U.S. v. Mealy

• Citation: 851 F.2d 890
• Decision Date: 01 July 1988
• Docket Number: 87-1640,Nos. 87-1600,s. 87-1600
• Parties: 26 Fed. R. Evid. Serv. 305 UNITED STATES of America, Plaintiff-Appellee, v. Patrick Wayde MEALY and Lance B. Spotts, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 890

851 F.2d 890

26 Fed. R. Evid. Serv. 305

UNITED STATES of America, Plaintiff-Appellee, v. Patrick Wayde MEALY and Lance B. Spotts, Defendants-Appellants.

Nos. 87-1600, 87-1640.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 9, 1988.

Decided July 1, 1988.

Joel Hirschhorn, Joel Hirschhorn, P.A., Miami, Fla., for defendants-appellants.

Michael C. Carr, Asst. U.S. Atty., Frederick J. Hess, U.S. Atty., Benton, Ill., for plaintiff-appellee.

Before BAUER, Chief Judge, WOOD, Jr., Circuit Judge, and ESCHBACH, Senior Circuit Judge.

HARLINGTON WOOD, Jr., Circuit Judge.

Following a jury trial, defendants Patrick Mealy and Lance Spotts were found guilty of conspiring to distribute more than 1,000 pounds of marijuana, in violation of 21 U.S.C. Secs. 841(a)(1), 846 (1982). ¹ The court sentenced Mealy to twelve years imprisonment and a special assessment of $50. Spotts received a sentence of eight years imprisonment and a special assessment of $50. The defendants appeal their convictions and sentences.

I. FACTUAL BACKGROUND

Conrad Ingold ran an organization that bought and sold large quantities of marijuana between 1981 and 1986. Ingold's organization acquired marijuana from various distributors and sold it to customers in several states. One of Ingold's distributors was John Rhodes.

In 1983, Ingold purchased approximately 4,000 pounds of marijuana from Rhodes. Rhodes met two of Ingold's drivers, Clarence Massie and Clifford Rylands, and took them to a "stash house" outside of Alachua, Florida. The stash house was the residence of defendant Spotts. The testimony at trial indicated that defendant Mealy was present at the stash house during the sale of marijuana and discussed price and quantity with Rhodes and Ingold. Rylands testified that he paid Mealy for 1,000 pounds of the marijuana. Both Massie and Rylands picked up two different loads of marijuana at the stash house in 1983. On each occasion, Spotts helped the drivers load the marijuana into their trucks. The drivers then delivered the marijuana to Ingold's customers. One of these customers was Jerry Juenger, a resident of Millstadt, Illinois.

Ingold testified that between 1983 and 1986, he continued his operation, utilizing different distributors. Rhodes contacted Ingold about once a year to discuss additional shipments that Ingold might want to purchase. In 1985, Rhodes and defendant Mealy went to New Orleans to meet with Ingold and to discuss selling Ingold marijuana. During the meeting, Ingold got the impression that Mealy was Rhodes's source for marijuana because Mealy discussed prices relating to an expected shipment. That shipment apparently never came in.

In 1986, Ingold purchased another 4,000 pounds of marijuana from Mealy and Rhodes. Ingold went with two drivers, Rylands and Reid Barbor, to the stash house in Alachua to pick up the marijuana from Mealy and Rhodes. Ingold dealt with both Mealy and Rhodes in deciding on price and quantity. Mealy, Rhodes, Spotts, Ingold, and the two drivers all helped to load the marijuana onto Ingold's vehicles. Once again, part of the shipment--1,013 pounds--was to be delivered to Juenger.

Unknown to Ingold, Juenger had entered into an agreement with the government. Juenger had consented to tape record conversations between himself and Ingold concerning the purchase of this load. In April 1986, the FBI videotaped Rylands delivering the 1,013 pounds of marijuana to Juenger and accepting $25,000 as a partial payment. Juenger and Ingold continued to have telephone conversations regarding additional payments and an additional, larger shipment of marijuana that Ingold was expecting.

On May 1, 1986, Rylands returned to collect more money from Juenger and was arrested. After Rylands agreed to cooperate with the government, he disclosed the location of the stash house. ² The following day, authorities executed a search warrant at the Alachua house and arrested Spotts during the search. Among the items that the officers seized were bales of marijuana, bale wrappers, scales, and a police scanner tuned to the local narcotics law enforcement frequency.

Ingold was arrested on May 16, 1986, when he attempted to sell Juenger a trunkload of marijuana. Ingold then agreed to tape record his telephone conversations with Mealy and Rhodes. By telephone, Mealy and Ingold arranged to meet at the Court of Flaggs hotel in Orlando, Florida. Ingold was to check in under the name of Chris Morgan and bring Mealy a partial cash payment of $400,000 for the marijuana.

Ingold went to the hotel and checked in as arranged. Ingold then received three different phone calls from Mealy to discuss the exchange of money. When Mealy met Ingold in the parking lot of the hotel as they had arranged, Mealy was arrested.

II. DISCUSSION

The defendants ³ seek to overturn their convictions on several grounds, and also argue that their sentences were based on inaccurate information. We will address each of their contentions in turn.

A. Evidence Supporting a Single Conspiracy

The defendants claim that the government failed to prove a single ongoing conspiracy from 1983 through 1986, as charged in the indictment. The defendants maintain that the evidence adduced at trial tended to show two separate conspiracies to distribute marijuana, one in 1983 and one in 1986. The defendants contend that the fatal variance between the indictment and the proof at trial requires reversal.

In determining the sufficiency of the government's evidence, we must review all of the evidence and all reasonable inferences in the light most favorable to the government. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Abayomi, 820 F.2d 902, 905 (7th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 189, 98 L.Ed.2d 142 (1987); United States v. Redwine, 715 F.2d 315, 319 (7th Cir.1983), cert. denied, 467 U.S. 1216, 104 S.Ct. 2661, 81 L.Ed.2d 367 (1984). An appellate court may overturn a verdict only when a rational jury could not have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Abayomi, 820 F.2d at 905; Redwine, 715 F.2d at 319.

" 'A conspiracy consists of a combination or confederation between two or more persons formed for the purpose of committing, by their joint efforts, a criminal act.' " Abayomi, 820 F.2d at 905 (quoting United States v. Hedman, 630 F.2d 1184, 1192 (7th Cir.1980), cert. denied, 450 U.S. 965, 101 S.Ct. 1481, 67 L.Ed.2d 614 (1981)). "In order to establish the crime of conspiracy, the government must prove that there was an agreement between two or more persons to commit an unlawful act, that the defendant was a party to the agreement, and that an overt act was committed in furtherance of the agreement by one of the co-conspirators." United States v. Noble, 754 F.2d 1324, 1328 (7th Cir.), cert. denied, 474 U.S. 818, 106 S.Ct. 63, 88 L.Ed.2d 51 (1985). Conspiracies are secretive by nature; thus, circumstantial evidence is often the sole proof of the existence of a conspiracy and the defendants' participation in the conspiracy. Abayomi, 820 F.2d at 905; Hedman, 630 F.2d at 1192. Therefore, "[t]he government need not establish that there existed a formal agreement to conspire; circumstantial evidence and reasonable inferences drawn therefrom concerning the relationship of the parties, their overt acts, and the totality of their conduct may serve as proof." Redwine, 715 F.2d at 320.

The defendants argue that Ingold's organization was a typical "wheel" conspiracy, with Ingold as the hub of the wheel and his many suppliers, including Mealy and Rhodes, as the spokes. See Kotteakos v. United States, 328 U.S. 750, 755, 66 S.Ct. 1239, 1243, 90 L.Ed. 1557 (1946); United States v. Whaley, 830 F.2d 1469, 1474-75 (7th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1738, 100 L.Ed.2d 202 (1988); United States v. Percival, 756 F.2d 600, 606 (7th Cir.1985). In Kotteakos, the Supreme Court barred the government from trying thirty-six defendants as members of a single conspiracy when the only connection between the separate conspiracies was that one man participated in all the conspiracies. 328 U.S. at 773, 66 S.Ct. at 1252. The defendants obtained federal housing loans through a single broker on the basis of false and fraudulent information. The broker was the hub of the conspiracy, obtaining loans for separate groups. The different groups were independent of each other. The government conceded that the proof showed multiple conspiracies, rather than the one conspiracy charged in the indictment, so that the jury could not possibly have found a single conspiracy beyond a reasonable doubt. The Court found that the variance between the proof at trial and the indictment was not harmless error because the evidence presented to the jury on the many separate conspiracies ran a great risk that the jury would unconsciously transfer guilt from one conspiracy to another. Id. at 774, 66 S.Ct. at 1252.

While this case presents a close factual call, we believe it is distinguishable from Kotteakos. The illegal transactions that occurred in this case were not as separate and distinct as the illegal loan transactions in Kotteakos. Here, rather than one man as a nexus between each transaction, we have Ingold's widespread network to distribute the marijuana that he purchased from numerous suppliers. Mealy worked with Rhodes, Spotts, Ingold, and Ingold's drivers to sell marijuana to Ingold, which Ingold then distributed to his customers. The fact that Mealy did not personally know Ingold's other suppliers or customers did not prevent Mealy from joining the overall conspiracy. "While the conspiracy may have a small group of core conspirators, other parties who knowingly participate with these core conspirators and others to achieve a common goal may be members of an overall conspiracy." United States v. Varelli, 407 F.2d 735, 742 (7th Cir.1969). Accord ...