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United States v. Elwood

decided as corrected: June 9, 1993.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
GERALD ELWOOD, A/K/A NAP, WILLIAM BARNES, JR., AND ERNEST MARRERO, DEFENDANTS-APPELLANTS.



Appeals from the United States District Court for the Eastern District of Louisiana. D.C. DOCKET NUMBER CR-91-371-E-01. D.C. JUDGE Marcel Livaudais, Jr.

Before Politz, Chief Judge, Duhe, Circuit Judge, and Mahon,*fn* District Judge.

Author: Politz

POLITZ, Chief Judge:

William Barnes, Jr., Gerald Elwood, and Ernest Marrero appeal their convictions for various drug trafficking offenses. We affirm the convictions of Marrero and Barnes and, as detailed herein, remand Elwood's case for Robinson*fn1 findings.

Background

As part of an ongoing narcotics trafficking investigation, St. John Parish Sheriff's deputies conducted surveillance at the Holiday Inn in LaPlace, Louisiana. On July 12, 1991, Room 102 was among the rooms targeted, based on information that the occupants were staying only one night, paid cash, flashed large rolls of bills, and made lots of long distance phone calls. A deputy observed Ernest Marrero go out to a Nissan Maxima parked near the room, remove a bag, and return to Room 102. Shortly thereafter Marrero, Elwood, Barnes, and Rudolph Dennison*fn2 left Room 102. Marrero and Dennison, both juveniles, got into the Nissan, with Dennison driving, and placed the bag in the back seat; Elwood and Barnes got into a black, armor-plated, pickup truck with "HOMICIDE" painted on the front and "VILLAIN IN BLACK" on the side.

The Nissan left the hotel followed by the pickup, driven by Elwood. Both immediately ran a stop sign and then a red light. Deputy Francks pulled the Nissan over to the side of the road; the pickup pulled in and stopped behind the deputy and its lights were turned off. Fearing for the safety of Deputy Francks, Deputies Mitchell and Bazile, in a second car, pulled in directly behind the pickup. Both Marrero and Dennison were wearing beepers; neither carried any identification. Francks looked into the Nissan and saw an open bag containing what appeared to be cocaine; the bag was later determined to contain 2,027 grams of cocaine wrapped in over 200 packets.

After determining that neither Elwood nor Barnes had any identification, Deputy Mitchell looked into the truck and saw a Glock semi-automatic pistol; further search revealed a .38 caliber Smith & Wesson revolver on the floor beneath the passenger seat, a cellular phone, and a pager. The deputies also found a paper bag containing plastic bags with cocaine residue on them which had fallen out on the passenger side when Barnes exited the pickup. All four were arrested. The deputies testified that Elwood consented to the search of the truck and the subsequent search of the hotel room. In the hotel room the deputies found, inter alia, a triple beam scale, more plastic bags, and over $5,000 cash.

Marrero was a juvenile at the time of the offense but the district court granted the government's motion to try him as an adult. Marrero, Barnes, and Elwood were ultimately charged in a three-count indictment: count one charged Elwood and Barnes with conspiracy to possess with intent to distribute cocaine; count two charged Elwood, Barnes, and Marrero with possession with intent to distribute cocaine; and count three charged all three with using and carrying firearms during and in relation to a drug trafficking offense. They were tried and convicted by a jury on all charges.

Elwood was sentenced to concurrent 121-month terms of imprisonment on counts one and two and a consecutive 60-month term on the gun count. Barnes and Marrero were each sentenced to 78 months imprisonment*fn3 on the drug counts plus a consecutive 60-month sentence on the gun count.

Analysis

1. Trial of Ernest Marrero as an Adult

Marrero contends that it was not proper to try him as an adult. The requisites for trying a juvenile as an adult in federal court are set forth in 18 U.S.C. § 5032. In a case such as this, the government first must certify to the court that (1) the offense charged is one of the enumerated drug offenses, and (2) "there is a substantial Federal interest in the case or the offense to warrant the exercise of federal jurisdiction."*fn4 The district court then must conduct a transfer hearing to determine whether trial of the juvenile as an adult "would be in the interest of Justice." The district court must consider and make record findings regarding the following factors:

The age and social background of the juvenile; the nature of the alleged offense; the extent and nature of the juvenile's prior delinquency record; the juvenile's present intellectual development and psychological maturity; the nature of past treatment efforts and the juvenile's response to such efforts; the availability of programs designed to treat the juvenile's behavioral problems.*fn5

"The decision whether to transfer a juvenile to trial as an adult under 18 U.S.C. ยง 5032 is within the sound discretion of the trial court, provided the court employs and makes findings ...


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