U.S. v. Bulman

• Citation: 667 F.2d 1374
• Decision Date: 18 February 1982
• Docket Number: No. 80-5710,80-5710
• Parties: 9 Fed. R. Evid. Serv. 1425 UNITED STATES of America, Plaintiff-Appellee, v. Howard Kenneth BULMAN, Jr., L. C. Jones, a/k/a "L. C. Smith", Alex Howard, Jr., Robert Eugene Row, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1374

667 F.2d 1374

9 Fed. R. Evid. Serv. 1425

UNITED STATES of America, Plaintiff-Appellee, v. Howard Kenneth BULMAN, Jr., L. C. Jones, a/k/a "L. C Smith", Alex Howard, Jr., Robert Eugene Row Defendants-Appellants.

No. 80-5710.

United States Court of Appeals Eleventh Circuit.

Feb. 18, 1982.

Larry M. Roth, Rumberger, Kirk, Caldwell & Cabaniss, Orlando, Fla., for Bulman.

H. Jay Stevens, Asst. Fed. Public Def., Orlando, Fla., for Jones.

John M. Robertson (Court-appointed), Orlando, Fla., for Howard.

Bryan C. Hugo (Court-appointed), Longwood, Fla., for Row.

Robert A. Leventhal, Orlando, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before TUTTLE, HILL and JOHNSON, Circuit Judges.

JOHNSON, Circuit Judge:

Jack Rece, a convicted drug smuggler turned Drug Enforcement Agency (DEA) informant, met appellant Alex Howard, a prison acquaintance, by chance and indicated that he was again engaged in drug smuggling. Rece later received a telephone call from Howard and agreed to meet with him. At the meeting, held on May 10, 1979, Howard claimed to know people interested in contacting a pilot who would be willing to fly marijuana into the United States. Rece stated that he was intending, if he could secure adequate financing, to fly a DC-3 plane load of marijuana into this country. Resuming their discussion the next day, the two began exploring specific plans and financing for the proposed illegal importation. They continued their discussions at a meeting on May 16, now joined by, among others, DEA undercover agent Charles Fagan and appellants Robert E. Row and L. C. Jones. Following the May 16 meeting, all those attending but Jones flew to South Carolina to inspect Rece's proposed landing site. Defendant Jeff Lloyd joined the conspiracy on May 19 when he asked Rece and Fagan, at a meeting that included Row and Howard, for more time to obtain the funds necessary for purchasing the marijuana. Lloyd, accompanied by one "Kenny," appellant Howard K. Bulman, met Rece, Howard and Fagan again on May 21. The participants at that meeting discussed more operational and financial details of the proposed smuggling operation. "Kenny" (Bulman) inquired about the possibility of smuggling in three 5,000-pound loads of marijuana and stated that he would give Rece $20,000 in "up-front" money by noon on May 22. After receiving $12,000 at a meeting with Lloyd, Howard and Jones on May 23, Rece and Fagan, joined by Row, flew to South Carolina where Row was arrested. Following several telephone calls between DEA agents and appellants concerning arrangements for completing payment for the marijuana that supposedly had arrived, the remaining appellants were arrested on the 25th at a motel room in South Carolina. Howard, Jones, Bulman and Row were convicted below for conspiracy to import marijuana, in violation of 21 U.S.C.A. §§ 952(a) and 963; and for conspiracy to possess marijuana with intent to distribute, in violation of 21 U.S.C.A. §§ 841(a)(1) and 846. ¹ They appeal.

I. SUFFICIENCY OF THE EVIDENCE

Bulman and Jones argue that the evidence introduced at trial was insufficient for their conviction. Because each raises issues peculiar to his own case, we consider the arguments of each individually below. Common to the arguments each makes, however, is our standard of review. Our general standard of review concerning the sufficiency of the evidence is to determine whether, looking at the evidence in the light most favorable to the government, the jury necessarily must have entertained a reasonable doubt concerning the guilt of an appellant. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Miller, 664 F.2d 826, 828 (11th Cir. 1981). The former Fifth Circuit has elaborated on that standard in the particular context of conspiracy convictions, noting that we must find "substantial evidence" connecting an appellant to a conspiracy, United States v. Malatesta, 590 F.2d 1379, 1381 (5th Cir.) (en banc), cert. denied sub nom. United States v. Bertolotti, 440 U.S. 962, 99 S.Ct. 1508, 59 L.Ed.2d 77 (1979). ² In determining whether there was such evidence, the former Fifth Circuit has noted that mere association with persons involved in a criminal enterprise is insufficient to prove participation in a conspiracy, see, e.g., United States v. DeSimone, 660 F.2d 532-537 (5th Cir. 1981); United States v. Horton, 646 F.2d 181, 185 (5th Cir. 1981), and that mere presence at the scene of the crime is not enough to sustain a conspiracy conviction. See, e.g., DeSimone, supra, 660 F.2d at 537; United States v. Reyes, 595 F.2d 275, 280 (5th Cir. 1979). Rather, "we must be satisfied ... that these appellants had 'the deliberate, knowing, specific intent to join the conspiracy.' " DeSimone, supra, 660 F.2d at 537 (quoting United States v. Morado, 454 F.2d 167, 175 (5th Cir.), cert. denied, 406 U.S. 917, 92 S.Ct. 1767, 32 L.Ed.2d 116 (1972)).

A. Appellant Bulman's Arguments

Bulman raises several issues that depend ultimately upon the sufficiency of the evidence for his conviction. He asserts that the district court should have granted his motion for judgment of acquittal, that the evidence was insufficient to convict him either of conspiracy to import marijuana or of conspiracy to possess with intent to distribute and to distribute marijuana, and that the court should have instructed the jury to disregard statements referring to "Kenny." We reject all of his arguments.

The crux of Bulman's arguments is his assertion that the government never explicitly identified him as the "Kenny" who was present at the May 21 conspirators' meeting and so never linked him to the conspiracy. In particular, Bulman asserts that the government never identified him as the Kenny who was present at the May 21 meeting at which the participants discussed critical elements of the smuggling operation. ³ Substantial circumstantial evidence, however, identifies Bulman as Kenny. A DEA agent at trial identified Bulman as an individual he saw on May 21 outside the motel at which the conspirators, including Kenny, met. Kenny was the individual who agreed to obtain the money to pay for the marijuana; the money Rece and Fagan received on May 23 was in the envelope of a business for which Bulman was authorized to write checks. A telephone number at which Kenny could be reached, which appellant Howard gave a DEA undercover agent, was for a motel room rented in Bulman's name. Kenny advised a DEA agent on May 25 that he would fly to Columbia, South Carolina, that morning. Bulman arrived in Columbia later in the morning on the 25th. Finally, the agent who had talked to Kenny over the telephone identified Bulman as the man to whom he had talked on the telephone. ⁴ A jury, considering the above evidence, reasonably could conclude that Bulman and Kenny were the same person and that Bulman was a participant in the conspiracy to import marijuana. The district court did not err in denying the motion for judgment of acquittal or in refusing to instruct the jury to disregard references to Kenny in considering the evidence pertaining to Bulman.

Bulman also contends that, even if there was sufficient evidence to support a conviction for conspiracy to import marijuana, the evidence was insufficient to prove conspiracy to possess with intent to distribute and to distribute. There is no evidence, Bulman asserts, that he ever discussed distribution or that he was involved in arrangements to unload the plane. The very amount of the drug to be imported can, however, show intent to distribute. United States v. Perry, 480 F.2d 147, 148 (5th Cir. 1973). The size of the expected load, 5,000 pounds, and his question concerning the possibility of importing three such loads provided a jury with reasonable basis for concluding that Bulman was guilty of conspiracy to possess with intent to distribute.

B. Appellant Jones' Arguments

Jones' argument that there was insufficient evidence for his conviction rests largely on whether we uphold the ruling of the district court that the statements of coconspirators were inadmissible against him. We therefore begin by considering the admissibility of coconspirators' statements against Jones.

Federal Rule of Evidence 801(d)(2)(E) provides that a statement is not excludable as hearsay if offered against a party and made "by a coconspirator of the party during the course of and in furtherance of the conspiracy." The former Fifth Circuit in United States v. James, 590 F.2d 575 (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979), has explained how to apply that rule, holding that, if the party against whom the statement is introduced objects to the use of the evidence, the court should determine whether substantial evidence, independent of the statements to be introduced, shows the existence of a conspiracy to which the party belonged. In this case the trial court held a hearing to determine whether coconspirators' statements were admissible under James. The court ruled that they were admissible against all defendants but Jones. The government contests the correctness of the ruling concerning Jones. The trial court's determination is a finding of fact that we can overturn only if clearly erroneous. United States v. Perry, 624 F.2d 29, 30-31 (5th Cir. 1980).

The evidence of Jones' participation in the conspiracy is his presence at meetings on May 16 and 25 at which financial and operational details of the smuggling operation were discussed, his departure for South Carolina with several other defendants, his staying at rooms with them, and his travelling to a local airport with another defendant to pick up Lloyd and Bulman. Jones, stating that he never talked at a meeting, provided no money, was merely travelling north to Atlantic City, and only intended to show the co-defendant the way to the local airport, asserts that the...