U.S. v. Heater

• Decision Date: 16 August 1995
• Docket Number: 94-5215 and 94-5220,Nos. 94-5202,s. 94-5202
• Citation: 63 F.3d 311
• Parties: -5928 UNITED STATES of America, Plaintiff-Appellee, v. Connie Sue HEATER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Harvey Bernard JOHN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Timothy W. McCOY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 311

63 F.3d 311

76 A.F.T.R.2d 95-5928

UNITED STATES of America, Plaintiff-Appellee, v. Connie Sue HEATER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Harvey Bernard JOHN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Timothy W. McCOY, Defendant-Appellant.

Nos. 94-5202, 94-5215 and 94-5220.

United States Court of Appeals Fourth Circuit.

Argued Nov. 3, 1994.

Decided Aug. 16, 1995.

ARGUED: J. Michael Benninger, Wilson, Frame & Metheney, Morgantown, WV, for appellant McCoy; George F. Fordham, Clarksburg, WV, for appellant John; Thomas Roy Michael, Clarksburg, WV, for appellant Heater. Samuel G. Nazzaro, Jr., Asst. U.S. Atty., Wheeling, WV, for appellee. ON BRIEF: William D. Wilmoth, U.S. Atty., Wheeling, WV, for appellee.

Before ERVIN, Chief Judge, WIDENER, Circuit Judge, and PHILLIPS, Senior Circuit Judge.

No. 94-5202 affirmed, No. 94-5215 affirmed in part, vacated in part, and remanded with instructions, and No. 94-5220 affirmed in part and remanded with instructions by published opinion.

Chief Judge ERVIN wrote the opinion, in which Judge WIDENER and Senior Judge PHILLIPS joined.

OPINION

ERVIN, Chief Judge:

Timothy McCoy, leader of a West Virginia marijuana cultivation and distribution ring, and co-defendants Connie Heater and Harvey John appeal convictions for conspiracy, participation in a continuing criminal enterprise, money laundering, tax evasion, and perjury. McCoy and John additionally challenge the district court's handling of the sentencing phase of their trials. We affirm the convictions of all the defendants, except for McCoy's conspiracy conviction under 21 U.S.C. Sec. 846, which we remand with instructions to vacate. We also affirm McCoy's and Heater's sentences, but vacate John's perjury sentence and remand for resentencing of John.

I.

West Virginia state police, in conjunction with federal agents from the Internal Revenue Service, the Drug Enforcement Agency, and the Federal Bureau of Investigation, worked for nearly four years developing a case against Timothy McCoy, Connie Heater, and other individuals who were involved in the cultivation, possession, and distribution of marijuana in Lewis County, West Virginia. State police first learned of McCoy's illegal activities in August 1988, when two officers discovered a marijuana field off of Interstate 79 in Lewis County. The field contained 2,355 plants, each of which would yield between one-half pound and two pounds of marijuana. With the marijuana worth between $1,600 and $3,000 per pound, the field's market value was estimated at three-and-one-half to four million dollars. DEA agent Lowell Maxey testified that on a scale of one to ten, the size of the marijuana field would register as a nine. The marijuana field was located very close to McCoy's home and his car frequently was parked near the field.

McCoy's narcotics operation extended beyond this one field, however, and state and federal authorities soon located another marijuana field in Ritchie County, West Virginia. Although this second field began with only 100 plants, by 1989 it served as McCoy's primary cultivation center. Over the next three years, McCoy cultivated approximately 3,000 plants at that site. The evidence accumulated against the defendants is substantial, and we review the intricacies of the operation in more detail below as we consider the defendants' challenges to the sufficiency of the evidence.

A federal grand jury began investigating McCoy and his co-workers in the fall of 1990 and returned a twenty-four count indictment in September of 1992. The three defendants were tried in United States District Court for the Northern District of West Virginia. McCoy, considered the kingpin of the operation, was convicted under 21 U.S.C. Sec. 846 for conspiracy, as well as under 28 U.S.C. Sec. 848 for engaging in a continuing criminal enterprise ("CCE") to manufacture, distribute, and possess with intent to distribute marijuana. In addition to the two drug convictions, the jury convicted McCoy on five money laundering counts, six tax evasion counts, and two counts of suborning perjury. Heater, McCoy's girlfriend and the mother of his two infant children, was found guilty on the Sec. 846 conspiracy count, as well as one money laundering and two perjury counts. John, the least culpable of the defendants, had been indicted only on the section 846 conspiracy count and on one count of perjury. The jury found him guilty only of perjury.

McCoy was sentenced on fourteen different counts, the most significant of which was a 292-month term for the CCE conviction. The district court properly vacated a 292-month sentence for the Sec. 846 conspiracy charge, but chose not to vacate the underlying conviction. McCoy received three additional sentences totaling 336 months for the money laundering, tax evasion, and suborning perjury convictions. The court directed that these additional prison terms would be served concurrently with the base sentence of 292 months. For her part in the drug conspiracy, money laundering, and subornation of perjury, Heater received a 188-month sentence. John received the statutory maximum 60-month sentence for having committed perjury in an effort to protect the marijuana operation.

II.

Our review of the arguments raised by McCoy on appeal reveals no reversible error apart from the need to remand the case to the district court for the purpose of vacating McCoy's Sec. 846 conspiracy conviction.

A.

Six of the thirteen arguments raised by McCoy on appeal relate to the sufficiency of the evidence that existed to support his convictions. McCoy contends that the evidence was insufficient to sustain the jury's finding that he (1) served as an organizer, supervisor, or manager of five or more persons in the context of a continuing criminal enterprise; (2) engaged in a Sec. 846 conspiracy; (3) conspired to launder money obtained through his marijuana sales; (4) evaded payment of taxes and filed false declarations of income; (5) laundered money; and (6) suborned perjury and intimidated and threatened witnesses. In reviewing each of these challenges to the sufficiency of the evidence, we inquire whether "any rational trier of fact could have found the essential elements of the crime [charged] beyond a reasonable doubt," Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), and we "construe the evidence in the light most favorable to the government, assuming its credibility, drawing all favorable inferences from it, and taking into account all the evidence, however adduced," United States v. Giunta, 925 F.2d 758, 764 (4th Cir.1991).

(1)

Conviction for participating in a continuing criminal enterprise ("CCE") requires that the government prove four elements:

(1) defendant committed a felony violation of the federal drug laws (2) the violation was part of a continuing series of violations of the drug laws;

(3) the series of violations were undertaken by the defendant in concert with five or more other persons with respect to whom the defendant occupied a position of organizer, supervisor or any other position of management;

(4) the defendant obtained substantial income or resources from the continuing series of violations.

United States v. Ricks, 882 F.2d 885, 890-91 (4th Cir.1989), cert. denied, 493 U.S. 1047, 110 S.Ct. 846, 107 L.Ed.2d 841 (1990). McCoy contends there was not enough evidence proving that he occupied a supervisory position in relation to at least five other individuals. Specifically, McCoy claims that because five of his co-defendants were acquitted of conspiracy charges under Count Two of the indictment, there was no basis for convicting him of participation in a continuing criminal enterprise.

McCoy's claim that his acquitted co-defendants cannot be counted towards the five people needed to satisfy the third element of the Ricks test, is inconsistent with circuit precedent. In United States v. Rhodes, 779 F.2d 1019 (4th Cir.1985), cert. denied, 476 U.S. 1182, 106 S.Ct. 2916, 91 L.Ed.2d 545 (1986), we concluded that acquittals of some co-defendants on conspiracy charges does not prevent the jury from returning a conviction against one remaining conspirator. Id. at 1025; see also United States v. Thomas, 900 F.2d 37, 40 (4th Cir.1990) (noting that "a defendant cannot challenge his conviction merely because it is inconsistent with a jury's verdict of acquittal on another count"). Our holdings in Rhodes and Thomas are consistent with the plain language of 21 U.S.C. Sec. 848(c). Nothing in that provision suggests that the five people working under the accused's supervision must be convicted of an underlying conspiracy charge in order to be counted for Sec. 848 purposes.

Unable to insulate himself from a CCE conviction merely because his co-defendants were not convicted on conspiracy charges, McCoy next asserts that the government failed to present sufficient evidence that he supervised five people. As to the numerical requirement, "the Government need not prove 'that the five individuals were supervised and acted in concert at the same time, or even that [they] were collectively engaged in at least one specific offense.' " United States v. Johnson, 54 F.3d 1150, 1155 (4th Cir.1995) (quoting Ricks, 882 F.2d at 891). Even more important, for our purposes in this case, the government need not show that "the defendant ha[d] personal contact with the five persons because organizational authority and responsibility may be delegated." United States v. Butler, 885 F.2d 195, 200-01 (4th Cir.1989).

The Sixth Circuit's decision in United States v. Ward, 37 F.3d 243 (6th Cir.1994), cited by appellants' counsel, actually strengthens the case against McCoy. Although the Ward court reversed a CCE conviction on the ground that evidence of the defendant supervising more than three people did not exist, the legal principles applied in Ward are similar to those in...