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United States v. Cohen

decided.: June 6, 1952.

UNITED STATES
v.
COHEN ET AL. AND FOUR OTHER CASES.



Author: Kalodner

Before MARIS, KALODNER and STALEY, CircuitJudges.

KALODNER, Circuit Judge.

This is a consolidated appeal by Martin Cohen, Daniel E. Graham, Jr., Michael Reade, Roscoe Grice, Marion Price and Ona Volker from judgments of conviction upon a jury verdict.

Defendants were indicted*fn1 for conspiring among themselves and with other persons to commit certain offenses against the United States relating to the purchase, sale, receipt and transportation of narcotics.*fn2 None of the defendants took the stand nor was any evidence introduced in their behalf. The Government's principal witness was one Charlie D. Herndon, who was named in the indictment as a co-conspirator. The evidence establishes the following:

In May or June of 1946, Herndon and defendant Graham, both residents of North Carolina, met with defendant Cohen at the latter's apartment in Newark, New Jersey, and informed him that they desired to buy narcotics. As a result of this meeting, in January, 1947, Cohen travelled to Fayetteville, North Carolina, and there sold and delivered to Herndon a quantity of morphine, stating that he would see him every thirty or sixty days thereafter. At the same time, Cohen also made a sale to Graham.

Thereafter, during the years 1947, 1948 and 1949, Cohen made sales of morphine to Herndon in North Carolina, New Jersey and New York, as well as several sales to Graham in North Carolina. Cohen was assisted in these operations by defendant Ona Volker, who accompanied him to North Carolina on at least one occasion.

Herndon purchased these narcotics partly for his own use and partly for resale. During the period under consideration he also made periodic purchases from Graham and defendant Wright. Defendant Grice worked for Herndon for a while, delivering drugs to others in exchange for a share of the profits. Later, he sole narcotics to Herndon as an employee of Graham. Defendant Price was one of Herndon's customers. He purchased large amounts of narcotics from Herndon, partly for his own use and partly for resale.

In December of 1949, Herndon met with Cohen and defendant Reade in St. Pauls, North Carolina. Cohen informed Herndon that he was going out of the narcotics business and that he was turning over his contacts to Reade.Reade then gave herndon his telephone number in New York City, and told him to get in touch with him whenever he needed narcotics.Thereafter, in January of 1950, Herndon went to New York and contacted Reade by telephone. The two met in Herndon's hotel room and discussed the sale of narcotics, but no transaction resulted because of a disagreement as to price.

To summarize the relationship of each defendant to the others - Cohen and Wright originally secured the narcotics, which they passed on to Graham and Herndon. The latter two disposed of the drugs to users, utilizing the services of Grice and Price to do so. Reade entered the conspiracy as a successor to Cohen. Ona Volker assisted Cohen in his business transactions.

Horndon was arrested by agents of the Bureau of Narcotics in November of 1949. His cooperation with the agents led to the arrest of some of the others.

These defendants and twenty-one other persons*fn3 were indicted in the District Court for the District of New Jersey, and tried to a jury. Motions for judgments of acquittal were denied; and defendants were found guilty and sentenced to prison terms ranging from two to five years.This appeal followed.

Defendants urge that their convictions be set aside for the following reasons: (a) the District Court for the District of New Jersey lacked jurisdiction to try the indictment; (b) defendants were prejudiced by the proof of "multiple conspiracies" rather than a single conspiracy; (c) the District Judge erred in admitting testimony of Herndon relating to matters which occurred after his arrest; and (d) the evidence was insufficient to sustain the verdict of the jury. In addition, defendant Wright also contends that his plea of former jeopardy should have been sustained in the court below. We agree that Wright's plea should have been sustained, but cannot subscribe to the remaining defendants' contentions.

Defendants' first two contentions are interdependent, and will be considered together. Defendants refer in their brief to numerous transactions which they claim constituted many separate conspiracies, and then contend that since there was "no acting in concert or * * * common design" within the District of New Jersey, no conspiracy was shown to exist there, hence the District Court was without jurisdiction. We cannot agree. "Venue in the prosecution for conspiracy may be laid in any district in which any act in furtherance thereof was committed by any of the conspirators." Ladner v. United States, 5 Cir., 1948, 168 F.2d 771, 773; Hyde v. United States, 1912, 225 U.S. 347, 32 S. Ct. 793, 56 L. Ed. 1114.

The evidence adduced in the instant case clearly established a single conspiracy, many acts in furtherance of which took place in New Jersey. It is immaterial that some of the activities occurred beyond the borders of New Jersey and that some of the conspirators did not know one another. It was established that, during the years in question, all the defendants were responsible for a steady flow of narcotics southward from Newark and New York. "That being true, a jury might have found that all the accused were embarked upon a venture, in all parts of which each was a participant, and an abettor in the sense that the success of that part with which he was immediately concerned, was dependent upon the success of the whole." ...


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