United States v. Watson ( 1996 )


Menu:
  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    No. 95-5067
    ARTHUR MCKINLEY WATSON, a/k/a
    Red,
    Defendant-Appellant.
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                               No. 95-5068
    JAMES DONALD WATSON,
    Defendant-Appellant.
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                               No. 95-5082
    WINFRED WESLEY WATSON,
    Defendant-Appellant.
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                               No. 95-5097
    BILL HALL,
    Defendant-Appellant.
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                                    No. 95-5293
    BRIAN ROC WATSON,
    Defendant-Appellant.
    Appeals from the United States District Court
    for the Middle District of North Carolina, at Winston-Salem.
    William L. Osteen, Sr., District Judge.
    (CR-94-139)
    Argued: December 8, 1995
    Decided: September 17, 1996
    Before WILKINSON, Chief Judge, and WIDENER and
    HAMILTON, Circuit Judges.
    _________________________________________________________________
    Affirmed by unpublished opinion. Judge Widener wrote the opinion,
    in which Chief Judge Wilkinson and Judge Hamilton joined.
    _________________________________________________________________
    COUNSEL
    ARGUED: Lee W. Kilduff, MORCHOWER, LUXTON & WHA-
    LEY, Richmond, Virginia; Robert Lynn McClellan, IVEY, IVEY,
    MCCLELLAN & GATTON, Greensboro, North Carolina; W. David
    Lloyd, LLOYD & LLOYD, Greensboro, North Carolina, for Appel-
    lants. David Bernard Smith, Assistant United States Attorney/Senior
    Litigation Counsel, Greensboro, North Carolina, for Appellee. ON
    BRIEF: Daniel S. Johnson, LAW OFFICE OF DANIEL S. JOHN-
    SON, Winston-Salem, North Carolina, for Appellant Hall; Donald K.
    Tisdale, TISDALE, HOLTON & MENEFEE, P.A., Winston-Salem,
    2
    North Carolina, for Appellant Brian Watson. Walter C. Holton, Jr.,
    United States Attorney, Greensboro, North Carolina, for Appellee.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    WIDENER, Circuit Judge:
    In these five consolidated appeals, defendants-appellants Arthur
    McKinley "Red" Watson, James Donald Watson, Winfred Wesley
    Watson, Brian "Roc" Watson, and Bill Hall challenge their convic-
    tions and sentences for drug related offenses. We affirm the district
    court's conviction and sentence as to each appellant.
    In June, 1994, a federal grand jury indicted the Watson defendants
    and Bill Hall with conspiracy to possess with intent to distribute, and
    to distribute diazepam (Valium) and over 100 kilograms of marijuana.
    The Watsons are related. Bill Hall is unrelated.
    A partial recitation of the testimony entitled to belief by the jury
    follows.
    At trial, the government offered testimony from Dennis Gale, an
    admitted marijuana dealer testifying under a plea agreement. Gale met
    Brian in 1990 or 1991 and began to front Brian 10 to 15 pounds of
    marijuana for distribution every 10 to 14 days. Through Brian, Wes-
    ley learned Gale could distribute 50-200 pound quantities of mari-
    juana and went to Gale's residence with Brian to meet him. Gale
    testified that Wesley "was getting in marijuana also," and the two dis-
    cussed how marijuana was packaged to prevent detection, the kind of
    marijuana, and the locations from which their shipments originated.
    Gale's marijuana came from the southwestern United States and was
    packed with coffee grounds and pepper and wrapped with newspaper
    from places such as Nogales, Arizona and Brownsville, Texas. Wes-
    3
    ley agreed that his marijuana came from the same areas and, Gale tes-
    tified, "[t]hey mentioned they had been to those type of areas
    themselves."
    Wesley also discussed the seizure, from him, of over $10,000 in
    cash during a trip from South Carolina to Atlanta in May, 1992. Gale
    testified Wesley told him he was en route to Atlanta to buy marijuana
    when the money was seized, and that "they were trying to get it back,
    but it was going to cost money," because the origin of amounts over
    $10,000 must be proven. Wesley offered to sell Gale 50 to 100 pound
    quantities of marijuana for $1400 per pound and diazepam, a form of
    Valium. Gale told Wesley he might be interested in the marijuana at
    $1000 per pound but not in the Valium.
    Gale testified that in 1992, Brian introduced him to Andy Hol-
    comb, a co-worker, who joined Brian in distributing marijuana. On
    one occasion, Brian and Holcomb left Gale's house with 12 pounds
    of marijuana and were arrested when they tried to avoid a roadblock.
    The pair had been drinking and had rifles and scales in the car,
    besides the marijuana. Gale became scared because Holcomb "knew
    a lot, really, about everything that was going on." Along with Wesley
    and Brian, Gale met Holcomb at a donut shop in Winston-Salem "to
    kind of instruct him on how to handle himself." The three didn't want
    to "leave him [Holcomb] out in the cold on the situation, whose mari-
    juana it was and where it was coming from." Wesley recommended
    an attorney to represent Holcomb, and agreed, along with Gale and
    Brian, to help pay his attorney's fees. Gale personally gave Holcomb
    about $2,500 for his attorney.
    Gale recalled that Brian became hospitalized for a month and fell
    $3-4,000 dollars behind paying for marijuana. To settle the debt,
    Brian told Gale that Wesley had a quantity of marijuana coming in
    and offered him a 33-38 pound deal at $1100 a pound with a $100
    per pound discount to apply to the debt. Gale agreed, and a week later
    Wesley showed up at Gale's house with the dope. Wesley accepted
    $9,000 down and offered Gale another deal at $1,000 per pound for
    50-100 pounds, a cash transaction. When Wesley collected the bal-
    ance Gale owed for the first deal, he explained that the 50-100 pounds
    for the next deal would come from a 300-400 pound shipment he was
    expecting. Gale agreed to buy, but when a month went by with no
    4
    word from Wesley, Gale determined from Brian that the shipment had
    been smaller than expected.
    Gale testified that he and Wesley entered into "some type of a part-
    nership," in which Gale agreed to sell and pay for "any amount of
    marijuana that was fronted to me." Until Gale's arrest in February
    1994, he saw Brian quite often "if he [Brian] needed marijuana or
    wanted to square up what he owed," and said that Brian "would speak
    about it, you know, they got in a little bit of marijuana . . . he would
    tell me that his dad got in probably 100 to 125 pounds, 150 pounds."
    Gale also saw Valium in Brian's possession and discussed buying
    Valium from him.
    Through Wesley, Gale met Don Watson, also in 1992. In the fall
    of 1993, Don approached Gale in a bar they both frequented called
    the Silver Fox. Don told Gale that Wesley "had some marijuana, but
    it wasn't enough, that he needed more, that he had run out," and Don
    "asked if he could get some from me [Gale] periodically, to make up
    for the difference." From then until Gale's arrest, Gale supplied Don
    with 10-15 pounds of marijuana every one to two weeks. Gale made
    deliveries at several places including a car shop Don operated. Don
    paid Gale "most of the time at the Silver Fox on Sunday nights."
    Besides dealing drugs, Don and Gale discussed Brian and Wesley's
    activities. Gale testified that Don might say "he didn't need any mari-
    juana because Wesley had brought in some marijuana, and he had
    enough to make it through." Gale testified Don"would say, well, you
    know, Wesley got in a certain amount, like -- roughly, this was
    roughly, it was 125 pounds, and he didn't get but 25 pounds and . . .
    he would need, you know, possibly 10 pounds this week instead of
    20, or seven pounds instead of 15." On May 6, 1993, Don was
    arrested with defendant Bill Hall in possession of over 116,000
    Valium pills in Hall's trailer. Hall had just returned from driving
    Don's brother Red to Laredo, Texas the night before the arrest, and
    the evidence showed that Red and Hall smuggled the Valium into
    North Carolina with a shipment of Mexican pottery. Gale testified
    that Don discussed the circumstances of the arrest with him. Portions
    of Gale's testimony were later corroborated by his wife, Karrie Gale,
    and employee, James Paul Booth.
    5
    The government also called on a witness, Wendell Neal, an
    employee at Don Watson's auto shop from the latter part of 1991
    through April or May of 1993. Neal had been arrested on drug
    charges in the spring of 1993 and had agreed to provide information
    to North Carolina law enforcement authorities on his observation of
    activities at Don Watson's car shop. Neal knew Wesley, but met Red
    Watson, Brian Watson, and Bill Hall while working for Don. Neal
    testified that after about six months at Don's, he became involved in
    distributing marijuana and Valium. His first transaction involved a
    pound of marijuana fronted to him by Wesley. Neal paid Wesley for
    the dope at Don's home after it was sold. Later, Neal bought mari-
    juana from both Wesley and Don.
    In the Spring of 1992, Wesley and one Keith McGhee entrusted
    Neal with three boxes, each containing over 10 pounds of marijuana.
    Neal kept the boxes at his house for a night, and helped Wesley
    repackage the drug in Neal's father's garage the next day. After the
    repackaging, Wesley left Neal with nine pounds of marijuana to hold
    for Don. Neal found a buyer for the drug, however, but could not con-
    tact Wesley for permission to sell. Neal sought and received permis-
    sion to sell from Don, whom Neal said told him "go ahead and sell
    it; that's what we were there for, to make money." Neal was cheated,
    however, the drugs were taken and he never got paid. Neal told Wes-
    ley what happened and asked him to keep it between the two of them
    but "within a matter of days Don knew it, and several other people."
    After being cheated Neal stopped buying marijuana from Wesley, but
    during the fall of 1992 through the Spring of 1993, he purchased two
    pounds a month from Don.
    Neal also testified that he bought Valium from Don and was pres-
    ent when Don left Valium in his shop that was picked up by Bill Hall.
    From time to time, Don showed Neal a note pad containing records
    of Don's Valium dealings.
    Neal was also privy to the handling of money. He observed Wesley
    and Don Watson and Keith McGhee with money bagged for a trip "to
    south of Georgia." This was the money that Gale testified Wesley told
    him was to be used to buy marijuana and which was confiscated from
    Wesley during a traffic stop in South Carolina. To prove a legitimate
    origin for the cash, Wesley asked Neal to sign an affidavit apparently
    6
    falsely swearing that Neal had loaned him some of the money. On
    another occasion, Wesley was worried about having a paint can
    "packed with money" in his possession. Wesley gave Neal the can to
    hold at Don's instruction, and recovered it from Neal several days
    later in Keith McGhee's driveway. In April of 1993, shortly before
    Don and Bill Hall were arrested with Valium, Neal was working late
    at Don's shop when Don came in with a bag full of wet money
    packed in orange plastic bags and asked Neal to help him count it.
    Neal counted about $15,000 - half of the total- and helped Don roll
    it up into clean bags and tape it inside the spare tire of a red Chevrolet
    S-10 truck. He then informed the state authorities about the money.
    A few nights later, when Bill Hall returned from Texas, Neal took a
    message from him to tell Don that Hall was home. After that, Neal
    learned from TV news that Don and Hall had been arrested.
    One Deborah Davis testified that in the fall of 1990 she and Tracy
    Powell, a friend, roomed with a drug dealer named Hobart Crotts in
    Lexington, N.C. Miss Davis testified that Crotts had a business selling
    pottery but also sold marijuana and Valium obtained from Wesley and
    Red Watson. Miss Davis testified that on one occasion she and Miss
    Powell accompanied Crotts to what she believed was Wesley Wat-
    son's house. Crotts parked his car and went into the garage, where
    Miss Davis saw Wesley and Red. Crotts spoke to Wesley, then Wes-
    ley and Crotts carried a large bag containing 5 to 8 pounds of mari-
    juana out to the car in which Miss Davis and Miss Powell were
    waiting, and Crotts handed Miss Powell a quantity of Valium pills.
    Crotts then went back into the garage where Miss Davis watched him
    speak with both Wesley and Red until Red pulled the garage door
    down. Miss Davis later saw Crotts weigh and distribute the marijuana
    and pills to other dealers.
    Andy Holcomb, Brian Watson's co-worker, testified for the gov-
    ernment as well. Holcomb corroborated Dennis Gale's testimony that
    Gale, Wesley, and Brian met him in a donut shop following his arrest
    for conspiracy with Brian on marijuana charges, to discuss his testi-
    mony and legal representation. Holcomb confirmed that Wesley sug-
    gested an attorney to represent him and offered to pay his legal fees.
    Holcomb testified that he engaged in ten drug transactions through
    Brian Watson. He detailed one transaction in June of 1992 in which
    he received two pounds of marijuana and 1,000 Valium pills. Wesley
    7
    delivered the drugs, meeting Holcomb and Brian in the parking lot of
    a fast food restaurant. The Watsons fronted Holcomb the drugs, and
    he paid Brian for them when they were sold.
    The government presented testimony from police witnesses that
    described the execution of search warrants on Don Watson's business
    and Don and Red's residences in March, 1992, showing the defen-
    dants connection to Laredo, Texas. They also described the May 6,
    1992 traffic stop of Wesley Watson and confiscation of $56,781 in
    cash, and the execution of a search warrant on the residence of defen-
    dant Bill Hall on May 6, 1993 that resulted in Hall and Don Watson's
    arrest and the seizure of over 116,000 Valium pills. The search of
    Don's shop turned up telephone bills reflecting calls to Laredo, Texas.
    At both Don and Red's residences, police found a variety of docu-
    ments relating to Laredo, including, at Red's, a Mexican prescription
    for Valium.
    Police testimony tied a white Isuzu truck to Don Watson's business
    and Red Watson's residence throughout 1992. The same white truck
    was found outside Bill Hall's residence on the day he and Don were
    arrested with the Valium. Hall testified that Don Watson asked him
    to drive Red to Laredo, Texas and back for $500 plus expenses. Hall
    agreed because he was out of work, although he did not have a valid
    driver's license and was using a phony one made up in the name of
    a deceased cousin, Robert Hall. In Texas, Red complained he was ill
    and would fly home, so Hall drove the Isuzu back to North Carolina
    alone, arriving late in the evening of May 5, 1993. When police exe-
    cuted the search warrant on Hall's trailer on May 6, 1993, Hall was
    just outside and Don was inside the trailer. Also inside, spread out in
    the kitchen area, were Valium pills, plastic bags, a scale, and razor
    blades. Police also found a theme book that was blank except for the
    last two pages which contained cryptic notations of names and num-
    bers including that Red has owed and paid various sums, and Wesley
    was in the book in connection with certain numbers.
    One Shull, a pottery dealer in Laredo, testified for the defendants.
    His testimony included, however, that Red bought drugs legally in
    Mexico because drugs that would require a prescription in the United
    States could be obtained without one in Mexico and drugs were
    cheaper there. Shull verified that the shipment Red purchased from
    8
    Mexico was wrapped and sealed south of the border and that he,
    Shull, did not repackage it after it came across.
    The government also presented testimony from Guy Stivender, a
    federal inmate at Forsyth County jail. At the beginning of Stivender's
    testimony, the court limited the jury's consideration of his statements
    to defendant Don Watson, only. Stivender testified that while in jail,
    Don said that he was involved in bringing in marijuana and Valium
    from Mexico through Texas and offered to front Stivender drugs to
    sell when Stivender was released.
    A.
    At the close of the government's case, and again at the close of all
    the evidence, the defendants moved to dismiss or acquit, arguing
    either that insufficient evidence showed their knowing assent to the
    conspiracy, or that the government had failed to prove a single con-
    spiracy. The court denied these motions. On appeal, the defendants
    claim the evidence does not support the verdict.
    Red Watson asserts separately that the district court erred in deny-
    ing his Fed. R. Crim. P. Rule 29(c) motion. Red argues that the evi-
    dence adduced by the government shows only that he was associated
    with the other defendants and can't be stretched to demonstrate
    knowledge of the conspiracy or agreement to participate in it without
    engaging in a chain of inferences that is impermissibly long.
    With respect to defining a conspiracy, the jury was instructed as
    follows:
    What the evidence in the case must show, beyond a rea-
    sonable doubt, in order to establish proof that a conspiracy
    existed, is that the members in some way or manner or
    through some contrivance, positively or tacitly came to a
    mutual understanding to try to accomplish the common and
    unlawful plan. The evidence in the case need not establish
    that all means and methods, which were agreed upon, were
    actually used or put in to operation.
    9
    Further, it is not necessary that all of the persons charged
    as members of the alleged conspiracy were, in fact, mem-
    bers. What the evidence in the case must establish beyond
    a reasonable doubt is that the alleged conspiracy was know-
    ingly formed, and that two or more persons, including the
    accused, or the person you are then considering, were know-
    ingly members of the conspiracy as charged in the indict-
    ment.
    Further, to find the defendant guilty, you must unani-
    mously find that he was a member of the conspiracy charged
    in the indictment, and not some other separate conspiracy.
    Now, one may become a member of the conspiracy without
    full knowledge of all of the details of the conspiracy or the
    identification of all of the co-conspirators.
    On the other hand, a person who has no knowledge of a
    conspiracy, but happens to act in a way which furthers some
    object or purpose of a conspiracy, does not thereby become
    a co-conspirator. You may not infer that a defendant is
    guilty of participating in the conspiracy merely from the fact
    that he was present while an overt act was committed, and
    had knowledge that it was being committed. And you may
    not find that a defendant participated in a conspiracy merely
    from the fact that he associated with other people who were
    guilty of the wrongdoing. Presence, knowledge, and associa-
    tion are circumstances which may be considered, however,
    in connection with the other evidence.
    The court's instructions to the jury were not objected to. The testi-
    mony of the witnesses we have recited above, which was not nearly
    all the evidence in the case, indicates beyond a reasonable doubt that
    the jury was justified in finding all the defendants guilty as charged
    in the indictment. Even if a conspiracy might have been found from
    the evidence other than the one charged in the indictment, the evi-
    dence is ample to support the conspiracy charged. And we again note
    that the jury was charged that they had to find as to a defendant that
    "he was a member of the conspiracy charged in the indictment, and
    not some other separate conspiracy."
    10
    We are of opinion the government sustained its burden of proof
    under Glasser v. United States, 
    315 U.S. 60
     (1942), both as to each
    of the defendants and as to Red Watson separately.
    B.
    Wesley Watson contends that the district court erred in admitting
    testimony concerning hearsay statements made by Wesley and
    relayed to Dennis Gale and Andy Holcomb through Brian. His argu-
    ment concerning statements testified to by Gale, however, rests on the
    premise that Wesley and Brian were not coconspirators, which we
    reject and which cannot be supported in the face of overwhelming
    evidence that Wesley and Brian worked hand in hand in the operation
    of this drug ring.
    With regard to Holcomb's testimony, we need provide no relief.
    Wesley also complains Holcomb was allowed to testify that Brian
    told him the purpose of Wesley's trip to Atlanta was to buy mari-
    juana. The district court, however, sustained Wesley's attorney's
    objection and struck the statement.
    C.
    Don Watson contends the district court erred in refusing to allow
    one Drew Stein to testify that Wendell Neal, who was available as a
    witness, told him that he [Neal] was not worried about having been
    arrested on drug charges because "he had fixed that up by delivering
    a package." Don argues the statement shows that Neal planted the
    100,000+ Valium pills found at Bill Hall's trailer and is admissible
    as a statement of Neal's then existing mental or emotional condition
    under Fed. R. Evid. 803(3).
    The proposed testimony was hearsay and was properly excluded by
    the district court.
    D.
    Objection is made to admitting the testimony of one Hanes. Hanes,
    who had been a dope dealer with Crotts and knew about Crotts' get-
    11
    ting marijuana concealed in pottery, testified that Don Watson had
    told him (Hanes) that Don knew about Hanes and Crotts. The infer-
    ence the government sought to draw was that the conversation
    referred to their dealing in marijuana. This conversation was stricken
    by the district court but made the subject of cross-examination by
    Don's attorney. At that point, the district court limited the effect of
    the conversation to Don, thereby excluding any of its effect on the
    other defendants. We perceive no error in its ruling.
    E.
    Wesley Watson claims that a civil forfeiture proceeding growing
    out of the seizure from him of some $55,000 in cash is a bar to his
    criminal prosecution under the Fifth Amendment's double jeopardy
    provision. The government has relied on various procedural bars to
    the assertion of that claim by Wesley. We need not consider them,
    however, for while this appeal was pending, the Supreme Court
    decided United States v. Ursery, 
    64 U.S.L.W. 4565
     (U.S. June 24,
    1996) (No. 95-345), which decided this defense was without merit,
    and we so hold.
    F.
    Don Watson asserts the district court erred at sentencing by includ-
    ing, in the drugs attributed to him, a 100 pound marijuana shipment
    received by Wesley Watson. The district court attributed the full
    amount to Don, finding that Don was "a member of the conspiracy
    to the extent greater than just a seller at times. The events that took
    place at his place, he took part, and was present for other things that
    were going on in connection with the conspiracy."
    Don asserts, correctly, that in this circuit a defendant is not respon-
    sible for the acts of a coconspirator in jointly undertaken criminal
    activity unless the acts were "within the scope of the defendant's
    agreement and . . . reasonably foreseeable to the defendant." United
    States v. Gilliam, 
    987 F.2d 1009
     (4th Cir. 1983). What constitutes the
    scope of the defendant's agreement is "a question of fact which will
    only be overturned on appeal if it is clearly erroneous." United States
    v. Vinson, 
    886 F.2d 740
    , 742 (4th Cir. 1989), cert. denied, 
    493 U.S. 1062
     (1990). Consistent with the decision of the district court, the evi-
    12
    dence shows that Don and his automotive shop were quite involved
    with the conspirators' major drug purchases and operations. For
    example, cash for the purchases was collected there, and counted or
    secreted at Don's direction. Don was aware of the quantity of drugs
    received, and he exercised authority to control the disposition of large
    quantities of drugs without obtaining Wesley's permission. We con-
    clude that the district court was not clearly erroneous in attributing the
    100 pound marijuana shipment to Don.
    G.
    The defendants claim the district court erred in fixing their base
    offense level for sentencing purposes because it based its finding "pri-
    marily on the testimony of three government witnesses, Dennis Gale,
    Wendell Neal and Deborah Davis."
    The defendants' claim is that these three witnesses had been
    impeached during the course of the trial, and the defendants conclude
    their testimony was, therefore, not reliable.
    The district court, however, saw the witnesses and heard them tes-
    tify, it was entitled to accept this testimony.
    The judgments of conviction and sentence are accordingly
    AFFIRMED.*
    _________________________________________________________________
    *Hall argued at trial that there was no evidence to connect him with
    the drug ring's handling and distribution of marijuana, only of Valium.
    On appeal, he may be said to make the same claim as a fatal variance.
    The district court, however, submitted the case to the jury as that of one
    conspiracy under instructions which we have quoted and which were not
    objected to. The verdict forms to which no objection has been brought
    to our attention only provided for a general verdict as to each defendant
    of guilty or not guilty and were not parsed into counts and did not men-
    tion different or various crimes. No jury instruction was offered at trial
    which has been brought to our attention which sought to distinguish a
    marijuana from a Valium conspiracy. Under these circumstances, even
    if Hall was connected to the drug ring only through Valium and not
    through marijuana, we think that does not amount to a fatal variance.
    13
    

Document Info

Docket Number: 95-5067

Filed Date: 9/17/1996

Precedential Status: Non-Precedential

Modified Date: 4/18/2021