1997 Decisions

Opinions of the United

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Precedential or Non-Precedential: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
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, 

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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 

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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 

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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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