U.S. v. Hitow

• Citation: 889 F.2d 1573
• Decision Date: 28 November 1989
• Docket Number: Nos. 88-1970,88-2033,s. 88-1970
• Parties: 29 Fed. R. Evid. Serv. 500 UNITED STATES of America, Plaintiff-Appellee, v. Lee HITOW (88-1970); David Long (88-2033), Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 1573

889 F.2d 1573

29 Fed. R. Evid. Serv. 500

UNITED STATES of America, Plaintiff-Appellee, v. Lee HITOW (88-1970); David Long (88-2033), Defendants-Appellants.

Nos. 88-1970, 88-2033.

United States Court of Appeals, Sixth Circuit.

Argued July 27, 1989.

Decided Nov. 28, 1989.

John A. Smietanka, U.S. Atty., John C. Bruha (argued), Grand Rapids, Mich., for U.S.

Kenneth M. Mogill (argued), Detroit, Mich., for Hitow.

Larry C. Willey (argued), Grand Rapids, Mich., for Long.

Before WELLFORD and RYAN, Circuit Judges, and CONTIE, Senior Circuit Judge.

WELLFORD, Circuit Judge.

Lee Hitow and David Long appeal their convictions for participation in a large conspiracy to distribute marijuana. See also United States v. Lochmondy and Ludlow, Nos. 88-2049/2134; United States v. Arnold, No. 88-2133. We affirm.

I.

In the spring of 1983, Dennis Erikson invested $150,000 in a load of marijuana that was to be brought to the United States from Colombia. Erikson decided that he wanted to obtain part of the load and began making preparations to receive some of the marijuana. He arranged storage sites for the marijuana and spoke with various individuals concerning the shipment. One such conversation was with appellant David Long. Erikson telephoned Long, with whom he had dealt on a previous load of marijuana in February 1983, and told him that Long could have "as much [of the marijuana] as he could do."

Erikson went to Atlantic City, New Jersey, in August 1983 to await the arrival of the marijuana. He arranged for a semi-truck to drive the marijuana from Atlantic City to the Kalamazoo, Michigan area. After its arrival in Atlantic City, the marijuana was loaded into the truck, Erikson paid a $1,000,000 down payment, and the marijuana was then driven to the home of codefendant Willis Canter in Galesburg, Michigan, near Kalamazoo.

When the truck arrived at Canter's address, it got stuck in the driveway and almost tipped over. A tow truck was called to free the semi, which was then taken to a storage site at the farm of Casey Plantefaber near Three Rivers, Michigan (the Buckhorn Farm). The marijuana was unloaded, weighed, and put into a pole barn. Its total weight was 43,000 pounds, including packaging.

On the following day, Erikson and Stephen Powell, who had agreed to distribute some of the load, began delivering van loads of marijuana to Canter's house for distribution by codefendants Kim Arnold and Canter on consignment. On one of these trips, Erikson was approached by appellant Lee Hitow, who asked to purchase the rest of the load. Although Hitow did not receive the rest of the load, Powell was told by Canter that Hitow received approximately 1800 pounds of marijuana from the shipment. Powell observed Hitow loading or unloading marijuana at Canter's address at least twice. Hitow was also seen there by other coconspirators when marijuana was being picked up and payments were being made.

Erikson notified Long of the marijuana's arrival and accompanied him to Buckhorn Farm. Long apparently was one of the few persons allowed to go directly to the storage site at Buckhorn Farm to obtain marijuana. He obtained at least two pickup loads of marijuana there, which he purchased on consignment from Erikson. Long did not pay Erikson for all the marijuana he obtained.

Some of the marijuana was of poor quality and was returned by various customers. Stephen Powell took some of the marijuana from Canter's home to the home of codefendant Michael Roberts. When Powell went to the Canter address to make this pickup, he observed Hitow and another defendant putting returned marijuana into the truck that Powell was to take to Roberts' house. This marijuana was ultimately returned to the East Coast sources by another conspirator.

II.

In March 1988, a federal grand jury returned a three-count indictment against appellants Long and Hitow and 15 other defendants. Count 1 of the indictment charged all of the defendants with conspiracy to possess with intent to distribute in excess of 1,000 pounds of marijuana, in violation of 21 U.S.C. Secs. 846, 841(a)(1). Count 2 charged all of the defendants with possession with intent to distribute and distribution of over 1,000 pounds of marijuana, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2.

The district court divided the defendants into two groups for trial. The first group included appellants Long and Hitow and three other defendants. On July 28, 1988, the jury returned verdicts of guilty against Hitow and Long. Hitow was found guilty on both Counts 1 and 2. Long was found guilty on Count 1 and the lesser-included offense in Count 2 of possession with intent to distribute less than 1,000 pounds of marijuana.

III.

1. Sufficiency of the Evidence

Both appellants contend that the evidence was insufficient to convict them on Count 1, which charged them with conspiracy to possess with intent to distribute and distribution of in excess of 1,000 pounds of marijuana, in violation of 21 U.S.C. Secs. 846, 841(a)(1). The elements of this offense are: (1) that the defendants entered into an agreement to possess with intent to distribute and/or distribution of in excess of 1,000 pounds of marijuana, (2) that they did so willingly, and (3) that one of the conspirators knowingly committed at least one overt act in furtherance of the conspiracy. United States v. Meyers, 646 F.2d 1142 (6th Cir.1981).

No formal or express agreement is required. The agreement may be inferred from the acts done in furtherance of the conspiracy. Direct Sales Co. v. United States, 319 U.S. 703, 63 S.Ct. 1265, 87 L.Ed. 1674 (1943); Poliafico v. United States, 237 F.2d 97 (6th Cir.1956). Once the existence of the conspiracy is proven, only slight evidence is necessary to connect a defendant with the conspiracy. United States v. Mayes, 512 F.2d 637, 647 (6th Cir.), cert. denied, 422 U.S. 1008, 95 S.Ct. 2629, 45 L.Ed.2d 670 (1975). It is only necessary that a defendant know of the object of the conspiracy, associate himself with it, and knowingly contribute his efforts in its furtherance. United States v. Grunsfeld, 558 F.2d 1231 (6th Cir.), cert. denied, 434 U.S. 872, 98 S.Ct. 219, 54 L.Ed.2d 152 (1977).

The government's position is that both appellants were part of a "chain" conspiracy to distribute the load of marijuana. In "chain" conspiracies, the agreement can be inferred from the interdependent nature of the criminal enterprise. United States v. Warner, 690 F.2d 545, 549 (6th Cir.1982). It can be assumed that participants understand they are participating in a joint enterprise because success is dependent on the success of those from whom they buy and to whom they sell. United States v. Bourjaily, 781 F.2d 539, 544 (6th Cir.1986).

The key element of a chain conspiracy is knowledge of a large operation. United States v. McLernon, 746 F.2d 1098, 1107-08 (6th Cir.1984). This element may be satisfied by proof of actual knowledge or proof of participation in a transaction from which such knowledge may be inferred. United States v. Watson, 594 F.2d 1330, 1337 (10th Cir.), cert. denied, 444 U.S. 840, 100 S.Ct. 78, 62 L.Ed.2d 51 (1979). Knowledge may be inferred from the interrelated nature of the drug business or the volume of drugs involved. Grunsfeld, 558 F.2d at 1235.

In reviewing the sufficiency of the evidence, we must view the evidence in the light most favorable to the government, and all reasonable inferences must be drawn in the government's favor. United States v. Tilton, 714 F.2d 642, 645 (6th Cir.1983) (per curiam). If the evidence is sufficient to justify a reasonable juror's conclusion that each element of the offense has been established beyond a reasonable doubt, the convictions will be affirmed. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The government presented extensive evidence at trial against Long both as to Counts 1 and 2. Long had advance knowledge of the shipment of marijuana. Erikson testified that he had dealt with Long on a previous load of marijuana in February 1983, and contacted Long to inform him that another load was coming into the United States. Long indicated that he wanted part of the marijuana. Erikson told Long that he would have access to the marijuana and that he "could have as much as he could do." After the arrival of the marijuana, Erikson met with Long and escorted him to Buckhorn Farm to pick up marijuana. Erikson testified that Long obtained at least two pickup loads of marijuana, but was unaware of the exact weight. Erikson further testified that Long purchased the marijuana on consignment.

Appellant Long contends that while this evidence may have been sufficient to prove his involvement in a smaller conspiracy to possess with intent to distribute less than 1,000 pounds of marijuana, it was insufficient to prove his involvement in the larger "chain" alleged in Count 1. Long contends that he was "indifferent" to the larger conspiracy, citing United States v. Glenn, 828 F.2d 855 (1st Cir.1987). We are satisfied that the evidence is sufficient to prove that Long was involved in the larger conspiracy. Long had advance knowledge of the sizeable load of marijuana and was told by Erikson that he could have "all he could do." Long's subsequent actions indicate his willingness to participate in distribution of the larger load. He obtained at least two pickup loads of marijuana (totalling approximately 1,000 pounds) and knew that more marijuana was available to him if he wished to have it. His liability is determined, not by how much he actually obtained, but by the scope of his knowledge and agreement. United States v. Richards, 737 F.2d 1307, 1309 (7th Cir.1984), cert. denied, 469 U.S. 1106, 105 S.Ct. 779, 83 L.Ed.2d 774 (1985). A reasonable jury, on the basis of this evidence, could find that Long knew he was participating in a larger venture. The evidence thus showed the type of interdependence necessary for a proper application of the "ch...