United States v. Warren Tyler, 758 F.2d 66, 2d Cir. (1985)
United States v. Warren Tyler, 758 F.2d 66, 2d Cir. (1985)
United States v. Warren Tyler, 758 F.2d 66, 2d Cir. (1985)
2d 66
Robin Charlow, The Legal Aid Society, Federal Defender Services Unit,
New York City (Sylvia Peck, The Legal Aid Society, Federal Defender
Services Unit, New York City, of counsel), for defendant-appellant.
Arthur W. Mercado, Asst. U.S. Atty., S.D.N.Y., New York City (Rudolph
W. Giuliani, U.S. Atty., S.D.N.Y., Martin L. Perschetz, Asst. U.S. Atty.,
S.D.N.Y., New York City, of counsel), for appellee.
Before VAN GRAAFEILAND, MESKILL and WINTER, Circuit Judges.
MESKILL, Circuit Judge:
Tyler advances one claim on appeal. He argues that the evidence presented at
trial was insufficient to establish his guilt beyond a reasonable doubt. For the
reasons that follow, we accept Tyler's argument with respect to the conspiracy
count but reject it with respect to the aiding and abetting count.
BACKGROUND
3
At trial, Baxter was the government's main witness. He testified that on May
10, 1984, he went to Harlem as part of an undercover narcotics operation. His
goal was to make at least two purchases of drugs. As he was walking along the
street he encountered Tyler. After an exchange of greetings, Tyler asked Baxter
"if everything was all right." Tr. at 15. Baxter told Tyler that he "was looking
for some good dope." (Dope is the street name for heroin.) Id. Tyler told
Baxter that "he would take care of [him]." Id.
The two began to walk down the street. They stopped and Tyler went off to the
side and spoke briefly to an unidentified individual. Tyler returned to Baxter
and told him that "he was trying to get [him] something that was good, because
there was a lot of dope on the street that was not good." Id. The two then
continued to walk down the street.
They next encountered Bennett. Tyler and Bennett stepped off to the side and
had a brief conversation, after which Bennett walked over to Baxter and asked
"how many did [he] want." Tr. at 16. Baxter told him three. Baxter and Bennett
then began to walk down the street. As they were walking, they exchanged
three glassine envelopes containing heroin for thirty dollars.
After completing the transaction with Bennett, Baxter turned around and
walked back up the street. As he was walking away, Tyler approached him and
asked him for some change. Baxter told him that he was low on cash and "that
maybe he could check with [Bennett] and [Bennett would] take care of him."
Tr. at 17. Baxter testified that Tyler replied "yes, but he just wanted to have
more change, he was trying to get something." Id. Baxter gave Tyler seventyfive cents and the two parted company. Baxter reported the buy to his back-up
team and they arrested Tyler approximately twenty minutes later. At the time of
his arrest, Tyler was carrying two dollars and seventy-five cents.
Tyler was the only witness called by the defense. He testified that although
Baxter asked him about drugs, he did not take Baxter to Bennett nor did he
have any role in the sale. He did testify, however, that he saw the sale take
place and that after it was completed he approached Baxter to ask him for some
money.
9
After two days of deliberations the jury found Tyler guilty on both the
conspiracy count and the aiding and abetting count. Tyler's motion for entry of
judgment of acquittal notwithstanding the verdict or for a new trial was denied.
The appeal before us ensued.
DISCUSSION
1. Conspiracy
10
11defendant challenging the sufficiency of the evidence carries "a very heavy
A
burden". United States v. Carson, 702 F.2d at 361 [ (2d Cir.1983) ]; United States v.
Losada, 674 F.2d 167, 173 (2d Cir.), cert. denied, 457 U.S. 1125, 102 S.Ct. 2945, 73
L.Ed.2d 1341 (1982). "The verdict of a jury must be sustained if there is substantial
evidence, taking the view most favorable to the Government, to support it." Glasser
v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). Further,
"pieces of evidence must be viewed not in isolation but in conjunction", United
States v. Carson, 702 F.2d at 362, and a reviewing court must draw all available
inferences, and resolve all issues of credibility, in favor of the jury's verdict. United
States v. Bagaric, 706 F.2d 42, 64 (2d Cir.), cert. denied, --- U.S. ----, ----, ----, 104
S.Ct. 133, 134, 283, 78 L.Ed.2d 128, 128, 261 (1983).
12
13
In addition, we have recognized that " '[a] conspiracy by its very nature is a
secretive operation.' " Id. (quoting United States v. Provenzano, 615 F.2d 37,
45 (2d Cir.), cert. denied, 446 U.S. 953, 100 S.Ct. 2921, 64 L.Ed.2d 810
(1980)). Thus, we have held that the existence of "a conspiracy ... may be
established ... through circumstantial evidence." United States v. Sanzo, 673
F.2d 64, 69 (2d Cir.), cert. denied, 459 U.S. 858, 103 S.Ct. 128, 74 L.Ed.2d 111
(1982). Moreover, to be sufficient "the evidence need not have excluded every
possible hypothesis of innocence." United States v. Soto, 716 F.2d 989, 993 (2d
Cir.1983).
14
Our narrow standard of review, however, does not require us to affirm all
conspiracy convictions. On the contrary, we have found the evidence
insufficient to sustain a conspiracy conviction in a number of cases. See, e.g.,
Young, 745 F.2d at 764; United States v. Gaviria, 740 F.2d 174, 184 (2d
Cir.1984); Soto, 716 F.2d at 991-93. Likewise, we find the evidence in the
instant case insufficient to sustain Tyler's conspiracy conviction.
15
16
The evidence adduced by the government merely shows that Tyler helped a
willing buyer locate a willing seller. As we have stated in the past, such
evidence, standing alone, is insufficient to establish the existence of an
agreement between the facilitator and the seller. United States v. Hysohion, 448
F.2d 343, 347 (2d Cir.1971) ("The fact that Rimbaud told Everett, a willing
buyer, how to make contact with a willing seller does not necessarily imply that
there was an agreement between that seller ... and Rimbaud."); United States v.
Torres, 519 F.2d 723, 726 (2d Cir.), cert. denied, 423 U.S. 1019, 96 S.Ct. 457,
46 L.Ed.2d 392 (1975) ("membership in a conspiracy is not established ... by
the fact that a defendant told a willing buyer how to make contact with a willing
seller" (citations omitted)).2
17
In an attempt to fill in the holes in its case, the government relies on the jury's
obvious disbelief of Tyler's testimony to support the conspiracy conviction. We
agree with the government that " '[o]nce a defendant offers evidence after the
denial of a motion for acquittal at the close of the Government's case ... [he]
waives any claim as to the sufficiency of the Government's case considered
alone.' " United States v. Maniego, 710 F.2d 24, 28 (2d Cir.1983) (per curiam)
(quoting United States v. Keuylian, 602 F.2d 1033, 1040-41 (2d Cir.1979)); see
also United States v. Pui Kan Lam, 483 F.2d 1202, 1208 n. 7 (2d Cir.1973),
cert. denied, 415 U.S. 984, 94 S.Ct. 1578, 39 L.Ed.2d 881 (1974). We also
agree that the jury has a right to consider the defendant's lack of credibility in
reaching its verdict. See United States v. Panza, 750 F.2d 1141, 1150 (2d
Cir.1984); United States v. Bagaric, 706 F.2d 42, 66 (2d Cir.1983), cert.
denied, --- U.S. ----, 104 S.Ct. 133, 134, 283, 78 L.Ed.2d 128 (1984); United
States v. Callabrass, 607 F.2d 559, 565 (2d Cir.1979), cert. denied, 446 U.S.
940, 100 S.Ct. 2163, 64 L.Ed.2d 794 (1980); United States v. Singleton, 532
F.2d 199, 204 (2d Cir.1976); United States v. Rizzuto, 504 F.2d 419, 420-21
(2d Cir.1974); Pui Kan Lam, 483 F.2d at 1208; United States v. Arcuri, 405
F.2d 691, 695 (2d Cir.1968), cert. denied, 395 U.S. 913, 89 S.Ct. 1760, 23
L.Ed.2d 227 (1969).
18
These two propositions, however, are not helpful to the government's case here.
In each of the cases in which the jury's disbelief was relied on as a factor
supporting affirmance, the evidence apart from the incredibility of the
defendant's testimony was sufficient or very close to sufficient. We merely
added that the defendant's incredible story was another circumstance that the
jury was entitled to consider. Here, on the other hand, the evidence of an
agreement between Tyler and Bennett was nonexistent. Thus, although the
jury's disbelief of a defendant's testimony may supplement already existing
evidence and help make the evidence in a borderline case sufficient, in the
instant case there was simply no existing evidence to supplement.3
19
In sum, even viewing the evidence in the light most favorable to the
government, the evidence shows no more than that Tyler helped a willing buyer
find a willing seller. Under the law of this Circuit, such evidence is insufficient
to prove the existence of a conspiratorial agreement between Tyler and the
seller. Thus, Tyler's conspiracy conviction must be reversed.
Tyler also urges us to reverse his aiding and abetting conviction. He argues that
because the government failed to prove that he had a stake in the outcome of
Bennett's sale the evidence was insufficient to establish aiding and abetting. We
do not find this argument compelling.
21
something that he wishes to bring about, [and] that he seek by his action to
make it succeed.' " United States v. DeFiore, 720 F.2d 757, 764 (2d Cir.1983)
(quoting United States v. Bommarito, 524 F.2d 140, 145 (2d Cir.1975)), cert.
denied, --- U.S. ----, 104 S.Ct. 3511, 82 L.Ed.2d 820 (1984).
22
23
Finally, we note that there is nothing inconsistent in our determination that the
evidence was insufficient with respect to the conspiracy count but sufficient
with respect to the aiding and abetting count. The two offenses are separate and
distinct.
24
25
United States v. Bright, 630 F.2d 804, 813 (5th Cir.1980) (citations omitted);
see also United States v. Arrington, 719 F.2d 701, 705-06 (4th Cir.1983), cert.
denied, --- U.S. ----, 104 S.Ct. 1289, 79 L.Ed.2d 691 (1984); United States v.
Krogstad, 576 F.2d 22, 29 (3d Cir.1978).
CONCLUSION
For the foregoing reasons, Tyler's conviction on the conspiracy count is
26
26
reversed and his conviction on the aiding and abetting count is affirmed.
The government argues that the jury could have concluded that two dollars of
the two dollars and seventy-five cents Tyler was carrying at the time of his
arrest came from Bennett. From this, the government claims that the jury could
have inferred that Tyler had a stake in the outcome of Bennett's sale. The
evidentiary support for these inferences along with the other evidence in this
case is simply not substantial enough to establish a conspiracy between Tyler
and Bennett
The government cites United States v. Teal, 582 F.2d 343 (5th Cir.1978), as a
case that "strongly resembles" the case before us and supports affirmance. We
find Teal clearly inapposite. In Teal, the existence of the conspiracy was clear;
the issue in that case was the defendant's participation. Under the Fifth Circuit's
standard of appellate review, when the existence of the conspiracy is
established only "slight evidence" of an individual's participation is required. Id.
at 345. Applying this standard, the court affirmed Teal's conspiracy conviction.
Unlike Teal, here the existence vel non of a conspiracy is the central issue. In
fact, the Teal Court used this very difference to distinguish the case before it
from Hyoshion. Id. at 347 n. 4
The government also cites us to United States v. Frank, 520 F.2d 1287 (2d
Cir.1975), cert. denied, 423 U.S. 1087, 96 S.Ct. 878, 47 L.Ed.2d 97 (1976). As
was the case in Teal, in Frank, the existence of the conspiracy was clear; the
issue was the defendant's participation. Suffice it to say, the evidence of Frank's
participation in the conspiracy was considerable. Thus, Frank does not support
the government's position.
The extent to which a jury may translate its discrediting of a witness' testimony
into positive proof is limited. As the Supreme Court recently stated: "When the
testimony of a witness is not believed, the trier of fact may simply disregard it.
Normally the discredited testimony is not considered a sufficient basis for
drawing a contrary conclusion." Bose Corp. v. Consumers Union, --- U.S. ----, ---, 104 S.Ct. 1949, 1966, 80 L.Ed.2d 502 (1984)