Government of Virgin Islands v. Hoheb

• Decision Date: 21 November 1985
• Docket Number: No. 84-3045,84-3045
• Citation: 777 F.2d 138
• Parties: GOVERNMENT OF the VIRGIN ISLANDS, Appellant, v. Franke HOHEB, Appellee.
• Court: U.S. Court of Appeals — Third Circuit

Page 138

777 F.2d 138

GOVERNMENT OF the VIRGIN ISLANDS, Appellant, v. Franke HOHEB, Appellee.

No. 84-3045.

United States Court of Appeals Third Circuit.

Argued April 24, 1985.

Decided Nov. 21, 1985.

James W. Diehm, U.S. Atty., Hugh P. Mabe, III (argued), Asst. U.S. Atty., Charlotte Amalie, St. Thomas, V.I., for appellant.

Alexander A. Farrelly (argued), Birch, deJongh, & Farrelly, Charlotte Amalie, St. Thomas, V.I., for appellee.

Before ADAMS, GARTH and BECKER, Circuit Judges.

OPINION OF THE COURT

ADAMS, Circuit Judge.

Appellee Franke A. Hoheb and his brother, Derek Parrilla, were charged with violations of Virgin Islands criminal law arising out of a marijuana smuggling operation set up by undercover federal agents. Inconsistent verdicts returned by the jury respecting these two defendants provide the background for this appeal by the government.

Count I of the indictment against Hoheb and Parrilla charged them with conspiracy with intent to distribute marijuana, V.I.Code Ann. tit. 19, Sec. 609 (1976); count II alleged possession of marijuana with intent to distribute, V.I.Code Ann. tit. 19, Sec. 604(a) (1976). The jury found both defendants guilty of simple possession of marijuana, a lesser included offense within count II; it found Hoheb guilty of the conspiracy charge, but acquitted Parrilla on that count.

On November 16, 1983, the district court granted Hoheb's motion for judgment of acquittal on count I, the conspiracy count, ruling that the conviction could not stand in light of Parrilla's acquittal, and finding that there was insufficient evidence that any other persons were involved in the alleged conspiracy. The government filed a timely appeal. We have jurisdiction under 18 U.S.C. Sec. 3731 (1982). United States v. Wilson, 420 U.S. 332, 352-53, 95 S.Ct. 1013, 1026-27, 43 L.Ed.2d 232 (1975); United States v. Everett, 700 F.2d 900, 902 (3d Cir.1983).

Because we hold that Hoheb's conspiracy conviction is supported by substantial evidence, and that the acquittal of Parrilla does not preclude the conviction of Hoheb on count 1, the jury's verdict on that count will be reinstated.

I.

During the time in question, Hoheb was Chief Enforcement Officer for the Virgin Islands Department of Conservation and Cultural Affairs. On February 15, 1983, John Allen, an informant acting at the direction of Drug Enforcement Administration (DEA) agents, contacted Hoheb to see if the official was interested in distributing narcotics in the Virgin Islands supplied by a group in Puerto Rico. Allen testified that Hoheb expressed interest, App. at 48-49, and that over subsequent weeks they met repeatedly and developed a plan to carry out the distribution.

Allen testified that in furtherance of this plan, Hoheb sent his brother, Parrilla, to meet with putative drug suppliers. On April 12, 1983, Parrilla met Allen and two undercover DEA agents at Brewers Bay Beach. Parrilla first assured the agents that adequate payment and security could be provided to effect an off-shore transfer of marijuana. Parrilla then agreed to purchase 150 pounds of marijuana at $400 per pound, see App. at 67-70, and was given a one-pound sample of marijuana whose sale would generate front money for the ultimate transaction. See App. at 71-73. Allen further testified that on the evening of April 12, he visited Hoheb's apartment and witnessed both Hoheb and Parrilla weighing and bagging the sample marijuana. See App. at 73. ¹

Andres Amador, a DEA agent present at the Brewers Bay meeting, corroborated Allen's testimony. Amador testified that Parrilla stated he had been authorized by Hoheb to negotiate the purchase and delivery of marijuana. See App. at 112. Parrilla then reviewed the mechanics of the contemplated delivery, in which he and an unnamed friend were to meet the suppliers' boat at Thatch Cay, transfer the marijuana to a second boat, and bring it to shore. See App. at 114. Amador testified that he then gave Parrilla the sample marijuana, see App. at 115-16, and that a second meeting was arranged for April 15, at which time Parrilla was to provide $2,000 as a deposit for the 150 pounds of marijuana. See App. at 113. Amador further testified that he met Parrilla again on April 15, the day scheduled for the transfer, that Parrilla failed to deliver any of the promised deposit monies, but assured Amador that if the transfer occurred as scheduled, Parrilla would pay $20,000 within a week after the transfer. See App. at 117.

The record further discloses that on April 14 Allen again met with Hoheb, who produced a final plan for the transfer of the marijuana. See App. at 76-77; App. at 212. This plan, written in Hoheb's hand and in the form of a timetable of events, was introduced at trial. As contemplated by this schedule, Parrilla and a friend were to leave Coki Beach at 6:30 p.m., the boats were to rendezvous at 7:00, and at 7:35, Parrilla was to arrive at Hoheb's apartment. See App. at 242. Allen testified that this timetable coincided with a change in plans, whereby after the marijuana was transferred at sea, Parrilla and his friend were to bring it directly to Sapphire Bay where Hoheb's apartment was located. ² See App. at 77.

Following Parrilla's April 15 meeting with Amador, Allen put Hoheb in telephone communication with Amador, who continued to pose as a supplier. Hoheb apologized for any difficulties and requested that the plan be carried out nevertheless. Late in the day, Hoheb called Allen and cancelled the entire arrangement, because he had observed an unidentified boat in the area. That evening, Hoheb and Parrilla were arrested at Hoheb's apartment.

II.

In ruling that Hoheb's conspiracy conviction could not stand following Parrilla's acquittal on that charge, the district court relied on the common law "rule of consistency." That rule provides that where all alleged coconspirators save one are acquitted, the conviction of the remaining defendant must be vacated.

The "rule of consistency" has been applied by numerous federal and state courts, ³ but over the years it has steadily been narrowed to apply only to the type of case before us now, where the acquittal and conviction are decided in the same trial. ⁴ Thus, in United States v. Espinosa-Cerpa, 630 F.2d 328 (5th Cir.1980), the court declined to extend the rule to a case where all alleged coconspirators were acquitted, and the single remaining conspirator was tried in a later prosecution. Accord People v. Holzer, 25 Cal.App.3d 456, 102 Cal.Rptr. 11, 13 (1972); Gardner v. Maryland, 286 Md. 520, 408 A.2d 1317, 1321 (1979). The rule has also been considered inapplicable where it is alleged and proven that the defendant conspired with persons unknown. United States v. Allen, 613 F.2d 1248, 1253 (3d Cir.1980); United States v. Artuso, 618 F.2d 192, 197 (2d Cir.), cert. denied, 449 U.S. 861, 101 S.Ct 164, 66 L.Ed.2d 77 (1980); Pomerantz v. United States, 51 F.2d 911, 913 (3d Cir.1931); see also Joyce v. United States, 153 F.2d 364, 367 (8th Cir.) (only other convicted conspirator died following the trial), cert. denied, 328 U.S. 860, 66 S.Ct. 1349, 90 L.Ed. 1631 (1946). ⁵ In addition, it has been held that a grant of immunity to one defendant will not invalidate his coconspirator's conviction. Gardner, supra, 408 A.2d at 1320; Michigan v. Berry, 84 Mich.App. 604, 269 N.W.2d 694, 696 (1978). On this appeal, the government contends that the district court judge erred in concluding that there was insufficient evidence to support the involvement of conspirators other than Hoheb and Parrilla, and that Hoheb's conviction therefore should have been affirmed under the rule of Allen, supra.

The evidence cited by the government to support this argument consists of certain out-of-court statements by Hoheb and Parrilla. For example, both men told Allen they needed the marijuana sample to generate front money, an indication, according to the government, that other buyers were involved in the transaction. Appellant's Br. at 38. Further, the government argues that Hoheb suggested to Allen that other parties would be involved in the planned distribution. Id. at 40-41. The government also cites Hoheb's oral and written plans for the transfer, as well as Parrilla's statements at the Brewers Bay meeting, that referred to the involvement of Parrilla's friend Edgar. Id. at 39-40.

This evidence, viewed in the light most favorable to the government, see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Dixon, 658 F.2d 181, 188 (3d Cir.1981), may lead a reasonable jury to conclude that Hoheb conspired with persons other than Parrilla to import and distribute marijuana. Hoheb planned to purchase a large quantity of the drug, in a transfer at sea which would surely require the work of more than one person but in which he would not participate. He later intended to redistribute the marijuana for profit. Such an operation would seem to require more than a single person on a boat and another overseeing the transfer. Hoheb confirmed this, repeatedly referring during the course of his conversations with Allen to a third person, and even naming that person in his final written and oral plans the day before the intended transfer. It is unlikely that, at that late date, Hoheb had not communicated with this additional participant and arranged his involvement.

The district court discounted the importance of Hoheb's and Parrilla's admissions, ruling that those statements alone did not show by a "preponderance of the evidence" that others were involved in the conspiracy. App. at 38. However, this ruling appears to be a misapplication of the coconspirator exception to the hearsay rule; that exception requires independent proof of a conspiracy before a coconspirator's out-of-court statement may be introduced against a defendant. Fed.R.Evid. 801(d)(2)(E); see generally United States v. Ammar, 714 F.2d 238, 245-57 (3d Cir.), cert. denied, 464 U.S. 936, 104...