U.S. v. Adamo

• Decision Date: 22 August 1984
• Docket Number: Nos. 82-3001 and 82-3009,s. 82-3001 and 82-3009
• Citation: 742 F.2d 927
• Parties: 16 Fed. R. Evid. Serv. 330 UNITED STATES of America, Plaintiff-Appellee, v. Mario ADAMO, Richard Marsico, Terry Freeman, Raymond Ripley, Jeffrey Linkous, Ectore Garcia, and Winthrop Hong, Defendants-Appellants. to 82-3014.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 927

742 F.2d 927

16 Fed. R. Evid. Serv. 330

UNITED STATES of America, Plaintiff-Appellee, v. Mario ADAMO, Richard Marsico, Terry Freeman, Raymond Ripley Jeffrey Linkous, Ectore Garcia, and Winthrop Hong Defendants-Appellants.

Nos. 82-3001 and 82-3009 to 82-3014.

United States Court of Appeals Sixth Circuit.

Argued Jan. 14, 1983.

Decided Aug. 22, 1984.

Leonard Yelsky (argued), Angelo F. Lonardo, Cleveland, Ohio, for defendant-appellant in No. 82-3001.

William E. Hunt (argued), Asst. U.S. Atty., Columbus, Ohio, for plaintiff-appellee.

Federick Jureck (argued), Cleveland, Ohio, for defendant-appellant in No. 82-3009.

Harold E. Wonnell (argued), Columbus, Ohio, for defendant-appellant in No. 82-3010.

Thomas M. Tyack & Associates Co. LPA (argued), Columbus, Ohio, for defendant-appellant in No. 82-3011.

David W. Douglas (argued), Columbus, Ohio, for defendant-appellant in No. 82-3012.

Francisco A. Garabis (argued), Columbus, Ohio, for defendant-appellant in No. 82-3013.

James K. Simakis (argued), Columbus, Ohio, for defendant-appellant in No. 82-3014.

Before JONES and WELLFORD, Circuit Judges, and MILES, District Judge. ^*

MILES, District Judge.

The present appeal arises out of a complex factual setting, yet poses legal questions which with one exception are neither novel nor unfamiliar. The Court has carefully scrutinized the entire record, and is quite familiar with all the facets of the prior proceedings. Because the analysis of each individual issue presented requires extended factual explanation, the usual detailed recitation of "facts" will not be indulged at the outset. Facts will be supplied throughout this opinion where such elaboration will be helpful in understanding the issues under consideration.

Pursuant to an investigation known as Operation Cufflink, a federal grand jury in the Southern District of Ohio, Eastern Division, returned a six count indictment in which ten defendants were named. The grand jury alleged in Count I that Richard Marsico, Ray Ripley, Jeffrey Linkous, Donald Voss, Dyana Kellner, Terry Freeman, Winthrop Hong, Ectore Garcia, Mario Adamo, David Calderwood, and "other persons known and unknown to the Grand Jury" engaged in a conspiracy in the Southern District of Ohio and elsewhere to unlawfully distribute cocaine and marijuana from on or about June 1976 to the date of the indictment, November 20, 1980. Richard Marsico and Jeffrey Linkous were charged in Count II with engaging in a continuing criminal enterprise in violation of Subchapter I of the Comprehensive Drug Abuse Prevention and Control Act of 1970 as codified at 21 U.S.C. Sec. 848. Count III charged Donald Voss with distribution of cocaine, and Count IV similarly charged Donald Voss and Dyana Kellner with actual distribution of cocaine. Jeffrey Linkous and Richard Marsico were charged in Count V with traveling in interstate commerce to promote, manage, or carry on an unlawful activity, i.e., a business enterprise involving the distribution of controlled substances in violation of 18 U.S.C. Secs. 2 and 1952(a)(3). In the final count of the indictment, Count VI, Jeffrey Linkous was charged with traveling in foreign commerce with the intent to and actual distribution of the proceeds of an unlawful activity in violation of 18 U.S.C. Sec. 1952(a)(1).

After a plethora of pretrial motions were filed by the parties, argued when necessary, and resolved by the trial judge, a trial was held which ultimately resulted in a mistrial for all participating defendants. ¹ Defendants Mario Adamo, Ray Ripley, Richard Marsico, Jeffrey Linkous, Terry Freeman, Winthrop Hong, and Ectore Garcia were tried together in a second trial in July of 1981. At the conclusion of that trial, the jury convicted Adamo, Garcia, Hong, Freeman, and Ripley of the conspiracy alleged in Count I, convicted Marsico and Linkous of the offenses charged in Counts II and V, and convicted Linkous of the offense alleged in Count VI. All seven defendants have appealed their convictions.

DISCUSSION

I. Motions for Judgments of Acquittal

The seven appellants contend that the trial court erred in denying their motions It is well established that a trial judge confronted with a Rule 29 motion must consider all of the evidence in a light most favorable to the government and grant the motion when it appears to the Court that the evidence is insufficient to sustain a conviction, e.g., Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Brim, 630 F.2d 1307, 1311 (8th Cir.1980), cert. denied, 452 U.S. 966, 101 S.Ct. 3121, 69 L.Ed.2d 980 (1981); United States v. Green, 548 F.2d 1261, 1266 (6th Cir.1977); United States v. Gaines, 353 F.2d 276, 278 (6th Cir.1965). The government must be given the benefit of all inferences which can reasonably be drawn from the evidence, Glasser v. United States, 315 U.S. at 80, 62 S.Ct. at 469; United States v. Green, 548 F.2d at 1266; United States v. Acree, 466 F.2d 1114, 1117 (10th Cir.1972), cert. denied, 410 U.S. 913, 93 S.Ct. 962, 35 L.Ed.2d 278 (1973); United States v. Collon, 426 F.2d 939, 942 (6th Cir.1970); even if the evidence is circumstantial, United States v. Prieur, 429 F.2d 1237, 1238 (6th Cir.1970). It is not necessary that the evidence exclude every reasonable hypothesis except that of guilt. Prieur, 429 F.2d at 1238. See, United States v. Luxenberg, 374 F.2d 241, 248 (6th Cir.1967). ²

for directed verdicts or, more properly, motions for judgments of acquittal under Rule 29 of the Federal Rules of Criminal Procedure. These motions were made at the conclusion of the government's case and were renewed prior to the Court instructing the jury.

A review of the record reveals that the trial judge correctly articulated the standard by which he must adjudicate Rule 29 motions. The record also reveals that he thoroughly examined the evidence before enunciating his considered opinion denying the motions. The sole question for this Court's consideration, therefore, is whether the trial judge properly applied the standard. Determination of this question involves application of the same standard invoked by trial courts, for "[i]n reviewing denial of a motion for judgment of acquittal, we consider the evidence as a whole, taken in the light most favorable to the Government, together with all legitimate inferences to be drawn therefrom, to determine whether a rational trier of fact could have found guilt beyond a reasonable doubt." United States v. Patterson, 644 F.2d 890, 893 (1st Cir.1981), (citing, among others, Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). Accord, United States v. Weed, 689 F.2d 752, 756 (7th Cir.1982); United States v. Craven, 478 F.2d 1329, 1333 (6th Cir.1973), cert. denied, 414 U.S. 866, 94 S.Ct. 54, 38 L.Ed.2d 85 (1973).

This Court is convinced that there is evidence to support the jury's finding of guilt. As to the conspiracy to distribute marijuana and cocaine in violation of 21 U.S.C. Sec. 846, as charged in Count I, there is substantial evidence against each defendant.

We need not indulge in an exhaustive recitation of the evidence contained in the entire trial transcript consisting of nineteen volumes exclusive of pre-trial and post-trial proceedings. Nevertheless, the Court notes that the government's evidence against these appellants demonstrated a well-organized, geographically and temporally extensive conspiracy to distribute cocaine. The government's evidence reveals that Adamo was, as a major importer of cocaine, the head of the conspiracy. Adamo supplied cocaine to Marsico who in turn supplied his distributors, including among others Ripley and Linkous. Linkous would, with the aid of Babcock and Hawley (unindicted co-conspirators turned informants), cut the cocaine and deliver it to numerous local distributors, including Garcia, Hong and Freeman. These transactions were, in effect, sales on consignment. Each member of the conspiracy was thus dependent on his source's indulgence in The government's evidence also tended to establish that the conspiracy was composed of energetic salesmen who, like young executives in a legitimate corporation, were not adverse to elbowing their ways "up the ladder" in quest of greater profits. Thus, there were times when a distributor would try to "leap-frog" over his immediate source of supply to cut out a middleman, especially if the most immediate source had been "cut off" by his source because of some failure relative to the consignment sale arrangement. Such instances demonstrated the single-minded pragmatism of the members of the conspiracy relative to the object of the conspiracy: to amass power and wealth through the distribution of cocaine.

allowing him the opportunity to sell his consignment to obtain the money to pay for the supply, and in turn dependent on sales or re-sales to others to provide the money needed to pay the supplier and obtain future consignments.

Though Linkous and Marsico were charged as co-conspirators in Count I, the trial judge correctly instructed the jury that Count I was a lesser included offense with respect to the offense charged against Linkous and Marsico in Count II of the indictment, and that the jury would only consider Count I with regards to either of those two defendants if the jury acquitted one or both of them of the offense alleged in Count II. Since the jury found Marsico and Linkous guilty of engaging in a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848, as charged in Count II, the jury did not return a conviction against either of these defendants as to Count I. The sufficiency of the evidence against Linkous and Marsico thus need be considered only with respect to the other counts in which they are named.

Counsel for Linkous claims that there is insufficient evidence to support the conviction on Count II because the evidence failed to show that Linkous occupied "a position of organizer, a...