U.S. v. McCarthy

• Decision Date: 10 October 1996
• Docket Number: 95-2935 and 95-3333,95-2513,Nos. 95-2128,95-2512,95-2508,s. 95-2128
• Parties: 45 Fed. R. Evid. Serv. 297 UNITED STATES of America, Plaintiff-Appellee, v. Thomas Joseph McCARTHY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Clarence William HOUSTON, also known as C.W. Houston, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. John Walter PINER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Carl Luverne THOMPSEN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Michael Arney NESS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Stephen Lloyd LABRIE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1562

97 F.3d 1562

45 Fed. R. Evid. Serv. 297

UNITED STATES of America, Plaintiff-Appellee, v. Thomas Joseph McCARTHY, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Clarence William HOUSTON, also known as C.W. Houston,

Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. John Walter PINER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Carl Luverne THOMPSEN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Michael Arney NESS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Stephen Lloyd LABRIE, Defendant-Appellant.

Nos. 95-2128, 95-2508, 95-2512, 95-2513, 95-2935 and 95-3333.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 14, 1996.

Decided Oct. 10, 1996.

Arthur R. Martinez, argued, Minneapolis, MN, for McCarthy.

David L. Warg, argued, St. Paul, MN, for Houston.

Barry Voss, argued, Minneapolis, MN, for Piner.

Thomas M. Dawson, argued, Leavenworth, KS, for Thompsen.

Charles Faulker, argued, Minneapolis, MN, for Ness.

Earl P. Gray, argued, St. Paul, for Labrie.

Rebea Jamal Zayed, Asst. U.S. Atty., argued, Minneapolis, MN, (James E. Lackner, Asst. U.S. Atty., on the brief), for U.S.

Before McMILLIAN, LAY, and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

Thomas McCarthy, Clarence Houston, John Piner, Carl Thompsen, Michael Ness, and Stephen Labrie appeal from judgments entered against them by the district court ¹ on various drug and drug-related charges. The appellants raise numerous issues concerning their convictions and sentences. After carefully considering the merits of their individual claims, we affirm the judgment of the district court in each case.

I.

This case involves a large and intricate marijuana importation and distribution network in which each appellant played a role. The network comprised a conspiracy to import marijuana into the United States from Colombia and another conspiracy involving distribution and possession with intent to distribute marijuana in the United States. Ron Scoggins, a cooperating witness for the government, had been involved in importing and selling marijuana for at least 20 years, and his business associate, appellant Carl Thompsen, was the primary underwriter of the operations. Scoggins organized the entire network, planning the importation scheme as well as the delivery of the marijuana to brokers and dealers at various points around the United States once it was safely within our borders.

The importation conspiracy entailed the shipment of an approximately 5,000-pound load of marijuana from sources in Colombia. The cache was transported by a sailboat, The Delphene, up the Pacific coastline and offloaded at a site near Santa Barbara, California, in July 1989. ² The shipment was then transported to Scoggins' Templeton, California, ranch for further processing and distribution throughout the United States.

The distribution conspiracy involved the July 1989 marijuana offload in California, which was then distributed throughout the United States; the distribution of a quantity of marijuana that had been imported into Florida in late 1988; and also a large quantity (7,500 pounds) distributed from a subsequent California importation in 1992. Sizeable quantities from the California offloads were shipped to Thompsen in Minnesota, where he and others distributed the drug to local dealers for further distribution.

On September 28, 1993, Thompsen and Scoggins were arrested by federal law enforcement officers in Minnesota. A federal grand jury subsequently indicted 24 individuals, including each of the appellants, on various drug and asset forfeiture charges. Thompsen, McCarthy, and Labrie pleaded guilty to drug charges. Houston, Piner, and Ness proceeded to trial on the charged drug offenses and were each found guilty of at least one count.

II.

On appeal, Houston, Piner, and Ness challenge their convictions; Thompsen challenges the basis for his guilty plea; and Ness, Thompsen, McCarthy, and Labrie challenge their sentences.

A.

Houston, Piner, and Ness challenge the sufficiency of the evidence to sustain their convictions. In reviewing these claims, we view the evidence in the light most favorable to the guilty verdict, granting the government every reasonable inference therefrom. United States v. Jenkins, 78 F.3d 1283, 1287 (8th Cir.1996). We will reverse the convictions only if we can conclude from the evidence that a reasonable fact finder must have entertained a reasonable doubt about the government's proof concerning one of the essential elements of the crime. United States v. Bascope-Zurita, 68 F.3d 1057, 1060 (8th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 741, 133 L.Ed.2d 690 (1996).

Ness was convicted of conspiracy to distribute and possess with intent to distribute marijuana. Piner was convicted of conspiracy to import marijuana into the United States. Houston was convicted of both. To prove that Houston, Piner, and Ness were participants in the respective drug conspiracies, the government was required to show evidence that two or more people, including the named defendant, reached an agreement and the purpose of the agreement was a violation of the law. Jenkins, 78 F.3d at 1287. "The agreement need not be formal; a tacit understanding will suffice. Moreover, the government may prove the agreement wholly by circumstantial evidence or by inference from the actions of the parties." United States v. Shoffner, 71 F.3d 1429, 1433 (8th Cir.1995) (internal quotations omitted). However, the government cannot rely merely on the appellants' knowledge of the conspiracy's existence in order to hold them accountable; rather, it must also show some degree of involvement and participation on their part. United States v. Fregoso, 60 F.3d 1314, 1323 (8th Cir.1995).

The appellants do not argue that the government's proof, if believed, was insufficient to prove the existence of the charged conspiracies (and after reviewing the evidence, we agree); instead, they contend that the evidence was insufficient to establish their involvement and participation in those conspiracies. Once a conspiracy is established, however, "only slight evidence linking the defendant to the conspiracy is required to prove the defendant's involvement and support the conviction." Jenkins, 78 F.3d at 1287.

After reviewing the evidence in the light most favorable to the verdict, we conclude that the evidence with respect to each appellant is sufficient to support each conviction. We begin with Houston. Houston was involved with Scoggins in the planning, execution, and distribution of a late 1988 Florida offload, which initially proved to be unsuccessful. Ultimately, Scoggins sold some of the quantity they did manage to bring on shore, but instead of paying Houston his agreed upon share, Scoggins invested Houston's money in the California import venture, which took place the next year.

Houston agreed to transport Scoggins' power boat from Florida to California to be used in the California importation operation. Scoggins made a series of phone calls to Houston in June of 1989 to organize the logistics of the boat's transportation. Scoggins later sent two packages to Houston via Federal Express containing a total of approximately $10,000 as partial payment on the amount Scoggins owed Houston for the earlier Florida deal, and the remainder was for the purchase of a trailer to transport the boat across the country.

Houston transported Scoggins' boat to Oxnard, California, arriving on July 3, 1989. While there, he stayed in a hotel room paid for by Scoggins and worked with others preparing the boat for the offloading operation. Houston also discussed with Scoggins the possibility of piloting a small sailboat as a precautionary auxiliary craft during the offloading operation. During a two-hour excursion test of Scoggins' boat after it had been transported to California, Scoggins, Houston, and others discussed the details of the upcoming offloading operation. Houston was to receive a three-to-one return on the money that Scoggins had invested in the California operation without Houston's permission.

Medical problems prevented Houston from sailing the auxiliary boat during the July 15, 1989, importation and unloading operation as planned, but he returned to California in September to pick up a share of the imported marijuana. He met with Scoggins, Thompsen, and another co-conspirator, Timothy Tyler. Scoggins instructed Tyler to give Houston 300 pounds of marijuana. Tyler took Houston to a storage locker in Shingle Springs, California, which was filled with marijuana, and Houston took a truckload of marijuana without making any payment.

Houston testified at trial that he brought the boat to Oxnard, California, and he admitted that he associated with Scoggins and others involved in the operation. He also admitted that he went out on the two-hour boat ride with Scoggins and others. He stated that he knew that Scoggins and the others lived in Northern California and did not know why the group was in Oxnard, which is in Southern California. He testified that he suspected that Scoggins' group was into some sort of illegal operation. Houston admitted at trial that he had returned to California in September 1989 and that he met with Scoggins and Tyler at that time. While he was in custody for this case, Houston bragged to another co-conspirator that he had taken marijuana from the imported load without paying Scoggins.

Viewing the evidence in the light most favorable to the verdict, we have no difficulty concluding that the government offered much more than the evidence necessary to link Houston with the conspiracy that undoubtedly existed. A reasonable fact finder easily could have concluded that Houston was an active participant in the importation and distribution conspiracies.

Piner's challenge to the sufficiency of the evidence is similarly unpersuasive. Piner was...