U.S. v. Mayo, s. 82-2431

• Decision Date: 30 December 1984
• Docket Number: Nos. 82-2431,82-2527,s. 82-2431
• Citation: 721 F.2d 1084
• Parties: UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Thomas William MAYO, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1084

721 F.2d 1084

74 A.L.R.Fed. 651

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Thomas William MAYO, Defendant-Appellant, Cross-Appellee.

Nos. 82-2431, 82-2527.

United States Court of Appeals, Seventh Circuit.

Argued April 21, 1983.

Decided Oct. 27, 1983.

As Amended Dec. 14, 1983.

Rehearing and Rehearing En Banc

Denied Dec. 30, 1984.

Thomas D. Decker, Chicago, Ill., for defendant-appellant/cross-appellee.

Keith C. Syfert, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill. (Robert W. Tarun, Executive Asst. U.S. Atty., Chicago, Ill., of counsel), for plaintiff-appellee/cross-appellant.

Before POSNER and COFFEY, Circuit Judges, and NICHOLS, Senior Circuit Judge. ^*

COFFEY, Circuit Judge.

Defendant-appellant, cross-appellee, Thomas Mayo, appeals his conviction in the United States District Court, Northern District of Illinois, for conspiring to possess with intent to distribute and to distribute cocaine, in violation of 21 U.S.C. Secs. 841(a)(1), 846. The United States Government cross-appeals the trial judge's sentencing of the appellant under the Federal Youth Corrections Act, 18 U.S.C. Secs. 5005-5026. We affirm the conviction and remand this case to the district court for resentencing of the appellant as an adult offender under 21 U.S.C. Secs. 841(a)(1), 846.

I.

The evidence at trial revealed that in early September, 1980, appellant, Thomas Mayo, while aboard one of his chartered sailboats originating in Miami, Florida, engaged in conversations with Wayne Shapley concerning the purchase and resale of cocaine. Shapley expressed an interest in purchasing cocaine in the State of Florida for resale in the State of Michigan, "because it is cheaper back in Florida than it is in Michigan." In mid to late September, 1980, Shapley returned to Muskegon, Michigan and contacted Jerry Hanson who knew people in the Muskegon area that "used" and "dealt in cocaine." Shapley and Hanson discussed Shapley's plan and Hanson agreed that if Shapley could purchase a large quantity of cocaine in Florida, the two of them could make a profit by reselling the cocaine in Michigan at higher prices. Following this discussion Shapley phoned Mayo in Miami, Florida to arrange for a cocaine purchase.

On October 20, 1980, Shapley collected $4,400.00 from Hanson and added $1,000.00 of his own money for the purchase of a "large quantity" of cocaine. The following day Shapley flew to Miami and upon arrival he phoned Mayo to confirm arrangements for the cocaine purchase. Mayo arrived at the airport within ten minutes, met Shapley drove him around Miami, and along the way, stopped at public phone booths to place phone calls in an attempt to "set up a [cocaine] deal." Mayo next proceeded to a motel where he and Shapley checked into the same room. Shortly thereafter Mayo left the motel and placed another phone call from a public phone booth across the street. Within an hour a source by the name of "Ron" arrived at the motel with eight ounces of cocaine. In the presence of Mayo and "Ron," Shapley tested the cocaine by "snorting it." "Ron" left the motel and another source by the name of "Rich" entered the room. Shapley tested "Rich's" cocaine by "snorting it" and decided to buy three ounces of cocaine from "Ron." When "Ron" returned, Shapley gave the money to Mayo who in turn gave it to "Ron." Following this transaction Mayo and "Ron" exited the room for "about an hour" to transfer the eight ounces of cocaine into a three ounce package. Upon their return, Mayo, Shapley, and "Ron" "snorted" cocaine and the three of them made arrangements for Shapley to return to Miami for another cocaine purchase following the resale of his newly acquired three ounces. According to the arrangement Mayo was to meet Shapley at the Miami airport and transport him to "Ron's" house where Shapley would purchase another quantity of cocaine for resale in the State of Michigan.

The following day, October 22, 1980, Mayo drove Shapley to the Miami airport for Shapley's return flight to Muskegon, Michigan. While enroute, Shapley informed Mayo that he would arrive at O'Hare Airport in Chicago, Illinois and from there board a commuter flight to Muskegon, Michigan. When Shapley arrived at O'Hare Airport in Chicago he was stopped by agents of the Drug Enforcement Administration ("DEA"). The agents asked Shapley for his travel bag, found 2.7 ounces of 73% pure cocaine contained therein, arrested Shapley, and processed him at the DEA airport office. Shapley signed a waiver of rights form, supplied the agents with the name of his cocaine supplier, Thomas Mayo, and agreed to place recorded phone calls to Mayo in Miami, Florida. That evening Shapley, while still in Chicago, Illinois, placed two recorded phone calls to Mayo informing Mayo that the sale of cocaine in Michigan "went over well" and that Mayo should fly to Chicago with a "six-pack." According to the code words that Mayo had supplied Shapley, a "six-pack" meant eight ounces of cocaine.

On October 25, 1980, Mayo phoned Shapley, who by this time had returned to Muskegon, Michigan, and informed him that Mayo would be arriving that day on Delta Flight 1136 at 2:40 p.m. at O'Hare Airport in Chicago with eight ounces of cocaine. Shapley relayed this information along with a physical description of Mayo to DEA agents. The agents proceeded to O'Hare Airport, positioned themselves at the appropriate terminal, "spotted" Mayo at approximately 2:40 p.m. departing from Delta Flight 1136, and followed him down the concourse. At approximately 3:30 p.m. the agents approached Mayo, identified themselves, and with Mayo's consent conducted a search which uncovered no cocaine. At approximately 6:10 p.m. that evening, DEA agents, based upon the information obtained from Shapley and the recorded phone conversations between Mayo and Shapley, arrested Mayo in the Hyatt Regency Hotel, across from O'Hare Airport, for conspiracy to violate the narcotics laws. Mayo voluntarily signed a waiver of rights form, and told police that he had sold "approximately four ounces of cocaine" to Shapley "a few days earlier." Mayo also stated that he had flown to Chicago in an attempt to persuade Shapley to come to Florida for another cocaine purchase.

On December 23, 1981, a Federal Grand Jury returned an indictment against Mayo charging him with conspiracy to supply Wayne Shapley with cocaine in the State of Florida for resale in the State of Michigan, between the months of July, 1980 and October, 1980, in violation of 21 U.S.C. Secs. 841(a)(1), 846. On March 18, 1982, Mayo pleaded not guilty to this charge. On July 9, 1982, following a three-day bench trial, the trial judge found Mayo guilty as charged. On August 18, 1982, the trial judge entered judgment on the finding of guilt and sentenced Mayo to a term of three years incarceration, suspended all but thirty days of the imprisonment, and imposed a four-year probationary period to follow the one month period of confinement.

On August 18, 1982, Mayo filed a motion with the district court requesting imposition of the sentence under the Federal Youth Corrections Act, 18 U.S.C. Secs. 5005-5026, as extended in 18 U.S.C. Sec. 4216. Sentencing Mayo under this Act would allow the court, pursuant to 18 U.S.C. Sec. 5010(a), to suspend Mayo's entire sentence and place him on probation. The Government claimed that Mayo failed to qualify for sentencing under the Federal Youth Corrections Act because he reached the age of twenty-six years on April 14, 1982, some four months before the date of his conviction. 18 U.S.C. Sec. 4216 mandates that an offender be under twenty-six years of age at the time of conviction in order to qualify for sentencing under the Federal Youth Corrections Act. The trial judge, in spite of this express age limitation contained in the statute, granted Mayo's motion and sentenced him under the Federal Youth Corrections Act, 18 U.S.C. Sec. 5010(a), on August 19, 1982. The trial judge reasoned that Mayo should not be compelled to waive his right to a trial just to qualify for sentencing under the Federal Youth Corrections Act and that Mayo had no control over the Government's delay in bringing this case to trial.

On appeal, Mayo contends:

A. That the evidence presented at trial was insufficient to establish, beyond a reasonable doubt, that Mayo violated 21 U.S.C. Secs. 841(a)(1), 846.

B. That venue in the Northern District of Illinois was improper for purposes of 21 U.S.C. Sec. 846.

On cross-appeal, the Government contends:

C. That the trial judge exceeded his authority by sentencing Mayo under the Federal Youth Corrections Act, 18 U.S.C. Secs. 5005-5026.

We shall consider these issues individually.

II.

A. SUFFICIENT EVIDENCE OF CONSPIRACY

Appellant Mayo contends that the Government's portrayal of the events which occurred during the months of September and October, 1980, as constituting an ongoing conspiracy between Mayo and Shapley, is inaccurate. Instead, appellant fabricates a novel and unique theory, referring to these events as three separate and distinct episodes. As appellant would have us believe, episode one consisted of a buyer-seller relationship between Mayo and Shapley beginning in September, 1980 and continuing through the October 21, 1980 sale of cocaine to Shapley. Episode two was comprised of tentative plans about future cocaine dealings between Mayo, Shapley, and "Ron," discussed in a Miami, Florida motel room immediately following the October 21, 1980 sale of cocaine. Episode three, on the other hand, consisted of Shapley's conversations with Mayo, concerning the purchase of additional cocaine in the State of Florida for resale in the State of Michigan, following Shapley's agreement to cooperate with the Government. Despite appellant's novel attempt to delineate the events which transpired during September and October, 1980, as being separate and distinct from each other, we hold that these episodes merge into one ongoing...