United States v. Gregory Frorup, 963 F.2d 41, 3rd Cir. (1992)
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Scribd Government DocsUnited States v. Gregory Frorup, 963 F.2d 41, 3rd Cir. (1992)
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Scribd Government Docs963 F.
2d 41
UNITED STATES of America
v.
Gregory FRORUP, Appellant.
No. 91-3706.
United States Court of Appeals,
Third Circuit.
Submitted Under Third Circuit Rule 12(6)
April 20, 1992.
Decided May 6, 1992.
Melody M. Walcott, Office of Federal Public Defender, Christiansted,
Saint Croix, Virgin Islands, for appellant.
Alphonso G. Andrews, Jr., Office of U.S. Atty., Christiansted, Saint
Croix, Virgin Islands, for appellee.
Before: SLOVITER, Chief Judge, MANSMANN and WEIS, Circuit
Judges.
OPINION OF THE COURT
SLOVITER, Chief Judge.
Gregory Frorup was charged with two counts of possession with intent to
distribute cocaine under 21 U.S.C. 841(a) (1988 & Supp.1991), and one count
of conspiracy to distribute cocaine under 21 U.S.C. 841(a), 846. The jury
found him guilty on one count of the lesser included offense of simple
possession. Frorup appeals his conviction, contending that there was
insufficient evidence for the jury to convict. Because we find that there was
ample evidence to sustain the conviction, we will uphold the jury's verdict.
I.
FACTS
2
On the morning of March 9, 1991, Special Agent Junia Tyson, working
On the morning of March 9, 1991, Special Agent Junia Tyson, working
undercover for the Virgin Islands Narcotics Strike Force in St. Croix, met with
Frorup at the John F. Kennedy Projects in Christiansted. Frorup told Tyson that
he knew a person from whom Tyson could purchase drugs and that Frorup
could arrange a purchase of crack cocaine. Tyson, who was outfitted with a
listening device and $4,500 in government cash, met Frorup at the Kennedy
Projects that evening.
Frorup first borrowed Tyson's car in order to pick up drugs for Tyson, but
returned a few minutes later stating that he was unable to get drugs from that
source that night. Frorup then suggested that he and Tyson travel to Estate St.
John to get cocaine. When they arrived at a residence at Estate St. John, they
remained in the car and were approached by Clarence Williams. Williams
spoke with Frorup for a few moments, announced that he had four and one-half
ounces of cocaine to sell, and told Tyson that the cocaine would cost three
thousand dollars. While Williams returned to the house, Tyson proceeded to
count out three thousand dollars in cash which he gave to Frorup. Williams
returned to the car and Frorup handed Williams the money. Williams then
handed the drugs to Frorup who handed the drugs to Tyson. A similar
transaction occurred on March 30, 1991.
Frorup and Williams were charged in a three-count indictment under 21 U.S.C.
841(a), 846 for conspiracy to distribute a controlled substance during March,
1991 (Count I), and under 21 U.S.C. 841(a) for possession of a controlled
substance with intent to distribute on or about March 9, 1991 (Count II), and
possession of a controlled substance with intent to distribute on or about March
30, 1991 (Count III).1 The jury acquitted Frorup on Counts I and III. As to
Count II, the jury acquitted Frorup on the distribution charge but found him
guilty of simple possession, the lesser included offense under 21 U.S.C.
841(a).2 He was sentenced to 169 months in prison.
II.
DISCUSSION
5
In reviewing a jury verdict for insufficiency of the evidence, this court must
consider the evidence in the light most favorable to the government and affirm
the judgment if there is substantial evidence from which any rational trier of
fact could find guilt beyond a reasonable doubt. Glasser v. United States, 315
U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Aguilar,
843 F.2d 155, 157 (3d Cir.), cert. denied, 488 U.S. 924, 109 S.Ct. 305, 102
L.Ed.2d 324 (1988).
Frorup's only contention on appeal is that inherent in the definition of
"possession" is an intent to retain the object for some period of time. The
evidence was insufficient, he contends, to demonstrate that the act of handing
drugs from one person to another constituted "possession" because Frorup did
not retain the drugs for a sufficient period of time and because he did not
exercise control over the drugs during the few moments that he held them. For
the reasons given, infra, we will affirm the conviction without reaching this
argument.
The crime of simple possession under 21 U.S.C. 844 (1988 & Supp.1991) is a
lesser offense included within the offense of possession with intent to distribute
under 21 U.S.C. 841(a). United States v. Garcia-Duarte, 718 F.2d 42, 47 (2d
Cir.1983). This court will uphold a jury verdict convicting a defendant of a
lesser offense than the one charged if "the evidence would permit a jury
rationally to find [the defendant] guilty of the lesser offense and acquit of the
greater." Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36
L.Ed.2d 844 (1973). Cf. Fed.R.Crim.P. 31(c). A jury instruction on the lesser
included offense is allowable as long as there is some evidence to support the
conviction. United States v. Thornton, 746 F.2d 39, 47 (D.C.Cir.1984). The
trial judge, without objection, instructed the jury that Frorup could be found
guilty of the crime charged if he aided or abetted the commission of the crime.
18 U.S.C. 2 (1983) states:
8
Whoever
commits an offense against the United States or aids, abets, counsels,
commands, induces or procures its commission, is punishable as a principal.
9
In order to establish the offense of aiding and abetting, the Government must
prove two elements: that the substantive crime has been committed and that the
defendant knew of the crime and attempted to facilitate it. United States v.
Dixon, 658 F.2d 181, 189 n. 17 (3d Cir.1981). Actual or constructive
possession need not be shown to justify a conviction for aiding and abetting
possession, only "some affirmative participation which at least encourages the
principal offender to commit the offense." United States v. Raper, 676 F.2d
841, 850 (D.C.Cir.1982).
10
Although this court has not had the opportunity to rule on the question of
whether a defendant can be convicted of aiding and abetting possession when
he did not actually help his codefendant obtain the drugs but arranged a
transaction to distribute the drugs, other circuits have. In United States v.
Wesson, 889 F.2d 134, 135 (7th Cir.1989), the Seventh Circuit found
possession under the aiding and abetting statute in a context strikingly similar to
the one presented. The defendant, Wesson, arranged a sale of cocaine between
a dealer and an undercover agent. The dealer had never met the agent so
Wesson arranged the sale and accompanied the agent to the meeting place for
the sale. Wesson's role was to count out the money, give it to the dealer, and
then give the cocaine to the agent. The participants were arrested, however,
before the transaction was complete. The court rejected Wesson's contention
that he could not be convicted of aiding and abetting possession with intent to
distribute because it could not be shown that he aided and abetted the
possession. Id. at 135. Noting that one does not need proof of possession, active
or constructive, to get a conviction on aiding and abetting, the court held that
one may " 'abet' the crime of possession with intent to distribute by procuring
the customers and maintaining the market in which the possession is profitable,
even though [one] do[es] nothing else to help the possessor get or retain
possession." Id.
11
Other circuits have reached similar conclusions. See United States v. Poston,
902 F.2d 90, 94 (D.C.Cir.1990) (upheld conviction of possession for knowingly
driving an acquaintance to location where latter would sell drugs); see also
United States v. Fischel, 686 F.2d 1082, 1087-89 (5th Cir.1982) (defendant
need only help the possession of the principal to be found guilty of aiding and
abetting his possession); United States v. Offutt, 736 F.2d 1199, 1201 (8th
Cir.1984) (middleman's association with criminal venture and participation in it
as something he wanted to succeed enough for aiding and abetting possession);
United States v. Ginsburg, 758 F.2d 823, 832 (2d Cir.1985) (same); United
States v. Gillock, 886 F.2d 220, 222 (9th Cir.1989) (same). But see United
States v. Jackson, 526 F.2d 1236, 1238 (5th Cir.1976) (reversing Jackson's
conviction under 21 U.S.C. 841(a)(1) and 18 U.S.C. 2, for aiding and
abetting possession with intent to distribute cocaine because no evidence that
defendant, who introduced to each other co-defendants who arranged sale of
cocaine to an undercover federal agent, helped his co-defendants obtain the
cocaine; hence, he did not participate in the possession element of the crime
charged).
12
Although there was no evidence that Frorup actually aided Williams in
obtaining the cocaine, the evidence supports the inference that Frorup and
Williams had had prior dealings. When Frorup's initial effort to buy drugs was
unsuccessful, he turned to Williams as a likely source. His ability to secure as
much as four and one-half ounces of cocaine from Williams without advance
notice demonstrates Frorup's participation in Williams's scheme of possession
and distribution of illegal drugs. In the language of the Seventh Circuit, the jury
had evidence to find that Frorup abetted Williams's possession "by procuring
the customers and maintaining the market in which the possession is profitable,
even though [he did] nothing else to help the possessor get or retain
possession." Wesson, 889 F.2d at 135.
13
Inasmuch as the evidence was sufficient for us to uphold the verdict based on
the theory of aiding and abetting, we need not decide whether Frorup ever had
actual or constructive possession of the cocaine.
III.
CONCLUSION
14
For the foregoing reasons, we will affirm the judgment of the district court.
Counts II & III included the language "while aided and abetted by one another."
Even without this language, aiding and abetting is implied in every federal
indictment for a substantive offense. United States v. Armstrong, 909 F.2d
1238 (9th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 191, 112 L.Ed.2d 153
(1990)
Although Frorup states in his brief that he was convicted under Count III rather
than Count II, the judgment sheet makes clear that it was Count II. See App. at
181
