On Appeal from the United States District Court of the Virgin Islands Division of St. Thomas and St. John (Crim. No. 83-00088-01)
Appellee Franke A. Hoheb and his brother, Derek Parrilla, were charged with violations of Virgin Islands criminal law arising out of a marijuana smuggling operation set up by undercover federal agents. Inconsistent verdicts returned by the jury respecting these two defendants provide the background for this appeal by the government.
Count I of the indictment against Hoheb and Parrilla charged them with conspiracy with intent to distribute marijuana. V.I. Code Ann tit. 19 § 609 (1976); count II alleged possession of marijuana with intent to distribute, V.I. Code Ann. tit 19 § 604(a) (1976). The jury found both defendants guilty of simple possession of marijuana, a lesser included offense within count II; it found Hoheb guilty of the conspiracy charge, but acquitted Parrilla on that count.
On November 16, 1983, the district court granted Hoheb's motion for judgment of acquittal on count I, ruling that the conviction could not stand in light of Parrilla's acquittal, and finding that there was insufficient evidence that any other persons were involved in the alleged conspiracy. The government filed a timely appeal. We have jurisdiction under 18 U.S.C. § 3731 (1982). United States v. Wilson, 420 U.S. 332, 353-53, 43 L. Ed. 2d 232 2, 95 S. Ct. 1013 (1975); United States v. Everett. 700 F.2d 900, 902 (3rd Cir. 1983).
Because we hold that Hoheb's conspiracy conviction is supported by substantial evidence, and that the acquittal of Parrilla dos not preclude the conviction of Hoheb on count I, the jury's verdict on that count will be reinstated.
During the time in question, Hoheb was Chief Enforcement Officer for the Virgin Islands Department of Conservation and Cultural Affairs. On February 15, 1983, John Allen, an informant acting at the direction of Drug Enforcement Administration (DEA) agents, contacted Hoheb to see if the official was interested in distributing narcotics in the Virgin Islands supplied by a group in Puerto Rico. Allen testified that Hoheb expressed interest, App. at 48-49, and that over subsequent weeks they met repeatedly and developed a plan to carry out the distribution.
Allen testified that in furtherance of this plan, Hoheb sent his brother, Parrilla, to meet with putative drug suppliers. On April 12, 1983, Parrilla net Allen and two undercover DEA agents at Brewers Bay Beach. Parrilla first assured the agents that adequate payment and security could be provided to effect and off-shore transfer of the marijuana. Parrilla then agreed to purchase 150 pounds of marijuana at $400 per pound, see App. at 67-70, and was given a one-pound sample of marijuana whose sale would generate front money for the ultimate transaction. See App. at 71-73. Allen further testified that on the evening of April 12, he visited Hoheb's apartment and witnessed both Hoheb and Parrilla weighing and bagging the sample marijuana. See App. at 73.*fn1
Andres Amador, a DEA agent present at the Brewers Bay meeting, corroborated Allen's testimony. Amador testified that Parrilla stated he had been authorized by Hoheb to negotiate the purchase and delivery of marijuana. See App. at 112. Parrilla then reviewed the mechanics of the contemplated delivery, in which he and an unnamed friend were to meet the suppliers' boat at Thatch Cay, transfer the marijuana to a second boat, and bring it to shore. See App. at 114. Amador testified that he then gave Parrilla the sample marijuana see at 115-16, and that a second meeting was arranged for April 15, at which time Parrilla was to provide $2,000 as a deposit for the 150 pounds of marijuana. See App. at 113. Amador further testified that he met Parrilla again on April 15, the day scheduled for the transfer, that Parrilla failed to deliver any of the promised deposit monies, but assured Amador that if the transfer occurred as scheduled, Parrilla would pay $20,000 within a week after the transfer. See App. at 117.
The record further discloses that on April 14 Allen again met with Hoheb, who produced a final plan for the transfer of the marijuana. See App. at 76-77; App. at 212. This plan, written in Hoheb's hand and in the form of a timetable of events, was introduced at trial. As contemplated by this schedule, Parrilla and a friend were to leave Coki Beach at 6:30 p.m., the boats were to rendezvous at 7:00, and at 7:35, Parrilla was to arrive at Hoheb's apartment. See App. at 242. Allen testified that this timetable coincided with a change in plans, whereby after the marijuana was transferred at sea, Parrilla had his friend were to bring it directly to Sapphire Bay where Hoheb's apartment was located.*fn2 See App. at 77.
Following Parrilla's April 15 meeting with Amadro, Allen put Hoheb in telephone communication with Amador, who continued to pose as a supplier. Hoheb apologized for any difficulties and requested that the plan still be carried out. Late in the day, Hoheb called Allen and cancelled the entire arrangement, because he had observed and unidentified boat in the area. That evening, Hoheb and Parrilla were arrested at Hoheb's apartment.
In ruling that Hoheb's conspiracy conviction could not stand following Parrilla's acquittal on that charge, the district court relied on the common law "rule of consistency." That rule provides that where all alleged coconspirators save one are ...