U.S. v. Paul, 96-31030
| Decision Date | 29 May 1998 |
| Docket Number | No. 96-31030,96-31030 |
| Citation | 142 F.3d 836 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Gavin Allan PAUL; Patrick Carlos Britton, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Michael Frederick Walther, Stephen A. Higginson, Asst. U.S. Atty., New Orleans, LA, for Plaintiff-Appellee.
Robert F. Barnard, New Orleans, LA, for Defendant-Appellant.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before EMILIO M. GARZA, STEWART and DENNIS Circuit Judges.
This case is before us on appeal from defendants' convictions in the district court of one count each of conspiracy to possess with the intent to distribute cocaine hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and one count each of conspiracy to import cocaine hydrochloride into the United States, in violation of 21 U.S.C. §§ 952(a), 960(a)(1), and 963. For the following reasons we AFFIRM in part and REVERSE in part.
During the week of January 21, 1996, the United States Customs Service ("Customs") was contacted by a Guyanese seaman who was then serving aboard the Motor Vessel Mini Loom ("Mini Loom"). The crewman, Abdool Adam, advised Customs agents that a man known only as "Mike" had placed a quantity of cocaine on board the Mini Loom while the vessel was docked in Guyana. "Mike" had asked Adam to help him smuggle the cocaine into the United States. "Mike" instructed Adam to call a certain telephone number in Guyana once the vessel arrived in New Orleans, and explained that someone would come to take delivery of the cocaine from Adam in New Orleans.
The Mini Loom arrived in New Orleans on February 8, 1996. On the following day, the vessel was boarded and searched by United States Customs agents who discovered approximately 10 kilograms (23.2 pounds) of cocaine on board. After seizing the drugs, Customs agents then formulated a plan to make a controlled delivery of a cocaine substitute to whomever "Mike" sent to pick up the drugs from Adam.
On February 12, 1996, Adam made a number of calls to "Mike" in Guyana regarding delivery of the cocaine. Each of these calls was recorded by customs agents. In one of the calls, "Mike" told Adam that he had contacted a courier named "Harry" in New York who would fly to New Orleans to meet with Adam. In the same telephone conversation, "Mike" inadvertently revealed that "Harry's" name was actually "Gavin."
On the same day, in New York, Gavin Paul purchased an airline ticket for a flight leaving for New Orleans on February 13, 1996. Upon arriving in New Orleans, Paul checked into the French Quarter Courtyard Inn. Also When "Harry" did not arrive, Adam called the same hotel telephone number and learned that "Harry" had checked out of the hotel. Customs agents were present when Paul checked out of the hotel and observed him take a taxi to the Days Inn located on Williams Boulevard near the airport. Paul checked into the Days Inn under his companion Suzette Telford's name and paid cash for the room.
on that day, "Mike" gave Adam a number through which he could reach the courier. The phone number was that of the French Quarter Courtyard Inn. Adam called the number and spoke to "Harry" regarding delivery of the cocaine. They arranged to meet at the docks, but "Harry" never arrived.
When Adam told "Mike" that the courier had not arrived, "Mike" informed Adam that he had another man in town who would pick up the cocaine. Shortly thereafter, Adam received a call from a man who identified himself as "P." Adam and "P" then made arrangements to deliver the cocaine. "Mike" then called Adam to tell him that he should deal with "P" instead of "Harry". "Mike" indicated that "P" would arrive at the docks by taxi to pick up the cocaine, but that he would not have the money with him. Rather, Adam was to get the money from "Harry." "P" called Adam a few minutes later and told Adam he would arrive in about half an hour.
Thereafter, defendant Patrick Britton arrived at the dock in a taxi. Britton spoke to Adam, pulled a gray tweed suitcase out of the taxi, and handed it to Adam. Adam then transferred ten packages of substitute cocaine into Britton's suitcase. Britton then took the suitcase and drove away in the taxi.
A few minutes later, Harbor Police stopped the taxi and arrested Britton. At the time of his arrest, Britton had a piece of paper on which the telephone number of the dockside public telephone had been written. This telephone number was the one at which Adam had received a call from the individual who identified himself as "P."
Shortly thereafter, Paul was arrested at his hotel. Seized from the room was approximately $10,000 and an address book in which he had written the directions to where the Mini Loom was docked.
Both Paul and Britton were charged with one count each of conspiracy to possess with the intent to distribute cocaine hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and one count each of conspiracy to import cocaine hydrochloride into the United States, in violation of 21 U.S.C. §§ 952(a), 960(a)(1), and 963.
Both Paul and Britton were convicted on both the counts. Each was sentenced to 121 months for each offense to be served concurrently. Britton was also given a fine of $5,000.
On appeal, Paul and Britton argue that the evidence was insufficient to support their convictions. Additionally, Britton argues that the district court erred in denying his motion to suppress statements made in an unrelated airport stop based on an alleged violation of his Fifth Amendment rights, and that the district court erred in denying his motion for a mistrial based on the government's reference to Britton's use of stolen cellular telephone service.
We will find that there was sufficient evidence to support the convictions of Paul and Britton if any reasonable trier of fact could have found that the evidence presented at trial established the essential elements of the crime beyond a reasonable doubt. See United States v. Alix, 86 F.3d 429, 435 (5th Cir.1996). Moreover, we review challenges to the sufficiency of evidence in the light most favorable to the Government. See Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Ivy, 973 F.2d 1184, 1188 (5th Cir.1992); United States v. Lechuga, 888 F.2d 1472, 1476 (5th Cir.1989).
Paul argues that he was not a part of the conspiracy because he would not comply with Adam's request that he pick up the cocaine and deliver the money. Paul further argues that his actions thwarted the conspiracy and evidence his unwillingness to join the conspiracy. However, we conclude that the evidence presented by the Government was sufficient to support Paul's convictions for conspiracy to possess with intent to distribute cocaine.
In the taped telephone conversations, "Mike" gave Adam the telephone number and room number of Paul's hotel room at the French Quarter Courtyard Inn. When Adam called that number, Paul answered the telephone, discussed delivery of the cocaine, and obtained detailed directions to the ship's berth. Paul was then observed by Customs agents leaving the French Quarter hotel and traveling by taxi to the Days Inn on Williams Boulevard. Paul then called Adam at the public telephone near the ship's berth and told Adam that he would call back in about 45 minutes. Paul was subsequently arrested at his Days Inn motel room and found to be in possession of approximately $10,000 in cash and an address book containing directions to the ship's berth. It is reasonable for the jury to have concluded from this evidence that Paul agreed with "Mike" to possess the cocaine and that he voluntarily participated in the conspiracy by traveling to New Orleans, obtaining $10,000 in cash to pay Adam, and attempting to make arrangements to pick up the cocaine from Adam's ship. Although he did not actually pick up the cocaine, his actions do not indicate that he refused to participate in the conspiracy or that he thwarted the conspiracy. Therefore, we affirm Paul's conviction for conspiracy to possess with intent to distribute cocaine.
The evidence is also sufficient to...
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