United States of America, Plaintiff-appellee, v. Randall Elwood Gourley, Defendant-appellant, 168 F.3d 165 (5th Cir. 1999)

Randall Gourley raises numerous objections to his conviction and sentences on three drug-related offenses. We affirm.

Along with several other defendants, Randall Gourley was charged and tried on three drug-related counts: conspiracy to import over five kilograms of cocaine (21 U.S.C. §§ 952(a), 960(b) (1), 963); conspiracy to possess cocaine with intent to distribute over one thousand kilograms of cocaine (21 U.S.C. §§ 841(a) (1) & (b) (1) (A), 846); and possession with intent to distribute over one thousand kilograms of cocaine (18 U.S.C. § 2; 21 U.S.C. 841(a) (1) & (b) (1) (A)). The charges arose from a scheme in which cocaine was transported from Mexico to Houston, Texas in the roof of a large tractor trailer.

The prosecution introduced evidence at trial to establish the following facts. The tractor trailer containing the drugs was driven by Walter Mace. Mace testified that when he arrived in Houston, he was led to his final destination, a warehouse, by two men known to him as "Jose" and "Happy." The warehouse was leased by Gourley, who, along with others, was present at the time of the truck's arrival. Once the trailer was secured in Gourley's warehouse, the men involved stood together in a group. In Gourley's presence, Mace asked Jose where the cocaine was hidden in the trailer. Jose responded that the roof itself would have to be removed because the drugs were concealed in a secret compartment at the top of the trailer. Gourley heard these remarks and expressed no surprise.

Unbeknownst to this cast of characters, the drugs had been detected by customs agents stationed at the border near Laredo, Texas. The agents arranged to have the truck followed to its destination. After Mace delivered his cargo under the agents' surveillance, Gourley and his associates were observed leaving and returning to the warehouse. Ultimately, Gourley locked the fence around the warehouse, and everybody left in two trucks. Soon thereafter, Gourley was apprehended by the agents.

Inside the warehouse, customs agents removed the roof from the trailer and found approximately one ton of cocaine. Rivets similar to those the agents removed from the roof of the trailer were found strewn on the floor of the warehouse. Scales like those used to measure cocaine were also found, as well as chisels and moving boxes purchased on the day of the delivery.

Gourley was convicted by a jury on all counts. A presentence report was prepared, and Gourley entered three objections to it: (1) he claimed entitlement to a reduction for being a minor participant (U.S.S.G. § 3B1.2); (2) he objected to an increase for obstruction of justice (U.S.S.G. § 3C1.1); and (3) based on the previous two objections, he claimed that the appropriate total offense level was 36. These objections were overruled. Based on a stipulated amount of 907.3 kilograms of cocaine, the district court determined a total offense level of 40, with a criminal history category of I. Within the prescribed range of 292 to 365 months of imprisonment, the district court sentenced Gourley to 300 months of imprisonment.

Gourley now timely appeals from his conviction and sentence.¹ 

Gourley contends that the evidence adduced by the government is insufficient to support the three counts of conviction. He contends that he did not know that there was cocaine in the trailer, and he suggests that his knowledge of the contraband was not proved and cannot be inferred from the fact that he rented and controlled the warehouse. He also compares his case to other cases in which this Court reversed conspiracy convictions on the ground that participation in a conspiracy cannot be proved by mere association with persons involved with drug transactions. He contends that Mace's testimony cannot provide the evidence to support his convictions because it is "patently unbelievable,"²  and he asserts that evidence supports his contention that he was renting the warehouse incident to his legitimate machine shop business,³  and he was unaware of drug activity.

We review the sufficiency of the evidence offered against Gourley to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); see United States v. Stevenson, 126 F.3d 662, 664 (5th Cir. 1997). "All evidence and inferences from the evidence are to be viewed in the light most favorable to the government." Stevenson, 126 F.3d at 664; see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. "The evidence need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, and this court will accept all credibility choices that tend to support the verdict." Stevenson, 126 F.3d at 664. We are "required to accept all credibility choices that tend to support the jury's verdict." United States v. Johnston, 127 F.3d 380, 401 (5th Cir. 1997) (internal quotation marks omitted), cert. denied, --- U.S. ----, 118 S. Ct. 1173, 140 L. Ed. 2d 183 (1998).

With respect to Gourley's conviction for possession of drugs with intent to distribute, the government must prove (1) knowing (2) possession of the drugs (3) with intent to distribute. See 21 U.S.C. § 841(a) (1) (" [I]t shall be unlawful for any person knowingly or intentionally ... to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance [.]"); see also United States v. Delagarza-Villarreal, 141 F.3d 133, 140 (5th Cir. 1997); United States v. Diaz-Carreon, 915 F.2d 951, 953 (5th Cir. 1990); United States v. Johnson, 469 F.2d 973, 976 (5th Cir. 1972). Possession for these purposes may be either actual or constructive. See United States v. Pigrum, 922 F.2d 249, 255 (5th Cir. 1991); United States v. Felts, 497 F.2d 80, 82 (5th Cir. 1974).

Mace testified at trial that Gourley and the others were present when Jose disclosed where the cocaine was hidden.⁴  Based on this evidence, the jury could conclude that Gourley and the others heard the statement, and therefore knew about the drugs. See United States v. Gant, 119 F.3d 536, 540 (7th Cir. 1997) (citing James Boswell, The Life of Johnson 333 (R.W. Chapman ed., Oxford Univ. Press 1980) (1791)). As in Gant, there is no suggestion that Gourley may not have heard the comment because of other noise, because it was whispered, or because Gourley had some hearing impairment, and therefore common sense dictates that the jury rationally inferred Gourley's knowledge about the presence of drugs. The record contains evidence that Gourley controlled the warehouse. The jury could infer from this fact that he provided the warehouse to store drugs and therefore constructively possessed the drugs stored therein. See, e.g., Pigrum, 922 F.2d at 255 (" 'Constructive possession' is ownership, dominion, or control over illegal drugs or dominion over the premises where drugs are found."). Finally, the sheer quantity of drugs involved supports an inference of intent to distribute, because one ton of cocaine is much more than Gourley and his companions could have hoped to personally use. See United States v. Inocencio, 40 F.3d 716, 724 (5th Cir. 1994); United States v. Pineda-Ortuno, 952 F.2d 98, 102 (5th Cir. 1992); United States v. Kaufman, 858 F.2d 994, 1000 (5th Cir. 1988). Thus, there is evidence to support each element of 21 U.S.C. § 841(a) (1), and the jury's verdict must be affirmed.

With respect to Gourley's conviction on charges of conspiracy to import cocaine in violation of 21 U.S.C. § 952(a),⁵  and conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 841(a) (1),⁶  the government must prove the evidence establishes beyond a reasonable doubt that (1) an agreement existed between at least two non-government people to import and possess the controlled substance with intent to distribute, (2) the defendant knew of the conspiratorial agreement, and (3) he intentionally participated in the conspiracy. See also Inocencio, 40 F.3d at 725; United States v. Toro, 840 F.2d 1221, 1232 (5th Cir. 1988). A conspiracy may be proved by circumstantial evidence, see, e.g., United States v. Cardenas, 9 F.3d 1139, 1157 (5th Cir. 1993), and "the government need not prove that the defendant knew of all the details, only that he knew of the conspiracy's essential purpose." United States v. Osgood, 794 F.2d 1087, 1094 (5th Cir. 1986). "In addition, a conviction for conspiracy to import a controlled substance may be sustained although the defendant engaged only in the conspiracy's distribution or delivery aspects after the contraband entered the country; importation is not complete until the drugs reach their final destination." Id. (citing United States v. Mitchell, 777 F.2d 248, 261-62 (5th Cir. 1985)).

Gourley did not merely rent the warehouse or turn up in the wrong place at the wrong time.⁷  There was an agreement to import and possess cocaine with intent to distribute. Numerous individuals, including Gourley, his codefendant Roy Garza, Jose, and Happy, gathered at the warehouse and were present and waiting when the drugs arrived. These individuals participated in the drug transaction and acted in concert to recover hidden drugs from the tractor trailer. This evidence, combined with the entirely suspicious circumstances of the warehouse rental, see supra note 4, establishes a basis on which reasonable jurors could certainly conclude that these individuals had a prior agreement to act in concert to achieve the essential purpose of bringing drugs into the country and possessing those drugs in order to sell them to others. As previously noted, the great quantity of drugs involved supports an inference of intent to distribute, see, e.g., Pineda-Ortuno, 952 F.2d at 102, and participation in distribution or delivery can support an inference of conspiracy to import, see Osgood, 794 F.2d at 1094. The jury's inference of an agreement is therefore supported by evidence.

Gourley's knowledge of the agreement and participation in the conspiracy are likewise supported by the evidence. The record contains evidence that Gourley controlled the warehouse. He was present at the time of delivery and was party to a conversation discussing the location of the drugs. The jury could infer from this evidence that Gourley provided the warehouse to store drugs, a fact which would support an inference of his participation in the conspiracy. See Osgood, 794 F.2d at 1094; Mitchell, 777 F.2d at 262. Moreover, Gourley was present while the other men worked to remove the roof of the trailer. The jury could infer Gourley's participation in the conspiracy from this fact, as "criminals rarely welcome innocent persons as witnesses to serious crimes and rarely seek to perpetrate felonies before larger-than-necessary audiences." United States v. Ortiz, 966 F.2d 707, 712 (1st Cir. 1992). Finding that the elements of the conspiracy charges against him were supported by evidence, we affirm Gourley's conviction on the charged conspiracy offenses.

Gourley challenges the transfer of his case from the Houston Division of the Southern District of Texas to the Laredo Division, contending that defending the case in Laredo subjected him to unspecified "extreme disadvantage." He notes that " [t]here was no basis for the appellant to be tried outside of his home area by a jury completely not of his race." He also challenges the district court's refusal to transfer his case back to Houston. Gourley concludes that his rights under the Fifth and Sixth Amendments to the United States Constitution were violated.

The Court reviews the denial of a motion for intradistrict transfer for abuse of discretion. United States v. Gonzalez, 163 F.3d 255, 259 (5th Cir. 1998); cf. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 28, 108 S. Ct. 2239, 2243, 101 L. Ed. 2d 22 (1988) (motions to transfer venue are reviewed for abuse of discretion). A "strong showing of prejudice" is required to justify an intradistrict transfer. See United States v. Duncan, 919 F.2d 981, 985 (5th Cir. 1990).

The denial of this motion did not constitute reversible error. Gourley has alleged no prejudice, and he makes no serious argument that the district court abused its discretion. The record demonstrates that the transfer was originally sought because most of Gourley's witnesses resided in Houston. This circumstance does not mandate an intradistrict transfer, as the inconvenience to Gourley of going to trial in Laredo would be "minimal at best in this age of convenient travel, communication, discovery, and trial testimony preservation." Smith v. Colonial Penn Ins. Co., 943 F. Supp. 782, 784 (S.D. Tex. 1996). Since Gourley called many witnesses during the trial and failed to point to specific evidence of prejudice, it stands to reason that he was not prejudiced. Furthermore, the Constitution does not require,⁸  and, indeed, forbids,⁹  an intradistrict transfer based on the anachronistic racial justification offered by counsel.

Gourley claims that the district court erred when it increased his offense level for obstruction of justice pursuant to U.S.S.G. § 3C1.1. Because Mace was the only witness who directly contradicted Gourley's testimony, Gourley contends that Mace was "auditioning for a lenient plea bargain," and the videotape supports his version of the facts and contradicts Mace's rendition. Gourley thus contends that it was clear error for the district court to conclude that he must have lied. Moreover, he notes that much of his testimony was not contradicted in any way. He should not be punished, he reasons, for simply exercising his right against self-incrimination.¹⁰ 

"A district court's findings of fact for purposes of applying the Sentencing Guidelines are reviewed under the 'clearly erroneous' standard of review." United States v. Powell, 124 F.3d 655, 663 (5th Cir. 1997) (internal citation omitted). The district court did not clearly err in its determination that Gourley obstructed justice by lying on the stand. The district court made specific factual findings regarding the truthfulness of Gourley's testimony, concluding that Gourley lied about his knowledge of the criminal activity--specifically, Gourley knew about the cocaine, and knew when, where, and how the cocaine was being delivered. The court also concluded that Gourley committed perjury when he testified that the warehouse had been leased for legitimate business purposes. These determinations were supported by evidence in the record and thus were not clear error.

Gourley contends that even in the worst-case scenario, his participation in the scheme was minor--he was a mere link in the chain--and therefore he should have received a reduction pursuant to U.S.S.G. § 3B1.2(b). He offers no case authority or analysis of the Guidelines to support this position.

The district court's decision not to give Gourley an adjustment for his "minor" role was not clearly erroneous. The commentary to the Guidelines notes that the adjustment is intended for the "defendant who plays a part in committing the offense that makes him substantially less culpable than the average participant." U.S.S.G. § 3B1.2 comment. (backg'd). Given the district court's factual finding that Gourley was a "vital link" in the conspiracy, a decreased sentence was not justified. Precedent supports declining to permit the "minor participant" reduction in a case such as this. See United States v. Martinez-Moncivais, 14 F.3d 1030, 1039 (5th Cir. 1994) (reduction not warranted because a guilty verdict on drug conspiracy charges "by definition entailed the jury's finding that [the defendant] had knowledge of, and voluntarily participated in, the ongoing transportation of entire truckloads of narcotics").

Gourley asserts that " [t]he prosecution offered no evidence actually showing actual possession, and it is clear the same evidence convicted him on both conspiracy and possession charges." To the extent that this is a sufficiency of the evidence argument, that contention has been addressed supra. To the extent that this argument suggests that the same evidence cannot support the various convictions in this case, it is simply wrong. See United States v. Singh, 922 F.2d 1169, 1173 (5th Cir. 1991) ("Typically, the same evidence will support both a conspiracy and an aiding and abetting conviction.").

For the aforementioned reasons, the judgment of the district court is AFFIRMED.¹¹