U.S. v. Pilling, s. 81-1597

• Citation: 721 F.2d 286
• Decision Date: 04 October 1983
• Docket Number: 81-1668 and 81-1687,Nos. 81-1597,81-1661,s. 81-1597
• Parties: 14 Fed. R. Evid. Serv. 1162 UNITED STATES of America, Plaintiff-Appellee, v. Roy W. PILLING, Jimmy Lee Penix, Alan Russell Varley, and Richard Oliver Christensen, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 286

721 F.2d 286

14 Fed. R. Evid. Serv. 1162

UNITED STATES of America, Plaintiff-Appellee, v. Roy W. PILLING, Jimmy Lee Penix, Alan Russell Varley, and Richard Oliver Christensen, Defendants-Appellants.

Nos. 81-1597, 81-1661, 81-1668 and 81-1687.

United States Court of Appeals Tenth Circuit.

Oct. 4, 1983.

Teresa Black, Asst. U.S. Atty., Oklahoma City, Okl. (William S. Price, U.S. Atty., Oklahoma City, Okl., with her on brief), for plaintiff-appellee.

Jack D. McCurdy, Oklahoma City, Okl. (Garland Bloodworth, Oklahoma City, Okl., with him on brief), Bloodworth & Associates, Oklahoma City, Okl., for defendant-appellant Roy Pilling.

C. Merle Gile, Oklahoma City, Okl. (D.C. Thomas, Oklahoma City, Okl., with him on brief), for defendant-appellant Jimmy Lee Penix.

James M. Gattey, San Diego, Cal., Barry R. Davis, Oklahoma City, Okl., for defendant-appellant Richard Oliver Christensen.

Before BARRETT and SEYMOUR, Circuit Judges, and KERR, District Judge of the United States District Court for the District of Wyoming, sitting by designation.

BARRETT, Circuit Judge.

Richard Oliver Christensen (Christensen), Jimmy Lee Penix (Penix), Roy W. Pilling (Pilling) and Alan Russell Varley (Varley) each appeal verdicts of guilty following a three week jury trial to Count I of a five-count indictment. Count I charged that commencing April 1980, and continuing until about August 30, 1980, in Oklahoma City, Oklahoma, and Colorado, California, Texas, and Lima, Peru, the appellants "did combine, conspire, confederate and agree with Edward W. James, III (James), Ronald Anthony Kleist (Kleist), Barton Lane Richards (Richards), and with other persons unknown to the Grand Jury, to violate Title 21, United States Code, Section 952 in that they did conspire to import into the United States from Peru cocaine HCL, a Schedule II controlled substance." In addition: (a) Christensen and Penix were found guilty of Count IV charging that on or about August 25, 1980, at Texas and at Norman, Oklahoma, they did unlawfully travel in interstate commerce from San Antonio, Texas, to Norman, Oklahoma, in violation of 21 U.S.C. Sec. 841(a)(1), to take possession of a shipment of nine crates containing about 8.1 kilograms of cocaine concealed in 16 one-gallon cans of Glashol and that the defendants performed or attempted to perform acts to carry out the unlawful activity, all in violation of 18 U.S.C. Sec. 1952; (b) Penix was found guilty of Count V of the indictment charging that on or about August 30, 1980, the defendant knowingly used a telephone communication facility at Texas and Oklahoma City to discuss with James and Kleist the delivery of nine crates containing 16 one-gallon cans of Glashol in which cocaine was concealed, all in violation of 21 U.S.C. Secs. 843(b) and 963; (c) Pilling was found guilty of Count II of the indictment charging that on or about August 27, 1980, in New Mexico and Oklahoma he did use a telephone communication facility in facilitating the conspiracy to import cocaine by discussion with James relative to the arrangements for delivery of nine crates containing the cocaine, all in violation of 21 U.S.C. Secs. 843(b) and 963.

None of the appellants were charged with possession of cocaine or the actual distribution thereof, but the Grand Jury charged seven specific occurrences constituting the conspiracy, together with twelve specific overt acts in furtherance of the conspiracy designed to accomplish the objectives thereof.

On appeal following jury convictions, we must view the entire record "in the light most favorable to the Government in order to determine whether the evidence, both direct and circumstantial, together with all reasonable inferences to be drawn therefrom, is substantial enough to establish guilt beyond a reasonable doubt." United States v. Petersen, 611 F.2d 1313 (10th Cir.1979), cert. denied, 447 U.S. 905, 100 S.Ct. 2986, 64 L.Ed.2d 854 (1980); Mares v. United States, 409 F.2d 1083 (10th Cir.1968), cert. denied, 394 U.S. 963, 89 S.Ct. 1314, 22 L.Ed.2d 564 (1969). "Evidence is not necessarily insufficient merely because the witness' testimony has been contradictory and the explanations therefore difficult of belief." United States v. Jackson, 579 F.2d 553 (10th Cir.1978) 439 U.S. 981, 99 S.Ct. 569, 58 L.Ed.2d 652 (1978), quoting from Batsell v. United States, 403 F.2d 395 (8th Cir.1968), cert. denied, 393 U.S. 1094, 89 S.Ct. 865, 21 L.Ed.2d 785 (1969). The evaluation of the credibility of witnesses is a matter for the jury and is not a function of an appellate court. United States v. McClain, 501 F.2d 1006 (10th Cir.1974). The court of appeals is bound by the rule that resolution of conflicting evidence is exclusively within the discretion of the jury, as the trier of fact, and its findings must be given added weight when the opportunity to hear and observe the witnesses is considered. United States v. Hubbard, 603 F.2d 137 (10th Cir.1979). These rules become particularly important in cases involving detailed transactions, meetings, etc., proof of which, in an evidentiary sense, is necessary in order to establish a conspiracy; and even more so when the Government's case is primarily developed, as here, by testimony of two co-conspirators, Edward W. James, III, a/k/a "Dub" James, and Richards, who, together with Ronald Kleist, did the actual smuggling of cocaine from Peru to the United States. See United States v. Jackson, supra.

The above rules are important in cases such as this because, by necessity, proof of an ongoing conspiracy involving the importation of and/or distribution of a controlled substance is, in an evidentiary sense, closely akin to a jigsaw puzzle. The Government must present the evidence in such a manner that the "parts" fit together to establish the charges advanced. The evidence in this case is both direct and circumstantial. The jury found the appellants guilty, thus determining that the Government had borne the burden of proof of guilt beyond a reasonable doubt.

Some background facts, in summary fashion, are in order. The intricate scenario, as evidenced by the three-week trial record, makes it impossible to fully detail the facts reviewed. Thus, in "capsule" form we will endeavor to recite the relevant facts. The "actors" in this complicated case are all generally college educated, in their early or mid thirties, members of the high "middle class" with substantial "white collar" credentials. At the "hub" of the conspiracy were three individuals, each of whom, at the trial of this case, had been indicted and had entered guilty pleas to charges arising out of the cocaine smuggling conspiracy charged. The "ringleader" was probably James, age 36. He had obtained a Master's Degree in Education and, following some years of teaching and service as principal of an elementary school in Norman, Oklahoma, he determined to retire from education in 1977. For a short time he pursued house painting and occasional drug dealings to meet his needs. He was no stranger to the drug dealing business. James moved to Eagle, Colorado, in February, 1980 where he resided in a home owned by his brother-in-law, Ronald Kleist, and his sister, Jennie Von Kleist, a/k/a Char or Charr Kleist. James testified that he moved to Colorado in order to enter into the "cocaine smuggling business" with Ron Kleist and Richards, of Vail, Colorado. James, Kleist, Jennie and Richards had prior drug dealing experience. [R., Vol. XVIII, p. 1335]. The record evidences that James, Kleist and Richards were the "hub" of the drug-smuggling conspiracy.

At the time of trial of the case at bar, James, Kleist and Richards had been indicted and were serving sentences arising out of the drug smuggling activities involved in this case. Each had pled guilty. James had entered into a plea agreement with the Government whereby, in consideration to acceptance of his plea to two counts of a six-count indictment, he agreed to testify as a Government witness against Kleist and Richards and to otherwise cooperate with the Government in other matters involving the drug smuggling activities. James testified at trial and gave full and comprehensive testimony about the entire scheme. At the time of James' appearance as a witness herein, he was incarcerated at the Federal Prison Camp at Safford, Arizona, serving a concurrent term of three years to two counts. His testimony was most damaging to the theories and/or defenses advanced by the appellants. Kleist did not appear as a witness at this trial following his plea and incarceration.

Richards, 32 years of age at the time of this trial, was serving a five-year sentence at Lompoc Prison Camp, California, following his plea to two counts, one involving a conspiracy to import cocaine and the other, use of a telephonic device to promote the conspiracy. Richards did not appear as a witness voluntarily. He appeared under order of the court whereby he was granted immunity, except for perjured testimony. He testified reluctantly; in fact, the Government was permitted to interrogate him as a hostile witness. His testimony in large measure corroborated that of James and Jennie Von Kleist. She, age 37 at the time of this trial, was divorced from Kleist. She had not been prosecuted. She appeared under Government subpoena and the grant of immunity in connection with all charges involved in this case with the exception of perjured testimony. In sum, the testimony of James, Richards and Jennie Von Kleist, together with other Government testimony and exhibits, if believed by the jury, as it was, was quite substantial and damaging.

Kleist and Richards owned a business in Eagle, Colorado, known as Promethean Tile when James arrived on the scene from Oklahoma. The business was in bad financial straits and Kleist and Richards were in need of money for their business and personal needs. A scheme was devised between James, Kleist and Richards to import cocaine from Peru for resale and profit in the...