APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Crim. No. 72-458
Before SEITZ, Chief Judge, ROSENN and WEIS, Circuit Judges
James Hargrove Dinkins was indicted for distribution of heroin and conspiracy to distribute heroin. He allegedly conspired with Arthur Hopkins, Alfred S. Fletcher, and James Reid to sell two "bundles" of heroin to a Government informant, Calvin Butler.*fn1 Midway through the Government's case-in-chief, the United States District Court for the Eastern District of Pennsylvania determined that sufficient independent evidence of Dinkins' participation in the alleged conspiracy had been adduced to permit the jury to consider with respect to Dinkins the hearsay declarations of his alleged coconspirators. The jury found Dinkins guilty on both the substantive and conspiracy counts. After denying Dinkins' motion for judgment of acquittal, the district court sentenced him on the substantive count to three years' imprisonment followed by a three-year special parole term. On the conspiracy count, the district court suspended sentence and placed Dinkins on probation for a five-year period running consecutively to the term of imprisonment imposed on the substantive count.
Dinkins makes the following contentions on appeal:
(1) The evidence on the substantive count, which consisted primarily of Butler's testimony, was insufficient since Butler was a paid informant, a drug addict with criminal charges outstanding against him, and his testimony was uncorroborated.
(2) The district court committed plain error in failing to give certain jury instructions concerning Butler's unreliability which were not requested by Dinkins.
(3) The district court erred in permitting the hearsay declarations of Dinkins' alleged coconspirators to be admitted in evidence against him.
(4) When the challenged hearsay declarations are excluded, the record is insufficient to support the conspiracy conviction.
(5) Dinkins is entitled to a new trial on the substantive count because admission in evidence of the challenged hearsay declarations did not constitute harmless error.
We affirm Dinkins' conviction on the substantive count and reverse his conviction on the conspiracy count.
The Government's case rested primarily on the testimony of Calvin Butler, the informant. Butler's testimony was corroborated in part, however, by federal agents who kept him under surveillance immediately before and during ...