United States of America, Appellee, v. Gary Robert Gromet, Appellant, 801 F.2d 395 (4th Cir. 1986)

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U.S. Court of Appeals for the Fourth Circuit - 801 F.2d 395 (4th Cir. 1986) Argued June 5, 1986. Decided Sept. 15, 1986

Bruce Rogow, for appellant Gary Robert Gromet.

Thomas F. Loflin, III (Loflin & Loflin, on brief), for appellant Ronald Scott Donley.

Rangeley Wallace, Assistant United States Attorney (Samuel T. Currin, United States Attorney, Robert J. Erickson, Assistant United States Attorney, on brief), for appellee.

E.D.N.C.

AFFIRMED.

Before RUSSELL and PHILLIPS, Circuit Judges, and BUTZNER, Senior Circuit Judge.

PER CURIAM:


Gary Robert Gromet and Robert Scott Donley appeal from their convictions on eleven counts of violating federal law in connection with their involvement in a drug trafficking organization headed by Dennis Cable. Arrested in i985 by Customs, Cable named both Gromet and Donley as his associates. According to Cable, Gromet, a Florida lawyer, assisted in the drug trafficking by creating and operating several shell corporations to conceal Cable's assets and income, while Donley assisted by twice transporting large quantities of drugs.

First, Donley transported 800 pounds of marijuana from Florida to North Carolina where he sold it to Cable, and second, Donley helped Cable smuggle 615 pounds of marijuana into Florida where they sold it to several buyers. Cable's testimony also indicated that Gromet helped Donley conceal assets. On the basis of this testimony and supporting evidence, a jury in the Eastern District of North Carolina convicted both Gromet and Donley of complicity in Cable's illegal drug transactions. Arguing that the trial judge made several errors, Gromet and Donley have brought this appeal.

On appeal, Gromet argues that the trial judge erred when he allowed Cable to testify that Donley had described Gromet as "Mr. Hide-It" and that Donley had relayed advice from Gromet to Cable after Customs had searched one of Cable's boats. After the search, Gromet advised Cable, through Donley, not to worry about the possibility of Customs bugging hidden and apparently undiscovered money on board the searched vessel, and Cable testified as to what Donley had said as he related this advice.

Although these statements by Donley would appear to be hearsay, see Fed. R. Evid. 801(c), they were not hearsay and were properly admissible against Gromet under Federal Rule of Evidence 801(d) (2) (E) as the statements of a co-conspirator in furtherance of a conspiracy. Under United States v. scott 9730 F.2d 143, 148 (4th Cir.), cert. denied, --- U.S. ----, 105 S. Ct. 572 (1984), the trial judge should only have admitted these statements if there was a preponderance of independent evidence indicating that Gromet was a part of the drug conspiracy. The independent evidence indicated, however, that Cable revealed to Gromet his drug smuggling1  and that Gromet gave Cable advice on how to shield his assets from seizure. A government recording of a phone conversation between Gromet and Cable's wife following Cable's capture, moreover, revealed that Gromet tried to persuade Cable not to cooperate with the government and that Gromet offered the Cables advice on how to quickly sell a valuable boat before the government seized it. Faced with this evidence, the trial judge was certainly correct in deciding that Gromet, like Donley, was a part of the Cable conspiracy, and he properly admitted the questioned portions of Cable's testimony into evidence.

As his next argument, Gromet points to Direct Sales Co. v. United States, 319 U.S. 703 (1943), and United States v. Falcone, 311 U.S. 205 (1940), and argues that he simply sold innocent articles, corporations, to Cable and that this action was insufficient to link him to the conspiracy. Although Gromet is correct that under Direct Sales and Falcone the simple sale of an innocent article to a conspirator, even with knowledge that the purchaser will use it illegally, is insufficient evidence of the seller's participation in the conspiracy, here there is evidence of much more than that. As discussed before, the evidence indicated that Gromet knew of Cable's drug trafficking and that he actively advised Cable and Donley on avoiding capture and the seizure of assets. Consequently, there was sufficient evidence to support Gromet's conviction as a conspirator. See Direct Sales, 319 U.S. at 709-10; United States v. Zambrano, 776 F.2d 1091, 1094-97 (2nd Cir. i985).

In addition, Gromet argues that the evidence was also insufficient under 21 U.s.c. % 843(b) to support his conviction on four counts of using a telephone to facilitate a drug conspiracy.2  The government produced recordings and records verifying all four calls and each occurred following Cable's capture and was between Gromet and either Susan Cable, Cable's wife and at the time of the calls a witness cooperating with the government, or a government agent. The calls were generally about the possibility of selling the Cables' Hatteras yacht before the government could seize it, but during one call Gromet also urged Susan Cable to tell her husband to refuse to cooperate with the government. Because the government had already arrested Cable, however, and Susan Cable was cooperating with the government, Gromet argues that the conspiracy had ended before these calls so that they could not have facilitated a drug conspiracy. See United States v. Chase, 372 F.2d 453, 459 (4th Cir.) cert. denied, 387 U.S. 907 (1967) (conspiracy must involve defendant and at least one person not acting as a government agent).

Although Gromet is correct that if the conspiracy had ended with the arrest of the Cables, he could not have facilitated the commission of a felony with his telephone calls, the evidence indicated that the conspiracy had not ended. Even after the arrest of the Cables, Donley and Gromet were both at large, and if Gromet had successfully hidden the boat from Customs it quite likely would have helped him and Donley in future operations either as a smuggling boat or, if sold, as capital to finance future operations or Cable's defense. Of course, if Gromet's attempt to persuade Cable not to cooperate with the government had succeeded, that too would have helped him and Donley continue smuggling and concealing assets. In 1984, the Cables fled to the Bahamas to avoid a federal investigation, but Donley, with the Cables' help, continued to smuggle marijuana into the United States and Gromet continued helping both Donley and Cable hide assets. That episode demonstrates that Gromet and Donley would continue to conspire to sell drugs and hide assets even after the arrest of the Cables.

In United States v. Altomare 625 F.2d Sec. (4th Cir. 1980), this court held that it was proper to consider, as an act in furtherance of a conspiracy, a defendant's attempt to influence the testimony of a grand juror witness during an investigation into an illegal conspiracy involving the defendant. The court reached this conclusion, because if successful, the defendant's tampering would have allowed him to continue his illegal activities. Similarly, in this case, if successful, Gromet's attempts to sell the boat and to persuade Cable to keep quiet would have helped him and Donley in continuing to distribute drugs and conceal assets. Consequently, the trial judge correctly allowed the jury to consider these charges, and accordingly, we affirm the judgment of the district court convicting Gromet.3 

We also affirm the district court's judgment convicting Donley of participating in the same conspiracy. Donley first challenges venue in the Eastern District of North Carolina for the eighteenth count of the indictment which charged him, under 21 U.S.C. § 841(a) (1), with illegally distributing marijuana. Distribution is a continuous offense, however, United States v. Brunty, 701 F.2d 1375, 1381-82 (11th Cir. 1975), cert. denied, 464 U.S. 848 (i983), and so venue was proper in any district in which the "offense was begun, continued, or completed." 18 U.S.C. § 3237(a). Courts, moreover, have read the term "distribution" under Sec. 841(a) (1) broadly to include transfer, delivery, arrangement of sales, and even constructive delivery, see United States v. Brunty, 701 F.2d at 1381 and citations included therein, and the facts at trial established that Donley transported the marijuana from Florida to North Carolina on I-95, an interstate highway which crosses North Carolina in the Eastern District. Accordingly, Donley transported the marijuana through the Eastern District, and venue was proper there.4 

In addition, Donley also challenges venue in the Eastern District of North Carolina on the twentieth count of the indictment which charged him, under 21 U.S.C. § 952(a) and Sec. 960(a) (1), with illegally importing marijuana. Venue under a charge of importation, however, is proper in any district through which the contraband moves,5  and the evidence supporting this count at trial established that Donley and Cable smuggled 615 pounds of marijuana into Florida and sold it to several distributors from Florida and the Eastern District of North Carolina. Consequently, the evidence indicated that the distributors were likely to have moved the marijuana into the Eastern District of North Carolina. Nevertheless, the trial judge never instructed the jury to find that the marijuana moved into the Eastern District of North Carolina, and Donley argues that as a result, the government never established proper venue in the Eastern District as to this count. The trial judge did, however, instruct the jury that it had to find each of the facts contained in a count of the indictment to convict on that count, and the twentieth count charged that Donley imported marijuana into the "Eastern District of North Carolina and elsewhere ...." Accordingly, the jury must have found that Donley imported marijuana into the Eastern District, and so venue was proper there. See United States v. Boswell, 372 F.2d 78i (4th Cir.), cert. denied, 387 U.S. 919 (1967).

Finally, Donley also argues that the seventeenth and eighteenth counts of the indictment merged so that the trial judge erred in sentencing him to serve consecutive sentences under those counts.6  The seventeenth count charged Donley with unlawfully possessing 800 pounds of marijuana with the intent to distribute it while the eighteenth count charged him with unlawfully distributing that same marijuana. Faced with similar situations in United States v. Atkinson, 512 F.2d 1235 (4th Cir. 1975), and United States v. Curry, 512 F.2d 1299 (4th Cir.), cert. denied, 423 U.S. 832 (1975), this court held that "where there is no evidence of possession with intent to distribute a controlled substance apart from evidence of the actual transfer of the substance pursuant to a sale, the offenses of possession with intent to distribute ... and distribution . . . merge into a single offense." Curry at 1305-06. In this case, however, unlike in Atkinson and Curry, the evidence did not reveal simply a single sale, but described Donley's entire trip with the marijuana from Florida to North Carolina as well as the sale of the marijuana to Cable in North Carolina. Consequently, the two counts of the indictment relied on much more than a single sale, and the trial judge's imposition of consecutive sentences was appropriate. See also United States v. Young, 745 F.2d 733, 753-54 (2nd Cir. 1984), cert. denied, --- U.S. ----, 105 S. Ct. 1842 (1985) (" [T]he weight of authority elsewhere is that a defendant may be convicted of both [crimes] provided that there is some evidence of possession apart from actual distribution.") Accordingly, the trial court's judgment convicting and sentencing Donley was without error, and the judgment of the district court as to both Gromet and Donley is

AFFIRMED.

 1

Cable stated in response to a question at trial that, "The reason I felt comfortable revealing to Mr. Gromet that I was involved in smuggling activities was the fact that Scott Donley had been using Mr. Gromet for several years."

 2

Gromet also argues that the trial court should have dismissed the charges under 21 U.S.C. § 843(b) that he used the mails to facilitate the conspiracy, but the evidence indicated that Gromet mailed letters of instructions from Florida to a Winston Salem, North Carolina office which he maintained and staffed to receive mail and phone calls as a cover for the shell corporations that he had sold to Cable. As a result, these letters did facilitate the commission of a felony. See United States v. Phillips, 664 F.2d 971, 1032 (5th Cir. 1981), cert. denied, 457 U.S. 1136 (1982) (telephone call between co-conspirators in which one informed the other that their marijuana was safe facilitated the commission of a drug conspiracy)

 3

In bringing his appeal, Gromet also takes issue with the trial court's "wilful blindness" instruction to the jury in which it informed the jury that it could infer guilty knowledge where a defendant had apparently closed his eyes to facts that would normally be obvious to him. Many courts have approved this type of instruction, however, see Devitt and Blackman, 1 Federal Jury Practice and Instructions, 14.09 (1975), United States v. Martin, 773 F.2d 579, 584 (4th Cir. 1985), and even in a case involving a conspiracy charge it simply points out a permissible inference that the jury can make and is a proper instruction. United States v. Nicholson, 677 F.2d 706, 710-11 (9th Cir. 1982)

In addition, Gromet, as well as Donley, maintains that the trial court erred when it allowed the prosecution to ask the jury to strike a blow against drug dealers in North Carolina. Although this kind of argument may be inappropriate, see United States v. Hawkins, 595 F.2d 751, 754 (D.C. Cir. 1978), cert. denied, 910 (1979), the defendants did not object to the argument at trial, and it was unlikely to have resulted in a miscarriage of justice and did not constitute plain error. See United States v. Frady, 456 US. 152, 163 n.14 (1982); United States v. W.F. Brinkley & Son, 783 F.2d 1157, 1161 (4th Cir. 1986). Consequently, this problem does not provide a ground for reversal.

Finally, Gromet also argues that the trial court should have dismissed the RICO count under 18 U.S.C. § 1962(c) against him, because the trial court's errors on the other charges meant that there was no proof of a "pattern of racketeering." Finding as we do that the trial court did not commit error in its handling of the other charges, we reject this argument as well.

 4

United States v. Davis, 666 F.2d 195, 199 n.5 (5th Cir. 1982) explained the rule of venue for continuous offenses by saying that:

A continuing offense is a continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy. Where such an act or series of acts runs through several jurisdictions, the offense is committed and cognizable in each. (Citing United States v. Midstate Horticultural Co., 306 U.S. 161, 166 (1939)) .

 5

18 U.S.C. § 3237(a) provides in pertinent part that:

Any offense involving the use of the mails, transportation in interstate or foreign commerce, or the importation of an object or person into the United States is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such commerce, mail matter, or imported object or person moves.

 6

Donley also argues that the trial court erred in instructing the jury that it could find him guilty as an aider and abettor under the seventeenth, eighteenth and twentieth counts of the indictment. Although the indictment charged Donley alternatively as a principal and as an accomplice under those counts, Donley argues that the evidence was consistent only with the view that he was the principal in each of the crimes charged in those counts. The jury, however, might easily have seen Dennis Cable as the principal in these crimes with Donley providing assistance. Consequently, the aiding and abetting instruction was proper. See United States v. Curiale, 414 F.2d 744, 748 (2nd Cir.) cert. denied, 39 U.S. 959 (1969) (aiding and abetting instruction necessary where jury could have found that defendant only aided and abetted in committing crime)