U.S. v. Prince
| Decision Date | 15 September 1989 |
| Docket Number | No. 88-3939,88-3939 |
| Citation | 883 F.2d 953 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Michael PRINCE, Edward A. Taylor, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Lynn Alan Thompson, Tallahassee, Fla., Joel Levine, Los Angeles, Cal., for Michael Prince.
Stephen N. Bernstein, Law Offices of Stephen N. Bernstein, P.A., Gainesville, Fla., for Edward A. Taylor.
K.M. Moore, U.S. Atty., Paul Alan Sprowls, Asst. U.S. Atty., Tallahassee, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Florida.
Before FAY and HATCHETT, Circuit Judges, and HOFFMAN *, District Judge.
On May 5, 1988 Michael Prince and Edward A. Taylor were charged with conspiracy to possess with intent to distribute in excess of 100 kilograms (kg) of marijuana in violation of 21 U.S.C. Secs. 841, 846 (1982). Taylor was also charged with possession with intent to distribute more than 100kg of marijuana in violation of 21 U.S.C. Sec. 841 and 18 U.S.C. Sec. 2 (1982). The trial was held in the United States District Court for the Northern District of Florida. On September 28, 1988, the jury returned a verdict of guilty on the conspiracy charge against both Prince and Taylor. The jury further found Taylor guilty of the possession charge. Prince and Taylor appeal the final judgment of conviction.
We now affirm both convictions.
The facts of this case essentially involve a reverse sting operation where Drug Enforcement Agency (DEA) agents posed as sellers in a large scale marijuana transaction. The relevant time frame of the conspiracy runs from approximately September, 1986 to November, 1986. The primary buyers were Jose Paz and Ted Borenstein. The Appellants alleged role in the scheme was as secondary buyers from Paz and Borenstein, who were acting as brokers of the marijuana. We will review the facts and issues on appeal regarding each defendant individually.
Prince's involvement in the conspiracy began when he was introduced to Paz in late September, 1986. Prince was a resident of Los Angeles, but was in Miami when he met Paz. At this meeting, Paz stated that he was a marijuana dealer and inquired of Prince whether he would be interested in assisting Paz in a future marijuana transaction. Prince stated that he was familiar with marijuana and may be willing to help Paz distribute marijuana if he was able and the quality of the marijuana was acceptable. Paz described Prince as a "merchandise dealer."
Also in September, 1986, Prince had arranged to rent a motor home through a friend, David Morgan, in California. Morgan agreed to rent the motor home in his name and allow Prince to use it allegedly for a golfing trip. Two other friends of Prince apparently drove the motor home to Atlanta, Georgia. These friends wished to depart the Atlanta area and leave the motor home there. Prince contacted Paz by telephone three or four times, seeking assistance in storing the motor home. Prince and Paz did not discuss marijuana over the phone. Paz testified that as a general rule he never discussed marijuana over the phone for fear of the phone line being tapped.
Paz agreed to help Prince store the motor home. He instructed Ronald Maurice, a friend in Atlanta, to get the motor home from Prince's friends and give them $600 so they could obtain plane tickets to leave Atlanta. Maurice stored the motor home at his home in Atlanta for approximately six weeks. About three weeks after Maurice took possession of the motor home, he met Paz and Prince for dinner in West Palm Beach, Florida. This apparently occurred sometime in late October or early November. Maurice testified that Prince said he would reimburse Maurice for the $600 he gave to Prince's friends. Maurice added that Prince said he was waiting to look at some marijuana and would be getting some money soon.
Sometime in mid-November, 1986, the undercover DEA agents posing as marijuana dealers contacted Paz and told him they had marijuana for sale in Perry, Florida. Paz and Borenstein went to Perry and inspected the marijuana. They determined that it was of high quality and wished to purchase 5,000 pounds.
After determining that the marijuana was of acceptable quality, Paz contacted Prince and asked his permission to take the motor home to Perry, Florida. Paz did not say what use he intended for the motor home; however, he stated that Prince probably knew the motor home would be used to transport marijuana. Prince consented and then asked if he could join Paz in Perry, to which Paz consented. Prince, consequently, went to Perry and met with Paz on or about November 21, 1986. At this meeting, Paz stated that he had high quality marijuana available. Prince asked Paz if the marijuana contained seeds. Paz responded that the marijuana did contain seeds. Prince then stated that he neither wanted the marijuana nor wished to examine it. Prince went on to explain that he wanted high quality, seedless marijuana and offered to show Paz a sample in his hotel room. Having terminated their discussion of marijuana, Prince asked Paz if he could retrieve some items from the motor home. Prince retrieved a .38 caliber revolver and a 12 gauge shotgun. After this point, Prince's involvement in the marijuana transaction terminated. Prince was later arrested on November 22, 1986 at a restaurant in Perry.
Taylor's involvement in the drug transaction became evident just several days before its culmination on November 22, 1986. When Paz and Borenstein determined that the marijuana was of acceptable quality, they began the process of contacting potential buyers and making arrangements to broker the marijuana. Paz, Borenstein, and undercover agent Michael Luttrell decided to drive to Tallahassee airport to rent a van. Paz proceeded to rent the van while agent Luttrell and Borenstein waited in an area where passengers were deplaning. Apparently by coincidence, Taylor was deplaning and saw Borenstein, with whom he was acquainted. Agent Luttrell testified that Taylor said he was glad he ran into Borenstein because he did not think he could find his way to Perry.
Paz and Borenstein rode back to Perry in the van and agent Luttrell and Taylor rode in agent Luttrell's car. They stopped along the way to have some dinner. At dinner, agent Luttrell heard Taylor and Borenstein discuss previous marijuana deals. Continuing their drive to Perry, Taylor stated to agent Luttrell that Borenstein called him and said he had some marijuana for him to look at. Taylor also said that he had two drivers, Chris and Steve, en route to Perry. In particular, he said that Steve was driving a red Honda which could carry 300 or 400 pounds of marijuana. He added that Steve was the same person who was involved in an earlier marijuana deal in Texas that fell through.
This Texas marijuana deal occurred in October, 1986 and involved the same undercover DEA agents posing as sellers of marijuana. The undercover DEA agents attempted to arrange a sale of marijuana to Paz and Borenstein. Another person, driving a red Honda automobile and carrying $90,000, was also involved apparently at the invitation of Borenstein. This deal was not consummated, however, because Paz and company did not like the quality of the marijuana. This failed deal set up the subsequent deal at issue in the present case.
Upon their arrival in Perry, Taylor, Borenstein, and agent Luttrell went to Borenstein's room where Taylor examined a sample of the marijuana for sale. Taylor sniffed the marijuana and manipulated it with his fingers before indicating that he was satisfied with its quality. Agent Luttrell then took Taylor to a motel a short distance away where Taylor rented a room under a false name. After these events, Taylor was not seen again in Perry.
Approximately two days later, Stephen Burress arrived in Perry driving a red Honda. Burress was there to pick up marijuana and undercover agents loaded the Honda with 275 pounds of marijuana. DEA agents arrested Burress on November 22, 1986 as he drove his Honda out of Perry.
On November 22, 1986, Chris Norman also arrived in Perry to purchase marijuana. He arrived with $77,000, which he gave to Borenstein. Special agent Thomas Turk of the Florida Department of Law Enforcement testified that Norman obtained the $77,000 from Taylor.
Prince raises two issues on appeal. First, Prince claims that the government did not present sufficient evidence to support Prince's conspiracy conviction. Specifically, Prince maintains that the government did not establish Prince and Paz had an "agreement" to engage in a marijuana transaction. The second issue Prince raises is whether there was a significant variance between the conspiracy charged in the indictment and the conspiracy proven at trial.
Prince contends that the evidence presented at trial was insufficient to support his conspiracy conviction. The standard of review on this issue is whether the evidence, when viewed in a light most favorable to the government, proved Prince's guilt beyond a reasonable doubt. United States v. Carcaise, 763 F.2d 1328, 1330-31 (11th Cir.1985); United States v. Sanchez, 722 F.2d 1501, 1505 (11th Cir.), cert. denied sub nom. Gonzales v. United States, 467 U.S. 1208, 104 S.Ct. 2396, 81 L.Ed.2d 353 (1984). If a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt, then we must affirm the conviction. United States v. Sullivan, 763 F.2d 1215, 1218 (11th Cir.1985); United States v. Alvarez, 696 F.2d 1307, 1311 (11th Cir.), cert. denied, 461 U.S. 907, 103 S.Ct. 1878, 76 L.Ed.2d 809 (1983).
Prince basically makes two arguments: first, that no "agreement" linking Prince to the conspiracy was...
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