Appeal from a judgment entered in the United States District Court for the Southern District of New York, Cannella, J., on a jury verdict convicting appellant of conspiracy to distribute heroin, 21 U.S.C. § 846 (1982), and aiding and abetting the distribution of heroin, 21 U.S.C. § 841 (1982); 18 U.S.C. § 2 (1982). Affirmed in part; reversed in part.
Van Graafeiland, Meskill and Winter, Circuit Judges.
Warren Tyler appeals from a judgment of conviction entered in the United States District Court for the Southern District of New York, Cannella, J., on a jury verdict. Following a two day trial, the jury found Tyler guilty of conspiracy to distribute heroin in violation of 21 U.S.C. § 846 (1982) and of aiding and abetting the distribution of heroin in violation of 18 U.S.C. § 2 (1982) and 21 U.S.C. § 841 (1982). Tyler was sentenced to concurrent terms of two years imprisonment on each of the two counts, to be followed by a five year special parole term on the aiding and abetting count. He is currently serving his sentence.
Tyler advances one claim on appeal. He argues that the evidence presented at trial was insufficient to establish his guilt beyond a reasonable doubt. For the reasons that follow, we accept Tyler's argument with respect to the conspiracy count but reject it with respect to the aiding and abetting count.
Tyler's arrest, indictment and conviction stemmed from a purchase of heroin by New York City Police Detective Cleveland Baxter. Baxter made the actual purchase of heroin from James Bennett. Tyler was arrested because Baxter identified Tyler as the man who had introduced him to Bennett. Tyler was charged in two counts of a four count indictment. Count one charged conspiracy to distribute heroin and count two charged aiding and abetting the distribution of heroin.
At trial, Baxter was the government's main witness. He testified that on May 10, 1984, he went on to Harlem as part of an undercover narcotics operation. His goal was to make at least two purchases of drugs. As he was walking along the street he encountered Tyler. After an exchange of greetings, Tyler asked Baxter "if everything was all right." Tr. at 15. Baxter told Tyler that he "was looking for some good dope." (Dope is the street name for heroin.) Id. Tyler told Baxter that "he would take care of [him]." Id.
The two began to walk down the street. They stopped and Tyler went off to the side and spoke briefly to an unidentified individual. Tyler returned to Baxter and told him that "he was trying to get [him] something that was good, because there was a lot of dope on the street that was not good." Id. The two then continued to walk down the street.
They next encountered Bennett. Tyler and Bennett stepped off to the side and had a brief conversation, after which Bennett walked over to Baxter and asked "how many did [he] want." Tr. at 16. Baxter told him three. Baxter and Bennett then began to walk down the street. As they were walking, they exchanged three glassine envelopes containing heroin for thirty dollars.
After completing the transaction with Bennett, Baxter turned around and walked back up the street. As he was walking away, Tyler approached him and asked him for some change. Baxter told him he was low on cash and "that maybe he could check with [Bennett] and [Bennett would] take care of him." Tr. at 17. Baxter testified that Tyler replied "yes, but he just wanted to have more change, he was trying to get something." Id. Baxter gave Tyler seventy-five cents and the two parted company. Baxter reported the buy to his back-up team and they arrested Tyler approximately twenty minutes later. At the time of his arrest, Tyler was carrying two dollars and seventy-five cents.
Tyler was the only witness called by the defense. He testified that although Baxter asked him about drugs, he did not take Baxter to Bennett nor did he have any role in the sale. He did testify, however, that he saw the sale take place and that after it was completed he approached Baxter to ask him for some money.
After two days of deliberations the jury found Tyler guilty on both the conspiracy count and the aiding and abetting count. Tyler's motion for entry of judgment of acquittal notwithstanding the verdict or ...