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United States v. Whaley

decided: October 6, 1987.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JERRY WHALEY, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP 84-17-CR-17 -- William E. Steckler, Judge.

Cummings and Flaum, Circuit Judges, and Grant, Senior District Judge.*fn*

Author: Grant

GRANT, Senior District Judge

Defendant-Appellant Jerry Whaley was indicted on one count of conspiracy to possess with intent to distribute pharmaceutical drugs. After the first trial concluded with a hung jury, the court declared a mistrial. The government filed a superseding indictment charging Whaley with six substantive acts of distribution or possession with intent to distribute controlled substances, in addition to the original conspiracy charge. The jury in the second trial found Whaley guilty on all charges. Whaley now appeals his conviction,*fn1 raising issues of the sufficiency of evidence of conspiracy and the vindictive nature of the superseding indictment. For the reasons stated below, we affirm the conviction.

I

The investigation of the illegal diversion of pharmaceutical drugs from an Indianapolis pharmacy uncovered a conspiracy in which the appellant Jerry Whaley was involved. In 1981, the pharmacist-owner of Midtown Pharmacy, Sterling Litiskas, began selling pharmaceutical drugs (primarily the methamphetamine Desoxyn, also known as "speed" and "bird") illegally. One of his three major customers, Norma Jean Crabtree, distributed the drugs through her family members and sold them directly to the appellant. Whaley purchased drugs, in increasing quantities, from Crabtree and her family between 1982 and 1984 and sold them at parties, frequently with the Crabtrees, during that period.

On May 18, 1984, the grand jury returned an indictment against twenty defendants for drug-related offenses in connection with the illegal diversion of pharmaceutical drugs from the Midtown Pharmacy. Pharmacist Litiskas had previously entered into a preindictment plea agreement with the United States, and nineteen of the twenty indicted by the grand jury entered into pretrial plan agreements. Defendant Jerry Whaley, indicted on one count of conspiracy to possess with intent to distribute pharmaceutical drugs, went to trial on August 28, 1984.

Because the jury was unable to reach a verdict, the court declared a mistrial on September 4, 1984. The government filed a superseding indictment on September 27, 1984, that included the original conspiracy charge of the first indictment (a violation of 21 U.S.C. § 846), and added six substantive acts of distribution or possession with intent to distribute controlled substances in violation of 21 U.S.C. § 841(a)(1).*fn2 Whaley filed no motion challenging the superseding indictment prior to trial and raised no objection to the conspiracy charge or added counts at trial or at the close of the evidence.

Whaley's second jury trial commenced on November 13, 1984. Government witnesses testified to the defendant's purchases and sales of Desoxyn and other pharmaceutical drugs. Sterling Litiskas admitted that he himself was the source of most of the controlled substances in question, and other witnesses admitted to their personal involvement with Whaley in purchasing, distributing or taking the drugs. Norma Jean Crabtree and other members of her family stated that Whaley purchased Desoxyn and other drugs from them between 1982 and 1984. Daughter Vickie Crabtree testified that she was often present for Whaley's purchases, that she helped him prepare Desoxyn for sale, and both used and sold Desoxyn provided by Whaley. Other witnesses who obtained drugs from Whaley testified that the drugs were usually distributed for sale by Whaley, the Crabtree family and others from rented hotel rooms in Indianapolis. Specific incidents of distribution by Whaley formed the basis of counts two through six of the indictment; count seven alleged Whaley's purchase of twenty Desoxyn pills in January of 1984 from Norma Jean Crabtree after her release from prison.

The defendant's only two witnesses were his sister and mother, both of whom testified that they saw Jerry Whaley often, and that they had never seen him in possession of drugs.

The defendant was found guilty of all charges on November 19, 1984, and was sentenced to a term of imprisonment of fifteen years on the conspiracy count; two years for each of the six substantive counts, to run concurrently; and concurrent special parole terms of two years on each of the substantive counts.

In this appeal, Whaley challenges the sufficiency of the evidence presented to support his conviction on the conspiracy count and seeks reversal of the convictions on counts two through seven on the basis of prosecutorial vindictiveness.

II

Appellant first contends that the evidence presented at trial showed either no conspiracy or many tiny conspiracies, but was insufficient to support a finding of one overall conspiracy. According to Whaley, the record reflected that he would purchase pharmaceutical drugs from any source and would sell to any takers. He insists that there was no showing that he was a "major buyer" or that he had made agreements concerning distribution of controlled substances. He further asserts that, because the pharmacist Litiskas (the "hub" of the conspiracy) wanted nothing to do with him, Whaley could not have been a part of that conspiracy.

Appellate review of the sufficiency of the evidence to support a criminal conviction requires this court to determine whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); United States v. Draiman, 784 F.2d 248, 251 (7th Cir. 1986).

This appellate court will not reconsider the evidence or assess the credibility of the witnesses.*fn3 Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942); United States v. Moore, 764 F.2d 476, 47 (7th Cir. 1985); United States v. Redwine, 715 F.2d 315, 319 (7th Cir. 1983), cert. denied, 467 U.S. 1216, 81 L. Ed. 2d 367, 104 S. Ct. 2661 (1984). We give deference to the trial jury's weighing of the evidence and its drawing of reasonable inferences. United States v. Pritchard, 745 F.2d 1112, 1122 (7th Cir. 1984); United States v. Niemiec, 611 F.2d 1207, 1211 (7th Cir. 1980). "Only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt, may an appellate court overturn the verdict." United States v. Moore, 764 F.2d at 478 (quoting Brandom v. United States, 431 F.2d 1391, 1400 (7th Cir. 1970), cert. denied, 400 U.S. 1022, 91 S. Ct. 586, 27 L. Ed. 2d 634 ...


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