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UNITED STATES v. PHIFER

June 24, 1975

UNITED STATES of America
v.
Thomas PHIFER et al.



The opinion of the court was delivered by: BRODERICK

 BRODERICK, District Judge.

 This matter comes before the Court on the defendants' motions for a new trial or, in the alternative, for a judgment of acquittal. The three defendants were jointly tried and were convicted by a jury as charged in the indictment.

 All the defendants in this case were charged in Count No. I of the three-count indictment with conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846. Only the defendants, Thomas Phifer and Bruce Tallon, were named in Counts II and III of the indictment which charged, respectively, possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and interstate travel in aid of the promotion of an unlawful activity, to wit, the distribution of marijuana in violation of 18 U.S.C. § 1952. The motions filed by the defendants raise a variety of points which may be enumerated as follows:

 1. All the defendants contend that the jury's verdict is contrary to the weight of the evidence and that the evidence was insufficient to sustain the conviction. *fn1"

 2. All the defendants claim that the admission of evidence obtained from a warrantless search of an airplane in which defendants Phifer and Tallon were passengers was error.

 3. Defendant Phifer and Smith assert that a violation of the Court's Order of Sequestration constituted a denial of the full effectiveness of cross-examination.

 4. Defendant Smith contends that the Court erred in refusing his request for a copy of the transcript of the informant's Grand Jury Testimony of January 31, 1974 in the United States District Court for the Southern District of California.

 5. Defendant Smith contends that the Court erred in refusing his requested points for charge numbers 17, 18 and 19.

 6. Defendant Smith contends that the Government failed to prove that marijuana is a non-narcotic controlled substance.

 7. Defendant Smith asserts that the Government "trapped", "lured" and "enticed" him to object to the Government's attempt to elicit fingerprint evidence from the Government agent not qualified to so testify, thereby prejudicing the defendant.

 8. The defendant Tallon contends that the Court erred in permitting hearsay to be admitted against him.

 1. Weight and Sufficiency of the Evidence.

 In their motions for a new trial the defendants contend that the jury's verdict was against the weight of the evidence. A motion for a new trial is made pursuant to Rule 33 of the Federal Rules of Criminal Procedure which provides that the court may grant a new trial "if required in the interest of justice". A motion for a new trial on the ground that the verdict is against the weight of the evidence is directed to the sound discretion of the trial court and the court may weigh the evidence and consider the credibility of witnesses. United States v. Morris, 308 F. Supp. 1348 (E.D.Pa.1970). Indeed, it has been said that when ruling on such a motion the court sits as a thirteenth juror. 2 Wright & Miller, Federal Practice and Procedure: Criminal § 553, at 487. If the court concludes that the verdict is contrary to the evidence, or its weight, and that a miscarriage of justice may have resulted, the verdict may be set aside and a new trial granted. However, the remedy is to be sparingly used and only in exceptional circumstances. United States v. Leach, 427 F.2d 1107 (1st Cir. 1970). In reviewing the evidence and assessing the credibility of the witnesses, we find that the verdict in this case is fully justified by the evidence.

 Briefly summarized, the Government established the following by the testimony of the Government informant in the case, Mr. Melvin Qualls. *fn2"

 In mid-November, 1973, Melvin Qualls was approached by Kenneth Wells, an indicted co-conspirator in this case, and had a conversation with Mr. Wells. As a result of this conversation, Mr. Qualls purchased for Mr. Wells an airplane, a Piper Cherokee 140, No. N627OW, placing the airplane in his own name at Mr. Wells' request. After the aircraft had been purchased, there was a meeting held on November 20, 1973 at the home of defendant Smith in Orange, California. Present at this meeting were Mr. Qualls, Mr. Wells and defendants Phifer and Smith. The topic of the conversation was that defendants Smith and Phifer wanted to smuggle marijuana into the United States from Mexico using Mr. Qualls and Mr. Wells for the necessary transportation involved. Smith and Phifer wanted to use a Mexican named Jose Morales as the supplier. Mr. Qualls was to fly the marijuana from Ensenada, Mexico to Los Angeles in the Piper Cherokee 140 that he had purchased. On November 25, 1973, Mr. Qualls, with defendants Smith and Phifer on board, flew the airplane from a small uncontrolled airport near Los Angeles to Ensenada, Mexico. Upon arriving at Ensenada, they went to their motel and defendant Smith left to call Jose Morales. Mr. Morales came to the motel, picked up Mr. Qualls and defendants Smith and Phifer and proceeded to Morales' house. Mr. Morales asked for the money Smith and Phifer owed him for a previous load and they promised to pay Mr. Morales as soon as "Bruce" had returned from the east. They then began discussing the feasibility of flying a load of marijuana to California from Mexico. Mr. Morales stated that he expected a thousand or twelve hundred pounds of marijuana to be available shortly. Later the same day, they looked for and found possible landing sites for the airplane. The next day defendant Smith and Mr. Qualls returned to California in the airplane, while defendant Phifer went by land in an effort to avoid the U. S. Customs clearance registry.

 The following day, November 27, 1973, there was another meeting at Smith's house attended by Mr. Qualls, Mr. Wells and defendants Smith and Phifer. At that meeting, the method of transporting the marijuana back to Philadelphia was discussed and defendants Smith and Phifer decided that the marijuana should be flown back to Philadelphia rather than have "Bruce" drive it back. The following day, November 28, 1973, Mr. Qualls flew to Ensenada, Mexico, with Roger Meador in the Piper Cherokee 140. Mr. Qualls and Mr. Meador landed on the site that had been explored by defendants Smith and Phifer, met with Mr. Morales, and loaded bundles of marijuana onto the airplane. Mr. Qualls then flew the airplane by himself back to California, avoided U.S. Customs and landed at Corona Airport. Upon landing and parking the airplane, Mr. Qualls proceeded to his car where he met with defendant Phifer who was waiting with his own car, and they drove both cars back to the airplane where they proceeded to load both cars with the marijuana. Mr. Qualls and defendant Phifer then drove their cars loaded with the marijuana to Smith's house. Defendant Smith and Mr. Qualls then proceeded in Mr. Qualls' car to a building in Fullerton, California, took the marijuana from Qualls' car, placed it in 55-gallon drums, stored it in the building and returned to Smith's house. The following day, November 29, 1973, there was a meeting at Smith's house, attended by defendants Smith and Phifer, Mr. Wells and Mr. Qualls and again they discussed the method of transporting the marijuana to Philadelphia. Defendants Smith and Phifer decided to put the marijuana into boxes and transport it to Philadelphia in a Cessna 421 aircraft. It was also decided at this meeting that the next load from Mexico should be put in boxes in Ensenada, Mexico, and that Roger Meador and defendant Smith should take the boxes to Mr. Morales in Ensenada.

 On December 2, 1973, a meeting was held at Gary Barney's house in Riverdale, California, attended by Mr. Qualls, Mr. Barney, Mr. Meador, Mr. Wells and defendant Smith. At this meeting, it was discussed that defendant Smith would accompany Mr. Meador and Mr. Barney to Mexico to pick out a new landing site for smuggling another load of marijuana into the United States. On December 4, 1973, Mr. Qualls, Mr. Wells and defendants Smith and Phifer sent Roger Meador to Ensenada to pick up a second load of marijuana. Mr. Meador flew to Mexico in the Piper Cherokee 140 but returned that evening empty because American and Mexican agents had been in the Ensenada area that day. The next day, December 5, 1973, Mr. Wells called Mr. Qualls and told him to meet him at Smith's house. When Mr. Qualls arrived at Smith's house, Mr. Wells and Mr. Meador were there and defendant Smith told them that the Cessna 421 aircraft had left for Philadelphia at 6:00 a.m. (PST) that morning with defendant Phifer and "Bruce" and the first load of marijuana. Mr. Meador was then taken to the airport to fly to Mexico to pick up the second load of marijuana. Mr. Qualls testified that to his own knowledge "Bruce" returned from the east on or about December 1, 1973 and that he had seen "Bruce" at Smith's house. Mr. Qualls identified "Bruce" as defendant Bruce Tallon. Mr. Qualls testified that throughout this period he had been in contact with Special DEA Agent Richard Sye and had relayed all this information to Agent Sye. Agent Sye testified that he received the information from Mr. Qualls that the Cessna 421 aircraft, loaded with marijuana, was en route to Philadelphia and was to land at Philadelphia International Airport. Agent Sye notified the Philadelphia DEA office of this information. On the morning of December 6, 1973, the Cessna 421 aircraft landed at Philadelphia International Airport, the occupants of the airplane, defendants Phifer and Tallon, and the airplane pilot, John Piazza, were arrested and twenty-one boxes of marijuana, with a total weight of about 240 pounds, were seized.

 The pilot of the Cessna 421, Mr. Piazza, testified that he had several meetings in California with defendants Smith, Phifer and Tallon concerning the rental of the Cessna 421 for the purpose of flying boxes of cargo back to Philadelphia. The cost of the plane, the flying time, the weight of the cargo (150 pounds to 250 pounds) and the availability of the airplane were discussed. Mr. Piazza also testified that he and defendant Tallon arranged the boxes on the airplane prior to the flight to Philadelphia. Roger Meador also testified and his testimony corroborated that of Mr. Qualls with regard to their participation in this matter. The Court is satisfied that there was ample credible evidence in this case supporting the jury's verdict of guilty beyond a reasonable doubt. There was no miscarriage of justice. The motion for a new trial on this ground is denied.

 In their motions for judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure, the defendants contend that the evidence was insufficient to sustain the convictions. In a motion for a judgment of acquittal, the pertinent question is "whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt." Curley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229, 232-33 (1947). It is not for the court, ruling on a motion for a judgment of acquittal, to assess the credibility of witnesses, weigh the evidence, or draw inferences of fact from the evidence. 2 Wright & Miller, Federal Practice and Procedure: Criminal § 467, at 259. Rather, the court must view the evidence in a light most favorable to the Government. United States v. Pratt, 429 F.2d 690 (3d Cir. 1970). If a conviction is based on circumstantial evidence, the evidence need not be inconsistent with every conclusion save that of guilty, provided it does establish a case from which the jury can find the defendant guilty beyond a reasonable doubt. United States v. Giuliano, 263 F.2d 582 (3d Cir. 1959). Applying these tests and viewing the evidence in a light most favorable to the Government, we conclude that there was ample sufficient evidence for the jury to find the defendants guilty beyond a reasonable doubt.

 The defendants seek a new trial on the ground that a cardboard box (Exhibit G-2) and marijuana (Exhibits G-7, G-8, G-9, G-10, G-11) seized from the airplane and introduced as evidence at the trial of this case were the products of a warrantless search in violation of their Fourth Amendment rights. The admission of this physical evidence was the subject of a 2-day suppression hearing held on May 22 and May 24, 1974. These motions were denied on June 11, 1974 and we thereupon proceeded with the trial of this case. The following are the reasons why the defendants' post-trial motions on this basis are denied.

 Special Agent Richard Sye, a DEA agent for the Los Angeles area, was the principal government witness at the suppression hearing. According to Agent Sye, he had been receiving information from an individual (identified at trial as Melvin Qualls) since June 1973 regarding illegal drug activity which involved smuggling by aircraft from Mexico. Agent Sye detailed numerous incidents in which information obtained from Mr. Qualls directly resulted in the seizure of a stolen airplane utilized in the smuggling of marijuana from Mexico, the discovery of a "laboratory" utilized for the manufacture of methamphetamine and several arrests and drug seizures made in California. Agent Sye indicated that he never received unreliable information from Mr. Qualls regarding the criminal activities of other persons and that Mr. Qualls was most reliable.

 With regard to the search and seizure which occurred on December 6, 1973 at Philadelphia International Airport, Agent Sye testified to the sequence of events leading to the arrest of the defendants Tallon and Phifer and the search of the airplane. He testified that on November 20, 1973, he received a phone call from Mr. Qualls who told him that a plan was developing between defendants Smith and Phifer and others to smuggle marijuana into the United States from Mexico using a private aircraft. On November 27, 1973, Agent Sye received a phone call from Qualls in which he advised Agent Sye that defendants Smith and Phifer had flown with him to Mexico in a Piper Cherokee airplane, that while in Mexico they had negotiated with a Jose Morales to set up a smuggling venture and that on November 26, 1973, the airplane returned to the United States. Agent Sye testified that he independently corroborated this information by an examination of the United States Custom Records of Entry and Exit. He further testified that Mr. Qualls advised him that the plan was to smuggle marijuana into the United States from Mexico and that the marijuana was to be stored in a building located at 1107-B Elm Avenue, Fullerton, California pending its shipment back to Philadelphia. This building was pointed out to Agent Sye by Mr. Qualls. Agent Sye ascertained that the portion of the building where the marijuana was to be stored had been rented by Bruce Tallon, using the name Robert Miller. Agent Sye testified that prior to the arrest and search of December 6, 1973, he and another DEA agent saw cardboard boxes in the building. On December 5, 1973, Agent Sye received information from Mr. Qualls that some of the boxes of marijuana were en route to Philadelphia in a Cessna 421 airplane, No. N421L; that the airplane was carrying about 200 pounds of marijuana in cardboard boxes; that the airplane was to land at Philadelphia International Airport; that the pilot's name was either John or Dave; and, that two other occupants named Tom and Bruce were aboard the airplane. Agent Sye testified that at about 2:30 p.m. (PST) that same day, after he received this information from Mr. Qualls, he called the DEA office in Philadelphia and spoke to Agent Dale Lear. Agent Sye gave Agent Lear all the background information he had received to that time ...


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