UNITED STATES of America, Plaintiff-Appellee, v. Frank MARTIN, Defendant-Appellant, 920 F.2d 345

GIBBONS, District Judge. Appellant Frank Martin was convicted in the district court of conspiracy to possess cocaine with intent to distribute and conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 and possession of one kilogram of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. On appeal he challenges the sufficiency of the evidence to support his conviction and claims that he received ineffective assistance of counsel. He also claims that the district court erred in denying his motion for severance.

Martin and Sir Joseph Carroll were arrested at the Columbus, Ohio, airport on October 13, 1988, by Airport Narcotics Squad Detectives of the Columbus Police Department, shortly after their arrival on a flight from Miami. Prior to the arrest police observed the two in the airport. Martin was following Carroll from a distance of approximately thirty feet, constantly watching Carroll’s activities. At one point, Carroll stopped until Martin caught up with him; they looked at each other, and then Carroll continued toward the door with Martin again following thirty to forty-five feet behind him.

The police stopped Carroll, who gave his name as Pete Carroll. Carroll had no identification, luggage or money. Carroll stated that he was traveling alone and denied knowing Martin. One of the detectives, who had previously observed Carroll’s rather stiff carriage, then noticed a bulge under Carroll’s jacket. Ultimately, it was determined that Carroll was “body carrying” or carrying cocaine strapped tightly to his body with tape. Officers seized approximately one kilogram of cocaine from Carroll’s person.

Carroll then gave a statement in which he said that he had gone to Atlanta to purchase drugs and that Martin was not involved. Meanwhile, Officers Michael D. Earn and Thomasina Jacobs had stopped Martin. Martin consented to a search of his bags, which produced nothing. Martin gave officers the false name of Michael Carroll, but furnished his correct address and social security number. Martin testified at trial that he lied about his identity because he was afraid that his outstanding traffic warrants would be discovered and he would have to go to jail.

Other evidence indicated that Martin did have traffic warrants and had failed to appear on several occasions. At the airport, Officers Earn and Jacobs spoke to Martin about his potential involvement with Carroll. At one point one of the officers said that, if Martin had been involved with Carroll, he was going to jail. Upon hearing this, Martin shoved Officer Earn and ran out the door, dropping his black jacket as he ran. Martin was eventually apprehended in a rental car lot near the airport. Two airline tickets issued in the names of Mike Carroll and John Carroll were found in the jacket.

Later officers questioned Martin further. He stated that he had flown from Miami and that he had stayed at the Ramada Inn in Miami. He indicated that he had met Carroll in Miami and that Carroll had furnished money for the plane tickets to Columbus. Although Martin stated he planned to take a cab home, the amount of money on his person was not enough for the cab fare. At trial, Martin, who worked as a janitor in October 1988, testified that he had gone to Miami on October 12, 1988, after having an argument with his wife. He took $615.00 with him for the trip.

Martin’s wife also testified that she and Martin had argued. Martin purchased a one-way ticket to Miami. According to Martin, he went to the Club Strawberry on the night of October 12. There he happened to meet Carroll, whom he had known since high school. Martin decided to return to Columbus with Carroll the next day. Carroll called the airport to reserve the plane tickets. Martin testified that Carroll gave false names for the plane tickets as a joke. Martin met Carroll the next day at the airport.

Contrary to his earlier statement, Martin testified at trial that he gave cash to Carroll to pay for the plane ticket. The flight had a layover in Atlanta. Martin and Carroll sat together on the flight from Miami to Atlanta. In Atlanta, Martin and Carroll were asked to deplane and Martin’s bag was searched. The search produced nothing. From Atlanta to Columbus, they sat in separate seats. Martin testified that they sat separately because the flight from Atlanta to Columbus was not as crowded, and he wanted to stretch out to rest. Martin first argues that the evidence is insufficient to support his conviction.

The test for determining whether a conviction is supported by sufficient evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Scartz, 838 F.2d 876, 878 (6th Cir.1988), cert. denied, 488 U.S. 923, 109 S.Ct. 303, 102 L.Ed.2d 322 (1988). The proof offered to support Martin’s conviction meets this test.

Martin essentially contends that there is insufficient proof that he and Carroll agreed to violate the controlled substances laws and that Martin willfully participated in any conspiracy. The evidence shows that Martin and Carroll, who previously knew each other, met in Miami and traveled to Columbus together. At the Columbus airport, Martin followed Carroll from a distance and in such a manner that a rational jury could conclude he was acting as a lookout. Martin carried plane tickets for himself and Carroll. The tickets were purchased together.

Plainly there was evidence from which the jury could find the element of agreement beyond a reasonable doubt. The evidence is also sufficient with respect to Martin’s intent to participate in the conspiracy. Carroll, with whom Martin was working, had a kilogram of cocaine on his person. The amount of cocaine permits an inference that the cocaine was intended for distribution, not personal use. United States v. Franklin, 728 F.2d 994, 998 (8th Cir.1984).

A rational jury could infer Martin’s knowledge of the cocaine from his conduct in the airport, his use of a false name on the ticket and at the airport, and his flight when confronted with officers’ knowledge of Carroll’s guilt. Further, a rational jury could have found the testimony of both Martin and Carroll incredible. Although Martin offered reasons for using false names on the tickets and for his flight from officers at the airport, he gave inconsistent testimony about the purchase of the tickets and an implausible explanation about the reasons for his trip to Miami.

Similarly, the jury was free to disbelieve Carroll’s testimony that Martin was not involved in transporting cocaine. A rational jury could have found the requisite intent beyond a reasonable doubt. Martin also challenges the sufficiency of the evidence to support the conviction of possession of cocaine with intent to distribute.

Although Martin was not in actual possession of the cocaine, the evidence supports a finding that he aided and abetted the criminal venture. “To be found guilty of the crime of aiding and abetting a criminal venture, a defendant must associate himself with the venture in a manner whereby he participates in it as something that he wishes to bring about and seeks by his acts to make succeed.” United States v. Quinn, 901 F.2d 522, 530 n. 6 (6th Cir.1990) (quoting United States v. Evans, 883 F.2d 496, 501 (6th Cir.1989)).

Based on Martin’s conduct at the airport, a reasonable juror could conclude beyond a reasonable doubt that he acted as a lookout for Carroll. One who acts as a lookout for another in possession of a kilogram of cocaine is one who associates himself with the criminal venture, participates in it, and seeks by his acts to make it succeed. Therefore, the evidence was sufficient to support a conviction of possession with intent to distribute. The jury could also have properly convicted Martin of possession of cocaine with intent to distribute under the doctrine of Pinkerton v.

United States, 328 U.S. 640, 646-47, 66 S.Ct. 1180, 1183-84, 90 L.Ed. 1489 (1946). The Pinkerton doctrine permits conviction of a conspirator for the substantive offenses of other conspirators committed during and in furtherance of the conspiracy. Here, once a rational jury found Martin guilty of conspiracy, it could also find him guilty of the substantive offense of possession of cocaine with intent to distribute. On appeal, Martin also argues that the district court abused its discretion in denying his motion for severance. We reject this assertion.

The facts relating to Martin and Carroll, and to the conspiracy and substantive offense charges, were inextricably linked. Martin has not established that his joinder with Carroll created substantial prejudice so as to require severance. See United States v. Gallo, 763 F.2d 1504, 1526 (6th Cir.1985), cert. denied, 474 U.S. 1068, 106 S.Ct. 826, 88 L.Ed.2d 798 (1986). Finally, Martin appeals his conviction on the ground that he was denied effective assistance of counsel. The court declines to consider this contention, because it is being raised for the first time on appeal. See United States v.

Swidan, 888 F.2d 1076, 1081 (6th Cir.1989). There has been no opportunity to develop and include in the record evidence bearing on the merits of the allegations. Id.; United States v. Hill, 688 F.2d 18, 21 (6th Cir.), cert. denied, 459 U.S. 1074, 103 S.Ct. 498, 74 L.Ed.2d 638 (1982). The court’s refusal to address the ineffective assistance of counsel claim is without prejudice to petitioner’s right to raise the claim in a proper post-conviction proceeding under 28 U.S.C. § 2255. Appellant Frank Martin’s conviction is affirmed. . "Sir" is apparently a given name, not a title.