United States v. Phifer, Crim. No. 74-136.

• Decision Date: 24 June 1975
• Docket Number: Crim. No. 74-136.
• Citation: 400 F. Supp. 719
• Parties: UNITED STATES of America v. Thomas PHIFER et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

400 F. Supp. 719

UNITED STATES of America v. Thomas PHIFER et al.

Crim. No. 74-136.

United States District Court, E. D. Pennsylvania.

June 24, 1975.

COPYRIGHT MATERIAL OMITTED

Alan M. Lieberman, Asst. U. S. Atty., Philadelphia, Pa., for plaintiff.

David Zwanetz, Philadelphia, Pa., for Tallon.

Anthony J. DeFino, Philadelphia, Pa., for Phifer.

William F. Coyle, Philadelphia, Pa., for Smith.

MEMORANDUM AND ORDER

BRODERICK, District Judge.

This matter comes before the Court on the defendants' motions for a new trial or, in the alternative, for a judgment of acquittal. The three defendants were jointly tried and were convicted by a jury as charged in the indictment.

All the defendants in this case were charged in Count No. I of the three-count indictment with conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846. Only the defendants, Thomas Phifer and Bruce Tallon, were named in Counts II and III of the indictment which charged, respectively, possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and interstate travel in aid of the promotion of an unlawful activity, to wit, the distribution of marijuana in violation of 18 U.S.C. § 1952. The motions filed by the defendants raise a variety of points which may be enumerated as follows:

1. All the defendants contend that the jury's verdict is contrary to the weight of the evidence and that the evidence was insufficient to sustain the conviction.¹

2. All the defendants claim that the admission of evidence obtained from a warrantless search of an airplane in which defendants Phifer and Tallon were passengers was error.

3. Defendant Phifer and Smith assert that a violation of the Court's Order of Sequestration constituted a denial of the full effectiveness of cross-examination.

4. Defendant Smith contends that the Court erred in refusing his request for a copy of the transcript of the informant's Grand Jury Testimony of January 31, 1974 in the United States District Court for the Southern District of California.

5. Defendant Smith contends that the Court erred in refusing his requested points for charge numbers 17, 18 and 19.

6. Defendant Smith contends that the Government failed to prove that marijuana is a non-narcotic controlled substance.

7. Defendant Smith asserts that the Government "trapped", "lured" and "enticed" him to object to the Government's attempt to elicit fingerprint evidence from a Government agent not qualified to so testify, thereby prejudicing the defendant.

8. The defendant Tallon contends that the Court erred in permitting hearsay to be admitted against him.

1. Weight and Sufficiency of the Evidence.

In their motions for a new trial the defendants contend that the jury's verdict was against the weight of the evidence. A motion for a new trial is made pursuant to Rule 33 of the Federal Rules of Criminal Procedure which provides that the court may grant a new trial "if required in the interest of justice". A motion for a new trial on the ground that the verdict is against the weight of the evidence is directed to the sound discretion of the trial court and the court may weigh the evidence and consider the credibility of witnesses. United States v. Morris, 308 F.Supp. 1348 (E.D.Pa.1970). Indeed, it has been said that when ruling on such a motion the court sits as a thirteenth juror. 2 Wright & Miller, Federal Practice and Procedure: Criminal § 553, at 487. If the court concludes that the verdict is contrary to the evidence, or its weight, and that a miscarriage of justice may have resulted, the verdict may be set aside and a new trial granted. However, the remedy is to be sparingly used and only in exceptional circumstances. United States v. Leach, 427 F.2d 1107 (1st Cir. 1970). In reviewing the evidence and assessing the credibility of the witnesses, we find that the verdict in this case is fully justified by the evidence.

Briefly summarized, the Government established the following by the testimony of the Government informant in the case, Mr. Melvin Qualls.²

In mid-November, 1973, Melvin Qualls was approached by Kenneth Wells, an indicted co-conspirator in this case, and had a conversation with Mr. Wells. As a result of this conversation, Mr. Qualls purchased for Mr. Wells an airplane, a Piper Cherokee 140, No. N627OW, placing the airplane in his own name at Mr. Wells' request. After the aircraft had been purchased, there was a meeting held on November 20, 1973 at the home of defendant Smith in Orange, California. Present at this meeting were Mr. Qualls, Mr. Wells and defendants Phifer and Smith. The topic of the conversation was that defendants Smith and Phifer wanted to smuggle marijuana into the United States from Mexico using Mr. Qualls and Mr. Wells for the necessary transportation involved. Smith and Phifer wanted to use a Mexican named Jose Morales as the supplier. Mr. Qualls was to fly the marijuana from Ensenada, Mexico to Los Angeles in the Piper Cherokee 140 that he had purchased. On November 25, 1973, Mr. Qualls, with defendants Smith and Phifer on board, flew the airplane from a small uncontrolled airport near Los Angeles to Ensenada, Mexico. Upon arriving at Ensenada, they went to their motel and defendant Smith left to call Jose Morales. Mr. Morales came to the motel, picked up Mr. Qualls and defendants Smith and Phifer and proceeded to Morales' house. Mr. Morales asked for the money Smith and Phifer owed him for a previous load and they promised to pay Mr. Morales as soon as "Bruce" had returned from the east. They then began discussing the feasibility of flying a load of marijuana to California from Mexico. Mr. Morales stated that he expected a thousand or twelve hundred pounds of marijuana to be available shortly. Later the same day, they looked for and found possible landing sites for the airplane. The next day defendant Smith and Mr. Qualls returned to California in the airplane, while defendant Phifer went by land in an effort to avoid the U. S. Customs clearance registry.

The following day, November 27, 1973, there was another meeting at Smith's house attended by Mr. Qualls, Mr. Wells and defendants Smith and Phifer. At that meeting, the method of transporting the marijuana back to Philadelphia was discussed and defendants Smith and Phifer decided that the marijuana should be flown back to Philadelphia rather than have "Bruce" drive it back. The following day, November 28, 1973, Mr. Qualls flew to Ensenada, Mexico, with Roger Meador in the Piper Cherokee 140. Mr. Qualls and Mr. Meador landed on the site that had been explored by defendants Smith and Phifer, met with Mr. Morales, and loaded bundles of marijuana onto the airplane. Mr. Qualls then flew the airplane by himself back to California, avoided U. S. Customs and landed at Corona Airport. Upon landing and parking the airplane, Mr. Qualls proceeded to his car where he met with defendant Phifer who was waiting with his own car, and they drove both cars back to the airplane where they proceeded to load both cars with the marijuana. Mr. Qualls and defendant Phifer then drove their cars loaded with the marijuana to Smith's house. Defendant Smith and Mr. Qualls then proceeded in Mr. Qualls' car to a building in Fullerton, California, took the marijuana from Qualls' car, placed it in 55-gallon drums, stored it in the building and returned to Smith's house. The following day, November 29, 1973, there was a meeting at Smith's house, attended by defendants Smith and Phifer, Mr. Wells and Mr. Qualls and again they discussed the method of transporting the marijuana to Philadelphia. Defendants Smith and Phifer decided to put the marijuana into boxes and transport it to Philadelphia in a Cessna 421 aircraft. It was also decided at this meeting that the next load from Mexico should be put in boxes in Ensenada, Mexico, and that Roger Meador and defendant Smith should take the boxes to Mr. Morales in Ensenada.

On December 2, 1973, a meeting was held at Gary Barney's house in Riverdale, California, attended by Mr. Qualls, Mr. Barney, Mr. Meador, Mr. Wells and defendant Smith. At this meeting, it was discussed that defendant Smith would accompany Mr. Meador and Mr. Barney to Mexico to pick out a new landing site for smuggling another load of marijuana into the United States. On December 4, 1973, Mr. Qualls, Mr. Wells and defendants Smith and Phifer sent Roger Meador to Ensenada to pick up a second load of marijuana. Mr. Meador flew to Mexico in the Piper Cherokee 140 but returned that evening empty because American and Mexican agents had been in the Ensenada area that day. The next day, December 5, 1973, Mr. Wells called Mr. Qualls and told him to meet him at Smith's house. When Mr. Qualls arrived at Smith's house, Mr. Wells and Mr. Meador were there and defendant Smith told them that the Cessna 421 aircraft had left for Philadelphia at 6:00 a. m. (PST) that morning with defendant Phifer and "Bruce" and the first load of marijuana. Mr. Meador was then taken to the airport to fly to Mexico to pick up the second load of marijuana. Mr. Qualls testified that to his own knowledge "Bruce" returned from the east on or about December 1, 1973 and that he had seen "Bruce" at Smith's house. Mr. Qualls identified "Bruce" as defendant Bruce Tallon. Mr. Qualls testified that throughout this period he had been in contact with Special DEA Agent Richard Sye and had relayed all this information to Agent Sye. Agent Sye testified that he received the information from Mr. Qualls that the Cessna 421 aircraft, loaded with marijuana, was en route to Philadelphia and was to land at Philadelphia International Airport. Agent Sye notified the Philadelphia DEA office of this information. On the morning of December 6, 1973, the Cessna 421 aircraft landed at Philadelphia International Airport, the occupants of the airplane, defendants Phifer and Tallon, and the airplane pilot, John Piazza, were arrested and...