U.S. v. Gianni, 81-5237

• Decision Date: 14 June 1982
• Docket Number: No. 81-5237,81-5237
• Citation: 678 F.2d 956
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gary Anthony GIANNI, Joseph Mike Giardina, Richard Loren Holland, James Robert Ham, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 956

678 F.2d 956

UNITED STATES of America, Plaintiff-Appellee, v. Gary Anthony GIANNI, Joseph Mike Giardina, Richard Loren Holland, James Robert Ham, Defendants-Appellants.

No. 81-5237.

United States Court of Appeals Eleventh Circuit.

June 14, 1982.

William B. Barnett, Orlando, Fla., for Gianni.

John S. Berk, Fort Lauderdale, Fla., for Giardina.

Jeffrey M. Harris, Fort Lauderdale, Fla., for Holland and Ham.

Joseph T. Urbaniak, Jr., Asst. U. S. Atty., Orlando, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before WISDOM ^*, RONEY and HATCHETT, Circuit Judges.

RONEY, Circuit Judge:

Convicted of conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C.A. § 841(a)(1), defendants claim on appeal (1) the evidence was insufficient to convict, (2) the indictment should have been dismissed because of the Government's outrageous conduct and (3) evidence obtained during warrantless searches of four cars should have been suppressed. Rejecting these arguments, we affirm.

Late in the summer of 1980, the Drug Enforcement Administration instituted an undercover operation called "Operation Doublecross." Approved by the Department of Justice, Operation Doublecross was aimed at apprehending persons involved in financing marijuana purchases. It involved arranging the undercover sale of marijuana previously seized by the DEA in earlier operations. The four defendants were not principals involved in any sale, but were drivers of cars which contained some of this marijuana that had been "sold".

A brief review of the background facts is necessary to show the part played by the defendants. Pursuant to the guidelines of Operation Doublecross, DEA Agent Fagan contacted Kenneth Craig. Agent Fagan had met Craig roughly a year earlier in the course of an undercover DEA operation during which Craig had represented that he and Robert Karley, whom Agent Fagan had also met in the earlier operation, could supply cocaine or large amounts of marijuana. Craig had previously been present when a sample of marijuana was shown Agent Fagan.

In renewing his contacts with Craig and Karley, Agent Fagan informed them separately by telephone that he had a large quantity of marijuana available for sale. Agent Fagan told Karley to telephone if he knew anyone interested in the marijuana. Karley called Agent Fagan several days later, indicating he had some people, including "Craig's man", interested in the marijuana. A meeting was arranged, and negotiating sessions involving several other persons not defendants in this case followed. During the course of one session, the undercover DEA agents met David Wainer. Wainer indicated he had buyers then present at the site of the negotiations, a Holiday Inn Motel, ready to deal in large quantities of marijuana. Indicating his desire to protect his buyers, some of whom he said he had worked with for four or five years, Wainer told agents there would be no necessity for them to meet the buyers and that they would be kept from sight. Eventually, an agreement was reached for the sale and transfer of marijuana to Karley, Craig, Wainer and their "people". Undercover agents placed 390 pounds of marijuana in three cars provided by the buyers in return for $95,350.00. Later that same day a second transaction was arranged in which 760 pounds of marijuana was transferred to the buyers in the same fashion for approximately $186,200.00. Surveilling DEA agents observed both transactions.

The four defendants in this case were arrested while operating the cars loaded with marijuana in the second transaction. Each defendant was the sole occupant of the car he was driving at the time of his arrest.

Sufficiency of the Evidence

Defendants contend there was insufficient evidence to support their convictions for conspiring to possess with the intent to distribute marijuana. Conceding the existence of a conspiracy between Karley, Craig and Wainer, defendants argue the evidence is insufficient to show any of them knew of the conspiracy and knowingly and willingly participated in it.

When confronted with a claim of insufficient evidence, we must view the evidence in the light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Rice, 652 F.2d 521, 526 (5th Cir. 1981), ¹ making all credibility choices in support of the jury verdict. United States v. Black, 497 F.2d 1039 (5th Cir. 1974). The standard of review is whether a reasonably minded jury must necessarily entertain a reasonable doubt as to the defendants' guilt. United States v. Rodriquez, 654 F.2d 315, 317 (5th Cir. 1981); United States v. Kelley, 630 F.2d 302, 303 (5th Cir. 1980).

While mere presence or association with other persons involved in a criminal enterprise is not sufficient to prove participation in a conspiracy, United States v. Horton, 646 F.2d 181 (5th Cir. 1981), cert. denied, --- U.S. ----, 102 S.Ct. 516, 70 L.Ed.2d 388, the essential elements of a conspiracy can be proven by inference from the actions of the actors or by circumstantial evidence. United States v. Conway, 632 F.2d 641, 643 (5th Cir. 1980); United States v. Malatesta, 590 F.2d 1379, 1381 (5th Cir.) cert. denied, 444 U.S. 846, 100 S.Ct. 91, 62 L.Ed.2d 59 (1979); 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). There is rarely any direct evidence of an agreement to join a criminal conspiracy, so that a defendant's assent can be inferred from acts furthering the conspiracy's purpose. United States v. Middlebrooks, 618 F.2d 273, 278 (5th Cir.), cert. denied, 449 U.S. 984, 101 S.Ct. 401, 66 L.Ed.2d 246 (1980). The Government is not required to prove knowledge of all the details of the conspiracy on each of its members, provided a defendant's knowledge of the essentials of the conspiracy is established. United States v. Alvarez, 625 F.2d at 1198.

Carefully reviewing the evidence under Glasser and in light of these principles, we hold the evidence was sufficient to sustain the convictions. Pursuant to the agreement and consistent with the pattern employed in a transaction occurring only hours earlier that same day, the Government agents delivered three cars with trunks filled with marijuana to the Holiday Inn parking lot. The cars had been provided by conspirator Wainer. Three of the defendants emerged simultaneously from the motel, met with Karley in the parking lot, entered the marijuana laden vehicles and drove to another point in the lot where they parked together and were joined by a fourth car driven by the fourth defendant. The evidence amply shows all four defendants engaged in shuffling some marijuana bales to the fourth automobile, departed the lot, and were eventually arrested while operating the cars. Defendant Ham owned two of the cars, defendant Giardina one, and a fourth was owned by defendant Holland's wife. Evidence of these facts, along with conspirator Wainer's alluding to the presence of his "buyers" at the motel, eliminates the possibility that a jury necessarily must have entertained reasonable doubt of defendants' guilt. The defendants do not deny the existence of a drug conspiracy, and a jury could reasonably conclude from the evidence adduced at trial and the inferences reasonably drawn therefrom that they knew of the conspiracy and knowingly and willingly participated in it. The circumstances belie the argument that defendants did not know their cars contained marijuana.

Motion to Dismiss

Arguing the DEA's supplying of the marijuana to the defendants was outrageous conduct...