Professional Documents
Culture Documents
Unpublished
Unpublished
No. 14-4167
Appeal from the United States District Court for the District of
Maryland, at Baltimore.
James K. Bredar, District Judge.
(1:13-cr-00012-JKB-15)
Argued:
Before TRAXLER,
Judges.
Chief
Judge,
Decided:
and
MOTZ
and
HARRIS,
Circuit
PER CURIAM:
A jury convicted appellant Charles Michael Thomson of one
count of conspiracy to distribute and possess with intent to
distribute 100 kilograms or more but less than 1000 kilograms of
marijuana, in violation of 21 U.S.C. 846.
37
months
in
prison.
On
appeal,
He was sentenced to
Thomson
contends
that
the
(2)
issuing
willful
blindness
instruction,
(3)
We affirm.
I.
This
case
organization
arises
headed
out
by
of
Kerem
Dayi.
marijuana
Dayi
trafficking
operated
the
his
coconspirators
obtained
marijuana
from
Dayi
California,
the
in
summer
Nebraska
large
and
and
amounts
of
fall
West
of
Virginia
either
2012,
law
enforcement
stopped
marijuana
or
vehicles
cash. *
In
connection
with
the
ensuing
investigation,
officers
placed
surveillance
surveillance,
Thomson
of
the
was
seen
Krush
warehouse.
delivering
two
During
loads
of
Both
Anderson directed
Thomson to the back of the warehouse, which was out of the sight
of the surveillance officers.
Thomson left the warehouse and drove in the far right lane at
exactly 51 miles an hour to a Holiday Inn north of Philadelphia,
Pennsylvania, where he stayed for several nights.
On December 11, Thomson drove directly to the back of the
warehouse, but this time he could be seen by the surveillance
officers.
West Virginia officer stopped an SUV with New Jersey tags being
driven by Gabriel Gonzalez and seized a small amount of
marijuana and four vacuum-sealed packages containing $121,600 in
cash. Both men were linked to Dayi and the Krush warehouse.
Approximately 30
January
against
Dayi,
conspiracy
2013,
the
Anderson,
to
grand
jury
Thomson,
distribute
and
returned
and
an
several
possess
with
indictment
others,
the
intent
for
to
in
the
fall
of
other
2013.
Bergal
involved,
among
marijuana
deliveries
convicted
of
the
charged
convicted
of
the
lesser-included
to
things,
the
in
Krush
and
the
Hadziefejzovi
receipt
warehouse,
conspiracy
offense.
offense
of
of
and
were
Thomsons
they
Thomson
conspiracy
were
was
to
coconspirators
Kenny
Eng,
Robert
Glickman,
and
Neil
Wylie
as
well
as
that
of
over
20
law
enforcement
officers.
Eng was a childhood friend of Dayi.
On April 4, 2012,
relationship,
parted
ways
shortly
thereafter.
Among
other
As a result, Dayi
ran
not
an
far
office
from
and
San
warehouse
Francisco,
in
Walnut
for
the
Creek,
purpose
of
marijuana
shipments
at
faster
pace,
however,
Wylie
deliveries
along
way,
5
stop
at
weigh
stations,
and
limit
the
increased
amount
his
of
time
delivery
time
he
was
and
driving
his
--
risk.
all
Lewis
of
which
and
Peter
J.A. 1582.
J.A. 1583.
in
a
the
fall
former
of
2012,
acquaintance
marijuana in California.
Wylie
who
made
grew
and
contact
with
distributed
J.A. 1595.
he had a secure way that they had already been using for quite
a while that he wanted to start putting his own product on
instead of product for other people.
J.A. 1598.
Anderson also
J.A. 1682.
He said
it was a guaranteed way that they had used for a long time.
J.A. 1601.
J.A. 1602.
Andersons
double
shrink
wrapping
the
box
in
plastic,
putting
the
boxes into a bigger box, wrapping the bigger box with black
roofing paper to mask the smell, and hiding the boxes in the
secure storage space of Thomsons trailer, behind a vehicle that
was transported as cover in the event Anderson was stopped by
law enforcement along the way.
J.A. 1602.
custom-built
it.
Anderson
and
one
of
Andersons
prior
At
this meeting, Anderson assured Dayi that his driver had already
successfully defeated a drug-dog sniff during a traffic stop by
using his wrapping method.
In November 2012, Wylie and Anderson met and packed the 16
boxes with marijuana, half of which were destined for Krush in
Maryland
and
Philadelphia.
half
When
for
one
Thomson
of
arrived
7
Andersons
to
pick
customers
up
the
in
loaded
Wylie that Thomson kind of liked his privacy and didnt want
to meet a bunch of people.
J.A. 1618.
address.
Wylie
did
not
recall
seeing
vehicle
in
Thomsons trailer at the time, but Anderson had told Wylie that
Thomson planned to take a side trip to pick up a [classic]
truck
he
was
looking
to
purchase
because
he
didnt
Based
upon
his
experience,
Wylie
testified
like
J.A.
that
if
J.A. 1700.
testified
that
Anderson
told
him
that
Thomson
J.A. 1686.
also J.A. 1655 ([Y]ou wouldnt get paid that if you werent
delivering something).
Thomsons December delivery consisted of another 400 pounds
of marijuana that Wylie and Anderson had packed for shipment to
Maryland and Philadelphia.
Thomsons
truck
back
to
California
with
the
proceeds
However,
the truck and trailer were seized before Anderson could do so.
According to Wylie, the price of the marijuana that was
shipped from California to Maryland ranged from $2200 per pound
to
$3400
per
pound.
Thus
the
evidence
overwhelmingly
Glickman was
when
December
Thomson
delivery
confirmed
came
to
Wylies
to
get
the
warehouse
ride
testimony
that
to
the
the
the
day
after
airport.
deliveries
the
Glickman
for
Krush
the
remainder
was
destined
for
Philadelphia
customers.
Dayi told Glickman that he paid the driver $200 per pound, or
about
$50,000,
for
each
delivery.
Glickman
testified
that
J.A. 1208.
to
resided).
California,
According
commercially
to
to
transport
Philadelphia,
Thomson,
a
car
Pennsylvania,
he
from
in
was
Los
already
Angeles,
November
2013,
some
Maryland.
boxes
on
J.A. 2879.
Thomsons
trailer,
for
delivery
to
had some harebrained scheme going on, J.A. 2861, but he denied
10
He testified that
that
Anderson
had
all
kinds
of
purses
and
shoes,
but
J.A. 2879.
to
Anderson,
because
Anderson
had
helped
him
find
half-price,
and
because
he
was
coincidentally
According to Thomson:
J.A. 2882.
Thomson
J.A. 2883.
opened the door to the trailer for Anderson to unload the boxes,
but again did not assist.
He could not
not
recall
the
exact
amount
12
of
the
payment
He also
that
he
regard
Anderson
to
hired
the
December
him
to
haul
delivery,
a
Lexus
Thomson
testified
vehicle
from
San
J.A.
Thomson agreed, but again did not assist with the loading
Thomson testified
not
arrived,
the
boxes.
they
went
Thomson
into
the
testified
trailer
that
where
J.A. 2893.
he
when
was
Anderson
ripping
Thomson testified
J.A. 2893.
he testified that his wife had arranged a flight home for him to
Minnesota because they had a month and a half or so to pack and
13
J.A. 2894.
He testified
J.A. 2895.
to
have
this
unknown
owner
give
the
keys
to
Anderson.
he
had
such
registration,
applicable
laws
would
have
he
could
mistakenly
legally
believed
Although
Thomson
business
by
business
markings
trailer
were
he
drive.
did
claimed
internet
to
listings
on
seized,
his
not
need
perform
and
truck.
law
Thomson
such
his
word
testified
a
that
registration.
legitimate
of
he
mouth,
trucking
he
had
no
When
Thomsons
truck
and
enforcement
officers
found
no
14
to
prove
that
he
knowingly
participated
in
the
We disagree.
verdict
if
there
is
substantial
evidence,
viewed
in
the
Id.
could
conclusion
accept
of
guilt
as
adequate
beyond
and
sufficient
reasonable
to
doubt.
support
Id.
The
also remain mindful that the jury, not the reviewing court,
weighs
the
credibility
of
the
evidence
F.3d
129,
137
(4th
Cir.
2013)
omitted).
15
and
resolves
any
quotation
marks
that
violated
21
U.S.C.
841(a)(1);
(2)
that
the
knowingly
conspiracy.
and
voluntarily
participated
in
the
can
prove
the
existence
of
conspiracy
by
that
[t]he
government
can
satisfy
Burgos, 94
It is well
the
knowledge
the
conspiracy
purposely
closing
Cir.
2006)
or
that
he
was
willfully
his
eyes
to
avoid
knowing
blind
what
to
was
it
by
taking
alteration,
citation omitted).
16
quotation
marks,
and
knowingly
and
voluntarily
participated
in
the
Krush
government
presented
overwhelming
evidence
of
the
was
grower
and
supplier
of
marijuana
in
California whom both Wylie and Thomson had known for many years.
The
evidence
established
that
Anderson
assisted
Thomson
in
to
be
legitimate
commercial
Although Thomson
carrier,
he
did
not
stopped
by
the
police.
Thomson
required
Anderson
to
travel
across the country to meet him on the other side to take receipt
of the boxes.
after dark, waiting at a rest area for hours on the second trip
instead
of
going
straight
to
the
warehouse,
yet
was
absent
and experience that the drivers would be made aware that they
were carrying marijuana because it would encourage the driver to
exercise
additional
Glickman
noted,
care
not
and
knowing
judgment
could
during
cause
the
more
trip.
As
trouble
than
Wylie
In other
words, Thomson claimed that Dayi, Wylie, and Anderson sent him
off across the country on two separate occasions in possession
of hundreds of pounds of marijuana worth hundreds of thousands
of
dollars
--
and
for
which
they
had
not
yet
been
paid
--
which the jury could have concluded that Thomson was simply not
being truthful about these matters - a determination that is
solely within its province.
that
he
because
only
he
made
had
the
first
already
been
trip
hired
for
to
Anderson
transport
to
a
him, the publication from which he was hired, the make and model
of the vehicle that he transported, the exact amount that he was
paid for delivering the vehicle, or the shopping mall where he
delivered the vehicle.
the vehicle to a third party based upon the word of the unnamed
person
who
hired
him.
Yet,
Thomson
acknowledged
that
he
the Krush warehouse because he did not want to deliver his load
to someone he did not know.
Thomson
second
also
trip,
he
testified
left
his
that,
truck
at
the
and
conclusion
trailer
at
of
the
his
Krush
Thomson
at
the
very
least,
establish
that
Thomson
around
unlawfulness
Either
him,
of
his
circumstance
conspiracy.
and
therefore
willfully
actions.
McIver,
establishes
Appellants
Id. at 564.
20
470
blind
F.3d
at
knowledge
to
the
563-64.
of
the
III.
Thomson next contends that the district court abused its
discretion by giving the jury the willful-blindness instruction.
It is well established that where a defendant asserts that
he did not have the requisite mens rea to meet the elements of
the crime, as Thomson did in this case, but evidence supports
an
inference
of
deliberate
ignorance,
F.3d
176,
omitted).
willful
187
(4th
Although
blindness
appropriate
when
Cir.
2013)
caution
must
instruction,
the
evidence
willful
(internal
be
blindness
quotation
exercised
id.,
supports
the
an
in
marks
giving
instruction
inference
that
a
is
a
participating
in
criminal
conduct
and
he
purposefully
United
States v. Jinwright, 683 F.3d 471, 479 (4th Cir. 2012) (internal
quotation
marks
omitted).
We
review
the
district
courts
Id. at 478.
deliberate.
Francisco
Thomson
area
in
traveled
order
to
from
San
allow
Diego
Anderson
to
the
San
person
he
trailer,
which
the
jury
could
easily
have
inferred
was
the boxes on the trailer for the first trip east, Thomson left
the
premises
conspicuously
to
attend
absent
an
when
AA
meeting.
his
Thomson
unusually
was
wrapped
cargo
also
was
And while
third
person
at
the
request
of
the
shipper,
he
required
meet
Thomson
at
the
Krush
warehouse
and
unload
the
same
boxes.
As the district court observed, Thomsons act of attending
the AA meeting sounds like the sort of conduct that a jury
could conclude, not necessarily, but could conclude was in the
nature of that averting of the eyes.
Thomsons
notable
absence
on
the
other
J.A. 2919.
end
of
the
So too was
delivery.
easily
have
viewed
as
support[ing]
22
an
inference
that
the part of the district court when it instructed the jury that
it could find the requisite knowledge based on Thomsons willful
blindness to the illegality of his actions.
IV.
Thomsons next claim is that the district court erred when
it allowed into evidence certain testimony given by Glickman and
Wylie.
abuse of discretion.
United States v.
the
hearsay
coconspirator
rule
during
for
and
statements
in
made
furtherance
by
of
the
defendants
conspiracy.
(iii)
the
statement
was
made
23
in
the
course
of,
and
in
A statement by a co-conspirator
even
it
is
susceptible
of
alternative
for
conspiracy.
concluding
that
Id. at 444.
it
was
designed
to
further
the
touches on, but does not further, the purposes of the conspiracy
does not constitute a statement in furtherance of a conspiracy.
Pratt, 239 F.3d at 643.
B.
Thomson
contends
the
district
court
erred
in
admitting
Glickmans testimony that Dayi told him Thomson was paid $200
per
pound,
or
approximately
$50,000
load,
to
haul
the
We are unpersuaded.
advisor
to
Dayi
business operations.
in
both
his
legitimate
and
illegitimate
had
been
steadily
increasing
during
2012.
This
transporting
large
quantities
of
marijuana
for
the
Krush
that
Thomson
had
successfully
defeated
drug-dog
sniff in the past using their wrapping method and that Thomson
was paid $40,000 per trip for safely transporting the marijuana.
For the same reasons set forth above, Wylies testimony
about
the
cost
of
transporting
in
the
marijuana
had
marijuana
for
guaranteed
Dayi
was
marijuana
was
admissible
the
means
as
primary
likewise
25
serving
safely
transporting
admissible
under
the
Rule
801(d)(2)(E).
concerned
While
Thomsons
the
substance
successful
of
Andersons
transportation
statement
activity
in
the
Wylie
and
Dayi
and
further
its
discretion
when
their
mutual
goal
of
safely
overruled
Thomsons
alternative
value
of
which
clearly
outweighed
any
possible
prejudicial effect.
C.
Thomson next contends that the district court abused its
discretion
when
it
allowed
Wylie
to
give
opinion
testimony,
was
transporting
marijuana
because
you
dont
get
paid
$40,000 if you dont know, J.A. 1775, and that Thomsons plan
was to haul a classic car while transporting marijuana as cover
in case he was stopped by the police.
We disagree.
of
the
witness,
and
26
helpful
to
clear
specialized
knowledge
within
the
scope
of
Rule
702.
United States v. Offill, 666 F.3d 168, 177 (4th Cir. 2011).
Rejecting the impractical notion that lay persons be required
to testify only to pure facts when relating their knowledge of
an incident, the rule allows testimony based on the persons
reasoning
familiar
and
in
opinions
every
day
about
witnessed
life.
Id.
events,
such
[U]nlike
as
the
are
expert
major
marijuana
supplier
Id.
to
the
Krush
conspiracy,
In
And
boxes
testimony
that
were
placed
that
Thomson
had
in
to
Thomsons
have
trailer.
known
that
Wylies
he
was
the
form
of
opinions,
fell
well
within
the
knowledge
he
and
his
personal
perceptions
of
the
events
that
United States, 164 U.S. 492 (1896), the commonly termed Allen
charge is a supplemental instruction given by a trial court when
the jury has reached an impasse in its deliberations and is
unable to reach a consensus.
United
marks
omitted).
The
crux
of
our
Allen
charge
And,
(4th Cir. 1992); see Renico v. Lett, 559 U.S. 766, 774 (2010).
In this case, the jury, after three weeks of trial and ten
hours of deliberation, sent a note to the district court which
read as follows:
was
the
involved
J.A. 3490
of
the
question
of
deadlock
a
or
particular
whether
the
defendants
the
district
court
partial
verdict
for
the
two
The
Thomsons
charged offense.
codefendants
were
convicted
of
the
Rule
of
Criminal
Procedure
31(b)(1),
and/or
its
failure
to
We disagree.
they
indicate
be
that
allowed
they
to
were
hopelessly
partial
verdict
deadlocked.
or
They
even
sought
3490.
instructions.
In
such
cases,
[w]e
regularly
uphold
Allen
AFFIRMED
30