U.S. v. Mothersill, 93-2609

• Decision Date: 11 July 1996
• Docket Number: No. 93-2609,93-2609
• Citation: 87 F.3d 1214
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Norris MOTHERSILL, a/k/a Warren C. Whylley; Errol Morrison, a/k/a Errol Brown, a/k/a Errol Fargasco, a/k/a Jubee; Egnatius Johnson, a/k/a Jano, a/k/a Johno, a/k/a Maurice; Patrick Howell, a/k/a Tony, a/k/a Smooth; Paul Augustus Howell; Michael Morgan, a/k/a Michael Clarke; Patricia C. Clarke, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1214

87 F.3d 1214

UNITED STATES of America, Plaintiff-Appellee, v. Norris MOTHERSILL, a/k/a Warren C. Whylley; Errol Morrison a/k/a Errol Brown, a/k/a Errol Fargasco, a/k/a Jubee Egnatius Johnson, a/k/a Jano, a/k/a Johno, a/k/a Maurice Patrick Howell, a/k/a Tony, a/k/a Smooth; Paul Augustus Howell; Michael Morgan, a/k/a Michael Clarke; Patricia C Clarke, Defendants-Appellants.

No. 93-2609.

United States Court of Appeals, Eleventh Circuit.

July 11, 1996.

Eric J. Haugdahl, Tallahassee, FL, for Mothersill.

Barbara Sanders, Apalachicola, FL, for Johnson.

Charles A. McMurry, McMurry & Asbell, Tallahassee, FL, for Morrison.

Angela M. Cancio, Schutte & Cancio, Tallahassee, FL, for Biggs.

Lynn Alan Thompson, Tallahassee, FL, for Morgan.

Robert A. Rand, Rand & Walker, Tallahassee, FL, for Patrick Howell.

Josephine Deyo, Asst. Federal Public Defender, Tallahassee, FL, for P. Clarke.

Loren Levy, Tallahassee, FL, for Paul Howell.

Alan Burrow, Asst. U.S. Atty., Tallahassee, FL, for appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before COX and BARKETT, Circuit Judges, and MOORE ^*, Senior District Judge.

JOHN H. MOORE, II, Senior District Judge:

On February 1, 1992, on a highway located in Jefferson County, Florida, Florida Highway Patrol Trooper James Fulford observed a car exceeding the speed limit and made a routine traffic stop. After making the usual inquiries, he discovered the car was a rental, and the driver was without a license; he arrested the driver of the vehicle for operating a vehicle without a license. After the driver consented, and while waiting for the car to be impounded, Trooper Fulford opened a gift-wrapped package found in the truck of the vehicle, purportedly containing a microwave oven. Unfortunately, there was a homemade pipe bomb inside the microwave oven, which was triggered to explode when the microwave was opened. Trooper Fulford died from the extensive injuries he received from the blast.

After law enforcement conducted a thorough investigation, the government indicted several individuals, ultimately filing a third superseding indictment on October 16, 1992, which included charges ranging from drug and RICO conspiracies to felony murder and the murder of a law enforcement officer. On March 9, 1993, after an eight-week criminal jury trial, Appellants were convicted of several counts.

Appellants Patrick and Paul Howell, Michael Morgan, Patricia Clarke, Norris Mothersill, Egnatius Johnson, and Errol Morrison were all found guilty of either Counts I or III, which alleged a conspiracy to commit racketeering pursuant to 18 U.S.C. § 1962(d) and conspiracy to traffic in controlled substances pursuant to 21 U.S.C. § 846, respectively. ¹ For purposes of the discussion below, it is noteworthy that Appellants Patrick and Paul Howell, Morgan, Clarke, Mothersill, and Johnson were all found guilty of Count XXVIII of the Third Superseding Indictment. ² Count XXVIII dealt with Trooper Fulford's death, and Appellants Morgan, Clarke, Johnson and Mothersill were found guilty under the co-conspirator liability theory outlined in Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). Defendant Paul Howell was convicted pursuant to the Pinkerton liability theory for his role in the creation of the bomb that led to Trooper Fulford's death. Patrick Howell was convicted under Pinkerton liability and for aiding and abetting the crime. ³

After the district court sentenced Appellants to life or "life-plus" terms of imprisonment, Appellants appealed their convictions to this Court. We have jurisdiction to consider an appeal from a criminal judgment pursuant to 28 U.S.C. § 1294. Appellants raise several issues, only one of which merits discussion, namely, the imposition of Pinkerton co-conspirator liability. The remaining issues are meritless and we affirm them without discussion. We affirm.

I. STANDARD OF REVIEW

The scope of our review is limited since the application of the Pinkerton doctrine to the facts of a case lies within the jury's domain. United States v. Alvarez, 755 F.2d 830, 848 (11th Cir.1985). Nye & Nissen v. United States, 336 U.S. 613, 618, 69 S.Ct. 766, 769, 93 L.Ed. 919 (1949). In determining whether the trial court was correct in submitting the Pinkerton issue to the jury, we must ascertain "whether the evidence was sufficient for a reasonable jury to have concluded, beyond a reasonable doubt, that the murder was a reasonably foreseeable consequence of the drug conspiracy alleged in the indictment." Alvarez, 755 F.2d at 848. In making our determination, we view the evidence in the light most favorable to the government and accept all the jury's reasonable inferences and credibility choices which support the verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704 (1942).

II. DISCUSSION

a. Background Facts

Patrick Howell, Michael Morgan and Egnatius Johnson, among others, were the principal leaders of an elaborate drug operation, dating back to 1988, that supplied, distributed and sold crack cocaine throughout Florida, Alabama, Mississippi, Georgia, and North and South Carolina. Most of the leaders were Jamaican citizens residing in the Ft. Lauderdale, Florida area. Patrick's brother, Paul Howell, Johnson's former girlfriend and Morgan's sister, Patricia Clarke, Norris Mothersill and Errol Morrison were also major players in the sophisticated and expansive operation. For purposes of our discussion, the precise scope and history of the conspiracy need not be recited; however, certain events and individuals, pertinent to the issue examined below, warrant mentioning.

Egnatius Johnson distributed and supplied a great deal of crack cocaine from a source located in the Bahamas, employing individuals to import the cocaine on cruise ships sailing to and from Florida. Appellant Clarke, along with her brother, had been trafficking drugs from South Florida to Marianna, Florida, Georgia and Alabama; they joined Johnson in his endeavors sometime in early 1992. Patrick Howell, introduced to the area by Michael Morgan, sold cocaine in the Marianna Garden Apartments in Marianna, Florida throughout the 1980s, and later expanded his business to Georgia and South Carolina. Mothersill, assisted by Morrison, started dealing drugs in Marianna during the late 1980s.

In August of 1991, Patrick Howell and Michael Morgan were plotting to rob a Ft. Lauderdale drug dealer named Alfonso Tillman. With Clarke and Johnson present, Howell and Morgan obtained a car rented by Paul Howell, and Morgan secured a weapon. Morgan, while Patrick Howell drove, shot and killed Tillman. After the shooting, the inside of the car needed extensive cleaning, and Clarke and Patrick and Paul Howell commenced the clean-up efforts. Tammie Bailey and Yolanda McCalister were the girlfriends of Michael Morgan and Patrick Howell respectively. Patrick Howell had informed McCalister of the murder, and warned her if she told anybody, he would kill her and her family. McCalister and Bailey ultimately rode in the rental car, noticing blood and bullet holes in the interior, and blood on Patrick Howell's shorts.

In October of 1991, after returning from a trip to Jamaica, Patrick Howell was detained by immigration officials and ultimately arrested. While Patrick was incarcerated, Paul took over the supervisory role in their drug operation. During this time, law enforcement officials were progressing in the investigation of the Tillman murder. In the wake of the Tillman murder, appellant Paul Howell, concerned about the possibility of Ms. Bailey "straying" and turning to the authorities, constructed a pipe bomb with the intention of killing her in an apparent attempt to ensure she would not talk. To that end, he ordered the delivery of a gift-wrapped package containing a microwave oven to Ms. Bailey; inside the oven was the homemade pipe bomb that took Trooper Fulford's life.

b. Pinkerton/Alvarez co-conspirator liability

Basic to criminal law principles is the concept that the "commission of a substantive offense and a conspiracy to commit it are separate and distinct offenses." United States v. Gornto, 792 F.2d 1028, 1035 (11th Cir.1986); Pinkerton, 328 U.S. at 643, 66 S.Ct. at 1182. Each party to a continuing conspiracy may be vicariously liable for substantive criminal offenses committed by a co-conspirator during the course and in the furtherance of the conspiracy, notwithstanding the party's non-participation in the offenses or lack of knowledge thereof. See Pinkerton, 328 U.S. at 646-47, 66 S.Ct. at 1184. Liability will not lie, however, if the substantive crime "did not fall within the scope of the unlawful project, or was merely a part of the ramifications of the plan which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement." Pinkerton, 328 U.S. at 647-48, 66 S.Ct. at 1184; see also Alvarez, 755 F.2d at 848; United States v. Gualdado, 794 F.2d 1533, 1535 (11th Cir.1986); Meester, 762 F.2d at 877. Hence, a court need not assess the individual culpability of a particular conspirator provided the "substantive crime was a reasonably foreseeable consequence of the conspiracy." Alvarez, 755 F.2d at 849-50.

Generally, Pinkerton co-conspirator liability applies in two situations. First, where the substantive crime is also a goal of the conspiracy, e.g., where there is a narcotics conspiracy and a corresponding substantive crime of possession or distribution of cocaine. The second scenario is where the substantive offense differs from the precise nature of the ongoing conspiracy, but facilitates the implementation of its goals. For example, a particular co-conspirator, found guilty of conspiring to distribute drugs, may also be held liable for the substantive crime of possession of a firearm.

In Alvarez, this circuit expanded the breadth of Pinkerton liability to include reasonably...