U.S. v. Barnes

• Decision Date: 25 October 1984
• Docket Number: No. 83-5300,83-5300
• Citation: 747 F.2d 246
• Parties: UNITED STATES of America, Appellee, v. Billy Harold BARNES, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 246

747 F.2d 246

UNITED STATES of America, Appellee, v. Billy Harold BARNES, Appellant.

No. 83-5300.

United States Court of Appeals Fourth Circuit.

Argued June 6, 1984.

Decided Oct. 25, 1984.

Douglas E. Kingsbery, Raleigh, N.C. (Tharrington, Smith & Hargrove, Raleigh, N.C., on brief) for appellant.

Sidney M. Glazer, Atty., Dept. of Justice, Washington, D.C. (Samuel T. Currin, U.S. Atty., S. Johnson Howard, Asst. U.S. Atty., Raleigh, N.C., on brief) for appellee.

Before SPROUSE and CHAPMAN, Circuit Judges, and HALLANAN, United States District Judge for the Southern District of West Virginia, sitting by designation.

SPROUSE, Circuit Judge:

Billy Harold Barnes appeals his conviction of conspiracy to falsely identify and market 6,917 pounds of tobacco in violation of 18 U.S.C. Sec. 371. He contends that there was insufficient evidence to convict him, that the jury viewed prejudicial material that was not in evidence, and that the trial court erred in refusing to allow him to present evidence tending to establish the existence of an illegal wiretap. Finding that the jury impermissibly viewed exhibits that were not in evidence, we reverse.

Barnes is a tobacco buyer in Dunn, North Carolina. He was convicted of conspiring with Walter L. Williamson and others to sell illegally tobacco that Williamson had grown in excess of his allotment. In October 1981, Barnes visited Williamson, who, together with his wife, owned and operated a large tobacco farm in adjacent Wilson County. During this visit Williamson asked Barnes if he could "move or sell or take care of" some excess tobacco which Williamson had grown that year--indicating that the amount involved was about 5,000 to 6,000 pounds. Barnes replied that he would be back in touch with Williamson with an answer, and a day or two later told him he could take care of the excess tobacco and would pay him fifty-five cents a pound for it. Williamson agreed, with the understanding that Barnes would later advise him when and where to deliver the tobacco. Barnes' son, Jeff, later came to the Williamson farm with information that the tobacco should be delivered to the New Dunn Warehouse in Dunn, North Carolina. Williamson replied that the tobacco was not yet ready for marketing. Barnes, Sr., the appellant, telephoned Williamson two days later inquiring whether he was still interested in moving the tobacco. Williamson said he was, but they fixed no time for delivery. That same night Williamson telephoned Barnes, Sr., who instructed him to have the tobacco in Dunn on Saturday morning, October 24, 1981, at 9:30 and that "Jeff [Barnes] or myself one will have to go with the tobacco. If not, they will not unload it."

Pursuant to this agreement, Jeff Barnes and Walter Williamson, Jr., met early on the designated Saturday and together drove a truck containing thirty-five "sheets" of tobacco to the New Dunn Warehouse in Dunn, Chatham County, where it was unloaded, weighed, and placed in the warehouse. The Williamson son did not display a tobacco marketing card and he was not given the customary sale bill. The New Dunn Warehouse was not designated on any of the Williamsons' marketing cards and, in fact, the tobacco was marked with tags from other warehouses that were designated on the Williamsons' marketing card. The tobacco weighed 6,917 pounds and was later sold at the New Dunn Warehouse for $10,961.99 on marketing cards of R.D. Lee Farms, Inc. ^* A short time later, Barnes, Sr., visited Williamson, Sr., again and paid him $3,800 in cash, their agreed price of fifty-five cents per pound.

The manner in which the evidence against Barnes was gathered forms the core of much of the dispute underlying this appeal. Most, if not all, of this evidence was developed prior to the contracted sale of Williamson's excess tobacco and was generated by the Williamsons' domestic problems.

During the time period encompassing the Williamson-Barnes tobacco transaction, Williamson and his wife, Retha Williamson, were experiencing marital difficulties. The loyalties of the Williamsons' two children apparently were divided. The son, Walter, Jr., sided with his father, and a married daughter, Kathy Ganskop, who lives at another house on the farm, sided with her mother. Retha Williamson placed a wiretap on the Williamsons' telephone and recorded the conversations between Williamson and Barnes. She advised her daughter of the Barnes/Williamson telephone conversation, informing her that she was suspicious that the two men might be in the process of illegally selling tobacco. Ganskop observed the sons of the two men loading the tobacco and followed the truck that Jeff Barnes and Walter Williamson, Jr., drove to the New Dunn Warehouse. The following Monday, she returned to the warehouse and found the tobacco that had been delivered from her parents' farm. She then disclosed the information she had gathered to an investigator for the Department of Agriculture.

Billy Harold Barnes, Jeff Barnes and R.D. Lee Farms, Inc., were indicted on two counts for falsely identifying and marketing tobacco and for conspiring to falsely identify and market it in violation of 18 U.S.C. Secs. 1001 and 371. Walter Williamson, Sr., was named as an unindicted co- conspirator. He pled guilty to the conspiracy charge pursuant to a plea bargain and testified as the principal government witness. As provided in the plea bargain, no charge was brought against his son Walter, Jr., who likewise testified as a government witness. Billy Harold Barnes, Jeff Barnes and R.D. Lee Farms, Inc. were tried by a jury. The trial court granted a motion acquitting Jeff Barnes at the conclusion of the government case. The jury acquitted R.D. Lee Farms, Inc. Billy Harold Barnes was found not guilty of the substantive offense, but guilty of the charged conspiracy.

We agree with the government that we would be required to affirm the jury verdict if the only question was the sufficiency of the evidence. In considering the sufficiency of the evidence, we must sustain the judgment based on a jury verdict if there is substantial evidence, viewed in the light most favorable to the government, to uphold the jury's decision. Burks v. United States, 437 U.S. 1, 17, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978); Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). Barnes argues that the evidence was insufficient to convict him because the government proved only an agreement between Barnes and Williamson--not an illegal agreement.

It is, of course, not necessary to prove the existence of an illegal agreement by direct evidence. Rather, a common purpose and plan may be inferred from all the circumstances. Glasser, supra; United States v. Beecroft, 608 F.2d 753 (9th Cir.1979); United States v. Dominguez, 604 F.2d 304 (4th Cir.1979), cert. denied, 444 U.S. 1014, 100 S.Ct. 664, 62 L.Ed.2d 644 (1980); United States v. Evans, 572 F.2d 455 (5th Cir.1978); United States v. Lowry, 456 F.2d 341 (5th Cir.1972); United States v. Morado, 454 F.2d 167 (5th Cir.1972); United States v. Godel, 361 F.2d 21 (4th Cir.1966). Moreover, the government need not establish that each conspirator had knowledge of all phases and details of the conspiracy, but only that the defendant participated in the conspiracy with knowledge of the essential nature of the plan. Blumenthal v. United States, 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154 (1947).

It is true that Williamson never, by express words, asked Barnes to sell his surplus tobacco in violation of the law and regulations controlling the sale of tobacco. There was evidence, however, from which the jury could infer that illicit purpose: Williamson asked Barnes to "move or sell or take care of" tobacco which he identified as in excess of his allotment; the two men thereafter engaged in at least two vaguely phrased telephone conversations agreeing to sell the tobacco by procedures which were facially unorthodox; the younger Barnes and Williamson delivered the tobacco, without a receipt or marketing card, to a warehouse where Williamson could not legally sell tobacco; both Williamson...