U.S. v. Henry

• Decision Date: 12 July 1988
• Docket Number: No. 87-3404,87-3404
• Citation: 849 F.2d 1534
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lewellyn HENRY and Winston Franklin McNair, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1534

849 F.2d 1534

UNITED STATES of America, Plaintiff-Appellee, v. Lewellyn HENRY and Winston Franklin McNair, Defendants-Appellants.

No. 87-3404.

United States Court of Appeals Fifth Circuit.

July 12, 1988.

George R. Simno, III, New Orleans, La., for defendants-appellants.

Lawrence Benson, Asst. U.S. Atty., New Orleans, La., for plaintiff-appellee.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before THORNBERRY, WILLIAMS, and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Appellants were convicted by a federal jury of knowingly possessing with intent to distribute some 3,300 pounds of marijuana, and of conspiracy to do the same under 21 U.S.C. Secs. 841(a)(1) and 846. The single issue presented on appeal is whether the evidence is sufficient to support the verdict. After carefully reviewing the entire record, we conclude that the evidence is sufficient to sustain the convictions. We affirm.

I.

Appellants Lewellyn Henry and Winston Franklin McNair, along with Jerry Glenn Barnes, were arrested in New Orleans at approximately 1:00 a.m. on December 10, 1986. At the time of their arrest, these three men were in McNair's van and seeking to exit a large fenced area at Berth 6, a part of the Port of New Orleans where incoming ocean freight is held for delivery. The van contained approximately 3,300 pounds of marijuana.

A customs officer testified that, during routine inspection the previous day, he noticed that a seal had been tampered with on a large container recently offloaded from a vessel. The United States Customs Service arranged to have a surveillance team watch the container. A customs agent, who observed the incident through binoculars from a tower 200 yards away, testified that at approximately midnight on December 9, he observed a security vehicle leading a van to the container. By this time it was well past regular business hours when freight is ordinarily received and thus the area was deserted. When the two vehicles arrived at the container, two of the men took a set of bolt cutters and broke into the container. While he could not determine who actually operated the bolt cutters, the Customs official testified the area was well-lighted and there was no apparent reason why the occupants of the van could not observe this activity. Once the container was opened, the Customs officer testified that all of the men present assisted in loading the van with twenty-one thick, cardboard U-Haul boxes that were securely closed with heavy steel bands. After the van was loaded, McNair got into the driver's seat and was joined by Henry and Barnes. McNair proceeded toward the exit of the fenced port area. Before the van reached the exit it was stopped by Customs officers and the three men were arrested. Several of the boxes were opened and they all contained marijuana that was tightly wrapped in two or three layers of plastic which prevented detection of any odor of the contents.

Following the entry of a guilty plea, Barnes testified for the government. Barnes testified that he received a call a few days before his arrest and was told to expect the arrival of McNair in a van to pick up a load of marijuana. Barnes testified that, as expected, Henry telephoned him during the evening of December 9 and Barnes met appellants at a shopping center. Barnes then drove McNair and Henry in McNair's van to the wharf area to obtain the marijuana. Barnes testified that a paper bag partially filled with cash was in McNair's van when he met them at the shopping center. Barnes followed telephone directions he received and handed the bag--later determined to contain more than $15,000--to the security guard, Thompson, when they arrived at the gate. Thompson then got in his vehicle and led the van to the container. Barnes' testimony is generally consistent with that of the customs officers after they reached the container.

Both McNair and Henry testified in their own defense. McNair testified that he had worked for most of the previous year operating a package delivery business in New York using his own van. Most of the trips he made were in and around New York City although he occasionally travelled as far as Boston, Pittsburgh and New Orleans. Henry was an employee of the New York Racing Association and occasionally helped McNair with long distance driving. McNair testified that a few days before he was arrested, a dispatcher named "David" at Choice Courier in New York called him. David asked McNair to pick up twenty packages in New Orleans for immediate delivery to New York City. McNair asserted that David agreed to McNair's request for a cash fee of $1,000 plus expenses. McNair testified that the dispatcher told him to contact Barnes for further instructions when he arrived with his van in New Orleans. When McNair arrived in New Orleans on December 8, he called Barnes and learned that the shipment would be temporarily delayed. McNair asserted that he then called the Choice Courier dispatcher, David, for further instructions and was told to deliver the load as soon as possible after it was ready. McNair then called Henry who agreed to fly to New Orleans and assist with the driving during the anticipated twenty-four hour, nonstop trip. McNair told Henry he would pay him $250, plus expenses for his help.

According to appellants' testimony, McNair and Barnes met Henry at the airport in New Orleans late in the afternoon of December 9 and the three men drove to Barnes' garage. Barnes told appellants that the packages would not be ready for delivery until later that evening and suggested they go sightseeing. McNair left his van with Barnes and went with Henry to tour the French Quarter. When appellants called Barnes later that evening, Barnes told them to return to his garage. Appellants contend that Barnes picked up a paper bag from his garage and the three men proceeded in McNair's van to the port area. According to appellants, Barnes spoke with the uniformed security guard at the gate and gave him the paper bag from the van. The guard then opened the gate, got into a small pickup truck and led the van to a large shipping container. Appellants admitted that they saw the guard give Barnes a bolt cutter and saw Barnes break into the container. Thereafter, according to appellants, Barnes and the guard loaded the cardboard U-Haul boxes from the container into the van. Appellants' version thereafter is generally consistent with that of the government's witnesses.

II.

Appellants were caught red-handed with 3,300 pounds of marijuana in their possession. The only question is whether the evidence is sufficient to support the jury's necessary conclusion that appellants knowingly and intentionally possessed the marijuana and that they were knowing participants in a conspiracy to possess and distribute it. Stated in simpler terms, the question is whether the jury was entitled to infer from the evidence that McNair and Henry knew that the boxes they loaded into the van contained marijuana.

In United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc), aff'd, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983) we explained the standard of review in cases alleging insufficiency of the evidence:

[To sustain a conviction] [i]t is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt. A jury is free to choose among reasonable constructions of the evidence.

Assuming, as we must, that the jury accepted the version of the evidence favorable to the verdict, several facts could have led the jury to conclude that appellants knew the nature of their mission: (1) the visit to the deserted freight yard after midnight; (2) the delivery of the bag of money to the security guard to give appellants access to the secure wharf area and guide them to the proper container, (3) the forceable entry into the container to free the cargo; and (4) appellants' possession of approximately 3,300 pounds of marijuana.

The above facts demonstrate much more than "mere presence at the scene of a crime or close association with co-conspirators." United States v. Magee, 821 F.2d 234, 239 (5th Cir.1987). The facts demonstrate presence and association under an aggravated set of suspicious circumstances. As the Eleventh Circuit stated in United States v. Cruz-Valdez, 773 F.2d 1541, 1545 (11th Cir. 1985) (en banc), cert. denied sub nom. Ariza-Fuentas v. United States, 475 U.S. 1049, 106 S.Ct. 1272, 89 L.Ed.2d 580 (1986). In most cases including this one ... the evidence establishes not mere presence but presence under a particular set of circumstances. In such a case, the task of determining the sufficiency of the evidence is not aided by the ritualistic invocation of the "mere presence" rubric. Rather, it requires an examination of all of the proved circumstances, including presence, to determine whether from them a reasonable jury could infer and find beyond a reasonable doubt knowing and intentional participation.

The explanation of McNair and Henry that they were hired for a total of $1,250 by a legitimate commercial New York courier service to pick up and transport an unknown cargo to New York was uncorroborated and the jury was entitled to reject it. The jury was entitled to conclude that the facts surrounding McNair's alleged arrangement with Choice Courier was irregular. McNair testified that his customer did not identify the cargo, tell him its weight, or how it was to be handled. He produced no work order, shipment order or writing of any kind to support his testimony. He stated that he spoke with an individual at Choice Courier known only to him as "David" and he gave conflicting answers on the address of Choice Courier. He admitted that he was not asked to sign a receipt for the cardboard boxes...