U.S. v. Stowell

• Decision Date: 15 November 1991
• Docket Number: No. 90-2223,90-2223
• Citation: 947 F.2d 1251
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Janice M. STOWELL, a/k/a Jody Annmarie Tucker, Gary Lane Williams, a/k/a Jackson King and Jimmy Wood, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1251

947 F.2d 1251

UNITED STATES of America, Plaintiff-Appellee, v. Janice M. STOWELL, a/k/a Jody Annmarie Tucker, Gary Lane

Williams, a/k/a Jackson King and Jimmy Wood,

Defendants-Appellants.

No. 90-2223.

United States Court of Appeals, Fifth Circuit.

Nov. 15, 1991.

Marjorie A. Meyers, Asst. Federal Public Defender, Roland E. Dahlin, II, Federal Public Defender, Houston, Tex., for Stowell.

Dick DeGuerin, DeGuerin & Dickson, Houston, Tex., for Williams.

Jeralyn E. Merritt, Denver, Colo., for defendants-appellants.

Paula Offenhauser, Asst. U.S. Atty., Ronald G. Woods, U.S. Atty., Houston, Tex., for plaintiff-appellee.

Appeals From the United States District Court for the Southern District of Texas.

Before WISDOM, HIGGINBOTHAM, and SMITH, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

A jury convicted the defendants of conspiring to possess and aiding and abetting the possession of more than one hundred kilograms of marijuana with intent to distribute, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(B). We affirm the convictions of Williams and Tucker. We reverse the conviction of Wood and remand for a new trial because the district court, over objection, refused to instruct the jury regarding multiple conspiracies.

I.

Confidential informant Alan Bucchino in August of 1988, introduced undercover agent Jeffrey Wendling of the Drug Enforcement Agency to Lewis Michel. Wendling and Michel began negotiations of a deal whereby Wendling would supply an airplane, a pilot, and a landing strip for Michel's plan to smuggle marijuana into the United States. It was ultimately decided that 500 kilograms of marijuana would be flown out of Mexico in the spring of the following year.

In December of 1988, Michel told Wendling that he had been in contact with "Butterfly," the code name for his Mexican supplier, later identified as Jimmy Wood. In March of the following year, Michel informed Wendling that Wood and the prospective purchaser of the marijuana wanted to inspect the airstrip near Houston where the marijuana was to be delivered. DEA agents observed Michel, Wood, and Gary Williams, also known as "Mr. Nervous," travelling to the airstrip shortly thereafter in a maroon Jeep Wagoneer.

Although delivery of the marijuana was originally set for April 5th, the plan stalled because Mexican troops had bivouacked in the area of the airstrip in Mexico from which the flight was to depart. Meanwhile, Wood arrived in Houston driving the same maroon Jeep Wagoneer previously seen at the airstrip. He met with Wendling and Michel at the Manor House Motel to discuss details of the upcoming transaction, such as the packaging of the marijuana and the location of the Mexican airstrip. Michel stated that an associate would drive a blue van to Houston which would be parked at an alternate airstrip in case of an emergency. Wood identified a Chevrolet pick-up truck with a camper on it as the transport for the marijuana. Wood also stated that Mr. Nervous had gone back to Dallas and would return to Houston when they got close.

The Mexican army moved out of the area of the airstrip on April 12th, and a new target date of April 15th was set. Early on the morning of the 15th, Michel met with Wendling and other undercover DEA agents at the airstrip. Michel gave the pilot a bag containing $35,000. The agents then flew off a comfortable distance, turned the plane around, and landed at Houston Intercontinental Airport, where they loaded the plane with 500 kilograms of marijuana taken from a DEA stock pile. They waited a suitable period of time, and then flew back to the airstrip.

Meanwhile, Michel informed Wendling that the blue van had arrived. Wendling and another agent picked up the van, stored it at the alternate strip, and returned to the Manor House Motel where Michel was staying. When they arrived at Michel's motel room, Judy Tucker was in bed. Michel identified her as the person who had driven the blue van down from Dallas. Wendling commented to Michel that if use of the alternate strip were necessary, there might be a problem since there would be a large quantity of "dope" for the pilot to unload and leave unattended. He stated that they needed something to cover it. At this point, Tucker interjected that there were some blankets in the back of the van that were there to serve that purpose. Wendling and Michel then drove to the airstrip to await the return of the plane.

Williams and an individual named Richard Dyer had gone to a local electronics store in the Jeep Wagoneer. They returned from the store to the Manor House Motel and picked up Wood. DEA agents observing their activities reported that they made two more stops and apparently were rearranging things in the cargo compartment of the vehicle. At one point Williams put what appeared to be a radio antenna on the outside of the vehicle. The three men ultimately arrived at the Residence Inn adjacent to the parking lot of a K-Mart store and began removing unidentified articles from the car and taking them into a room at the hotel. Williams was seen carrying a hand-held radio.

The plane arrived at the airstrip as scheduled, and the marijuana was unloaded into a white van. The van proceeded to a warehouse where the marijuana was packaged, weighed, and loaded into the pick-up with the camper on it. Michel radioed to Wood that he would contact him shortly. Michel and an undercover agent then drove the pick-up truck to the K-Mart parking lot and parked it there. Wendling followed in an undercover car. They met Wood in the K-Mart parking lot and informed him that everything had gone according to plan.

Richard Dyer then came across the lot from the direction of the Residence Inn, got in the pick-up truck, and started the engine. After a few minutes, Williams and Wood pulled up in the Wagoneer and the two cars remained alongside each other for a moment before they left the parking lot together. DEA agents stopped both cars shortly thereafter and arrested Williams, Wood, and Dyer. In a search of the Wagoneer, officers found a mobile phone, a two-meter VHF radio programmed for both police and communicating frequencies, and police scanners. Michel had told Wendling that "Mr. Nervous" would have such equipment in his vehicle. In addition, there was a spiral notebook containing notations of radio frequencies for local law enforcement agencies and notations corresponding to the packages of marijuana. The agents also found a map showing the section of Mexico where the airstrip was located.

Michel was arrested at the Residence Inn. Other DEA agents returned to the Manor House Motel and arrested Tucker. When asked for identification, she responded that her name was Janice Stowell, and she produced identification bearing that name. Officers later searched one of Tucker's bags and found a mailgram sent to her by Michel that referred in Spanish to "a very big problem with 150 watchos" or soldiers.

II.

Tucker contends that there was insufficient evidence to support her convictions. We review the evidence in the light most favorable to the government to determine whether any rational juror could have found beyond a reasonable doubt that Tucker committed the offenses. United States v. Gallo, 927 F.2d 815, 820 (5th Cir.1991).

The government was required to prove an agreement between two or more persons to violate federal narcotics laws, that Tucker knew of the agreement, and voluntarily participated. Id. (citing United States v. Magee, 821 F.2d 234, 239 (5th Cir.1987)). Tucker contends that the government failed to show that she was aware of or willfully became a member of the conspiracy. Rather, she argues, the evidence demonstrated only that she associated with members of the conspiracy, which is insufficient to support a conspiracy conviction. United States v. Lewis, 902 F.2d 1176, 1181 (5th Cir.1990).

Tucker points out that although negotiation of the transaction had continued for many months, there was no evidence linking her to any of these negotiations. Until a few days before the transaction, Tucker was in jail, and the day of her release was uncertain. She arrived on the scene only on the morning the marijuana was to be delivered, in response to a phone call from Michel the night before. She did not participate in loading or unloading the marijuana, nor in any exchange of money. Nor did she participate in any radio communications or transportation that indicated a connection to the marijuana shipment. Michel testified that he did not tell Tucker that he was involved in a "dope deal."

Nevertheless, four pieces of evidence incriminated Tucker. First, she drove the blue van down to Houston at Michel's request. This van was stored at the alternate airstrip as a back-up vehicle. Second, when agent Wendling asked about how the "dope" could be covered up, she volunteered that there were blankets in the back of the van for that purpose. Third, Tucker had received a mailgram that contained a veiled reference to the problem of the Mexican army camping in the area of the Mexican airstrip. Fourth, she gave the agents a false name when they arrived at the motel room to arrest her.

Although the evidence against Tucker is modest and her role in the conspiracy was minor, a rational juror could conclude that Tucker knowingly joined in the conspiracy. By delivering the van, she committed an overt act in furtherance of the conspiracy. Her statement about the blankets indicates that she knew what was going on and supported it. Her use of an alias is probative of consciousness of guilt. The fact that she joined the conspiracy at the last minute and played only a minor role does not preclude her conviction.

Tucker also contends that the evidence was insufficient to convict her as an aider and abettor of possession with intent to distribute marijuana. To convict Tucker on this charge, the government was required to show that the defendant associated with the criminal venture,...