779 F.2d 1019 (4th Cir. 1985), 84-5241, United States v. Rhodes

Docket Nº:84-5241, 84-5242.
Citation:779 F.2d 1019
Party Name:UNITED STATES of America, Appellee, v. James Alvin RHODES, a/k/a Mickey Rhodes, Appellant. UNITED STATES of America, Appellee, v. Garvey Martin CHEEK, Jr., Appellant.
Case Date:December 26, 1985
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 1019

779 F.2d 1019 (4th Cir. 1985)

UNITED STATES of America, Appellee,

v.

James Alvin RHODES, a/k/a Mickey Rhodes, Appellant.

UNITED STATES of America, Appellee,

v.

Garvey Martin CHEEK, Jr., Appellant.

Nos. 84-5241, 84-5242.

United States Court of Appeals, Fourth Circuit

December 26, 1985

Argued March 6, 1985.

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Thomas K. Maher, Thomas F. Loflin, III (Loflin & Loflin, Durham, N.C., Irvin B. Tucker, Blanchard, Tucker, Twiggs, Earl & Abrams, Raleigh, N.C., David S. Rudolf, Beskind & Rudolf, Durham, N.C., on brief), for appellants.

Max O. Cogburn, Jr., Asst. U.S. Atty. (Charles R. Brewer, U.S. Atty., Asheville, N.C., on brief), for appellee.

Before WIDENER, PHILLIPS and SNEEDEN, Circuit Judges.

WIDENER, Circuit Judge:

Garvey Martin Cheek and James Alvin "Mickey" Rhodes were convicted under 21 U.S.C. Sec. 848 and other statutes for engaging in a continuing criminal enterprise (CCE) and other offenses on the basis of their dealings in controlled substances. Cheek received a 75-year sentence without parole under Sec. 848, while Rhodes received a 50-year sentence without parole under that statute. Both received various other sentences. Cheek and Rhodes appeal their convictions on several grounds, but we find no reversible error and affirm.

Cheek and Rhodes were convicted after a jury found them guilty of several charges in a multicount indictment. Count 1 of the indictment charged that from August 1978 through April 1980 Cheek and Rhodes and others conspired together and with yet others to possess and distribute cocaine and marijuana in violation of 21 U.S.C. Secs. 841(a)(1), 846. Counts 4 and 5 charged that on or about November 22, 1979 Cheek, Rhodes and others unlawfully possessed with intent to distribute more than 1000 pounds of marijuana, and that they did distribute same in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Counts 6 and 7 of the indictment charged Cheek, Rhodes and others with an April 1980 unlawful possession with intent to distribute and with the distribution of greater than 1000 pounds of marijuana in violation of 21 U.S.C. Sec. 841(a)(1), 18 U.S.C. Sec. 2. In Counts 2 and 3, Cheek and others were charged with the unlawful possession with intent to distribute and the distribution of approximately four kilograms of cocaine in or about October 1979. Counts 8, 10, and 11 charged Cheek with separate Travel Act violations under 18 U.S.C. Sec. 1952, and Count 12 charged that Cheek engaged in a continuing criminal enterprise from October 1979 to April 1980 in violation of 21 U.S.C. Sec. 848. Count 16 of the indictment charged Rhodes with engaging in a continuing criminal enterprise from October 1978 to April 1980 in violation of 21 U.S.C. Sec. 848. Cheek was convicted on the charges in all eleven counts and received total sentences of 75 years on the felony

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violations other than for a continuing criminal enterprise, to run concurrently with a 75-year no parole sentence on the continuing criminal enterprise conviction. Rhodes was convicted of the charges in all six counts and received total sentences of forty-five years on the felony convictions other than for a continuing criminal enterprise, to run concurrently with a 50-year no parole sentence on the continuing criminal enterprise conviction.

No question is raised as to the sufficiency of the evidence to support any of the convictions except those of the continuing criminal enterprise under 21 U.S.C. Sec. 848.

Cheek's and Rhodes' convictions arose out of various illegal drug operations through which large quantities of cocaine and marijuana were transported from either Florida or South Carolina into the Western District of North Carolina. The evidence showed that both Cheek and Rhodes were involved in bringing controlled substances into North Carolina on several occasions. While the evidence regarding Cheek's and Rhodes' involvement in the smuggling operations overlaps to a certain extent, we will discuss separately the evidence as it relates to each.

CHEEK

Viewing 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), the record shows that Cheek was involved in several drug transactions during the relevant time period charged in the continuing criminal enterprise count. The evidence shows that during late October and early November 1979, Cheek at his residence in Perrine, Florida arranged for the purchase of four kilograms of cocaine from one Maynard Gonzalez, Jr. for a price of $208,000. Gonzalez let Cheek take possession of all four kilograms of the cocaine in exchange for payment of one-half of the purchase price. After paying $104,000 to Gonzalez, Cheek took possession of the cocaine in Florida. Cheek and Rocky Townsend, a witness for the government, loaded the cocaine into a car and drove to Wilkes County, North Carolina, where the cocaine was distributed to Shelton Wiles. Several weeks after Cheek and Townsend had delivered the cocaine to Wiles in North Carolina, Cheek called upon Townsend to deliver the balance of the cocaine purchase price to Gonzalez at a motel in Charlotte, North Carolina. Townsend complied and delivered the money to Gonzalez for Cheek.

The evidence shows that Cheek undertook this large cocaine transaction to make enough money to cover expenses on an upcoming marijuana transaction that was scheduled to occur around Thanksgiving of 1979. Government witness Jorge Felix Aragon testified that he and his brother, Fred Aragon, arranged to import 5000 pounds of marijuana from Columbia, South America into Florida and that they intended to sell the marijuana to Cheek, Rhodes, and an unnamed individual. Like the Aragons had done on previous marijuana importations, on the Thanksgiving deal they were responsible for obtaining the marijuana in Columbia and for the transportation and offloading of such in southern Florida. The record fairly shows that Cheek was responsible for making the arrangements to receive the marijuana from the offloaders and to transport it to a "stash house" for later distribution into North Carolina. Cheek directed two women, Dorothy Hodges and Peggy Jordan, to rent rooms at two motels in Homestead, Florida, where the marijuana would be received from the offloaders. Townsend, at Cheek's direction, accompanied Hodges and Jordan to two motels, and two rooms were rented. From the two motel rooms, the marijuana would be transported to the stash house which had been secured by Jorge Aragon. As planned, the offloaders drove the marijuana from the coast to the motel rooms, and several individuals who knew where the stash house was located, but who had no relationship with the offloaders, drove the marijuana to the stash house for unloading and weighing. Cheek, Aragon, and Duke Shew waited at the stash house and were responsible for weighing and numbering the bales of marijuana. Within a few days,

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the transfer process was completed and all but 1200 pounds of wet marijuana was taken from the stash house for distribution. Cheek, Aragon, and Dorothy Hodges soon thereafter flew into Charlotte, North Carolina, and went to Rhodes' house in North Wilkesboro, where they met Rocky Townsend who had driven a load of the wet marijuana out of Florida. Cheek and Aragon spread out the wet marijuana in Rhodes' garage and worked for a few days to dry it out. Thereafter, Aragon stayed in Wilkesboro waiting for Cheek and Rhodes to sell the marijuana from the Thanksgiving deal so that they would be able to pay Aragon with the proceeds. Shortly thereafter, however, Cheek arranged for Rocky Townsend to leave North Carolina and to drive down to Cheek's house in Florida to pay Aragon $500,000 for the marijuana. At Cheek's direction, Townsend drove to Cheek's house in Florida and paid Aragon $500,000 for the marijuana.

The evidence shows that Cheek was involved in another marijuana transaction with Jorge Aragon in the spring of 1980. Cheek accompanied Aragon to Barranquilla, Columbia in preparation for an upcoming deal. Through the Aragon brothers' Columbian connection, 10,000 pounds of marijuana would be airdropped to a yacht off the Florida Keys, unloaded at a house in Islamorada in the Keys, and distributed to Cheek, Rhodes, and unnamed "people up north." Fred Aragon arranged for the Islamorada house and instructed his brother Jorge to stay in the Florida Keys and monitor Coast Guard movement. Before the airdrop, Jorge Aragon contacted Cheek and told him that he needed more money for expenses on the Islamorada operation. Cheek contacted Shelton Wiles and told him to get someone to bring down more money to Florida for expenses. The next day, Cheek's wife flew down to Florida and gave Cheek $10,000. Cheek gave Aragon the money and directed Rocky Townsend to assist Aragon in monitoring Coast Guard activity. The airdrop was successful and the marijuana was unloaded at the Islamorada house. Cheek, Aragon, Townsend, and an unnamed Cuban weighed the marijuana, separated out the bales that were wet, and loaded the dry bales into cars. Townsend testified that he remembered loading the cars for Tony Sidden and his wife, Gloria Sidden, and Wayne Shepherd; and such testimony is consistent with Jorge Aragon's testimony to the effect that he recalled these three individuals were working for Cheek. When the marijuana had been weighed and loaded into cars, Townsend drove a carload of marijuana to Statesville, North Carolina, and Aragon went up to North Carolina to collect from Cheek and Rhodes for their respective purchases of 6500 and 1100 pounds of the Islamorada marijuana.

RHODES

The record shows that Rhodes was involved in several marijuana transactions during the relevant time period charged in the CCE count, October 1978 through...

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