993 F.2d 1146 (5th Cir. 1993), 92-3235, United States v. Elwood

Docket Nº:92-3235.
Citation:993 F.2d 1146
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Gerald ELWOOD, a/k/a Nap, William Barnes, Jr., and Ernest Marrero, Defendants-Appellants.
Case Date:June 09, 1993
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1146

993 F.2d 1146 (5th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,


Gerald ELWOOD, a/k/a Nap, William Barnes, Jr., and Ernest

Marrero, Defendants-Appellants.

No. 92-3235.

United States Court of Appeals, Fifth Circuit

June 9, 1993

Page 1147

Herbert V. Larson, Jr., New Orleans, LA, for Gerald Elwood.

James C. Lawrence, New Orleans, LA, for Barnes.

Martin E. Regan, Regan & Assoc., New Orleans, LA, for Ernest Marrero.

Peter Thomson, Herbert W. Mondros, Asst. U.S. Attys., Harry Rosenberg, U.S. Atty., New Orleans, LA, for U.S.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before POLITZ, Chief Judge, DUHE, Circuit Judge, and MAHON [*], District Judge.

Page 1148

POLITZ, Chief Judge:

William Barnes, Jr., Gerald Elwood, and Ernest Marrero appeal their convictions for various drug trafficking offenses. We affirm the convictions of Marrero and Barnes and, as detailed herein, remand Elwood's case for Robinson 1 findings.


As part of an ongoing narcotics trafficking investigation, St. John Parish Sheriff's deputies conducted surveillance at the Holiday Inn in LaPlace, Louisiana. On July 12, 1991, Room 102 was among the rooms targeted, based on information that the occupants were staying only one night, paid cash, flashed large rolls of bills, and made lots of long distance phone calls. A deputy observed Ernest Marrero go out to a Nissan Maxima parked near the room, remove a bag, and return to Room 102. Shortly thereafter Marrero, Elwood, Barnes, and Rudolph Dennison 2 left Room 102. Marrero and Dennison, both juveniles, got into the Nissan, with Dennison driving, and placed the bag in the back seat; Elwood and Barnes got into a black, armor-plated, pickup truck with "HOMICIDE" painted on the front and "VILLAIN IN BLACK" on the side.

The Nissan left the hotel followed by the pickup, driven by Elwood. Both immediately ran a stop sign and then a red light. Deputy Francks pulled the Nissan over to the side of the road; the pickup pulled in and stopped behind the deputy and its lights were turned off. Fearing for the safety of Deputy Francks, Deputies Mitchell and Bazile, in a second car, pulled in directly behind the pickup. Both Marrero and Dennison were wearing beepers; neither carried any identification. Francks looked into the Nissan and saw an open bag containing what appeared to be cocaine; the bag was later determined to contain 2,027 grams of cocaine wrapped in over 200 packets.

After determining that neither Elwood nor Barnes had any identification, Deputy Mitchell looked into the truck and saw a Glock semi-automatic pistol; further search revealed a .38 caliber Smith & Wesson revolver on the floor beneath the passenger seat, a cellular phone, and a pager. The deputies also found a paper bag containing plastic bags with cocaine residue on them which had fallen out on the passenger side when Barnes exited the pickup. All four were arrested. The deputies testified that Elwood consented to the search of the truck and the subsequent search of the hotel room. In the hotel room the deputies found, inter alia, a triple beam scale, more plastic bags, and over $5,000 cash.

Marrero was a juvenile at the time of the offense but the district court granted the government's motion to try him as an adult. Marrero, Barnes, and Elwood were ultimately charged in a three-count indictment: count one charged Elwood and Barnes with conspiracy to possess with intent to distribute cocaine; count two charged Elwood, Barnes, and Marrero with possession with intent to distribute cocaine; and count three charged all three with using and carrying firearms during and in relation to a drug trafficking offense. They were tried and convicted by a jury on all charges.

Elwood was sentenced to concurrent 121-month terms of imprisonment on counts one and two and a consecutive 60-month term on the gun count. Barnes and Marrero were each sentenced to 78 months imprisonment 3 on the drug counts plus a consecutive 60-month sentence on the gun count.


1. Trial of Ernest Marrero as an Adult

Marrero contends that it was not proper to try him as an adult. The requisites for trying a juvenile as an adult in federal court are set forth in 18 U.S.C. § 5032. In a case such as this, the government first must certify to the court that (1) the offense charged is one of the enumerated drug offenses, and (2) "there is a substantial Federal interest in the case or the offense to warrant the exercise of federal jurisdiction." 4

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The district court then must conduct a transfer hearing to determine whether trial of the juvenile as an adult "would be in the interest of justice." The district court must consider and make record findings regarding the following factors:

The age and social background of the juvenile; the nature of the alleged offense; the extent and nature of the juvenile's prior delinquency record; the juvenile's present intellectual development and psychological maturity; the nature of past treatment efforts and the juvenile's response to such efforts; the availability of programs designed to treat the juvenile's behavioral problems. 5

"The decision whether to transfer a juvenile to trial as an adult under 18 U.S.C. § 5032 is within the sound discretion of the trial court, provided the court employs and makes findings as to the six criteria outlined in the Code." 6

The district court made the requisite findings and determined that Marrero should be tried as an adult. After discussing each of the six factors in detail, the district court concluded:

The court finds factors I and VI listed are neutral in the decision to transfer to adult jurisdiction. However, factors II, III, IV and V weigh heavily in favor of such transfer. The court is impressed with the fact that the instant offense involves not just a small "street sale" quantity of cocaine. The offense involves possession of a substantial amount of cocaine unlikely to be encountered in a first time exposure to the business. Past efforts to rehabilitate this juvenile have not been successful. This juvenile, while possessing an aggressive personality, is apparently without any meaningful supervision or direction. Treatment as an adult is in the interest of justice and will finally add some sorely needed structure in the juvenile's life.

Marrero points to no specific errors in the district court's factual findings or conclusions. Review of the record confirms that the district court's factual findings are supported by the evidence and we find no error in the application of the law.

2. Sufficiency of the Evidence

Marrero and Barnes contend that there was insufficient evidence to support their convictions. When reviewing for sufficiency of the evidence we must uphold a verdict if, upon viewing the evidence in the light most favorable to the verdict, a rational trier of fact could conclude that the essential elements of the crime were established beyond a reasonable doubt. 7

Possession with Intent--Marrero and Barnes

To convict Marrero and Barnes for possession with intent to distribute cocaine, the government was required to prove that they (1) possessed illegal drugs, (2) knowingly, and (3) with intent to distribute. 8 Possession may be actual or constructive; 9 constructive possession is "the knowing exercise of, or knowing power or right to exercise, dominion and control over" the contraband. 10

Barnes contends that there was no evidence demonstrating that he was aware of the drugs found in the Nissan. Marrero contends that there is no evidence he knew of a scheme to distribute narcotics and that his presence in the car where the drugs were found is insufficient to support the conviction. At oral argument, Marrero's counsel asserted that the officers misidentified Marrero and that it was Dennison they saw carry the drugs. The officers testified that they saw Marrero, wearing a black track suit, retrieve

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a bag out of the Nissan and bring it into the hotel room. The evidence demonstrated that when he was checked into the juvenile facility in Orleans Parish after he was arrested, Marrero was wearing jean shorts and a polo shirt; Dennison, however, was wearing a black track suit. At trial, Marrero testified that he retrieved a tan bag out of the Nissan and brought it into the hotel room. He then testified that Dennison removed the drug-filled bag from that tan bag and carried it out to the car. We perceive no factual dispute regarding whether Marrero was the one who retrieved a bag from the car--he admitted such.

Viewed in the light most favorable to the verdict, the following evidence was presented to support the convictions. Marrero brought a bag from the Nissan into the hotel room; when carried out a short time later the bag contained over two kilograms of cocaine. 11 Marrero, Barnes, Elwood, and Dennison were all in the hotel room when the bag was brought in and they all left the hotel room, with the drugs, at the same time. Marrero and Dennison were both wearing beepers which are commonly used in the drug trade. A triple beam scale and plastic bags similar to those in which the cocaine was packaged were later found in the hotel room, suggesting that the packaging was done there. Barnes and Elwood, each carrying a firearm, followed the Nissan and the drugs from the hotel in an armor-plated truck; from this the jury could infer that they were providing protection for the drugs. This inference is also supported by the fact that the pickup stopped when Officer Francks stopped the Nissan. Finally, when Barnes got out of the truck, a bag fell out containing wrappings with cocaine residue and numerous plastic bags cut in a fashion similar to the bags of cocaine found in the Nissan. The evidence suggests far more than mere presence on the part of Barnes and Marrero.

Conspiracy to Possess with Intent--Barnes

To convict Barnes for...

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