Amato v. Com.

• Decision Date: 06 January 1987
• Docket Number: No. 0106-85,0106-85
• Citation: 352 S.E.2d 4,3 Va.App. 544
• Parties: Ferdinand Thomas AMATO, III v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 4

352 S.E.2d 4

3 Va.App. 544

Ferdinand Thomas AMATO, III v. COMMONWEALTH of Virginia.

Record No. 0106-85.

Court of Appeals of Virginia.

Jan. 6, 1987.

H. Woodrow Crook, Jr., Smithfield, for appellant.

W. Mark Dunn, Asst. Atty. Gen. (William G. Broaddus, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and BAKER and KEENAN, JJ.

JOSEPH E. BAKER, Judge.

Fred Amato (appellant), indicted as Frederick Amato, a/k/a Fred Amato, a/k/a Ferdinand Thomas Amato, a/k/a Ferdinand Thomas Amato, III, appeals from a judgment of the Circuit Court of Isle of Wight County (trial court) which approved a jury verdict convicting him of feloniously conspiring to possess with intent to distribute a quantity of marijuana in excess of five pounds. He was sentenced to a term of five years in the penitentiary.

At the conclusion of the Commonwealth's case, appellant moved to strike the evidence, asserting that mere presence at the scene of the conspiracy is not sufficient to support a conspiracy conviction, and that proof of participation in the planning is required. Appellant's motion was overruled and he proceeded to introduce evidence in his behalf. By adducing evidence in his own behalf, appellant waived his right to appeal from the denial of his motion. Starks v. Commonwealth, 225 Va. 48, 55, 301 S.E.2d 152, 156 (1983).

When both the Commonwealth and appellant rested their cases, appellant renewed his motion to strike, saying only: "I renew the motion to strike the Commonwealth's evidence on the same grounds and reasons stated at the conclusion of the Commonwealth's evidence." This motion was also overruled. In view of the waiver resulting from appellant's adducing evidence in his own behalf, the sufficiency of the evidence must be determined from the entire record. Id.; Hargraves v. Commonwealth, 219 Va. 604, 605, 248 S.E.2d 814, 815 (1978). Where the sufficiency of the evidence is challenged after conviction, it is our duty to consider it in the light most favorable to the Commonwealth and give it all reasonable inferences fairly deducible therefrom. We should affirm the judgment unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it.

Black v. Commonwealth, 222 Va. 838, 841, 284 S.E.2d 608, 610 (1981) (quoting Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)).

In his brief on this appeal, appellant states that the only issue to be considered by this court is whether there was sufficient evidence upon which the jury could find him guilty of the charge contained in the indictment. The indictment reads as follows:

The grand jury charges that: On or about July 1, 1981 thru December 4, 1981 in the County of Isle of Wight, Frederick Amato, aka Fred Amato and aka Ferdinand Thomas Amato, aka Ferdinand Thomas Amato, III did feloniously conspire with others to possess with intent to distribute a quantity of marijuana in excess of five (5) pounds. VA CODE SECTIONS 18.2-248.1 and 18.2-256.

The conspiracy which the Commonwealth sought to prove involved a lengthy cast of characters. Their peculiar positions within the conspiracy are important to a full understanding of the scope and dimension of the crime. The alleged conspirators included John Bonner, Thomas Roberts, Jerry Pierce, Russell Moll, Beuford "Buddy" Higgs, William Jarvis, Barry Fullerton, Bruce Stampley, Ralph B. Newman, Jr., Karen Lloyd and appellant, Fred Amato. There were several other minor co-conspirators whose names are not relevant. A DC6 airplane, a gray Lincoln Continental and two dump trucks also played significant roles in the venture.

The conspiracy began sometime prior to November 1981. In October 1981, Bonner came to Virginia from Florida to find a remote airstrip on which a DC6 airplane loaded with $10,000,000 worth of illegal marijuana could land. Bonner and Roberts were the principal co-conspirators who devised the plan. Bonner was taken to the Franklin airport by Moll who described his personal involvement in the operation as a "gopher" for Higgs. At the Franklin airport Bonner and Moll met with Higgs, Stampley and Fullerton. Higgs' specific role is not reflected clearly in the record; however, he appears to have been an intermediary between Bonner and Roberts and the other participants. Stampley was a previously convicted marijuana smuggler who operated in Florida until August 1981, when he was employed by Jarvis and Fullerton as a crop duster pilot working out of the Franklin airport. Fullerton, who appellant stated at argument was also a previously convicted drug smuggler, was a crop duster pilot who, with Jarvis, owned a crop dusting business. Stampley and Fullerton shared an apartment in Virginia Beach. Jarvis resided in Franklin and was the manager of the Franklin airport. After viewing the runways at the Franklin airport the group agreed that a DC6 could be landed there.

In late November 1981, Moll and Higgs met with Bonner and Roberts in Florida and were told of the plan and the need for personnel to unload the plane. On November 29, 1981, Moll, Higgs, Bonner, Roberts and Pierce flew to Virginia from Florida and landed at the Chesapeake airport. Pierce was the owner of a 1000 acre tract of land in North Carolina where the marijuana was to be transported and distributed after it was unloaded at the Franklin airport. From the Chesapeake airport they went to a nearby motel where the gathering attracted the attention of C.L. McCoy, an alert Virginia state trooper, who was staying at the motel in connection with an ongoing investigation into an unrelated matter. The trooper reported his observations to his superiors, who in turn placed various participants under surveillance.

The next day Pierce and Moll, who had obtained a refrigerated truck, procured the services of Roberts, Newman and several others to assist in the unloading of the plane. Newman was to receive $7500 for providing two dump trucks and was told that the trucks were to be used to transport the marijuana to Pierce's land in North Carolina. The persons employed to unload the plane were to be paid $10,000 each, and Moll, Higgs and Pierce each were to receive approximately $80,000 for their efforts. The landing was to occur after dark. In preparation, Moll purchased a number of needed supplies, including flashlights and batteries.

Appellant and his girlfriend, Karen Lloyd, arrived in Virginia Beach from Florida on November 1, 1981. They returned to Florida on December 31, 1981. Neither was employed during that two month period, yet they rented and lived in a Virginia Beach condominium in the Rudee Inlet area across the street from the apartment occupied by Stampley and Fullerton. Appellant and Stampley were acquainted prior to their coming to Virginia in late 1981. Appellant owned a gray Lincoln Continental which he kept at his Virginia Beach condominium. During the time Stampley and appellant lived across the street from each other, appellant and Lloyd would see and visit with Stampley at least twice a week.

In the early evening of December 2, 1981, Stampley received a telephone call at his Virginia Beach apartment from Fullerton, who called from the Franklin airport. There was a suggestion of a need for Stampley to come to the airport to "help out." Because he was told that he probably did not want to drive his car, he procured the services of appellant to drive him to the airport in appellant's gray Lincoln Continental.

In preparation for the arrival of the DC6, Newman parked the two dump trucks on a motel lot on Military Highway. In accordance with instructions, in the late afternoon of December 2, 1981, Newman moved the dump trucks to a point near the Franklin airport where he was to be met by another person. Later that night, someone came by driving a gray Lincoln Continental and told Newman to follow the Continental in one of the dump trucks. Newman complied and drove his truck to the airport. He parked the truck, got into the Continental, was driven back to the second dump truck, and drove it back to the airport where he sat awaiting further instructions. A short while later, Jarvis waved Newman into the airport tower. The tower consisted of a large room, two rest rooms and two small offices. Present at the time Newman entered the tower were Jarvis, Stampley, Fullerton and "another fellow" whose name Newman did not know but whom he described as being a young man. At trial, Newman was unable to "positively" identify appellant as the "young man" who was in the tower when he entered, but Stampley testified that appellant was present.

Shortly after Newman entered the airport tower, Stampley and Fullerton discussed the impending arrival of an airplane loaded with marijuana and what was to be done. The participants were suspicious that police were in the airport area. Moll arrived with his crew and two other trucks. With him were Pierce, Roberts, Wilson, and Mancini. Moll testified that Stampley, Fullerton, Jarvis, an older woman and a gentleman whose name he did not know were present when he arrived at the airport. Moll complained to Stampley and Fullerton that he was short two men who were expected to help unload the plane. The "other gentleman" in the room was then identified as "Fred." Stampley and Fullerton told Moll that Fred would help unload the plane and be paid for his work. Moll heard "a guy say, 'Yea, I'll give a hand.' " The "other gentleman" referred to as Fred was to receive $10,000 for his efforts.

Increasing concern about the presence of police caused Stampley, Roberts and Fullerton to consider an alternative landing strip. The tower facility was kept dark and they studied maps on the floor using flashlights. They concluded that the plane should be diverted to Melfa on the Eastern Shore of Virginia. Roberts instructed Moll and his unloading group to go to Melfa to unload the plane when it arrived there.

Believing that the police followed Moll and his crew as th...