U.S. v. Gaskin, 02-1070.

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Citation: 364 F.3d 438
• Docket Number: No. 02-1070.,No. 02-1186.,02-1070.,02-1186.
• Parties: UNITED STATES of America Appellee, v. Wayne GASKIN, aka "Atiba," and Al Castle, Defendants-Appellants.
• Decision Date: 16 April 2004

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364 F.3d 438 UNITED STATES of America Appellee,
v.
Wayne GASKIN, aka "Atiba," and Al Castle, Defendants-Appellants. No. 02-1070. No. 02-1186. United States Court of Appeals, Second Circuit. Argued: October 31, 2003. Decided: April 16, 2004.

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Edwin S.C. Obiorah, Rochester, NY, for Defendant-Appellant Gaskin.

Eftihia Bourtis, Assistant Federal Defender, Western District of New York, Webster, NY, for Defendant-Appellant Castle.

Everardo A. Rodriguez, Assistant United States Attorney, Western District of New York, Rochester, NY (Michael A. Battle, United States Attorney), for Appellee.

Before: FEINBERG, KEARSE, and RAGGI, Circuit Judges.

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RAGGI, Circuit Judge.

Defendants-appellants Wayne Gaskin and Al Castle were found guilty after a jury trial in the United States District Court for the Western District of New York (Charles J. Siragusa, Judge) of conspiracy to traffic in 100 kilograms or more of marijuana (Count One), see 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(B)(vii), and of possession with intent to distribute and distribution of 100 kilograms or more of marijuana in April 1999 (Count Two), see id. § 841(a)(1), 841(b)(1)(B)(vii); 18 U.S.C. § 2.¹ Gaskin was also found guilty on a separate substantive charge of possession with intent to distribute an unspecified quantity of marijuana between May 1999 and June 17, 1999 (Count Six). See 21 U.S.C. § 841(a)(1); 18 U.S.C. § 2. Further, Gaskin was ordered by the district court to forfeit approximately $20,000 in cash seized at the time of his arrest (Count Eight). See 21 U.S.C. § 853(a)(2).

Both defendants now appeal from final amended judgments of conviction entered on March 14, 2002, against Castle and on February 7, 2003, against Gaskin. Pursuant to these judgments, defendants are presently incarcerated, Castle serving a total term of 46 months and Gaskin serving a total term of 204 months.

Defendants assert that the trial evidence was insufficient to support their convictions and that the district court erred in failing to declare a mistrial based on jury misconduct. In addition, Gaskin argues that the district court erred in refusing to dismiss the indictment against him for violation of the Speedy Trial Act's thirty-day filing requirement, see 18 U.S.C. § 3161(b); refusing to suppress evidence seized in a warrantless search of his car; declining to give a missing witness charge; ordering forfeiture of money seized at his arrest; and increasing his Sentencing Guidelines base offense level for use of a minor in the commission of a crime, see U.S.S.G. § 3B1.4, obstruction of justice, see id. § 3C1.1, possession of a firearm in connection with a drug trafficking offense, see id. § 2D1.1(b)(1), and involvement as an organizer or leader of criminal activity involving five or more participants, see id. § 3B1.1(a). Castle further challenges his conviction on the ground that his trial attorney was constitutionally ineffective.

For the reasons stated herein, we reject each of these claims and, accordingly, AFFIRM both convictions.

I. Factual Background

Between the spring of 1998 and June 1999, Wayne Gaskin organized and financed the transportation of hundreds of kilograms of marijuana from the western part of the United States to Rochester, New York, where he then distributed the contraband. In making arrangements to acquire the marijuana and to have various couriers transport it by air, train, and motor vehicle to Rochester, Gaskin was assisted by numerous individuals, including co-defendant Al Castle. To prove defendants' participation in the charged conspiracy, the government relied on the testimony of three couriers — Bonnie Gahr, Kevin Miller, and Theodore Shaw — corroborated by voluminous credit card, telephone, airline, car rental, and hotel records. The same evidence was also relied on to prove the substantive marijuana charges, each charge relating to a specific marijuana transportation by one of the couriers. Thus, Count Two charged defendants in connection with Gahr's effort to transport approximately 285 pounds of marijuana by car from San Diego, California, to Rochester in April 1999; Count Three charged

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Gaskin in connection with Miller's transportation of an unspecified quantity of marijuana by train from San Diego to Rochester sometime between April and May 1999; Count Four charged Gaskin in connection with a similar transportation of marijuana by Miller in May 1999; Count Five charged both Gaskin and Castle with another Miller transportation of marijuana in June 1999; and Count Six charged Gaskin in connection with Shaw's efforts to transport eighty-six pounds of marijuana by motor home from Phoenix, Arizona, to Rochester between May and June 1999. On Counts Two and Six, for which there were corroborating drug seizures, the defendants were convicted. On Counts Three, Four, and Five, for which there were no corroborating seizures, they were acquitted.

Because defendants raise sufficiency challenges to the counts of conviction, we outline the relevant evidence in some detail.

A. Bonnie Gahr's Transportation of Marijuana

1. The Suitcase Transports

Bonnie Gahr testified that she had already known Gaskin for almost six years when, in the spring of 1998, he proposed that she fly to San Diego to pick up a suitcase containing marijuana and transport it back to him in Rochester. Gaskin promised to pay Gahr $1,000 or two pounds of marijuana for her efforts and to cover her travel expenses. Gahr accepted the offer and, following Gaskin's instructions, she flew to San Diego where she met with a man, "Mundahla," who packed fifteen to thirty plastic-wrapped bundles of marijuana into a suitcase. Upon Gahr's return to Rochester, Gaskin promptly came to her home to retrieve the suitcase, traveling in a black pickup truck driven by an African-American male. In a post-conviction proffer session with the government, defendant Castle would identify this man as "Sammy."

Throughout the spring and summer of 1998, Gahr traveled between Rochester and San Diego some five to ten times, transporting marijuana in suitcases for Gaskin on each occasion. On two or three of these trips, Gahr also acted as a reverse courier, carrying sums of cash as large as $25,000 from Gaskin to Mundahla.

2. The Truck Transport (Count Two)

In April 1999, Gaskin proposed to Gahr that she and her boyfriend (subsequently her husband), Ron Ruffin, drive truckloads of marijuana from San Diego to Rochester once a month over the next six months. Gaskin offered to supply the truck, to cover the couple's travel expenses, and to pay them $5,000 for each successful marijuana delivery.

On April 14, 1999, Gaskin brought a GMC Yukon truck to Gahr's home. Business records indicated that the Yukon, which was registered to Gahr, had recently been purchased in the name of one of Gaskin's in-laws. Gaskin supplied Gahr and Ruffin with $2,000, a map outlining their route to San Diego, and a walkie-talkie. The trio then drove to the entrance of the New York State Thruway where defendant Castle was waiting in a minivan. Gaskin got out of the Yukon, joined Castle in the minivan, and the two vehicles began to drive in tandem to California.

The next day, as the conspirators were traveling through Kansas, a state trooper spotted the two vehicles and stopped the minivan for a traffic violation. At trial, the trooper identified Gaskin as the driver of the van and testified that Gaskin had denied that the van and Yukon were traveling together. When the trooper subsequently

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stopped the truck, he noted several empty duffle bags in the vehicle.

As a result of the Kansas stops, the truck and minivan became separated, and it was not until the morning of April 17 that Gahr, Ruffin, Gaskin, and Castle reunited in San Diego. Gaskin assured his confederates that the Kansas trooper had not discovered that he was carrying $150,000 in cash. Nevertheless, Gahr expressed reservations about continuing with the marijuana scheme now that their vehicles were known to law enforcement authorities. She testified that all three men dismissed her fears and persuaded her to go forward with an alternative plan whereby she and Ruffin would drive back to Rochester by an alternate route, transporting the marijuana in a different vehicle.

That same night, the four conspirators went to a National Rental Car office. While Gahr, Ruffin, and Gaskin waited outside, Castle entered the agency and rented a Buick sedan, a transaction confirmed at trial through rental company records and Castle's credit card receipts. Gaskin and Castle drove off in the Buick, leaving Gahr and Ruffin to return in the Yukon to their hotel. The next morning, Gaskin told Gahr and Ruffin that the Buick was packed and ready for their return trip to Rochester. The couple left San Diego that day, leaving the Yukon with Gaskin.

Two days later, on April 20, while traveling through Illinois, Gahr and Ruffin were stopped by a state police officer who discovered approximately 285 pounds of marijuana concealed in the trunk of the Buick. Both Gahr and Ruffin were arrested. Although Ruffin was detained, Gahr was released on bail.

3. Post-Arrest Contact with Gaskin

After her release, Gahr promptly contacted Gaskin, who had not yet returned to Rochester, to tell him of the arrests and to ask for money to help her get back to New York. Gaskin wired $300. In Rochester, Gaskin told Gahr that money was then tight because the Illinois seizure had cost him $150,000 but, if she and Ruffin would keep their "mouth[s] shut," he would see that they were taken care of for the rest of their lives. Trial Tr., Sept. 6, 2001, at 198-99. Gaskin reported that he already had an attorney, Mustapha Muhammad, looking into the Illinois case against Ruffin, and he gave...