U.S. v. Marable

• Decision Date: 30 May 1978
• Docket Number: No. 77-5413,77-5413
• Citation: 574 F.2d 224
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Melvin MARABLE and Douglas E. Jones, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 224

574 F.2d 224

UNITED STATES of America, Plaintiff-Appellee, v. Melvin MARABLE and Douglas E. Jones, Defendants-Appellants.

No. 77-5413.

United States Court of Appeals Fifth Circuit.

May 30, 1978.

Rehearing Denied June 29, 1978.

David B. Byrne, Jr., Montgomery, Ala., Herbert Shafer, Atlanta, Ga., for Marable.

Mark J. Kadish, Atlanta, Ga., for Jones.

William L. Harper, U.S. Atty., Robert A. Boas, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Georgia.

Before TUTTLE, COLEMAN and CLARK, Circuit Judges.

COLEMAN, Circuit Judge.

MULTI PARTY-MULTI ATTACK

Melvin Marable, Douglas Jones, Horace Jones, and Clarence Cole, Jr. were jointly indicted in a three-count indictment for drug offenses.

Count 1 charged all four men with conspiring to possess with the intent to distribute, and to distribute, heroin.

Count 2 charged Horace Jones with the substantive offense of distributing heroin.

Count 3 charged that Clarence Cole, Jr. and Douglas Jones possessed heroin with the intent to distribute it.

All counts were grounded on 21 U.S.C. § 841(a)(1).

Cole pled guilty. A jury convicted the other three, but only Marable and Douglas Jones appeal. The result is that we now have Marable and Douglas Jones as to the heroin conspiracies and Douglas Jones for possession.

The convictions of both men will be affirmed.

FACTS

Viewed in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), the facts are:

In early 1976 Cole approached Marable with the proposition that they, as partners, engage in narcotic drug traffic. In furtherance On July 11, the government informer, Carlee, notified Detective Johnny Turner, an Atlanta police detective assigned to the Drug Enforcement Administration (DEA) as an undercover agent, that he had arranged for Turner to buy one to two "kilos" (kilograms) of cocaine from Cole. Turner was told to be at the Mark Inn in Fulton County, Georgia, around midnight July 12. When Turner arrived, Cole and Marable were sitting in a Lincoln Continental, parked next to a Toyota occupied by Horace Jones. No business was transacted on the first encounter but the participants decided to meet later.

of their partnership agreement, Cole and Marable traveled to Atlanta in July to confer with several cocaine buyers, including the government informer, Richard Carlee.

Approximately two and a half hours later, a meeting occurred at the Waffle House Restaurant in Clayton County, Georgia, attended by Carlee, Turner, Sergeant Wood, a DEA agent, Cole, and Marable. Douglas Jones was not there. The purpose of the meeting was to negotiate the purchase of cocaine. This resulted in an agreement to meet in Miami, where Turner could buy two kilos of cocaine.

The parties, except for Sgt. Wood, resumed negotiations on the cocaine transaction at the Marriot Motel in Miami on the next day, July 14. Although the meeting was scheduled for the sale of cocaine, none changed hands.

The idea of a possible heroin buy entered the picture when Turner casually mentioned that he had a customer for "brown stuff" (heroin) but no supplier. Marable responded that he would check his sources and get back to Turner.

Several days later, Turner expressed his desire to resume negotiations on the drug deals. On July 19, a meeting between Woods, Turner, Carlee, Dr. Overton (informer), Marable, and Cole was held at a roadside rest stop near LaGrange, Georgia. The discussions initially centered on the cocaine buy. Turner brought up the subject of heroin and asked Marable if Marable could get him some of the "brown stuff". Marable agreed to check on it and advised Turner that he had a source for the "brown stuff" who would probably deliver in Atlanta but that the price, quality, and quantity remained to be ironed out.

The next day, Marable and Turner talked via a tapped telephone. After proposing a time and place for the cocaine buy, Turner questioned Marable about the heroin deal. Marable suggested that the negotiations on the "brown stuff mentioned in Miami" be continued the next day.

The last contact Turner had with Marable was on July 22. Marable called Turner to caution him to deal only with him or his cocaine supplier, Nora. Turner again injected heroin into the conversation when he told Marable that regardless of the outcome of the cocaine deal, he would be back in touch with Marable on the "brown stuff". Marable informed Turner that he was presently working on the "brown stuff"; that he had two connections for it; and that he could get bids if Turner was still interested. Turner replied that he was.

Off and on during the months of July and August, Cole resided at Horace Jones' house. Cole gave Horace Jones' phone number to Turner in case Turner needed to reach him. Sometime after the 19th of July, Turner phoned Cole at that number. Horace Jones answered the call and initiated a discussion with Turner about the possibility of a heroin deal. When Horace Jones confronted Cole about Turner's call, Cole said that Turner was interested in purchasing heroin. Shortly thereafter, sometime between July 22 and July 28, a three-way phone conference was carried on between Cole, Horace Jones, and Turner. Cole informed Turner that Horace Jones was his heroin source, and Turner requested Horace Jones to obtain some heroin for him.

On July 28, Turner spoke with Cole on the phone. Cole inquired if Turner had acted on the brown stuff. Turner answered that he had spoken with Marable about it and that he was waiting for Marable to fulfill his promise to work on a heroin deal.

Cole advised Turner that he and Marable were checking out a heroin source in Birmingham.

Nothing transpired until August 11. On that date Horace Jones notified Turner that "the boy" (slang for heroin) was on its way. The next day Horace Jones called Turner to tell him 27.7 grams of 11% pure "brown" was available for sale. The parties agreed that Turner could purchase a sample of the heroin for $1200 and that if Turner was satisfied with the sample, the time and price for the larger buy would be settled. As instructed, Turner proceeded to McDonald's in College Park, Georgia, where he purchased the sample of heroin from Horace Jones. On August 13, Horace Jones notified Turner that one kilo of heroin with a purchase price of $36,000 to $37,000 had been ordered for him.

Either on August 13, or August 14, Horace Jones apprised Cole, who was in Miami, that an ounce of heroin had been sold to Turner. Cole phoned Marable to relate this information and to reconfirm the earlier partnership pledge between Cole and Marable to share the profits of the drug trade.

On August 16, Horace Jones advised Cole and Douglas Jones that the heroin connection was in California and that the heroin would arrive in Atlanta in three days. Douglas Jones, brother of Horace Jones, had flown to Atlanta around August 10 supposedly for a visit with his brother Horace.

On the morning of August 20, Douglas Jones was notified that the heroin was in Atlanta. Horace Jones was in Miami so Cole and Douglas Jones went to Stouffer's Inn to pick up the heroin. Douglas Jones entered the hotel alone and returned with a large brown paper bag stuffed inside his leather shoulder satchel. Cole and Douglas Jones drove back to Horace Jones' house to weigh and to repack the heroin.

Around 11:00 a. m., Turner phoned Horace Jones' house for Cole. Douglas Jones, who had been talking to Horace Jones in Miami, answered and switched on the conference call mechanism connected to Horace's home phone. A four-way conversation was held between Douglas Jones, Horace Jones, Cole and Turner. Cole told Turner that he would be contacted within thirty minutes and would be given the number of a pay phone to call.

When Turner dialed that phone number, he was supplied with the details of the concluding chapter of the heroin transaction. Turner was instructed to check into the Hospitality Inn and wait for a phone call from Cole. The Hospitality Inn, however, had no vacancies, and Turner checked into the Century Inn instead. Turner phoned Cole and explained the situation. Cole consented to join Turner in his room in the Century Inn.

Cole, accompanied by Douglas Jones, arrived within minutes. As Douglas Jones entered the room with his leather shoulder satchel, he demanded the money. Cole told Douglas Jones that the parties had prearranged for Turner to take a sample to be analyzed and, if satisfied with the quality, to return with the purchase price of the kilo. Douglas Jones threw the satchel on the bed and told Turner to get his sample. Turner left with a sample which proved to be heroin. Instead of Turner returning with the money, however, in came the police and arrested Cole and Douglas Jones.

MELVIN MARABLE

In light of the foregoing facts, Marable argues that the evidence was sufficient to convict him of a cocaine conspiracy, which the indictment did not cover, but that it was insufficient to sustain a conviction for a heroin conspiracy; therefore the trial court should have granted his motion for a judgment of acquittal.

When confronted with a motion for a judgment of acquittal, the trial judge must decide whether, viewing the evidence in a light most favorable to the government, any reasonable minded jury considering that evidence would necessarily have a reasonable doubt as to guilt. In circumstantial evidence cases, the inferences reasonably to be drawn from the evidence must not only be consistent with guilt but On appeal, the denial of a judgment of acquittal will be upheld if the court is satisfied that a reasonably-minded jury, considering the evidence in a view most favorable to the government, could have concluded that the evidence was consistent with guilt and, in circumstantial evidence cases, inconsistent with every reasonably hypothesis of innocence. United States v. Edwards, 5 Cir....