United States v. Philip William Pace

B-117-18. More App. FBI. than obviously changed the situation point, suspect

radically after Yadaain became robbery, which Federal

in the Minnesota 8:00 up, at about photo after the line 11, 1983. on November

p.m.

III. Creightons argue that

Finally, the discovery limiting court erred in

the district court The district on remand.

available depose Creightons’ motion to

granted the and the infor

Anderson about search his course he had that affected

mation requested and field notes

action. His court denied The district

made available. and to reopen deposition

motions questions out

compel Anderson answer immunity qualified limits of the

side others, including John depose

issue and lim in Anderson Supreme Court

son. specific facts confront discovery to the

ited 6, 107 at 646 n.

ing Anderson. U.S. Generally, decisions n. 6. at 3042

S.Ct. discovery are com scope of

regarding the of the dis

mitted to the sound discretion Co., 840 Kartridg Pak

trict court. Cook Cir.1988). no We see court’s district of discretion

abuse Supreme Court’s

implementation

mandate. the district judgment of affirm the

We court. Mo., Brown, Springfield, R. Steven

appellant. Mo., Monroe, Springfield, E.

Richard appellee. America, Appellee, STATES

UNITED FAGG, ARNOLD, Before MAGILL, Judges. Circuit PACE, Appellant. Philip William ARNOLD, Judge. Circuit No. 89-1136WM. by a convicted Philip William Appeals, States Court the intent possessing cocaine jury of Eighth Circuit. assigns two errors it. to distribute challenges the District first appeal. Dec.

Submitted jury instructions handling of the Court’s 18, 1990. Dec. Decided initially instructions trial. Some delib- orally before omitted, given and then into the not sent began, but erations instructions. written the other room with 452 supposed

Another instruction that was possession but convicted of with intent the challenges be omitted not. Pace also to distribute. Pace was later sentenced to the District Court’s denial motion of his for years prison. ten one and month acquittal. He contends that his We review the denial of a motion enough with evidence to acquittal under a deferential standard.

prove beyond a reasonable doubt that he All the evidence must be possessed cocaine and intended to sell it. viewed the reverse, government. agree We because we most favorable to the This support record is insufficient to giving government Pace’s con- includes the the benefit alleged viction. We do not reach the errors of all reasonable inferences from that evi in how the was instructed. dence. 831 Springer, United States 781, (8th Cir.1987), 783-84 cert. de speeding nied, 938, 1117, 485 U.S. 108 S.Ct. early morning February hours of (1988). government’s L.Ed.2d The bur Mason, passenger, He and his Thomas den in prove beyond this case was to just Springfield, outside Missouri. possessed reasonable doubt that Pace license, produce Pace could not a driver’s cocaine and intended to it. distribute Unit (who and Mason had informed the Missouri Matra, ed States v. 841 F.2d Trooper he wagon’s State was the station Cir.1988). argues that the evidence owner) produce registra- could not the car’s possession of both his and his intent is being tion. After told that were on insufficient as a matter of law. The es way Chicago, their Trooper asked sence of his police Pace to come contention is that he did not back car. Pace name, address, helping transport volunteered his correct so- know he was number, security cial certainly caught and driver’s license driving While was a car computer number. check revealed that drugs, possess full of he did not them—in suspended, Pace’s license had been and recog the sense of that the law wagon. that Mason didn’t own station nizes—if he did not know what he had. Trooper assistance, called for and Likewise, if Pace did not know he was permission asked for to search the car. transport cocaine, helping he could not form; signed a written consent drug. have intended to distribute the sign refused to a form said it all but jury. We do not sit as Pace’s second It right gave to search the car and the State reweigh is not our task to the evidence and Trooper keys. When the other officer Rather, remake the verdict. we must de- arrived, huge the car was searched and a correctly termine if the District Court an- pounds ap- amount—almost 200 —of question: swered the threshold is there peared to be cocaine was found in several enough evidence in this record that could bags duffel and a suitcase. verdict, support guilty therefore Pace and Mason were arrested and tried upon jury weigh called all the evi- together. Both men trial. testified dence and come to a verdict? Glasser v. charged possessing Both men were States, 60, 80, United 315 U.S. 62 S.Ct. it, intending conspir- cocaine and to sell 469-70, (1942). 86 L.Ed. 680 The case ing to commit those crimes. At the end of becomes, then, against Pace a matter of case, government’s again before (and the evidence reasonable inferences deliberate, retired to Pace asked evidence) speaks from that to Pace’s acquit Court to because of insuffi- knowledge wagon’s the station cargo. cient evidence. Each time the District glean following We relevant facts grant Court refused to his motion. Pace study of the record. our Pace was claimed that he did not know about the cocaine, containing driving found a car almost 200 just and that Mason hired him to help kilogram of cocaine. The bricks of Chicago. Though drive the car to cocaine were in four closed containers: two acting contended he was out of fear for his life, bags in the convicted Mason of both duffel floorboard back seat, area, acquitted bag cargo crimes. conspiracy, a duffel and a Frol, part of That cargo area. suitcase Cir.1975). entirely con- almost wagon was the station covering. or by a horizontal shade cealed from evi- While inferences duffel, vinyl bag, a travel maroon defendant, specu- weigh against the dence put it seat. Mason in the back was reasonable, exam- does not. It is lation up, right before picked Pace car when he that Pace entered the back ple, to infer in Pace had been Angeles. Los they left get bag. in But without his duffel seat half. day a and a wagon for the station opened Pace or evidence that additional asleep in driving, he was wasn’t When he in Mason’s that was luggage examined van, with two A black the front seat. floorboard, merely conjec- it is back-seat it, described of whom Mason people in one pack- those to conclude he what ture knew Colombian, the station traveled with aas is, moreover, no ages There contained. At Angeles. way from Los wagon all the explored cargo that Pace ever evidence why Mason trip in asked point Pace one wagon, much less that of the station area them; trip with making the the van was luggage opened Mason’s examined or “it was none of him that Mason told there. Without evidence was stored that T. 2-141. business, it wasn’t his concern.” the black van did the individuals in that questions about didn’t ask more Pace suspicions— something arouse Pace’s that he didn’t tell van. Mason testified likely exposed themselves as somehow He luggage. told was in his what Pace or deed—their drug traffickers word car to taking the only that him establish that Pace presence does not mere Pace flying home. Chicago and would be in of criminals. he was the midst trip. Approxi- knew to earn for the $250 the van and trip, question Pace’s year this Likewise mately one before two cars additional evi- help him deliver answer: without employed Pace Mason’s Trooper Chicago. The State nature of the pointing Missouri to the criminal dence that speeding testified caught Pace prove who not that trip, exchange does this personal in- gave Pace correct trip this to see what refused formation, fidge- appeared nervous really about. during questioning. ty to the favorable Viewed in the most to draw prosecutor asked The is insufficient the evidence government, following inferenc- this evidence that Pace reasonable inference justify a First, of cocaine the sheer amount es. that driving car full of cocaine. a he was knew knowledge. Pace’s suggested involved Caves, v. is unlike States case This Second, of these the street value Cir.1989), where we F.2d 94-95 (estimated twelve and at between circum- plus other presence, held dollars) meant million fifteen officer, arresting apparent to the stances un- to an casually entrusted not be At for an arrest. probable cause created Finally, the ex- outsider. informed instance, events relevant time spent of time amount tended arrest and near- beyond far moved had discovered he had have meant that car against The case of trial. ly to the end luggage. inwas to a submitted not have been should facts, whether, these question The is a jury, because “reasonable-minded could be knowledge of the cocaine Pace’s doubt a reasonable entertained have must doubt to beyond a reasonable established proof of ...” government’s toas are unconvinced. person. We Noibi, intent. United States criminal proves beyond a The (empha- 1419, 1421 ongoing at the present that Pace doubt erred The Court original). District sis transporting this crime of acquittal. Pace’s motion granting unwittingly, commit helped, however even reversed, the cause judgment is prove, does not The evidence crime. with di- Court to the District help- remanded however, that Pace knew acquittal. judgment of to enter country. rections carry cocaine across ing

MAGILL, Judge, dissenting. knowingly possessed cocaine, (2) Circuit the intent to distribute it. United respectfully I dissent because I believe Shurn, (8th Cir.1988). that the with sufficient The first element can be satisfied with a support evidence to their verdict. showing possession. of constructive Con possession structive is defined as knowl I. edge presence plus control. Id. Under a.m., February at 12:45 Phil On law, Eighth Circuit constructive ip stopped by William Pace was a Missouri person “ownership, exists when a has do patrolman, Brown, state Officer Matt for minion or control over the it contraband speeding. 1:78-80.1 When neither self, premises or dominion over the passenger, Pace nor his Thomas John Ma which the contraband is concealed.” Unit son, produce to a were able valid driver’s Schubel, 952, (8th ed 912 F.2d 955 registration, license or vehicle the officer Cir.1990). prov Intent to distribute can be requested permission and received to by large en circumstantial evidence such as 1:82-84, search the car. Tr. 89. That 955; quantities drug. of a Id. at produced approximately search 195 Peters, 208, States v. 912 F.2d 211 purity ranging a of cocaine with from 81- Cir.1990) (88.34 grams of crack cocaine of 94% and a street value of million. $12-15 purity sufficient to infer intent to dis 85% 2:43, 50, Tr. 61. This cocaine was stored in tribute). packed 89 bricks which were into two presented, After all the evidence was bags duffle and two suitcases. Tr. 1:97- acquittal grounds Pace moved for on the approximately Each brick was two that no connection between himself and the thick, eight inches four inches wide had cocaine been shown. Tr. 3:15. The long. inches Tr. 1:92. There were words court district denied that motion. Id. On appeared written on the bricks which to be appeal, challenges Pace the denial of his Spanish bag names. duffle Id. One and motion, raising sufficiency the same of evi- floorboards, one suitcase were on the im argument. dence mediately pas the driver and behind front senger Tr. seats. 1:97. The other two II. bags cargo were in the area of the station immediately wagon agree behind the I majority backseat. with the that this court bags Tr. Even the 1:96. the must review the district court’s denial of shade, cargo by acquittal area were covered a Offi Pace's motion for under a defer- cer Brown testified that he could a specifically, see ential standard. More this portion bags evidence, small as he walked court must “view the including wagon. the station Tr. 1:112. None of the all reasonable may log- be inferences it, suitcases with the cocaine were locked. Tr. ically light drawn the most 1:92-95. Also in the backseat was Pace’s favorable to the Government.” United bag personal 781, which contained his Springer, effects States v. 784 added). (emphasis and toiletries. Tr. 1:101. There were no identifying papers any or of kind in majority stated, correctly As the has bag. Tr. 1:101. jury court must not act as a second jury Rather, The Pace 21 weigh convicted under U.S.C. the evidence anew. our task 841(a)(1) merely of cocaine with “any is to determine whether ra- § intent to distribute. In order to obtain this tional trier of fact could have found the conviction, government prove beyond the essential elements of the crime a beyond (1) a reasonable doubt that Pace Virginia, reasonable doubt.” Jackson v. typographical transcript page 1. Due error in volume one in references are to the actual number, transcript, page necessarily page numbers start at 1 and which is not num- then, go page upper right page. to 90 and when the number ber corner of each 91, again (Eg:, page ap- should read it starts at 81 and contin- a reference "second” confusion, 1:91). through pears ues on 125. To avoid all as Tr. that, going 2781, 2789, said to sell the car in 99 S.Ct. 443 U.S. trial, (1979) (emphasis original); Chicago. At testified L.Ed.2d States, telling 315 U.S. he did not recall the officer that v. United see Glasser (1942). It is not 86 L.Ed. 680 going Chicago 62 S.Ct. to sell the car. find that the court to necessary for this agreed 2:103. Pace testified that he every ruled out jury before Chicago help Mason drive the car to innocence; rather, hypothesis of reasonable going to leave the car at body of evi- “enough that the entire it is Airport. O’Hare the factfind- to convince be sufficient dence the evidence that The heard doubt of the defen- beyond a reasonable er story thought changed his Noibi, guilt.” United States dant’s trip. A purpose Therefore, (8th Cir.1986). 1419, 1422 thought could have that Pace was the district court must affirm this court could have in- lying. evidence, viewed “the unless lie to hide his knowl- ferred that Pace’s was Government, is such favorable to most trip. edge purpose of the real have a reasonably-minded jury must response also heard that as to the existence reasonable doubt identification, request for initial officer’s the crime elements of essential he Pace told the officer that did think Adkins, 842 charged.” United States registration. car Mason had the A that (citations omit- that jury could conclude Pace reasonable ted; original).. emphasis purpose car and knew more about the insufficient argues that there was Pace trip than he testified. of the later finding that support the evidence to jury’s pieces luggage of that the four he knew patrol Pace was the officer’s When cocaine. pounds of car contained 195 car, appeared he the officer testified that certainty rarely with juries can know Since Tr. 2:6-7. very and unsettled. nervous knows, knowledge must a defendant and that Pace seemed also said rambled through circumstantial evi- often be shown attempts to by the redi- unnerved officer’s Noibi, at dence. United car, Pace, the back to rect the conversation record, careful of the Upon a review 1421. Pace later testi- their destination. Id. that, in the viewing I believe while in he was not nervous fied that government, favorable to the light most car; Tr. simply cold. 2:98- he was patrol have found jury minded could reasonably jury have could believed 99. beyond a doubt guilty Pace Pace. A reasonable the officer or either intent with the of cocaine thought that Pace was could have jury it. distribute trying to hide nervous because speed- first When something. he did not have officer that ing, he told the only driving that he was maintained for the registration nor license a driver’s purpose delivering for the Mason think that Mason he did not that car and they arrived their and that once car At Tr. 1:83. registration either. had the destination, immediately they fly himself as identified point, Mason trip, 1:85. For Tr. back California. that he did car and admitted of the owner luggage single piece of brought a then Id. Mason registration. not have 1:85, Tr. personal contained effects. any proof of he did not have stated kept his toi- Mason, traveling partner, just he had explaining ownership, plas- in a change underwear letries Chicago route to car and was en bought backseat, next bag in the grocery-type tic himself as Mason identified it. Id. to sell jury bag. Tr. 1:101-102. Pace’s Angeles. When Los dealer from a car that, testimony in addition Pace’s heard by the officer questioned bags on the were bag, there two car, story that Mason’s Pace verified patrol Tr. 1:91. The in the backseat. the car. floorboards Chicago to sell going to they were of the suitcases pictures was shown denied that he Mason later Tr. 1:84-85. trips Angeles cocaine and four from Los to Detroit to the 198 that held Tr. 2:130. In in the car. 1:95-101. deliver a carload of cocaine. their location prior trips, drug always provided lords bags of co- proximity Given time, driving companion, Mason’s but this personal luggage and Pace’s own caine to they gave permission to choose his they going to return Pace’s claim that driving companion. Mason own Tr. 2:143. day, a reasonable within a to California they he also said that did not care whom that Pace knew that jury might conclude chose, they did threaten his new driv- nor personal bags not Mason’s the extra ing companion threatened Ma- as he knew were deliv- luggage and that himself, though Mason’s new son even ering of the suitcases addi- the contents driving the travelling companion would be delivering the car. tion to car with million of their $12-15 know Mason testified that Pace did not might have Tr. 2:144. A reasonable filled with cocaine. that the suitcases were stereotypi- accepted the existence of these However, also heard How- drug cal violent Colombian lords. story change over the course of Mason’s ever, might such a reasonable also point, Mason said that he the trial. At one Mason’s claim that have disbelieved going car in a car dealer to sell a drug lords were content to leave $12-15 that he was not Chicago; later said of a million in merchandise the hands car, jdst going to sell the that he was ignorant A reason- driver of its existence. Airport; dropping the car off at the O’Hare jury may have also disbelieved the able taking finally, he said that he was story, thereby raising entire further doubts point, said Detroit. At one car to testimony. any of Mason’s $1,000 getting paid to drive the that he was attorney raised the issue Chicago; changed later car to in weapons there no located the car. paid Mason said that he $500. amount to redirect, Tr. 1:121. Officer Brown testi- $1,3502 On every approximately for cocaine that, experi- training fied on his and based during Mason also testi- two weeks 1987. ence, wife, weapon of a indicated: he, in the absence his and his kids lived a fied that $300,000 home, yet Mason also admitted person the narcotics is ex- that the $8,000.3 only from 1987was that his income tremely point origin in secure his evidence, all a reason- Having heard operating in rela- his destination. He’s decided that Mason able could have security, competitors tive oblivious from jury could have lying. was A reasonable they I that seek who believe are the ones when he said that Pace disbelieved Mason protect They themselves from. do not to knowledge of the cocaine. robbed, had no See to don’t want to be want be Barbosa, themselves, they’re United States v. so when killed (guilty knowledge can forces, position where the other or the discrepancies in defen- inferred from conspiracy be participants other in the are statements). they usually dant’s unknown to them will be protect attempt armed and to them- that violent Colombian Mason testified selves. making drug- him into drug lords forced might Tr. 1:12-13. A reasonable have trips pay off his cocaine trafficking weapon any that the He testified that concluded absence debt.4 Tr. 2:123-25. car that the owner of the January February of he made the meant $35,- that he accumulated a that he used 1.5-2.0 ounces 4.Mason testified 2. Mason testified 000-40,000 every drug Tr. 2.T18. While this cocaine two weeks. his dealer in 1987. debt with ounce, $1,500-11,800 per he claims cost him drug he told lords that he could not When put usually paid $900 with cash debt, that he pay Mason claims threatened off Therefore, $1,350 is a con- credit. rest on transport his life and him to forced Mason estimate of the amount of cash servative them. Tr. 2:121-25. period. spent on cocaine in a two-week salary include his wife's as a This does not manager in a dentist’s office. really that if Pace believed that safety concluded in the confident was cocaine car, merely delivering a jury might have A reasonable bring have made certain his driver’s not have been that Mason could concluded license, purpose being since his sole knowing Pace was a unless that confident apparently drive the car. trip drug-trafficking. in the participant delivering a car to Pace also admitted to that Pace and Evidence May Chicago with Mason of 1987. Tr. mysterious by a were followed Mason there were no 2:107. testified ap- supposedly contained black van luggage in car nor was heavy items of much cocaine. times as proximately four being he aware of cocaine delivered 2:128, 130, 132. Mason testified Tr. However, trip. Tr. 2:104. during that followed him on his van had also the black testify the sum- jury heard Mason trips to De- drug-trafficking three previous user, heavy was a cocaine mer of 1987 he alleged drug troit. Tr. 2:130. violent every consuming ounces of cocaine 1.5-2.0 made that it this van and sure lords drove Tr. 2:118. Given the two weeks. lengths car always within six to seven cocaine Mason consumed on a amount of Tr. 2:133. Mason admit- Pace’s car. and the obvious effects of regular basis black him about that Pace asked ted drug, could infer that that he 2:141. Mason claimed van. Tr. cocaine of Mason’s addic- aware business. that it was none his told Pace during May trip. tion testi- might ques- have Id. knew Mason for almost two fied that he have settled for why Pace would tioned February drug-traf- prior to the years explanation, given inadequate such an testified that he ficking trip. 2:92. He Tr. thirty at them for least followed van landscaping work for Mason. Tr. did some large bags were two and that there hours knew He also testified that he 2:93. must have been which Pace in the backseat Tr. car business. 2:93. used about. curious Therefore, trip, May after during trip testified expensive lived an knew that Mason Springfield, Mis- Angeles, Los California house, pay someone else could afford souri, least six he and Mason heavy and had a cocaine garage, clean states. 2:95. in four different times jury could infer A reasonable addiction. van the black Mason testified Since money that the amount of that Pace knew than seven to no more about was “never lifestyle support to his was Mason needed away,” then it follows cars six by a than that made significantly more places also same black van car salesman. used that Mason and Pace times and at same jury might infer Finally, a reasonable Furthermore, a reasonable stopped. quantity sheer knowledge drug from the if the might infer that lords and from fact of the cocaine location supposed to ensure van were black agreed drive the car that Pace had cocaine, they then security of the v. United States trip. cross-country at all Mason and Pace very close to both Cir.1990) Barbosa, 1366, (9th F.2d 1368 906 during stop. A reasonable times quantity of (mere of substantial possession Mason, infer that might even support inference sufficient narcotics at the black van drug from the ate lords knowledge drugs); of had that defendant restaurants, ta- possibly at same same Walitwarangkul, v. 808 United States ble. (9th (large quanti- 1352, F.2d 1354 travelling may was be sufficient that he alone ty also testified of narcotics knowing possession); finding other of support license or his driver’s without Guzman, 446 F.2d 1137, v. United States forgot he his wallet because identification Cir.1971) (evidence possession of that even He claims 1139 at home. an to draw basis bring as a substantial a suitcase “serves remembered also see knowledge”); ... toiletries, bring his wal- inference forgot with Cordova-Larios, 907 v. jury might have United States A reasonable let. 40, (5th Cir.1990) (passenger 41-42 had hidden in a fake fuel tank and there no pounds knowing possession odor); O’Lone, 1158, of 120 of mari- Paez v. 772 F.2d belonged juana stored suitcases (3rd Cir.1985) (sufficient 1159-60 evidence driver); Battle, States v. 892 F.2d United passenger knowing possession (11th Cir.1990) (jury allowed to driving when he shared chores and a screw- reject prudent drug smuggler implying driver found on dashboard permit pilots ignorant to remain of mil- $1 that he had access to cocaine hidden in door drugs in cockpit). lion in stored Sutton, panel); United States v. 446 F.2d (9th Cir.1971) (sufficient presence may While Pace’s mere not be knowing by to show sole driver enough guilt, to establish his pounds marijuana of a rental car of ten Adams, 799 F.2d States v. tire). Cir.1986); found front Because the Stephenson v. United States (5th Cir.1973), presented with sufficient evidence to find we need question, pounds not answer that because the that Pace knew about the 195 cocaine, more evidence than I would affirm their conviction. presence. They mere heard the dis- crepancies story in Pace’s and the value of III. found; they police also heard a reasons, foregoing For the I believe the opinion implications officer’s on the of such majority holding errs the district drugs; they photo- amount of saw improperly court denied Pace’s motion for graphs of the cocaine-laden suitcases that acquittal. car; they the backseat of the heard story Mason’s incredible of how he became drug trafficking

involved and hired Pace keeping ignorant

to drive the car while cocaine;

of the 195 heard testify

the officer to Pace’s nervousness

just before the officer discovered the co-

caine; mysterious heard drug black van driven violent lords. America, UNITED STATES of did not jury’s verdict rest on Pace’s Appellee/Cross-Appellant, presence, presence rather on mere but particular under a set of circumstances. Adams, 799 F.2d at 672. United States MALBROUGH, Michael Allen Viewing all the evidence in the most Appellant/Cross-Appellee. government, favorable to the a reasonable 90-1062, Nos. 90-1180. jury could have found Pace had both know- ing possession and intent to distribute the Appeals, United States Court of pounds of cocaine found in the car he Eighth Circuit. Price, driving. See United States v. Aug. Submitted 1990. (5th Cir.1989)(sufficient knowing possession evidence for when de- Decided Dec. during questioning fendant was nervous prior discovery though of cocaine even view, plain

cocaine not in defendant’s fin-

gerprints not on cocaine and defendant did flee); attempt United States Rob- (1st Cir.1988) (suffi-

inson, 843 F.2d

cient evidence show crew member’s

knowing possession when amount of aboard,

drugs voyage fairly long, and rea- spent

son to believe member time crew captain even

Case Details

Case Name: United States v. Philip William Pace

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Dec 18, 1990

Citation: 922 F.2d 451

Docket Number: 89-1136WM

Court Abbreviation: 8th Cir.