Aрpellants Rogers, Fichman, and Gustke were convicted in the district court of conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. § 846 (1976). We affirm the conviction of each appellant.
I.
All three аppellants argue that the district court erred in denying their motion to dismiss the indictment because of government overreaching in violation of their due process rights. The arrests and convictions in this case arose out of the same Drug Enforcement Agency (DEA) operation upheld in
United States v. Savage,
At the close of the hearing on the motion to dismiss the indictment because of government overreaching, appellant Gustke and the government entered into a stipulation in which Gustke waived his right tо a jury trial and stipulated that he drove a camper vehicle, with a separate cab compartment, loaded with marijuana from the DEA warehouse to the point of arrest about two blocks away. The government agreed that the testimony at the hearing of DEA Agent George Andrew Auflick would comprise the government’s case-in-chief. Upon entering into the stipulation, Gustke moved to dismiss the indictment because the evidence against him was insufficient to sustain a verdict of guilt. The court denied the motion. Gustke appeals this ruling.
In reviewing a claim of insufficiency of the evidence, we must consider all of the evidence and draw all reаsonable inferences in favor of the government.
Glasser v. United States,
Agent Auflick’s testimony implicated Gustke in the conspiracy as follows. Au-flick testified that thе night before Gustke and the other appellants were arrested, he received a call from Jerald Huegel, the government’s confidential informant. Hue-gel told Auflick that he had that day gone with a coconsрirator named Villoch to a meeting at the house of an unindicted co-conspirator, Andrews, at which Gustke, Fichman, Rogers, Andrews, and another unindicted coconspirator, McKay, were present. Auflick testified thаt Huegel told him “that those persons were ready to purchase at that time and that he had to stall them and tell them that we didn’t work at nighttime and that we would meet them at 10:00 in the morning [the next day], which I did.” Record, vol. 2, at 54. From Auflick’s testimony, it is clear that all those who Huegel had said were present at the meeting were present at or near the warehouse the next day, when the “sale” of marijuana and subsequent arrests occurred.
Auflick аlso testified that when the “sale” was ready to be consummated, he asked Rogers and Fichman, the two buyers, whether they had all of the money. Fich-man replied that he did. Rogers replied that he had only half of his money but that he would send someone for the rest. At that point, Rogers told Andrews to go. Vil-loch gave Andrews his car keys and Andrews left in Villoch’s car. Andrews re
In addition to Agent Auflick’s testimony, Gustke stipulated to the following: “[A]fter thе truck [loaded with 800 pounds of marijuana] exited the warehouse with the door open, the warehouse closed and the back door of the truck closed and the defendant Gustke got into the cab of the truck and drove it for about two blocks until he was arrested.” Record, vol. 3, at 326. The truck was a camper vehicle with a separate cab compartment. Gustke sat in the cab compartment, separate from the marijuana stored in the rear of the truck.
We believe the district court was correct in concluding that a reasonably minded jury could have found beyond a reasonable doubt that Gustke was a knowing, voluntary participant in the conspiracy. One could reasonably infer that the bag Gustke brought to the warehouse contained a large amount of money, probably about $60,000. One could also reasonably infer that Rogеrs would not have trusted someone who did not know about the marijuana scheme to deliver $60,000 in a paper bag to a warehouse loaded with marijuana and then drive a truck loaded with 800 pounds of marijuana awаy from the warehouse. These two inferences, coupled with the evidence described above, including Huegel’s statements to Auflick about the meeting the night before — which were completely corroborated by the presence at the warehouse the next day of all those who Huegel said were at the meeting —
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lead to the almost inescapable conclusion that Gustke was a knowing participant in the сonspiracy. Regardless whether Gustke ever actually saw the money in the bag or the marijuana in the warehouse Or in the truck, it seems to us that it would be unreasonable to conclude that one as heavily involved in thе conspiracy as the evidence shows Gustke was did not know the purpose of the conspiracy.
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We conclude that a reasonable
AFFIRMED.
Notes
. We note that appellants make two assertions in this case not present in
Savage.
First, they point out that there was uncontradicted testimony that when they were wavering about buying the marijuana, the government, through its informant, lowered the price of the marijuana from $280 per pound to $275 per pound, offered to put them up in a hotel room, and offered to furnish them with women. Accepting the truth of this testimony, it still falls far short of the shocking and outrageous conduct necessary to amount to a due process violation.
Appellants also point out that a DEA agent testified that some marijuana under the DEA’s control may have left the DEA’s warehouse in the form of samples given to brokers and prospective purchasers. Appellants argue it is intolerable that the government would allow marijuana out on the streets in violation of the law. It is apparent, however, that if the DEA’s operation was to succeed, the agents had to conduct themselves as normal marijuana sellers so as not to arouse suspicion. Such conduct included distributing small samples of marijuana to potential buyers. This conduct is not even close to being outrageous and shocking. The appellants would have us believe that the government must forego confiscating huge amounts of illicit drug money and аrresting numerous persons involved in illegal drug smuggling because on occasion it must provide a handful of marijuana as a sample to prospective buyers. We find this argument without logical support. Thus, we reject it.
. We аre fully cognizant that Auflick’s testimony about the meeting the night before involved the out-of-court statements of the informant Huegel. We need not determine whether a hearsay objection should have been sustained bеcause none was forthcoming; thus, the evidence was admitted. We have considered the out-of-court nature of Huegel’s statements, however, in judging their probity. As noted in the text, Huegel’s statements were complеtely corroborated by the events transpiring the next day. Thus, the possibility that Huegel made up the story about the meeting is extremely low. We believe a reasonable jury could have given substantial weight to Huegel’s statеments. Therefore, we see no problem in considering them.
. We have carefully examined the cases in this circuit factually similar to the one at bar, including all those Gustke has cited to us. While some may be similar, each case turns on its own facts, and we have found no case inconsistent with our holding today. For example, in
United States v. Littrell,
In contrast to the case at bar, in
Littrell
a reasonable jury necessarily had to entertain a reasonable doubt whether the defendant was a knowing participant in the conspiracy. The dеfendant’s only involvement in the conspiracy
