United States v. Thomas Clifford Whitmore, AKA Lil Tommy, AKA Young Tommy

Per Curiam; Concurrence by Judge RYMER.

Thomas Clifford Whitmore appeals his convictions for a variety of narcotics-related offenses. Whitmore and 15 co-defendants were charged in a 44-count indictment with numerous drug-related offenses. The government’s theory of the case placed Whit-more at the center of an ongoing narcotics conspiracy, which began in early 1986 and continued until Whitmore’s arrest in August 1990. A jury found Whitmore guilty on 16 counts.

We reject most of Whitmore’s challenges in an unpublished disposition. Here, we consider Whitmore’s appeal of his two convictions for using a communication facility to engage in drug trafficking. 21 U.S.C. § 843 (b). This appeal requires us to decide whether the district court’s failure to instruct on the knowledge element of the § 843(b) offenses is plain error.

I

This opinion considers Whitmore’s appeal of his convictions on Counts 25 and 30. Count 25 of the indictment charged that, on July 19, 1990, Whitmore and Rodney Hair-ston used a communication device (the telephone) “in committing and causing and facilitating the commission of a violation of’ 21 U.S.C. § 841 (a)(1), distribution and possession with intent to…

concurring:

I write separately because the district court’s failure to instruct on the knowledge element required for conviction on the communication counts was harmless beyond a reasonable doubt for another reason: The court correctly instructed on the knowledge element required to find Whitmore guilty of the underlying substantive offenses (Counts 26 and 31), the knowledge elements for each § 843(b) offense (Counts 25 and 30) and its underlying substantive offense are identical, and the jury returned guilty verdicts on those substantive offenses.

Whitmore challenges neither the sufficiency of the evidence nor the adequacy of the instructions on the knowledge element of the 21 U.S.C. § 841 (a)(1) offenses. The underlying drug transaction was done entirely over the telephone in the case of Count 26, and in part over the phone and in part in person in the case of Count 31. It is therefore beyond question that the jury had to find that when Whitmore placed the telephone calls, he knew that he was doing so to facilitate the distribution of cocaine. This is the same knowledge required for a violation of 21 U.S.C. § 843 (b). For this reason, Whit-more’s knowledge for purposes of the…

24 F.3d 32 UNITED STATES of America, Plaintiff-Appellee, v. Thomas Clifford WHITMORE, aka Lil Tommy, aka Young Tommy, Defendant-Appellant. No. 91-50240. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 4, 1993. Decided May 13, 1994. Maureen R. Kallins, San Francisco, CA, for defendant-appellant. Lisa B. Lench, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before: SKOPIL, HALL, and RYMER, Circuit Judges. Per Curiam; Concurrence by Judge RYMER. PER CURIAM: 1 Thomas Clifford Whitmore appeals his convictions for a variety of narcotics-related offenses. Whitmore and 15 co-defendants were charged in a 44-count indictment with numerous drug-related offenses. The government's theory of the case placed Whitmore at the center of an ongoing narcotics conspiracy, which began in early 1986 and continued until Whitmore's arrest in August 1990. A jury found Whitmore guilty on 16 counts. 2 We reject most of Whitmore's challenges in an unpublished disposition. Here, we consider Whitmore's appeal of his two convictions for using a communication facility to engage in drug…