United States v. Ronald Brown

*404 OAKES, Circuit Judge

(dissenting):

While it is true that this is another $40 narcotics case, see, e.g., United States v. Peterson, 768 F.2d 64 (2d Cir.1985), it is also a conspiracy case, and by the majority’s own admission one resting on “barely” sufficient evidence. But evidence of what? An agreement — a “continuous and conscious union of wills upon a common undertaking,” in the words of Note, Developments in the Law — Criminal Conspiracy, 72 Harv.L.Rev. 920, 926 (1959)? Not unless an inference that Brown agreed to act as a “steerer” may be drawn from the fact that he said to Valentine (three times) that Grimball “looks okay [all right] to me,” as well as “[j]ust go and get it for him.” And the only way that inference may be drawn so as to prove guilt beyond a reasonable doubt is, in my view, with assistance from the “expert” testimony of the ubiquitous Officer Grimball, see United States v. Peterson, supra. It could not be drawn from Brown’s possession, constructive or otherwise, of narcotics or narcotics paraphernalia, his sharing in the proceeds of the street sale, his conversations with others, or even some hearsay evidence as to his “prior arrangements” with Valentine or “an established working relationship between Brown and Valentine,” which are inferences that the majority, Majority Opinion at note 10, believes may reasonably be drawn and which it draws so as to distinguish United States v. Tyler, 758 F.2d 66 (2d Cir.1985). There is not a shred of evidence of Brown’s “stake in the outcome,” United States v. Falcone, 109 F.2d 579, 580 (2d Cir.), aff'd, 311 U.S. 205 , 61 S.Ct. 204 , 85 L.Ed. 128 (1940); indeed, Brown was apprehended after leaving the area of the crime with only thirty-one of his own dollars in his pocket, and no drugs or other contraband. He did not even stay around for another Valentine sale, though the majority infers, speculatively, that Brown and Valentine had engaged in “such a transaction before.”

When, as the majority concedes, Majority Opinion at note 5, numerous other inferences could be drawn from the few words of conversation in which Brown is said to have engaged, I cannot believe that there is proof of conspiracy, or Brown’s membership in it, beyond a reasonable doubt, within the meaning of Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979), unless one gives the Court’s emphasis on the word “any” — “any rational trier of fact,” id. at 319 , 99 S.Ct. at 2789 — such weight that the word “rational” receives little or no significance at all. Until now, as we said in United States v. Cepeda, 768 F.2d 1515 (2d Cir.1985), “the court has insisted on proof, whether or not by circumstantial evidence, ... of a specific agreement to deal.” 1

This case may be unique. It, like Cepeda , supports Justice Jackson’s reference to the history of the law of conspiracy as exemplifying, in Cardozo’s phrase, the “ ‘tendency of a principle to expand itself to the limits of its logic.’ ” Krulewitch v. United States, 336 U.S. 440, 445 , 69 S.Ct. 716, 719 , 93 L.Ed. 790 (1949) (Jackson, J., concurring) (footnote omitted). But it also illustrates Cardozo's phrase at work in two other respects — the use of “expert” testimony to prove guilt and the proposition that inconsistent verdicts on different counts are immaterial. Both are carried here to their logical extremes. And the convergence of these three threads in the case of the street sale to Officer Grimball *405 seems to me, again to borrow a phrase from Justice Jackson’s Krulewitch concurrence, to “constitutef ] a serious threat to fairness in our administration of justice.” Id. at 446 , 69 S.Ct. at 720 . If today we uphold a conspiracy to sell narcotics on the street, on this kind and amount of evidence, what conspiracies might we approve tomorrow? The majority opinion will come back to haunt us, I fear.

On the use of Officer Grimball’s expert testimony, I note the following. A “steer-er” is presumably one who leads buyers of narcotics to suppliers. Brown’s alleged role, however, was either to instruct Valentine, who received a $5 tip for his role as “steerer” to the hotel supplier (although Grimball did testify that suppliers as well as steerers occasionally ask for “tips”), or to serve as an evaluator of a buyer’s bona fides. In light of Grimball’s limited undercover experience, his broader definition of a “steerer” so as to encompass Brown’s role, whatever that role was, lacks the ring of expertise. I point out that Officer Grim-ball’s four months of undercover narcotics experience (during which he made some thirty to fifty street purchases, none involving more than $50), by his own admission, did not give him enough experience (1) to say whether or not before “Operation Pressure Point” only one person was involved in street sales; (2) to testify of his own knowledge that “in some drug transactions ... the dealer will act like he is going somewhere else to retrieve the narcotics when, in fact, he already has the drugs on his person”; or (3) ever to have participated in an operation (A) using a Nagra or other small tape recorder on an officer’s body or (B) where photographs of the individuals or sale were taken. At the very least, he should not have been permitted to testify that Brown was a “steerer.” See Majority Opinion note 6 and accompanying text. Not only was Grimball no Maigret, he was neither a Johnson nor a West, see United States v. Carson, 702 F.2d 351 , 369 & n. 24 (2d Cir.), cert. denied, 462 U.S. 1108 , 103 S.Ct. 2456 , 77 L.Ed.2d 1335 (1983) (two agents who together had twenty years’ experience as officers of narcotics branch of District of Columbia police department), nor a Hight, as in United States v. Young, 745 F.2d 733, 760 (2d Cir.1984) (“unquestionably qualified as an expert”). These cases are weak reeds indeed for admission of Grimball’s expert testimony. And without his “expert” testimony as to Brown’s role, I do not believe that the evidence was sufficient to sustain a conviction, and therefore its admission was not harmless error.

As for the rule that “[e]ach count in an indictment is regarded as if it was a separate indictment,” Dunn v. United States, 284 U.S. 390, 393 , 52 S.Ct. 189, 190 , 76 L.Ed. 356 (1932) (citations omitted), 2 so that acquittal on a substantive count is not fatal to a conviction for conspiracy, see United States v. Powell, - U.S. -, 105 S.Ct. 471 , 83 L.Ed.2d 461 (1984), the verdicts in this case carry the rule to the ultimate extreme. Here the only overt act attributed in the indictment to Brown was the same conversation with Valentine that grounded the substantive charge of aiding and abetting, a charge on which Brown *406 was acquitted. The case appears to me to be the very kind of compromise verdict foreseen by Judge Learned Hand in Steckler v. United States, 7 F.2d 59, 60 (2d Cir.1925), and by Justice Holmes in Dunn, 284 U.S. at 394 , 52 S.Ct. at 191 . It may be that, in a given case, see, e.g., Tyler, 758 F.2d at 71-72 , evidence may support a conviction on an aiding and abetting count without supporting a conviction on a conspiracy count. But it is hard to see how, in the case of a completed sale, there can be a conviction of conspiracy but not of aiding and abetting, especially when there is no evidence of a “stake in the outcome.”

Although, according to the majority, the admission of “expert” testimony is “rather offensive,” the evidence was “sufficient ... although barely so,” and the verdict is both inconsistent and very probably a compromise, the court permits this conspiracy conviction to stand. I fear that it thereby promotes the crime of conspiracy — “that darling of the modern prosecutor’s nursery,” Harrison v. United States, 7 F.2d 259, 263 (2d Cir.1925) (L. Hand, J.) — to a role beyond that contemplated even by Sgt. Hawkins of Pleas of the Crown fame. See Note, Developments in the Law — Crimi nal Conspiracy, supra, at 923 & n. 14; P. Winfield, The Chief Sources of English Legal History 325-26 (1925). Precisely because this is another $40 narcotics case, I would draw the line. This case effectively permits prosecution of everyone connected with a street sale of narcotics to be prosecuted on two counts — a conspiracy as well as a substantive charge. And evidence showing no more than that a defendant was probably aware that a narcotics deal was about to occur will support a conspiracy conviction, our previous cases to the contrary notwithstanding.

Accordingly, I dissent.

. The majority clearly states there is sufficient evidence without Officer Grimball’s expert testimony to support the conspiracy charge. But the inferences it draws seem based in part on that testimony. I agree with Judge Newman that an expert’s opinion that a defendant’s conduct is criminal may not "carry the prosecution’s proof above the requisite line.” United States v. Young, 745 F.2d 733, 766 (2d Cir.1984) (Newman, J., concurring). This circuit's law in United States v. Sette, 334 F.2d 267, 269 (2d Cir.1964), has not been overruled, except perhaps as a practical consequence of this case, in which an officer involved in the investigation is found, on the basis of a mere four months’ undercover experience, to be sufficiently "expert” to permit his testimony concerning the use of steerers in street narcotics sales to supply to the jury (and I believe the majority of this panel) the marginal increment necessary to sustain a conviction.

. Judge Friendly’s opinion in United States v. Carbone, 378 F.2d 420, 422 (2d Cir.1967), carefully pointed out that this proposition in Dunn is erroneous insofar as it rests on Justice Holmes’s statement immediately following it to the effect that an acquittal on one indictment could not be pleaded res judicata of a separate indictment resting on the same evidence. The strongest support for the proposition that consistency in a verdict is unnecessary, Judge Friendly’s Carbone opinion explained, is that the jury must be left free to exercise its historic power of lenity. At the same time, as any prosecutor (or defense attorney) is well aware, a two-count indictment gives a jury in a close case an opportunity to compromise by acquitting on one count while convicting on the other. And I am not at all as sure as Judge Friendly was in Carbone of the proposition that "if the rule [that inconsistent verdicts may stand] were otherwise, the Government would be entitled to have the jury warned that an acquittal on some counts might undermine a guilty verdict on others.” Id. at 422 . Why? On what authority? If the Government chooses to bring an indictment on alternative theories — that the defendant is a coperpetrator and an accessory — why should it not be bound to take its chances on the consistency of the verdict?