U.S. v. Thomas

• Decision Date: 25 January 1994
• Docket Number: No. 91-8583,91-8583
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ellis Ray THOMAS, a/k/a Number 7, Jerry Thomas Maxwell, Steven Darrel Gregg, Modesto Serna Sanchez, Jr., a/k/a Number 6, and Roy Lee Hodgkiss, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1350

12 F.3d 1350

UNITED STATES of America, Plaintiff-Appellee, v. Ellis Ray THOMAS, a/k/a Number 7, Jerry Thomas Maxwell Steven Darrel Gregg, Modesto Serna Sanchez, Jr. a/k/a Number 6, and Roy Lee Hodgkiss Defendants-Appellants.

No. 91-8583.

United States Court of Appeals Fifth Circuit.

Jan. 25, 1994.

Order Granting Rehearing Feb. 25, 1994.

Walter Knowles, Dallas, TX, for E.R. Thomas.

Ray Bass, Austin, TX, for Jerry T. Maxwell.

Phillip S. Greene, Houston, TX, for S.D. Gregg.

Warren L. "Rip" Collins, Jr., Rip Collins, Minton, Burton, Foster & Collins, Austin, TX, for Roy Lee Hodgkiss.

Richard Ferguson, Waco, TX (Court-appointed), for M.S. Sanchez, Jr.

Joseph H. Gay, Jr., Richard L. Durbin, Asst. U.S. Atty., Ronald F. Ederer, U.S. Atty., San Antonio, TX, for plaintiff-appellee.

Appeals from the United States District Court for the Western District of Texas.

ON PETITION FOR REHEARING

(Opinion December 21, 1993, 5th Cir.1993)

Before WIENER, EMILIO M. GARZA, Circuit Judges, and LITTLE, ^* District Judge.

EMILIO M. GARZA, Circuit Judge:

IT IS ORDERED that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby GRANTED. We hereby WITHDRAW our prior opinion and substitute the following:

Defendants Ellis Ray Thomas ("Thomas"), Jerry Thomas Maxwell ("Maxwell"), Steven Darrel Gregg ("Gregg"), Modesto Serna Sanchez, Jr. ("Sanchez"), and Roy Lee Hodgkiss ("Hodgkiss") were jointly tried before a jury and convicted of various offenses stemming from a conspiracy to distribute narcotics. Thomas, Maxwell, Gregg, and Sanchez were convicted of conspiring to possess a controlled substance with intent to distribute, in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1988). The jury also found Thomas and Sanchez guilty of possessing a controlled substance with intent to distribute and aiding and abetting such possession, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Additionally, Sanchez was found guilty of money laundering and aiding and abetting money laundering, in violation of 18 U.S.C. Sec. 1956(a)(1)(A)(i) and 2. Hodgkiss was convicted of engaging in a continuing criminal enterprise ("CCE"), in violation of 21 U.S.C. Sec. 848, and of using or carrying a machine gun in relation to a drug trafficking offense, in violation of 18 U.S.C. Sec. 924(c)(1). All five defendants now appeal their convictions and sentences. We affirm in part and remand in part.

I

From 1986 to 1989, Hodgkiss operated an extensive conspiracy to distribute cocaine, amphetamine, methamphetamine, and marijuana Hodgkiss obtained the drugs distributed by his retailers from various sources. John Rogala provided Hodgkiss with much of the cocaine distributed by the conspiracy, while Alan Gardner sold large quantities of methamphetamine to Hodgkiss. ² Eventually, Hodgkiss and Rogala began manufacturing methamphetamine themselves at a laboratory they established near Smithville, Texas. Hodgkiss and Rogala also attempted to import large quantities of marijuana into the United States from Mexico, although they ultimately were unsuccessful.

                in central Texas.  Hodgkiss employed many people, including government witnesses Aaron Clark and Robbie Curtis, to store, transport, and distribute controlled substances.  To facilitate the purchase and sale of narcotics, and to insulate the conspiracy from detection by law enforcement personnel, Hodgkiss devised a code system utilizing digital pagers.  Hodgkiss assigned code numbers to various people, 1 types of drugs, and locations where the sales were to be consummated.  Customers would contact Hodgkiss to set up a drug deal.  Hodgkiss then would use the pagers to notify his employees that, for example, person "01" would be waiting at location "01" to purchase a specified amount of drug "01."   Hodgkiss kept records detailing many of the drug transactions he arranged
                

An investigation by local and federal authorities led to the arrests of twenty-nine participants in the Hodgkiss conspiracy, including the defendants, all of whom were charged in an indictment alleging a number of drug-related offenses. ³ A jury found the five defendants guilty of all charged offenses. The district court then sentenced Thomas to a prison term of 240 months. Maxwell received a term of 124 months. Gregg received a 324 month term of imprisonment. The district court sentenced Sanchez to a prison term of 240 months, and Hodgkiss to life imprisonment. The defendants now appeal their convictions and sentences.

II

Joint Claims

A

All five defendants generally argue that the evidence proved the existence not of the single conspiracy alleged in the indictment, but of multiple conspiracies. Gregg specifically argues that there was a "material variance" between the single conspiracy alleged in the indictment and the multiple conspiracies proved by the government at trial. A conspiracy is "an agreement by two or more persons to commit one or more unlawful acts and an overt act by one of the conspirators in furtherance of the conspiracy." United States v. Romeros, 600 F.2d 1104, 1106 (5th Cir.1979), cert. denied, 444 U.S. 1077, 100 S.Ct. 1025, 62 L.Ed.2d 759 (1980). A conspiracy conviction must be upheld if any reasonable trier of fact could find beyond a reasonable doubt that "a conspiracy existed, that each co-defendant knew of the conspiracy, and that each co-defendant voluntarily joined it." United States v. Simmons, 918 F.2d 476, 483-84 (5th Cir.1990) (internal quotation omitted). "No evidence of overt conduct is required. A conspiracy agreement may be tacit, and the trier of fact may infer agreement from circumstantial evidence."

United States v. Hernandez-Palacios, 838 F.2d 1346, 1348 (5th Cir.1988).

"In general, once an indictment has been returned, its charges may not be broadened through amendment except by the grand jury." United States v. Baytank (Houston), Inc., 934 F.2d 599, 606 (5th Cir.1991). A material variance occurs when a variation between proof and indictment occurs, but does not modify an essential element of the offense charged. Id. "With variance, our concern is whether the indictment, assuming it has otherwise alleged the elements of the offense, has so informed a defendant that he can prepare his defense without surprise and has protected him against a second prosecution for the same offenses." United States v. Cochran, 697 F.2d 600, 604 (5th Cir.1983). If a material variance occurs, we determine whether the defendant has been prejudiced by it using the harmless error analysis. United States v. Lokey, 945 F.2d 825, 832 (5th Cir.1991).

Whether the evidence, or the reasonable inferences drawn therefrom, proved one or more conspiracies turns on the following elements: (1) the time period involved, (2) the persons acting as co-conspirators, (3) the statutory offenses charged in the indictment, (4) the nature and scope of the criminal activity, and (5) the places where the events alleged as the conspiracy took place. Lokey, 945 F.2d at 831; United States v. Devine, 934 F.2d 1325, 1333 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 954, 117 L.Ed.2d 121 (1992). Here, the jury was presented with evidence from which it could reasonably infer that the defendants were involved in a single conspiracy between 1986 and 1989. For example, Clark and Curtis both testified that they delivered drugs at Hodgkiss's direction to Thomas and Sanchez during the relevant time period. Curtis also testified that he obtained his "job" with Hodgkiss through Alan Gardner, who often would collect the proceeds of drug sales from Curtis for Hodgkiss. Moreover, Gardner would inform Curtis of the pick-up locations for methamphetamine that Hodgkiss purchased. Additionally, Clark testified that John Rogala and Patrick Palmer set up the Smithville methamphetamine laboratory at Hodgkiss's direction and that Rogala brought the methamphetamine produced at the laboratory to Clark for distribution pursuant to Hodgkiss's directions. Palmer stated that Rogala introduced him to Hodgkiss and that Hodgkiss and Rogala jointly reimbursed him for expenses he incurred while leasing the Smithville property. Edward Crawford, who oversaw the manufacture of methamphetamine for Hodgkiss, testified that he was paid for his services by Hodgkiss through Gardner. Donald Copeland testified that Rogala and Hodgkiss attempted to smuggle a large quantity of marijuana into the United States from Mexico. Gardner testified that he often purchased narcotics from Hodgkiss and that Hodgkiss knew Gardner would be distributing the drugs to others, including Maxwell. Richard Townsen, one of Rogala's employees, testified that Gregg delivered up to fifteen kilograms of cocaine to him, many of which Rogala then delivered to Hodgkiss. Finally, Norman Allanson testified that Gregg transported fifteen kilograms of cocaine that Rogala had purchased from Florida to Texas.

Nonetheless, the defendants assert that because they did not know the identity of other members of the Hodgkiss conspiracy, they could not be guilty of conspiring with them. However, a jury may find a defendant guilty of conspiring with unknown persons where a sufficient overlap of personnel occurs--i.e., "if a pivotal figure, such as [Hodgkiss], directs and organizes the illegal activity, and has extensive dealings with each of the parties." Lokey, 945 F.2d at 833. Thus, "[p]arties who knowingly participate with core conspirators to achieve a common goal may be members of an overall conspiracy," even in the absence of contact with other conspirators. United States v. Richerson, 833 F.2d 1147, 1154 (5th Cir.1987) (internal quotation omitted). Therefore, as noted, the jury's conclusion that Hodgkiss, Gregg, Sanchez, Thomas, and Maxwell were co-conspirators was reasonable in light of the evidence presented at trial.

Moreover, the jury reasonably could have inferred from the evidence that the defendants had a common goal of distributing illegal drugs...