United States v. O.Z. Howard, Alfred James, and Ceabon Jackson

895 F.2d 722, 1990 U.S. App. LEXIS 2753, 1990 WL 11658
CourtCourt of Appeals for the Eleventh Circuit
DecidedMarch 1, 1990
Docket88-5749
StatusPublished
Cited by17 cases

This text of 895 F.2d 722 (United States v. O.Z. Howard, Alfred James, and Ceabon Jackson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. O.Z. Howard, Alfred James, and Ceabon Jackson, 895 F.2d 722, 1990 U.S. App. LEXIS 2753, 1990 WL 11658 (11th Cir. 1990).

Opinion

EDMONDSON, Circuit Judge:

Appellant-defendants Howard and James appeal their convictions of conspiracy and possession with intent to distribute a large quantity of marijuana. Appellant-defendant Jackson appeals his possession conviction. We affirm.

The unduly low weight of an incoming shipping container aroused the suspicions of Customs agents, who, upon opening the container, found much marijuana. After the Customs Service contacted the Drug Enforcement Administration, government agents installed electronic tracking devices inside the container and delivered it to a Miami address in accord with the original shipping instructions. 1

While Howard was working at his place of business, a stranger approached him and offered to pay him three thousand dollars to accept delivery of a trailer. Howard, using a false name as he was instructed by the unknown customer, accepted the delivery. The stranger returned the next day and asked Howard if he would like to earn an additional three thousand dollars by helping unload the same trailer. Howard agreed.

While Jackson was walking home from work, two strangers approached and offered him five hundred dollars to help unload a trailer located in a nearby vacant lot. Jackson agreed, telling a woman to whom he had been talking that he would be back in about thirty minutes.

While at a gas station, James met a man who offered to pay James “a couple thou *724 sand dollars” to unload a trailer. James agreed.

Later, at night and in a vacant lot, as all three defendants were moving bales from the container to a smaller truck, DEA agents, alerted by the tracking devices, arrived and-arrested defendants. Jackson attempted to run away as officers approached.

Defendants challenge the sufficiency of the evidence supporting their convictions. We look at this evidence in the light most favorable to the government and affirm if a reasonable jury could have found defendants guilty beyond a reasonable doubt. See United States v. Montes-Cardenas, 746 F.2d 771, 778 (11th Cir.1984) (citing Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), and United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983)). To support a conviction of possession with intent to distribute, the evidence must show three things: that defendants possessed marijuana, knew that the substance was marijuana, and intended to distribute it. Id. at 778-79. Distribution includes acts in furtherance of a transfer or sale, such as arranging the delivery, United States v. Brunty, 701 F.2d 1375 (11th Cir.1983), and has been held to include participation in the transfer of marijuana from a mothership to off-load boats. United States v. Pool, 660 F.2d 547, 561 (5th Cir. Unit B 1981).

All three defendants, by unloading about twenty of the bales, possessed marijuana. The jury looked at some of the bales in court and was entitled to infer an intent to distribute marijuana from the quantity— each bale weighed at least fifty pounds— possessed by defendants. See Montes-Cardenas, 746 F.2d at 778. In addition, defendants were moving the marijuana from the shipping container to another vehicle so that the drug could be taken elsewhere. Finally, Howard was offered six thousand dollars to accept delivery of a truck and to help unload it; James was offered “a couple of thousand” dollars to help unload a truck; and Jackson was offered five hundred dollars to help unload a truck. Each defendant was offered an extraordinarily large sum of money for a small amount of work. We believe this unusual financial arrangement, combined with testimony about the noticeable odor of marijuana in and around the container, allowed the jury to find beyond a reasonable doubt that defendants knew they were unlawfully furthering the distribution of marijuana.

To support a conspiracy conviction, the government must show that an agreement existed, that defendants knew of its general purpose, and that defendants voluntarily participated in the conspiracy. See United States v. Gonzalez, 810 F.2d 1538 (11th Cir.1987). Howard and James dispute only the knowledge element of the conspiracy charge. Evidence supports this element, however, if the government was able to show that defendants knew the essential nature of the conspiracy. See United States v. Alvarez, 755 F.2d 830 (11th Cir.1985) (citing Blumenthal v. United States, 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154 (1947)). The state can show participation in a conspiracy by either direct or circumstantial evidence. United States v. Roper, 874 F.2d 782, 787 (11th Cir.1989) (citing Gonzalez, 810 F.2d at 1542).

The evidence here showed considerably more than defendants’ mere presence at the vacant lot. Howard and James admitted to police that they thought they might have been involved in an illegal venture. Moreover, evidence showed that defendants were loading a substantial amount of marijuana from the container into a smaller truck and that each of them had been offered a large sum of money to do so. We believe this evidence was sufficient to allow a jury to conclude, beyond a reasonable doubt, that Howard and James knew the essential nature of the conspiracy, that is, to distribute marijuana.

In addition to other evidence, each defendant testified at the trial and offered his story, denying knowledge of marijuana and explaining his acts. The jury was entitled to reject this testimony: defendants subjected themselves to a credibility determi *725 nation and ran the risk of bolstering the government’s case. See United States v. Bennett, 848 F.2d 1134, 1139 (11th Cir. 1988) (jury may view defendant’s false explanatory statement as substantive evidence proving guilt); United States v. Eley, 723 F.2d 1522, 1525 (11th Cir.1984) (same). Sufficient evidence supported the convictions.

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Bluebook (online)
895 F.2d 722, 1990 U.S. App. LEXIS 2753, 1990 WL 11658, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-oz-howard-alfred-james-and-ceabon-jackson-ca11-1990.