U.S. v. Meyers

• Decision Date: 18 June 1981
• Docket Number: No. 80-5134,80-5134
• Citation: 646 F.2d 1142
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Scott Edward MEYERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1142

646 F.2d 1142

UNITED STATES of America, Plaintiff-Appellee, v. Scott Edward MEYERS, Defendant-Appellant.

No. 80-5134.

United States Court of Appeals Sixth Circuit.

Argued April 28, 1981.

Decided Feb. 5, 1981.

Rehearing Denied June 18, 1981.

Michael Doddo, Fort Lauderdale, Fla., for defendant-appellant.

James K. Robinson, U. S. Atty., Bay City, Mich., Alan Gershel, Asst. U. S. Atty., Detroit, Mich., for plaintiff-appellee.

Before LIVELY and KENNEDY, Circuit Judges; and HILLMAN, District Judge. ^*

CORNELIA G. KENNEDY, Circuit Judge.

Appellant Scott Edward Meyers, together with a co-defendant Debbie Feddick, was charged in a two-count indictment with (1) conspiracy to possess with intent to distribute and the distribution of cocaine, a schedule II narcotic substance, in violation of 21 U.S.C. § 841(a)(1) and § 846; and (2) distribution of approximately three ounces of cocaine in violation of 21 U.S.C. § 841(a)(1). The charges against Miss Feddick were dismissed and she was placed on probation in a diversion program. Appellant was convicted by a jury on the conspiracy count, but was acquitted on the distribution count. Meyers appeals urging that the evidence was insufficient to support his conspiracy conviction. He claims that the government at most proved only a buyer-seller relationship between himself and Ben Calvin, the government's principal witness.

On appeal from a criminal conviction, the question is whether the relevant evidence viewed in the light most favorable to the government could be accepted by a reasonably-minded jury as adequate and sufficient to support the conclusion of defendant's guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, reh. denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); Brewer v. Overberg, 624 F.2d 51 (6th Cir. 1980); Goldman v. Anderson, 625 F.2d 135 (6th Cir. 1980); United States v. Warner, 441 F.2d 821 (5th Cir.), cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971). Whether the evidence is direct or circumstantial, the test is whether it would permit the jury to find the defendant guilty beyond a reasonable doubt. United States v. Cornett, 484 F.2d 1365 (6th Cir. 1973); United States v. Ambrose, 483 F.2d 742 (6th Cir. 1973).

The essential elements of conspiracy are: (1) that the conspiracy described in the indictment was willfully formed, and was existing at or about the time alleged; (2) that the accused willfully became a member of the conspiracy; (3) that one of the conspirators thereafter knowingly committed at least one of the overt acts charged in the indictment, at or about the time and place alleged; and (4) that such overt act was knowingly done in furtherance of some object or purpose of the conspiracy as charged. United States v. Thompson, 533 F.2d 1006, 1009 (6th Cir.), cert. denied, 429 U.S. 939, 97 S.Ct. 353, 50 L.Ed.2d 308 (1976); Bradford v. United States, 413 F.2d 467, 470 (5th Cir. 1969); United States v. Friedman, 445 F.2d 1076, 1084 (9th Cir.), cert. denied sub nom., United States v. Jacobs, 404 U.S. 958, 92 S.Ct. 326, 30 L.Ed.2d 275 (1971).

The existence of a criminal conspiracy need not be proven by direct evidence, a common plan may be inferred from circumstantial evidence. United States v. Luxenberg, 374 F.2d 241, 250 (6th Cir. 1967).

The major figures in this conspiracy are appellant, Scott Edward Meyers, a pilot for a scheduled airlines, Debbie Feddick, a flight attendant for another airlines, housemates who lived in Florida, and Ben Calvin of Bay City, Michigan, an admitted drug user and dealer. Calvin was arrested in connection with a totally unrelated drug sale and charged with possession with intent to deliver cocaine. He agreed to cooperate with the government in its case against Meyers in order to secure the reduction or dismissal of the charges against himself. His aid was twofold: he testified at trial as to his previous dealings with Meyers and Debbie Feddick; and he made two taped telephone calls in which he attempted to purchase cocaine from Meyers.

At trial Calvin testified that Debbie Feddick is a good friend whom he has known 16 years, since he was about 8 years old. In early December 1978, he, his grandmother and his girlfriend, Susan Hammond ("Charley"), went to Florida to attend the wedding of his sister, Nancy. About a week before arriving, he called Debbie Feddick and Scott Meyers from his Bay City, Michigan home regarding the purchase of one ounce of cocaine. Although it is not clear whether he spoke to one or both of them, he testified that he was told: "We will check it out for you." Upon arriving in Florida on December 7, 1978, he visited the Miami apartment shared by Feddick and Meyers. During this short visit, the purchase of cocaine was discussed and Debbie Feddick advised him that he would have to return the next day when Meyers was there. Calvin left shortly after Meyers arrived home. Calvin returned the next day, December 8, with the express purpose of buying cocaine. He, Scott Meyers and Debbie Feddick drove to a second apartment. While Meyers let them in with a key and proceeded to open a safe in the bedroom and withdraw cocaine and cash, Calvin and Miss Feddick waited in the living room. An exchange took place in the kitchen with Calvin buying 21 or 28 grams for $1,050, the price Meyers had quoted him. Sometime later that day and out of the presence of Meyers, Calvin, Debbie Feddick and "Charley" snorted cocaine. During the next two weeks or so, Calvin and "Charley" used about 5-7 grams. The balance was sold by Calvin in Michigan after it was first cut with mannitol.

Calvin next contacted Scott Meyers and Debbie Feddick on January 16, 1979, and again on either the 22nd or 23rd, to arrange another purchase. As a result of those contacts, Calvin agreed to meet Meyers' flight when it arrived at Detroit Metropolitan Airport, and to purchase three, 1 ounce packages of cocaine for $4500 cash. Although Calvin initially testified that he was unsure whether he spoke to Debbie Feddick or appellant, he later testified that Miss Feddick supplied him with Meyers' flight number, and arrival time. Calvin produced a business card on which he had written flight $ 194, its arrival time, a facsimile of the logo of the airlines which employed Meyers, and the figure $4500. Also introduced into evidence were various bank records and testimony indicating that Calvin had withdrawn $3200 from his trust account around the time of January 24. Calvin testified that he counted the money in his car before entering the terminal where he exchanged the money for three, 1 ounce packages of cocaine which Meyers gave him in a red bag, 12-18 long, and 5 in diameter. Upon returning to his car, he noticed a $100 bill and realized that he had given Meyers $4400 instead of the agreed upon $4500. On March 3, Debbie Feddick called and inquired about the missing $100. In response Calvin sent a $100 money order payable to Scott Meyers who subsequently endorsed and cashed it.

After his arrest on the unrelated charge on February 20, 1979, Calvin made two taped phone calls to Meyers in an attempt to purchase cocaine one on March 23 and the other on April 6. Although the language in the calls was guarded, based on what was said plus the other evidence, the jury could find they were conversations between an eager buyer of drugs and a potential seller.

This Court finds that the December 1978 Florida drug transaction, involving both Meyers and Feddick, the telephone calls precipitating the January 24 meeting, in which Feddick advised Calvin of the time of the delivery, the March 3 telephone call from Debbie Feddick to Calvin, and Calvin's subsequent mailing of a $100 money order payable to, and endorsed and cashed by Scott Meyers, provide sufficient evidence of an agreement between Feddick and Meyers to possess cocaine with intent to distribute and to distribute it. There was evidence from which the jury could find Meyers was a willing participant in the concerted plan of operation and performed acts in furtherance of its accomplishment. We agree with appellant that there is insufficient evidence to show that Calvin and Meyers conspired to distribute cocaine. The evidence showed only a buyer-seller relationship between them. Calvin could have been purchasing for his own personal use....