U.S. v. Thomas

• Decision Date: 05 January 1993
• Docket Number: No. 91-8707,91-8707
• Citation: 987 F.2d 697
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brian THOMAS, Floyd JOHNSON, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 697

987 F.2d 697

61 USLW 2498

UNITED STATES of America, Plaintiff-Appellee, v. Brian THOMAS, Floyd JOHNSON, Defendants-Appellants.

No. 91-8707.

United States Court of Appeals, Eleventh Circuit.

Jan. 5, 1993.

Stephanie Ann Kearns, Federal Defender Program, Inc., Atlanta, Ga., for Thomas.

Emerson Carey, Jr., Atlanta, Ga., for Johnson.

Mary Jane Stewart, Asst. U.S. Atty., Atlanta, Ga., for the U.S.

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

Before KRAVITCH, Circuit Judge, CLARK, Senior Circuit Judge, and PITTMAN ^*, Senior District Judge.

KRAVITCH, Circuit Judge:

Defendants Floyd Johnson ("Johnson") and Brian Thomas ("Thomas") appeal from their convictions for involvement in a cocaine transaction. We uphold Johnson's and Thomas's convictions on Count One for conspiracy to possess with intent to distribute but reverse Thomas's conviction on Count Two for aiding and abetting in the use of a firearm during the commission of a drug felony. In reversing Thomas's conviction, we hold that a defendant reserves his Fed.R.Crim.P. 29 right to appellate review of a particular count on the basis of the government's case-in-chief alone when he refrains from presenting evidence on that count, regardless of whether he submits evidence on other counts.

I. STATEMENT OF THE FACTS

Johnson, Thomas and Eulas Calloway ("Calloway") [together the "defendants"] were arrested for their involvement in an aborted drug transaction in which several exotic automobiles and a $25,000 cashier's check were to be traded for nine kilograms of cocaine. The transaction was actually a "sting" operation involving Karen and Craig Redecker, two drug convicts who were attempting to reduce their sentences by cooperating with the government.

The defendants were charged in a two count indictment with conspiring to possess cocaine with intent to distribute in violation of 21 U.S.C. § 846 ("Count One") and with aiding and abetting each other in the use and carrying of a firearm during a drug felony in violation of 18 U.S.C. § 924(c) ("Count Two"). All three defendants pleaded not guilty and were tried jointly. No one requested a separate trial.

At trial, the government introduced evidence of a series of meetings between the Redeckers, Thomas, Johnson and Jim Traylor. Traylor is Karen Redecker's father and was the purported "supplier" for the drug transaction. Through the testimony of the Redeckers, Traylor and four Drug Enforcement Administration (DEA) agents involved in the operation, the government showed that the Redeckers and Traylor had arranged to trade nine kilograms of cocaine for the cars and the cashier's check for $25,000. The exchange was to occur at the Rio Shopping Center in Atlanta's midtown section. The DEA agents conducted surveillance at the Center on the day of the transaction. Although Johnson had told Craig Redecker that an individual by the name of Eddie would accompany him to the exchange, the man agents observed with Johnson on the day of the transaction was actually defendant Calloway.

DEA Agent Cesar Diaz testified that he observed Johnson and Calloway walking along the street before meeting with Thomas in the parking lot. Agent Diaz then saw Thomas enter the shopping area. Several times Thomas walked out, looked at the parking lot and then returned to the shopping area. At the pre-arranged time, Agent Diaz arrested Thomas.

Johnson was arrested immediately after the Redeckers had received the $25,000 check and while they were inspecting the cars. Calloway attempted to flee arrest but was caught within several blocks of the shopping center. The agents recovered a .38 caliber revolver tucked into Calloway's pants. At no point in the government's case was any evidence introduced linking Thomas to the gun found on Calloway. In fact, Traylor had testified that he, the Redeckers, Thomas and Johnson had agreed to not bring any weapons to the shopping center.

At the close of the government's evidence, all defendants moved for judgments of acquital pursuant to Rule 29 of the Federal Rules of Criminal Procedure. The district court denied Thomas's motion in its entirety, denied Johnson's motion as to Count Two, but reserved ruling as to Count One, and reserved ruling on Calloway's motion.

After the government rested, Thomas put on three witnesses, all of whom testified to facts relating to the conspiracy charge. Thomas presented no evidence on the gun charge, nor did he take the stand to testify. Both Johnson and Calloway testified in their own defense. Calloway stated that he had been hired to act as a security guard for a car repossession. He also testified that Thomas had given him the gun. Calloway admitted, however, that, upon arrest, he told a DEA agent that Johnson had given him the gun. During cross-examination by Thomas's attorney, Calloway conceded that he previously had taken a polygraph exam. Calloway admitted that he told the polygraph examiner that he was confused when he told the DEA agent that Johnson had given him the gun and then he told the examiner that Thomas had given him the gun. On further cross-examination, Calloway acknowledged that the polygraph examiner told him after the exam that he had failed the test on the question of who gave him the gun. Johnson testified that he had not known that there were drugs involved in the transaction. He also stated that Calloway was along for protection but that he had not given the gun to Calloway.

At the close of all the evidence, the district court denied all the motions on which it had reserved ruling earlier. All three defendants then renewed their Rule 29 motions. Once again the district court denied Thomas's motion, denied Johnson's motion on the conspiracy count but reserved ruling on the gun count, and reserved ruling on Calloway's motion.

Thomas was convicted on both Count One--conspiracy--and Count Two--the gun charge. Johnson was convicted on Count One but acquitted on Count Two. Calloway was acquitted on both counts.

The district court sentenced Johnson to serve 138 months of incarceration, followed by three years of supervised release and a $50 special assessment. Thomas was also sentenced to 138 months, 78 months on Count One and 60 months on Count Two, to be followed by three years supervised release and a special assessment of $100. Thomas's sentence had been decreased to reflect acceptance of responsibility. Johnson and Thomas now appeal.

II. THOMAS'S RULE 29 MOTIONS

Thomas makes several arguments based on the district court's handling of his and Calloway's Rule 29 motions. Rule 29(a) provides that:

The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.

Fed.R.Crim.P. 29(a). All three defendants made Rule 29 motions for a judgment of acquittal at the end of the government's case and each renewed their motions at the close of all evidence. Thomas challenges the district court's denial of both of his Rule 29 motions as well as the district court's decision to reserve ruling on Calloway's first Rule 29 motion.

A. Sufficiency of the Evidence

Thomas argues that the district court erred in not granting his Rule 29 motion made at the close of the government's case-in-chief (First Motion) as to Count Two, the gun count. He claims that the government presented insufficient evidence linking Thomas to the gun carried by Calloway. Thomas does not challenge the district court's denial of his First Motion in regard to the conspiracy count.

It is well established that appellate courts review sufficiency claims "in the light most favorable to the government and draw all reasonable inferences and make all credibility determinations in support of the jury's verdict." United States v. Reme, 738 F.2d 1156, 1160 (11th Cir.1984), cert. denied, Pierrot v. United States, 471 U.S. 1104, 105 S.Ct. 2334, 85 L.Ed.2d 850 (1985) (citing Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942)); United States v. Rhodes, 631 F.2d 43, 44 (5th Cir. Unit B 1980). ¹ We will uphold a conviction if, after viewing the evidence in the light most favorable to the government, and drawing all reasonable inferences in its favor, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Reme, 738 F.2d at 1160.

Thomas was charged with aiding and abetting the other defendants in the use and carrying of a firearm during and in relation to a drug felony, in violation of 18 U.S.C. § 924(c). When, however, the government rested, there was nothing in its case, even after applying the aforementioned lenient "sufficiency" standard, linking Thomas to the gun carried by Calloway.

In addressing another 924(c) case, this court set forth the requirements for upholding an aiding and abetting charge associated with a 924(c) possession of a gun:

To prove aiding and abetting, the government must demonstrate that a substantive offense was committed, that the defendant associated himself with the criminal venture, and that he committed some act which furthered the crime.

United States v. Hamblin, 911 F.2d 551, 557 (11th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2241, 114 L.Ed.2d 482 (1991). In Hamblin, the court held that the government must present evidence proving that defendant had the "knowledge required to convict him under section 924(c)." Id. at 558. Applying this standard, the court vacated defendant's conviction because the government had presented insufficient evidence to prove that defendant knew his co-defendant would use a gun in the commission of the robbery, even though defendant was intimately involved in the robbery, i.e. defendant...