U.S. v. Gonzales

• Decision Date: 16 February 1989
• Docket Number: No. 88-2256,88-2256
• Citation: 866 F.2d 781
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roberto GONZALES and Stewart McGlinchey, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 781

866 F.2d 781

UNITED STATES of America, Plaintiff-Appellee, v. Roberto GONZALES and Stewart McGlinchey, Defendants-Appellants.

No. 88-2256.

United States Court of Appeals, Fifth Circuit.

Feb. 16, 1989.

Thomas S. Berg, Roland E. Dahlin, II, Federal Public Defender, Houston, Tex., for Gonzales.

Michael D. Miller, court-appointed, Galveston, Tex., for McGlinchey.

Frances H. Stacy, Paula C. Offenhauser, Asst. U.S. Attys., Henry K. Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before GEE, HIGGINBOTHAM and DUHE, Circuit Judges.

DUHE, Circuit Judge:

Defendants Roberto Gonzales and Stewart McGlinchey were charged with others in a multi-count indictment involving various cocaine transactions. McGlinchey never sold directly to any drug enforcement agents but dealt cocaine to a number of middlemen, including co-defendant Gonzales who sold cocaine to an undercover agent. McGlinchey was convicted of continuing criminal enterprise (CCE), conspiracy, communications offenses, and distribution. R. 556. Gonzales was convicted of conspiracy, communications offenses, and distribution. R. 558.

Defendants Gonzales and McGlinchey appeal. For the following reasons, we affirm on all points except the conspiracy conviction and sentence of McGlinchey.

1. CCE

Defendant McGlinchey contests the sufficiency of the evidence to sustain his conviction of CCE. The CCE statute requires proof that a defendant organized, supervised, or managed five or more persons in a continuing series of drug violations from which the defendant obtained substantial income. 21 U.S.C.A. Sec. 848(b)(2)(A) (1981) [Sec. 848(b) was redesignated as Sec. 848(d) by 1986 amendment (Supp.1988) ]. McGlinchey argues that he had a simple buyer-seller relationship with his customers, which does not establish "supervision". McGlinchey also distinguishes his case from cases upholding CCE convictions involving a "kingpin" with whom buyers cannot negotiate prices or other terms of their sales and who import massive amounts of controlled substances.

The standard of review for claims of insufficiency of the evidence is whether, after viewing the evidence presented and all inferences reasonably drawn therefrom in the light most favorable to the jury verdict, any rational jury could have found the essential elements beyond a reasonable doubt. Neither the jury nor this Court is required to examine each circumstance in isolation. See U.S. v. Magee, 821 F.2d 234, 239 (5th Cir.1987). All reasonable inferences and credibility choices which support the jury's verdict must be accepted. U.S. v. Clark, 741 F.2d 699, 703 (5th Cir.1984).

The evidence showed many sales by McGlinchey, mostly wholesale (except to Smith), including the following:

11/83 McGlinchey/Tigett and girlfriend Park/Agent Cavazos (about 4 sales)

10/84 McGlinchey/Cook/Russel and girlfriend Falterman (an informant)/Agent Barry (2 sales)

McGlinchey/"Butch"/Jim and Dinah Mueller

3/85--11/85 McGlinchey/Cook/Jim Mueller (numerous transactions)

1985--1/87 McGlinchey/Mueller (weekly transactions from 1-86 till Mueller's death in 1-87) (Mueller had 7-10 customers, including Pouncey and Cindy, McGlinchey's daughter)

8/85--1986 McGlinchey/Lyles (Cindy's boyfriend) (about 30 transactions) / Stephens/Agent Console and Agent Weed

11/85--5/86 McGlinchey/Pouncey/Agent Rogers (9 deals)

5/86 McGlinchey/Roberto Gonzales and "wife" Ochoa/Agent Collins (2 deals)

4/86--5/86 McGlinchey and brother Joe/Ken Smith

There was ample evidence to support the jury's conclusion that McGlinchey organized five or more people in a criminal enterprise. McGlinchey approached Tigett to deal cocaine while Tigett was a patron in McGlinchey's bar. McGlinchey used Cindy to recruit Lyles. His partner at his business (A-1 Air Conditioning), an ex-police officer with a previous conviction of heroin possession, provided intelligence to McGlinchey. McGlinchey had connections at the downtown police department. Cook, Lyles, and Pouncey all tried to protect McGlinchey from detection, and McGlinchey protected his subordinates from detection and arrest. McGlinchey used Cindy and his brother Joe as couriers.

McGlinchey financed some of his buyers' purchases by either fronting the cocaine or accepting checks and holding them until the proceeds of the sales covered them. He frequently used women driving in separate cars for deliveries as a cover because they look less suspicious. Because some of his subordinates also used this practice, the jury might have reasonably inferred that McGlinchey encouraged this practice. Similarly, several of the defendants used the same code words to describe cocaine.

Control was also manifest by McGlinchey's directing Gonzales to meet him despite Gonzales's fear of detection. He controlled the amount Tigett and Pouncey (among others) could resell. He paid Cindy to go to Houston to obtain cutting agents. He financed Pouncey's bail. He provided his subordinates with vehicles and dwellings.

McGlinchey had a residence in Galveston at 2127 Saladia and several lots in Hitchcock about twenty minutes from the Saladia house; McGlinchey also had an apartment at the Landings where he often harbored his yacht, the ISLAND PRINCESS. Lyles lived in a Landings apartment with a telephone wire stretched to McGlinchey's yacht, and Lyles stored cocaine for McGlinchey at his apartment. At various times McGlinchey allowed Joe and Pouncey to live at his Hitchcock residence; the Muellers, Cindy (while dating Lyles), Pouncey, and Joe all lived at McGlinchey's Saladia Street house at one time or another. Mueller dealt to his customers from the Saladia Street house. McGlinchey allowed Lyles to enter the Saladia Street house to pick up cocaine or drop off proceeds even while McGlinchey was out of town. McGlinchey also used A-1 Air Conditioning business as a site for deals and at least once ran drug money through its account.

The terms "organized," "supervised," and "managed" are not words of art and should be interpreted according to their everyday meanings; an elaborate structure need not be shown. See U.S. v. Oberski, 734 F.2d 1030, 1032 (5th Cir.1984). The evidence certainly permits a reasonable inference that McGlinchey supervised at least five individuals among Cindy, Joe, Tigett, Pouncey, Lyles, Cook, Gonzales, and Mueller (not counting Smith who was a retail customer or Stephens, Russel, and Falterman who possibly never met McGlinchey).

A CCE conviction also requires proof that defendant obtained "substantial income or resources" from his conduct. 21 U.S.C. Sec. 848(b)(2)(B). The Supreme Court has said the CCE statute "is designed to reach the 'top brass' in the drug rings, not the lieutenants and foot soldiers." Garrett v. U.S., 471 U.S. 773, 781, 105 S.Ct. 2407, 2413, 85 L.Ed.2d 764 (1985). Nevertheless, the requirement that a defendant obtain substantial income from drug trafficking is satisfied by showing that many thousands of dollars changed hands, and that some was received by the defendant. See U.S. v. Bolts, 558 F.2d 316, 321 (5th Cir.), cert. denied, 434 U.S. 930, 98 S.Ct. 417, 54 L.Ed.2d 290 (1977).

In this case about $44,000 worth of McGlinchey's drugs was sold to the government alone. One of McGlinchey's customers (Cook) sold $700 worth of cocaine to Mueller every week; Mueller paid Cook for some of the cocaine with checks endorsed "S. McGlinchey" or stamped "A-1 Air Conditioning." When Mueller began buying directly from McGlinchey, he bought twice as much cocaine weekly as he had from Cook. Another customer (Lyles) paid McGlinchey about $15,000 for cocaine. The May 1986 search of McGlinchey's West Bayou Lane house disclosed about $3,000 in cash and about $28,000 in jewelry. While there was no evidence of massive importation or individual sales of great quantities, there was sufficient evidence from which the jury could reasonably infer that McGlinchey obtained substantial income from his drug trafficking. This Court will not overturn the CCE conviction.

2. McGlinchey convictions in Counts 4, 9, 10, 11, and 12

Count 4. McGlinchey argues that there was no proof of the origin of the cocaine involved in the Cook/Russel/Agent Barry transaction on October 9, 1984 at 6:39 p.m. Cook was simply observed driving to McGlinchey's Saladia Street residence and arriving at 6:58 p.m., and McGlinchey's car was there. Cook later acknowledged that he provided Russel with the cocaine and that he had obtained it from a source to whom he had paid the proceeds of the sale. Cook told Agent Barry that his source was the largest cocaine dealer on the Texas coast and had been in business for twenty years. Ample evidence showed that the Saladia Street house was frequently the site for exchanges of cocaine and sale proceeds. The jury is entitled to view the circumstance of Cook driving to McGlinchey's house in conjunction with the totality of the circumstances and infer therefrom that McGlinchey was the source.

Counts 9, 10, and 11. McGlinchey argues that there is no evidence that the October 8, 11, and 29, 1985, cocaine deliveries made by Lyles and Stephens to Agent Console originated with McGlinchey. McGlinchey was in Kansas City October 6, 1985, and there was evidence that Lyles got no cocaine from McGlinchey when he got back. Further, McGlinchey argues, on September 6, Lyles had only one ounce when Console ordered two ounces; the October deliveries must have come from another source since McGlinchey was out of town. Lyles testified that the cocaine from the October 29 delivery came from another source and that he was unsure about the origin of the October 8 and October 11 contraband.

The jury is entitled to discredit this testimony exonerating McGlinchey. On two earlier dates Lyles visited or called McGlinchey at his apartment or at the Saladia address before and after cocaine sales. Similar circumstances were shown on the dates of the three sales in...