US v. Charles Thomson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cr-00012-JKB-15. Copies to all parties and the district court/agency. [999742385]. [14-4167]

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UNPUBLISHED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

Before TRAXLER,
Judges.

Chief

Judge,

Decided:

and

MOTZ

and

January 27, 2016

HARRIS,

Circuit

Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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.
37

months

in

prison.

On

appeal,

He was sentenced to

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

organization

arises

headed

out

by

of

Kerem

a

Dayi.

marijuana
Dayi

trafficking
operated

the

organization in conjunction with his internet retail business,
Krush NYC, LLC (“Krush”), from a warehouse in Maryland.
and

his

coconspirators

obtained

marijuana

from

Dayi

California,

arranged for its transport to Maryland, and distributed it in
Maryland, New Jersey, and Ohio.
During
officers
containing

the

in

summer

Nebraska

large

and
and

amounts

of

fall
West

of

Virginia

either

*

2012,

law

enforcement

stopped

marijuana

or

vehicles

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)
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connection

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with

the

ensuing

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investigation,

officers

placed

court-ordered wiretaps on telephones associated with Dayi and
conducted

surveillance

surveillance,

Thomson

of

the

was

seen

Krush

warehouse.

delivering

two

During
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.

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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.
unloading.

Thomson did not assist in the

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

against

Dayi,

conspiracy

2013,

the

Anderson,

to

grand

jury

Thomson,

distribute

and

returned

and

an

several

possess

with

indictment

others,

the

intent

for
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

other

2013.

Bergal

involved,

among

marijuana

deliveries

convicted

of

the

charged

convicted

of

the

lesser-included

to

things,
the

in

Krush

and

the

Hadziefejzovi

receipt

warehouse,

conspiracy

offense.

offense

of

of
and

were

Thomson’s
they

Thomson
conspiracy

were
was
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

4

Eng,

Robert

Glickman,

and

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Neil

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Wylie

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–

as

well

as

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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
California,

ran
not

an
far

office
from

and
San

warehouse

Francisco,

in

Walnut

for

receiving, packaging, and shipping marijuana.

the

Creek,

purpose

of

During the first

half of 2012, Wylie sent approximately 40 pounds of marijuana
per month through the mail to Dayi.
larger

marijuana

shipments

at

a

When Dayi began demanding

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.
legal

deliveries

along

However, Lewis was required to make his
the

way,
5

stop

at

weigh

stations,

and

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the

increased

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amount
his

of

time

delivery

time

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he

was

and

driving

his

--

risk.

all

which

and

Lewis

of

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,
Anderson,

in
a

the

fall

former

of

2012,

acquaintance

marijuana in California.

Wylie
who

made

grew

and

contact

with

distributed

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.

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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

Philadelphia.

half
When

for

one

Thomson

of
arrived
7

Anderson’s
to

pick

customers
up

the

in

loaded

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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

driving around with a[n] empty trailer all the time.”
1697.

Based

upon

his

experience,

Wylie

testified

like
J.A.

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.
8

Anderson flew back to

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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.
drive

Wylie testified that the plan was for Anderson to

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
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deliveries were made and assisted in unloading the boxes from
Thomson’s trailer.
occasion.
was

Glickman testified that the only time he saw Thomson

when

December

Thomson, however, did not assist on either

Thomson
delivery

confirmed

came
to

Wylie’s

to

get

the

warehouse

a

ride

testimony

to

that

the

the

the

day

after

airport.

deliveries

the

Glickman
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
planning

to

resided).

California,

According

commercially
to

to

transport

Philadelphia,

Thomson,
a

car

Pennsylvania,

he

from
in

was
Los

already
Angeles,

November

2013,

when Anderson called him and asked him “to stop by if he could
throw

some

Maryland.

boxes

on”

J.A. 2879.

Thomson’s

trailer,

for

delivery

to

Thomson testified that Anderson always

had some “harebrained scheme” going on, J.A. 2861, but he denied
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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
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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.
could

not

recall

the

exact

amount

received for the vehicle transport.

12

of

the

payment

He also
that

he

Thomson testified that he

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stayed four nights at a Holiday Inn near Philadelphia, looking
for a load to take back, and then returned to California.
With
that

regard

Anderson

to

hired

the

December

him

to

haul

delivery,
a

Lexus

Thomson

testified

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.”
2888.

J.A.

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.
but

not

arrived,

the

boxes.

they

went

Thomson
into

the

Thomson unloaded the Lexus

testified

trailer

Anderson for making him wait.

that

where

J.A. 2893.

he

when
was

Anderson
“ripping”

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
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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

mistakenly

legally

believed

Although

Thomson

business

by

business

markings

trailer

were

he

drive.
did

claimed

internet

to

listings

on

seized,

his

not

need

perform
and

truck.

law

Thomson

such

his

word

testified
a

that

registration.

legitimate

of

he

mouth,

trucking

he

had

no

When

Thomson’s

truck

and

enforcement

officers

found

no

commercial driver logs, invoices, paperwork, or anything else

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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

Krush marijuana-distribution conspiracy.

participated

in

the

We disagree.

We review the district court’s denial of a Rule 29 motion
for insufficiency of the evidence de novo.
Engle, 676 F.3d 405, 419 (4th Cir. 2012).
the

verdict

if

there

is

substantial

See United States v.
“[W]e must sustain

evidence,

viewed

in

light most favorable to the government, to support it.”

the
Id.

“Substantial evidence is evidence that a reasonable finder of
fact

could

conclusion

accept
of

guilt

as

adequate

beyond

a

and

sufficient

reasonable

to

doubt.”

support
Id.

a

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.”
marks and citations omitted).

Id. (internal quotation

In evaluating the motion, we must

also remain “mindful that the jury, not the reviewing court,
weighs

the

credibility

of

the

evidence

conflicts in the evidence presented.”
715

F.3d

129,

137

(4th

Cir.

2013)

omitted).

15

and

resolves

any

United States v. McLean,
(internal

quotation

marks

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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

conspiracy.”

and

voluntarily

participated

in

the

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

circumstantial evidence alone.”

of

a

conspiracy

by

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.”
F.3d at 861 (internal quotation marks omitted).
established

that

“[t]he

government

can

satisfy

Burgos, 94
It is well

the

knowledge

requirement by showing either that [the defendant] actually knew
of

the

conspiracy

purposely

closing

place around him.”
(4th

Cir.

2006)

or

that

he

was

willfully

his

eyes

to

avoid

knowing

blind
what

to
was

it

by

taking

United States v. McIver, 470 F.3d 550, 563
(internal

alteration,

citation omitted).

16

quotation

marks,

and

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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.
claimed

to

be

a

legitimate

commercial

Although Thomson

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
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by

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the

police.

Pg: 18 of 30

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

Glickman

noted,

care

not

and

knowing

judgment
could

during

cause

the

more

trip.

As

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.
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In other

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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

without telling Thomson.

they

had

not

yet

been

paid

--

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
Maryland

that

he

because

only
he

made

had

the

first

already

been

trip
hired

for
to

Anderson
transport

to
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
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the Krush warehouse because he did not want to deliver his load
to someone he did not know.
Thomson
second

also

trip,

he

testified
left

his

that,
truck

at

the

and

conclusion

trailer

at

of

the

his

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.
sufficient,

“at

the

very

least,”

The evidence was likewise
to

establish

that

Thomson

“purposely clos[ed] his eyes to avoid knowing what was taking
place

around

unlawfulness
“Either

him,”
of

his

circumstance

conspiracy.”

and

therefore

“willfully

actions.”

McIver,

establishes

Appellant’s

Id. at 564.

20

470

blind

F.3d

at

knowledge

to

the

563-64.
of

the

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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

instruction to the jury is appropriate.”
735

F.3d

176,

omitted).
willful

187

(4th

Although
blindness

appropriate

when

Cir.

2013)

“caution

must

instruction,”

“the

evidence

willful

United States v. Ali,

(internal
be

blindness

quotation

exercised

id.,

supports

the
an

in

marks

giving

instruction
inference

that

a
is
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
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deliberate.
Francisco

Thomson
area

in

Pg: 22 of 30

traveled

order

to

from

San

allow

Diego

Anderson

to

-

San

person

a

the

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

conspicuously

to

attend

absent

an

when

AA

meeting.

his

Thomson

unusually

was

wrapped

cargo

unloaded in Maryland, in both November and December.

also
was

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.”
Thomson’s

notable

absence

on

the

other

J.A. 2919.
end

of

the

So too was
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]
22

an

inference

that

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[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

“coconspirator

rule

during

for
and

statements
in

made

furtherance

by

of

a

the

defendant’s
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
23

in

the

course

of,

and

in

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furtherance, of the conspiracy.”
F.3d 640, 643 (4th Cir. 2001).

United States v. Pratt, 239

“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.”
(4th Cir. 1994).
conspiracy

even

United States v. Shores, 33 F.3d 438, 443
A statement may also “be in furtherance of the
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

conspiracy.”

concluding

that

Id. at 444.

it

was

designed

to

further

the

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

business operations.

in

both

his

legitimate

and

illegitimate

Both Glickman and Wylie testified that
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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.
of

Clearly, Glickman’s discussion with Dayi about the cost

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

under Rule 801(d)(2)(E).
involved

in

the

marijuana

had

a

marijuana

for

guaranteed
Dayi

was

marijuana

was

admissible

Like Glickman, Wylie was intricately
conspiracy,

supplier on the California end.
Thomson

the

means

as

a

primary

Anderson’s claim that he and
of

likewise
25

serving

safely

transporting

admissible

under

the
Rule

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801(d)(2)(E).
concerned

While

Thomson’s

the

Pg: 26 of 30

substance

successful

of

Anderson’s

transportation

statement

activity

in

the

past, the statement served to promote their method of transport
to

Wylie

and

Dayi

and

further

transporting the marijuana.
abuse

its

discretion

when

their

mutual

goal

of

safely

The district court also did not
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:
perception

of

the

witness,

and
26

‘(a) rationally based on the
(b)

helpful

to

a

clear

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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
familiar

and
in

opinions
every

day

about

witnessed

life.”

Id.

events,

such

“[U]nlike

as

the

are

expert

testimony rule, this rule permits lay testimony relating to a
defendant’s hypothetical mental state.”
As

a

major

marijuana

supplier

Id.

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

testimony

that

were

placed

that

Thomson

had

in
to

Thomson’s
have

trailer.

known

that

Wylie’s
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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opinions,

fell

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well

within

the

knowledge

he

possessed based upon his participation in the business of the
conspiracy

and

his

personal

perceptions

surrounded Thomson’s trips.

of

the

events

that

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

analysis is the likelihood of coercion.

of

our

Allen

charge

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?”
(emphasis added).
defendants
deadlock

was

the

involved

J.A. 3490

There was no indication which of the three
subject
the

of

the

question

of

deadlock
a

or

particular

whether

the

defendant’s

knowing participation in the conspiracy or only the quantity of
the marijuana involved.
that

the

district

court

Thomson and his co-defendants requested
take

a

partial

verdict

for

the

defendants and declare a mistrial for the third defendant.

two
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

charged offense.

codefendants

were

convicted

of

the

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
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Procedure

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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.
that

they

indicate

be

that

allowed
they

to

were

Moreover, the jury did not request
return

a

hopelessly

partial

verdict

deadlocked.

or

They

even

sought

guidance as to their next step and, in doing so, specifically
asked if “there [were] further instructions” to be considered.
J.A.

3490.

instructions.”

In

such

cases,

“[w]e

regularly

uphold

Allen

Cornell, 780 F.3d at 627.
VI.

For the foregoing reasons, we affirm Thomson’s conviction.

AFFIRMED

30