# United States v. James William Grubbs, United States of America v. Charles Shepard Withey, Iii, United States of America v. Norman Lee Lotterer

> Court of Appeals for the Fourth Circuit · September 27, 1985 · 773 F.2d 599

URL: https://www.frixlaw.com/law-library/cases/9474018

## Case

- **Full name:** UNITED STATES of America, Appellee, v. James William GRUBBS, Appellant; UNITED STATES of America, Appellee, v. Charles Shepard WITHEY, III, Appellant; UNITED STATES of America, Appellee, v. Norman Lee LOTTERER, Appellant
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** September 27, 1985
- **Citations:** 773 F.2d 599; 1985 U.S. App. LEXIS 23413
- **Precedential status:** Published
- **Opinion:** Concurring in part by Turk
- **Judges:** Chapman, Wilkinson, Turk, Western, Virginia
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9474018

## Opinion text

TURK, Chief Judge,
concurring in part and dissenting in part:
I can find no evidence anywhere in the record to support Withey’s convictions for conspiracy to possess and for possession of marijuana with intent to distribute. For this reason, I respectfully dissent from that portion of the opinion.
Despite an extensive record, the government adduced no evidence supporting the inference that Withey was even aware of a distribution scheme. His involvement in the importation of marijuana does not necessarily implicate him in its distribution, or in any plan with that end. See U.S. v. Manbeck, 744 F.2d 360 , 388 (4th Cir.1984). This court recognized in Manbeck that an intent to distribute cannot be inferred on the part of a crew member from his participation in the importation of marijuana.
Assuming that joining a conspiracy to import is distinct from joining a conspiracy to distribute, and assuming that in any given case a defendant may have conspired to participate in one or the other or both, the quantity of marijuana smuggled provides no basis for identifying which of the foregoing conspiracies were joined unless it is presumed that one who conspires to import a large quantity of marijuana also conspires to distribute it.
Id. at 389-90. The Manbeck court rejected such a presumption, and the majority here implicitly agrees provided the importers have no plans to deliver their illegal cargo for distribution by others.
The fault lies in permitting the inference against Withey. Unless the court is prepared to eschew as essential elements of conspiracy a defendant’s awareness of the conspiracy’s existence and his willful participation in it, an intent to distribute cannot be inferred simply from Withey’s role in the importation and the absence of anyone waiting, so far as was known, to receive the marijuana. A late replacement for Loiterer’s girlfriend, he was linked to the importation scheme by circumstantial evidence barely sufficient to support a conviction. The record is void of any evidence of his knowledge of a further conspiracy to distribute, much less his intent to participate in such a venture. Nothing in the *605 record indicates Withey knew what would happen to the marijuana once the Maxima reached the United States. Although Loiterer and Grubbs were intending to remain in the U.S. for some time — not so as to Withey. His plans were to return to the Carribean by plane. From this absence of proof, the only possible inference is in Withey’s favor. Although the rule as stated by the majority might appear sound on its face, it is not so in its application to Withey.
I would reverse Withey’s convictions for conspiracy to possess and for possession with intent to distribute. I concur with the majority in affirming Withey’s other convictions and those of his co-defendants.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9474018. Public record. Not legal advice.