United States v. Young

39 F.3d 1561, 1994 WL 667704
Court of Appeals for the Eleventh Circuit·Decided December 15, 1994·No. Nos. 91-7126, 92-6316 and 92-6318·Published·Cited by 56 cases

Opinion

KRAVITCH, Circuit Judge:

This case involves a marijuana distribution business operated by an extended family, the Youngs, in a rural, secluded area of Southern Aabama. Members of the Young family, along with several confederates not related, were convicted for, inter alia, their participation in this conspiracy in violation of 21 U.S.C. §§ 841(a)(1) and 846. Patricia Young, Clyde Young, Sr., Clyde Young, Jr., Norman Young, David Young and Lucious Levon (“Junior”) Banks each now appeals his or her convictions on a variety of grounds. We REVERSE Junior Banks’ conviction with respect to Count II of the indictment, and VACATE the sentence of Clyde Young, Jr. and REMAND for resentencing in light of this opinion. We AFFIRM the convictions and sentences of all remaining appellants.1

I.

Clyde Young, Sr. began growing marijuana in 1982 on the area surrounding his property in Young’s Neck, Alabama. Enlisting the assistance of his wife, Patricia, his sons, Clyde Jr., Thomas, Morris and Norman, his brother, David and his nephew, Milton, the business expanded in the years that followed. All family members at various times either [1565] participated in or witnessed the growing, harvesting and sale of marijuana; often, some would tend the plants or assist customers while others kept watch over the road connecting the many Young relatives’ houses.

In 1986, the Bureau of Alcohol, Tobacco and Firearms (ATF) conducted a search of the Youngs’ property. During the course of the search, ATF agents stopped Patricia Young as she exited the back door of the house carrying a shoulder bag containing $11,079.00, a semi-automatic pistol, ten drug ledgers and a plastic bag with marijuana residue. Drug paraphernalia and more plastic bags with marijuana residue were also found inside the Young house. Following the ATF raid, Clyde Young, Sr. moved most of his family — and the marijuana business — to Earlville, Alabama, on the Mississippi border, while David Young continued to sell marijuana from Young’s Neck. In 1988, police in Mobile County spotted Clyde Young, Jr. leaving one of two adjacent marijuana fields near the Youngs’ Earlville property. In 1988, a search warrant was executed on this property, and in 1989, the Youngs were arrested.

II.

Junior Banks challenges his conviction for conspiring with his co-defendants to distribute and to possess with intent to distribute marijuana in violation of 21 U.S.C. § 846 (Count II). When a jury verdict is challenged on the ground of sufficiency of the evidence, the reviewing court must view the evidence in the light most favorable to the government and determine whether the jury could have found the defendant guilty beyond a reasonable doubt. United States v. Hernandez, 896 F.2d 513, 517 (11th Cir.), cert. denied, 498 U.S. 858, 111 S.Ct. 159, 112 L.Ed.2d 125 (1990). In applying this standard all reasonable inferences and credibility choices must be made in favor of the jury verdict, and that verdict must be sustained if there is substantial evidence to support it. Id. If there is a lack of evidence from which a reasonable fact-finder could find guilt beyond a reasonable doubt, the conviction must be reversed. United States v. Awan, 966 F.2d 1415, 1434 (11th Cir.1992).

The testimony of Stanley Commander, who had purchased marijuana from Banks on several occasions prior to becoming a government informant, constituted the bulk of the evidence on which the government relied in obtaining Banks’ conviction. Specifically, Commander testified that the marijuana he had received from Banks had been supplied in ziploc bags; that in 1988, Banks told Commander that he planned to trade several horses for marijuana from someone in Mississippi; and that in 1987, Commander overheard Banks say that he was not dealing marijuana at that time because “the heat’s on my man.” In addition to Commander’s testimony, the record shows that Banks offered to sell marijuana to Clyde Young, Sr. who, fearing that he was being “set up,” refused to go through with the transaction; that one of the drug ledgers seized from Patricia Young included the marking “R-J,” Junior’s alleged nickname; and that Banks’ telephone number appeared on a telephone note pad found at the Youngs’ house.

The evidence described above, the sum total of the evidence presented at trial linking Banks to the conspiracy, was insufficient to sustain his conviction. In reaching this conclusion, we address each piece of evidence in turn: First, in view of the fact that a plastic “baggie” is hardly a unique container in which to place marijuana, the government’s contention that the mere fact that both Banks and the Youngs sold marijuana in ziploc bags is probative of a conspiracy is thoroughly unavailing. Second, we reject the government’s suggestion that because the Young family’s property in Earlville, Alabama was located, in an area near the Alabama/Mississippi border referred to as “Mississippi,” Banks’ reference to an imminent deal with a marijuana supplier in “Mississippi” necessarily referred to Clyde Young in Alabama. Particularly in light of the otherwise threadbare nature of the evidence against Banks, the inference that when [1566] Banks said “Mississippi” he really meant “Alabama” is neither logical nor permissible. Third, with respect to the manjuana-for-horses transaction, Banks’ wife, Georgia Banks, testified that she sold horses to a man accompanied by Clyde Young but that Banks himself was not aware of the sale. Even crediting the government’s assertion that Junior Banks indeed participated in this .transaction, no evidence was submitted showing that marijuana was exchanged for the horses or that this was part of an ongoing conspiracy between Banks and Clyde Young. Fourth, the sole evidence offered to show that Banks was personally acquainted with any of the Youngs was the testimony of Doug Burch, a former customer of Clyde Young, Sr., who recalled Young, Sr. telling him that Banks had offered to sell him “some” but that he had refused the sale because “he thought they were trying to set him up.”2 At most, this testimony revealed that Young and Banks were at one time associated in an incomplete drug transaction. It is axiomatic that mere association, without more, cannot give rise to a conspiracy conviction. United States v. Jenkins, 779 F.2d 606, 615-16 (11th Cir.1986).3 Fifth, the government argues that Banks’ statement that he was no longer selling marijuana because “the heat’s on my man” referred to Clyde Young, Sr., who had recently been arrested. Bearing in mind the inconclusive nature of the other evidence proffered to connect Banks to this conspiracy, the reference to “my man” — a relatively common, colloquial expression — could have encompassed virtually any drug supplier.

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United States v. Young, 39 F.3d 1561, 1994 WL 667704 (11th Cir. 1994).

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