Hutchinson Oil Co. v. Federated Service Insurance

851 F. Supp. 1546
CourtDistrict Court, D. Wyoming
DecidedMarch 22, 1994
DocketNo. 93-CV-0154-J
StatusPublished
Cited by1 cases

This text of 851 F. Supp. 1546 (Hutchinson Oil Co. v. Federated Service Insurance) is published on Counsel Stack Legal Research, covering District Court, D. Wyoming primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hutchinson Oil Co. v. Federated Service Insurance, 851 F. Supp. 1546 (D. Wyo. 1994).

Opinion

MEMORANDUM OPINION

ACKER, District Judge.

The convictions of Reginald R. Greathouse, Mary Greathouse, Ronnie Greathouse, Audra Greathouse, Anthony Greathouse, Theresa McFarland, Victor Williams and Barbara Pope for conspiracy to distribute cocaine and crack cocaine in violation of 21 U.S.C. § 841(a)(1) were upheld by the Eleventh Cir­cuit, but the case was remanded for resen-­tencing because at the original sentencing this court followed the then insistence of the United States that all of the drugs involved in the conspiracy be attributed to all of the co-conspirators as in Pinkerton v. U.S., 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), for the purposes of Sentencing Guideline cal­culations. It was not until after the defen­dants appealed to the Eleventh Circuit that the Eleventh Circuit decided U.S. v. Ismond, 993 F.2d 1498 (11th Cir.1993), in which that court held for the first time, as the “guide­lines” continued to evolve:

The court attributed to each of them the total quantity of drugs distributed during the course of the conspiracy. Both con­tend that the attribution to them of this total quantity was erroneous and that the court failed to make findings concerning amounts properly attributable to them.
For sentencing purposes a member of a drug conspiracy is liable for his own acts and the acts of others in furtherance of the activity that the defendant agreed to un­dertake and that are reasonably foresee­able in connection with that activity. U.S.S.G. § lB1.3(a)(l) (Nov.1992); U.S. v. Andrews, 953 F.2d 1312, 1319 (11th Cir.), cert. denied, — U.S. -, -, -, 112 S.Ct. 3007, 3008, 3048, 120 L.Ed.2d 882, 915 (1992). Thus, to determine a defen­dant’s liability for the acts of others, the district court must first make individual­[1560]*1560ized findings concerning the scope of crimi­nal activity undertaken by a particular de­fendant. U.S.S.G. § 1B1.3, comment, (n. 2.); U.S. v. Edwards, 945 F.2d 1387, 1399 (7th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1590, 118 L.Ed.2d 308 (1992). Once the extent of a defendant’s partic­ipation in the conspiracy is established, the court can determine the drug quantities reasonably foreseeable in connection with that level of participation.

993 F.2d at 1499.

As was anticipated by all parties, including this court, after Ismond, the Eleventh Cir­cuit in an unpublished opinion remanded this case for resentencing under the direction of Ismond.

Even more recently than Ismond and the order of remand issued in this ease, the Eleventh Circuit again looked at the attribu­tion problem in U.S. v. Chitty, 15 F.3d 159 (11th Cir.1994), in which that court held:

The government sought at trial, and seeks on appeal, to establish the scope of Chitty’s criminal responsibility and of his sentences for conspiracy by applying Pink­erton v. U.S., 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). It recognizes that the minimum mandatory sentence for 1,000 kilos is only applicable if sufficient of the shipments after June 16,1987 are cumulat-­ed with that shipment to produce a total of more than 1,000 kilos.
⅜ ⅜ ⅝ ⅜ ⅜ ⅜
In this court the government makes sub­stantially the same Pinkerton arguments that it made below and that the PSI ac­cepted as controlling. A conspirator is responsible for conspiracy activities in which he is involved, and for drugs in­volved in those activities, and for subse­quent acts and conduct of co-conspirators, and drugs involved in those acts or con­duct, that are in furtherance of the con­spiracy and are reasonably foreseeable to him. U.S. v. Beasley, 2 F.3d 1551, 1561 (11th Cir.1993); U.S. v. Ismond, 993 F.2d 1498, 1499 (11th Cir.1993). The events after the June 1987 load do not meet these standards. There is no substantial evi­dence that Chitty should have reasonably foreseen additional shipments of marijuana by conspirators. The evidence tells us that the house Chitty rented was used as a stash house for one shipment for one night and that Chitty was present that night and performing what could be found to be look­out or security duty in the vicinity of the house. He was a caretaker, occupying the house for the owner, to look after it and to care for horses and cattle kept at the farm. There is no substantial evidence of who arranged for the use of the house and what representations were made to secure that use. Chitty had a less than intimate friendship with conspirator Gibbs, and he had merely met Nunnally on another occa­sion in another part of Florida. There is no evidence that Chitty knew anything of the conspiracy’s past operations, or the identity of conspirators other than Nunnal­ly and Gibbs, or where the marijuana came from, or how it was imported, or how it was moved from the point of import to the farm, or that future shipments were con­templated and if so by what means, or in what quantities or by whom. At most, the evidence showed Chitty to be a participant in one-shot, transitory storage of a single shipment done by a conspiracy that operat­ed in scattered multiple sites over nearly five years. No subsequent shipment was sent to Chitty’s house nor did any subse­quent flight touch down within many miles, nor did Chitty have any connection with any subsequent shipment.
Therefore', with respect to criminal re­sponsibility, the evidence relating to Counts I and II was sufficient to submit to the jury only because of testimony con­cerning the June load. Evidence of subse­quent events did not meet Pinkerton stan­dards of foreseeability. With respect to sentencing, for the same reasons, applying the Pinkerton standards by analogy, the only marijuana that could be counted was that brought to Compass Lake Hills in June 1987.

This court ordered that briefs be filed by all defendants and by the United States. The court has read these briefs which at­tempt to explain to the court from conflicting perspectives how to discharge its responsibil­ity under Ismond. The court has also con­ducted a sentencing hearing at which the parties offered no additional testimony re­[1561]*1561specting the amounts of cocaine and crack cocaine to be attributed to the various defen­dants. Therefore, relying entirely on the evidence adduced at trial and the parties’ respective interpretations of that evidence and on the product of conferences between counsel and the Probation Service, this court on March 16, 1994, imposed new sentences after having made oral findings of fact and conclusions; however, this court reserved the right to supplement those findings and con­clusions with a memorandum opinion. This is that opinion.

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Hutchinson Oil Co. v. Federated Service Ins. Co.
851 F. Supp. 1546 (D. Wyoming, 1994)

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Bluebook (online)
851 F. Supp. 1546, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hutchinson-oil-co-v-federated-service-insurance-wyd-1994.