U.S. v. Jackson, No. 82-2158

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before WISDOM, REAVLEY and TATE; WISDOM
• Citation: 700 F.2d 181
• Decision Date: 25 February 1983
• Docket Number: No. 82-2158
• Parties: 12 Fed. R. Evid. Serv. 1100 UNITED STATES of America, Plaintiff-Appellee, v. Gurleon Maxi JACKSON, Talmadge Alvin Whitley and Nathan Phillip Hicks, Defendants-Appellants.

Page 181

700 F.2d 181 12 Fed. R. Evid. Serv. 1100 UNITED STATES of America, Plaintiff-Appellee,
v.
Gurleon Maxi JACKSON, Talmadge Alvin Whitley and Nathan
Phillip Hicks, Defendants-Appellants. No. 82-2158. United States Court of Appeals,
Fifth Circuit. Feb. 25, 1983.

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Horacio L. Barrera, Brownsville, Tex., for Jackson.

Roland E. Dahlin, II, Federal Public Defender, George McCall Secrest, Jr., Antonio Balderas, Jr., Asst. Federal Public Defenders, Houston, Tex., for Whitley.

L. Aron Pena, Edinburg, Tex., for Hicks.

Daniel K. Hedges, U.S. Atty., John M. Potter, James R. Gough, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.

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

Before WISDOM, REAVLEY and TATE, Circuit Judges.

WISDOM, Circuit Judge:

This appeal involves a sting operation conducted by agents of the Drug Enforcement Administration (DEA). The operation resulted in jury convictions of the defendants, Jackson, Hicks, and Whitley of conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1976). The jury also convicted Jackson of knowingly and intentionally using a communications facility in furtherance of a conspiracy to possess cocaine with intent to distribute. Each defendant has appealed his conviction.

Facts

Sometime in September 1981, Joyce and David Langley approached a Drug Enforcement Administration (DEA) Agent, C.T. Westmoreland, in south Texas and asked him for a job flying DEA aircraft. Instead of offering a flying job, Westmoreland offered to pay the Langleys for the names of persons involved in cocaine smuggling. Mrs. Langley put Westmoreland in contact with the defendant Gurleon Maxi Jackson. Mrs. Langley received $6,000 for her participation in the operation.

On October 14, 1981, DEA Agent Tony Tamayo, posing as a Mexican official dealing in drugs, met with Jackson in Matamoros, Mexico. At the meeting, Jackson told Tamayo that he was interested in finding someone to supply him with 10 kilograms of cocaine on a monthly basis. The two agreed on a price and place of delivery. On November 24, 1981, Tamayo phoned Jackson at a hospital in Mobile, Alabama and agreed to supply the cocaine by the end of November.

On November 25, 1981, Celestino Oliveira, a Brownsville, Texas police officer connected with the operation, telephoned Jackson as a representative of Tamayo. Jackson and Oliveira discussed the details of the exchange of the cocaine for money. After several more conversations, Oliveira met with Jackson at the Ramada Inn in Brownsville on November 29, 1981. At this meeting, Oliveira devised a plan for the actual execution of the exchange. For security reasons, Jackson and Oliveira decided to meet in a nearby Sambo's restaurant. Jackson would bring the cash to pay for the drugs and Oliveira would bring the drugs. While Oliveira and Jackson waited in the

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restaurant with the money, their accomplices would return to the Ramada Inn and test the drugs for purity. After Jackson's unnamed accomplice satisfied himself of the cocaine's purity, Oliveira could take the money.

After Oliveira and Jackson agreed on this plan, Nathan Hicks entered the motel room from an adjoining room and gave Oliveira an envelope containing $60,000 in cash. Oliveira counted the money. The three men then went to Sambo's. There, the envelope was placed on an empty chair at the men's table and was covered with a cowboy hat. Oliveira left the restaurant and instructed DEA Agent Thomas Lentini to enter the restaurant after a lapse of thirty minutes and indicate that the cocaine had arrived. Oliveira reentered the restaurant and joined Jackson and Hicks. After thirty or forty minutes Lentini arrived and delivered his message. At that point, Hicks went to a telephone and made a phone call. The content of the phone call was not disclosed at trial. Shortly after the phone call, Talmadge Whitley entered the restaurant, and took a seat at the table. Lentini and Hicks left the restaurant, presumably to pick up and test the cocaine. Both men were arrested outside the restaurant.

After about seven minutes, federal agents entered the restaurant and arrested Jackson, Whitley, and Oliveira. Between the time of Whitley's arrival at the restaurant and the time of the arrest, Whitley apparently did not speak to the other men despite attempts by Oliveira to engage him in conversation. During that time, Whitley did seem very watchful of the comings and goings in the restaurant, constantly turning his head from left to right. ¹

After his arrest, Hicks indicated that two other individuals were involved in the case and that they might be armed. Agents immediately went to the two rooms in the Ramada Inn where Oliveira, Jackson, and Hicks had met in the earlier meeting. Before entering the rooms, they encountered and arrested two suspects fitting the description given by Hicks. ² The agents entered the room in which Oliveira and Jackson had previously met and saw no contraband. The agents then went through a door, slightly ajar, connecting the first room with the room from which Hicks had come at the earlier meeting. The second room contained several items used in the testing of cocaine ³ and a handgun. All the contraband was in plain view. The room was registered in Hick's name.

The jury found all the defendants guilty on all counts charged. The court sentenced Jackson, Hicks, and Whitley to six years, six years, and three years, respectively.

Whitley

Whitley's only contention on appeal is that the evidence presented at trial was insufficient, as a matter of law, to convict him. Whitley argues that the government has failed to prove that he "knew of a conspiracy, joined a conspiracy or did anything in furtherance of a conspiracy". According to Whitley, the government's evidence showed only his presence in Sambo's. Nevertheless, the jury found Whitley guilty of conspiring to possess cocaine with the intent to distribute.

We must, of course, give deference to the findings of the jury. United States v. White, 5 Cir., 569 F.2d 263, 268,

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cert. denied, 1978, 439 U.S. 848, 99 S.Ct. 148, 58 L.Ed.2d 149. We must view the evidence presented in the case and the inferences that may be drawn from it in a light most favorable to the government and ask whether "a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt". United States v. Bell, 5 Cir.1982, 678 F.2d 547, 549. "We will reverse only if a reasonably minded jury must necessarily have entertained a reasonable doubt of a defendant's guilt." United States v. Vergara, 5 Cir.1982, 687 F.2d 57, 60; see also United States v. Galvan, 5 Cir.1982, 693 F.2d 417, 419. Nevertheless, we must not hesitate to overturn a jury verdict when it is necessary to "guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt". Estelle v. Williams, 1976, 425 U.S. 501, 503, 96 S.Ct. 1691, 1693, 48 L.Ed.2d 126, 130. Juries must not be allowed to convict on mere suspicion and innuendo. United States v. Littrell, 5 Cir.1978, 574 F.2d 828, 833. The test is whether the jury "could reasonably, logically, and legally infer from the evidence presented that the appellant was guilty beyond a reasonable doubt". United States v. White, 569 F.2d at 266.

In drug conspiracy cases, the government must prove beyond a reasonable doubt that a conspiracy existed, that the accused knew of the conspiracy, and that he knowingly and voluntarily joined it. ⁴ United States v. Bright, 5 Cir.1978, 550 F.2d 240, 242; United States v. White, 569 F.2d at 267. We have previously stressed that we will not lightly infer a defendant's knowledge and acquiescence in a conspiracy. Id. at 267; United States v. Johnson, 5 Cir., 439 F.2d 885, 888, cert. denied, 1971, 404 U.S. 880, 92 S.Ct. 213, 30 L.Ed.2d 161. The government must show beyond a reasonable doubt that the defendant had the deliberate, knowing, and specific intent to join the conspiracy. United States v. Galvan, 693 F.2d at 419; United States v. DeSimone, 5 Cir.1981, 660 F.2d 532, 537, cert. denied sub nom. Butler v. United States, 1982, 455 U.S. 1027, 102 S.Ct. 1732, 72 L.Ed.2d 149. A showing that the defendant merely associated with those participating in a conspiracy is insufficient. United States v. Fitzharris, 5 Cir.1980, 633 F.2d 416, 423, cert. denied, 1981, 451 U.S. 988, 101 S.Ct. 2325, 68 L.Ed.2d 847; United States v. Littrell, 574 F.2d at 833; United States v. White, 569 F.2d at 268. Similarly, the government cannot prove a conspiracy by presenting evidence that only places the defendant in "a climate of activity that reeks of something foul". United States v. Galvan, 693 F.2d at 419; United States v. DeSimone, 660 F.2d at 537.

Viewing the evidence in a light most favorable to the government, we have little trouble holding that a conspiracy existed and that Whitley was present while parts of the conspiracy were taking place. Beyond that, the evidence shows no criminal conduct on Whitley's part beyond a reasonable doubt. Although testimony at trial showed that Whitley joined Jackson and Oliveira in the restaurant, there is no evidence indicating that Whitley knew the nature or purpose of the meeting, or even that a large amount of money was present. The government has offered no evidence indicating that Whitley was present during conversations in which the conspiracy was discussed. ⁵ At the most, the evidence shows that Whitley associated with others who were involved with a conspiracy. That evidence is legally insufficient for a jury to infer, beyond a reasonable doubt, Whitley's

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knowing and voluntary participation in a conspiracy to possess cocaine with intent to distribute. His conviction may not rest on mere conjecture and suspicion. United States v. Fitzharris, 633 F.2d at 423; Vick v. United States, 5 Cir.1954, 216 F.2d 228,...