U.S. v. Binkley
| Citation | 903 F.2d 1130 |
| Decision Date | 05 June 1990 |
| Docket Number | No. 88-2525,88-2525 |
| Parties | 30 Fed. R. Evid. Serv. 543 UNITED STATES of America, Plaintiff-Appellee, v. Charles Daniel BINKLEY, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Ralph M. Friederich, Asst. U.S. Atty., Office of the U.S. Atty., East St. Louis, Ill., for plaintiff-appellee.
Bruce D. Stewart, Harrisburg, Ill., for defendant-appellant.
Before CUDAHY and KANNE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
Defendant-appellant Charles Daniel Binkley appeals his conviction of one count of conspiracy to distribute marijuana in violation of 21 U.S.C. Sec. 846 and two counts of use of a telephone to facilitate the distribution of cocaine in violation of 21 U.S.C. Sec. 843(b). He argues that there was insufficient evidence to convict him of these offenses, and that it was error for the district court to admit evidence of his personal drug use at trial. For the reasons discussed below, we affirm.
In this case, both the defendant-appellant, Charles Daniel Binkley, and the government acknowledge the presence of a large conspiracy to distribute marijuana, involving witnesses Jay Robinson, Jerry Solomon, and several other people. Binkley, however, repeatedly and emphatically denies that he participated in this conspiracy. Although he admits to having purchased at least marijuana from the two co-conspirators mentioned above, he maintains that these purchases were for his own personal use, a defense called the "buyer-seller defense."
In 1982, Binkley purchased three-fourths of a pound of marijuana from Robinson. He claims that this marijuana was for his own personal use, and testified at trial that he had hidden this marijuana in his woodshed and that part of it was destroyed by mice. In March of 1983, defendant purchased four pounds of "shake" marijuana from Solomon. "Shake" is the leaves which are trimmed off marijuana buds when they are cleaned. Although it is largely unsmokeable, there usually is about one ounce of marijuana buds still left in every pound of shake. Binkley testified at trial that it was his intent to purchase this shake, which usually is not saleable, and to separate the buds from the leaves to obtain marijuana for his personal consumption.
The government, on the other hand, claims that Binkley bought this shake from Solomon in order to resell it. On March 17, 1983, Binkley had a telephone conversation with Solomon in which he said that he "might have somethin' workin' " and might need to replace the four pounds of shake he previously purchased from Solomon. Binkley told Solomon he might need it by the next day but wouldn't know until the afternoon. Binkley told Solomon "I got one in the hay."
On March 18, 1983, Binkley called Solomon again. He said, "I need 'em." When asked when, he replied that he would need them somewhere around noon. The following dialogue then occurred:
Solomon: No problem.
Binkley: No problem? I looked at those others ...
Solomon: Uh-huh.
Binkley: And they've lost some, I guess because of the humidity or lack of.
Solomon: Don't worry about it.
Binkley: Okay? I mean ...
Solomon: I'll just bring you somethin' like [unintelligible] little extra.
Binkley: It's about three. Little ones.
. . . . .
Solomon: Alright, s- so you need five more.
Binkley: No. I need four and, four and, uh ...
Solomon: Four and whatever.
Binkley: Four and just a little bit.
In a subsequent conversation on March 23, 1983, Binkley told Solomon that he was trying to do something real soon. Solomon replied that he would hold on to them and "make sure they won't go anywhere if you can do any good." Binkley stated that it might be three or four days before he knew for sure. After several moments of conversing on non-drug-related topics, Binkley indicated that "this is kind of exciting." He also said "that I'll try to get this other thing worked out, 'cause I could use that." Solomon responded that so could he, because things had been kind of slow.
Solomon testified at trial that these phone conversations referred to "shake" marijuana and that it appeared that Binkley was trying to set up a marijuana deal. On the other hand, Binkley testified at trial that these conversations referred to Binkley's attempt to replace four pounds of shake Solomon had sold to him earlier that month, but which had turned out to be wet and moldy. Binkley claims that the second four pounds also turned out to be wet and moldy and that he later attempted to get his money back. He further testified that what he said to Solomon on March 17 was "I got one and a hay," meaning that he had the $150.00 he still owed to Solomon. The March 23, 1983, conversation, Binkley testified, referred to his acknowledgement that he was trying to obtain marijuana elsewhere.
On March 29, 1983, Solomon and Binkley again spoke on the telephone. The pertinent part of their conversation went as follows:
Binkley: Well, I'm in need.
Solomon: No kiddin'.
Binkley: No. Maybe, maybe you don't understand what I'm talkin' about.
Solomon: Oh, okay. You're in need of the, that other thing.
Binkley: Yeah.
Solomon then told Binkley that he had to see someone, probably on Thursday, and would get back with him. On March 31, 1983, Binkley and Solomon again spoke on the phone. Solomon told Binkley that he had him taken care of and Binkley said he'd be over about 6:30. Solomon testified at trial that these conversations concerned cocaine, although he did not specifically recall the occasion. Binkley, on the other hand, contends that these conversations had to do with his attempt to recover the $250.00 he already had paid to Solomon for the "shake" marijuana, both deliveries of which turned out to be wet and moldy and to smell like ammonia when dried. Binkley stated that he thought that Solomon had to find $250.00 to repay him, and claimed not to know that Solomon kept $10-20,000.00 in cash around his house, as Solomon had testified.
On June 2, 1983, the FBI executed a search warrant on Solomon's property and confiscated several marijuana plants. The next day, Binkley called Solomon, and Solomon warned Binkley about the raid and told him to stay away from him. At trial, Solomon testified he only warned those people who were involved in drug activities with him.
Binkley was charged in a three-count indictment with one count of conspiracy to distribute marijuana, in violation of 21 U.S.C. Sec. 846 and with two counts of using an interstate facility, the telephone, to facilitate the distribution of cocaine in violation of 21 U.S.C. Sec. 843(b). At trial, Solomon, Robinson and his brother testified about their knowledge of Binkley with regard to the marijuana conspiracy. They said that: (1) Binkley never was a partner in the conspiracy; (2) Binkley never met with the other members of the conspiracy to discuss growing marijuana or any other aspect of the conspiracy with them; (3) Binkley never shared any of the profits of the conspiracy; (4) Binkley never contributed labor of any type to the conspiracy; and (5) Binkley never contributed money, seed, fertilizer or anything else tangible to the conspiracy. The district court denied Binkley's motion in limine to exclude evidence of his personal use of marijuana and cocaine at trial. Binkley was convicted on all three counts. He appeals his conviction, arguing that there was insufficient evidence to convict him, and that the district court erred in admitting evidence of his drug use.
Binkley argues that there was insufficient evidence to convict him of conspiring to distribute marijuana in violation of 21 U.S.C. Sec. 846. With respect to conspiracies of this type, we noted in United States v. Whaley, 830 F.2d 1469, 1472-73 (7th Cir.1987), cert. denied, 486 U.S. 1009, 108 S.Ct. 1738, 100 L.Ed.2d 202 (1988):
Appellate review of the sufficiency of the evidence to support a criminal conviction requires this court to determine whether, 'after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'
. . . . .
This appellate court will not reconsider the evidence or assess the credibility of the witnesses.... We give deference to the trial jury's weighing of the evidence and its drawing of reasonable inferences.... 'Only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt, may an appellate court overturn the verdict.' ... To succeed in his challenge of the sufficiency of the evidence, therefore, the appellant has a heavy burden....
(emphasis in original and citations omitted). For the reasons discussed below, we conclude that Binkley is unable to meet this burden.
It is agreed that the purchase of drugs from a conspiracy, without more, does not rise to the level of membership in the conspiracy. United States v. Koenig, 856 F.2d 843, 854 (7th Cir.1988); United States v. Douglas, 818 F.2d 1317, 1321 (7th Cir.1987); United States v. Mancillas, 580 F.2d 1301, 1307 (7th Cir.), cert. denied, 439 U.S. 958, 99 S.Ct. 361, 58 L.Ed.2d 351 (1978). We think, however, that this is more than a case of "mere purchase." In United States v. Marks, 816 F.2d 1207, 1212 (7th Cir.1987), we noted that someone who buys from a conspirator for resale is a member of the conspiracy if he at least knows its general aims. The evidence introduced at trial established that Binkley knew the individuals involved in the conspiracy and the conspiracy's purpose; that is, he knew where to go to buy marijuana. We think, moreover, that the facts of this case establish that Binkley was buying marijuana for resale. As Solomon testified at trial, "shake" marijuana usually is not saleable, but one could separate...
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