U.S. v. Lee
| Decision Date | 10 January 1983 |
| Docket Number | No. 81-6010,81-6010 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Grover Lamar LEE, a/k/a "Poss" Lee, Defendant-Appellant. Non-Argument Calendar. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
B. Anderson Mitcham, Tampa, Fla., for defendant-appellant.
Curtis Fallgatter, Jacksonville, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before HILL, KRAVITCH and HENDERSON, Circuit Judges.
Appellant, Grover Lamar Lee was convicted of conspiracy to distribute marijuana and for using a telephone to facilitate the commission of a conspiracy, in violation of 21 U.S.C. Sec. 843(b) (1976). Appellant appeals this conviction based on three grounds: (1) insufficient evidence, (2) multiple conspiracy and (3) double jeopardy or collateral estoppel. We find appellant's arguments without merit and we affirm for the reasons stated below.
Appellant was initially indicted in January 1977 on a two count indictment alleging a conspiracy to distribute marijuana and a substantive count alleging distribution. A superceding indictment was subsequently filed in February of 1977 alleging a single count of possession of marijuana with the intent to distribute. In February of 1977, a motion to consolidate count one of the original indictment with count one of the superceding indictment was granted.
Appellant was tried on the consolidated charges in April 1977. The jury found the appellant guilty of the conspiracy count and not guilty of the substantive count of possession with the intent to distribute. Appellant filed a timely notice of appeal. While the appeal was pending in November 1977, appellant was indicted in a racketeering prosecution. The appellant was only charged in Count One of this indictment and was acquitted in July 1978.
Appellant's appeal of the conviction for the conspiracy trial was successful to the extent that his conviction was reversed and the case was remanded to the district court for a new trial. 1
The Government then successfully moved to dismiss the original conspiracy charge and filed another superceding indictment alleging a single count of conspiracy to distribute marijuana. Appellant filed a motion to dismiss raising, among other things, double jeopardy and collateral estoppel claims. The district court denied the appellant's motion and appellant subsequently filed an interlocutory appeal based upon the trial court's denial of his motion. 2
On November 20, 1979, the Government filed a new and final superceding indictment. The charge alleged conspiracy with the intent to distribute and the use of a telephone to facilitate the commission of the conspiracy. The jury found the appellant guilty on both counts, and the appellant presently appeals this conviction.
Appellant Lee was an investigator for the Public Defender's Office of Suwannee County, Florida. Lee and Sheriff Leonard of Suwannee County had been friends since childhood and frequently exchanged information regarding each other's business needs. Appellant because of their friendship was aware of when Sheriff Leonard would be impounding large amounts of marijuana due to recent confiscations.
In June of 1976 the appellant approached Sheriff Leonard with an idea about taking the impounded marijuana and selling it for profit. Appellant informed Sheriff Leonard that Judge Smith of the local circuit court would be willing to take some of the impounded marijuana "off [Sheriff Leonard's] hands." The judge would issue a destruction order which would create an illusion of legality and instead of destroying the marijuana, the Sheriff would deliver it to the judge, who would in turn sell it. Sheriff Leonard told the appellant he would think about it. Sheriff Leonard then contacted FBI agent Ramsey and informed him of the proposed conspiracy.
Sheriff Leonard allowed Agent Ramsey to connect a recording device to his phone while Sheriff Leonard called Judge Smith and informed him that he was ready to go through with the deal. The arrangements were made and on September 15, 1976, appellant Lee arrived at the back of the jail in his pickup truck. Lee had a paper rolled up in his hand and when he saw Sheriff Leonard step out the back door he said "I have it." What he had was never identified. Sheriff Leonard told Lee that he wasn't going through with the deal and Lee responded, "I don't blame you, but you ought to catch them all." Lee then left and did not contact Sheriff Leonard again. Eventually, in November 1976, the deal did go down and Judge Smith and the appellant were arrested.
The appellant asserts that there was insufficient evidence to demonstrate that he was a knowing participant in a conspiracy and that in any event he had withdrawn from the conspiracy by September 15, 1976. The appropriate standard of review in criminal cases requires this court to view the evidence in a light most favorable to the Government, with all reasonable inferences drawn therefrom. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Marx, 635 F.2d 436, 438 (5th Cir.1981). When a claim of insufficient evidence is raised on appeal the applicable principle is whether "a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt." United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982).
The evidence presented in this case demonstrates that appellant was well aware of the conspiracy to obtain the impounded marijuana for Judge Smith. The appellant approached Sheriff Leonard and informed him of the potential drug deal. If a person knows of a conspiracy and he or she intentionally takes steps to further the conspiracy then culpability is established. Direct Sales Company v. United States, 319 U.S. 703, 63 S.Ct. 1265, 87 L.Ed. 1674 (1943); United States v. Becker, 569 F.2d 951 (5th Cir.1978).
The government presented considerable evidence demonstrating the appellant's knowledge and participation in the conspiracy. Further, the government recorded thirty-five phone calls from the appellant to Judge Smith during the conspiratorial period. Although appellant was not actively involved in meetings or present when the drug deal was consummated, his involvement in the conspiracy was substantial. It is not necessary that the government prove that the appellant knew every essential detail or participated in every stage of the conspiracy. The government need only show that the appellant knew of the conspiratorial goal and that he voluntarily participated in helping to accomplish the goal. United States v. Gianni, 678 F.2d 956 (11th Cir.1982); United States v. Watson, 669 F.2d 1374 (11th Cir.1982); United States v. Davis, 666 F.2d 195 (5th Cir. Unit B 1982).
Drawing all reasonable inferences and viewing the evidence in a light most favorable to the Government, there was sufficient evidence to allow a reasonable trier of fact to conclude that appellant was guilty of conspiracy beyond a reasonable doubt.
Appellant also argues that after September 15, 1976, he no longer participated in or had knowledge of any conspiracy. He further suggests that his statement "you ought to catch them all" demonstrates his withdrawal from the conspiracy. To establish withdrawal from a conspiracy the appellant needed to demonstrate that he took an affirmative action to defeat or disavow its purpose. United States v. Diaz, 662 F.2d 713, 716 (11th Cir.1981); United States v. Martino, 648 F.2d 367, 393 (5th Cir.1981). The burden of proving withdrawal rests with the defendant. United States v. Killian, 639 F.2d 206, 209 (5th Cir.1981). The appellant chose not to assert a withdrawal defense at trial, and requested no instruction to the jury on withdrawal. It is only here on appeal that the appellant makes this argument. Because this defense was not raised or proved at trial, appellant has not carried his burden and we find his argument without merit.
Appellant further argues that the indictment...
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