779 F.2d 606 (11th Cir. 1986), 84-8671, United States v. Jenkins
|Docket Nº:||84-8671, 84-8809.|
|Citation:||779 F.2d 606|
|Party Name:||UNITED STATES of America, Plaintiff-Appellee, v. Rubiett JENKINS, Louis Quarterman, and Virginia Ellis Prather, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Wendell McTEER, Sr., Defendant-Appellant.|
|Case Date:||January 10, 1986|
|Court:||United States Courts of Appeals, Court of Appeals for the Eleventh Circuit|
Bruce S. Harvey, Atlanta, Ga. (Court-appointed), for Quarterman.
Glenn Zell, Atlanta, Ga., for Prather.
Frank L. Derrickson, Atlanta, Ga., for Jenkins.
Janet F. King, Robyn C. Mitchell, Asst. U.S. Attys., Atlanta, Ga., for plaintiff-appellee U.S.
Joe M. Harris, Atlanta, Ga. (Court-appointed), for McTeer.
Appeals from the United States District Court for the Northern District of Georgia.
Before RONEY and ANDERSON, Circuit Judges, and MORGAN, Senior Circuit Judge.
MORGAN, Senior Circuit Judge:
The four appellants in this case appeal their respective convictions on one count each of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. Sec. 846. They challenge numerous aspects of the proceedings below, asserting, inter alia, insufficiency of the evidence to support their convictions, and a fatal variance between the conspiracy charged in the indictment and the conspiracy proved at trial. We have jurisdiction of these direct appeals from criminal convictions. 28 U.S.C. Sec. 1291.
GENERAL FACTUAL OVERVIEW
This case arises from a two-count indictment returned by a grand jury in the Northern District of Georgia naming the four appellants and fourteen others as participants in a drug scheme involving cocaine. Count one alleged that beginning as of January, 1976, and continuing up to December, 1982, the defendants conspired in the Northern District and "elsewhere" to willfully possess with intent to distribute cocaine in violation of 21 U.S.C. Sec. 846. Count two charged that on an unknown date in June of 1980, the defendants possessed with intent to distribute a quantity of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Although the indictment contained little more than these generalized allegations, a subsequent bill of particulars provided by the government flushed out these contentions in some detail. [Rec. 648-665]. 1 Only eight of the defendants actually went to trial, and of those defendants, appellants Quarterman, Prather, McTeer and Jenkins appeal their convictions on count one here. Two of the remaining four co-defendants were acquitted on the conspiracy charges, and the lower court granted Rule 29 motions as to all defendants on the substantive count.
The facts adduced at trial, when viewed in a light most favorable to the prosecution, see, e.g., United States v. Dekle, 768 F.2d 1257, 1259 (11th Cir.1985), established a far reaching drug scheme involving many of the named defendants over a time span of nearly six years and stretching across much of the eastern seaboard. It would be fair to characterize the proof as focusing upon defendants James C. Murphy, who was a fugitive at the time of trial, and Robert Ingram, who testified for the prosecution at trial, and their dealings and relationships with the remaining defendants in the case. The government presented what
might be described as a "dry" drug conspiracy case--so described because of the lack of physical evidence of drugs or drug activities, except for the testimony of various members of the trafficking network implicating their former associates. Much of that testimony was presented in generalities concerning the defendants' past drug dealings, with the witnesses often being unable to pinpoint times, dates or the exact activities undertaken by particular individuals.
Nevertheless, viewed with a favorable eye, the evidence at trial established a cocaine distribution operation centered around Murphy and Ingram. In the middle 1970's, they began to come to Atlanta, Georgia from their home location in Jacksonville, Florida to distribute cocaine. Appellant Quarterman eventually moved to Atlanta joining their distribution efforts, and the three became known as a loose association called "The Florida Boys," emanating from a barbeque business partially owned by Murphy and Quarterman called the "Florida Boys Barbeque." Quarterman's residence in Atlanta, "the ranch," was a central meeting place that many of the defendants frequented and where cocaine was stored. Jacquelyn Wells, originally a co-defendant who plead and testified at trial, became a major link in the operation during the late 1970's. As one of Murphy's paramours, she stored much of Murphy's cocaine at her residence, which became a distribution point for those drugs in the Atlanta area.
The cocaine apparently came from at least two sources during this time period. Initially, Murphy and Ingram obtained quantities from Miami, through appellant Virginia "Moms" Prather. Murphy was accompanied on occasion by Ivory Pool on his drug purchasing trips to Miami, with Pool functioning as his driver. During this time period, appellant McTeer also became involved with the Florida boys, to the extent that he transported sausages to the barbeque establishments and participated in the distribution of cocaine. A second source of cocaine came through Philadelphia and an individual by the name of "Ali."
Based upon this background, each of the appellants in this case raises two primary contentions on appeal. First, each of the appellants contends that the evidence against them was insufficient to support the jury's finding of guilt on the conspiracy charge. Except for the sufficiency of the evidence argument as to appellant Jenkins, we find no merit to any of these contentions. As an alternative argument, each of the appellants asserts some form of a variance issue--that the conspiracy established at trial, if proven at all, was in fact a different conspiracy than that alleged in the indictment. Based upon that contention, the appellants urge varying rationale in support of the same result, reversals of their convictions.
THE SUFFICIENCY OF THE EVIDENCE
All of the appellants challenge the sufficiency of the evidence to support their convictions for conspiracy. Numerous guidelines aid our task of appraising the evidence adduced at trial, as set forth in detail in United States v. Cotton, 770 F.2d 940 (11th Cir.1985). As that court noted:
To sustain a conviction in a federal drug conspiracy case the government bears the burden of proving beyond a reasonable doubt that a conspiracy existed, that the defendant knew of it, and voluntarily joined in it. United States v. Lippner, 676 F.2d 456, 466 (11th Cir.1982). With regard to intent, the government must prove beyond a reasonable doubt that the defendant had a deliberate, knowing, and specific intent to join the conspiracy. United States v. DeSimone, 660 F.2d 532, 537 (5th Cir. Unit B 1981), cert. denied, 455 U.S. 1027, 102 S.Ct. 1732, 72 L.Ed.2d 149 (1982). While circumstantial evidence may be used in proving a conspiracy, more than mere presence at the scene of the crime must be shown. United States v. Pintado, 715 F.2d 1501, 1504 (11th Cir.1983).
Id. at 944. Applying these principles to the record before us, allowing all reasonable inferences for the government, see, e.g., United States v. Carter, 760 F.2d 1568, 1582 (11th Cir.1985); United States v. Payne, 750 F.2d 844, 855-56 (11th Cir.1985), we find that except as to appellant Jenkins, a reasonable trier of fact could find that the evidence presented established the appellants' guilt of conspiracy beyond a reasonable doubt. We need not recount all of the evidence against the appellants, as the evidence adduced at trial clearly would allow for the jury to find a conspiracy as generally set forth above. Rather, addressing the appellants seriatim, it is sufficient to point out some of the specific evidence presented at trial as to each appellant and the arguments made in relation thereto.
Quarterman essentially argues that the evidence adduced as to him proved only his mere association with others involved in the conspiracy and his presence in the general area of the offense. This contention is simply not supported by the record. As set forth below, the testimony presented at trial, if believed, established Quarterman's knowledge and active participation in the conspiracy to distribute cocaine.
Robert Ingram testified at trial that shortly after he and Murphy began to distribute cocaine in Atlanta, Quarterman moved to the area and the three of them began to distribute cocaine. [Tr. 33]. Later, approximately sometime in 1979, Ingram started receiving additional quantities of cocaine from a supplier in Philadelphia, and he, Quarterman, and an individual named Joe Perry would distribute those drugs in the Atlanta area as well. [Tr. 45]. On one occasion, Ingram recounted that Quarterman gave him three to five thousand dollars to purchase cocaine in Philadelphia. [Tr. 35]. Throughout the late 1970's, Ingram's associates in his drug enterprises remained basically the same, although individuals were added along the way, and the cocaine that was brought into Atlanta was sometimes stored at Quarterman's residence, "the ranch." [Tr. 36, 67]. Ingram also clearly testified that after 1980, a definite point of reference for him due to his temporary incarceration during that year, the cocaine distribution group still included Quarterman. [Tr. 67].
Jacquelyn Wells testified at trial as to her involvement in the distribution ring, noting that she often stored cocaine at her home and acted as the distributor to those who sold cocaine for Murphy. [Tr. 210-11]. She identified Quarterman, or "Ali-Babba" as he was also known, as one of the Florida boys...
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