United States v. Robert Lee Glover, 677 F.2d 57, 10th Cir. (1982)
United States v. Robert Lee Glover, 677 F.2d 57, 10th Cir. (1982)
2d 57
10 Fed. R. Evid. Serv. 777
Glover asserts that the trial court erred in not declaring a mistrial after the
prosecutor put the following question to Glover's codefendant on crossexamination:
"Have you heard (that one of the codefendant's character witnesses) has been
arrested (sic ) in March of 1975 for selling mortgaged property?" On appeal,
the government concedes the impropriety of this question. Such questions do
not make pleasant reading in a trial transcript, and their possible prejudice
should not be discounted. The trial judge, however, sustained an objection to
the question before it was answered, and admonished the jury not to consider it.
In these circumstances, and in light of the entire record, we see no reversible
error in denying appellant's mistrial motion.
4
Glover assigns error to the trial court's denial of his motion for a judgment of
acquittal, arguing that the evidence presented did not establish his guilt of
conspiracy to distribute marijuana or of distribution of marijuana. We find
sufficient evidence to support Glover's conviction of distribution of marijuana
as alleged in count II of the indictment. The indictment charged Glover and
others with knowingly distributing about fifteen pounds of marijuana to persons
known only as "Irvin" and "Virgil". Although Glover was not present at the
transfer of marijuana to the anonymous buyers, the evidence allows the
inference that Glover aided and abetted1 this distribution by delivering with one
Loggins, the marijuana that was sold. Glover's argument that he was an
unwitting onlooker at two transfers of large quantities of marijuana is
unconvincing in light of the testimony of three eyewitnesses-witnesses that the
jury apparently believed. We are, of course, bound to view this evidence and
the inferences from it in the light most favorable to the prosecution. See, e.g.,
United States v. Blitstein, 626 F.2d 774, 776 (10th Cir. 1980), cert. denied, 449
U.S. 1102, 101 S.Ct. 898, 66 L.Ed.2d 828 (1981).
Glover also argues that the trial court erred in admitting the "hearsay"
testimony of two coconspirators before the existence of a conspiracy, and
Glover's part in it, had been shown. We hold that Glover has not preserved for
appellate consideration any error in admitting the claimed hearsay in
coconspirator Bishop's testimony. Defense counsel objected to this testimony
not as hearsay, but as evidence "beyond the bounds of the alleged conspiracy in
the indictment...." Glover cannot argue on appeal a totally different ground for
excluding Bishop's testimony of an out-of-court discussion. See, e.g., United
States v. Maultasch, 596 F.2d 19, 24-25 (2d Cir. 1979); United States v. Rowe,
565 F.2d 635, 637 (10th Cir. 1977).
Glover did preserve for our consideration the admission of certain testimony of
coconspirator Russell. Glover raised a continuing objection to Russell's
We have fully considered Glover's other arguments and find them insubstantial.
The judgment of the district court is affirmed.
Honorable John W. Peck, Senior United States Circuit Judge for the Sixth
Circuit, sitting by designation