APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 76-218-2).
Gibbons and Weis, Circuit Judges, and Steel,*fn* District Judge.
In a non-jury trial held on stipulated facts, Richard John Cooper and two others were found guilty of conspiracy to possess, with intent to distribute, marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846.*fn1 Cooper contends that the stipulated facts do not support the conclusion that he was a member of an unlawful conspiracy. The district court made a general finding of guilty, and neither the government nor Cooper requested that the facts be found specially. See Fed. R. Crim. P. 23(c). Our task is to review the evidence in the light most favorable to the government in order to determine if the factfinder could find beyond a reasonable doubt that Cooper conspired with his two co-defendants to possess marijuana with intent to distribute it. The existence of a conspiracy between the other two is not disputed by Cooper.
The government, relying on statements in some recent Third Circuit decisions, suggests that it need only prove membership in a conspiracy by "slight evidence."*fn2 Those cases do refer to "slight evidence," but they cannot be understood to establish the novel rule that the prosecution in a conspiracy case is relieved of the burden of proving every element of the offense beyond a reasonable doubt. Clearly, it would be reversible error to charge a jury that, once the government has shown the existence of a conspiracy, it may connect a particular defendant to it by "slight evidence," rather than by evidence proving the connection beyond a reasonable doubt. United States v. Partin, 552 F.2d 621, 628 (5th Cir. 1977), cert. denied, 434 U.S. 903, 98 S. Ct. 298, 54 L. Ed. 2d 189 (1977). In a case tried without a jury the government's burden of persuasion is no less.
The reference to "slight evidence" in the cases cited in note 2 is no more than a shorthand expression of the rule that, after a guilty verdict by a jury or a finding of guilt by a trial court, an appellate tribunal may not substitute its inferences from the evidence for those drawn by the factfinder, if there was sufficient evidence to submit to the factfinder in the first place. See Glasser v. United States, 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457 (1942), and United States v. Hopkins, 518 F.2d 152, 156 (3d Cir. 1975). As we observed in United States v. Kates, 508 F.2d 308, 310-11 (1975), to convict a defendant of participating in a conspiracy, there must be some evidence tending to prove that he entered into an agreement and that he knew the agreement had the specific unlawful purpose charged in the indictment. As we declared in United States v. Allard :
The question is whether all the pieces of evidence against the defendant, taken together, make a strong enough case to let a jury find him guilty beyond a reasonable doubt.
240 F.2d 840, 841 (3d Cir. 1957).
The case now before us involves a shipment of 1100 lbs. of marijuana from Boulder, Colorado, to Pottsville, Pennsylvania. For purposes of this appeal we take it as established that there was a conspiracy between Cooper's co-defendants, Thomas J. Meador and John Brett Allen. These two conspired to have the marijuana loaded in a Ryder truck rented by Meador and to have the truck driven from Boulder to Pottsville. The case against Cooper consisted of the following evidence:
1. In the week before the departure of the Ryder truck from Colorado three phone calls were placed from a telephone at Allen's residence to a telephone at Cooper's residence. (There is no evidence concerning the identity of the participants or the subject matter of the conversations.)
2. A search of the Ryder truck after its seizure in Pottsville produced a Colorado motel receipt dated December 16, 1975, bearing Cooper's name and the registration number of the truck.
3. On December 18, 1975, Cooper and Meador checked into the Dusselfink Motel in Pottsville, Pennsylvania. The registration number of the Ryder truck was listed on the registration form. Both Meador and Cooper were assigned to Room 242.
4. Two telephone calls were made from Room 242. One was to the telephone in Cooper's home. The other was to an answering service listed to Allen; the message was that Allen should call Jeff Stewart at 385-2407, the Dusselfink Motel number, Room 242. (There is no evidence that Cooper made either call. There is no evidence concerning the subject matter of the call ...