United States v. Meyers

• Decision Date: 22 October 1984
• Docket Number: Crim. No. 83-60036-PA.
• Citation: 601 F. Supp. 1072
• Parties: UNITED STATES of America, Plaintiff, v. Stanley A. MEYERS, Defendant.
• Court: U.S. District Court — District of Oregon

601 F. Supp. 1072

UNITED STATES of America, Plaintiff, v. Stanley A. MEYERS, Defendant.

Crim. No. 83-60036-PA.

United States District Court, D. Oregon.

October 22, 1984.

Charles H. Turner, U.S. Atty., Thomas M. Coffin, Asst. U.S. Atty., Eugene, Or., for plaintiff.

Robert J. McCrea, McCrea, P.C., Eugene, Or., for defendant.

OPINION

PANNER, Chief Judge.

On September 8, 1983, the Federal Grand Jury for the District of Oregon filed a four-count indictment charging defendant Stanley A. Meyers with:

Count 1: Conspiracy to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846;

Count 2: Possessing approximately 17 ounces of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1);

Count 3: Possessing approximately 9 ounces of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); and

Count 4: Possessing approximately 16 ounces of marijuana, in violation of 21 U.S.C. § 844.

Beginning February 14, 1984, the case was tried to a jury, with Judge Earl H. Carroll presiding. The jury could not reach a verdict. After the trial, Judge Carroll denied defendant's motion for a judgment of acquittal and defendant's motion for a dismissal of the indictment. Defendant appealed, but the Ninth Circuit dismissed the appeal. The parties stipulated that the second trial would be tried to the court and waived a jury. Testimony was presented in the form of the transcript of the prior trial and one live witness. The parties retain their evidentiary objections made in the prior trial. I find the defendant guilty of the second and third counts, and not guilty of the first and fourth counts.

STATEMENT OF THE LAW

The first count against the defendant is for conspiracy to distribute cocaine. The elements of a criminal conspiracy are:

(1) An object to be accomplished.

(2) A plan or scheme embodying means to accomplish that object.

(3) An agreement or understanding between two or more of the defendants whereby they become definitely committed to cooperate for the accomplishment of the object by means embodied in the agreement, or by any effectual means.

(4) ... an overt act.

Pinkerton v. United States, 145 F.2d 252, 254 (5th Cir.), aff'd, 328 U.S. 640, 643, 66 S.Ct. 1180, 1181, 90 L.Ed. 1489 (1946).

A conspiracy may be proved by evidence that is entirely circumstantial, and items of circumstantial evidence must be viewed collectively, not in isolation.... "An otherwise innocent act of `relatively slight moment,' may, when viewed in the context of surrounding circumstances, justify an inference of complicity...."

United States v. Calaway, 524 F.2d 609, 612 (9th Cir.), cert. denied, 424 U.S. 967, 96 S.Ct. 1462, 47 L.Ed.2d 733 (1976).

Those knowingly participating in the conspiracy in any respect or to any degree are guilty of that crime ...

United States v. Dunn, 564 F.2d 348, 356 (9th Cir.1977) (emphasis in original).

Once the existence of a conspiracy is established, evidence establishing beyond a reasonable doubt a connection of a defendant with the conspiracy, even though the connection is slight, is sufficient to convict him with knowing participation in the conspiracy.

United States v. Dunn, 564 F.2d at 357 (emphasis in original).

The second and third counts against the defendant are for possession of cocaine with intent to distribute.

To convict for possessing drugs with the intent to distribute, the Government must show that a defendant knowingly possessed the drugs and that, at some point coincident with his possession, he intended to distribute them to another. See United States v. Gomez-Tostado, 597 F.2d 170, 173 (9th Cir.1979); United States v. Vergara, 687 F.2d 57, 61 (5th Cir.1982). The concept of "distribution" includes sharing drugs with a third party, and is not limited to commercial ventures. United States v. Ramirez, 608 F.2d 1261, 1264 (9th Cir.1979).

Possession of drugs may be constructive as well as actual, may be joint among several individuals, and may be proven by circumstantial evidence. United States v. Riggins, 563 F.2d 1264, 1266 (5th Cir.), cert. denied, 439 U.S. 848, 99 S.Ct. 148, 58 L.Ed.2d 150 (1977).

The defendant's intent to distribute a drug can be inferred from the purity, price, and quantity of the drug possessed. For example, the purer the drug, the more likely that it will be "cut" or diluted, and then resold before being consumed. United States v. Palmere, 578 F.2d 105, 108 (5th Cir.), cert. denied, 439 U.S. 1118, 99 S.Ct. 1026, 59 L.Ed.2d 77 (1978); United States v. Reese, 561 F.2d 894, 898 n. 8 (D.C.Cir.1977).

The fourth count against the defendant is for possession of marijuana. With regard to this offense, the government must show knowing or intentional possession. See 21 U.S.C. § 844 (1981). Possession of marijuana may be constructive rather than actual, and may be established by circumstantial evidence. United States v. Zumpano, 436 F.2d 535, 538 (9th Cir.1970).

The burden of proof is on the government to prove beyond a reasonable doubt each element of the charged offenses. Moore v. United States, 429 U.S. 20, 22, 97 S.Ct. 29, 30, 50 L.Ed.2d 25 (1976). To meet this burden, the government may rely on circumstantial evidence. Circumstantial evidence can be used to prove any fact, including a fact from which another fact is to be inferred. United States v. Kelly, 527 F.2d 961, 965 (9th Cir.1976). Moreover, even where no single piece of circumstantial evidence supports a finding of guilt, the accumulation of such evidence can support such a finding. See United States v. Morando-Alvarez, 520 F.2d 882, 884-85 (1975). Accordingly, to convict the defendant this court must find that the circumstantial evidence here supports a finding of guilt beyond a reasonable doubt.

FINDINGS OF FACT

I find the following facts. The defendant Stanley Meyers was employed by the Lane County District Attorney's Office from September, 1980 to June 18, 1982. During this time, he served as Coordinator of the Lane Interagency Narcotics Team (LINT). LINT was comprised of law enforcement officers from various law enforcement agencies in Lane County, including the District Attorney's Office, the Eugene Police Department, and the Springfield Police Department. LINT was disbanded on June 18, 1982, because of budget cuts, and Meyers was laid off. He returned to work for the District Attorney's Office as an investigator on September 18, 1982, but was discharged on December 27, 1982, after his involvement in the following events.

On March 4, 1982, LINT personnel seized approximately seventeen ounces of cocaine from Edgar Regini at the Portland International Airport. Meyers headed the investigation that resulted in this seizure. LINT officers Dave Wilson, Steve Tindall, Robert Cope, and Randy Belair were also present. The LINT team brought the cocaine to the LINT office that night.

The following day, March 5, 1982, photographs were taken of the Regini evidence, including the cocaine. When the cocaine was seized, it was packaged in two clear plastic bags. One was larger than the other. After the photographs were taken, LINT officer Wilson placed the larger cocaine bag inside a manila envelope, which he marked "1-A." He then placed the other bag of cocaine inside a second manila envelope, which he marked "1-B." Wilson and his LINT partner Steve Tindall then took the cocaine to the Oregon State Police (OSP) laboratory for analysis.

After reaching the OSP lab, Tindall and Wilson gave the cocaine to OSP technician Jim Pex. Pex took small samples from the plastic bags in envelopes 1-A and 1-B, tested these samples and found them to contain cocaine. Pex preserved the remainder of the samples at the lab. He also returned the bulk of the cocaine, which was still in bags 1-A and 1-B, to Wilson and Tindall. Wilson and Tindall then returned directly to the LINT office. Once there, they placed the cocaine on Meyers' desk, where he was then sitting. Wilson also gave Meyers an envelope that Wilson had marked "For Prints." Wilson told Meyers that he thought that the plastic bags should be sent in the "For Prints" envelope to the OSP lab for fingerprint analysis. The cocaine would be removed and placed in new bags. Meyers disagreed. There is no evidence that Meyers or anyone else ever sent the two plastic bags in for fingerprinting.

I find that Meyers placed the Regini cocaine in the safe in the LINT office. The safe was at times used for the storage of drugs seized by LINT, but long-term storage of drugs in the safe was discouraged by many in the District Attorney's Office. The safe had a three number combination, which was changed whenever a new LINT Coordinator was named. In keeping with this policy, the combination was changed when Meyers took the job. Meyers received the combination and had regular access to the safe. Deputy District Attorney Jim Hunt also knew the combination and had used it to open the safe. Lane County District Attorney Pat Horton and Kelly Fex, his secretary, had individual copies of the Meyers' combination but neither used it to open the safe. Moreover, neither gave the combination to anyone else. I further find that no one else was given or learned this combination.

LINT was disbanded June 18, 1982. Sometime between June 7, 1982, and June 18, 1982, Chief Deputy District Attorney Hartstrom asked Meyers if any drugs were in the safe. Meyers denied that there were.

On October 15, 1982, Pat Horton ordered the LINT safe moved to his office where Jim Hunt opened it. Horton then checked the contents of the safe and found the "For Prints" envelope. This envelope contained the clear plastic bag marked "1-B," but did not contain the clear plastic bag marked "1-A." The envelope did contain, however, a second, larger, clear plastic bag. Both plastic bags contained a white powdery substance. After testing, this substance proved to contain only one percent cocaine. The remainder was made up of approximately 70-80 percent flour, less than five percent sacharrin, and...