 to each other do not establish the existence of a conspiracy.
The only evidence of the conspiracy, then, is Phillip's sale of heroin to Leeper and Leeper's separate conversations with Claudell and Phillip regarding his possible participation in the "business" as a dealer. Drug transactions alone do not constitute a conspiracy, and it would be an exercise in sheer speculation to conclude from Leeper's account of his discussions with Phillip and Claudell that a heroin conspiracy existed. Although such speculation may be reasonable, it does not constitute proof beyond a reasonable doubt. As we said in United States v. Palacios, supra at 1365, "( j )uries must not be permitted to convict on suspicion and innuendo."
Nor is a conspiracy shown to exist between Phillip, Claudell, and the other alleged co-conspirators. The only connection between the Whites and Braxton was the first arranged "deal" on July 21, which fell through when police were summoned in response to a nearby burglary. Although success of the conspiracy is not required, United States v. Villarreal, 546 F.2d 1145 (5 Cir. 1977), the substance involved in the transaction must be the same illegal substance alleged in the indictment. United States v. Murray, 527 F.2d 401 (5 Cir. 1976). This "deal" involved marijuana, not heroin. Co-defendant Williams was, somewhat surprisingly, found not guilty,5 and thus drops out of the picture as a possible co-conspirator. That leaves only "John Doe," who, like Braxton, was involved only in the aborted marijuana transaction. Leeper, the government informant, cannot be a co-conspirator. Sears v. United States,343 F.2d 139 (5 Cir. 1965).
Because determination of a defendant's guilt rests exclusively with the jury, United States v. Black, 497 F.2d 1039, 1041 (5 Cir. 1974), we are reluctant to disturb that determination on appeal. That does not mean, however, that a jury verdict of guilty must be affirmed in all circumstances. United States v. Lange, 528 F.2d 1280, 1287 (5 Cir. 1976). It is a cardinal principle that no person should be subjected to punishment unless the evidence shows beyond a reasonable doubt the existence of every fact necessary to constitute the crime charged. United States v. Jackson, 426 F.2d 305, 309 (5 Cir. 1970). If the evidence does not meet this standard, the defendant must be acquitted. McWhorter v. United States, 193 F.2d 982, 985 (5 Cir. 1952). Although we do not lightly overturn a jury's finding, we do so here in fulfilling our responsibility to "guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt." Estelle v. Williams, 425 U.S. 401, 96 S.Ct. 1691, 1693, 48 L.Ed.2d 126 (1976). Accordingly, the conspiracy convictions of Phillip and Claudell White are reversed.
IV. CONCLUSION
Phillip White's conviction for possession of heroin with intent to distribute is affirmed. His conviction for conspiracy to so possess heroin is reversed, as is the conviction of Claudell White for the same offense. We remand the case to the district court with directions that the indictment be dismissed as to the conspiracy count.6
AFFIRMED in part, REVERSED in part, and REMANDED.
Other decisions phrase the test as whether a reasonably-minded jury could find the evidence inconsistent with every hypothesis of innocence. E. g., United States v. Prout, supra; United States v. Moore, 505 F.2d 620 (5 Cir. 1974). The differences in the two tests are merely semantical. United States v. Smith, supra at 1284 n. 3
Several Fifth Circuit cases have confused the situation, having proceeded on the assumption that an overt act must be alleged and proved under § 846 and its companion statute dealing with conspiracy to import drugs, 21 U.S.C. § 963, just as under the general conspiracy statute, 18 U.S.C. § 371. The problem is discussed in United States v. Palacios, supra (citing cases)
We say "apparently" because the government's brief on this question is woefully inadequate. Discussion of this issue, which is central to the case, occupies only two pages of the government's brief and consists largely of string citations to basic conspiracy principles. No references to the record are provided. We hope that, in the future, the government will respond more precisely to the issues
In other cases, witnesses have been allowed to explain their understanding of terms or phrases, but under circumstances radically different from those in the instant case. For example, in United States v. Cioffi, 493 F.2d 1111 (2 Cir.), cert. denied, 419 U.S. 917, 95 S.Ct. 195, 42 L.Ed.2d 155 (1974), the defendant was charged with obstruction of justice by attempting to influence a witness, whose understanding of the words as threats was obviously important. Moreover, the court noted that the jurors probably understood the terms anyway. In United States v. Borrone-Iglar, 468 F.2d 419 (2 Cir. 1972), cert. denied, 410 U.S. 927, 93 S.Ct. 1360, 35 L.Ed.2d 588 (1973), the court held it was proper to permit a police detective to explain the meaning of the narcotics vernacular used in telephone conversations involving the defendant. This, however, is a far cry from allowing testimony that "in the bag" or "in the pocket" means not only that someone is selling heroin but also that he is selling for a particular person
We also note that the prosecutor emphasized this testimony in closing argument, stating at one point that "williams stated that he was selling heroin for Claudell Martin White." Tr. 448. Actually, Williams said nothing of the sort, for Leeper interpreted "in the bag" to mean that Williams was selling for Claudell. Had Leeper been specifically asked whether Williams told him he was selling for Claudell, the answer might well have been a negative one. Indeed, this was the case when a similar question was posed to Leeper about his conversation with Braxton. Tr. 38-39.
Our surprise stems from the heavy reliance placed by the prosecution on Leeper's "in the bag" explanation that Williams was selling heroin for Claudell. See note 4, supra, and accompanying text
Since United States v. Musquiz, 445 F.2d 963 (5 Cir. 1971), the usual practice of this court in connection with reversals for insufficient evidence has been to remand with directions for a new trial if a motion for new trial was made in the district court. In the instant case, appellants moved for a judgment of acquittal and, in the alternative, for a new trial. However, we conclude that the prosecution has had the opportunity to fully develop its case and that no purpose would be served by remanding for a new trial. United States v. Peterson, 488 F.2d 645, 651 n. 14 (5 Cir. 1974); United States v. Brumley, 560 F.2d 1268, 1277 (5 Cir. 1977)
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AdvertisementIn a development which will further isolate Pakistan, a bill has been tabled in the US House of Representatives which seeks to terminate Pakistan as a major non-NATO ally. During the 117th Congress, Republican Congressman Andy Biggs introduced the bill in the US House of Representatives which seeks to remove Pakistan’s designation as a major non-NATO ally which will strip Pakistan of various perks like access to excess US defense supplies and participation in cooperative defense research and development projects.
The bill also states that unless a Presidential certification is issued that Pakistan continues to conduct military operations that are contributing to significantly disrupting the safe haven and freedom of movement of the Haqqani Network present in the country, the US President cannot issue a separate designation of the country as a Major NATO ally.
This is a significant development in the current context of things especially with the advent of Biden administration a certain section in Pakistan believed that it will go soft on Pakistan unlike Trump. However, this bill if passed, will tie the US President’s hands on Pakistan, regardless of who is at the White House as no sitting US President would certify that Pakistan is acting against the Haqqani network which is flourishing in the country.
It is pertinent to note that the Bush Administration in 2004 named Pakistan as a Major non-NATO ally. Currently, the US has 17 Major non-NATO allies with Brazil being the latest entrant into this group in 2019. Whereas, the USA under the Obama administration had designated India as a Major Defense Partner.
The designation is crucial for a cash strapped country like Pakistan as it would allow the country to enter into cooperative research and development projects with the Department of Defense (DoD) on a shared-cost basis.
The designation would also allow Pakistan participation in certain counter-terrorism initiatives, purchase of depleted uranium anti-tank rounds and priority delivery of military surplus – ranging from rations to ships.
Importantly for the forever cash hungry Pakistan, the designation would not only allow hem access to War Reserve Stocks of DoD-owned equipment but also grant them loans of equipment and material for cooperative research and development projects. It would also allow Pakistan to use American financing for purchase or lease of certain defence equipment – which we all know will be used to fuel terrorists in order to enable them to wreck havoc in India.
Without the designation, Pakistan will have no option but to purchase defence equipment from China which is not only outdated but also extremely faulty with China making a