Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit

2-24-2009

USA v. Dowe Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3188

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IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

NO. 06-3188

UNITED STATES OF AMERICA

v.

ELROY DOWE, Appellant

On Appeal From the United States District Court For the District of the Virgin Islands (D.C. Crim. Action No. 04-cr-00005-3) District Judge: Honorable James T. Giles

Argued December 9, 2008

BEFORE: FISHER, JORDAN and STAPLETON, Circuit Judges

(Opinion Filed: February 24, 2009)

Jorge E. Rivera-Ortiz (Argued) P.O. Box 1845 Manati, PR 00674 Attorney for Appellant David E. Hollar (Argued) U.S. Department of Justice Appellate Section 950 Pennsylvania Avenue, N.W. Washington, DC 20530 and Cynthia Stone U.S. Department of Justice Criminal Division Room 700 1301 New York Avenue, N.W. Washington, DC 20005 Attorneys for Appellee

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Appellant Elroy Dowe was convicted of participating in conspiracies to import and

distribute cocaine. He was sentenced to a prison term of 120 months, supervised release

of five years, and a $200 special monetary assessment. This appeal followed. We will

affirm.

I. Sufficiency of the Evidence

Dowe makes a number of arguments which he regards as supportive of his

contention that the evidence was insufficient to support the jury’s verdict that he was

guilty of conspiring with Craig Hendricks and others to import and distribute controlled

substances. First, Dowe’s over-arching argument is that while the government showed

2 Hendricks to be a substantial drug dealer, it failed to prove that Dowe was anything other

than a “car wash boy” for Hendricks. While it is true that Dowe engaged in manual labor

at Hendricks’ home and marina, Dowe’s intercepted telephone conversations together

with the law enforcement surveillance provided ample evidence from which a rational

jury could conclude beyond a reasonable doubt that Dowe knowingly and willfully agreed

to participate in schemes to import and distribute cocaine for profit. A few examples

suffice to make this point.

On January 30, 2003, Rivera, an undercover informant, received instructions from

DEA Agent Tokarz to set up a five to ten kilogram cocaine transaction. In order to do so,

he called Dowe and told him he needed “eight.” App. at 266-68. The next day, Dowe

and Rivera spoke again, with Dowe confirming, “You say you want that eight right?”

App. at 269-70. On February 7, 2003, Agent Tokarz gave Rivera $10,000 for a down

payment on the cocaine. Rivera then met with Dowe and Hendricks in front of the Tutu

Park Mall Kmart for ten minutes and then went to Hendricks’ home. When Rivera next

met with Agent Tokarz, he no longer had the money. On February 17, 2003, Rivera and

Dowe again spoke on the phone. Dowe informed Rivera that the “man might be getting

something later,” and “they’re going out” so Rivera should be prepared to “go to the

bank” and then “come over here.” App. at 272-77. Dowe was more than merely present

at this drug transaction; his phone calls establish that he was well aware of what was

going on and was actively assisting Hendricks’ drug conspiracy.

3 On March 1, 2003, Dowe prepared Hendricks’ boat for a trip to Tortola which the

evidence indicated was a source of Hendricks’ drugs. Phone calls that day showed that

Dowe was watching Hendricks from shore, presumably to protect and assist him if

needed. When Hendricks stopped and idled the boat before coming ashore, Dowe called

both Hendricks and an associate of his to make sure things were safe and that the run had

not been put “on standby.”

On still other occasions, telephone tapes found Dowe seeking information

important to Hendricks’ operation and passing on information to Hendricks and his

associates regarding law enforcement activity.

Dowe next argues that the jury could not have believed him guilty of conspiracy

beyond a reasonable doubt because it answered “none” in response to a supplemental

verdict sheet inquiring as to the amount of controlled substances Dowe “knew in fact,

and/or . . . reasonably foresaw” being involved in the two conspiracies. These findings

came to be made because of an unusual, bifurcated trial approach adopted by the District

Court. They are not, however, inconsistent with Dowe’s conviction on Counts I and XI in

the indictment, and the District Court’s approach did not in any way prejudice Dowe.

Following all of the evidence, the District Court explained to the jury all of the

elements that the government would have to prove beyond a reasonable doubt to warrant

convictions on the conspiracy charges. It severed for subsequent consideration, however,

the issue of whether the conspiracies involved five kilograms or more of cocaine and

4 instructed the jury that it need only find that the conspiracies involved a “detectable

amount” of cocaine in order to find Dowe guilty.

After the jury found Dowe “guilty” on Counts I and XI, the District Court did not

discharge the jury. Instead, it told the jurors that they would now be asked to resume

deliberations and fill out a supplemental verdict sheet inquiring as to the amount of

cocaine each of the four defendants convicted of Counts I and XI “knew in fact, and/or . .

. reasonably foresaw” being involved in the conspiracies. The jury was instructed that it

must apply a beyond a reasonable doubt standard and unanimously agree on its answers.

With respect to defendants Hendricks and Fleming, in the context of both Counts I and

XI, the jury checked “Yes” next to the line “Five (5) kilograms or more of cocaine.”

With respect to Dowe, in the context of both of those counts, the jury checked “No” for

all possible responses, including the response for “Less than 500 grams of cocaine.”

When a drug conspiracy is alleged, the quantity involved is offense-specific, rather

than defendant-specific. That is, the jury must determine “the drug type and quantity

element as to the conspiracy as a whole, and not the drug type and quantity attributable to

each co-conspirator.” United States v. Phillips,

(3d Cir. 2003), vacated

and remanded on Booker grounds sub nom. Barbour v. United States,

(2005); see also United States v. Stiger,

(10th Cir. 2005) (collecting

cases). It is only at the sentencing phase that a finding needs to be made about the

responsibility of individual conspirators. That finding is ordinarily made by the judge

5 based upon a preponderance of the evidence. See Phillips,

.

Given that the combined total amount of controlled substance found on the

supplemental verdict sheet for all defendants found guilty on Counts I and XI exceeds

five kilograms in each instance, it is clear that the jury found each of those defendants

guilty beyond a reasonable doubt of participating in conspiracies involving more than five

kilograms. Moreover, there is nothing in that document which is inconsistent with

Dowe’s convictions as charged in those counts. To the extent, if any, that Dowe’s

sentence was influenced by this finding, it cannot have been to his prejudice.

Contrary to Dowe’s suggestion, we do not view the jury’s “No” finding as in any

way inconsistent with its finding of guilt. Given the evidence, it is quite likely that the

jury believed Dowe had agreed to help the conspiracies but was in no position to know or

have reason to know the amount of controlled substances involved.

Dowe further argues that the fact that the District Court granted him a judgment of

acquittal on Counts V and VI (aiding and abetting the possession with intent to distribute

and the distribution of 500 grams or more of cocaine on October 10, 2002) and the jury

acquitted him on Count VII (aiding and abetting the importation of 5 kilograms or more

of cocaine on March 1, 2003) is evidence that the government failed to prove the

elements of the conspiracy charges. Although not explicitly stated, Dowe’s argument is

in essence an argument that the acquittals and convictions in this case present inconsistent

verdicts.

6 First, it is not clear that an inconsistency exists. Even without the evidence that

Dowe participated in a distribution on October 10, 2002, as alleged in Count V and VI,

there was sufficient evidence from which the jury could conclude that he participated in

the conspiracy to distribute cocaine alleged in Count I. While a more compelling

argument can be made that Dowe’s acquittal on Count VII and his conviction on Count

XI may be inconsistent, that would not invalidate the latter. The Supreme Court has held

that consistency in the verdicts is not necessary, and that each count in an indictment is to

be regarded separately. United States v. Powell,

(1984). “[W]here truly

inconsistent verdicts have been reached, ‘[t]he most that can be said . . . is that the verdict

shows that either in the acquittal or the conviction the jury did not speak their real

conclusions, but that does not show that they were not convinced of the defendant’s

guilt.’”

at 64-65 (quoting Dunn v. United States,

(1932)). Here,

there is sufficient evidence to support Dowe’s convictions.

II. Admission of Intercepted Calls Between Dowe and Rafael Cintron

Rafael Cintron was a police officer with the Virgin Islands Police Department and

was tried as a co-defendant. Telephone conversations were admitted between Cintron

and Dowe about a drug related incident at Benner Bay. There was no objection to the

admission of these conversations, and we review for plain error.

Before us, Dowe contends that the probative value, if any, of those conversations

was outweighed by their undue prejudicial effect and that they were inadmissible hearsay

7 given that Cintron was ultimately found not to be a co-conspirator. We cannot agree.

The District Court concluded that these conversations could be understood as

evidencing an effort by Dowe to pump Cintron for information about the Benner Bay

incident that would be of interest to the conspiracies and, accordingly, that they were

highly relevant to whether Dowe was a participant in the conspiracies and not unduly

prejudicial. We agree.

Given the purpose for which they were admitted, the conversations were not

hearsay. They were capable of being understood as actions taken by Dowe in furtherance

of the conspiracies whether or not Cintron was a co-conspirator. Moreover, if regarded as

hearsay, Dowe’s words to Cintron were admissible as statements of a party opponent

under Federal Rule of Evidence 801(d)(2), and Cintron’s words to Dowe were admissible

for the non-hearsay purpose of putting Dowe’s statements in context. See United States v.

Hendricks,

, 183 n.9 (3d Cir. 2005).1

III. The Admission of DEA Agent Tokarz’s Testimony Regarding His Instructions to the Confidential Informant Rivera, Who Is Now Deceased

Contrary to Dowe’s suggestion, testimony of a declarant concerning instructions

given to another are not hearsay if offered, as here, to prove that such instructions were

1 Dowe also complains before us of the admission, without objection, of a conversation between Cintron and Thomas Villanueva, another police officer, regarding Cintron’s participation in the Benner Bay incident. Its admission was not plain error. Dowe was not mentioned in this conversation and could not have been prejudiced by it.

8 given. United States v. Reilly,

(3d Cir. 1994). Accordingly, the

testimony of Agent Tokarz regarding his instructions to Rivera was not hearsay. Dowe

also argues that Agent Tokarz was improperly permitted to testify that what the jury heard

from Rivera on taped conversations between Dowe and Rivera was consistent with

Tokarz’s instructions. We perceive no error.

The jury was permitted to hear Rivera’s side of his conversations with Dowe solely

for the purpose of allowing the jury to understand the context in which Dowe’s statements

were made. Dowe’s remarks were, of course, admissible because they were capable of

being understood as admissions of a party opponent. Hendricks,

.

Tokarz was permitted to testify about Rivera’s cooperation and his instructions to

Rivera to attempt to buy drugs from Dowe and his co-conspirators because, if credited by

the fact finder, this information would make it more likely than it otherwise would be that

drug transaction conversations occurred between Rivera and Dowe shortly thereafter.

This testimony was thus clearly relevant and, as we have noted, not hearsay.

The same can be said about Tokarz’s testimony that Rivera’s side of the

conversations was consistent with the instructions Tokarz had given him. That testimony

makes it more likely than it otherwise would be that Dowe’s and Rivera’s conversations

on the tapes were the drug transactions that the instructions contemplated. This testimony

was thus relevant and also not hearsay. Tokarz was available for cross-examination about

his instructions to Rivera and about whether Rivera’s words recorded on the tapes were

9 consistent with those instructions. Because Tokarz’s testimony was limited to whether

Rivera’s statements were consistent with the instructions given, he was not, as Dowe

argues, testifying as to Rivera’s state of mind.

IV. Conclusion

We will affirm the judgment of the District Court.

10