Appendix — Gianni v. United States

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

GARY ANTHONY GIANNI, JOSEPH MIKE

GIARDINA, RICHARD LOREN HOLLAND,

JAMES ROBERT HAM,

Defendants-Appellants.

NO. 81-5237

United States Court of Appeals,

Eleventh Circuit.

June 14, 1982.

Before WISDOM*, RONEY and HATCHETT,

Circuit Judges.

RONEY, Circuit Judge:

Convicted of conspiracy to possess

marijuana with intent to distribute in

violation of 21 U.S.C.A. §841(a)(1),

defendants claim on appeal (1) the

evidence was insufficient to convict, (2)

the indictment should have been dismissed

because of the Government's outrageous

*Honorable John Minor Wisdom, U.S.Circuit

Judge for the Fifth Circuit, sitting by

designation.

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conduct and (3) evidence obtained during

warrantless searches of four cars should

have been suppressed. Rejecting these

arguments, we affirm.

Late in the summer of 1980, the Drug

Enforcement Administration instituted an

undercover operation called "Operation

Doublecross." Approved by the Department

of Justice, Operation Doublecross was

aimed at apprehending persons involved in

financing marijuana purchases. It involved

arranging the undercover sale of marijuana

previously seized by the DEA in earlier

operations. The four defendants were not

principals involved in any sale, but were

drivers of cars which contained some of

this marijuana that had been "sold".

A brief review of the background

facts is necessary to show the part played

by the defendants. Pursuant to the

guidelines of Operation Doublecross, DEA

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Agent Fagan contacted Kenneth Craig.

Agent Fagan had met Craig roughly a year

earlier in the course of an undercover DEA

operation during which Craig had represented

that he and Robert Karley, whom Agent

Fagan had also met in the earlier

operation, could supply cocaine or large

amounts of marijuana. Craig had previously

been present when a sample of marijuana

was shown Agent Fagan.

In renewing his contacts with Craig

and Karley, Agent Fagan informed them

separately by telephone that he hada

large quantity of marijuana available for

sale. Agent Fagan told Karley to

telephone if he knew anyone interested in

the marijuana. Karley called Agent Fagan

several days later, indicated he had some

people, including "Craig's man", interested

in the marijuana. A meeting was arranged,

and negotiating sessions involving several

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other persons not defendants in this case

followed. During the course of one

session, the undercover DEA agents met

David Wainer. Wainer indicated he had

buyers then present at the site of the

negotiations, a Holiday Inn Motel, ready

to deal in large quantities of marijuana.

Indicating his desire to protect his

buyers, some of whom he said he had worked

with for four or five years, Wainer told

agents there would be no necessity for

them to meet the buyers and that they

would be kept from sight. Eventually, an

agreement was reached for the sale and

transfer of marijuana to Karley, Craig,

Wainer and their "people". Undercover

agents placed 390 pounds of marijuana in

three cars provided by the buyers in

return for $95,350.00. Later that same

day a second transaction was arranged in

which 760 pounds - of marijuana was

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transferred to the buyers in the same

fashion for approximately $186,200.00.

Surveilling DEA agents observed both

transactions.

The four defendants in this case were

arrested while operating the cars loaded

with marijuana in the second transaction.

Each defendant was the sole occupant of

the car he was driving at the time of his

arrest.

SUFFICIENCY OF THE EVIDENCE

Defendants contend there was insuffi-

cient evidence to support their convictions

for conspiring to possess with the intent

to distribute marijuana. Conceding the

existence of a conspiracy between Karley,

Craig and Wainer, defendants argue the

evidence is insufficient to show any of

them knew of the conspiracy and knowingly

and willingly participated in it.

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{1,2} When confronted with a claim

of insufficient evidence, we must view the

evidence in the light most favorable to

the Government, Glasser v. United States,

315 U.S. 60, 80, 62 S.Ct. 457, 469, 86

L.Ed. 680 (1942); United States v. Rice,

652 F.2d 521, 526 (Sth Cir. 1981),'

making all credibility choices in support

of the jury verdict. _United States v.

Black, 497 F.2d 1039 (Sth Cir. 1974). The

standard of review is whether a reasonably

minded jury must necessarily entertain a

reasonable doubt as to the defendants’

guilt. _Umited States _v. Rodriquez, 654

F.2d 315, 317 (Sth Cir. 1981); United

States v. Kelley, 630 F.2d 302, 303 (Sth

Cir. 1980)

1. The Eleventh Circuit, in the en banc

decision of Bonner v. City of Prichard,

661 F.2d 1206 (11th Cir. 1981), adopted as

precedent the decisions of the former

ho Circuit decided prior to October 1,

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[3-5] While mere presence or associa-

tion with other persons involved ina

criminal enterprise is not sufficient to

prove participation in a conspiracy,

United States v. Horton, 646 F.2d 181 (5th

Cir. 1981), cert. denied, _ U.S.

____» 102 S.Ct. 516, © L.Ed.2d 388, the

essential elements of a conspiracy can be

proved by inference from the actions of

the actors or by circumstantial evidence.

United States v. Conway, 632 F.2d 641, 643

(5th Cir. 1980) ; United States v.

Malatesta, 590 F.2d 1379, 1381 (Sth Cir. )

cert. denied, 444 U.S. 846, 100 S.Ct. 91,

62 L.Ed.2d 59 (1979); Umited States v.

Alvarez, 625 F.2d 1196, 1198 (5th Cir.

1980) (en banc), cert. denied, 451 U.S.

938, 101 S.Ct. 2017, 68 L.Ed.2d 324

(1981). There is rarely any direct

evidence of an agreement to join a

criminal conspiracy, so that a defendant's

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assent can be inferred from acts furthering

the conspiracy’s purpose. United States

v. Middlebrooks, 618 F.2d 273, 278 (Sth

Cir-), cert. denied, 449 U.S. 984, 101

S.Ct. 401, 66 L.Ed.2d 246 (1980). The

Government is not required to prove

knowledge of all the details ef the

conspiracy on each of its members,

provided a defendant's knowledge of the

essentials of the conspiracy is established.

United States _v. Alvarez, 625 F.2d at

1198.

[6] Carefully reviewing the evidence

under Glasser and in light of these

principles, we hold the evidence was

sufficient to sustain the convictions.

Pursuant to the agreement and consistent

with the pattern employed in a transaction

occurring only hours earlier that same

day, the Government agents delivered three

cars with trunks filled with marijuana to

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the Holiday Inn parking lot. The cars had

been provided by conspirator Wainer.

Three of the defendants emerged simultan-

eously from the motel, met with Karley in

the parking lot, entered the marijuana

laden vehicles and drove to another point

in the lot where they parked together and

were joined by a fourth car driven by the

fourth defendant. The evidence amply

shows all four defendants engaged in

shuffling some marijuana bales to the

fourth automobile, departed the lot, and

were eventually arrested while operating

the cars. Defendant Ham owned two of the

cars, defendant Giardina one, and a fourth

was owned by defendant Holland's wife.

Evidence of these facts, along with

conspirator Wainer's alluding to the

presence of his “buyers” at the motel,

eliminates the possibility that a jury

necessarily must have entertained reasonable

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doubt of defendants' guilt. The defendants

do not deny the existence of a drug

conspiracy, and a jury could reasonably

conclude from the evidence adduced at

trial and the inferences reasonably drawn

therefrom that they knew of the conpiracy

and knowingly and willingly participated

in it. The circumstances belie the

argument that defendants did not know

their cars contained marijuana.

MOTION TO DISMISS

Arguing the DEA's supplying of the

marijuana to the defendants was outrageous

conduct constituting a denial of due

process, defendants contend the district

court erred in refusing to dismiss the

indictment.

[7] While both the Supreme Court and

our precedents have recognized the possibil-

ity that conviction may be overturned

where Government involvement in criminal

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schemes is so extensive that it may be

characterized "outrageous", United States

v- Russell, 411 U.S. 423, 431-32, 93 S.Ct.

1637, 1642-43, 36 L.Ed.2d 366 (1973);

Hampton v. United States, 425 U.S. 484, 96

S.Ct. 1646, 48 L.Ed.2d 113 (1976); United

States _v. Gray, 626 F.2d 494 (Sth Cir.

1980), cert. denied, 450 U.S. 1091, 101

S.Ct. 887, 66 L.Ed.2d 819 (1981), to date

it appears that neither the Supreme Court

nor the Fifth or Eleventh Circuits has

reversed a conviction on that basis.

Nevertheless, in evaluating claims that

official conduct rose to a constitutionally

impermissible level, the cases turn on the

totality of the circumstances with no

single factor controlling. United States

v. Tobias, 662 F.2d 381, 387 (5th Cir.

1981). Measured under this standard,

Government involvement in criminal activity

constitutes a due process violation only

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where it violates "'fundamental fairness,

shocking to the universal cause of

justice,'" United States v. Russell, 411

U.S. at 432, 93 S.Ct. at 1643, quoting

Kinsella Vv. United States ex rel.

Singleton, 361 U.S. 234, 246, 80 S.Ct.

297, 303, 4 L.Ed.2d 268 (1960).

[8] The Supreme Court has held

Government infiltration of criminal activity

a recognized and permissible means of

investigation. United States v. Russell,

411 U.S. at 432, 93 S.Ct. at 1643. That

in the course of investigating, Government

agents supply or sell illegal drugs or

provide other essential services does not

necessarily constitute misconduct. Hampton

v. United States, 425 U.S. at 489, 96

S.Ct. at 1649; United States v. Gray, 626

F.2d at 498.

[9] The conduct of the Government

here does not even approach that demonstrable

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level of outrageousness the case law

suggests would be necessary for reversal

of these defendants’ convictions. The

evidence reveals that DEA agents simply

infiltrated an organization of persons

known to be involved in illegal drug

trafficking. Informed that large amounts

of marijuana could be supplied and they

should telephone if interested, Karley and

Craig reinitiated contact with Government

agents and, along with Wainer, vigorously

pursued negotiations culminating in the

transactions. All of the defendants were

involved with these people without any

Governinent instigation. They never had

any contact with Government agents. The

availability of defendants and their

automobiles to the conspirators to carry

out the drug transactions was not the

result of any government activity. Even

if it could be argued that the Government

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activity with Karley, Craig and Wainer was

somehow improper, the due process rights

of these defendants were not violated.

In any event, under the totality of

the circumstances and compared with other

cases in which significantly greater

police involvment has been held not

violative of due process, see United

States v. Tobias, 662 F.2d 381 (5th Cir.

1981), the Government's delivering and

selling marijuana to willing, experienced

buyers for large sums of cash does not

constitute outrageous conduct warranting

reversal of these criminal convictions.

SUPPRESSION OF EVIDENCE

Defendants claim that because the

warrantless searches of the automobiles

they were driving did not come within any

of the exceptions to the Fourth Amendment's

search warrant requirement, the marijuana

seized should have been suppressed.

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It is clear from the record that

after the DEA agents delivered the

marijuana, surveilling agents observed the

transfer of some bales from the three cars

they had loaded to a fourth car,

discovered later to be driven by defendant

Ham. The agents had expected the

marijuana would be driven away in three

automobiles, and the intrusion of the

fourth was a surprise and raised a concern

that some marijuana might be misrouted and

lost.

[10] Given the observations of the

surveilling agents and the unexpected

intrusion of the fourth car, there existed

both probable cause and exigent circumstances

for the warrantless searches. Chambers v.

Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26

L. Ed. 2d 419 (1970); United States v.

Gualtney, 581 F.2d 1137 (5th Cir. 1978),

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cert. denied, 446 U.S. 907, 101 S.Ct.

1833, 64 L.Ed.2d 259 (1980).

AFFIRMED.

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IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 81-5237

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GARY ANTHONY GIANNI,

JOSEPH MIKE GIARDINA,

Defendants-Appellants.

Appeal from the United States District Court

for the Middle District of Florida

ON PETITIONS FOR REHEARING

Before WIS DOM*, RONEY and HATCHETT,

Circuit Judges.

PER CURIAM:

If IS ORDERED that the petitions for

rehearing filed in the above entitled and

numbered cause be and the same are hereby

denied.

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ENTERED FOR THE COURT:

PAUL H. RONEY

ted States Circuit Judge

*Honorable John Minor Wisdom, U.S. Circuit

Judge for the Fifth Circuit, sitting by

designation.