U.S. v. Walther, 87-3631

• Decision Date: 16 March 1989
• Docket Number: No. 87-3631,87-3631
• Citation: 867 F.2d 1334
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward Alois WALTHER a/k/a "Eddie," John H. Woodruff, Marvin Walkenstein, John Paul Weger a/k/a "Butch," Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1334

867 F.2d 1334

UNITED STATES of America, Plaintiff-Appellee, v. Edward Alois WALTHER a/k/a "Eddie," John H. Woodruff, Marvin Walkenstein, John Paul Weger a/k/a "Butch," Defendants-Appellants.

No. 87-3631.

United States Court of Appeals Eleventh Circuit.

March 16, 1989.

Joel Kaplan, Miami, Fla., for Walther.

David T. Weisbrod, Tampa, Fla., for Woodruff.

Jack T. Edmund, Fort Meade, Fla., for Weger & Walkerstein.

Mark V. Jackowski, Whitney L. Schmidt, Asst. U.S. Attys., Tampa, Fla., Marvin Hamburg, Dept. of Justice, Washington, D.C., for U.S.

Appeal from the United States District Court for the Middle District of Florida.

Before JOHNSON, HATCHETT and COX, Circuit Judges.

HATCHETT, Circuit Judge.

In this "reverse sting" marijuana distribution case, we affirm the convictions and judgments.

FACTS

On October 13, 1986, a confidential informant (CI) advised officers from the Polk County, Florida, Sheriff's Department that individuals from Miami, Florida, were interested in purchasing narcotics. During the next two weeks, the officers devised a plan whereby they would pose as marijuana traffickers with a ready supply of marijuana for immediate sale. In this type of undercover narcotics operation, known as a "reverse sting," undercover law enforcement officers pose as sellers of previously confiscated drugs, set up deals with would-be buyers under carefully controlled conditions, and arrest the purchasers following the sale.

The officers borrowed 3,000 pounds of marijuana from the United States Customs Service and rented two sites, a warehouse-office in Auburndale, Florida, and a warehouse in Lakeland, Florida. The officers installed videotape equipment and hidden microphones in both locations and stored the marijuana in the Lakeland warehouse.

On October 27, 1986, undercover officer William Warnock met the CI and appellants Edward Alois Walther and John H. Woodruff at a shopping center. Warnock drove Walther, Woodruff, and the CI to the Auburndale warehouse to meet undercover officer Jose Davila, who posed as the head of the narcotics trafficking organization. At the warehouse, Walther and Woodruff discussed purchasing 10,000 pounds of marijuana from Davila, but agreed to purchase only 3,000 pounds during the first transaction.

Davila dispatched Warnock to bring a sample bale of the marijuana to the Auburndale Davila told Walther and Woodruff that he needed forty-eight hours to prepare for the sale. Davila gave Walther and Woodruff his beeper number and concluded the meeting. Warnock drove Walther, Woodruff and the CI back to the shopping center.

warehouse. While waiting for Warnock to return, Davila, Walther, and Woodruff discussed arrangements for removing the marijuana from its storage facility. Davila set the price at $315 per pound. After Warnock returned with a sample bale, Walther examined it by inserting his hand into the bale to test the marijuana for wetness. Upon removing a small quantity for inspection, he rolled a marijuana cigarette and smoked it.

On October 28, 1986, Woodruff telephoned Davila's beeper number from Miami, and Davila returned the call. Woodruff told Davila that he and Walther were flying to Orlando, Florida, and would arrive at 9:30 a.m. on October 29, 1986. Woodruff also stated that he had already dispatched several vehicles to Polk County. Davila told Woodruff that he and Warnock would meet them at the airport.

On October 29, 1986, Davila and Warnock drove to the Orlando airport and joined Walther and Woodruff for a breakfast meeting. Davila stated that the forty-eight hours needed to make proper arrangements had not expired and that his associates had not yet located a satisfactory warehouse for storing and distributing the 3,000 pounds of marijuana. Walther told the officers that his flight bag contained enough money to buy 400 pounds of marijuana. Walther explained that they had a car in the airport parking area with out-of-state plates equipped with air shock absorbers capable of carrying a 300 or 400 pound load smoothly. Davila replied that he was not interested in selling only 400 pounds. He added that he would make arrangements for his driver, Warnock, to meet them on October 30, 1986, and take them to his office to complete their negotiations. Later that day, Woodruff notified Davila that he and Walther were staying in room 203A at the Howard Johnson motel. Davila told Woodruff that Warnock would meet them at noon on October 30, 1986.

On the morning of October 30, 1986, Warnock drove to the Howard Johnson motel and met Walther and Woodruff. Each entered a separate car: Walther drove a Ford; Woodruff drove a Chevrolet Caprice with a Missouri license plate. Walther and Woodruff followed Warnock on a circuitous route to the shopping center where they had met three days before. Walther and Woodruff entered Warnock's car and accompanied him to the Auburndale warehouse to meet Davila. The activities in the Auburndale warehouse were recorded.

Davila told Walther and Woodruff that the 3,000 pound load of marijuana had been delivered to a different warehouse. Woodruff stated that Walther had the purchase money. Walther indicated, however, that he did not have all of the money. Walther asked to examine the 3,000 pounds of marijuana and indicated that he and others would repack the marijuana and place 400 pounds in one of the cars parked at the shopping center. Woodruff advised Davila that he had to contact persons in Miami because the trucks were still in Miami, and they could repack the load while waiting for the trucks to arrive. When Woodruff asked whether the storage area had security problems, Davila responded that he knew of none. Davila directed undercover officer Frank Hart to drive Woodruff to the warehouse in Lakeland.

After Woodruff left, Walther noted that the sample bale had contained two brick-shaped packages and asked whether the bales generally looked that way. When told that they did, Walther declared that repackaging was necessary. When Woodruff returned, he praised the location of the Lakeland warehouse and reported that he had examined the marijuana.

The parties agreed that the repackaging activity could commence prior to payment as long as the money was delivered before the marijuana left the warehouse. Davila assigned Warnock to meet Walther at the Howard Johnson motel and bring him to the Auburndale warehouse after Walther had obtained all of the money. At 3:30 At 8:15 p.m. that evening, Hart arrived at the Lakeland warehouse with Walther, Woodruff, and appellants John Paul Weger and Marvin Walkenstein. Undercover officers Robert Kenney and Roy Annen were inside the warehouse, purporting to serve as guards. Earlier that day, Kenney had driven a truck containing almost 3,000 pounds of marijuana to the warehouse.

p.m., Warnock drove Walther and Woodruff back to the shopping center where they had left their cars. Warnock agreed to meet them early the next morning.

After introducing themselves as Eddie (Walther), Johnny (Woodruff), "Butch" (Weger), and Marvin (Walkenstein), the appellants set about repacking and weighing the marijuana. Appellants began by unloading a trash can, garbage bags, gloves, coveralls, duct tape, cutting knives, and other items. Weger issued directions to the other three appellants. They placed two trash bags, one inside the other, into the trash can. The first bale removed from the truck contained two compressed bricks of marijuana wrapped in burlap and plastic. Appellants removed one brick and placed it in the trash can; then appellants twisted and secured the inside bag and the outer bag with duct tape. Appellants weighed the bag, numbered it, and recorded the weight on a piece of duct tape on the outer bag. Appellants repeated that process with each act of repackaging. In addition, appellants kept a running account of the number of bags and their weights, deducted the weight of the bags, and placed the bags containing wet marijuana aside.

For approximately one hour, all four appellants participated in the repackaging and weighing process. Then Walther and Weger drove off, leaving Woodruff and Walkenstein to complete the repackaging, weighing, and recording. On four occasions while pausing from their work, Walkenstein smoked some of the marijuana.

At 6 a.m. on October 31, 1986, Warnock met Walther in the lobby of the Howard Johnson motel and followed him to room 203A. Walther emerged from the room with a heavy suitcase, and Warnock placed it in the trunk of his car. Walther carried a second suitcase and his flight bag. Warnock drove Walther to the Auburndale warehouse to meet Davila. In the warehouse, the suitcases and the flight bag were opened and Walther removed stacks of money totalling $949,840.

Woodruff and Walkenstein completed the repackaging early that morning. Hart took Woodruff to the Auburndale warehouse. Woodruff displayed his tally sheets and announced that they had computed the net weight of the marijuana at 2,813 pounds, including 1,037 pounds of wet marijuana. Walther and Woodruff sought a reduction in the price for the wet marijuana because they did not want to pay for the added weight caused by moisture. Davila accepted a price reduction to $290 per pound for the wet marijuana. Walther calculated the total price for 1,776 pounds of marijuana at $315 per pound and 1,037 pounds of wet marijuana at $290 per pound at $860,170. Woodruff stated that Walkenstein would drive off part of the load and then contact Weger who would arrive with the trucks to transport the remainder of the marijuana.

Woodruff returned to the Lakeland warehouse and placed approximately 400 pounds of marijuana in the trunk of the Caprice. Satisfied with its appearance, Walkenstein departed. Walther remained at the Auburndale warehouse to count the cash and make payment for the marijuana.

Walkenstein drove the Caprice only a short distance before officers stopped and arrested him. A search of the vehicle...