U.S. v. Winstead, 82-5251

• Decision Date: 01 June 1983
• Docket Number: No. 82-5251,82-5251
• Citation: 708 F.2d 925
• Parties: UNITED STATES of America, Appellee, v. Lewis Daniel WINSTEAD, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 925

708 F.2d 925

UNITED STATES of America, Appellee, v. Lewis Daniel WINSTEAD, Appellant.

No. 82-5251.

United States Court of Appeals, Fourth Circuit.

Argued March 11, 1983.

Decided June 1, 1983.

Wade M. Smith, Raleigh, N.C. (Douglas E. Kingsbery, Tharrington, Smith & Hargrove, Raleigh, N.C., on brief), for appellant.

Robert H. Edmunds, Jr., Asst. U.S. Atty., Greensboro, N.C. (Kenneth W. McAllister, U.S. Atty., Greensboro, N.C., on brief), for appellee.

Before WIDENER and PHILLIPS, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.

WIDENER, Circuit Judge:

Defendant Daniel Winstead was convicted on two counts of aiding and abetting in the false identification and marketing of flue-cured tobacco, in violation of 18 U.S.C. Secs. 2, 1001. He has appealed the conviction on the ground that the government failed to produce sufficient evidence to support the verdict. We agree and therefore reverse the conviction.

I.

This case arises out of an investigation conducted in 1981 by the United States Department of Agriculture involving various North Carolina tobacco warehouses. Special agents of that department were obviously investigating violations of federal regulations concerning the marketing of flue-cured tobacco. See 7 C.F.R. Secs. 725.50-.116. Under these regulations, a marketing card is issued to tobacco farmers "for each farm having tobacco available for marketing." Id. Sec. 725.87(a). The card indicates the maximum number of pounds of tobacco grown on the farm that can be marketed. Id. Sec. 725.87(f).

If a farmer raises less than his quota for a given farm, he can lease his extra poundage allotment to any owner or operator of another farm within the same county. Id. Sec. 725.72. This generally allows a farmer who has grown more than his quota on a particular farm to sell the extra tobacco on excess pounds allotted to another farm within the same county. The marketing of a farm's excess tobacco on a card issued for a farm in another county, however, violates the regulations as a false identification of tobacco. Id. Secs. 725.90, .95(b). It was this kind of violation that the agents in the instant case were investigating.

Pursuant to the investigation, Agent Collins on several occasions contacted the defendant Winstead, a warehouseman, at Winstead's warehouse in Person County, North Carolina. On Collins' first visit to the warehouse, he represented himself as a new farmer who had not raised his quota for his farm in Rockingham County, North Carolina. Collins told Winstead that, because he was going to have extra pounds on his marketing card, he wanted to find someone with excess tobacco. Winstead responded that he was willing to help Collins out.

On a subsequent trip to the warehouse, Winstead approached Collins and asked whether anyone had talked to him. Upon Collins' negative reply, Winstead walked over to a farmer, James Wade, and talked with Wade for about a minute. ¹ Wade then approached Collins and entered into an illegal agreement to sell Wade's excess tobacco on Collins' card. No evidence was presented as to the location of Wade's farm on which he raised tobacco, only as to his address. Wade, however, testified that the agreement was illegal, and therefore we can assume that the tobacco Wade agreed to sell on Collins' card was not grown in the same county as that for which Collins' card was issued.

Later that same day, as Collins was leaving the warehouse, he saw Winstead talking to another tobacco farmer, Rudolph Griffin. Winstead pointed at Collins and said, "That man can help you with pounds, I think." Griffin then approached Collins and, as Wade, entered into an illegal agreement to sell Griffin's tobacco on Collins' card. Again, although no evidence was presented as to the location of Griffin's farms, ² there was evidence that the agreement involved the false identification of Griffin's tobacco and therefore was illegal.

II.

The defendant claims that there was insufficient evidence to support a conviction of aiding and abetting the two tobacco farmers in the false identification of their tobacco. Consequently, we must determine whether there is substantial evidence, taking the view most favorable to the government, to support the jury's verdict of guilty. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942).

To prove the crime of aiding and abetting the government must show that the defendant knowingly associated himself with and participated in the criminal venture. Nye & Nissen v. United States, 336 U.S. 613, 619, 620, 69 S.Ct. 766, 769, 770, 93 L.Ed. 919 (1949); United States v. Beck, 615 F.2d 441, 448 (7th Cir.1980); United States v. Pearlstein, 576 F.2d 531, 546 (3d Cir.1978); United States v. Di Stefano, 555 F.2d 1094, 1103 (2d Cir.1977). To prove the element of association, the government must show that the defendant shared in the principals' criminal intent. United States v. Beck, 615 F.2d at 449. This requires evidence that the defendant be aware of the principals' criminal intent and the unlawful nature of their acts. United States v. Pearlstein, 576 F.2d at 546. Evidence that the defendant merely brought about the arrangement that made the criminal acts of the principals possible does not alone support a conclusion that the defendant was aware of the criminal nature of the acts. United States v. Belt, 574 F.2d 1234, 1240 (5th Cir.1978).

In the instant case, the government failed to produce substantial evidence to show that Winstead knew that Wade and Griffin intended to identify falsely their tobacco. As discussed above, selling excess pounds on another farm's unused quota is entirely legal if the farm is in the same county in which the tobacco was grown. 7 C.F.R. Sec. 725.72. Moreover, no law prohibits tobacco farmers from making quite lawful agreements on the warehouse floor to sell excess tobacco on another farm's quota, and, indeed, there was uncontradicted evidence from the local ASCS agent that 95% of the agreements for leasing excess pounds were made other than in the ASCS office. Such agreements only become illegal, in the context present here, wherever made, when they involve the false identification of tobacco grown in one county on the marketing quota issued for a farm in another county. Id. Secs. 725.90, .95(b). ³

To prove that Winstead knew Wade and Griffin intended to enter into illegal agreements with Collins when Winstead pointed Collins out to them, the government had to produce evidence that Winstead knew both the location of Collins' farm ⁴ on account of which his marketing card was issued and the farms on which Griffin and Wade grew the tobacco they offered for sale. The jury could find that Winstead had knowledge of Wade's and Griffin's criminal intent only if there was evidence that Winstead knew that their tobacco was grown in a different county than that from which Collins' farm was located and his card was issued. The government, however, failed to produce substantial evidence of such knowledge.

Viewed in the light most favorable to the government, the evidence showed that Agent Collins told Winstead that he owned a farm in Rockingham County. However, Griffin, a government witness, testified that he had never before met Winstead, he did not tell Winstead where he lived, and he did not inform...