U.S. v. Grubbs, s. 84-5230

• Decision Date: 27 September 1985
• Docket Number: Nos. 84-5230,s. 84-5230
• Citation: 773 F.2d 599
• Parties: UNITED STATES of America, Appellee, v. James William GRUBBS, Appellant. UNITED STATES of America, Appellee, v. Charles Shepard WITHEY, III, Appellant. UNITED STATES of America, Appellee, v. Norman Lee LOTTERER, Appellant. (L), 84-5236 and 84-5238.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 599

773 F.2d 599

UNITED STATES of America, Appellee, v. James William GRUBBS, Appellant.

UNITED STATES of America, Appellee, v. Charles Shepard WITHEY, III, Appellant.

UNITED STATES of America, Appellee, v. Norman Lee LOTTERER, Appellant.

Nos. 84-5230(L), 84-5236 and 84-5238.

United States Court of Appeals, Fourth Circuit.

Argued May 10, 1985.

Decided Sept. 27, 1985.

J. Kevin Holmes, David Pearlman, Charleston, S.C., Michael Cox, Asst. Federal Public Defender, Columbia, S.C., David McCann, Charleston, S.C. (David A. Hoines, Fort Lauderdale, Fla., Steinberg, Levkoff, Spitz & Goldberg, Charleston, S.C., on brief), for appellant.

Dale L. DuTremble, Asst. U.S. Atty., Charleston, S.C. (Henry Dargan McMaster, U.S. Atty., Columbia, S.C., on brief), for appellee.

Before CHAPMAN and WILKINSON, Circuit Judges, and TURK, Chief United States District Judge for the Western District of Virginia, sitting by designation.

WILKINSON, Circuit Judge:

Appellants Norman Lee Lotterer, Charles Shepard Withey, III, and James William Grubbs were each convicted of four offenses following a jury trial: (1) conspiracy to import marijuana, in violation of 21 U.S.C. Sec. 963; (2) conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. Secs. 952(a), 960 and 18 U.S.C. Sec. 2; and (4) possession with intent to distribute marijuana, in violation of 21 U.S.C. Sec. 841(a)(1), (b)(6) and 18 U.S.C. Sec. 2. Finding no error, we affirm.

Appellants dispute both their knowledge of marijuana on board their vessel and their intent to distribute that cargo. We hold that clever concealment of illegal substances will not preclude a finding that defendants knew of their cargo when circumstances surrounding the incident suggest their awareness of illegal activity. Moreover, a finding that co-conspirators intend to distribute their cargo is permissible where they have imported a large quantity of a valuable, illegal substance without plans to turn it over to others for distribution.

I

Appellants were arrested on November 24, 1983 after 86 bales of marijuana, weighing approximately 3000 pounds, were discovered in two void areas of a vessel manned by appellants, the Maxima. At the time of its seizure, the Maxima was off the coast of Charleston, South Carolina. The 60-foot vessel is registered in the Turks and Caicos Islands and owned by a corporation of the Islands, the World Wide Salvage Company.

Appellant Lotterer had the longest association with the vessel, from at least October, 1982, when he was hired by World Wide Salvage. Receipts entered into evidence show that World Wide Salvage purchased lumber, rubber fuel bladders, and carpet in the spring of 1983. Lotterer personally acknowledged receipt of the carpet, purchased by his girlfriend. Grubbs joined Lotterer in July, 1983 in Puerto Rico, where the Maxima received extensive repairs at the Isletta Marina. A repair bill of $2,821.17 was submitted to Lotterer, with both Lotterer's and Grubbs' name on attached receipts.

Appellant Withey joined the crew of the Maxima during the last week of October, 1983, when the vessel sailed from St. Thomas to the U.S. Naval Base in Guantanamo Bay, Cuba to retrieve items lost by the Maxima when rescued by the Coast Guard in heavy seas in August, 1982. The vessel returned to St. Thomas, where it remained until November 17, 1983. On that date it left for Charleston, South Carolina with the three appellants on board. Appellant Withey was apparently a replacement for Lotterer's girlfriend, who was unable to make the trip.

On November 24, 1983, at approximately 3:30 a.m., the Coast Guard cutter Cape Knox made radar contact with the Maxima nine miles off the South Carolina coast. About 500 yards from the Maxima, the Cape Knox beamed its search lights, and requested information from the Maxima crew. Lotterer correctly gave his identity, the name of the vessel and its last port of call. He stated that the Maxima was sailing to Charleston for repair work. No other vessel was in the vicinity.

Five members of the Coast Guard boarded the Maxima at 4:49 a.m. and searched the vessel for approximately 30 minutes. They found no evidence of contraband, but did notice a mismatched piece of paneling in the galley area. After keeping the Maxima under radar surveillance, the Cape Knox crew boarded the Maxima a second time at 10:30 a.m. and conducted a three hour non-destructive search for contraband. At the end of this boarding, a measurement of the vessel disclosed a six-foot discrepancy, later identified as two three-foot void areas, one behind the mess deck bulkhead and the other in front of the berthing area bulkhead. The Cape Knox towed the Maxima to the U.S. Coast Guard Base in Charleston.

At the base, 86 bales of marijuana, worth approximately 1 1/2 million dollars, were discovered in the void areas. A Jamaican dollar bill was attached to each bale of the high-grade Jamaican sensimilla marijuana. The void areas were constructed of plywood and covered with other lumber. The berthing area void contained two rubber fuel bladders filled with diesel fuel on which the bales rested, apparently in an attempt to mask the odor of the contents. The berthing area bulkhead was carpeted.

A navigation chart seized from the wheelhouse showed a course leading to St. Helena Sound, approximately 35-45 miles south of Charleston, the crew's stated destination. Also seized were various papers, documents, receipts and written materials, along with the vessel's radios. Among these items was a November 1983 copy of High Times, described in testimony by a Drug Enforcement Agency agent as a magazine "geared toward the drug cult." A centerfold and a major article in the issue featured sensimilla, and a chart in the magazine showed the current street value of Jamaican sensimilla.

II

Lotterer, Withey and Grubbs contend chiefly that the evidence was insufficient to sustain their convictions. In reviewing a jury verdict on appeal we must examine the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Jones, 735 F.2d 785, 790 (4th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 297, 83 L.Ed.2d 232, cert. denied sub nom. Neil v. United States, --- U.S. ----, 105 S.Ct. 339, 83 L.Ed.2d 274 (1984). A decision to overturn a jury verdict for want of substantial evidence must be "confined to cases where the prosecution's failure is clear." Burks v. United States, 437 U.S. 1, 17, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). Viewing the matters in this light, we believe that the jury had before it sufficient evidence to convict all defendants on all counts.

A.

Appellants contend they had no knowledge that the well-hidden marijuana was aboard the Maxima. Knowledge is, of course, an essential element of the crimes for which appellants were convicted. United States v. Bodden, 736 F.2d 142, 145 (4th Cir.1984). It may be shown by circumstantial evidence. Glasser, 315 U.S. at 80, 62 S.Ct. at 469.

In United States v. Alfrey, 620 F.2d 551 (5th Cir.), cert. denied, 449 U.S. 938, 101 S.Ct. 337, 66 L.Ed.2d 160 (1980), the Fifth Circuit allowed knowledge and participation in an importation conspiracy to be inferred from a combination of three factors: the probable length of the voyage, the large quantity of marijuana, and the close relationship of those on board. Id. at 556. Here, the Alfrey factors are present in abundance: the voyage lasted one week, 1 1/2 tons of marijuana were on board, and appellants had prior relationships that included at least one other voyage together and previous business association. Moreover, the small size of the crew aboard the Maxima necessitated close contact.

Whether the Alfrey factors alone would support a conviction depends simply on the strength of the inferences to be drawn from their existence in each case. We need not rely solely on the Alfrey factors where other evidence is present. In Bodden, the court found additional factors--the visibility and odor of the contraband and the fact that the boat rode low in the water--sufficient to sustain the conviction. Here, as in Bodden, we find other evidence from which the necessary elements of the crimes can be inferred.

Appellant Lotterer was on the Maxima both before and after its voyage to Isletta Marina. Prior to the voyage, the evidence suggests, he had purchased lumber, carpet, and rubber fuel bladders. All of these items were part of the void areas in which the marijuana was discovered. Grubbs joined Lotterer in Puerto Rico, and both of their names appeared on receipts from the marina during that period when the Maxima was undergoing extensive repairs. A permissible inference is that Grubbs and Lotterer used the available materials to construct the void areas during or after their stay at the marina. Even if Lotterer built the areas before Grubbs' arrival, the jury was entitled to infer that Grubbs -- who spent a significant amount of time with Lotterer on the Maxima -- had knowledge of what was afoot. The government also introduced into evidence fourteen business cards of the Isletta Marina found on appellant Withey, establishing that he had at least some connection with the marina.

All three appellants were on the Maxima when it made its October, 1983 trip to the U.S. Naval Base in Guantanamo Bay, Cuba shortly before its voyage north. This trip provided an easy opportunity for the trio to travel to Jamaica and pick up the marijuana, and the jury could reasonably infer that they did so. Jamaica is 150 miles from Cuba. The marijuana found on board the Maxima was not only Jamaican (which could presumably be grown in other places) but also had a Jamaican dollar bill attached to each bale. There is no dispute that all three appellants were on the Maxima during this period and each would have known about any trip to Jamaica to pick up the valuable cargo.

We also note that the jury was entitled to give...