APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 76-00218-01 (Civil Appeal)
Before Seitz, Chief Judge, Aldisert, Circuit Judge, and Teitelbaum, District Judge.*fn*
The government appeals from the district court's grant of a new trial pursuant to Allen's motion for collateral relief under 28 U.S.C. § 2255 (1976) from his conviction for conspiring to possess marijuana with the intent to distribute it in violation of 21 U.S.C. § 841(a)(1) (1976).*fn1
The facts in this case revolve around a telephone answering service, a Ryder rent-a-truck, and the Dusselfink Motel in Pottsville, Pennsylvania. On December 15, 1975, a person using the name "Thomas J. Meador" rented a truck from Ryder in Colorado. The truck was registered in Oregon with license plates from that state. On December 18, two individuals registered at the Dusselfink Motel in Pottsville, signing the names "Tom Meador" and "Richard Cooper." They were given room 242. The motel records indicate a Ryder truck with Oregon license plates was listed as belonging to the occupants of room 242.
December 18 was a busy day. At about 4 p. m. Colorado time, Allen left a message with his answering service, which was located in Colorado. The message was that if a "Jeff Stewart" should call, the service should tell him to go to Pottsville, not Pottstown, and check into the Dusselfink Motel. Stewart then should call 717-366-2723 and ask for Mr. Holiday.*fn2 In addition, the service was to tell Stewart that Allen was on his way.
At 6:49 p. m., Colorado time, someone using the name "Jeff Stewart" called the answering service. He asked the service to tell Allen to call 717-385-2407, room 242. That number is the telephone number for the Dusselfink Motel. The motel's records indicate that a call was made to the answering service.
Sometime later that evening, an unidentified male came to the Dusselfink Motel registration desk and asked for room 242. Shortly thereafter, federal agents who were staking out the motel observed an individual run through the parking lot. The Ryder truck then was seen being driven away.
Early the next morning, December 19, police arrested Allen at a cabin near Deer Lake, Pennsylvania. The Ryder truck now was parked at the cabin. In the pocket of the jacket worn by Allen at his arrest, the officers found a key that opened the padlock on the truck and the ignition key for the truck. They discovered 1,100 pounds of marijuana in the back of the truck.
Soon after, the police arrested Meador and Cooper in room 242. In the room, the police found a piece of paper with the number 366-2723 written on it, the number that Allen asked his answering service to give to Jeff Stewart.
Allen, Meador, and Cooper were indicted and convicted of conspiring to possess marijuana with the intent to distribute it. All three directly appealed to this court. Meador's conviction was affirmed without opinion. United States v. Meador, 559 F.2d 1209 (3d Cir. 1977). Although Allen's conviction was affirmed, his case was remanded for resentencing. United States v. Allen, 566 F.2d 1193 (3d Cir. 1977), Cert. denied, 435 U.S. 926, 98 S. Ct. 1491, 55 L. Ed. 2d 519 (1978). Finally, Cooper's conviction was reversed for lack of sufficient evidence that he participated in a Meador-Allen conspiracy. United States v. Cooper, 567 F.2d 252 (3d Cir. 1977).
On remand, the district court resentenced Allen. Allen then made a motion under § 2255 for a new trial, arguing that his conviction was not based on sufficient evidence, a point he did not raise in his direct appeal to this court.*fn3 The district ...