Filed: Feb. 24, 2009
Latest Update: Mar. 02, 2020
Summary: 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of the United 2009 Decisions States Court of Appeals for the Third Circuit 2-24-2009 USA v. Dowe Precedential or Non-Precedential: Non-Precedential Docket No. 06-3188 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "USA v. Dowe" (2009). 2009 Decisions. Paper 1831. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1831 This decision is brought to you for free and open access by the Opinions of the United States C
Summary: 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of the United 2009 Decisions States Court of Appeals for the Third Circuit 2-24-2009 USA v. Dowe Precedential or Non-Precedential: Non-Precedential Docket No. 06-3188 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "USA v. Dowe" (2009). 2009 Decisions. Paper 1831. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1831 This decision is brought to you for free and open access by the Opinions of the United States Co..
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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Precedential or Non-Precedential: Non-Precedential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
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"USA v. Dowe" (2009). 2009 Decisions. Paper 1831.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1831
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
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
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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
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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, 349 F.3d 138, 143 (3d Cir. 2003), vacated
and remanded on Booker grounds sub nom. Barbour v. United States,
543 U.S. 1102
(2005); see also United States v. Stiger,
413 F.3d 1185, 1192 (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, 349 F.3d at 143.
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.
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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, 469 U.S. 57, 62 (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.’”
Id. at 64-65 (quoting Dunn v. United States,
284 U.S. 390, 393 (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, 395 F.3d 173, 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, 33 F.3d 1396, 1410 (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, 395 F.3d at 184.
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.
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