Certiorari Denied March 31, 1975. See 95 S.Ct. 1446.
PELL, Circuit Judge.
The defendant George Lawson was convicted by a jury of importing and conspiring to import cocaine into the United States, in violation of 18 U.S.C. § 2, and 21 U.S.C. §§ 952(a) and 963. Lawson raises a number of issues on appeal, including: (1) whether the defendant was prejudiced by a display of cocaine which was not admitted into evidence; (2) whether the indictment was invalid because the Grand Jury which returned the indictment was the third Special Grand Jury in existence at that time in the Northern District of Illinois; (3) whether the evidence was sufficient to prove Lawson guilty beyond a reasonable doubt; (4) whether the district court erred in instructing the jury; (5) whether there was a lack of jurisdiction and venue in the Northern District of Illinois; (6) whether the defendant was prejudiced by certain statements of witnesses and the prosecutor; and (7) whether there was a variance between the evidence and the indictment.
The evidence, taken in the light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), established the following significant conduct.
Before leaving Jamaica, Fox again visited Lawson's home, where he saw Lawson packing a white powder into a cosmetic bag. Lawson gave this bag and two clear plastic bags, also containing white powder, to Myrna Pierce and instructed her to take them to Chicago.
Fox then flew to Chicago. Zaretsky flew to Miami, Florida, picked up Fox's car, and drove it to Chicago. Myrna Pierce flew to Chicago by way of Baltimore and, upon arriving in Chicago, she telephoned Randy Fine. Fine, accompanied by another man, picked up the packages from Pierce's hotel room. The following day, Fox and Zaretsky gave Pierce an envelope containing $5,000. Pierce then flew back to Jamaica and gave the envelope to Lawson.
After Pierce had been paid, Fox, Zaretsky, DeCarolis, and David Bennett met at an apartment in Chicago. At that time, the powder from the cosmetic bag was mixed with lactose and placed in one-ounce bottles and one-pound containers.
A few days thereafter, Zaretsky sold a one-ounce bottle of white powder, which he had obtained from Fox, to Special Agent Aldo Aurilio for $1,000. The following day, Zaretsky sold Aurilio another larger package for $11,000.
Approximately two weeks after these sales to Aurilio, Fox withdrew $10,000 from a bank and gave it to David Bennett with instructions to deliver it to Lawson. Bennett and his girl friend Linda Vasquez then flew to Jamaica. Lawson told Myrna Pierce that "Rick had sent [Bennett and Vasquez] down with the balance of the money."
The evidentiary part of Lawson's trial lasted less than two days. During the morning of the second day of the trial, two Government witnesses, Special Agent Aldo Aurilio and Mark Cunningham, a Government chemist, testified. In substance, Aurilio testified that on two separate occasions, Zaretsky sold him packages of white powder which were identified as Government Group Exhibits 1 and 2. Cunningham was qualified as an expert witness and testified that the powder contained in the exhibits was cocaine. During Aurilio's and Cunningham's testimony, the exhibits, purportedly containing more than a pound of cocaine, were on the prosecution's table in front of the jury.
At the conclusion of this testimony, the district court sustained the defendant's objection to the admission of the exhibits on the ground that the Government had failed to connect the exhibits with Lawson. The district judge also struck the testimony of both Aurilio and Cunningham and instructed the jury to disregard that testimony and the exhibits. The court, however, denied Lawson's motion for a mistrial. The defendant contends that the district court erred in denying this motion for a mistrial since Lawson was prejudiced by the testimony of Aurilio and Cunningham and by having the exhibits of cocaine before the jury.
As this court has noted, there are situations in which the display of evidence which is later ruled inadmissible constitutes reversible error. United States v. Heft, 413 F.2d 1027 (7th Cir. 1969); United States v. Reid, 410 F.2d 1223 (7th Cir. 1969). However, we have also recognized that not all such displays require reversal. United States v. Holmes, 452 F.2d 249 (7th Cir. 1971), cert. denied, 405 U.S. 1016, 92 S.Ct. 1291, 31 L. Ed.2d 479 (1972); United States v. Catalano,
In Catalano, where the defendants were charged with unlawful possession of property (television sets) stolen in interstate commerce with knowledge that the property was stolen, Government witnesses identified two guns found at or near the scene of a gunfight which had occurred between police and the defendants at the time of the defendants' arrest. The trial court, finding that neither gun had been connected to any of the defendants, refused to admit the guns into evidence and struck all testimony with respect to the guns. The trial court, however, denied the defendants' motion for a mistrial. This court held that the district court's cautionary instruction was adequate to protect the defendants from any possible prejudice and that the court properly denied the motion for a mistrial. In particular, this court noted that the defendants had failed to object to the initial display of the guns to the jury and that, even if a timely objection had been made, the defendants were not prejudiced by the display of the guns since there had been other testimony concerning the fact that a gunfight had taken place.
As in Catalano, the defendant in the present case did not object to the initial display of the cocaine.
In the context of the entire trial, we conclude that reversible error was avoided by the district court's action in striking the testimony and instructing the jury to disregard both the testimony and the exhibits.
Our decision is not contrary to this court's opinions in United States v. Heft, 413 F.2d 1027 (7th Cir. 1969), United States v. Reid, 410 F.2d 1223 (7th Cir. 1969), and United States v. Kwitek, 433 F.2d 18 (7th Cir. 1970). As we pointed out in Catalano, in all three of those cases, the prejudicial evidence was found in the possession of the defendant.
The defendant next contends that the indictment against him was invalid because the Special September
Lawson argues that the statement in Korman is dicta and further that Korman involved an attack by a witness who would have had no standing to attack the grand jury, and that, therefore, we should not follow the explicit language quoted above. While it may be, as Lawson contends, that the special grand jury in Korman was in fact the second special grand jury impaneled in the district and therefore clearly permissible by the terms of 18 U.S.C. § 3332 (b), and assuming that the defendant here has requisite standing for the attack, we nevertheless, upon reconsideration of the statute, are of the opinion that the subsection of the statute does authorize an additional special grand jury to be impaneled whenever the volume of business is determined by the district court to require it.
We agree with the appellant that ordinarily "an" is to be equated with "one." However, "an" is an article having a generalizing or indefinite force as opposed to the specifying or particularizing effect of "the." United States v. Hudson, 65 F. 68 (W.D.Ark.1894). "An" does not have the same connotation of limitation as does "the." Brooks v. Zabka, 168 Colo. 265, 450 P.2d 653, 655 (1969).
If the intent had been to limit additional special grand juries to one only, that intent could have been easily and explicitly stated. It was not and we decline to read in the limitation. Such a limitation would have been an artificial one and as stated by Judge Duffy in Korman thwarting of "the purpose of the Act."
Lawson asserts that the evidence was insufficient to support the jury's verdict on either the substantive count of importing or the count of conspiring to do so.
With respect to the substantive count, the defendant asserts that the Government failed to prove that the substance imported was actually cocaine. When the defendant is charged with a substantive violation of the narcotics laws, the jury, in order to find the defendant guilty, must be convinced beyond a reasonable doubt that the substance imported was in fact a narcotic drug. United States v. Agueci, 310 F.2d 817, 828 (2d Cir. 1962). However, it is not necessary that this be proved by direct evidence. "Just as with any other component of the crime, the existence of and dealing with narcotics may be proved by circumstantial evidence; there need be no sample placed before the jury, nor need there be testimony by qualified chemists as long as the evidence furnished ground for inferring that the material in question was narcotics." United States v. Agueci, supra at 828. See also United States v. Atkins, 473 F.2d 308, 314 (8th Cir. 1973).
In the present case, there was sufficient circumstantial evidence from which the jury could have inferred that
The evidence was, likewise, sufficient to support the jury's verdict with respect to the conspiracy count. The evidence showed that Lawson agreed to sell cocaine to Fox and to assume responsibility for delivering the substance to Chicago, that Lawson packed white powder into a cosmetic bag and directed Myrna Pierce to take it to Chicago, and that Pierce, upon returning to Jamaica, gave Lawson the money she had received in exchange for the substance. The fact that Lawson might not have been aware of every detail of the plan or every individual involved in the conspiracy is irrelevant since he clearly knew of the conspiracy's essential objective and acted to further it. Blumenthal v. United States, 332 U.S. 539, 557, 68 S.Ct. 248, 92 L.Ed. 154 (1947); United States v. Fellabaum, 408 F.2d 220, 224 (7th Cir. 1969), cert. denied, 396 U.S. 858, 90 S.Ct. 125, 24 L.Ed.2d 109.
The Government's case against Lawson, after the testimony of Aurilio and Cunningham had been stricken, rested entirely on the testimony of Fox, Zaretsky, and Pierce. Lawson asserts that the testimony of these witnesses should be disregarded since all of these witnesses had, at the time of Lawson's trial, pled guilty and received probation. The jury was aware of the fact that these witnesses had pled guilty to narcotic offenses and that they had received probation. The credibility of these witnesses was a matter for the jury to determine. The testimony of the witnesses in question was not so incredible that the jury could not have relied upon it in reaching its verdict.
The defendant next contends that the district judge committed reversible error by: (1) refusing to instruct the jury on the definition of reasonable doubt, although both the defendant and the Government tendered such an instruction, and (2) incorrectly instructing the jury on the presumption of innocence.
Prior to final arguments, the court reviewed with counsel the instructions that were to be given and refused. When the tendered instructions on reasonable doubt were reached, attention was first given to the instruction submitted by Lawson, which read as follows:
The court characterized this instruction, which covers matters other than defining reasonable doubt, as being argumentative which to some extent it is. The judge also stated that it was inaccurate in that he did not believe that the standard of beyond a reasonable doubt encompasses the concept "to a moral certainty." Because of the result we reach we do not need to decide the validity of this ground of rejection. We note that "[s]ome courts define reasonable doubt as requiring persuasion `to a reasonable or moral certainty.'" 2 Wright, Federal Practice and Procedure § 500, at 342-43. Thus, if the effort is launched at definition, the phrase as stated in the tendered instruction has had judicial approval. However, as illustrative of the difficulties of defining "reasonable doubt" in a manner acceptable to appellate courts, to which problem we will subsequently direct further attention, we note in the case of United States v. Byrd, 352 F.2d 570, 575 (2d Cir. 1965), the court faulted an alternative definition reading, "It is a doubt to a moral certainty," on the basis that "doubt" and "certainty" are antithetical and the use would tend to create more confusion than light in the minds of the jury. But see, United States v. Acarino, 408 F.2d 512, 517 (2d Cir. 1969).
As we have noted, the Government also tendered an instruction defining reasonable doubt. In so doing, the Government counsel expressed in colloquy with the court some concern as to whether the failure to give a defining instruction would be error since the defendant had tendered an instruction on the subject. The Government's instruction, which was LaBuy 6.01-3, reads as follows:
The district court declined to give either instruction, stating:
If the judge had given either of the tendered instructions, each of which came from acceptable authority, we would have no difficulty in saying that the subject had been adequately covered;
What has been referred to as the federal rule is set forth in Holland v. United States, 209 F.2d 516, 522-523 (10th Cir. 1954), aff'd, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150, in which Judge Murrah speaking for the court stated:
Holland is dicta as to the particular point here involved for there a defining instruction was given which was found to be acceptable. The dicta status is true of other cases enunciating the rule, e. g., Friedman v. United States, 381 F.2d 155, 160 (8th Cir. 1967), and Williams v. United States, 271 F.2d 703, 705 (4th Cir. 1959). However, application of the rule has also been a dispositive matter: Blatt v. United States, 60 F.2d 481 (3d Cir. 1932); Nanfito v. United States, 20 F.2d 376, 378 (8th Cir. 1927); Schencks v. United States, 55 App.D.C. 84, 2 F.2d 185, 187 (1924); Egan v. United States, 52 App.D.C. 384, 287 F. 958, 967 (1923). It is also to be noted, however, that in all of these cases except Blatt there were other grounds of error.
This court has never ruled on the precise issues presented here.
We are here dealing with ordinary English words of common acceptance. "I doubt that" is a common expression. It is ordinary practice in negligence cases to instruct on the standard of care of a reasonable man. It would not seem to serve much purpose to resort to the antonym and define reasonable doubt as being doubt that was not unreasonable under the evidence. The phrase is not esoteric, such as res ipsa loquitur, nor is it confusingly similar to other more common words such as "proximate" or some of those employed in patent law.
Because of the very commonness of the words, the straining for making the clear more clear has the trap of producing complexity and consequent confusion. That this difficulty may be surmounted is evidenced by the attempts which have been approved, although the language of approval has frequently implicitly suggested the difficulties of articulation.
The essential aspect of the matter it appears to us is that the jury clearly understand that there must be proof persuasive beyond a reasonable doubt. Defining the term should be at the option of the trial judge even though a defining instruction is tendered. Lack of definition would not appear to be prejudicial. Thus, although the Fourth Circuit purports to follow the so-called federal rule, Williams v. United States, supra, 271 F.2d at 705, nevertheless, in the absence of a request or objection, that court was "unwilling to say the failure [to define] when not requested, was error." United States v. Quinn, 315 F.2d 425, 426 (4th Cir. 1963). Judge Murrah, whose opinion in Holland has been quoted hereinbefore, recognized that some courts adhered to the view that definition only tended to confuse. Confusion of the jury thinking on this essential aspect of a criminal case, of course, should be avoided. The Holland opinion cites, inter alia, Words and Phrases. Turning to volume 36 of the Permanent Edition of that work, at 510 et seq., we find numerous state cases
For the reasons indicated we find nothing in this record to make us fear that the jury was unaware of the heavy burden of persuasion placed upon the Government. That ultimately is the real purpose of a defining instruction in any event.
However, before leaving this issue we find it is necessary to advert to the manner in which the issue was presented to the court in the present case. Counsel for the defendant in the instructions conference observed, "My instruction does include a definition of reasonable doubt which I suggest should be given." (Emphasis added.) Nowhere in the record do we find that counsel advised the court of the cases cited by the defendant to us on this appeal as stating the federal rule. Counsel did tell the court that the instruction was "Devitt and Blackmar's, which also has been approved by the case law." In looking at that work, however, we find nothing in the annotations of the 1970 edition which would appear to alert the court to the so-called federal rule. On the other hand, one annotation does deal with the "problems of defining `reasonable doubt.'" 1 Devitt and Blackmar, Federal Jury Practice and Instructions, at 206. One of the cases cited is Dunbar v. United States, 156 U.S. 185, at 198-199, 15 S.Ct. 325, at 330, 39 L.Ed. 390 (1895), in which the court stated:
See also, Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954).
It does not appear to us that reference to the work supporting the tendered instruction would have done other than to enforce the judge's determination not to define. An underlying point here, however, is that we read Rule 30 Fed.R. Crim.P., less narrowly than defendant apparently did. All that was done was to tender the instruction by way of suggestion. After the instructions had been read to the jury, the following occurred: "I reiterate the objections which I made prior to the charge, and during our conference, and without specifying them, if that is agreeable with you, I would ask that those objections be adopted as having been made now as though I did specify each and every one of them. THE COURT: They may be. MR. WALSH: And I have two specific ones I would like to make, and that is that I object specifically to your including the word, `until' in the instruction on presumption of innocence, and I specifically object to your declining to instruct
In Tomley v. United States, 250 F.2d 549, 551 (5th Cir. 1957), cert. denied, 356 U.S. 928, 78 S.Ct. 116, 2 L.Ed.2d 759 (1958), the court dealt with a similarly cursory obeisance to the Rule as follows:
We agree with the Fifth Circuit that the defendant is not in a position to complain of the failure to give the tendered instruction. Not only the spirit, but the letter of Rule 30 required the statement of grounds.
There was in the present case an additional factor over and above the basic requirement of compliance with the rule in that the trial judge was an Illinois lawyer. His view was in accord with that of the Illinois Supreme Court. "This court has repeatedly held that the legal concept of `reasonable doubt' needs no definition, and that where an involved instruction on that concept is given it may be deemed prejudicial error." People v. Cagle, 41 Ill.2d 528, 536, 244 N.E.2d 200, 204 (1969). See also People v. Whittaker, 45 Ill.2d 491, 496, 259 N.E.2d 787, 789 (1970).
If the federal rule was so drastically different as the defendant now contends, he should have then so contended by, at the very least, bringing to the attention of the court the federal authorities supporting his position.
With respect to the presumption of innocence, the district court charged the jury:
Lawson argues that the inclusion of the word "until" in the court's instruction constituted error because it created the impression that proof of guilt beyond a reasonable doubt was a certainty.
We find this argument unpersuasive. The jury was instructed that the presumption of innocence remains with the defendant unless and until such time as he is proved guilty by credible evidence beyond a reasonable doubt. In United States v. Shotwell Mfg. Co., 287 F.2d 667, 677 (7th Cir. 1961), aff'd 371 U.S. 341, 83 S.Ct. 448, 9 L.Ed.2d 357 (1963), and United States v. Senior, 274 F.2d 613, 616 (7th Cir. 1960), this court reviewed instructions similar to the one given in the present case and held that there was no error if, considering the instructions as a whole, the jury was instructed that the burden of proof never shifts to the defendant and that all the evidence should be considered by them in reaching a verdict. In the present case, when we consider the instructions as a whole, we are convinced that the jury was adequately charged on these matters.
Lawson further asserts that because he was a resident of Jamaica at all times during the alleged conspiracy and importation, the district court lacked jurisdiction over him. The evidence established, however, that Lawson was a member of the conspiracy; that the object of the conspiracy was to violate the narcotics laws of the United States; that the conspiracy was carried on partly in and partly out of the United States; and that overt acts were committed within the United States. It is well established that, in such a situation, the federal district court has jurisdiction to try the defendant for conspiracy even though he was corporeally outside the United States at all times during the alleged conspiracy. Ford v. United States, 273 U.S. 593, 620, 47 S.Ct. 531, 71 L.Ed. 793 (1927); United States v. Correa-Negron, 462 F.2d 613, 614 (9th Cir. 1972); Rivard v. United States, 375 F.2d 882, 886 (5th Cir. 1967), cert. denied, 389 U.S. 884, 88 S.Ct. 151, 19 L. Ed.2d 181. Moreover, as the Fifth Circuit pointed out in Rivard, supra, where, as here, the substantive offense is committed within the United States, the district court also has jurisdiction over the defendant, as a principal,
Lawson further maintains that even if jurisdiction existed, venue did not properly lie in the Northern District of Illinois since he first entered the United States and was arrested in Puerto Rico. This contention is frivolous. Venue was properly laid in the Northern District of Illinois where the offenses were "continued or completed." 18 U.S. C. § 3237(a). Rivard v. United States, supra, 375 F.2d at 888. It has long been recognized that, in conspiracy cases, venue is proper, under § 3237, in the district where the conspiracy was formed or in any district in which any overt act in furtherance of the conspiracy was committed, even though the defendant has never been present in that district. Downing v. United States, 348 F.2d 594, 598 (5th Cir. 1965), cert. denied, 382 U.S. 901, 86 S.Ct. 235, 15 L.Ed.2d 155.
In answering questions on direct examination, Fox and Zaretsky on several occasions referred to substances as "cocaine."
We note, however, that each time Fox or Zaretsky referred to the substance as "cocaine," the district court sustained the defendant's objection. Similarly, on the one occasion that the prosecutor referred to the substance as "cocaine," the trial judge sustained an objection from the defense. Moreover, in almost every instance, the court ordered the statement stricken from the
Finally, Lawson contends that, with respect to the substantive count, there was a variance between the indictment and the evidence. The indictment for this count charged with the defendant and others did "in the Northern District of Illinois, Eastern Division, and elsewhere . . . import and cause to be imported . . . cocaine . . . into the United States from Jamaica . . . ." The evidence was in variance with this, according to Lawson, since it indicated that (1) Lawson was in Jamaica at all times in question, and (2) Myrna Pierce flew with the substance to Baltimore from Jamaica and then from Baltimore to Chicago. Any importation, the defendant concludes, was to Baltimore, not to the Northern District of Illinois. This argument is frivolous. The indictment charges that the offense occurred in "the Northern District of Illinois, Eastern Division, and elsewhere." (Emphasis added.) Moreover, even assuming a variance existed, the defendant has wholly failed to show its materiality. United States v. Morado, 454 F.2d 167, 170 (5th Cir. 1972), cert. denied, 406 U.S. 917, 92 S.Ct. 1767, 32 L.Ed.2d 116. Finally, the fact that Lawson resided in Jamaica during the time of the importation is irrelevant. Lawson instructed Pierce to transport the cocaine to the United States and was, therefore, liable as a principal. 18 U.S.C. § 2.
In addition to the foregoing examples, the district court in seven other instances relating to the evidence informed the jury of the necessity of proof beyond a reasonable doubt. Whether a jury understands all of the intricacies of complicated instructions, there can be little doubt that these jurors were aware that to convict they had to be persuaded beyond a reasonable doubt.
"The law makes no distinction between the weight to be given to either direct or circumstantial evidence. It requires only that you, after weighing all of the evidence, must be convinced of the defendant's guilt beyond a reasonable doubt before you can find him guilty.