee.

No. 72-1651. Appeals, Court Fifth Circuit.

Jan.

Case Details

Case Name: United States v. Patricia Atkins

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Feb 21, 1973

Citation: 473 F.2d 308

Docket Number: 72-1181

Court Abbreviation: 8th Cir.