U.S. v. Sudderth

• Citation: 681 F.2d 990
• Decision Date: 04 August 1982
• Docket Number: T-B,No. 81-3630,81-3630
• Parties: 11 Fed. R. Evid. Serv. 342 UNITED STATES of America, Plaintiff-Appellee, v. Ted SUDDERTH, a/k/aone, and Kenneth LeCompte, Defendants-Appellants. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 990

681 F.2d 990

11 Fed. R. Evid. Serv. 342

UNITED STATES of America, Plaintiff-Appellee, v. Ted SUDDERTH, a/k/a T-Bone, and Kenneth LeCompte,

Defendants-Appellants.

No. 81-3630

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Aug. 4, 1982.

Simon & Dauterive, Ronald E. Dauterive, Lafayette, La., for Sudderth.

Frank G. DeSalvo, New Orleans, La., for Kenneth LeCompte.

Patrick Fanning, Michael Schatzow, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before BROWN, POLITZ and WILLIAMS, Circuit Judges.

POLITZ, Circuit Judge:

Marion Earnest, Ted Sudderth, and Kenneth LeCompte were jointly indicted for conspiracy to possess marihuana with intent to distribute and to distribute marihuana, two counts of possession with intent to distribute, and two counts of use of a communication facility in violation of the Controlled Substances Act, contrary to 21 U.S.C. §§ 846, 841(a)(1), and 843(b), and 18 U.S.C. § 2. At the close of evidence, the court acquitted LeCompte on the two communications charges. The jury returned verdicts of guilty on all five counts against Earnest and Sudderth and on the three remaining charges against LeCompte. All defendants appealed. Because of delays occasioned by retention of new counsel and certain post-trial motions, the appeal of Earnest was considered first and his convictions were affirmed in an unpublished opinion. United States v. Earnest, 659 F.2d 1073, No. 81-3102 (5th Cir. 1981). We now consider the appeals of Sudderth and LeCompte. The convictions of Sudderth are affirmed. The convictions of LeCompte on Counts I and II are affirmed; the conviction on Count III is reversed.

Facts

The prosecution was based largely on the testimony of Russell Janes, a coconspirator who was involved in the offenses charged but who cooperated with the government. According to the record, this case involves a significant marihuana operation, including the naval transportation of the contraband into New Orleans, its warehousing there, and its distribution by truck to various points around the country.

In June 1979, Janes, an experienced trucker, contacted Earnest, an acquaintance, seeking employment. They spoke by telephone and later met at their respective homes in Florida. Earnest told Janes that a shipload of marihuana was on its way to New Orleans and that Janes' driving skills and his expertise in falsifying documents, needed to "get the load through," could earn him several thousand dollars for a week's work. Shortly thereafter, Earnest, his wife, and Janes drove to Mobile and leased a truck, an International Harvester cab-over diesel semi-tractor, to pull an "eighteen wheeler" trailer. Janes and Earnest drove to New Orleans and went to the San Antonio Inn.

Upon arrival in New Orleans, Earnest made several telephone calls. As a result, Sudderth first went to the motel and explained a delay in the shipment of the marihuana, later returning with a typewriter and forms to be used by Earnest and Janes in preparing false bills of lading. Sudderth subsequently went to the motel to give Janes a telephone number to contact upon arrival at the destination assigned for the first truckload of marihuana they were to transport.

On or about June 20, 1979, LeCompte made an appearance at the motel. He had been dispatched to meet Earnest and Janes and to show them to the "Cave," the warehouse on Tchoupitoulas Street where the marihuana was first stored and later loaded in trailers. Plans called for Earnest and Janes to drive their tractor unit to the warehouse, pick up a trailer, and haul it to Washington Court House, Ohio. During an early conversation, Janes asked LeCompte what part he played in the operation. According to Janes, LeCompte "described his duties as everything from unloading ships to securing the load in the warehouse, loading trailers and delivering the dope."

LeCompte took Earnest to the "Cave" a few hours prior to Earnest's and Janes' departure on the Ohio run. Sometime late on June 20, Earnest and Janes drove to the warehouse and picked up a trailer containing over seven tons of marihuana, covered with ten tons of onions to mask the odor and to provide a legitimate appearance. They saw other trailers in the warehouse and a large quantity of marihuana stacked in the warehouse. The two drove to Ohio and delivered the trailer as directed. This shipment is the subject of Count II.

Upon returning to New Orleans, the two drivers picked up a second load, composed of ten tons of marihuana and ten tons of bell peppers, and drove it to Quakerstown, Pennsylvania. This shipment is the subject of Count III.

When they returned to New Orleans, on or about June 27, 1979, Earnest and Janes drove to the warehouse and found LeCompte engaged in cleaning the premises. All of the marihuana was gone.

Insofar as the record reflects, after the Quakerstown run, neither Earnest nor Janes had further involvement in the scheme. A few days later, Janes contacted the authorities and thereafter cooperated with them in the investigation which resulted in the indictment and trial of Earnest, Sudderth and LeCompte.

Sufficiency of Evidence

LeCompte challenges his conviction, contending, inter alia, that the evidence is not sufficient to support the conspiracy count or either of the two substantive counts. In order to establish the charge in Count I, the conspiracy allegation, the government was required to show that LeCompte agreed knowingly to distribute marihuana or to possess marihuana with intent to distribute. See United States v. Metz, 608 F.2d 147 (5th Cir. 1979); United States v. Ryan, 478 F.2d 1008 (5th Cir. 1973). As we observed in Ryan, "(o) ral statements of agreement are ... unnecessary. It is enough if a conspiracy to commit a crime can be inferred from the circumstances present in a given case." 478 F.2d at 1015. In order to prove the charges in Counts II (Ohio load) and III (Pennsylvania load), the government was required to show that LeCompte knowingly possessed the loads of marihuana with intent to distribute. Cf. United States v. Young, 655 F.2d 624 (5th Cir. 1981) (to sustain conviction for possession of cocaine with intent to distribute, government must prove knowing possession with intent to distribute). It was necessary that the government prove LeCompte knew the cargoes trucked by Janes and Earnest contained marihuana. Cf. United States v. Rodriguez, 588 F.2d 1003 (5th Cir. 1979) (conviction under drug-importation statutes requires showing that defendant knew he was importing controlled substance).

Conspiracy

Count I charges that during the month of June 1979, LeCompte conspired with Earnest, Sudderth, and others, to possess marihuana with intent to distribute and to distribute marihuana. In analyzing LeCompte's evidentiary challenge, we view the evidence and all reasonable inferences to be drawn therefrom, in the light supportive of the conviction, accepting all obvious credibility choices inherent in the jury verdict. United States v. Hinds, 662 F.2d 362 (5th Cir. 1981). If we conclude that the jury reasonably could have found that the evidence established LeCompte's guilt beyond a reasonable doubt, we must and will affirm the conviction. See United States v. Bell, 678 F.2d 547 (5th Cir. 1982) (en banc).

The evidence is sufficient to support the conspiracy conviction. The jury obviously found Janes credible. Janes testified about LeCompte's inculpatory statement sketching his duties in the illegal activity. LeCompte was sent to the motel to guide Earnest and Janes to the warehouse; he took Earnest there to show him the location and the trailer he was to deliver. The warehouse contained other trailers as well as a large stack of marihuana. LeCompte explained the use of the vegetables to hide and mask the contraband cargo, as well as other parts of the operation. Some several months before, the lease to the warehouse was in LeCompte's name. The jury was presented sufficient evidence upon which it reasonably could find that LeCompte knowingly involved himself in the marihuana distribution enterprise. The only way LeCompte can successfully challenge the conspiracy conviction is by totally discrediting Janes. That credibility determination is a jury prerogative, not an appellate panel's function. The conviction on Count I is affirmed.

Possession With Intent-Count II

We similarly find sufficient evidence to support the conviction of LeCompte on Count II, the possession with intent charge involving the first load, that taken to Ohio. We need not again detail the evidence. Suffice to say that LeCompte met Earnest and Janes for the express purpose of showing them the "Cave" and the trailer to be hauled. LeCompte spoke of his assigned duties, including everything from unloading the ship to loading and delivering truckloads. He spoke of the masking cargo and was very much in evidence prior to Earnest and Janes' departure on the first trip. The jury reasonably could find him guilty of Count II and that conviction is affirmed.

Possession With Intent-Count III

We conclude otherwise, however, with respect to Count III which involves the load Earnest and Janes drove to Quakerstown, Pennsylvania. A painstaking review of the record reflects no evidence that LeCompte was aware of this second trip. He had no contact with either Earnest or Janes prior to the departure on the second trip. Indeed, after showing Earnest the "Cave" on the night of the first trip, LeCompte is not seen or referred to until the day that Earnest and Janes return from the second run. At that time, LeCompte is seen cleaning the warehouse. No inculpatory statements tending to prove Count III are in evidence.

Perhaps the government could have proven the charge with testimony from Janes, or another, that LeCompte was aware of the contraband cargo in the Pennsylvania trip, but the record is silent. One may well...