United States v. Charles Thomson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4167
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHARLES MICHAEL THOMSON,
Defendant - Appellant.
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: December 10, 2015 Decided: January 27, 2016
Before TRAXLER, Chief Judge, and MOTZ and HARRIS, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Steven Hale Levin, LEVIN & CURLETT LLC, Baltimore,
Maryland, for Appellant. Andrea L. Smith, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF:
Sarah F. Lacey, LEVIN & CURLETT LLC, Baltimore, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.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. He was sentenced to
37 months in prison. On appeal, Thomson contends that the
district court erred in (1) denying his motions for judgment of
acquittal, (2) issuing a willful blindness instruction, (3)
admitting certain testimony from two cooperating coconspirators,
and (4) issuing an Allen charge. We affirm.
I.
This case arises out of a marijuana trafficking
organization headed by Kerem Dayi. Dayi operated the
organization in conjunction with his internet retail business,
Krush NYC, LLC (“Krush”), from a warehouse in Maryland. Dayi
and his coconspirators obtained marijuana from California,
arranged for its transport to Maryland, and distributed it in
Maryland, New Jersey, and Ohio.
During the summer and fall of 2012, law enforcement
officers in Nebraska and West Virginia stopped vehicles
containing large amounts of either marijuana or cash. * In
*
In May 2012, a Nebraska trooper stopped a pickup truck
with Nevada tags being driven by Peter Rivera and seized
approximately 100 pounds of marijuana. In September 2012, a
(Continued)
2
connection with the ensuing investigation, officers placed
court-ordered wiretaps on telephones associated with Dayi and
conducted surveillance of the Krush warehouse. During
surveillance, Thomson was seen delivering two loads of
marijuana, the first on November 16, 2012, and the second on
December 11, 2012. On both occasions, Thomson was driving a
pickup truck and pulling a three-axle trailer registered to him.
Each delivery consisted of 16 boxes wrapped in black roofing
paper and contained approximately 400 pounds of marijuana. Both
deliveries occurred after dark.
On November 16, Thomson was met at the Krush warehouse by
codefendant Jeremy Anderson from California. Anderson directed
Thomson to the back of the warehouse, which was out of the sight
of the surveillance officers. Approximately 30 minutes later,
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. Thomson backed a Lexus vehicle out of the trailer,
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.
3
and parked it on a lot behind the warehouse. Approximately 30
minutes later, Anderson joined Thomson in the trailer where they
remained for over 15 minutes. Thomson did not assist in the
unloading. He left shortly after others unloaded his truck.
The following day, Thomson returned to the Krush warehouse and
obtained a ride to the airport for a flight to his home in
Minnesota. He left his truck and trailer at the warehouse,
where they were later seized by law enforcement officers.
In January 2013, the grand jury returned an indictment
against Dayi, Anderson, Thomson, and several others, for
conspiracy to distribute and possess with the intent to
distribute 1000 kilograms or more of marijuana, in violation of
21 U.S.C. § 846. Thomson and two of his codefendants - Gokahn
Bergal and Anes Hadziefejzovi – were tried over a three-week
period in the fall of 2013. Bergal and Hadziefejzovi were
involved, among other things, in the receipt of Thomson’s
marijuana deliveries to the Krush warehouse, and they were
convicted of the charged conspiracy offense. Thomson was
convicted of the lesser-included offense of conspiracy to
distribute and possess with intent to distribute 100 kilograms
or more but less than 1000 kilograms of marijuana.
At trial, the government presented the testimony of three
cooperating coconspirators - Kenny Eng, Robert Glickman, and
4
Neil Wylie – as well as that of over 20 law enforcement
officers.
Eng was a childhood friend of Dayi. In 2011, Eng moved to
California to obtain marijuana for Dayi and, in doing so, worked
with Wylie, a marijuana middle-man. The marijuana was primarily
sent to Dayi via the United States mail. On April 4, 2012,
however, a Nebraska trooper stopped Eng’s vehicle and seized a
small amount of marijuana and approximately $230,000 in cash
that Eng was transporting from New Jersey to California to pay
Dayi’s debt. Eng and Dayi, already suffering from a strained
relationship, parted ways shortly thereafter. Among other
concerns, Eng had become uncomfortable with Dayi’s demands for
larger and faster shipments of marijuana. As a result, Dayi
began dealing more directly with Wylie.
Wylie ran an office and warehouse in Walnut Creek,
California, not far from San Francisco, for the purpose of
receiving, packaging, and shipping marijuana. During the first
half of 2012, Wylie sent approximately 40 pounds of marijuana
per month through the mail to Dayi. When Dayi began demanding
larger marijuana shipments at a faster pace, however, Wylie
enlisted the assistance of “Lewis” -- a commercial driver with
an open car hauler. Lewis agreed to drive marijuana to Dayi on
his scheduled trips. However, Lewis was required to make his
legal deliveries along the way, stop at weigh stations, and
5
limit the amount of time he was driving -- all of which
increased his delivery time and his risk. Lewis and Peter
Rivera made a second trip using a private, commercial trailer
that Dayi had advanced Lewis the money to buy so that he could
“make faster times.” J.A. 1582. Lewis also made a third trip.
But, in the meantime, Dayi bought Rivera a truck because “Rivera
was not going to go commercial” and, with the new truck, “he
wouldn’t have to stop at all the weigh stations.” J.A. 1583.
In May 2012, however, a Nebraska trooper seized approximately
100 pounds of marijuana from Rivera during a traffic stop and,
shortly thereafter, Wylie reverted to mailing marijuana to Dayi.
Then, in the fall of 2012, Wylie made contact with
Anderson, a former acquaintance who grew and distributed
marijuana in California. Anderson was looking for a new client
and he told Wylie that he “had . . . transportation already set
up.” J.A. 1595. More specifically, Anderson told Wylie that
“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
told Wylie that he “had a driver that . . . he had been using
for years” and had “never had a problem.” J.A. 1682. “He said
it was a guaranteed way that they had used for a long time.”
J.A. 1601.
6
Anderson’s driver turned out to be Thomson, whom Anderson
had known since he was a teenager. J.A. 1602. Anderson’s
packing process involved putting 25 pounds of marijuana in a
box, 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 Thomson’s trailer, behind a vehicle that
was transported as “cover” in the event Anderson was stopped by
law enforcement along the way. Anderson told Wylie that this
wrapping method “had been tested by dogs before and . . . they
couldn’t smell it.” J.A. 1602.
Wylie was familiar with Thomson’s trailer, and the person
who custom-built it. Anderson and one of Anderson’s prior
customers had assisted Thomson in locating and purchasing the
trailer, which Thomson had specially designed to include the
secure storage space. Seeing an opportunity for all to profit,
Wylie arranged for Anderson and Dayi to meet in California. 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 half for one of Anderson’s customers in
Philadelphia. When Thomson arrived to pick up the loaded
7
trailer, Wylie was not initially present. Anderson had told
Wylie that Thomson “kind of liked his privacy” and “didn’t want
to meet a bunch of people.” J.A. 1618. Wylie only saw Thomson
because he returned to the loading area to give Anderson the
Krush address. Wylie did not recall seeing a vehicle in
Thomson’s 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 didn’t like
driving around with a[n] empty trailer all the time.” J.A.
1697. Based upon his experience, Wylie testified that if
Thomson were to get pulled over while hauling marijuana, having
a vehicle in the car carrier “would make more sense than seeing
an empty trailer.” J.A. 1700. “It gives him options,” J.A.
1698, Wylie testified, such as to claim that he was “going to a
car show,” J.A. 1700.
Wylie testified that Anderson told him that Thomson
required Anderson to fly to Maryland to be present when Thomson
made the delivery. Anderson explained to Wylie that Thomson
“wouldn’t drop off the marijuana to any random person without
[Anderson] there. Because it is a drug deal and if he doesn’t
know the people, it would be risky just to show up and deliver
something with someone you didn’t know, could get robbed or who
knows.” J.A. 1686. After the delivery, Thomson returned to
California carrying some of the proceeds. Anderson flew back to
8
California with the rest. Wylie testified it cost Dayi $40,000
to have the marijuana transported to Maryland and that, in his
opinion, Thomson “knew he was transporting marijuana” because
“you don’t get paid $40,000 if you don’t know.” J.A. 1775; see
also J.A. 1655 (“[Y]ou wouldn’t get paid that if you weren’t
delivering something”).
Thomson’s December delivery consisted of another 400 pounds
of marijuana that Wylie and Anderson had packed for shipment to
Maryland and Philadelphia. Wylie was again not present when the
boxes were loaded on Thomson’s trailer, but he was advised that
the shipment had arrived safely and that Dayi paid $40,000 for
this trip. Wylie testified that the plan was for Anderson to
drive Thomson’s truck back to California with the proceeds
because Thomson was going on a cruise with his family. 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
demonstrated, and Thomson did not contest, that he transported
hundreds of pounds of marijuana worth hundreds of thousands of
dollars, during each of his trips east.
Randy Glickman served as a mentor and advisor to Dayi in
both his legitimate and illegitimate businesses. Glickman was
present at the Krush warehouse when the November and December
9
deliveries were made and assisted in unloading the boxes from
Thomson’s trailer. Thomson, however, did not assist on either
occasion. Glickman testified that the only time he saw Thomson
was when Thomson came to the warehouse the day after the
December delivery to get a ride to the airport. Glickman
confirmed Wylie’s testimony that the deliveries for Krush
consisted of approximately 200-300 pounds of marijuana each, and
that 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
unless a common carrier such as UPS or FedEx were involved, they
“did not ask someone to drive a load blindly, and not know what
it was, because it’s not the right thing to do,” and that this
was consistent with his advice to Dayi. J.A. 1208.
In his defense, Thomson testified that he was a legitimate,
independent truck driver operating out of Minnesota (where he
lived with his family) and Southern California (where he had
previously resided). According to Thomson, he was already
planning to commercially transport a car from Los Angeles,
California, to Philadelphia, Pennsylvania, in November 2013,
when Anderson called him and asked him “to stop by if he could
throw some boxes on” Thomson’s trailer, for delivery to
Maryland. J.A. 2879. Thomson testified that Anderson always
had some “harebrained scheme” going on, J.A. 2861, but he denied
10
knowing that the boxes contained marijuana. He testified that
Anderson “had been chatting [him] up about this [eBay] business”
and that Anderson had “all kinds of purses and shoes,” but
Thomson testified that he “really wasn’t interested” because he
“had [his] own problems.” J.A. 2879.
According to Thomson, he agreed to pick up the boxes as a
favor to Anderson, because Anderson had helped him find a
trailer with secure storage space that he could purchase for
approximately half-price, and because he was coincidentally
planning to travel from San Diego to San Francisco to sell a
“classic” truck at an auction there. According to Thomson:
I pulled up and . . . [Anderson] greeted me and
the normal stuff. And I said what’s going on next
door because there was a bunch of cars parked there. .
. . There’s an AA meeting going on. I said, oh,
really, so I went across -- I said you know, hold on,
get your boxes in there. I’m going to the AA meeting,
I’m just going to sit in for a minute.
J.A. 2881. When he came back, the “[b]oxes were on, I believe
there were four, I said put them away.” J.A. 2882. Thomson
testified that he then returned to San Diego to drop off the
classic truck (that he had unsuccessfully tried to sell), drove
back up to Los Angeles to pick up the car that he claimed he had
been hired to transport to Philadelphia, and headed east.
When asked if he anticipated that Anderson would fly over
to be at the Krush warehouse when he arrived, Thomson testified,
“I told him he had to be there. . . [b]ecause . . . if I haul
11
for somebody else, I require them to be there.” J.A. 2883.
Thomson testified that:
I don’t know what he was spending to fly across the
country. And I didn’t know what kind of business he
was involved in. That’s his business. That’s not my
concern. My concern is what I was doing. So if he –-
I don’t, I mean, do you care about what other people
do with their lives? I don’t. They can do what they
want. As long as it doesn’t hurt me. So if
[Anderson] was building a business, or whatever he was
doing, and he was spending money, that’s his business
not mine.
J.A. 2979. Anderson was, in fact, at the Krush warehouse when
Thomson arrived several days later. Thomson testified that he
opened the door to the trailer for Anderson to unload the boxes,
but again did not assist. He testified that Anderson paid him
$250 for his trouble.
With regard to the vehicle that he transported along with
the boxes, Thomson testified that he drove to Philadelphia and
delivered the car to someone at a shopping mall. He could not
recall the name of the person to whom he delivered the vehicle,
but testified that it was a third person that the shipper had
arranged for him to meet. Although Thomson testified that he
had advertised his transportation services, he could not recall
the publication in which he had advertised the trip. He also
could not recall the exact amount of the payment that he
received for the vehicle transport. Thomson testified that he
12
stayed four nights at a Holiday Inn near Philadelphia, looking
for a load to take back, and then returned to California.
With regard to the December delivery, Thomson testified
that Anderson hired him to haul a Lexus vehicle from San
Francisco to Maryland, and again asked if he could “throw a
couple boxes on because I was going to the same place.” J.A.
2888. Thomson agreed, but again did not assist with the loading
of the boxes or ask any questions about them. Thomson testified
that Anderson was late meeting him in Maryland, and that he
waited several hours at a rest area instead of going to the
Krush warehouse. Thomson arrived at the warehouse after dark,
but Anderson was still not there. Thomson unloaded the Lexus
but not the boxes. Thomson testified that when Anderson
arrived, they went into the trailer where he was “ripping”
Anderson for making him wait. J.A. 2893. Thomson testified
that he told Anderson to “lose my number, lose my name, don’t
call me again.” J.A. 2893.
Thomson stayed at a hotel that evening, but returned to the
Krush warehouse the following day to get a ride to the airport.
Thomson gave several inconsistent statements regarding whether
he attempted to arrange to transport a vehicle from Maryland to
either California or Minnesota in the interim. But, in the end,
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
get out” of their foreclosed home. J.A. 2894. He testified
that when he arrived at the Krush warehouse he “grabbed [a young
kid] by the scuff of the neck,” gave him twenty dollars, and
“threw the keys [to his truck and trailer] to him.” J.A. 2895.
Thomson instructed the “kid” to give the keys to the owner of
the Krush warehouse - whom Thomson testified he did not know -
and to have this unknown owner give the keys to Anderson.
Thomson testified that Anderson paid him $2500 of an agreed-upon
$5000 for the second trip, but he did not wait to collect the
second half of the payment. Thomson admitted that he went on a
cruise with his family when he returned to Minnesota - prior to
packing and vacating his foreclosed home – but claimed that his
father-in-law paid for the trip.
Thomson had no DOT registration for his truck and trailer.
Had he had such registration, applicable laws would have
required him to stop at weigh stations and limited the amount of
hours he could legally drive. Thomson testified that he
mistakenly believed he did not need such a registration.
Although Thomson claimed to perform his legitimate trucking
business by internet listings and word of mouth, he had no
business markings on his truck. When Thomson’s truck and
trailer were seized, law enforcement officers found no
commercial driver logs, invoices, paperwork, or anything else
14
that would have indicated that Thomson was transporting goods in
commerce for legitimate customers.
II.
Thomson’s first claim is that the government’s evidence was
insufficient to prove that he knowingly participated in the
Krush marijuana-distribution conspiracy. We disagree.
We review the district court’s denial of a Rule 29 motion
for insufficiency of the evidence de novo. See United States v.
Engle, 676 F.3d 405, 419 (4th Cir. 2012). “[W]e must sustain
the verdict if there is substantial evidence, viewed in the
light most favorable to the government, to support it.” Id.“Substantial evidence is evidence that a reasonable finder of
fact could accept as adequate and sufficient to support a
conclusion of guilt beyond a reasonable doubt.” Id. The
defendant challenging the denial “must overcome a heavy burden,
and reversal for insufficiency must be confined to cases where
the prosecution’s failure is clear.” Id. (internal quotation
marks and citations omitted). In evaluating the motion, we must
also remain “mindful that the jury, not the reviewing court,
weighs the credibility of the evidence and resolves any
conflicts in the evidence presented.” United States v. McLean,
715 F.3d 129, 137 (4th Cir. 2013) (internal quotation marks
omitted).
15
To obtain a drug trafficking conspiracy conviction under 21
U.S.C. § 846, “the government must prove that (1) the defendant
entered into an agreement with one or more persons to engage in
conduct that violated 21 U.S.C. § 841(a)(1); (2) that the
defendant had knowledge of that conspiracy; and (3) that the
defendant knowingly and voluntarily participated in the
conspiracy.” United States v. Howard, 773 F.3d 519, 525 (4th
Cir. 2014) (alterations and internal quotation marks omitted).
“Given the clandestine and covert nature of conspiracies, the
government can prove the existence of a conspiracy by
circumstantial evidence alone.” Id. (internal quotation marks
omitted); see also United States v. Burgos, 94 F.3d 849, 857
(4th Cir. 1996) (en banc). Once the conspiracy is proven, “the
evidence need only establish a slight connection between the
defendant and the conspiracy to support conviction.” Burgos, 94
F.3d at 861 (internal quotation marks omitted). It is well
established that “[t]he government can satisfy the knowledge
requirement by showing either that [the defendant] actually knew
of the conspiracy or that he was willfully blind to it by
purposely closing his eyes to avoid knowing what was taking
place around him.” United States v. McIver, 470 F.3d 550, 563
(4th Cir. 2006) (internal alteration, quotation marks, and
citation omitted).
16
Viewing the evidence in the light most favorable to the
prosecution, we find ample support for the jury’s finding that
Thomson knowingly and voluntarily participated in the Krush
conspiracy when he transported the two loads of marijuana from
California to the Krush warehouse in Maryland.
The government presented overwhelming evidence of the
existence of the Krush conspiracy, which had utilized “cover
vehicles” to transport marijuana. The drivers were aware of the
nature of their risky cargo and, in some cases, were provided
financial assistance in obtaining their transport vehicles.
Anderson was a 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
obtaining a trailer at a significantly reduced price, and that
the trailer was specially designed to include a secure storage
or “dead space” in the front that government witnesses testified
would facilitate the concealment of marijuana. Although Thomson
claimed to be a legitimate commercial carrier, he did not
register his vehicle for use as a commercial carrier, nor did he
place any business logos on it. Thomson then used the truck and
trailer to transport over thirty boxes that had been wrapped in
dark plastic and secured in the specially designed storage area.
Both loads included a vehicle that would have blocked view of
the storage space and potentially legitimized the transport if
17
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. He made both deliveries to the Krush warehouse
after dark, waiting at a rest area for hours on the second trip
instead of going straight to the warehouse, yet was absent
during the times that his trailer was being unloaded.
Glickman testified that Dayi paid Thomson $200 a pound, or
approximately $50,000, to drive each load of marijuana across
the country. He also testified that it was his recommendation
and experience that the drivers would be made aware that they
were carrying marijuana because it would encourage the driver to
exercise additional care and judgment during the trip. As
Glickman noted, not knowing could cause more trouble than
knowing because, for example, an unknowing driver might not be
as careful to avoid being stopped by law enforcement. Wylie
similarly testified that the prior drivers he had used on behalf
of the Krush conspiracy knew what they were transporting, that
Anderson told him that Thomson was paid $40,000 per load, and
that Thomson must have known what he was transporting based upon
the amount he was paid.
For his part, Thomson claimed that he did not know what was
in the boxes, because it was “not [his] concern,” J.A. 2979, and
he “really wasn’t interested,” J.A. 2879. Thomson also claimed
that he was only paid a total of $3000 for both trips. In other
18
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 --
without telling Thomson. However, there were ample bases upon
which the jury could have concluded that Thomson was simply not
being truthful about these matters - a determination that is
solely within its province. See McLean, 715 F.3d at 137; United
States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994).
Among other things that may not have rung true, Thomson
claimed that he only made the first trip for Anderson to
Maryland because he had already been hired to transport a
vehicle to Philadelphia, and that he picked up the boxes because
he was coincidentally planning to be in the San Francisco area
to sell a “classic” truck. However, Thomson related at best a
vague memory of the circumstances surrounding the first vehicle
transport. He could not recall the name of the person who hired
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. Thomson also testified that he delivered
the vehicle to a third party based upon the word of the unnamed
person who hired him. Yet, Thomson acknowledged that he
required Anderson to travel across the country to meet him at
19
the Krush warehouse because he did not want to deliver his load
to someone he did not know.
Thomson also testified that, at the conclusion of his
second trip, he left his truck and trailer at the Krush
warehouse, threw the keys to his livelihood to some “kid” that
he grabbed “by the scuff of the neck,” with instructions that
they be given to the “owner” of Krush for delivery to Anderson,
and took a plane flight home to Minnesota instead. Thomson
claimed that he was in a hurry to get home to pack up his
foreclosed house and move back to California (for which he would
need his truck and trailer), but he took a Christmas cruise with
his family in the interim.
Viewed in the light most favorable to the government, the
evidence was more than sufficient for the jury to conclude that
Thomson was not being truthful and that Thomson did have actual
knowledge that he was transporting marijuana from California to
Maryland for the Krush conspiracy. The evidence was likewise
sufficient, “at the very least,” to establish that Thomson
“purposely clos[ed] his eyes to avoid knowing what was taking
place around him,” and therefore “willfully blind to the
unlawfulness of his actions.” McIver, 470 F.3d at 563-64.
“Either circumstance establishes Appellant’s knowledge of the
conspiracy.” Id. at 564.
20
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, a willful blindness
instruction to the jury is appropriate.” United States v. Ali,
735 F.3d 176, 187 (4th Cir. 2013) (internal quotation marks
omitted). Although “caution must be exercised in giving a
willful blindness instruction,” id., the instruction is
appropriate when “the evidence supports an inference that a
defendant was subjectively aware of a high probability” that he
was participating in criminal conduct and he “purposefully
avoided learning the facts pointing to such liability.” United
States v. Jinwright, 683 F.3d 471, 479 (4th Cir. 2012) (internal
quotation marks omitted). We review the district court’s
decision to give the willful-blindness instruction for abuse of
discretion. Id. at 478.
Here, there was considerable evidence from which the jury
could conclude that, even if Thomson had successfully avoided
learning about the specific contents of the boxes thrown on his
trailer, the warning signs were abundant and Thomson’s claimed
ignorance regarding the contents of the boxes was intentional or
21
deliberate. Thomson traveled from San Diego to the San
Francisco area in order to allow Anderson - a person he
described as being prone to “harebrained schemes” - to put 16
boxes wrapped in black plastic in the secure storage space on
his trailer, which the jury could easily have inferred was
inconsistent with any legitimate packaging of “purses and shoes”
destined for a legitimate business. While Anderson was loading
the boxes on the trailer for the first trip east, Thomson left
the premises to attend an AA meeting. Thomson was also
conspicuously absent when his unusually wrapped cargo was
unloaded in Maryland, in both November and December. And while
Thomson had no problem delivering the vehicle on the trailer to
a third person at the request of the shipper, he required
Anderson to travel across the country at additional expense just
to meet Thomson at the Krush warehouse and unload the same
boxes.
As the district court observed, Thomson’s 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.” J.A. 2919. So too was
Thomson’s notable absence on the other end of the delivery.
Moreover, Thomson’s testimony about Anderson’s business affairs
“bespoke an attitude or a perspective,” J.A. 2920, that the jury
could easily have viewed as “support[ing] an inference that
22
[Thomson] was subjectively aware of a high probability” that he
was participating in criminal conduct and “purposefully avoided
learning the facts pointing to such liability,” Jinwright, 683
F.3d at 479. Accordingly, we discern no abuse of discretion on
the part of the district court when it instructed the jury that
it could find the requisite knowledge based on Thomson’s willful
blindness to the illegality of his actions.
IV.
Thomson’s next claim is that the district court erred when
it allowed into evidence certain testimony given by Glickman and
Wylie. We review a district court’s evidentiary rulings for
abuse of discretion. See United States v. Johnson, 617 F.3d
286, 292 (4th Cir. 2010). “The abuse of discretion standard is
highly deferential, and a reviewing court should not reverse
unless the ruling is ‘manifestly erroneous.’” United States v.
Graham, 711 F.3d 445, 453 (4th Cir. 2013).
A.
Federal Rule of Evidence 801(d)(2)(E) provides an exception
to the hearsay rule for statements made by a defendant’s
“coconspirator during and in furtherance of the conspiracy.”
“In order to admit a statement under 801(d)(2)(E), the moving
party must show that (i) a conspiracy did, in fact, exist, (ii)
the declarant and the defendant were members of the conspiracy,
and (iii) the statement was made in the course of, and in
23
furtherance, of the conspiracy.” United States v. Pratt, 239
F.3d 640, 643 (4th Cir. 2001). “A statement by a co-conspirator
is made ‘in furtherance’ of a conspiracy if it was intended to
promote the conspiracy’s objectives, whether or not it actually
has that effect.” United States v. Shores, 33 F.3d 438, 443
(4th Cir. 1994). A statement may also “be in furtherance of the
conspiracy even though it is susceptible of alternative
interpretations and was not exclusively, or even primarily, made
to further the conspiracy, so long as there is some reasonable
basis for concluding that it was designed to further the
conspiracy.” Id. at 444. However, “[i]dle conversation that
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
Glickman’s testimony that Dayi told him Thomson was paid $200
per pound, or approximately $50,000 a load, to haul the
marijuana from California to Maryland, because the statement was
made during idle conversation after the fact and, therefore, not
“in furtherance of the conspiracy.” We are unpersuaded.
As the district court observed, Glickman served as a mentor
and advisor to Dayi in both his legitimate and illegitimate
business operations. Both Glickman and Wylie testified that
24
Dayi’s demands for marijuana and for faster transport of the
marijuana had been steadily increasing during 2012. This
resulted in their pursuit of alternative means of transporting
larger amounts of marijuana than had been possible through the
mail. Clearly, Glickman’s discussion with Dayi about the cost
of transporting large quantities of marijuana for the Krush
conspiracy, from California to Maryland by truck and trailer,
was more than mere “idle chatter.” See Graham, 711 F.3d at 454.
Such statements are at the heart of any distribution business,
and no less so for the conspiracy’s business of distributing
marijuana at a profit. Accordingly, the district court did not
abuse its discretion in allowing Glickman’s testimony.
We likewise reject Thomson’s claim that the district court
abused its discretion when it allowed Wylie to relate Anderson’s
statement that Thomson had successfully defeated a 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, Wylie’s testimony
about the cost of transporting the marijuana was admissible
under Rule 801(d)(2)(E). Like Glickman, Wylie was intricately
involved in the marijuana conspiracy, serving as a primary
supplier on the California end. Anderson’s claim that he and
Thomson had a guaranteed means of safely transporting the
marijuana for Dayi was likewise admissible under Rule
25
801(d)(2)(E). While the substance of Anderson’s statement
concerned Thomson’s successful transportation activity in the
past, the statement served to promote their method of transport
to Wylie and Dayi and further their mutual goal of safely
transporting the marijuana. The district court also did not
abuse its discretion when it overruled Thomson’s alternative
objections to Anderson’s statement under Rule 404(b) or Rule
403. As noted by the district court, the statement was not
admitted as character evidence or to prove some other bad act or
wrong on the part of Thomson. It was admitted as evidence of
the ongoing activities and objectives of the conspiracy, the
probative 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,
based upon his observations and experience, that “Thomson knew
he was transporting marijuana” because “you don’t get paid
$40,000 if you don’t know,” J.A. 1775, and that Thomson’s plan
was to haul a classic car while transporting marijuana as cover
in case he was stopped by the police. We disagree.
“Federal Rule of Evidence 701 authorizes the admission of
lay opinion testimony if it is: ‘(a) rationally based on the
perception of the witness, and (b) helpful to a clear
26
understanding of the witness’ testimony or the determination of
a fact in issue, and (c) not based on scientific, technical, or
other 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 person’s
reasoning and opinions about witnessed events, such as are
familiar in every day life.” Id. “[U]nlike the expert
testimony rule, this rule permits lay testimony relating to a
defendant’s hypothetical mental state.” Id.As a major marijuana supplier to the Krush conspiracy,
Wylie was intricately involved in efforts to find faster and
safer transportation to satisfy Dayi’s increasing demand. In
this capacity, Wylie recruited at least two other drivers, both
of whom were told that they were transporting marijuana and one
of whom utilized a car carrier. Wylie was the person who put
Dayi and Glickman in contact with Anderson and Thomson. And
Wylie personally participated in the packaging and wrapping of
the boxes that were placed in Thomson’s trailer. Wylie’s
testimony that Thomson had to have known that he was
transporting marijuana based upon the extraordinary amount he
was being paid and that Thomson planned to use a cover vehicle
to avert detection by law enforcement, even though expressed in
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the form of opinions, fell well within the knowledge he
possessed based upon his participation in the business of the
conspiracy and his personal perceptions of the events that
surrounded Thomson’s trips. It was also, of course, clearly
helpful to the jury’s understanding of the conspiracy evidence
that had been presented to it. Accordingly, the district court
did not abuse its discretion in allowing the testimony.
V.
Thomson’s final claim is that the district court improperly
issued an Allen charge to the jury. “Derived from Allen v.
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 States v. Cornell, 780
F.3d 616, 625 (4th Cir. 2015). It advises the “jurors to have
deference to each other’s views, that they should listen, with a
disposition to be convinced, to each other’s argument.” United
States v. Burgos, 55 F.3d 933, 935-36 (4th Cir. 1995) (internal
quotation marks omitted). “The crux of our Allen charge
analysis is the likelihood of coercion. The district court acts
within its discretion when the charge or charges, taken as a
whole and in light of all the circumstances, do not coerce the
jurors to abandon their view.” Cornell, 780 F.3d at 626. And,
of course, the district court “is in the best position to gauge
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whether a jury is deadlocked or able to proceed further with its
deliberations.” United States v. Seeright, 978 F.2d 842, 850
(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: “What is the process, or are there further
instructions, when the jury is deadlocked for one defendant, and
there is no foreseeable resolution to the deadlock?” J.A. 3490
(emphasis added). There was no indication which of the three
defendants was the subject of the deadlock or whether the
deadlock involved the question of a particular defendant’s
knowing participation in the conspiracy or only the quantity of
the marijuana involved. Thomson and his co-defendants requested
that the district court take a partial verdict for the two
defendants and declare a mistrial for the third defendant. The
district court issued an Allen charge instead and returned the
jury to further deliberations. Approximately two hours later,
the jury returned a unanimous verdict of guilty as to all three
defendants. Thomson’s codefendants were convicted of the
charged offense. Thomson was convicted of a lesser-included
offense based upon the drug quantity.
Thomson does not contest the content of the Allen charge.
Rather, he contends that the district court’s failure to advise
the jury that a partial verdict could be returned under Federal
29
Rule of Criminal Procedure 31(b)(1), and/or its failure to
immediately take a partial verdict, resulted in the Allen charge
having an impermissibly coercive effect. We disagree.
As Thomson acknowledges, there is no specific requirement
that the district court inform the jury of its ability to return
a partial verdict. And we find no abuse of discretion in the
district court’s well-reasoned decision to issue an Allen charge
rather than take a partial verdict as to the two defendants and
declare a mistrial as to the third. The district court plainly
took into consideration the length of the trial, the complexity
of the conspiracy, and the relatively short period of time that
the jurors had deliberated. Moreover, the jury did not request
that they be allowed to return a partial verdict or even
indicate that they were hopelessly deadlocked. They sought
guidance as to their next step and, in doing so, specifically
asked if “there [were] further instructions” to be considered.
J.A. 3490. In such cases, “[w]e regularly uphold Allen
instructions.” Cornell, 780 F.3d at 627.
VI.
For the foregoing reasons, we affirm Thomson’s conviction.
AFFIRMED
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