U.S. v. Roberts

• Decision Date: 24 April 1989
• Docket Number: 88-5089 and 88-5090,Nos. 88-5087,s. 88-5087
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Ellwood ROBERTS, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ernest Delano THOMPSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Thurman Carroll MOTT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 95

881 F.2d 95

UNITED STATES of America, Plaintiff-Appellee, v. William Ellwood ROBERTS, Jr., Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Ernest Delano THOMPSON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Thurman Carroll MOTT, Defendant-Appellant.

Nos. 88-5087, 88-5089 and 88-5090.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 13, 1989.

Decided April 24, 1989.

Sa'ad El-Amin (El-Amin & Associates, on brief), Arnold Reginald Henderson, V (Wilder, Gregory & Martin, Richmond, Va., on brief), Gerald Bruce Lee, Alexandria, Va. (James E. McCollum, Jr., College Park, Md., Cohen, Dunn & Sinclair, P.C., on brief, Alexandria, Va.), for defendants-appellants.

N. George Metcalf, Asst. U.S. Atty., Richmond, Va., (Henry E. Hudson, U.S. Atty., Alexandria, Va., David T. Maguire, Asst. U.S. Atty., on brief), for plaintiff-appellee.

Before WIDENER and CHAPMAN, Circuit Judges, and HENDERSON, United States District Judge for the District of South Carolina, sitting by designation.

CHAPMAN, Circuit Judge:

William Ellwood Roberts, Jr., Ernest Delano Thompson and Thurmon Carroll Mott were convicted by a jury of conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. Sec. 846, possession with intent to distribute marijuana in violation of 21 U.S.C. Sec. 841(a)(1), and travel in interstate commerce to facilitate an unlawful activity in violation of 18 U.S.C. Sec. 1952. Thompson was convicted of seven counts of using a communication facility to cause the possession of marijuana with intent to distribute in violation of 21 U.S.C. Sec. 843(b). Thompson was separately charged in Count Two with possession with intent to distribute 7 kilograms. He was convicted and he does not appeal this conviction. Mott appeals his conspiracy conviction, but Roberts and Thompson do not. All appellants challenge their conviction of possession with intent to distribute more than 100 kilograms of marijuana, claiming that if they did have possession of marijuana it did not exceed 100 kilograms.

Mott appeals the district court's refusal to grant him a severance. All claim error by the court in failing to deliver to defense counsel a confidential DEA file on an informant Mitchell Tyree. The appellants claim error by the district court at the sentencing stage in relying upon uncorroborated allegations of an informant, in denying Roberts' constitutional right of confrontation, in fining Thompson $1,000,000 without articulating its reasons for departing from the Fine Table set forth in the Federal Sentencing Guidelines in Sec. 5E4.2, and in allegedly imposing a large fine upon Roberts because of the exercise of his Fifth Amendment privilege against self incrimination.

We affirm all of the convictions and each sentence imposed.

I

This was a reverse sting operation in which the government agents, who had come into possession of a large quantity of marijuana, wished to induce large marijuana dealers to buy the marijuana and take possession of it so they might be prosecuted. Mitchell "Peavine" Tyree was an undercover informant and was used by DEA Agent Burroughs to seek out individuals to buy large quantities of the marijuana. Tyree contacted appellant Thompson, and after numerous calls and conversations, he arranged for Thompson to meet DEA Agent Burroughs and other DEA agents posing as large smugglers of marijuana. Thompson was offered a commission on any sales that he might arrange, and he was given 7 kilos of marijuana as a sample. This is the basis for the charge contained in Count Two. Burroughs and Thompson worked out a means of communicating by using Thompson's digital electronic pager and various pay telephones. A number of telephone calls were subsequently recorded, and a proposed sale of 2,000 pounds of marijuana was arranged for December 2, 1987 at a price of $325 per pound. To facilitate the proposed sale, the DEA agents used a farm in Powhatan County, Virginia where they had a mobile home, a rental truck containing 2,000 pounds of marijuana and audiovideo tape recording equipment to film the transaction.

Thompson advised Burroughs that the customers were coming from Washington, D.C. and that he would meet them at approximately 5:00 p.m. Agent Burroughs met Thompson at a truck plaza on Route 360. Thompson got into Burroughs' automobile and they were followed by a pickup truck. Appellant Mott was driving the pickup truck and appellant Roberts was in the passenger seat. The pickup truck had oversized springs capable of carrying a heavy load and a camper shell with covered windows was over the bed of the pickup truck.

At the farm the DEA truck was parked next to the mobile home, and upon arrival the pickup truck was directed to back up tailgate to tailgate, to the DEA truck to facilitate transfer of the bales of marijuana. This was also for the purpose of bringing the trucks and the parties within the line of vision of the hidden video camera. Roberts got out of the pickup truck carrying a briefcase and a box. He handed the briefcase to Mott and the box to Thompson. He then asked to see and examine the load of marijuana. He climbed into the DEA truck and looked around, but before he could test any of the marijuana, the DEA agents directed him into the mobile home in order that the agents could see his money and the camera could better photograph the transaction. Roberts took the briefcase from Mott and went with Thompson into the mobile home. He sat down at a table and opened the briefcase which contained a large quantity of currency. Then he opened the box and brought out another briefcase which also contained currency. He stated that he was unsure of the total and that he would have to count the bills. This took some time and when he had finished, he announced that there was $350,000 present. A later counting by the agents showed the correct total to be $372,470.

After the money was counted, a calculator was produced and it was determined that the amount would buy 966 pounds of marijuana, allowing a five percent overage for the bulk of the burlap, which enclosed the bales of marijuana. Roberts agreed to the calculation and it was further agreed that in addition to the 966 pounds, the purchasers would receive the next largest bale of marijuana. Roberts stated that he would keep the money with him and the two briefcases were put into the cab of the pickup truck.

Roberts again climbed into the back of the DEA truck and began to examine the marijuana. He took a sample of the marijuana, rubbed it, and requested cigarette paper to smoke the sample. After this test smoke, he declared the marijuana to be "righteous." At this point Roberts began to move around the bed of the DEA truck examining and selecting bales of marijuana. Appellant Thompson was furnished a pencil and paper and recorded the bale numbers and weight of the bales selected. Bale No. 3 was selected, weighed and placed in the bed of the pickup truck. This bale weighed 61 pounds. Bale No. 120 was then selected, weighed and placed in the bed of the pickup truck. Bale 120 weighed 59 pounds. Roberts then moved bales 47, 22 and 28 to the tailgate area of the DEA truck for weighing. Bale 47 was placed on the scale and weighed 69 pounds. At this point the DEA agents decided to bring the matter to a conclusion and arrested Roberts, Thompson and Mott. Bales 22 and 28 weighed 61 pounds and 62 pounds, respectively. The total weight of the five bales that had been selected and separated for weighing and transfer to the pickup truck was 312 pounds (141.9 kilograms). The arrests were made before Roberts had selected and weighed all of the bales to be purchased and also before any payment was made. The DEA agents testified that they were planning to use the same mobile home and the same truck load of marijuana at another location on the same evening, therefore, they made the arrests earlier than they would normally prefer.

II

Appellants contest their convictions under Count Three which charged possession with intent to distribute more than 100 kilograms (220 pounds) of marijuana in violation of 21 U.S.C. Sec. 841(a)(1) and the aiding and abetting statute, 18 U.S.C. Sec. 2. They contend that they never had either actual or constructive possession of any of the marijuana; and even if they possessed bales No. 3 and No. 20, which had been transferred into their pickup truck, this would only be 120 pounds or approximately 54 kilograms.

The court correctly charged the jury on the essential elements to convict under Count Three. The government had to prove beyond a reasonable doubt that the appellants knowingly and intentionally possessed more than 100 kilograms of marijuana with the intent to deliver or transfer possession of it to another person. The charge correctly instructed on actual and constructive possession, and on sole and joint possession. The jury was instructed that possession of large quantities of an illegal substance would support an inference of intent to distribute.

Since the jury was properly instructed on the law, the issue is whether there was substantial evidence, taking the view most favorable to the government, to support the conviction. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). We must review the record to determine whether there was substantial evidence of constructive possession, which we have said "[e]xists when the defendant exercises, or has the power to exercise, dominion and control over the item." United States v. Laughman, 618 F.2d 1067, 1077 (4th Cir.1980), cert. denied, 447 U.S. 925, 100 S.Ct. 3018, 65 L.Ed.2d 1117 (1980).

Appellants assert that they never had dominion and control over any of the marijuana, because the government never surrendered control of any of the marijuana in the back of the DEA truck. They also claim that they could not exercise dominion and control over the marijuana because the government agents would not...