U.S. v. Simmons, 82-8770

Citation725 F.2d 641
Decision Date24 February 1984
Docket NumberNo. 82-8770,82-8770
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Neil SIMMONS, Nelson Valladares, Leroy Williams, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

C. James McCallar, Jr., H. Joseph Chandler, Jr., Savannah, Ga., for simmons.

Ray Gaskin, Donald B. Lowe, III, Savannah, Ga., for Williams.

Allen R. Smith, Winter Haven, Fla., for Valladares.

Melissa S. Mundell, Asst. U.S. Atty., Savannah, Ga., Mervyn Hamburg, Appellate Section, Crim. Div., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Georgia.

Before JOHNSON and ANDERSON, Circuit Judges, and TUTTLE, Senior circuit judge.

TUTTLE, Senior Circuit Judge:

This appeal presents claims by the three appellants of which only those of Simmons warrant discussion. Based on the evidence, reviewed in the light most favorable to the government, accepting all reasonable inferences from the direct and circumstantial evidence adduced, the jury could have found the following facts:

Nelson Valladares of Miami, Florida had a meeting in Savannah, Georgia, to obtain the services of one David Blackston to provide his organization for offloading marijuana in Georgia (subsequently extended to South Carolina.) The Blackston organization obtained the help of appellant Williams for a payment of $10,000 to help offload the marijuana at Frogmire, South Carolina and to drive a trailer truck load into Georgia or to a stash house in South Carolina. This offloading produced approximately 600 bales of marijuana weighing approximately 30,000 to 35,000 pounds. Williams helped throw the bales weighing between 40 and 80 pounds onto the truck which he then drove to the stash house.

Anticipating a second shipment, David Ingram, a lieutenant of Blackston's, approached Simmons near Savannah, Georgia to seek his help. Simmons operated Georgia Truck Center, a truck repair business. Ingram told Simmons he needed a tractor-trailer to haul marijuana, and that he would pay $5,000 for Simmons's help to acquire the rig and conceal identity of the purchaser. He gave $3,000 up front to Simmons who found a suitable rig (consisting of tractor and 40-foot trailer) for $11,050, which he delivered to Ingram upon payment of that amount. Simmons told the seller he did not know the identity of the purchaser and told him to pick any name to be inserted in the bill of sale. A false name was inserted in the bill and the truck was fitted with a stolen tag furnished by Ingram. Ingram drove the rig to Frogmire where it was loaded with between 12,000 and 17,000 pounds 1 of marijuana and later parked at Williams's residence in Georgia, before it was intercepted and confiscated.

As stated above, we affirm the convictions and sentences of Valladares and Williams without any need to discuss the several grounds of their appeals.

Simmons raises two grounds in his appeal that require our analysis:

1) Did the government carry its burden of proof in a case in which Simmons was charged with conspiracy to possess in excess of 1,000 pounds of marijuana with intent to distribute in violation of 21 U.S.C. Sec. 846?

2) Did a variance between the allegations as to one of the overt acts alleged in the indictment and the proof with respect to that overt act constitute prejudicial error?

I. ELEMENTS OF PROOF

The question as to the sufficiency of the proof here depends upon whether the government was required to prove that Simmons knew that the marijuana conspiracy was in fact a conspiracy to possess with intent to distribute in excess of 1,000 pounds of marijuana. Appellant contends that an essential element of this offense is that he knew that the quantity of marijuana to be possessed exceeded 1,000 pounds. The government argues that analysis of the several provisions of Section 841 makes clear that it has no such burden. We concur in this view.

Initially, appellant contends that for him to be convicted of the conspiracy, he must have the knowledge of the conspiracy and must intend to join and that he has the same criminal intent necessary for the substantive offense. He relies on Ingram v. United States, 360 U.S. 672 at p. 678, 79 S.Ct. 1314 at p. 1319, 3 L.Ed.2d 1503, 1508 (1959). There, the Supreme Court said: "Conspiracy to commit a particular substantive offense cannot exist without at least the degree of criminal intent necessary for the substantive offense itself." 360 U.S. at 678, 79 S.Ct. at 1319. The Court of Appeals for the Fifth Circuit cited Ingram in an opinion which stated:

We begin by the premise that to be convicted of an unlawful conspiracy a defendant must have knowledge of the conspiracy and must intend to join, or associate himself with the objectives of, the conspiracy. Moreover, "conspiracy to commit a particular substantive offense cannot exist without at least that degree of criminal intent necessary for the substantive offense," citing Ingram, supra.

United States v. Malatesta, 590 F.2d 1379 (1979). 2

We agree with the appellant that the government had the burden to prove at least the degree of criminal intent that was required for conviction of the substantive offense. We must, therefore, decide whether it is an essential part of the proof of the substantive offense to violate this section of the statute that the defendant was aware of the fact that the amount of the marijuana he was charged with possessing with intent to distribute involved in excess of 1,000 pounds.

In this case, Simmons was indicted in Count 3 of conspiracy to violate Section 841(a)(1), (b)(6). At the close of all the evidence, Simmons's counsel moved the court for a judgment of acquittal on the conspiracy count on the ground that there was insufficient evidence on the essential element of Simmons's knowledge of an amount of marijuana in excess of 1,000 pounds. The court denied this motion, but earlier in the case the court had ordered a verdict of acquittal on Count 2, the substantive possession charge in the indictment, which Simmons was accused of conspiring to commit in Count 3. The basis of the court's ruling on this motion was that there was insufficient evidence to prove that Simmons had knowledge of an amount of marijuana in excess of 1,000 pounds.

Simmons argues that it was inconsistent for the trial court not to have dismissed the conspiracy count, once it found a failure of proof with respect to the substantive count. However, the fact that the trial court may have mistakenly dismissed the substantive count only benefitted Simmons. It should not bind this Court in our effort to determine whether the statute was correctly interpreted by the court.

Section 841 provides in material part as follows:

(a) ... It shall be unlawful for any person knowingly or intentionally (1) to ... possess with intent to ... distribute ... a controlled substance;

(b)(6) In the case of a violation of subsection (a) of this section involving a quantity of marijuana exceeding 1,000 pounds, such person shall be sentenced to a term of imprisonment of not more than 15 years ....

Subsection (b)(6) was added by Congress in 1980 to amend the provisions of subsection (b)(1)(B) which had provided for a sentence in a marijuana case of not more than five years. The legislative history demonstrates the purpose of Congress to enhance the...

To continue reading

Request your trial
18 cases
  • U.S. v. Gibbs, 86-1370
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 27 Marzo 1987
    ...of marijuana. Consistent with McHugh and Wright is the analysis of the Court of Appeals for the Eleventh Circuit in United States v. Simmons, 725 F.2d 641 (11th Cir.1984), cert. denied, 469 U.S. 827, 105 S.Ct. 108, 83 L.Ed.2d 52 (1984). In Simmons, the court differentiated Sec. 841(a) which......
  • U.S. v. Sanchez
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 17 Octubre 2001
    ...substance possessed"), abrogated on other grounds, Gozlon-Peretz v. United States, 498 U.S. 395 (1991); United States v. Simmons, 725 F.2d 641, 643 (11th Cir. 1984) ("The statute makes it a crime for a person to possess with intent to distribute a controlled substance . . . . [T]he crime ca......
  • U.S. v. Ocampo
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 28 Noviembre 1989
    ...United States v. Morgan, 835 F.2d 79, 81 (5th Cir.1987); United States v. McHugh, 769 F.2d 860, 868 (1st Cir.1985); United States v. Simmons, 725 F.2d 641 (11th Cir.1983), cert. denied, 469 U.S. 827, 105 S.Ct. 108, 83 L.Ed.2d 52 (1984). As an enhanced penalty provision, its elements need no......
  • U.S. v. Mena
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 23 Enero 1989
    ...only demonstrate that the amount of marijuana knowingly possessed equaled or exceeded one thousand kilograms. See United States v. Simmons, 725 F.2d 641, 644 (11th Cir.) (reaching identical result under 21 U.S.C. Sec. 841(b)(6)), cert. denied, 469 U.S. 827, 105 S.Ct. 108, 83 L.Ed.2d 52 E. U......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT