U.S. v. Roper, 88-7298
| Decision Date | 06 June 1989 |
| Docket Number | No. 88-7298,88-7298 |
| Citation | 874 F.2d 782 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Kenny ROPER, William Price, William Belcher, Jim Childress, William Green, Defendants-Appellants. Eleventh Circuit |
| Court | U.S. Court of Appeals — Eleventh Circuit |
J. Paul Lowery, Montgomery, Ala., for Roper, Belcher & Price.
John T. Kirk, Montgomery, Ala., for Childress.
Bob E. Allen, Montgomery, Ala., for Green.
Algert S. Agricola, Jr., Asst. U.S. Atty., Montgomery, Ala., for plaintiff-appellee.
Appeal from the United States District Court for the Middle District of Alabama.
Before TJOFLAT and HATCHETT, Circuit Judges, and ESCHBACH *, Senior Circuit Judge.
In this reverse-sting marijuana possession with intent to distribute case, we affirm the convictions and judgments as to all appellants.
Between 1980 and 1985, Rebecca Lynn "Becky" Garcia, Jim Childress, and Kenny Roper executed six to ten marijuana transactions, each involving between one hundred and five hundred pounds of marijuana.
The transactions continued in July, 1986, after Garcia pleaded guilty to four counts of trafficking cocaine, one count of trafficking heroin, one count of conspiracy to traffic heroin, one count of trafficking marijuana, one count of racketeering, and one count of conspiracy to assist in an escape. As a condition of her plea bargains with the United States and the state of New Mexico, Garcia supplied the names of people all over the United States to whom she had provided drugs, including Childress and Roper.
Special Agent Dennis Borst of the Drug Enforcement Administration, United States Department of Justice (DEA), Las Cruces, New Mexico, instructed Garcia to reestablish contact with Childress and Roper. Garcia contacted Childress and attempted to persuade him to purchase drugs from her in New Mexico. Childress indicated that he was interested in the transaction, but medical problems prevented him from traveling such a long distance. Garcia offered to deliver the drugs to Childress in Alabama. Childress agreed, and DEA agents in Mobile, Alabama, were notified.
On July 29, 1987, Garcia and Borst met with Special Agent Douglas Lamplugh, DEA Mobile, Alabama, in Mobile. Garcia and Lamplugh planned a 1,000-pound marijuana reverse sting operation. (In a reverse sting, the government organizes the sale of contraband.) Garcia told Childress that she would be in Montgomery, Alabama, on July 30, 1987, with her partner to complete the marijuana sale.
On July 30, 1987 Garcia traveled to Montgomery, Alabama, to meet Childress and Roper. Garcia, Agent John Pigott, of the Mobile County Sheriff's Office, Mobile, Alabama, Drug Enforcement State and Local Task Force, and Special Agent Gary Oetjen, DEA Mobile, Alabama, obtained room 108 at the Budgetel Motel on the East Bypass in Montgomery, Alabama. Pigott played the role of a large-scale supplier, smuggler, and importer of marijuana from New Orleans, Louisiana, and Oetjen played the role of Pigott's driver, operating a U-Haul truck containing seventeen bales of marijuana. Oetjen and Pigott set up audio and video surveillance in room 108 prior to the meeting.
After reaching Montgomery, Childress met with Garcia prior to meeting with Oetjen and Pigott. Garcia then introduced Childress to Oetjen and Pigott. After some discussion of details, Oetjen and Childress left the room, walked to the U-Haul truck in the Budgetel parking lot, and viewed the marijuana. Upon returning to the room, Childress indicated that he could not purchase a thousand pounds of marijuana, and indicated that he wanted to split the load or take a portion of the load on credit. The government agents refused these arrangements, and Childress left without any transaction being completed.
On July 31, 1987, Oetjen, Pigott, Garcia, Childress and Roper met again at the Budgetel Motel. Childress stated that a man in Mobile, Alabama, wanted to purchase 300 pounds of the marijuana; however, he wanted Roper to inspect it. Oetjen and Roper walked to the adjoining Laquinta Hotel parking lot, entered the truck, and inspected the marijuana. The parties agreed to reconvene in Mobile, Alabama, for further negotiations. Pigott agreed to have the marijuana in Mobile, Alabama, by 11 p.m.
At 11 p.m., Garcia and Pigott met Childress and Roper at the Waffle House in Mobile, Alabama. Childress mentioned that an unnamed person from Mobile, Alabama, would finance his purchase of the entire 1,000 pound marijuana load for $240,000. By arrangement, Pigott and During the next few months, Childress and Garcia continued to discuss marijuana purchases by telephone. On October 29, 1987, Garcia made arrangements for Pigott to meet Childress in Montgomery, Alabama. Prior to the meeting, Lamplugh and Pigott set up video and audio recording devices in the Budgetel Motel room where the meeting took place. The discussion between Pigott and Childress focused on how to finance the purchase of the marijuana. Because Childress did not have sufficient cash, Pigott agreed to accept a promissory note secured by a real estate mortgage as security for later payment of the purchase price of the marijuana. Childress agreed to pay the balance from funds generated by selling the marijuana.
Garcia met Roper and an unnamed white male at the Grand Bay Truck Stop on I-10 later that evening. Childress was not with them. Because satisfactory arrangements could not be made on how to conduct the exchange, Pigott and Garcia terminated the discussions.
On November 17, 1987, Pigott again met Childress at the Budgetel Motel in Montgomery, Alabama, to finalize the details of the marijuana transaction. Law enforcement officials recorded the meeting with video and audio equipment. As arranged in earlier telephone conversations, Childress produced $25,000 in $100 bills and a promissory note secured by a warranty deed to real property. Childress then left the room and returned a few minutes later with his off-loaders, William Green, William Belcher, and William Price. Pigott briefed Green, Belcher, and Price on the procedure to be followed in off-loading the marijuana from the airplane, which was to arrive shortly at a nearby private landing strip.
At approximately 3:30 p.m., Lamplugh telephoned Pigott and advised him that the plane loaded with marijuana was about to land, which signaled Pigott that law enforcement officers were in place at the landing strip. Pigott rode to the landing strip with Childress, in Childress's truck, followed by Price and Belcher, each driving a vehicle. Green rode with Belcher. Upon arrival at the airstrip, Lamplugh informed Pigott, Childress, Price, Belcher, and Green that the airplane had landed and was in the hangar. As the convoy approached the hangar, law enforcement officers converged on the vehicles from a side door to the hangar, arresting Childress, Green, Belcher, and Price. Roper later surrendered to federal authorities.
The grand jury charged Childress, Roper, Green, Belcher and Price with conspiracy to possess with intent to distribute approximately 1,000 pounds of marijuana, in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (Count I). The grand jury also charged Childress with unlawful use of a communication facility to commit a felony, in violation of 21 U.S.C. Sec. 843(b) (Counts II through VII). The jury found the appellants guilty as charged. The district court sentenced each appellant to a term of incarceration.
All appellants contend that the government produced insufficient evidence to support their convictions for conspiracy, and that the district court erred in denying their motions for acquittal, in denying their motions for mistrial, refusing to give a requested jury charge, and in giving an improper supplemental jury instruction.
Roper, Price, and Belcher contend that the district court erred in denying their motions for severance. Belcher also contends that he has been denied effective assistance of counsel, that certain evidence was admitted without proper predicate, and that he was denied the right to offer a duress defense.
The issues on appeal are sufficiency of the evidence to support the jury's verdict for conspiracy to possess marijuana with intent to distribute and the alleged trial
errors previously mentioned. 1
Childress argues that the conspiracy must be divided into two segments. The first segment encompasses the period to and including July 31, 1987, the date of the terminated plan. The second segment would begin August 5, 1987, and end November 16, 1987, one day prior to the arrest of all appellants. Childress asserts that during the first segment of the conspiracy, he and Roper had no money; consequently, no conspiracy existed because no agreement was ever reached.
Childress also argues that during the second segment of the conspiracy, from July 31 through the arrest, he dealt exclusively with Garcia and Pigott; Roper did not participate. Additionally, Childress asserts that Garcia enticed him to purchase the 1,000 pounds of marijuana; therefore, any conspiracy that developed was due to coercion.
Roper contends that he was not a member of the conspiracy. Roper adopts Childress's conspiracy division theory and argues that although he participated in activities of the first segment, those activities were not a part of a conspiracy because neither money nor contraband was exchanged. Roper also argues that his conviction of conspiracy should be reversed, because no evidence exists to connect him to the second conspiracy.
Price, Belcher, and Green argue that no evidence exists to prove that they agreed to join a conspiracy, and they only knew they would be unloading an airplane containing a cargo that would weigh approximately 1,000 pounds.
In determining challenges to the sufficiency of evidence in a criminal case, we must determine whether the evidence, when viewed in the light most favorable to the government, and accepting...
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