United States v. Wayne Ladell Stroupe
538 F.2d 1063
4th Cir.
1976
Check Treatment

*2 panied as they drove at his di- BUTZNER, Before RUSSELL and WID- rection park to a in trailer Gastonia. They ENER, Judges. Circuit stopped which, near a trailer testimony la- showed, Stroupe ter leased. Wright asked BUTZNER, Judge: Circuit buy for the the drugs, and one Wayne Stroupe, Ladell appealing a judg- agents gave him $460. He went inside dealing ment convicted him of in am- while the agents the trailer remained in assigns phetamine, as error the district Wright emerged their car. a few minutes court’s denial of his motion for a later, along with girl. and a As acquittal. because, We reverse aside car, soon as re-entered the gave he from inadmissible statements aof plastic bag which, according to co-defendant, the evidence is insufficient to subsequent laboratory analysis, contained sustain his conviction. amphetamine. pointed He charged, said, along my with is man Randy “That the stuff from.” meantime, possessing James ampheta- In the as Stroupe walked toward mine the intent to distribute it on another house he waved to 13,1975, Gastonia, North Caro- agents. and the Just they off, drove (Count III); distributing lina drug again. waved then took place (Count IV); the same date at the same home. Nixon, United States v. Two weeks later n. by Wright, went accompanied

agents, L.Ed.2d 1039 (1974) Carolina, Charlotte, (dictum). where they We have expressed North same principle David and Mark in terms bought amphetamine “prima facie home, way one of the of the conspiracy,” On the Warren. ampheta- Vaught, whether the asked Cir. 1973), *3 proof from Warrens was as or purchased by preponderance” mine a “fair of evidence. United they previously independent as that which had States v. good Jones, supra, 542 responded by asking “You bought. Wright at F.2d 203. “Whether the Wayne the stuff we from standard has been is question mean satisfied of Stroupe?” admissibility This was occasion on to evidence be decided States Nixon, Stroupe’s United v. Wright judge.” disclosed name. the trial 14, supra, 418 U.S. at 701 n. 94 S.Ct. at trial, testified that he was Stroupe At his States, v. 3104; Garbo United 314 718, Wright, who had acquainted with visited 735-38 (9th 1963). Cir. several occasions. He denied his trailer on to and selling amphetamine stated government argues The or that he did not know Sifford the War- events of 13 Stroupe’s established any knowledge rens. He also denied participation conspiracy in a with Wright in Charlotte was a predicate this admitting Wright’s February 13 and 27 agents’ testimony The about implicating statements Stroupe. We find statements Wright’s out-of-court of Febru position this untenable. offered in evidence ary 13 and 27 was to Wright’s with, prove begin proof the truth of assertion that To is no that the amphetamine Stroupe. agents from purchased he knew whether actually agents’ repetition of the phoned Stroupe merely The statements or simulated a call was, therefore, hearsay intending inadmissible unless “Wayne,” to use Stroupe as an co-conspirator Wright spoke Stroupe as a unwitting dupe. The were unable to during the and in the furtherance of had say amphetamine course whether Federal See conspiracy. Rules of Evi in his own cached house when they arrived Lutwak v. Unit 801(c) (d)(2)(E). morning, procured dence in whether he it States, 604, 617, ed 344 73 during U.S. S.Ct. 97 from an unknown source the several (1953). a conspiracy L.Ed. 593 But between delay requested, hours’ he or whether he cannot Stroupe be established actually Stroupe’s obtained it trailer. by Wright’s out-of-court statements drug may made The have been concealed in agents. to the There must be he Wright’s pocket when met the existence another source of the of the con his own home in the afternoon. They did spiracy and of connection with it not search him before entered Stroupe’s Wright’s before statements to the Wright’s trip trailer. trailer and his against Stroupe. can become admissible brief visit inside with could have been, knew, would lift itself “Otherwise its for all the a subterfuge bootstraps level of competent Wright’s own to the to divert attention from home or States, evidence.” Glasser United 315 of supply. his undisclosed source His brief 457, 467, 60, 74-75, 86 L.Ed. conversation with could have been (1942). preliminary stage, subject At this on an innocuous that would not proved be conspiracy beyond suspicion need not even arouse Stroupe’s or cause Jones, States v. reasonable doubt. him to remember the occasion when he was n charged F.2d 186 at No. some (4th with the crime four 73-2520 months 1976). not can later. The did hear discharge say its by introducing burden “substantial, anything drugs Wright, about nor did inde pendent anything they evidence of the see him deliver conspiracy, Wright. at least enough question They many people take the did not know how were the jury.” other occu- that Stroupe conspired or whether some Wright. in the trailer For did pant reason, dealt with this statements were inad whether retained the Glasser v. United ascertain hearsay. not missible him, given they not money they did 315 U.S. 86 L.Ed. 680 Stroupe. any money to United States v. Vaught, (1942); trace 1973); cf. United did not search before Nixon, 418 U.S. 701 n. 94 S.Ct. accounting seek an he entered (1974); money, immediately or arrest Jones, No. 73-2520 they did wish Stroupe because to reveal 1976). good occasion. But a their identities this obtaining cannot for not reason The test for deciding a motion for Had the proof. serve aas substitute for acquittal is “whether there is transaction, agents actually witnessed substantial evi [direct circumstantial] *4 the absence of a search and the lack of an which, dence taken in light the most favor of little accounting consequence. would be States, able to the United tends to show was, of As it the conduct and guilty that the defendant is beyond a rea Stroupe Stroupe’s participation establishes Bell v. States, United sonable doubt.” 185 only Wright’s conspiracy in a if out-of-court 302, (4th 1950). 310 Cir. Measured accepted. version of the affair is standard, this the evidence of events —di Wright’s vorced from statements —fails to to of February turn next the events We establish that conspired with agents bought 27 and the when amphetamine. to deal Any infer amphetamine from the Warrens.* as This contrary, resting, ence to the as must, it pect conspiracy charged by the solely 13, on the events of February is so government is like a wheel with it speculative tenuous that is and leaves us Stroupe and the the hub and Warrens as than a suspicion with no more guilt. of The spokes. arrangement single is a the This guilty of on verdict the count, conspiracy conspiracy when the activities of each therefore, cannot stand. The government’s interrelated, spokes of is the when the events, evidence of unembellished hear depends each of the success of activities on say, was no more prove the Kotteakos v. of the others. the success possession substantive crimes of and distri States, United 750, 1239, 328 66 U.S. 13, bution on as charged in (1946); see Blumenthal v. 90 L.Ed. 1557 IV, III and than it prove Counts was to States, the United 332 U.S. 68 S.Ct. charged conspiracy in Count VII. United 248, (1947) Here, (dictum). 154 92 L.Ed. Solice, States 626, (4th Cir. proof any is no that was in there Moore v. United 1964); 271 F.2d way connected with (4th 1959). Cir. The motion for a aided, by the Warrens or that he with judgment acquittal of should have otherwise, been agreement acquisition the of granted as to all counts. Accordingly, the drugs Indeed, from the Warrens. is reversed and the case is re government urge does now that not manded for dismissal. purchase implicated Warrens Stroupe. RUSSELL, DONALD (dis- Circuit Judge conclude, therefore, We that the events senting): alone, of 13 and standing 27— I dissent. unexplained' by Wright’s statements to the provide independent proof not my opinion, evidence, admissible —do by a fair circumstantial, of the evidence preponderance though is sufficient up- * trial, charged, along Wright, Sifford was also with made no effort possession of conspired substantive offenses to show that with Sif- amphetamine January Indeed, distribution of concerning ford. it offered no II in Counts of the indictment. At Sifford at all. guilty. verdict of standard in The majority opinion

hold the dismisses all of sufficiency of evidence is this Circuit facts these with the comment that there is “must be sustained if guilty verdict that no that did not use Stroupe evidence, taking the is substantial unwitting dupe” “as an the visit government, most favorable view Stroupe could have been a “subter- findings guilt.” of United support difficult, if fuge.” It is not impossible, to (4th 1970) 421 F.2d v. Sherman States of this point see observation. Why cert. denied Wright want “an unwitting would dupe”? (1970); It could not have been to conceal his own 1376,1376-7. 482 F.2d Taylor connection with the That transaction. was though professing ad majority opinion, admitted. He was a distributor pur- who standard, appears to this to me to herence chased and sold to others. He making in this case. abandoned it have the sale. what would And have been the purpose any “subterfuge”? ques- moment the Setting aside for the admissibility Wright’s statements tion majority adds that the government’s sufficient, evidence is agents, the to the “untenable” case is since the did not verdict. It is undis- submit, to sustain the search before he entered the approached by when puted any trace did agents seeking buy am- two undercover Stroupe. position implicitly This accepts from whom telephoned party phetamines, holding in Panci v. amphetamines he could secure he indicated which was forceful *5 had been his source in the the latter since ly argued Stroupe’s counsel. Panci re was addressed as person This past. a conviction due to versed the fact that telephone. repeated by on the As “Wayne” hearsay certain statements were found to “Wayne” payment demanded be- a conspiracy. be the evidence of Wright they told delivery. fore case, agents that had observed Panci pass a purchase money and re- secure the would bag violator, to a convicted narcotics but the had turn later. After returned bag no that the was contained purchase, the with the felt, The Court as major narcotics. did the person the again placed a call to same here, ity that the conviction could have talked, addressing him he had earlier whom been sustained if the given had “Wayne.” Following his again as conversa- bills, informer marked the made sure that “Wayne,” Wright said he tion would he could have obtained narcotics from no get to “his man’s house” to take the source, and then found other the marked drugs. Traveling with the the bills on defendant after the arrest. Panci, car, them to the he directed trailer their however, was dismissed as an authority in admittedly belonged to and was occu- which (2d v. Manfredi 1960) United States Stroupe. Wright pied by Wayne took cert. denied 363 him, given had money which (1960), 4 L.Ed.2d 1523 trailer, emerged into the in less went comment, wholly approve “we do not company minutes in the of the than five comment appropriate. Panci.” I find this Wayne Stroupe and a young defendant conjecture no There is that reason agents, drove off with the lady. As Wright dealt with occupant another got As soon Stroupe waived to them. as majority opinion. does the It car, gave trailer as was into the a back home, Stroupe’s and both he and his containing amphetamines. It is con- fiancee bag Wright. left with There was telephone there was a in the no indication ceded that present was anyone that else in the trailer. defendant Stroupe’s parting there a number wave is Wright had visited indicative of his also, It, clear that majority sug- seems contact with As the of times. drugs. dealer in gests, may a well known other inferences be drawn from conduct, but, directs, Chappell1 a his require their exclu- does guilty verdict America, UNITED Appellee, STATES of “ all, necessary is not sion. After ‘[I]t or this court be convinced

the trial court TESACK, Appellant. Victor Franklin beyond guilt a reasonable doubt of the No. 73-1709. question defendant. The is whether upon there is substantial of Appeals, Court might jury justifiably find the defendant Fourth Circuit. ’’2 guilty beyond reasonable doubt.’ Argued 1975. Nov. It unnecessary is thus to consider July Decided 1976. made af statement deal, though ter the I am no means

certain that the statement was not so close

ly the entire related to transaction as to be gestae

admissible under the res exception to “permits rule. This exception reception spontaneous declarations

made under the stress of pro excitement by startling event and

duced made before declarant has time to

reflect on effect the statement.” Mountain State Fabricat

ing Co.

Certainly, the statement “that my is man

[pointing Stroupe] from” stuff illegal

which was uttered seconds after an

narcotics would fall into this See,

exception. Bell cert. de

nied (1966). Under the Federal Rules of

Evidence, this statement would meet “present impression” sense

test of a or “ex utterance,” and

cited thus not be at 803(1) (2).

all. Fed.R.Evid.

Therefore, (with record as a whole statement)

without the contains substantial support jury’s

evidence to verdict

guilt. Chappell (4th

1. United White v. United States (quoting White v. United denied 364 U.S. cert. emphasis opinion). 279 F.2d 740 (1960). 5 L.Ed.2d 74 748 —