Opinion
Case No. 05-CR-00168.
February 22, 2006
ORDER AND OPINION
I. INTRODUCTION
This case is before the Court for decision after trial. On February 13, 2006, this Court conducted a bench trial on the one-count Indictment filed against Defendant, James Rudd, Jr. In the Indictment, Defendant is charged with conspiring to distribute and to possess with intent to distribute over 5 kilograms of cocaine, in violation of 21 U.S.C. § 846. For the reasons set forth herein, the Court finds the Defendant GUILTY AS CHARGED.
On January 20, 2006, Defendant filed a motion requesting a non-jury trial, pursuant to Rule 23 of the Federal Rules of Criminal Procedure (Docket No. 26), and the Government did not oppose Defendant's motion.
The Government filed the Indictment against Defendant on July 21, 2005.
Specifically, the Indictment in this case charges Defendant with conspiracy to violate 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii), in violation of 21 U.S.C. § 846.
Section 841(a)(1) provides that "it shall be unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." 21 U.S.C. § 841(a)(1).
Section 841(b)(1)(A)(ii) provides, inter alia, that "any person who violates subsection (a) of this section involving 5 kilograms or more of a mixture or substance containing a detectable amount of cocaine, such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life. . . ." 21 U.S.C. § 841(b)(1)(A)(ii).
Section 846 provides, "Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy." 21 U.S.C. § 846. Section 846 simply criminalizes conspiracies to violate § 841. United States v. Villarce, 323 F.3d 435, 439 n. 1 (6th Cir. 2003).
II. FACTS
The following facts encompass the Court's findings of fact. The primary basis for the facts found herein comes from the trial testimony of the Government's witnesses: Faustino Lopez, Justin King, Steven Ray, Timothy Reagan, and Leann Bakr.
Lopez agreed to transport the cocaine from Laredo, Texas to Columbus, Ohio for delivery in exchange for payment in the amount of $35,000. At the time of the agreement, nobody told Lopez the identity of the recipient of the cocaine; Rodriguez, speaking through the CS, simply instructed Lopez to drive the cocaine to Columbus, Ohio, where he would await further instruction.
After receiving the cocaine, Lopez took it to a police station in Laredo, Texas and placed the duffel bag in a drug evidence vault. As Lopez did not have a commercial driver's license to operate trailer trucks, he recruited the assistance of Texas DEA Agent Justin King ("King"), who had such a license.
On June 25, 2005, Lopez and King flew from Texas to Columbus, Ohio with the duffel bag containing the 50 kilograms of cocaine, intending to continue the DEA investigation and to identify who was to receive the shipment. Once in Columbus, Lopez called the CS to announce his arrival. The CS then contacted Rodriguez. Rodriguez instructed the CS to have Lopez call an individual known as "Junior" (later identified as Defendant), and Rodriguez gave the CS a telephone number at which Lopez could reach the Defendant. Lopez telephoned Defendant after the CS relayed the information to Lopez, but due to bad telephone reception, Defendant was forced to call Lopez back from a different telephone line.
In the course of their telephone conversation, Lopez told Defendant that he wanted to meet in person. Defendant stated that he was in Cleveland and that he wanted Lopez to meet him there. Lopez, however, represented that he was currently in Cincinnati and that he would not be able to meet Defendant in Cleveland. The two resolved to meet the next day, June 26, 2005, somewhere north of Columbus, Ohio. During that phone conversation, which was tape-recorded, Defendant asked Lopez if he had "the keys," to which Lopez responded that he had them in his truck.
The tape-recorded conversations between Lopez and Junior were entered into evidence at trial as Government's Exhibit No. 1(A)-(B) and 1(D)-(F). Written transcripts of these conversations were entered into evidence as Government's Exhibit Nos. 1(A)-(B) and 1(D)-(F).
On the same day Lopez and King arrived in Columbus, they met with DEA agents in the agency's Columbus, Ohio field office. Lopez and King gave the Columbus agents the suspected cocaine they had procured during the Laredo investigation. The substance tested positive as cocaine. At that point, DEA Agent Leann Bakr ("Bakr"), the agent leading the Columbus drug investigation in this case, decided to substitute 49 packages of fake cocaine (commonly referred to by law enforcement as "sham") for the 49 original bricks of cocaine recovered from the Laredo investigation. One brick of the actual Laredo cocaine was included with the 49 sham bricks in case the individual receiving the drug shipment wanted to check the authenticity of the goods. The agents placed the 49 sham bricks and the one brick of real cocaine into the blue duffel bag, placing the real brick of cocaine at the top of the duffel bag.
The stipulated lab report indicating the positive drug test results was entered into evidence at trial as Government's Exhibit No. 6. Also, photographs of the 50 kilograms of cocaine that the DEA seized were entered into evidence as Government's Exhibit Nos. 7(A)-(E).
One of these sham bricks of cocaine was entered into evidence at trial as Government's Exhibit No. 18.
The next morning, June 26, 2005, Lopez contacted the CS to inform him that he had made contact with Defendant. During that conversation, Lopez and the CS decided that the CS would no longer be a part of the investigation so that the CS's safety would not be in jeopardy.
Later on June 26, 2005, Lopez called Defendant again to set up the face-to-face meeting. During the telephone call, Defendant again indicated his reluctance to travel from Cleveland to Columbus. Lopez next telephoned Rodriguez directly and explained to Rodriguez that he could not transport the cocaine from Columbus to Cleveland because the weigh stations between Columbus and Cleveland might be able to locate the drugs. Rodriguez agreed and assured Lopez that he would contact "his people" and have someone go to Columbus to pick up the drugs.
This is the first instance when Lopez spoke with Rodriguez directly. Prior to this conversation, the CS had served as the middle-man in communications between Rodriguez and Lopez.
After Lopez's conversation with Rodriguez, Lopez and Defendant spoke, setting up a meeting place for the transfer of the drugs. They settled on the "Flying J" truck stop, which is located a few miles north of Columbus, Ohio, at mile-marker 131 on the east side of Interstate 71. Defendant mentioned to Lopez that he would check into a hotel room in the area and would meet with Lopez later that evening.
On the evening of the scheduled meeting between Lopez and Defendant, King drove the trailer truck to the designated meeting place. Lopez sat in the passenger seat of the vehicle. Upon arriving at the truck stop, the DEA agents decided to change the location of the meeting between Lopez and Defendant to the parking lot of a nearby "Bob Evans" restaurant. Columbus, Ohio DEA agents set up surveillance around the parking lot's perimeter. Since Defendant was expecting Lopez to be alone at the meeting, King got out of the driver's seat of the vehicle after parking the truck and entered the sleeper compartment of the truck, where he could not be seen from outside of the truck. Lopez then placed a call to Defendant to inform Defendant of his location so that the two could conclude the deal.
After the phone conversation, DEA agents in the surrounding area saw Defendant exit a nearby "Days Inn" hotel and walk toward the parked truck. Defendant was rolling a large black suitcase behind him. As Defendant approached the Bob Evans parking lot, Lopez exited the truck carrying the blue duffel bag containing the 49 sham bricks and the one real brick of cocaine. Defendant and Lopez greeted each other and walked a short distance together to a fenced-in area behind the Bob Evans restaurant dumpster, so that no one would see them make the transfer.
Once in the secluded area behind the dumpster, Lopez first unzipped the bag and showed Defendant the contents, and then handed the blue duffel bag over to Defendant. Defendant placed the duffel bag inside the large black suitcase he had brought with him and zipped the black suitcase. Lopez and Defendant then shook hands and parted ways. Lopez returned to the truck, which was still parked in the parking lot, and Defendant began walking back to the Days Inn hotel, rolling the black suitcase containing the blue duffel bag behind him.
When Lopez reached the truck, King exited of the truck's sleeper compartment and moved to the driver's seat, while Lopez entered the truck's sleeper compartment. King and Lopez did this so that it would appear as though there was just one individual in the truck as the truck exited the Bob Evans parking lot. While driving out of the parking lot, Lopez and King observed Defendant place a phone call on his cellular phone as he walked back toward the Days Inn hotel. Moments later, while Defendant was still walking back to the hotel, DEA agents who had been conducting surveillance of the transaction, apprehended Defendant and took him into custody.
The DEA agents placed Defendant in one of the DEA agent's vehicles, where he spoke with Bakr and Timothy Reagan ("Reagan"), another DEA agent at the scene. Bakr and Reagan told Defendant why he had been arrested. They explained that they believed Defendant to be a lower-level individual in the conspiracy, and they solicited Defendant's assistance in their investigation to capture higher-level individuals in the cocaine distribution ring.
After speaking with the Defendant in the vehicle, Bakr and Reagan took Defendant to the Days Inn hotel room Defendant had checked into earlier that evening with one of his friends. The DEA agents also collected various items from the room, including six different cellular telephones, pre-paid cellular telephone cards, a plane ticket from Dallas to Cleveland dated June 25, 2005, two airport boarding passes, and over $2,000 cash.
Defendant explained to the DEA agents that his friend in the hotel room did not have any knowledge of the drug transaction and, after an investigation failed to connect Defendant's friend to the crime, the DEA agents released him.
Government's Exhibit Nos. 8(A)-(F).
Government's Exhibit No. 9.
Government's Exhibit No. 10.
Government's Exhibit Nos. 11 and 12.
After they had been in the hotel room for awhile, Bakr and Reagan convinced Defendant to sign a "Statement of Rights and Waiver" form, and he effectively waived his Miranda rights. Bakr and Reagan then asked Defendant to whom he was supposed to deliver the cocaine.
Government's Exhibit No. 5.
In response to the agent's questions, Defendant explained that he had been hired by an individual named "Youngsta" to pick up a package. One of the agents asked if Defendant had contact information for the person to whom Defendant was supposed to deliver the drugs, and the Defendant responded that he did not. Subsequently, Bakr and Reagan searched through the phone books of Defendant's cellular telephones, and they located a telephone number for in individual listed as "Youngsta." Bakr and Reagan asked Defendant to call Youngsta and tell him to come by the hotel to pick up the package. Defendant dialed the number, and Youngsta answered. Defendant asked Youngsta to "have someone come and pick up the bag because I'm getting tired." Youngsta responded that he needed to get off of the phone, but that he would return Defendant's call shortly. Defendant ended the call. After waiting approximately twenty minutes for Youngsta to call back, Bakr and Reagan instructed Defendant to call Youngsta again. Defendant dialed the number a second time in the presence of Bakr and Reagan, but Youngsta has turned his cellular phone off. No further contact was made with Youngsta.
Defendant was transported from the Days Inn hotel to the Franklin County Jail, and has been incarcerated there since June 26, 2005, awaiting trial.
III. STANDARD OF REVIEW
The presumption of innocence in a criminal trial is the "bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of out criminal law." In re Winship, 397 U.S. 358, 363 (1970) (quoting Coffin v. United States, 156 U.S. 432, 453 (1895)). The presumption of innocence itself, however, is not evidence or a true presumption in the sense of an inference drawn from other facts in evidence, but rather is "an `assumption' that is indulged in the absence of contrary evidence." Taylor v. Kentucky, 436 U.S. 478, 483-84 n. 12 (1978). It is a "shorthand description of the right of the accused to remain inactive and secure, until the prosecution has taken up its burden and produced evidence and effected persuasion." Id. Its main purpose is to purge any suspicions a fact-finder may have arising from "official suspicion, indictment (or) continued custody," and to emphasize to the fact-finder that its decision must be based "solely on the . . . evidence introduced at trial." Id. at 484-86.
The Due Process Clause requires that the government bear the burden of proving every element of the crime charged beyond a reasonable doubt. In re Winship, 397 U.S. at 364. This means that the prosecution must present evidence sufficient to overcome the presumption of innocence and convince the fact-finder of the defendant's guilt. Coffin, 156 U.S. at 458-59; Agnew v. United States, 165 U.S. 36, 50-51 (1896). The reasonable doubt standard represents "a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free." In re Winship, 397 U.S. at 372 (Harlan, J., concurring); accord Francis v. Franklin, 471 U.S. 307, 313 (1985).
IV. ANALYSIS
Defendant is charged with one violation of 21 U.S.C. § 846. According to the Indictment in this case, Defendant conspired to distribute and to possess with the intent to distribute over 5 kilograms of cocaine, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii).
Courts have long recognized that "the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses." Pinkerton v. United States, 328 U.S. 640, 643 (1946); see also United States v. Van Hee, 531 F.2d 352, 357 (6th Cir. 1976) ("a conspiracy to commit a crime is a different offense from the crime that is the object of the conspiracy."). Furthermore, a court may convict a defendant of the crime of conspiracy even if there is no proof that the object of the conspiracy was achieved. United States v. Fruehauf Corp., 577 F.2d 1038, 1071 (6th Cir. 1978). The crux of the crime of conspiracy is "the agreement to commit an illegal act, not the accomplishment of the illegal act." Id.
To convict a defendant under a typical conspiracy charge, the government must prove three elements: (1) that two or more persons conspired to commit a specific crime; (2) that the defendant knowingly and voluntarily joined the conspiracy; and (3) that a member of the conspiracy did one of the overt acts described in the indictment for the purpose of advancing or helping the conspiracy. See 18 U.S.C. § 371. In this case, however, because Defendant was charged with a violation of 21 U.S.C. § 846, a controlled substances conspiracy provision that does not require an overt act, the third element need not be proven to find him guilty of the offense charged. See United States v. Shabani, 513 U.S. 10, 13 (1994); United States v. Schultz, 855 F.2d 1217, 1222 (6th Cir. 1988) ("conviction of conspiracy under 21 U.S.C. section 846 does not require proof of an overt act"). Therefore, Defendant may be found guilty under the Indictment if the Government proves two elements: (1) that Defendant conspired with another to distribute and to possess with intent to distribute over 5 kilograms of cocaine; and (2) that Defendant knowingly and voluntarily joined the conspiracy.
A. Even if the Evidence In This Case is Viewed in the Light Most Favorable to the Defendant, He is Guilty as a Matter of Law
Even if the Court adopts Defendant's theory of the case, Defendant is guilty of conspiring to distribute and to possess with the intent to distribute over 5 kilograms of cocaine as a matter of law. At trial, Defendant testified that he voluntarily entered into an agreement with an individual named Younsgsta to pick up a package for him. According to his testimony, Defendant believed that the package in question would contain, among other items, ten kilograms of what he referred to as "hydro." Defendant admits that he knew hydro to be a special type of marijuana. Defendant testified that he did not know that the package would contain 50 kilograms of cocaine. Defendant argues that since he was not aware that the packages contained cocaine and since he was not aware that the amount of cocaine in the packages exceeded 5 kilograms, then he should not be convicted under the Indictment.
According to Defendant's testimony, the other items that he expected to find in the package were assorted dog collars and weighted dog vests used to train dogs for dog-fights.
There was some inconsistency in Defendant's testimony regarding the amount of hydro that he expected to find in the package. At one point during his testimony, Defendant indicated that he thought he would be picking up "a couple keys" of hydro. Toward the end of Defendant's testimony, however, Defendant testified that he thought he would be picking up "ten keys" of hydro.
At trial, the Government established that hydro is a street name for hydroponic marijuana, a type of marijuana that is cultivated indoors and that typically contains increased levels of the chemical THC. Hydroponic marijuana is, by Defendant's admission, an illegal substance.
Under well-settled case law in the Sixth Circuit and various other federal circuits, the government is not required to prove mens rea with respect to the drug quantity or drug type elements in a charge of conspiracy to possess and distribute a controlled substance. See United States v. Villarce, 323 F.3d 435, 439 (6th Cir. 2003) (holding that a conviction for conspiracy to distribute a controlled substance "does not require proof of knowledge or intent with respect to drug type and quantity."); see also United States v. Gamez-Gonzalez, 319 F.3d 695, 700 (5th Cir. 2003) (holding that "subsection (b) does not make [a defendant]'s knowledge of drug type or quantity an element of the § 841 offense."); United States v. Carranza, 289 F.3d 634, 644 (9th Cir. 2002) (holding that "[a] defendant charged with importing or possessing a drug is not required to know the type and amount of drug."); United States v. Carrera, 259 F.3d 818, 830 (7th Cir. 2001) (holding that "[a] defendant may be convicted of a violation of 21 U.S.C. § 846 without knowing the exact type of drug involved" and that "[t]he government need only prove that the defendant knew that some controlled substance was involved."); United States v. Sheppard, 219 F.3d 766, 768 n. 2 (8th Cir. 2000) (holding that § 841(b) only requires "the government to prove that the offense `involved' a particular type and quantity of controlled substance, not that the defendant knew he was distributing that particular type and quantity"). Therefore, if the government proves that a defendant voluntarily enters an agreement to possess and distribute any amount of any illegal drug, the defendant may be found guilty of a violation of 21 U.S.C. § 846 as a matter of law.
At trial, Defendant essentially admitted to committing the criminal offense charged in the Indictment. Defendant conceded that he entered into an agreement with Youngsta to pick up a package that contained marijuana, an illegal drug. Furthermore, Defendant never asserted that his willingness to pick up the package of hydro was unknowing or involuntary. He was unequivocal that he knew that he was taking possession of ten kilograms of marijuana. The package Defendant picked up contained 50 kilograms of cocaine. It is irrelevant that Defendant did not know the package contained 50 kilograms of cocaine; all the law requires to convict Defendant of the charged crime is that he knowingly and voluntarily entered an agreement to possess and distribute some amount of some illegal drug. See Villarce, 323 F.3d at 439. Accordingly, the government has met its burden in proving, through the Defendant's own testimony, that Defendant conspired to possess and distribute over 5 kilograms of cocaine, and Defendant is guilty violating 21 U.S.C. § 846 as a matter of law.
B. Defendant's Entrapment Defense Fails
During closing arguments, counsel for Defendant raised, for the first time, the affirmative defense of entrapment. A valid entrapment defense requires proof of two elements: (1) government inducement of the crime, and (2) lack of predisposition on the part of the defendant to engage in the criminal activity. United States v. Khalil, 279 F.3d 358, 364 (6th Cir. 2002). A defendant invoking the defense of entrapment must come forward with evidence to support both elements of the defense. Id.In this case, Defendant did not offer sufficient evidence to avail himself of the defense of entrapment. As to the first element of the defense of entrapment, it is not enough for defense counsel simply to assert in closing arguments that the government "played a significant role in the drug investigation." Defendant never established, either in its case-in chief or on cross-examination of the Government's witnesses, the Government's inducement of a crime. As such, Defendant's evidence does not prove the first element of the defense of entrapment.
As to the second element of entrapment, Defendant never submitted any evidence that he was not predisposed to engage in the charged conspiracy. To the contrary, Defendant admitted on the witness stand that he entered into the agreement with Youngsta to pick up a package he knew to contain ten kilograms of marijuana. The agreement with Youngsta occurred before Defendant ever came into contact with any government official. Thus, Defendant cannot prove the second element of entrapment.
Since Defendant has failed to introduce sufficient evidence to prove the two elements of entrapment, Defendant may not successfully invoke the defense of entrapment in this case.
C. Regarding Disputed Facts, the Court Finds the Government's Witnesses to be More Credible Than Defendant
Regarding issues of credibility in this case, this Court is more persuaded by the Government's witnesses who testified at trial than by Defendant's own testimony. There are some instances upon which the Government's explanation of the events giving rise to this case conflicts with Defendant's explanation. For the reasons set forth below, this Court does not find Defendant's testimony credible.One inconsistency within Defendant's testimony is his explanation for the reason for he was present in the State of Ohio. Defendant, a resident of Texas, testified that he boarded a flight from Texas to Cleveland, Ohio on June 25, 2005 because Youngsta had hired him to train one of Youngsta's dogs for an upcoming dog-fighting competition. The competition was scheduled for the weekend of Defendant's visit to Cleveland. According to Defendant, while he was in Cleveland, Youngsta asked him to travel to Columbus to pick up a package for him, which included some "hydro" and assorted dog collars and weighted dog vests used in underground, illegal dog-fighting competitions. Defendant testified that his intention was to take delivery of this bag containing dog-fighting materials.
Defendant's testimony related to his participation in dog-fighting activities in Cleveland is inconsistent with prior statements he had given. During cross-examination, Defendant admitted that he had never before told anyone that his purpose for being in Ohio was to attend a dog-fighting competition. Rather, Defendant told the authorities on the night of his arrest that he had traveled to Columbus to purchase a van. Defendant did not offer any testimony at trial that he was in Columbus to purchase a vehicle. This inconsistency in Defendant's story alerts the Court that Defendant's testimony may be unreliable.
Additionally, the Court questions the veracity of Defendant's testimony regarding participation of previously unknown individuals who Defendant introduced for the first time at trial. While on the witness stand, Defendant testified that when Youngsta telephoned, he told Defendant that a man named "Wayne" was originally supposed to pick up the package. According to Defendant, Youngsta told him that Wayne "was bullshittin'," and that Youngsta would need Defendant to receive the package instead. Defendant testified further that it was his impression that he would need to deliver the package to Wayne after having received it from Lopez. Next, Defendant testified that it was his plan to retrieve the package from Lopez, hand it off to Wayne, and then ride back up to Cleveland that evening with a woman named "Alex," who Defendant identified as a veterinarian from Texas, in time to attend the dog-fighting competition scheduled for that evening at some location in Cleveland. The first time law enforcement officials or prosecutors ever heard Defendant mention the individuals named Wayne and Alex was during Defendant's testimony at trial. At the Days Inn hotel on the night of his arrest, Defendant was interrogated and never mentioned these individuals, who seemingly would play critical roles in establishing the credibility of Defendant's story. Therefore, this Court has difficulty believing that "Wayne" and "Alex" are of any consequence in Defendant's story.
In any event, irrespective of the veracity of Defendant's story, his testimony that he conspired with Youngsta to possess ten kilograms of marijuana is sufficient to support a finding of guilt. The fact that this Court believes the Government's witnesses only buttresses the Court's finding.