U.S. v. Greenwood, 91-8212

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation974 F.2d 1449
Docket NumberNo. 91-8212,91-8212
Parties36 Fed. R. Evid. Serv. 1190 UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Michael Merrill GREENWOOD, Lucy Mason Crain, a/k/a Maggie Lou Crain, a/k/a Miss Lucy, Doyle D. Oliver and J.W. Myers, Defendants-Appellants Cross-Appellees, and Steve Ellis and Robert Raul Estrada, Defendants-Appellants.
Decision Date02 October 1992

Richard D. Esper, El Paso, Tex. (Court-appointed), for Greenwood.

Salvador C. Ramirez, Robert R. Harris, El Paso, Tex., for Estrada.

Henry J. Bemporad, Asst. Federal Public Defender, San Antonio, Tex., Lucien B. Campbell, Federal Public Defender, El Paso, Tex., for Crain.

Norbert J. Garney, El Paso, Tex. (Court-appointed), for Oliver.

Thomas A. Coleman, Ackerman, Miss., for Myers.

Richard Mesa, El Paso, Tex. (Court-appointed), for Ellis.

Mark R. Stelmach, Richard J. Durbin, Jr., Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for U.S.

Appeals from the United States District Court for the Western District of Texas.

Before VAN GRAAFEILAND, * KING, and EMILIO M. GARZA, Circuit Judges.

KING, Circuit Judge:

This appeal is from two related drug trials involving an overlapping cast of defendants who participated in two separate conspiracies spread out over all three states within this circuit as well as Mexico. The first trial revolved around a marijuana conspiracy; the second, a methamphetamine conspiracy. Defendants-appellants Greenwood, Ellis, Estrada, and Crain appeal from their convictions at the marijuana trial. 1 Defendants-appellants Greenwood Crain, Oliver, and Myers appeal from their convictions at the methamphetamine trial. 2 We affirm all of the appellants' convictions.

The Government also cross-appeals from each of the four sentences imposed at the methamphetamine trial. The Government contends that the district court erred in holding that the four defendants could be sentenced only pursuant to a statutory provision governing schedule III controlled substances in view of the Government's description of methamphetamine as a schedule III controlled substance in the indictment. The Government notes that methamphetamine is in fact a schedule II substance, for which the district court could have imposed--under a different statutory provision than the schedule III sentencing provision actually relied on--considerably harsher sentences. The four methamphetamine cross-appellees counter that this Court does not have jurisdiction over the Government's cross-appeal of the sentences because the Government failed to file its notices of cross-appeal within the thirty days authorized by Federal Rule of Appellate Procedure 4(b). At issue is whether the Government's motions for reconsideration of the sentences filed within the original thirty-day appeals period started Rule 4(b)'s thirty-day clock running anew after the district court denied the Government's motions. If so, the Government's cross-appeals filed within thirty days from the denial of the motions were timely. We hold that we do have jurisdiction over the Government's cross-appeal. We, therefore, vacate the district court's sentences and remand for resentencing.

A. The marijuana conspiracy

On January 15, 1990, at the Bridge of the Americas port of entry in El Paso, Texas, the suspicions of a United States Customs Service inspector were aroused by an eighteen-year old driver of a Chrysler Cordoba who wished to come into the United States from Mexico. The extremely nervous young man, Robert Estrada, did not have a driver's license, possessed a $500 roll of cash, and claimed to be bringing nothing back from Mexico. Because the back seat of his automobile was unusually firm, customs agents removed it and discovered over 100 pounds of packaged marijuana hidden beneath. Agents also found various documents in the vehicle that made reference to one "Luis Liano" and his various automotive businesses in El Paso and Juarez, Mexico. Estrada denied prior knowledge of the marijuana, stated that he worked for Liano, and--changing his story--claimed that he went to Mexico in order to pick up auto parts, which were in the car's trunk. Estrada was then arrested.

A month later, on February 14, 1990, another Chrysler Cordoba attempted to enter the United States through the same port of entry in El Paso. Neither the driver, Donald Stone, nor the passenger, Michael Greenwood, possessed identification. Agents observed that Greenwood appeared nervous. When they ran his social security number through a law enforcement database, they discovered that he had an outstanding warrant for a marijuana charge. A search of Stone's person revealed that he was carrying approximately $500. Customs agents searched under the back seat of the car and once again discovered over 100 pounds of marijuana packaged in an identical fashion to the marijuana found in Estrada's Cordoba. Stone and Greenwood told agents that they had borrowed the car from Estrada.

After his arrest, Stone, a professional trucker, agreed to cooperate with the Government in exchange for a promise of non- prosecution. He informed authorities--and later jurors--that he was part of a operation smuggling marijuana from Mexico into the United States. Stone further implicated Estrada. According to Stone, not only did Estrada locate sources of marijuana in Mexico for Liano, but also he helped prepare vehicles for smuggling. Stone claimed that Estrada had made at least one other smuggling run from Juarez to El Paso, on which he was accompanied by Stone and Greenwood. In great detail, Stone also told how he and Greenwood had planned and carried out the February 14th smuggling trip.

Also implicated in the larger conspiracy were Lucy Crain, a manager of a Texas truck stop, and Steve Ellis, a Mississippi trucker. Stone claimed that Crain's truckstop served as a way station for truckers who smuggled marijuana and that Crain herself served as a messenger for smugglers. Stone stated that Crain had relayed messages to Ellis, who drove a truck containing approximately 100 pounds of marijuana, during a successful smuggling run in January 1990. Stone also claimed that Crain was a marijuana dealer and that she had sold Stone as much as thirty-three pounds of marijuana at a time. As further evidence of Crain's role in the marijuana conspiracy, the Government offered physical evidence that it had seized after a search of Crain's home--including gram scales, a marijuana tester kit, and marijuana seeds.

Stone's wife, who also served as a Government witness, testified at trial that during one of Crain's many visits to the Stones' home, Crain openly spoke of her involvement in the marijuana conspiracy. Mrs. Stone observed that Crain possessed "envelopes full of money with a bunch of figures on the outside"; one of the envelopes had the name "Mike Greenwood" written on it. Mrs. Stone also claimed that she heard Crain, Mr. Stone, and Greenwood discussing marijuana deals and prices. Finally, Mrs. Stone stated that Ellis had made repeated phone calls to the Stones' residence requesting to speak to Mr. Stone and asking for "his money and his dope," which supposedly referred to Ellis' remuneration for the smuggling trip that Ellis had made for the conspiracy in early January 1990.

Another cooperating witness for the Government was Gayla Koehler, a former girlfriend of Greenwood. She described many occasions when she had accompanied Greenwood in his truck as he hauled marijuana. She recounted in detail two specific instances of smuggling--one in January 1989 when Greenwood picked up marijuana from Crain, which Greenwood transported to Mississippi for further distribution, and a second in February or March of that same year when the two picked up a load of marijuana from Liano and again transported it to Mississippi. Koehler testified that on a number of occasions she overheard Greenwood and Crain discussing hundred-pound loads of marijuana, which had been unloaded at Crain's truckstop. Finally, Koehler wore a secret recording device which recorded, inter alia, Crain's expression of her fear that Stone, who had been arrested at that point, would implicate Crain in the smuggling operation.

Another Government witness was Roger Hefner, a co-conspirator who agreed to cooperate in exchange for a reduction of his charges to a misdemeanor count. Hefner, who had been introduced to Greenwood through Crain, testified that on January 10, 1990, he had permitted Greenwood to store marijuana on Hefner's property. Hefner further claimed that he had earlier purchased one and two-pound quantities of marijuana from Greenwood and Liano. Hefner also testified that he had assisted Crain in operating her legitimate truckstop business, but would occasionally take messages for her concerning her marijuana deals. Some of those messages were from Greenwood.

B. The methamphetamine conspiracy

Stone testified that he and Greenwood had been employed as truck drivers for a trucking company owned by co-conspirator J.W. Myers. Stone claimed that Myers would supply the methamphetamine to Stone and Greenwood in order to keep them awake during long hauls. Stone also recounted an incident during which Stone accompanied Greenwood to a meeting with Myers where Greenwood sold Myers an ounce of methamphetamine. 3 The agreed-upon price was $1300; Myers promised to pay the amount from the proceeds that he hoped to receive from selling the drug. Stone further testified in detail that, during the period spanned by the indictment, May 1989-May 1990, Greenwood and Crain, working together, engaged in methamphetamine distribution. According to Stone, Greenwood admitted to Stone that Greenwood and Crain had jointly sold ten and a half ounces of methamphetamine "in 1989" and that Greenwood was angry that Crain had not given Greenwood his share of the proceeds. Stone's wife similarly claimed that Crain had told her that Greenwood...

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