U.S. v. Evans
| Decision Date | 06 January 1983 |
| Docket Number | No. 82-1559,82-1559 |
| Citation | 697 F.2d 240 |
| Parties | 12 Fed. R. Evid. Serv. 529 UNITED STATES of America, Appellee, v. Joseph EVANS, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Thomas E. Dittmeier, U.S. Atty., Edward L. Dowd, Jr., Asst. U.S. Atty., St. Louis, Mo., for appellee.
Wolff & Frankel, Leonard J. Frankel, Clayton, Mo., Stephen M. Komie, Chicago, Ill., for appellant.
Before BRIGHT and ARNOLD, Circuit Judges, and HUNTER, * Senior District Judge.
Defendant, Joseph Evans, was charged along with four others, Charles Cargile, Edward England, Richmond Miller, and Phillip Wright, with violating federal narcotics laws. Evans' four codefendants pled guilty to the charges and he stood trial alone. 1 A jury convicted him on counts one and four of the indictment; of conspiring to possess with intent to distribute approximately 500 pounds of marijuana in violation of Title 21, United States Code, Secs. 841 and 846, and of possessing with intent to distribute approximately 127 pounds of marijuana in violation of Title 21, United States Code, Sec. 841, respectively.
Evans appeals his conviction on two grounds: (1) that the jury lacked sufficient evidence upon which to convict him, and (2) that the district judge erred in allowing the government to present evidence of his prior criminal or wrongful acts. After considering the challenges of defendant and reviewing the record below, we affirm.
The nature of defendant's claims requires us to set out in some detail the evidence elicited at trial. The government based its case primarily on the testimony of Detective Zambo, an agent for the Drug Enforcement Administration (DEA), and Edward England one of the initial codefendants in the case. Detective Zambo testified concerning a marijuana transaction that he had participated in while acting in an undercover capacity and to conversations he had had with defendant after the latter's arrest. Edward England related defendant's involvement in the same transaction. Also relied on, but to a lesser extent was the testimony of two additional DEA agents. 2
An informant put Detective Zambo in contact with Richmond Miller in September of 1980. A meeting was arranged, and Detective Zambo and the informant met with Miller and Charles Cargile on September 23, 1980, at the Drury Inn in St. Louis. The meeting was held to discuss a marijuana transaction. No marijuana was sold at the meeting, although Cargile wanted to purchase a sample at that time to show "his people" coming in from Alabama and Illinois. They scheduled another meeting for the next day to further discuss the sale and to check the quality of the marijuana.
Cargile called Edward England at his home in Petersburg, Illinois during the evening of September 22, 1980. He told England that he had a deal in St. Louis where England could buy all the marijuana he wanted. England had been involved in a marijuana transaction with Cargile during the summer of the same year.
After hearing from Cargile, England talked to Phillip Wright who lived in the same town, and called defendant in Chicago to ask them if they were interested in buying some marijuana. Over the objection of defendant, England explained that he called Evans because Evans had also been involved in the marijuana deal between Cargile and England the previous summer.
Evans arrived at England's home during the afternoon of September 23, 1980, driving a beige Buick. England drove defendant's car to St. Louis and Wright followed in a car that England had him rent. The three checked into the same Drury Inn where Detective Zambo had met with Cargile and Miller, and where the latter two were staying. On arrival in St. Louis the three contacted Cargile about the deal. He told them that it was to occur the next day, September 24, 1980.
On the 24th Agent Zambo, the informant, Miller, and Cargile all met again to discuss the deal. Cargile indicated that he wanted to buy 500 pounds of marijuana, 300 pounds of which were for his buyers from out of town. The foursome then drove to a St. Louis airport to view the marijuana located in a hangar. Being satisfied with the quality of the marijuana the group returned to the motel so that Cargile could get his money and drivers together.
Upon their return to the motel Miller went to Cargile's room to get their money and Cargile went down the hall to England's room to confirm that the deal was on. When Cargile returned from the room he told Detective Zambo that his drivers were ready. During this same period England, Wright, and Evans sat in England's room and counted their money to make sure they had enough to purchase the 300 pounds of marijuana. They had approximately $80,000 between them; Evans had brought half of that amount.
Shortly thereafter Cargile, England, Wright, and Evans drove in Evans' Buick and Wright's rented car to a St. Louis mall where they were to rendezvous with Detective Zambo and the informant. England told Evans to remain at the mall and that he would pick him up after "it was loaded." Everyone else proceeded to the airport hangar.
At the hangar approximately 125 pounds of marijuana was loaded into the trunk of defendant's car and 150 pounds was loaded into the rented car. England counted out $82,000, $10,000 of which came from a paper sack taken from a brown shoulder bag. England and Wright then drove the two cars back to the mall to pick up defendant.
Other DEA agents kept defendant under surveillance while he waited at the mall. During that time Evans made a purchase, ate, and then waited at the curb for England and Wright to return.
Upon their return to the mall England gave Evans the keys to the Buick, told him that the car was ready to go, and then got in Wright's car for the trip home. Evans was not going through Petersburg on his return to Chicago.
As the two cars exited the mall parking area agents stopped them, seized the marijuana in the trunks of both cars, and arrested the three occupants. Defendant was read his rights, and then taken to a St. Louis County police office. The others were taken to the local offices of the DEA. Among the items taken from Evans at the time of his arrest was approximately $700.
Evans was taken to the DEA offices the next morning, September 25, 1980, for processing. At the offices Detective Zambo again advised him of his rights and defendant indicated that he understood them. He did not, however, understand the charge against him. Detective Zambo explained that he was charged with conspiracy and with possession of marijuana with the intent to distribute it because he had more marijuana in his possession than deemed necessary for personal use. 3 Evans replied that "maybe we're just heavy smokers." Finally, Evans asked the detective if he would get his car back and identified the beige Buick as his car. When Detective Zambo said no that it was being seized as a vehicle used to transport marijuana, Evans said that he figured as much.
That same afternoon Detective Zambo again saw Evans at the Magistrate's Office for the setting of bond. Bond was set at $25,000. Detective Zambo overheard Evans comment that he didn't know how he was supposed to pay that amount when "they got all my money already."
Detective Zambo again spoke with Evans on September 26, 1980, when Evans was at the Marshal's Office claiming as his the clothes that were removed from the brown shoulder bag. He asked whether the shoulder bag would be returned to him. Again the detective told him that it was being seized because money used to purchase marijuana was taken from it. Evans said alright, signed the receipt for the property, and left.
England and defendant had at least three other contacts prior to defendant's trial. Sometime after their arrest in St. Louis but before Thanksgiving England drove to Chicago to see Evans. Evans was not home so England left him a note asking him to call. Evans did call shortly thereafter, but England was unable to recall any of the specifics of the conversation. England called Evans on Thanksgiving. Evans told England that he had been indicted on the St. Louis matter, and that England should check to see if he had been also. During the conversation Evans also told England that he could beat the charge if no one testified against him. Evans called England the day before his trial was to begin to persuade England not to testify against him. He told England that the most the judge would do to him if he did not testify would be to find him in contempt of court and place him in jail for the duration of the trial, but that the trial would last only a few days.
Evans claims that the foregoing evidence was insufficient to establish his guilt beyond a reasonable doubt. He does not challenge the existence of a conspiracy to possess and distribute marijuana. Instead Evans challenges the proof of his knowing participation in the conspiracy. His main contention is that the testimony of Edward England was too biased to support his conviction. Furthermore, the rest of the evidence against him failed to establish more than his knowing and associating with certain conspirators, also insufficient to convict him of the conspiracy charge. 4
To convict one of criminal conspiracy the government must show that the individual entered an agreement with at least one other person, that the agreement had as its objective a violation of law, and that one of those in agreement committed an act in furtherance of the objective. United States v. Schmaltz, 562 F.2d 558, 559 (8th Cir.1977), cert. denied, 434 U.S. 957, 98 S.Ct. 485, 54 L.Ed.2d 315 (1978). The only element of a criminal conspiracy at issue on this appeal is the government's proof that Evans did join in the conspiracy.
The government in large measure relied on the testimony of Edward England in establishing Evans' involvement in the conspiracy. It was the only direct...
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