U.S. v. Elledge, 82-7327

• Decision Date: 27 January 1984
• Docket Number: No. 82-7327,82-7327
• Citation: 723 F.2d 864
• Parties: 14 Fed. R. Evid. Serv. 1512 UNITED STATES of America, Plaintiff-Appellee, v. Cecil W. ELLEDGE, and Wayne Anthony Poole, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 864

723 F.2d 864

14 Fed. R. Evid. Serv. 1512

UNITED STATES of America, Plaintiff-Appellee, v. Cecil W. ELLEDGE, and Wayne Anthony Poole, Defendants-Appellants.

No. 82-7327.

United States Court of Appeals Eleventh Circuit.

Jan. 27, 1984.

David C. Johnson, Birmingham, Ala., for Elledge.

Hiram Dodd, Jr., Birmingham, Ala., for Poole.

Michael V. Rasmussen, Asst. U.S. Atty., Birmingham, Ala., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Alabama.

Before GODBOLD, Chief Judge, RONEY and SMITH ^*, Circuit Judges.

RONEY, Circuit Judge:

Cecil W. Elledge and Wayne Anthony Poole were convicted in a jury trial of conspiracy to import marijuana and conspiracy to possess with intent to distribute marijuana. 21 U.S.C.A. Secs. 963, 846. The defendants claim there was insufficient evidence to support their convictions and that the district court committed reversible error by admitting evidence of a death threat made to a government witness. After a careful review of the trial record and the recorded conversations and meetings, we affirm.

To establish the existence of a drug conspiracy, the government must prove an agreement by two or more persons to violate the narcotics laws. United States v. Blasco, 702 F.2d 1315, 1330 (11th Cir.1983); United States v. Cuni, 689 F.2d 1353, 1356 (11th Cir.1983). The existence of a conspiratorial agreement may be established through circumstantial evidence, such as "inferences from the conduct of the alleged participants or from circumstantial evidence of a scheme." Blasco, 702 F.2d at 1330 (quoting United States v. Spradlen, 662 F.2d 724, 727 (11th Cir.1981)). "Proof is not required that the defendant had knowledge of all the details of the conspiracy; the defendant need only have knowledge of the essential objective of the conspiracy." United States v. Tamargo, 672 F.2d 887, 889 (11th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 141, 74 L.Ed.2d 119 (1982); United States v. Alvarez, 625 F.2d 1196, 1198 (5th Cir.1980) (en banc), cert. denied, 451 U.S. 938, 101 S.Ct. 2017, 68 L.Ed.2d 324 (1981).

Unlike in other conspiracy cases, the government need not prove any overt act in furtherance of a conspiracy under the Comprehensive Drug Abuse Prevention and Control Act of 1970, including 21 U.S.C.A. Sec. 846 (conspiracy to distribute) and Sec. 963 (conspiracy to import). Blasco, 702 F.2d at 1330 (Sec. 846); United States v. Thomas, 567 F.2d 638 (5th Cir.) (Sec. 963), cert. denied, 439 U.S. 822, 99 S.Ct. 90, 58 L.Ed.2d 114 (1978). In this case, therefore, the government had to establish only that a conspiracy existed, that each defendant knew at least the essential objectives of the conspiracy, and that each defendant voluntarily participated in it. Blasco, 702 F.2d at 1330; United States v. Middlebrooks, 618 F.2d 273, 278 (5th Cir.), modified on other grounds, 624 F.2d 36 (5th Cir.), cert. denied, 449 U.S. 984, 101 S.Ct. 401, 66 L.Ed.2d 246 (1980).

The defendants argue that although there was a great deal of conversation about drugs, those discussions were only preliminary to, and did not result in, any final criminal agreement to import and distribute marijuana. We examine the evidence here in some detail to see whether there was evidence of a conspiracy or only evidence of preliminary discussions without any illegal agreement.

The prosecution was based almost entirely upon recorded conversations between the defendants and an associate, who began working in a undercover capacity for the Federal Bureau of Investigation. The informer had numerous conversations with Elledge, and met with both Elledge and Poole at an airport to talk with a prospective pilot about the importation. The conversations between Elledge and the informer cannot form the conspiracy because it takes at least two to conspire, neither being a government agent or informer. United States v. Tombrello, 666 F.2d 485, 490 n. 3 (11th Cir.), cert. denied, 456 U.S. 994, 102 S.Ct. 2279, 73 L.Ed.2d 1291 (1982); United States v. Martino, 648 F.2d 367, 405 (5th Cir.1981). The conversations could, however, be evidence of a conspiracy between Elledge and Poole.

Cecil Elledge was an attorney in Birmingham, Alabama. His friend Wendell Dowdy had introduced him to Wayne Poole, a marijuana dealer. Sometime prior to the conspiracy here alleged, Poole and Elledge had been involved in an attempt to smuggle marijuana into the country by plane. That plan failed because the plane broke down and the pilot backed out.

In March, 1982, Elledge asked one of his clients if he would like to earn some money by finding an aircraft to be used to haul flowers. The client located several planes, but Elledge rejected them, emphasizing the need for a plane with a large payload and short take-off and landing capabilities. The client told Elledge that it appeared he was looking for a "dope" plane. Elledge acknowledged that he was, and offered the client part of the payload if the client could find a suitable aircraft.

The client reported these conversations to the Federal Bureau of Investigation. He agreed to continue his contacts with Elledge and to use a recording device. He testified in this trial. Working as an undercover informer, he returned to Elledge's office. They discussed the routes an aircraft could take through the Caribbean and the Gulf of Mexico, and Elledge pointed out some areas that were patrolled. Elledge assured the informer that the people for whom the plane was being sought did not know the informer's name. Elledge stated, "The ones that are running it are right here ..." and "... we're supposed to be ready to go." Elledge stated that he and the informer "were going to do it for a percentage of it...."

The informer then said he might have found a plane, a DC-3, and a pilot who would be willing to fly it for a fixed price depending "on how much we're hauling...." Elledge said they would be hauling a "plane load", and told the informer to ask the pilot how much money he wanted. Asked when the flight would be, Elledge said, "Soon." Elledge said the pilot would have a one-day notice before he was to take off. The marijuana would be waiting for him at an airport in South America. The pilot would be paid a certain amount down and the remainder after some of the marijuana had been sold. Elledge said they already had guards. Elledge stated, "This is the best deal here ... the pilot with a plane. That's what we've been looking for." Elledge then talked about future deals where other partners would not have to be included. At the end of the conversation, Elledge said he would "start calling my folks." He called a "Wayne," who was not there, and then told the informer, "My man's over there talking to 'em now."

Later, when the informer returned to Elledge's office, Elledge called "Wayne" and said over the telephone, "300 and then you gotta worry about trying to get rid of it up here ... Well, we got to get us a plane load, that is all there is to it." The informer said the pilot and plane were available. Elledge replied, "The sooner we get it set up, that's the man we want."

Elledge discussed the possibility of going to Colombia, South America to find their own source for future deals. Elledge said he was ready to do the current deal, but the people financing the scheme were scared because of some event in Montgomery. Elledge said he had the distribution network set up. He mentioned that Dowdy was "one of the three sponsoring us." Elledge indicated the marijuana would be dropped off in Blount County.

In a telephone call later that day, Elledge and the informer again discussed their plans to fly to Colombia to find their own source. Regarding the current deal, the informer reported that the pilot would be available on short notice. Elledge stated: "Now if I can just get these guys to do something ... I mean if they could just fall in place tonight or maybe tomorrow ... we'd be ready to go," but that if nothing else came through they could set up their own "run" and make a lot more money.

The informer called Elledge on April 13, 1982, reporting that the pilot wanted $60,000 for his services, and that the pilot could obtain his own marijuana source. Elledge told the informer to "tell 'em we'll talk to him" and to call Elledge the next day. When called the next day, Elledge said he had been "talking to the man." Elledge asked if the pilot could bring the "eagle" in the next week so "they" could look at it.

Two days later, the informer went to Elledge's office and they discussed a plan to give the pilot $60,000 in three installments. After calling Dowdy, Elledge said that the biggest problem was coming up with the cash.

Later that day, the informer returned to Elledge's office and said he had talked to the pilot and that the offer was "generally acceptable." Elledge said Dowdy was the one he would have to see about the money. He cautioned the informer not to let anyone know Elledge's name. They discussed the profits they would make ($300,000 for Elledge and the informer, with the remaining proceeds going to the other participants).

On April 22, 1982, the informer went to Elledge's office. Elledge said the sponsors were trying to get the money and that they were "converting some stuff into cash money." Told that the pilot and the plane would be ready the next day, Elledge said, "We'll all go to the plane ..." and then talk to the pilot, and that the pilot should be ready to make the trip to Colombia the following day. The informer was to call Elledge when the pilot arrived.

The next day, April 23, 1982, Elledge was told that the pilot was to land at noon. Around noon, Elledge and the informer met at the airport. Elledge called someone else to meet him, and after hanging up, he told the informer that the other person "can't get away right now, he said anything I thought was good enough for him." Wayne Poole then arrived at the airport, and the three of them discussed the pilot's...