United States v. Charles Thomson

UNPUBLISHED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 Decided: January 27, 2016

Before TRAXLER, Chief Judge, and MOTZ and HARRIS, Circuit
Judges.

Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

37 months in prison. On appeal, 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 arises out of a marijuana trafficking

organization headed by Kerem Dayi. Dayi operated the

organization in conjunction with his internet retail business,

Krush NYC, LLC (“Krush”), from a warehouse in Maryland. Dayi

and his coconspirators obtained marijuana from California,

arranged for its transport to Maryland, and distributed it in

Maryland, New Jersey, and Ohio.

During the summer and fall of 2012, law enforcement

officers in Nebraska and West Virginia stopped vehicles

containing large amounts of either marijuana or 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)
2
connection with the ensuing investigation, officers placed

court-ordered wiretaps on telephones associated with Dayi and

conducted surveillance of the Krush warehouse. During

surveillance, Thomson was seen delivering two 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.

3
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. Thomson did not assist in the

unloading. 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 2013, the grand jury returned an indictment

against Dayi, Anderson, Thomson, and several others, for

conspiracy to distribute and possess with the intent 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 2013. Bergal and Hadziefejzovi were

involved, among other things, in the receipt of Thomson’s

marijuana deliveries to the Krush warehouse, and they were

convicted of the charged conspiracy offense. Thomson was

convicted of the lesser-included offense of conspiracy 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 Eng, Robert Glickman, and

4
Neil Wylie – as well as 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 ran an office and warehouse in Walnut Creek,

California, not far from San Francisco, for the purpose of

receiving, packaging, and shipping marijuana. During the first

half of 2012, Wylie sent approximately 40 pounds of marijuana

per month through the mail to Dayi. When Dayi began demanding

larger marijuana shipments at a 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. However, Lewis was required to make his

legal deliveries along the way, stop at weigh stations, and

5
limit the amount of time he was driving -- all of which

increased his delivery time and his risk. Lewis and 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, in the fall of 2012, Wylie made contact with

Anderson, a former acquaintance who grew and distributed

marijuana in California. 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.

6
 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 half for one of Anderson’s customers in

Philadelphia. When Thomson arrived to pick up the loaded

7
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 like

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

1697. Based upon his experience, Wylie testified 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. Anderson flew back to

8
California with the rest. 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. Wylie testified that the plan was for Anderson to

drive 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

9
deliveries were made and assisted in unloading the boxes from

Thomson’s trailer. Thomson, however, did not assist on either

occasion. Glickman testified that the only time he saw Thomson

was when Thomson came to the warehouse the day after the

December delivery to get a ride to the airport. Glickman

confirmed Wylie’s testimony that the deliveries 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 resided). According to Thomson, he was already

planning to commercially transport a car from Los Angeles,

California, to Philadelphia, Pennsylvania, in November 2013,

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

throw some boxes on” Thomson’s trailer, for delivery to

Maryland. J.A. 2879. Thomson testified that Anderson always

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

10
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

11
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. He also

could not recall the exact amount of the payment that he

received for the vehicle transport. Thomson testified that he

12
stayed four nights at a Holiday Inn near Philadelphia, looking

for a load to take back, and then returned to California.

With regard to the December delivery, Thomson testified

that Anderson hired him to haul a Lexus 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.” J.A.

2888. 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. Thomson unloaded the Lexus

but not the boxes. Thomson testified that when Anderson

arrived, they went into the trailer where he was “ripping”

Anderson for making him wait. J.A. 2893. 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

13
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 legally drive. Thomson testified that he

mistakenly believed he did not need such a registration.

Although Thomson claimed to perform his legitimate trucking

business by internet listings and word of mouth, he had no

business markings on his truck. When Thomson’s truck and

trailer were seized, law enforcement officers found no

commercial driver logs, invoices, paperwork, or anything else

14
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 participated in the

Krush marijuana-distribution conspiracy. We disagree.

We review the district court’s denial of a Rule 29 motion

for insufficiency of the evidence de novo. See United States v.

Engle, 676 F.3d 405, 419 (4th Cir. 2012). “[W]e must sustain

the verdict if there is substantial evidence, viewed in the

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

“Substantial evidence is evidence that a reasonable finder of

fact could accept as adequate and sufficient to support a

conclusion of guilt beyond a reasonable doubt.” Id. 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.” Id. (internal quotation

marks and citations omitted). In evaluating the motion, we must

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

weighs the credibility of the evidence and resolves any

conflicts in the evidence presented.” United States v. McLean,

715 F.3d 129, 137 (4th Cir. 2013) (internal quotation marks

omitted).

15
 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 and voluntarily participated in the

conspiracy.” 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 of a conspiracy by

circumstantial evidence alone.” 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.” Burgos, 94

F.3d at 861 (internal quotation marks omitted). It is well

established that “[t]he government can satisfy the knowledge

requirement by showing either that [the defendant] actually knew

of the conspiracy or that he was willfully blind to it by

purposely closing his eyes to avoid knowing what was taking

place around him.” United States v. McIver, 470 F.3d 550, 563

(4th Cir. 2006) (internal alteration, quotation marks, and

citation omitted).

16
 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. Although Thomson

claimed to be a legitimate commercial 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

17
stopped by the police. 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 care and judgment during the trip. As

Glickman noted, not knowing could cause more 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. In other

18
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 they had not yet been paid --

without telling Thomson. 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 that he only made the first trip for Anderson to

Maryland because he had already been hired to transport 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

19
the Krush warehouse because he did not want to deliver his load

to someone he did not know.

Thomson also testified that, at the conclusion of his

second trip, he left his truck and trailer at the 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. The evidence was likewise

sufficient, “at the very least,” to establish that Thomson

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

place around him,” and therefore “willfully blind to the

unlawfulness of his actions.” McIver, 470 F.3d at 563-64.

“Either circumstance establishes Appellant’s knowledge of the

conspiracy.” Id. at 564.

20
 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 willful blindness

instruction to the jury is appropriate.” United States v. Ali,

735 F.3d 176, 187 (4th Cir. 2013) (internal quotation marks

omitted). Although “caution must be exercised in giving a

willful blindness instruction,” id., the instruction is

appropriate when “the evidence supports an inference that 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

21
deliberate. Thomson traveled from San Diego to the San

Francisco area in order to allow Anderson - a person 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 to attend an AA meeting. Thomson was also

conspicuously absent when his unusually wrapped cargo was

unloaded in Maryland, in both November and December. 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.” J.A. 2919. So too was

Thomson’s notable absence on the other end of the 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] an inference that

22
[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 rule for statements made by a defendant’s

“coconspirator during and in furtherance of the 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 in the course of, and in

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furtherance, of the conspiracy.” United States v. Pratt, 239

F.3d 640, 643 (4th Cir. 2001). “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.” United States v. Shores, 33 F.3d 438, 443

(4th Cir. 1994). A statement may also “be in furtherance of the

conspiracy even 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 concluding that it was designed to further the

conspiracy.” Id. at 444. 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 in both his legitimate and illegitimate

business operations. 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. Clearly, Glickman’s discussion with Dayi about the cost

of 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 the marijuana was admissible

under Rule 801(d)(2)(E). Like Glickman, Wylie was intricately

involved in the marijuana conspiracy, serving as a primary

supplier on the California end. Anderson’s claim that he and

Thomson had a guaranteed means of safely transporting the

marijuana for Dayi was likewise admissible under Rule

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801(d)(2)(E). While the substance of Anderson’s statement

concerned Thomson’s successful transportation activity in the

past, the statement served to promote their method of transport

to Wylie and Dayi and further their mutual goal of safely

transporting the marijuana. The district court also did not

abuse its discretion when 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: ‘(a) rationally based on the

perception of the witness, and (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 and opinions about witnessed events, such as are

familiar in every day life.” Id. “[U]nlike the expert

testimony rule, this rule permits lay testimony relating to a

defendant’s hypothetical mental state.” Id.

As a major marijuana supplier 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 that were placed in Thomson’s trailer. Wylie’s

testimony that Thomson had to have known that 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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the form of opinions, fell well within the knowledge he

possessed based upon his participation in the business of the

conspiracy and his personal perceptions of the events that

surrounded Thomson’s trips. 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 of our Allen charge

analysis is the likelihood of coercion. 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?” J.A. 3490

(emphasis added). There was no indication which of the three

defendants was the subject of the deadlock or whether the

deadlock involved the question of a particular defendant’s

knowing participation in the conspiracy or only the quantity of

the marijuana involved. Thomson and his co-defendants requested

that the district court take a partial verdict for the two

defendants and declare a mistrial for the third defendant. 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 codefendants were convicted of the

charged offense. 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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Rule of Criminal Procedure 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. Moreover, the jury did not request

that they be allowed to return a partial verdict or even

indicate that they were hopelessly deadlocked. They sought

guidance as to their next step and, in doing so, specifically

asked if “there [were] further instructions” to be considered.

J.A. 3490. In such cases, “[w]e regularly uphold Allen

instructions.” Cornell, 780 F.3d at 627.

VI.

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

AFFIRMED

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