U.S. v. Glasgow

• Decision Date: 13 October 1981
• Docket Number: No. 79-5316,79-5316
• Citation: 658 F.2d 1036
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marvin Whitfield GLASGOW, III, and Larry Gene Salares, Defendants-Appellants. . Unit B *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1036

658 F.2d 1036

UNITED STATES of America, Plaintiff-Appellee, v. Marvin Whitfield GLASGOW, III, and Larry Gene Salares Defendants-Appellants.

No. 79-5316.

United States Court of Appeals, Fifth Circuit.

Unit B ^*

Oct. 13, 1981.

Peter F. K. Baraban, Miami, Fla., A. Raymond Randolph, Jr., Washington, D. C., for Glasgow.

Jesse O. Farr, Rodney C. Strong, Chattanooga, Tenn., Richard A. Kaplan, Washington, D. C., for Salares.

Nicholas P. Geeker, U. S. Atty., Thomas R. Santurri, Asst. U. S. Atty., Pensacola, Fla., for plaintiff-appellee.

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

Before VANCE, HATCHETT and ANDERSON, Circuit Judges.

R. LANIER ANDERSON, III, Circuit Judge:

Appellant Marvin W. Glasgow, Jr., was convicted by a jury of conspiracy to possess marijuana with intent to distribute it in violation of 21 U.S.C. § 846; possession of marijuana with intent to distribute it in violation of 21 U.S.C. § 841(a)(1); and possession of cocaine in violation of 21 U.S.C. § 844. Appellant Larry Gene Salares was convicted by the jury of conspiracy to possess marijuana with intent to distribute it in violation of 21 U.S.C. § 846. ¹ In this consolidated appeal, both appellants challenge the trial court's denial of their motions to suppress. Appellant Glasgow contends that the evidence is insufficient to support his conspiracy and marijuana possession convictions and appellant Salares contends that the evidence is insufficient to support his conspiracy conviction. Appellant Salares also challenges the trial court's refusal to grant his motion for severance. We agree that the evidence was insufficient to support the convictions of Glasgow with respect to his convictions of conspiracy and possession of marijuana. We agree also that the evidence was insufficient to support the marijuana conspiracy conviction of Salares. Accordingly, we reverse in part. We address the Fourth Amendment issues as they relate to appellant Glasgow's conviction for possession of cocaine and conclude that the conviction must stand. Because of our disposition of the sufficiency question raised by appellant Salares, we do not address his severance argument.

FACTS

The events leading up to the convictions of appellants in this case began in the early morning hours of September 28, 1978, when a deputy of the Hendry County, Florida, Sheriff's Department observed a plane landing at the county airport. Once the plane was on the ground, the deputy saw a man in the plane join another man in a nearby phone booth. Both men disappeared before they could be identified. The plane was later discovered to contain 15 bales of marijuana. The plane bore the identification number N237WT on its tail.

Five days later, on October 3, 1978, W. C. Echols, who operates a one-man garage, responded to a call about a disabled van from appellant Larry Salares. Salares told Echols that the van had quit running and that he wanted Echols to tow it in and fix it. Although Echols told Salares that he might be able to fix the van on the road, Salares insisted that he tow it in to his shop. Eventually Salares drove it to Echols' shop and turned the keys over to him. When appellant Salares left the van, he told Echols it was a 1976 model. Salares told Echols that the van "would get hot and quit running" (Transcript of Motion to Suppress Hearing of March 22, 1979, Record on Appeal, Vol. II at 56) and that he thought it had "electrical ignition trouble" (Id. at 57). Echols asked Salares his name, but Salares did not give his name and only said that he would return for the van the next day.

Echols began working on the van the next morning. He determined that the van was a 1978 model. He noticed that the van was littered with whiskey and beer bottles, and he detected a "sweetish odor" he didn't recognize. (Transcript of Motion to Suppress Hearing of March 22, 1979, Record on Appeal, Vol. II at 65). He observed that the van had auxiliary fuel tanks and that it had been repainted. A solid plywood partition separated the front "cab" area of the van from the rear. There were no windows in the rear of the van and the rear doors were closed. Echols determined that the engine coil was causing the van's trouble. The coil was accessible between the two front seats, and Echols did not need to and did not enter the rear of the vehicle.

After a visitor to Echols' shop commented that the van had a peculiar odor and asked Echols whether it was a "dope hauling" van, Echols began to wonder whether the van might have been stolen. As a "safety precaution" (Transcript of Motion to Suppress Hearing of March 22, 1979, Record on Appeal, Vol. II at 78), he asked the visitor to send a deputy to check the van to see if it was a stolen vehicle.

On the afternoon of October 4, 1978, Deputy Quinn McMillan of the Walton County, Florida, Sheriff's Department arrived at Echols' shop. Echols asked McMillan to check the tag number of the van and told him that the driver of the van had not identified himself. McMillan took down the tag number, looked inside the front of the van, walked back to the police car, then returned a little later to the van and began looking in the cab. He then looked around inside on the floormat and in the glove compartment. He picked up some "stuff" on the floor Echols didn't recognize and put it in an envelope. Next, Officer McMillan took the keys out of the van and went to the back, opened the door and looked in the back for 15 to 20 minutes. There were several items in the rear of the van, including containers of aircraft fuel, aircraft seats, a 100-pound scale, and a television set. McMillan removed two briefcases, what appeared to be a radio-telephone communications system, a cardboard box with an aircraft log book, aerial maps of South America, and various papers from the rear of the van and took these items with him. He also removed less than an ounce of what he thought to be marijuana residue from the rear of the van. The log book was that of the aircraft identified as N237WT.

McMillan left but returned later that same night with Customs Patrol Officer Louis Patterson and Ralph Dyer, a Panama City policeman. They returned the items Officer McMillan had removed from the van. Officer Patterson learned that Customs in New Orleans, Louisiana, had information in its computer concerning the aircraft N237WT. He notified the Drug Enforcement Agency (DEA) and put two people on surveillance of Echols' shop, beginning at about 9 a. m. on October 5, 1978. That morning, appellant Salares arrived at Echols' garage to pick up the van. Agents followed the van to a residence at 3 Old Ferry Road, Shalimar, Florida. They did not see Salares there, but they saw the van backed up in the vicinity of the front door. About an hour later, appellant Marvin Glasgow was seen driving the van away from the Old Ferry Road house. Agents saw appellant Salares in a car following Glasgow. Meanwhile, surveillance of the 3 Old Ferry Road residence was initiated. Agents observed Glasgow drive the van to a Ford dealership. Agents continued to maintain full-time surveillance on the van. On the morning of October 6, 1978, surveilling agents saw appellant Glasgow pick up the van at the Ford dealership and drive it to the Radio Shack. While the van was at the Radio Shack, one of the agents looked inside the rear of the van and observed that the briefcases, boxes and other items seen by Officers Patterson, McMillan and Dyer were no longer there. Thereupon, Officer Patterson secured a search warrant for the residence at 3 Old Ferry Road. Officers executed the warrant in the late afternoon of October 6, 1978. During the course of the search, agents found a paper bag with $28,000 in it; eight bales of marijuana in the same bedroom with all the items that had been in the van while it was at Echols' shop, including the log book for the aircraft N237WT; personal papers bearing the name of Marvin Glasgow, Jr.; ² photographs of appellants Salares and Glasgow as well as a photograph of aircraft N237WT, among other items.

After the search of the Old Ferry Road residence had been in progress for some time, appellant Glasgow arrived in the van at the residence. He was removed from the van and frisked. A vial of a white powdery substance later determined to be cocaine was discovered on his person.

SUFFICIENCY OF THE EVIDENCE

In a conspiracy case, it is the job of the government to prove by substantial evidence that there was an agreement between two or more persons to commit a crime, that each conspirator knew of, intended to join, and participated in the conspiracy. United States v. Marx, 635 F.2d 436 (5th Cir. 1981); United States v. Malatesta, 590 F.2d 1379 (5th Cir.), cert. denied, 444 U.S. 846, 100 S.Ct. 91, 62 L.Ed.2d 59 (1979). The government need not prove any overt act under 21 U.S.C. § 846, the conspiracy statute here involved. United States v. Marx, supra. Each element of the crime of conspiracy must be proven beyond a reasonable doubt. United States v. Arredondo-Morales, 624 F.2d 681 (5th Cir. 1980). We set out guidelines for appellate review of the sufficiency of the evidence recently in United States v. Marx, supra. There we said:

In reviewing the sufficiency of the evidence, we must view all the evidence, direct and circumstantial, in the light most favorable to the government, and must accept all reasonable inferences and credibility choices that tend to support the jury's verdict. (citations omitted) The standard of review is whether a jury could reasonably find that the evidence was inconsistent with every reasonable hypothesis of innocence or, put another way, whether a reasonably minded jury must necessarily entertain a reasonable doubt of the defendant's guilt. (citations omitted) In a conspiracy case, the verdict must be sustained if, taking the evidence most favorable to the government, there is substantial evidence to support the conviction. United States v....