94 F.3d 849 (4th Cir. 1996), 93-5899, United States v. Burgos

Docket Nº:93-5899, 93-5919.
Citation:94 F.3d 849
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Frank Kahled BURGOS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Alexio Burnard GOBERN, Defendant-Appellant.
Case Date:August 23, 1996
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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94 F.3d 849 (4th Cir. 1996)

UNITED STATES of America, Plaintiff-Appellee,


Frank Kahled BURGOS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,


Alexio Burnard GOBERN, Defendant-Appellant.

Nos. 93-5899, 93-5919.

United States Court of Appeals, Fourth Circuit

August 23, 1996

Argued Sept. 26, 1995.

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ARGUED: Thomas Norman Cochran, Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant Burgos; Joseph R. Giaramita, Jr., Brooklyn, New York, for Appellant Gobern. Michael Francis Joseph, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. ON BRIEF: Todd M. Peebles, Peebles & Schramm, Winston-Salem, North Carolina, for Appellant Gobern. Walter C. Holton, United States Attorney, Greensboro, North Carolina, for Appellee.


Affirmed in part and dismissed in part by published opinion. Judge WILLIAMS wrote the majority opinion, in which Chief Judge WILKINSON and Judges RUSSELL, WIDENER, WILKINS, NIEMEYER, HAMILTON, and LUTTIG joined. Judge MICHAEL wrote an opinion concurring in part and dissenting in part, in which Judges HALL, MURNAGHAN, ERVIN, and MOTZ joined.


WILLIAMS, Circuit Judge:

In these consolidated appeals, Frank Burgos and Alexio Gobern appeal their convictions for conspiracy to possess with intent to distribute cocaine base, in violation of 21 U.S.C.A. §§ 841(a)(1) and 846 (West 1981 & Supp.1996), contending that the evidence was insufficient to sustain their convictions. Additionally, Burgos appeals his conviction for possession with intent to distribute cocaine base and aiding and abetting that crime, in violation of 18 U.S.C.A. § 2 (West 1969) and 21 U.S.C.A. § 841(a)(1), again challenging the sufficiency of the evidence to support his conviction.

Gobern also appeals his sentence on two grounds. First, he asserts that the district court erred in failing to depart downward based on an isolated act of aberrant behavior, pursuant to United States Sentencing Commission, Guidelines Manual, Chapter 1, Part A, 4(d) (1992). Second, describing himself as a "person of color," Gobern posits that his sentence violates the Equal Protection Clause because offenses involving cocaine base are more severely punished than offenses involving cocaine powder, and since "persons of color" are more frequently convicted of cocaine base offenses, they are disproportionately punished.

We consolidated Burgos's and Gobern's appeals and elected to hear them en banc. We take this opportunity to clarify the law of this circuit respecting challenges to the sufficiency of the evidence in connection with conspiracy convictions, and in so doing, we affirm the convictions of Burgos and Gobern. In affirming the convictions, we honor two bedrock principles of Anglo-American jurisprudence: the Government must prove each element of a crime beyond a reasonable doubt, and the jury determines whether the Government has satisfied this evidentiary burden. Our review is limited to determining whether substantial evidence supports the conviction. In addressing Gobern's challenges to his sentence, we also honor entrenched principles of this court's jurisprudence: a deliberate refusal by the district court to depart downward is not appealable; and sentencing disparities between offenses involving cocaine base and cocaine powder do not deny equal protection of the law. Thus, respecting Gobern's appeal from his sentence, we dismiss in part and affirm in part.

First, we shall recite the facts adduced at the separate trials of Burgos and Gobern. Second, we shall address Burgos's and Gobern's conspiracy convictions and whether the evidence was sufficient to sustain them. Third, we shall address Burgos's challenge to

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his possession and aiding and abetting conviction and whether the evidence was sufficient to support it. Finally, we shall address Gobern's challenges to his sentence.


Taken in the light most favorable to the Government, see Evans v. United States, 504 U.S. 255, 257, 112 S.Ct. 1881, 1883-84, 119 L.Ed.2d 57 (1992), the evidence adduced at Burgos's trial established the following facts. On January 25, 1993, law enforcement officers Berkley Blanks and Daniel Kaplan were performing narcotics interdiction at the train station in Greensboro, North Carolina, focusing on a train arriving from New York, New York, a known source city for contraband narcotics. Officers Blanks and Kaplan observed Burgos, Gobern, and Anthony Gonzales disembark together from the train, but walk separately into the terminal. Officer Blanks testified that he initiated a conversation with Gonzales, who informed Officer Blanks he was traveling alone from New York, denied familiarity with Gobern, and presented a train ticket bearing the name "Anthony Flores." Officer Kaplan testified that he spoke with Burgos, who produced a train ticket bearing his own name. According to Officer Blanks, Gobern carried a knapsack and a package wrapped in Christmas paper but which bore no ribbon, bow, or card; also, Gobern carefully observed Officer Blanks's conversation with Gonzales.

As Officer Blanks and Gonzales walked to the front of the terminal, Gobern followed them, continued to observe them, halted when Officer Blanks and Gonzales halted, and with the Christmas package and knapsack, proceeded into the terminal lavatory, where he remained one to two minutes; this lavatory was small, measuring 9.5 feet square. Gobern then exited the lavatory without the Christmas package, but still carrying the knapsack. Officers Blanks and Kaplan testified unequivocally that no one else entered, occupied, or exited the lavatory while Gobern occupied it. On exiting the lavatory, Gobern, at Officer Kaplan's request, produced his train ticket, which, like Gonzales's ticket, bore the name "Anthony Flores," stated that he was traveling alone from New York, and denied that he and Gonzales knew each other. Interestingly, Gonzales's and Gobern's train tickets bore consecutive numbers, were purchased simultaneously at the same locale, and were both round-trip tickets from New York, New York, to Greensboro, North Carolina, issued on January 25, 1993, with a return date of January 27, 1993.

After concluding their conversation with Gobern, Officers Blanks and Kaplan proceeded immediately to the lavatory just exited by Gobern while Officer Cameron Piner, who had recently arrived at the train terminal, watched Burgos, Gobern, and Gonzales. On the sink, Officers Blanks and Kaplan found the Christmas package and a cereal box, both of which were ripped open, and crumpled newsprint dated January 9, 1993 from The Daily News, a New York newspaper. Pages from the same edition of The Daily News were found on the floor and in the wastebasket of the lavatory. Also in the wastebasket were pieces of the Christmas paper in which the Christmas package had been wrapped, as well as remnants of the package itself. Secreted behind the commode was a mass of wadded newsprint, which concealed aluminum foil, which, in turn, concealed a plastic bag containing 78.5 grams of cocaine base, an amount which Officers Blanks and Kaplan testified was a distribution quantity. Significantly, the newspaper concealing the foil and plastic bag was from the same edition of The Daily News that was on the sink, scattered around the floor, and in the wastebasket. Not only was this wadded mass of newsprint from The Daily News, but it complemented and completed perfectly the newspaper edition found near the sink. Officers Blanks and Kaplan exited the lavatory, and Officer Blanks observed Burgos, Gobern, and Gonzales attempt to board the same taxicab. Before they could depart, Gobern was arrested, and Burgos and Gonzales agreed to accompany Officers Blanks and Kaplan for questioning. Burgos was then questioned by Special Agent Wayne Kowalski of the Drug Enforcement Agency.

At Burgos's trial, Special Agent Kowalski testified that Burgos stated: (1) he knew Gonzales, but not Gobern; (2) he conversed

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with Gonzales and Gobern on the train; (3) he knew that cocaine base was in the Christmas package, which Gobern possessed since leaving New York; and (4) he knew that the cocaine base was to be distributed at a college in Greensboro, North Carolina. Specifically, Special Agent Kowalski avowed that Burgos admitted that "Gobern ... carried the package wrapped as a Christmas package ... throughout the trip down." (J.A. at 67.) (emphasis added). Moreover, "Burgos ... knew that they had dope.... [I]t was his understanding they were going to sell the dope at the A & T University." (J.A. at 67.) Dispelling any doubt that Burgos knew that the plastic bag containing the cocaine base was in the Christmas package since the trio left New York, Special Agent Kowalski testified that he asked Burgos "whether he knew that there was crack cocaine in the package" and Burgos "said that he knew they had it, but he didn't see it." (J.A. at 66-67.) Additionally, Special Agent Kowalski testified that Burgos stated that he was in Greensboro visiting a friend, but did not mention traveling to Laurinburg, North Carolina, to play basketball with his former schoolmates, as Burgos testified at trial; indeed, the train on which the men traveled did not stop at Laurinburg. Also introduced at Burgos's trial was forensic evidence revealing that Gobern's fingerprints were on the Christmas wrapping paper, and that Burgos's fingerprint was impressed on the sealing mechanism at the top of the plastic bag which contained the cocaine...

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