United States v. John P. Cloughessy

572 F.2d 190 UNITED STATES of America, Plaintiff-Appellee, v. John P. CLOUGHESSY, Defendant-Appellant. No. 77-1015. United States Court of Appeals, Ninth Circuit. June 20, 1977. As Amended July 26, 1977. Rehearing Denied Aug. 24, 1977. Michael L. Lipman, Asst. U. S. Atty., on the brief, Terry J. Knoepp, U. S. Atty., San Diego, California, for plaintiff-appellee. Appeal from the United States District Court for the Southern District of California. Before CUMMINGS, * HUFSTEDLER, and WALLACE, Circuit Judges. PER CURIAM: 1 Cloughessy appeals his conviction for conspiracy to defraud the United States in violation of 21 U.S.C. §§ 841 (a)(1), 846 (1970). The sole issue on appeal is the sufficiency of the evidence to support his conviction. 2 During the first week of August 1976, codefendants Tadique and Rivera began negotiating with undercover agents in Seattle, Washington, for the sale of five pounds of heroin as part of a scheme to "burn" the Government by pretending to deal in heroin. Tadique and Rivera agreed to deliver heroin to the agents in San Diego on August 24, 1976. A series of further discussions took place in Chula Vista on August 24. 3 There is no evidence of any…

dissenting:

I respectfully dissent. I cannot agree that the government’s evidence was insufficient to uphold the conviction.

The government clearly established the existence of a conspiracy involving at least Tadique and Rivera. Once the conspiracy was proven to exist, only slight evidence was needed to connect Cloughessy with it. United States v. See, 505 F.2d 845, 856 (9th Cir. 1974), cert. denied, 420 U.S. 992 , 95 S.Ct. 1428 , 43 L.Ed.2d 673 (1975); United States v. Jit Sun Loo, 478 F.2d 401 (9th Cir. 1973). This quantum of evidence will suffice regardless of whether the trial is heard by a judge or jury. United States v. Costey, 554 F.2d 909, 910 (9th Cir. 1977). The slight evidence can be circumstantial— proof of a formal agreement is not neces *192 sary. See United States v. Westover, 511 F.2d 1154 (9th Cir.), cert. denied, 422 U.S. 1009 , 95 S.Ct. 2633 , 45 L.Ed.2d 673 (1975). Further, in considering sufficiency, items of circumstantial evidence must be viewed in aggregate form, not in isolation. United States v. Calaway, 524 F.2d 609, 612 (9th Cir. 1975), cert. denied, 424 U.S. 967 , 96 S.Ct. 1462 , 47 L.Ed.2d 733 (1976).

Thus, the central question in this case is…

Cloughessy appeals his conviction for conspiracy to defraud the United States in violation of 21 U.S.C. §§ 841 (a)(1), 846 (1970). The sole issue on appeal is the sufficiency of the evidence to support his conviction.

During the first week of August 1976, codefendants Tadique and Rivera began negotiating with undercover agents in Seattle, Washington, for the sale of five pounds of heroin as part of a scheme to “burn” the Government by pretending to deal in heroin. Tadique and Rivera agreed to deliver heroin to the agents in San Diego on August 24, 1976. A series of further discussions took place in Chula Vista on August 24.

There is no evidence of any kind linking Cloughessy to the conspiracy prior to August 24. On August 24, Tadique met Cloughessy at a birthday party at the home of a mutual friend. Tadique, a casual acquaintance of Cloughessy, asked him if he would be willing to drive to Chula Vista to meet some friends. Cloughessy agreed. As Tadique and Cloughessy were leaving the party, their host, one Holt, asked them to pick up some butter for the party. Holt indicated that if they planned to be gone for a while, they should bring the butter to him before embarking on their…