                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-29-1997

United States v. Thomas
Precedential or Non-Precedential:

Docket 96-7476




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Recommended Citation
"United States v. Thomas" (1997). 1997 Decisions. Paper 114.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/114


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Filed May 29, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 96-7476

UNITED STATES OF AMERICA

v.

MELVIN MARVIN THOMAS,
Melvin Thomas, Appellant

On Appeal From the District Court
of the Virgin Islands, Division of St. Thomas
(D.C. Crim. No. 95-cr-00073-2)

Argued: April 7, 1997

Before: BECKER, ROTH, and WEIS, Circuit Judges.

(Filed May 29, 1997)

ALAN D. SMITH, ESQUIRE
(ARGUED)
Hodge & Francois
1340 Taarnederg Road
Charlotte Amalie, St. Thomas
U.S. Virgin Islands 00802

Attorney for Appellant
JAMES A. HURD, JR., ESQUIRE
United States Attorney

MARK PATTERSON, ESQUIRE
(ARGUED)
Assistant United States Attorney
5500 Veterans Drive
Federal Building & U.S. Courthouse
Suite 260
Charlotte Amalie, St. Thomas
U.S. Virgin Islands 00802-6924

Attorneys for Appellee

OPINION OF THE COURT

BECKER, Circuit Judge.

This is an appeal by Melvin Thomas from a judgment in
a criminal case following a jury verdict of guilty on the
charge of conspiracy to possess cocaine with intent to
distribute, 21 U.S.C. § 846.1 Because the evidence adduced
at trial was insufficient to support the verdict, we will reverse.2
_________________________________________________________________

1. Thomas was tried on a four-count indictment that also included
charges of possession of cocaine with intent to distribute, 21 U.S.C.
§ 841(a)(1); attempted importation of cocaine, 18 U.S.C. § 952(a); and
carrying a firearm during a drug trafficking crime, 18 U.S.C. § 924(c)(1).
However, he was acquitted of all but the conspiracy count.

2. In view of this disposition, we need not address the other points raised
on appeal. Principally, we do not reach Thomas' contention that the
court erred when it denied Thomas' request to instruct the jury on
character evidence. Thomas has also challenged the refusal of the
district court to exclude from evidence the telephone number retrieved
from the pager that he had on his person at the time of his arrest,
alleging that it should have been suppressed because of an unlawful
search and seizure. We believe that the seizure falls within an exception
to the warrant requirement as a lawful search incident to arrest. Again,
we need not formally decide that issue because, even with the inclusion
of that material, the evidence is insufficient to sustain the conviction.

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I.

On the morning of February 10, 1995, the United States
Customs Service at the Cyril E. King airport on St. Thomas
seized twenty-four kilograms of cocaine from a suitcase
checked to Atlanta, Georgia. The officials identified the
owner of the bag as Jennifer Lynch, whose plane had
already departed for Atlanta. Customs officials on St.
Thomas notified officials in Atlanta, and they arrested
Lynch pursuant to a warrant when she arrived there. Lynch
agreed to cooperate. She informed the agents that one Allan
Petersen had directed her to take the suitcase carrying the
cocaine to Atlanta, check into a room at the Atlanta Airport
Days Inn, call him at a Virgin Islands telephone number,
leave the bag with the cocaine in the room, return the key
to the front desk in an envelope for "Melvin Smith" or
"Cousin Melvin Smith," leave the Days Inn, check into
another hotel for the night, and return to St. Thomas the
following day.

Along with agents, Lynch checked into room 510 of the
Airport Days Inn. Monitored by the agents, Lynch placed a
phone call to the designated telephone number. She
informed the agents that she had spoken to Petersen and
given him the hotel room number. An envelope containing
the room key was then left at the front desk for "Cousin
Melvin Smith." Customs officials also left an empty suitcase
in room 510 and set up surveillance directly across the hall
in room 509.

In due course, Thomas entered room 510. The officers
observed him and arrested him when he exited the room a
few minutes later. They took from Thomas a 9mm pistol
registered to him, a pager, a cellular phone, a Virgin
Islands driver's license, the envelope with "Cousin Melvin
Smith" written on it, and the room key. They retrieved from
the pager the same telephone number at which Lynch had
called Petersen from the hotel room. Thomas agreed to
answer questions. He told the agents that he went to the
room because a person named Cliff had offered him
$500.00 to check on a bag at the hotel, but that he knew
nothing about a cocaine deal. Petersen's phone records
showed several calls to the pager and cellular phone carried

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by Thomas on the day of his arrest, and to Thomas' home
phone.

Thomas was tried in the District Court of the Virgin
Islands, together with Petersen. Lynch, who had pled guilty
to the conspiracy count prior to trial, testified, on behalf of
the government, that Petersen had offered to pay her to
take the cocaine to Atlanta, relating the facts described
above. She also testified that she did not know Thomas,
and had not conspired with him to possess cocaine with
intent to distribute. Petersen took the stand in his own
defense. He too testified that he did not know Thomas, and
that he had not conspired with him to possess cocaine with
intent to distribute.

Thomas then took the stand, and testified as follows. On
the morning of his arrest, he received a phone call from
"Cliff," whom he did not know. Cliff informed Thomas that
he had obtained Thomas' telephone number from a mutual
friend. Cliff asked Thomas if he would do him a favor, and
stated that he would call later that day. Later that day,
Thomas received a call from his home on his pager. He
returned the call to his home and was advised that Cliff
was trying to reach him. He told the party answering to
have Cliff contact him on his cellular phone. Shortly
thereafter, his testimony continued, he received a call from
Cliff who asked him to go to the Airport Days Inn, ask the
front desk clerk for a key left for "Cousin Melvin Smith," go
to the room, open the door, close the door without locking
it, and return the key to the front desk. Finally, Thomas
testified that he did not know either Lynch or Petersen, that
he had not conspired with them to possess cocaine with
intent to distribute, and that he had no knowledge of any
such scheme or conspiracy.

II.

In reviewing Thomas' contention that the evidence
presented at trial was insufficient to sustain his conspiracy
conviction, we must determine whether "there is
substantial evidence, when viewed in the light most
favorable to the government, to support the jury's verdict."
Government of the Virgin Islands v. Isaac, 50 F.3d 1175,

                    4
1179 (3d Cir. 1995). The elements of a conspiracy may be
proven entirely by circumstantial evidence, see United
States v. Kapp, 781 F.2d 1008, 1010 (3d Cir. 1986), but
each element must be proven beyond a reasonable doubt,
United States v. Samuels, 741 F.2d 570, 573 (3d Cir. 1984).

There can be no doubt that, when Thomas pursued his
errand at the Days Inn, he knew that he was somehow
involved in an illicit activity. More, however, is required to
uphold a criminal conviction for conspiracy. Specifically,
one of the elements that must be proven by the government
beyond a reasonable doubt in a conspiracy case is that the
"alleged conspirators shared a `unity of purpose,' the intent
to achieve a common goal, and an agreement to work
together toward the goal." United States v. Wexler, 838 F.2d
88, 90-91 (3d Cir. 1988) (citing United States v. Kates, 508
F.2d 308, 310-11 (3d Cir. 1975)). We have explained that,
in order to sustain a conspiracy conviction, the government
must put forth " `evidence tending to prove that defendant
entered into an agreement and knew that the agreement
had the specific unlawful purpose charged in the
indictment.' " Id. at 91 (quoting United States v. Scanzello,
832 F.2d 18, 20 (3d Cir. 1987)). While Thomas concedes
that there is evidence tending to show that he entered into
some kind of agreement, he contends that the evidence
presented at trial is insufficient to prove beyond a
reasonable doubt the essential element that he knew that
the purpose of the agreement was the specific unlawful
purpose charged in the indictment, i.e., the possession of a
controlled substance with intent to distribute. We view the
evidence in the light most favorable to the government, but
are nonetheless constrained to agree with Thomas.

There is no evidence that Thomas had any prior
relationship with Lynch or Petersen, or even knew them.
Lynch and Petersen specifically denied knowing Thomas.
Moreover, the record does not show anything about the
substance of the calls made to Thomas' home, to his
cellular phone, or to his pager. Indeed, there was no
evidence, apart from the fact that several phone calls were
made from Petersen's phone to Thomas' home, cellular
phone, and pager on the date of his arrest, that Thomas
ever spoke with either Lynch or Petersen on February 10 or

                    5
any time before or after that date. Nor did the government's
evidence controvert what Thomas told the agents following
his arrest or what he testified to about his reasons for going
to the Days Inn.

The government's case depends upon the drawing of an
inference from the fact and the timing of the calls made
from Petersen's phone that Thomas in fact spoke to
Petersen several times on February 10, 1995 and was told
that drugs were in the bag at the Days Inn. Even assuming
that it is permissible to infer from the evidence that
Petersen was "Cliff" and that Thomas spoke to him, which
is doubtful, there was no evidence concerning the
substance of the phone calls. It is, therefore, speculative to
conclude that Thomas knew that drugs were involved. Our
conspiracy case law forbids the upholding of a conviction
on the basis of such speculation.

In Wexler, supra, for example, where we reversed the
defendant Wexler's conviction for conspiracy to distribute
hashish, we held that the "inferences rising `from keeping
bad company' are not enough to convict a defendant for
conspiracy." Id. at 91 (quoting United States v. Cooper, 567
F.2d 252, 254-55 (3d Cir. 1977)). We noted that there was
ample circumstantial evidence from which the jury could
have concluded that Wexler was involved in a conspiracy to
transport some kind of contraband in a Ryder truck: he
drove a car in a manner that suggested that he was a
lookout for the truck movement; a fictitiously obtained CB
radio was in the car he drove when he was arrested; and he
made a gesture consistent with signaling one of the
conspirators and spoke with another several times during
the course of the operation. Id. But what was missing, we
found, "was any evidence that Wexler knew that a
controlled substance was couched behind the doors of the
Ryder truck. That knowledge is an essential element of the
conspiracy charged. Without it the conviction must fail." Id.
We explained that:

[i]t is more likely than not that Wexler suspected, if not
actually knew, that some form of contraband was
involved in the elaborate secretive arrangements for
transport in which he participated. But these
permissible inferences do not support a holding that

                    6
the government met its burden to prove beyond a
reasonable doubt that Wexler knew this was a
conspiracy to transport hashish or even another
controlled substance. The evidence is just as
consistent, for example, with a conspiracy to transport
stolen goods, an entirely different crime.

Id. at 92.

Similarly, in United States v. Terselich, 885 F.2d 1094 (3d
Cir. 1989), the defendant was convicted of possession of
cocaine with intent to distribute and conspiracy to possess
cocaine with intent to distribute. Terselich was a passenger
in car that was pulled over on I-95 by the Delaware State
Police. Cocaine was discovered in a secret compartment in
the trunk of the car. We reversed the convictions for
insufficiency of the evidence, reasoning that there was less
evidence presented in that case than in Wexler "from which
the jury could have inferred that Terselich knew of a
conspiracy and that its object was to transport the illegal
drugs." Id. at 1098. More specifically, we pointed out that
the evidence that Terselich shared driving responsibilities
and lodging with the driver of the car and placed his
luggage in the trunk of the car along with the fact that
Terselich appeared nervous when he was stopped was not
enough to support the inference that Terselich knew that
there was cocaine in the secret compartment in the trunk.
Id.

Based on this case law, we conclude that, as there is no
evidence from which a jury could permissibly infer that
Thomas knew that the object of the conspiracy was to
possess cocaine with the intent to distribute, the evidence
cannot support Thomas' conspiracy conviction. We will,
therefore, reverse the judgment and direct the district court
to enter a judgment of acquittal.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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