Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 77 Cr 28 - Thomas R. McMillen, District Judge.
Before FAIRCHILD, Chief Judge, PELL and SPRECHER, Circuit Judges.
PELL, Circuit Judge. The defendant was charged in count one of a three count indictment*fn1 with distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1). Specifically, the defendant was charged with distributing 20 grams of a mixture containing heroin on November 9, 1976. He was found guilty by a jury and was sentenced to five years in the custody of the Attorney General to be followed by the mandatory three year special parole term codified in 21 U.S.C. § 841(a)(1). The district judge suspended execution of that sentence, placing the defendant on probation for a period of five years with the first 120 days to be spent in the Metropolitan Correctional Center.
The defendant appeals on the grounds that the district court erred in admitting evidence of his flight and in instructing the jury on the weight to be given such evidence, that the Government's failure to respond to a bill of particulars deprived the defendant of his right to be apprised of the charges against him and an opportunity to defend against those charges, and that the sentence imposed by the district court was improper.
Although the defendant personally testified at the trial, denying any involvement in the distribution charged in the indictment, taking the evidence in the light most favorable to the Government, it is as follows.
For the better part of the year prior to the November distribution date, the defendant had had a friendly relationship with one Wilson Velasquez, who, unknown to the defendant, had been successfully recruited by federal narcotics agents to act as a confidential informant following his own arrest for selling narcotics to one of the agents. Velasquez did not testify at the Jackson trial. On November 9, 1976, Velasquez called Drug Enforcement Administration (DEA) agent Hacias, and pursuant to a prearranged plan, Hacias obtained $1,050 in official government funds for a proposed drug transaction. Agent Hacias and agent Sanchez met Velasquez who gave them a drug sample which he said he received that morning. Agent Sanchez and Velasquez drove in an undercover government car to the defendant's residence and sounded the horn. Jackson walked out and told them that the man had already called and would call back. When the defendant received the call, he told them to follow him to the EZ Go Gas Station.
When they arrived at the gas station, Jackson said, "The man is here. Be cool. The narcs are around." The defendant then met Massey about one half block from the gas station and together they approached the government car. Massey entered the car where Sanchez and Velasquez were seated. While Massey sold Sanchez 20 grams of a mixture containing heroin, the defendant stood at the side of the car, looking around the area, occasionally poking his head inside the car. Sanchez and Velasquez asked the defendant if he could "do a pound next time," to which the defendant answered that he would work on it. Massey exited the car and met with the defendant briefly before they left the area.
Approximately one week after this transaction, Sanchez called Jackson at his residence, identifying himself as "Ramone," his undercover name.He asked Jackson what had happened to the pound. The defendant responded that he was still checking and would get back to him. Several weeks later, the defendant called Sanchez at the undercover DEA telephone number which he had been given by Sanchez and Velasquez.*fn2 The defendant said he was "still checking on the thing." A few weeks later, Sanchez phoned Massey at Massey's number. During that conversation Massey said, "Talk to my man, he is over here." Sanchez identified the voice of the person to whom he then spoke as that of Jackson. Again Sanchez inquired about the pound of heroin, and was told that the speaker was working on it. None of these conversations was followed by a transaction.
Pursuant to an arrest warrant, DEA agents Hacias, Streicker, Hayes, and Furay went to the defendant's residence to arrest him on February 17, 1977. At approximately 10:30 a.m. three of the agents knocked at the front door announcing, as they did so, their office and purpose.Meanwhile, Furay had been posted at the back of the residence and he observed the defendant exit through the back door and run down the stairs. Agent Furay yelled "Freeze, Police," whereupon Jackson ran back up the stairs into his apartment where he was arrested.
The defendant first argues that the district court's admission into evidence of his alleged flight and the jury instruction on flight constituted prejudicial error requiring reversal. Although the defendant's explanation of his "flight" was that he ran out the back door to walk his dog, we are of the opinion that the evidence clearly indicates that his conduct can be characterized as an attempt to flee from the authorities.*fn3 At issue, however, is whether this evidence was erroneously admitted and whether it justified an instruction to the jury that flight may tend to prove consciousness of guilt.*fn4
This court has, on numerous occasions, approved the admission of flight evidence under the general rule that flight of the accused may be admissible as evidence of consciousness of guilt and thus of guilt itself. See, e.g., United States v. Hampton, 457 F.2d 299, 303 (7th Cir. 1972), cert. denied, 409 U.S. 856, 34 L. Ed. 2d 101, 93 S. Ct. 136 ; United States v. Crisp, 435 F.2d 354, 359 (7th Cir. 1970), cert. denied, 402 U.S. 947, 29 L. Ed. 2d 116, 91 S. Ct. 1640 (1971); United States ex rel. Miller v. Pate, 342 F.2d 646, 649 (7th Cir. 1965), rev'd on other grounds, 386 U.S. 1, 17 L. Ed. 2d 690, 87 S. Ct. 785 (1967). We have never had occasion, however, to define the bounds of this doctrine, nor have we articulated in any depth the analysis underlying our application of it. The present case, which involves Jackson's flight 3 1/2 months after the pertinent crime and without knowledge on his part that he was being sought for the crime, compels us to define more specifically the scope of the flight doctrine. We are aided substantially in this task by a recent Fifth Circuit opinion.
In United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977), the court stated that the probative value of flight as circumstantial evidence of guilt depends on the degree of confidence with which four inferences can be drawn: (1) from the defendant's behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged. The court also noted that
[the] use of evidence of flight has been criticized on the grounds that the second and fourth inferences are not supported by common experience and it is widely acknowledged that evidence of flight or related conduct is "only marginally probative as to the ultimate issue of guilt or innocence."
Id. [citations omitted]. Indeed, the Supreme Court has expressed its lack of confidence in the probative value of flight evidence. In Wong Sun v. United States, 371 U.S. 471, 483 n.10, 9 L. Ed. 2d ...