U.S. v. Austin

• Decision Date: 14 March 1986
• Docket Number: 85-1247 and 85-1271,Nos. 85-1272,s. 85-1272
• Citation: 786 F.2d 986
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Olin AUSTIN, Charles Lynch Paterson, Larry Lee Bates, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 986

786 F.2d 986

UNITED STATES of America, Plaintiff-Appellee, v. Olin AUSTIN, Charles Lynch Paterson, Larry Lee Bates,

Defendants-Appellants.

Nos. 85-1272, 85-1247 and 85-1271.

United States Court of Appeals, Tenth Circuit.

March 14, 1986.

Shannon Robinson, Albuquerque, N.M., for defendant-appellant Larry Lee bates.

James L. Brandenburg, Albuquerque, N.M., for defendant-appellant Olin Austin.

David J. Richman (H. Thomas Coghill, with him on brief), of Coghill & Goodspeed, P.C., Denver, Colo., for defendant-appellant Charles Lynch Paterson.

David N. Williams, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., with him on brief), Albuquerque, N.M., for plaintiff-appellee.

Before SEYMOUR, SETH and ANDERSON, Circuit Judges.

SEYMOUR, Circuit Judge.

These companion appeals arise out of an ill-fated plan to bring marijuana from Colombia into the United States. At the trial of these defendants, the Government contended that they were members of a conspiracy to distribute marijuana pursuant to which two plane loads of contraband were flown to New Mexico. The first load arrived in February 1983, and was successfully distributed. The second load, which arrived in March 1983, was tracked by United States Customs personnel. Law enforcement officers arrived at the scene after the plane had landed and arrested those involved in unloading the marijuana. These ten off-loaders were tried and convicted in separate proceedings. Complete details of the marijuana scheme are set out in the opinion affirming their convictions. See United States v. Espinosa, 771 F.2d 1382 (10th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 579, 88 L.Ed.2d 561 (1985).

In the instant case, the Government contended that Olin Austin participated in the conspiracy and the distribution by selling his ranch in New Mexico to other conspirators for use as a landing strip. The Government contended that Larry Bates, a flight engineer, conspired and distributed marijuana by his activity as a member of the flight crew which flew the empty plane out of the ranch after the successful February operation, and which flew the loaded plane to the ranch in March. The Government contended that Charles Paterson, who owned an air cargo transport company operating out of Miami, conspired and distributed marijuana by supplying the plane for the March operation. After a jury trial, all defendants were found guilty of conspiracy to distribute marijuana. Austin and Paterson were acquitted of substantive distribution charges. Bates was acquitted of the substantive count arising out of the February operation, but convicted of the substantive count based on the March operation.

I. THE AUSTIN APPEAL

Austin contends that the evidence is insufficient to support his conviction.

"The essence of the crime of conspiracy is an agreement to commit an unlawful act.... Although the agreement may be inferred from the facts and circumstances of the case, and 'need not take any particular form, there must at some point be a meeting of the minds in the common design, purpose, or objects of the conspiracy.' United States v. Butler, 494 F.2d 1246, 1249 (10th Cir.1974). To be guilty of conspiracy, a defendant must possess 'at least the degree of criminal intent necessary for the substantive offense itself.' Ingram v. United States, 360 U.S. 672, 678 [79 S.Ct. 1314, 1319, 3 L.Ed.2d 1503 (1959) ].... For instance, since substantive offenses relating to illegal importation of drugs require knowledge that the drugs were illegally imported, so too does the offense of conspiring to commit those substantive offenses."

United States v. Dumas, 688 F.2d 84, 86 (10th Cir.1982) (emphasis added) (citations omitted). A defendant's mere association with conspirators is not enough to support a conspiracy conviction. E.g., United States v. Soto, 716 F.2d 989, 991-92 (2d Cir.1983); United States v. Ward, 703 F.2d 1058, 1062 (8th Cir.1983); United States v. Fitzharris, 633 F.2d 416, 423 (5th Cir.1980), cert. denied, 451 U.S. 988, 101 S.Ct. 2325, 68 L.Ed.2d 847 (1981); United States v. Melchor-Lopez, 627 F.2d 886, 891 (9th Cir.1980). As one court has stated, "the government cannot prove a conspiracy by presenting evidence that only places the defendant in 'a climate of activity that reeks of something foul.' " United States v. Jackson, 700 F.2d 181, 185 (5th Cir.) (quoting United States v. Galvan, 693 F.2d 417, 419 (5th Cir.1982)), cert. denied, 464 U.S. 842, 104 S.Ct. 139, 78 L.Ed.2d 132 (1983). "The defendant lacks the requisite criminal intent if he does not know the conspiracy's objective," and this knowledge must be shown by "clear, unequivocal evidence." Dumas, 688 F.2d at 86 (citing Direct Sales Co. v. United States, 319 U.S. 703, 711, 63 S.Ct. 1265, 1269, 87 L.Ed. 1674 (1943)).

In this case the Government charged Austin with conspiring to distribute in excess of 1,000 pounds of marijuana in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1982). Thus the Government was required to show, by clear and unequivocal evidence, Austin's knowledge that the object of the conspiracy was the distribution of marijuana, and his agreement to cooperate in achieving that object. See Direct Sales, 319 U.S. at 711, 713, 63 S.Ct. at 1269, 1270. In assessing the sufficiency of the evidence, we must view it in the light most favorable to the Government to determine whether any rational trier of fact could find Austin guilty beyond a reasonable doubt. See, e.g., Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Dumas, 688 F.2d at 85. This record falls far short of containing evidence sufficient to meet this standard.

Austin lived approximately forty miles from the ranch, which had been listed for sale for some time. The evidence is undisputed that Austin had no connection with the buyers of the ranch until they approached him about purchasing it. Government witnesses testified that the buyers were looking for an isolated piece of property flat enough for landing the aircraft on which they planned to bring marijuana to the states from Colombia. The primary person with whom Austin negotiated the sale of the ranch, Armando Vallina, used the alias Ray Valdez and did not tell Austin the real purpose for which he wanted the property, telling him instead that several Honduran ranchers were seeking a place to bring their families in the event their country's government should collapse.

The ranch had been listed at a price of $125 per acre. Austin initially asked Vallina for $1,600,000, or about $150 an acre, and they settled on a price of $1,500,000. The buyers also purchased the cattle for an additional sum. Austin received a partial down payment in cash, which he took to the bank and used to obtain a cashier's check in the amount of a mortgage payment due on the ranch. While at the bank, he filled out a currency transaction report required by the federal government when a cash transaction of this size occurs. Austin also reported the proceeds from the transaction on his income tax returns.

The buyers hired Austin's son, Marlin, to stay on and manage the ranch after they took possession of the land. Before the February operation, the buyers sent Marlin to spend the night in town. Upon his return, Marlin discovered airplane tracks in a field and reported the tracks to his father, who took pictures of them. Austin asked Vallina in early March about the tracks and said if he saw anything else that looked suspicious he was going to the police. Vallina told him to go ahead.

Prior to the March operation, Vallina made an additional $40,000 payment to Austin. Testimony from Faustino Larrazaleta, the Government's main witness and a conspirator, was unequivocal that this was an additional payment toward purchase of the property. After the authorities intercepted the March marijuana load, Austin told them about his previous suspicions and gave them the photographs.

Although Austin candidly testified that by March he had begun to suspect something illegal was going on, mere suspicion is not enough. See Dumas, 688 F.2d at 86; see also Direct Sales, 319 U.S. at 711-13, 63 S.Ct. at 1269-70. In Dumas, we reversed the defendant's conviction for conspiring to obtain possession of Dilaudid by misrepresentation or subterfuge. The evidence was clear that Dumas intended to obtain Dilaudid from his alleged coconspirator, a doctor, but there was no evidence that Dumas knew the doctor was going to obtain the drug using false prescriptions, the alleged misrepresentation. Here, Austin was charged with conspiring to possess marijuana with the intent to distribute it. This record contains no evidence from which a fact finder could infer that Austin knew the focus of the conspiracy was the distribution of marijuana, rather than the distribution of other contraband, or the aiding of illegal aliens, or other equally speculative illegal conduct, or even clandestine activity that did not violate the law. Accordingly, we conclude that the evidence is insufficient to support Austin's conviction for conspiracy to distribute marijuana. At the most, "[t]he evidence against this defendant creates mere suspicion or insinuation of guilt of conspiracy, which is not enough to sustain such a conviction." United States v. McMahon, 562 F.2d 1192, 1197 (10th Cir.1977). We reverse and remand with instructions to direct a judgment of acquittal. See Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978).

Although we reverse on the above ground, we feel compelled to comment on the district court's failure to follow the "preferred order of proof" before permitting the introduction of coconspirator hearsay. See United States v. Petersen, 611 F.2d 1313, 1330-31 (10th Cir.1979), cert. denied, 447 U.S. 905, 100 S.Ct. 2985, 64 L.Ed.2d 854 (1980).

"In United States v. Petersen, we reiterated our ruling in United States v. Andrews [585 F.2d 961 (10th Cir.1978) ]:

'Our Andrews holding was simply that a...