Petition — Valdes v. United States
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81-2233
No.
In the
Supreme Court of the United States.
Ocroser Term, 1981.
JORGE LUIS VALDES,
PETITIONER,
v.
UNITED STATES OF AMERICA,
RESPONDENT.
Petition for a Writ of Certiorari, to the United States
Court of Appeals for the Fifth Circuit.
Martin G. WEINBERG,
Oren, Weinsernc & Lawson,
75 Blossom Court,
Boston, Massachusetts 02114.
(617) 227-3700
BATEMAN & SLADE, INC. BOSTON , MASSACHUSETTS
Questions Presented.
1. Does the Fourth Amendment apply to arrests and searches
made by foreign authorities in their own country for the spe-
cific purpose of obtaining evidence for use in a United States
investigation and prosecution under United scates narcotic
laws?
A. When adjudicating the issue of the “Degree of partici-
pation formulated by a motion to suppress, should a
trial court proscribe the legal standard utilized and the
facts to which it is applied?
2. Whether, when the issue of one conspiracy or several is
closely raised, a trial judge, when so requested, must instruct
the jury on its duty to determine if the evidence establishes a
single or multiple conspiracies, and on the manner of making
such a determination, with a focus on a defendant’s specific
situation?
Table of Contents.
Opinion below
Jurisdiction
Statement of the case
Reasons for granting the writ
I. The decision below, by failing to address the issue,
raises the significant and recurring problem of
whether the fourth amendment applies to arrests
and searches made by foreign authorities in their
own country for the specific purpose of obtaining
evidence for use in a United States investigation
and prosecution 8
A. Moreover, the decision below formulates the
issue of what standard is to be used in determin-
ing the degree of United States “participation”
in the foreign activity sufficient to trigger fourth
amendment protection 8
II. The decision below compounds that existing dif-
onwnn =
condoning the failure of the trial court to charge
the jury as to its duty to resolve this issue with in-
structions focusing its attention on the petitioner's
specific situation 12
Conclusion 15
Appendix follows 15
Table of Authorities Cited.
CASsEs.
Lustig v. United States, 338 U.S. 74 (1949) 10
ii TABLE OF AUTHORITIES CITED.
Stonehill v. United States, 405 F.2d 738 (9th Cir. 1968),
cert. denied, 395 U.S. 960, reh, denied, 396 U.S.
870
United States v. Borelli, 336 F.2d 376 (2d Cir. .964),
cert. denied, 379 U.S. 960
United States v. Morrow, 537 F.2d 140 (5th Cir. 1976)
STATUTES.
21 U.S.C. § 963
28 U.S.C. § 1254(1)
12
No.
In the
Supreme Court of the United States.
Ocroser Term, 1981.
JORGE LUIS VALDES,
PETITIONER, ®
UNITED STATES OF AMERICA,
RESPONDENT.
Petition for a Writ of Certiorari, to the United States
Court of Appeals for the Fifth Circuit.
The petitioner, Jorge Luis Valdes, respectfully prays that a
writ of certiorari issue to review the judgment and opinion of
the United States Court of Appeals for the Fifth Circuit prom-
ulgated on November 16, 1981.
Opinion Below.
The opinion of the Court of Appeals is reported in 661 F.2d
436, and appears in the appendix hereto. Rehearing and re-
hearing en banc were denied on February 23, 1982.
2
Jurisdiction.
This cou:.t’s jurisdiction is invoked under 28 U.S.C. § 1254(1).
Statement of the Case.
The petitioner, one of eleven defendants, was convicted in
the United States District Court for the Middle District of
Georgia, Americus Division, of one count of conspiracy to im-
port marijuana, methaqualone and cocaine into the United
States, in violation of 21 U.S.C. § 963, and was fined $25,000
and sentenced to fifteen years confinement.
The petitioner was first arrested in Panama shortly after the
small airplane in which he had been travelling was forced to
make an emergency landing in a banana plantation in Panama
on April 26, 1979. In the pretrial proceedings, petitioner
moved to suppress all evidence and derivative fruits seized sub-
sequent to this emergency landing in Panama, including spe-
cifically all tangible evidence seized from the disabled craft,
from the suitcases aboard, and from the locked briefcase taken
from his person upon his arrest, as well as all statements and
verbal evidence obtained in the wake of the extended coercive
interrogations to which he and his travelling companions were
subject. On November 20, 1979, after two days of evidentiary
hearings, the trial judge issued a ruling denying suppression.
No findings of fact or conclusions of law were issued.
Although the police actions challenged in this case occurred
in Panama, commencing on April 26, 1979, the events leading
up to those actions began on March 28, 1979 in St. Louis,
Missouri, when DEA Agent Eugene S. Dempsey requested
that the DEA’s El Paso Intelligence Center (EPIC) place a
lookout on an airplane he “suspected” of involvement in “drug
related activities connected with the United States”. The rec-
ord does not disclose the basis for this suspicion.
3
The EPIC “lookout” picked up the plane in Panama City,
en route to South America on April 21, 1979, and Agent Sedillo
— the DEA agent in charge in Panama City — was informed.
Since to Sedillo a “lookout” meant that “there was a suspicion
of [an] American narcotics violation”, Sedillo telephoned Lt.
Jorge Latinez — a high-ranking officer in the intelligence divi-
sion of the Panamanian National Guard — informed him of
the situation and asked him to “check on the plane”.
In the afternoon of April 26, the plane was again picked up
in Panama — after an emergency landing in a banana planta-
tion in the area of Puerto Armuelles. At this time the DEA
suspicion was that the plane was travelling “from Colombia or
Bolivia or Peru” “back to the United States with drugs”. As
soon as Sedillo received this information (sometime between
2:00 and 3:15 p.m.), he telephoned Latinez who immediately
assured Sedillo that he would “get ahold of the people down
there and take appropriate action” . Sedillo testified that based
on his “prior experience” with Lt. Latinez — and on their
“established guidelines . . . regarding mutual investigation of
planes and people suspected of being involved in conspiracies
to import drugs into America” — “there was no need to talk
about search and seizures and detentions”: once he had given
Latinez the relevant information he, Sedillo, “knew what. . .
was going to occur”.
Approximately twenty to twenty-five minutes later, after
obtaining a “search warrant” from his superior officer, Latinez
telephoned Lt. Sedania, the officer in charge of the National
Guard unit stationed in Puerto Armuelles, and issued a tele-
phone order directing a complete and thorough search of the
plane, its occupants and their belongings. According to Lat-
inez, the reason for the search was that “according to EPIC
through . . . Special Agent Sedillo there was [an] 80 percent
possibility that there was drugs in that airplane”.
4
As a result of the emergency landing, the plane suffered dis-
abling damage and “was in no condition to fly”. However,
the four persons aboard the plane — Valdes, Rosenthal, Scar-
borough and Voll — alighted unscathed. While they were
assessing what to do, Lt. Sedania arrived, “looked around the
airplane, saw that everything was in order”, and discussed
with them the availability of a mechanic in the town of Puerto
Arumelles, a “15 minute car ride” distant. At Lt. Sedania’s
suggestion they accepted a ride into town and agreed to “check
with” Sedania later in the day. They left the plane locked
with their suitcases closed inside.
While the record does not disclose the time of the search of
the plane or the time that Valdes and his travelling compan-
ions were arrested, it was reported to Latinez at 7:00 a.m., the
next morning, April 27, 1979, that “three suitcases full of cc-
caine” had been found, and that the plane’s occupants were
“by that time arrested or detained”. Latinez immediately
telephoned this news to Sedillo, who responded “good work’.
A few hours later they flew into Puerto Armuelles, accompa-
nied by United States Counsel Joseph McLean, to review the
situation.
There, at the jail where the arrestees were being held, Sedil-
lo was shown packages, various documents and photographs
— still in the suitcases which had been taken both from the
locked plane and from Valdes’ person. In Sedillo’s presence,
the evidence was inventoried and the white powder was field
tested and weighed. At that time, as had occurred in previous
cases involving drugs that were “suspected of being intended
for America”, “Sedillo was given a “sample of the white
powder” “for his possession” and his “analysis as an American
law enforcement officer” — in Lt. Latinez’s words, “for [Se-
dillo] to test back in America”. Sedillo was also given copies of
all documents which had been found on the airplane or in the
various seized suitcases. As Lt. Latinez explained, these docu-
5
mentary items were given to Sedillo for the “[]]egal procedure
of the case” and because the “intelligence information” con-
tained in those items “might mean that [the DEA] can locate
in the United States a source of this drug business”. At some
point Sedillo and Latinez went out to the airplane and made
“a complete search just to satisfy ourselves.”
One of Sedillo’s specific purposes in travelling to Puerto
Armuelles was “to interview” Valdes and his travelling com-
panions. After an initial round of questioning, conducted by
Latinez in Sedillo’s presence, Sedillo “introduced [him]self in
an official capacity”, and advised the arrestees of their Miranda
rights which, he acknowledged, “were not applicable under
the Panamanian jurisdiction”. Sedillo attempted to obtain
signed “consent to interview” forms from all of the arrestees,
but at that time only Valdes was willing to sign the form and
be “interviewed”, the others remaining “non-responsive” .
The next morning, April 28, 1979, the arrestees were trans-
ferred to a jail facility in David, Panama where they were to
remain for almost a week. On the night of May 2, the arrestees
were transported to Panama City and brought to Lt. Latinez’s
office. There, after threatening them with physical violence if
they did not talk, Lt. Latinez interrogated the arrestees, one at
a time, through the night and into the morning. At about 2:00
or 2:30 a.m., Latinez interrupted his interrogation of Valdes
to try to reach Sedillo by telephone, and, when Sedillo called
back around 3:30 a.m., Latinez informed him, “I have them
in my office . . . 1 am questioning them and you can come
tomorrow morning”.
Five days later, Sedillo and Agent Dempsey — who had
come to Panama from the United States to “interview the indi-
viduals” — arrived at Latinez’s office and took each of the ar-
restees, in turn, into a “back room” for a separate “interview” ,
without Latinez present.
Sometime later that day, May 3, 1979, after Sedillo and
Dempsey “brought it to their attention” that “if they would
cooperate” “they would be going to the United States”, Scar-
borough and Voll waived their rights and gave “complete”
oral statements, which shortly thereafter were reduced to
writing and signed. The next day May 4, 1979, Scarborov gh
and Voll were permitted to return to the United States.
No formal accusations or charges were ever brought against
any of the arrestees in Panama; as Sedillo candidly admitted,
“[t)hey were just being detained there”. On May 9, 1979,
Panama deported the two remaining arrestees, the petitioner
and Rosenthal, to Miami, Florida, where they were immedi-
ately arrested and charged in this case.
Count One of the indictment — the only count in which he
was charged — alleged that the petitioner did “knowingly
combine, conspire, confederate and agree” in the Americus
Division of the Middle District of Georgia and at other places
with nineteen others to import marijuana, methaqualone and
cocaine into the United States in violation of 21 U.S.C. § 963.
This alleged Count One conspiracy was charged to have ex-
tended from on or about, May 1978, continuously up to the
date of the return of the indictment, July 10, 1979.
Of the sixteen overt acts alleged in furtherance of this Count
One conspiracy, only two — overt acts (15) and (16) — named
petitioner. Those two alleged that, (a) petitioner met, on or
about April 13, 1979, in Miami, Florida with defendants Ros-
enthal, Scarborough, and Voll to plan a trip to Bolivia to im-
port cocaine, and, (b) that petitioner and Rosenthal acquired
from defendants Rivera-Nunez and Rengal-Sanchez, on or
about April 25, 1979, at Santa Cruz, Bolivia approximately 106
kilograms of cocaine, which they thereafter attempted to im-
port into the United States. The testimony of two government
witnesses — Scarborough and Voll — concerning events dur-
ing one two-week period in April, 1979, was the only evidence
in any way directly or indirectly involving the petitioner.
7
The government's theory of the case was that Rosenthal and
Rawls were the central figures in an ongoing conspiracy to im-
port certain controlled substances from South America and
distribute them in the United States. Its evidence revolved
primarily around various trips to South America to obtain ille-
gal drugs, and the subsequent distribution of those drugs at
various locations in the United States, all under the direction
of Rosenthal and Rawls. Of the trips to South America, seven
were to Baranquilla in northern Colombia to obtain mari-
juana (with the addition, on two occasions, of qualudes). The
eighth trip, in April, 1979 — unlike any of the previous seven
— was the only one which did not go to northern California;
the only one which took on drugs in Bolivia; and the only one
in which the cargo was ultimately destined for San Francisco.
It was also the only part of the government’s evidence which in
any way involved the petitioner.
Petitioner first appeared in the respondent’s evidence on
April 7, 1979, eleven months after the formation of the alleged
Count One conspiracy — the conspiracy to import. (He was
not charged in Count Two — the conspiracy to distribute
count).
Other than the evidence of petitioner's meeting with Rosen-
thal, Scarborough and Voll at the Intercontinental Hotel in
Miami, and the evidence of his accompanying the three of
them during certain portions of their April 1979 trip through
South America, there was no evidence that petitioner ever had
any other dealings with any of these three. There was also no
evidence that petitioner knew, or was in any way connected
to, any of the other named or unnamed coconspirators in the
alleged Rosenthal-Rawls marijuana-qualude conspiracy. Nor
was there any testimony at the trial that anyone connected
with the alleged conspiracy had ever known, or even heard of
petitioner during the entire eleven months of the conspiracy
prior to April 1979.
The trial judge’s instructions on the issue of single versus
multiple conspiracies were fatally defective. Among other
things, the judge erred in: refusing to focus the jury's attention
on the critical differences between petitioner's situation and
that of his codefendants; refusing to give the jury guidance on
how it was to determine whether there was one, overall con-
spiracy, or several separate conspiracies; stating in effect that
the jury could convict a defendant on Count One without
making the critical finding that the defendant participated in
the overall conspiracy charged with full knowledge of the con-
spiracy’s general purpose and scope; implying at several crit.-
cal points, that the existence of a single, overall conspiracy was
a foregone conclusion.
Reasons for Granting the Writ.
I. THe Decision Betow, sy Faminc to Appress THe Issue,
RAISES THE SIGNIFICANT AND RECURRING PRoBLEM OF WHETHER
THE FourtH AMENDMENT APPLIES TO ARRESTS AND SEARCHES
Mane By Forercn AuTHorities in THEIR Own Country FOR
THE Speciric Purpose or OsTaAINING EvipeNce ror UsE IN A
Unrrep States INVESTIGATION AND PROSECUTION.
A. Moreover, the Decision E '»w Formulates the Issue of
What Standard is to be Uxea in Determining the Degree
of United States “Participation” in the Foreign Activity
Sufficient to Trigger Fourth Amendment Protection.
As hereinabove stated, the trial court made no findings of
fact or conclusions of law in denying petitioner's motion to
suppress the evidence and fruits thereof obtained through the
Panamanian arrests and searches on the ground of American
involvement therein. The court below cites as the “general
rule” that the Fourth Amendment does not apply to arrests
and searches made by foreign authorities in their own country
and in enforcement of foreign law. In so doing, the court
assumes, without designating eny factual predicate therefor,
that the Panamanian activities were not directed towards the
enforcement of United States law.
While the courts “have not been unanimous in their choice
of the precise test to be applied” to determine “how much
American participation in a foreign search and seizure is re-
quired to mandate application of the exclusionary rule” United
States v. Morrow, 537 F.2d 140 (5th Cir. 1976), defendant
submits that even under the most stringent test — that labelled
“joint venture” in Stonehill v. United States, 405 F.2d 738 (9th
Cir. 1968), cert. denied, 395 U.S. 960, reh, denied, 396 U.S.
870 — the degree of participation here far exceeded what is
necessary. Indeed, the record of this case demonstrates that
American law enforcement officers — specifically the DEA —
participated actively at virtually every step of the way.
First, there is no question on the record that che DEA was
the instigating force behind the police actions in Panama. Not
only did the DEA furnish information regarding the “suspect”
plane which prompted the Panamanian authorities to act, but
that information provided the sole basis upon which the ar-
rests and searches and seizures were made (see, ¢.g., PT 147-
148, 190, “DEA 7” attached to R 1030).* Moreover, the
police actions taken by the Panamanian authorities were, for
all intents and purposes, taken at the request of the DEA. As
Sedillo admitted, once he had given the information to Latinez
he “knew what . . . was going to occur” and “there was no
need to talk about search and seizure and detentions” (PT 97).
* Indeed, the “search warrant” issued by the Panamanian National Guard
did no more than recite the DEA’s suspicion that narcotics would be found.
See PT 175-176.
10
This tacit understanding between Sedillo and Latinez made it
unnecessary for Sedillo to make an explicit request.*
Second, although Agent Sedillo was no physically present
when the plane was initially searched and the suitcases re-
moved (PT 222-223), his presence was ubiquitous thereafter:
he received an immediate report of what had been taken from
the plane (PT 97); he immediately travelled to the scene to
review the situation and interrogate the arrestees (PT 94, 98,
151); he was present during the process of examining the evi-
dence and field testing and weighing the white powder (PT 78-
79, 58; T ITI:5); and he made his own “complete search” of the
plane “to satisfy” himself (PT 161). These undisputed facts
establish that Sedillo was a most significant participant in the
search and seizure process viewed as a “functional” whole. See
Lustig v. United States, 338 U.S. 74, 78 (1949).
Third, the fact that, while still at the jail in Puerto Armuelles,
Agent Sedillo received a “sample” of the powder to “test back
in America” and copies of all of the other seized evidence for
the “legal procedure of the case” is dispositive of his participa-
tory role. A mere observer would hardly be accorded such
treatment. In fact, this immediate receipt of evidence demon-
strates that Sedillo achieved precisely what Lustig describes as
the goal of the search process: “effective appropriation . . . of
illicitly obtained objects for subsequent proof of an offense,”
Lustig, supra at 78 — and that is plainly an achievement re-
served for a significant participant.
Finally, the active role played by the DEA in the interroga-
tions to which Valdes and his travelling companions were sub-
jected can hardly be brushed aside. Not only was Sedillo present
when Lt. Latinez questioned the arrestees in Puerto Armuelles,
but he admittedly conducted his own interrogation of Valdes
* The record does establish, of course, that Sedillo did make an explicit re-
quest that Latinez “check on that plane” (PT 191).
ll
(see PT 86-88, 122-123, 161) and, moreover, did so after “in-
troduc{ing]} [him]self in an official capacity” (PT 79-80, em-
phasis added).
And of course when the arrestees were subsequently trans-
ferred to Panama City and brought to Lt. Latinez’s office for a
further round of questioning (see PT 48, 54), Sedillo was again
on the scene, this time accompanied by DEA Agent Dempsey.
Not only did Latinez interrupt his overnight questioning of the
arrestees to give Sedillo a progress report by telephone (see
PT 389), but Sedillo and Dempsey soon arrived and took each
arrestee off for separate “interviews” — interviews which, set
in the coercive context which the arrestees had endured for a
week and which had intensified through the night and morn-
ing, culminated in the “cooperation” of Scarborough and Voll
(see PT 65-66, 118-119, 124).
Thus, it was United States officials who requested, instigat-
ed and participated at every stage in the events in Panama.
Every one of the challenged actions in Panama was under-
taken for the specific purpose of obtaining evidence for use in a
United States investigation and prosecution under United
States narcotics laws.
Yet, this fact was disregarded by the Court below in its reli-
ance on the so-called “general rule” which assumes that the
foreign officials acted in enforcement of their own foreign law.
But this “rule” assumes a fact which is non-existent in the in-
stant case, for here, all activity was usurped by an American
investigation, American arrests, and American prosecution.
Surely this circumstance emphasizes the degree of United States
participation which should trigger the protection of the Fourth
Amendment. Thus the “rule” referred to by the Court below
is not “general” in nature; and if it is, then this case is an ex-
ception thereto.
In this age of ever-increasing mutual activity between agents
of this country and foreign officials, a closer examination of
the degree of American “participation” is warranted.
12
Il. THe Decision BeLow Compounps THAT Existinc Dirri-
CULTY For A Jury in Derermininc WHertuer Evivence Es-
TABLISHES A SINGLE OR MULTIPLE ConsPIRACIES BY CONDON-
ING THE FAILuRE OF THE TRIAL Court TO CHARGE THE JURY
as TO Its Duty To Reso.ve Tuts Issue wrra INSTRUCTIONS
Focusinc Its ATTENTION ON THE PetrrioNer’s Speciric Srrvu-
ATION.
As demonstrated by the statement of the case, the evidence
regarding petitioner was critically different from that of his
codefendants.
The fact that evidence was different and because the issue of
single versus multiple conspiracies is inherently such a difficult
one for a jury to determine (see section b. below), due process
required the trial judge to focus the jury's attention on Valdes’
specific situation during the course of his charge. This is espe-
cially true because Valdes expressly asked for such individual-
ized consideration in his proposed instructions.
United States v. Borelli, 336 F.2d 376 (2d Cir. 1964), cert.
denied, 379 U.S. 960, is directly on point. In Borelli, where
the issue of single versus multiple conspiracies determined
whether the prosecution of various defendants was barred by
the statute of limitations, and the evidence regarding each
defendant was different, the Court held, in reversing their
convictions, that the defendants in question were entitled to
instructions which focused the jury's attention on each one’s
specific situation. 336 F.2d at 385-387. So here, where the
issue of single versus multiple conspiracies determines the
question of venue just as it determined the question of the stat-
ute of limitations in Borelli, Valdes was entitled to the same
type of individualized instructions.
It is essential for the trial judge to tell the jury not only that
it must decide the issue of single versus multiple conspiracies,
but also how to go about deciding it. One way for the judge to
13
do this is to discuss the issue concretely in terms of the actual
evidence and the actual contentions in the case. Another way
is, to give the jury tests and guidelines that will help the jury
understand the abstract concepts in question in more everyday
terms. Here the trial judge did neither. He refused Valdes’
requests to focus the jury’s attention on his particular situa-
tion, and on his contentions regarding the evidence. And he
refused to give either the tests and guidelines proposed by
Valdes. *
There are at least two paradigm situations in which a multi-
ple conspiracy instruction must be given. In one, the classic
Kotteakos situation — which is the type of situation at issue in
this case — the government charges a single, overall conspir-
acy but then proves two or more discrete subschemes within
the boundaries of the purported overall conspiracy. In the
other — not the situation at issue here — the government
proves a separate conspiracy lying wholly outside the con-
spiracy charged in the indictment. Here then, the judge
plainly had to instruct the jury as to the possibility of finding a
separate conspiracy in the first, Kotteakos sense. Nonetheless,
he gave an instruction appropriate only to the second type of
situation. Thus, he charged:
If you find that a particular defendant is a member of
another conspiracy, not the one charged in the indict-
ment, then you must acquit that defendant. In other
words, to find a defendant guilty you must find that he
was a member of the conspiracy charged in the indict-
* Valdes proposed, inter alia, that the judge instruct the jury that:
(a) The “mere similarity of the objectives of separace conspiracies does not
make them a single conspiracy.”
(b) In order to find that Valdes became a member of the single conspiracy
alleged in Count One, “you must find . . . [t }hat the agreement to import co-
caine was dependent on or aided by or had an interest in the success of other
conspirators who were agreeing to import marijuana and methaqualone.”
14
ment and not some other separate conspiracy (emphasis
added).
By contrasting “the conspiracy charged in the indictment”
with “another conspiracy, not the one charged in the indict-
ment” the judge clearly implied that to find “some other sepa-
rate conspiracy” the jury had to find a conspiracy totally dif-
ferent from, and, indeed, lying wholly outside the perimeter
of, the conspiracy alleged by Count One. In other words, the
instruction failed to inform the jury precisely what Kotteakos
requires — namely, that if a defendant is found to be involved
in a separate scheme, within the boundaries of the overall con-
spiracy which the government alleged but failed to prove,
then he must be acquitted.
There are times when of necessity, because of the nature
and scope of the particular conspiracy, large numbers of per-
sons taking part must be tried together. When many conspire,
they write mass trial by their conduct. But such proceedings
call for the use of every safeguard to individualize each de-
fendant in his relation to the mass. The damages for transfer-
ence of guilt from one defendant to another across the line
separating conspiracies are so great that no one really can say
prejudice to substantial right has not taken place. The instruc-
tions given by a trial court should be a defendant’s principal
protection against unwarranted imputation of guilt from the
conduct of others. Such was not the case here.
15
Conclusion.
For these reasons, a writ of certiorari should issue to review
the judgment and opinion of the Fifth Circuit.
Respectfully submitted,
MARTIN G. WEINBERG,
OTERI, WEINBERG & LAWSON,
75 Blossom Court,
Boston, Massachusetts 02114.
(617) 227-3700
la
UNITED STATES of America,
Plaintiff-Appellee,
Vv.
Howard “Sonny” HAWKINS, Roger G. Beckman, William D.
“Bill” McCain, George Rawls, a/k/a Howard Kenith Leigh,
Ned Ames, Jorge Luis Valdes, James Patrick Herman,
Defendants-Appellants.
No. 80-7140.
United States Court of Appeals,
Fifth Circuit.
Unit B
Nov. 16, 1981.
Rehearing and Rehearing En Banc Denied, Feb. 23, 1982.
Seven defendants were convicted in the United States
District Court for the Middle District of Georgia, Wilbur D.
Owens, Jr., Chief Judge, of various drugs offenses, including
conspiracy to import drugs, conspiracy to possess with intent
to distribute drugs, and operating a continuing criminal enter-
prise. Defendants appealed. The Court of Appeals, Roney,
Circuit Judge, held that: (1) the manner in which grand and
petit juries were selected in the Middle District of Georgia did
not violate defendants’ Fifth or Sixth Amendment rights; (2)
trial court did not err in restricting cross-examination by
defense counsel; (3) there was no prosecutorial misconduct
warranting reversal; (4) the trial court did not demonstrate
prejudicial bias in favor of the Government; (5) the district
court did not err in denying a bill of particulars; (6) the
evidence was sufficient to sustain the conviction; (7) the trial
court did not err in denying two defendants a severance; (8)
comments of one defendant's attorney did not prejudice
another defendant; and (9) a search of defendants’ airplane in
Panama and the defendants’ treatment of Panamanian au-
thorities did not entitle them to suppression of the evidence
seized in the search, or to dismissal of the indictment.
Affirmed.
R. David Botts, Atlanta, Ga., for Hawkins.
Walter L. Brady, Jr., Robert J. Hanlon, St. Louis, Mo., for
Beckman.
Charles H. Stegmeyer, Belleville, Ill., for McCain.
John R. Martin, Atlanta, Ga., for Rawls.
Al Horn, Atlanta, Ga., for Ames.
Shelby Highsmith, Miami, Fla., Martin G. Weinberg,
Boston, Mass., Brayton Dasher, Macon, Ga., for Jorge Luis
Valdes.
Donald L. Wolff, Clayton, Mo., for Herman.
Richard Nettum, William P. Adams, Macon, Ga., for
plaintiff-appellee.
Appeals from the United States District Court for the Mid-
dle District of Georgia.
Before GEWIN,* RONEY and HATCHETT, Circuit
Judges.
RONEY, Circuit Judge:
On this consolidated appeal seven defendants, jointly tried
before a federal jury, challenge their convictions for drug con-
*Due to his death on May 15, 1981, Judge Gewin did not participate in
this decision. The case is being decided by a quorum. 28 U.S.C. § 46(d).
3a
spiracy. The defendants raise numerous points of error, in-
cluding the composition of the grand and petit juries, restric-
tions on cross-examination, prosecutorial misconduct, Brady
violations, judicial bias, denial of a bill of particulars, suffi-
ciency of the indictment and evidence, the denial of severance,
improper comments of a codefendant’s attorney, admissibility
of evidence obtained through an allegedly illegal search, and
mistreatment in a foreign country. Having carefully con-
sidered the extensive trial record and the legal arguments
made on appeal, we conclude no reversible error has been
shown. The convictions are affirmed.
Although the facts are treated in greater detail later in the
discussion of the specific issues raised on appeal, an overview
will be useful. The record evidence, viewed most favorably to
the Government,' describes a large drug conspiracy operating
in 1978 and 1979. The object of the conspiracy was the impor-
tation from South America of substantial quantities of three
controlled substances, marijuana, methaqualone and cocaine,
for distribution and sale in the United States. Private planes
were used in the operation.
The leaders of the conspiracy over its entire duration were
George Rawls, an appellant here, and Harold Rosenthal, who
pled guilty prior to trial and is not a party to this appeal.
Rosenthal supervised the smuggling aspect of the operation,
while Rawls generally handled the distribution and sale of in-
A grand jury in the Middle District of Georgia handed down
a five-count indictment in July 1979. Twenty persons were
charged in the first count with conspiracy to import drugs.*
See, ¢.g., Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed.
680 (1942).
*21 U.S.C.A. § 963.
4a
Eleven of the twenty were also charged in the second count for
conspiracy to possess with intent to distribute drugs.’ Rosen-
*21 U.S.C.A. § 846.
*21 U.S.C.A. § 646.
5a
We then discuss issues applicable only to individual defend-
ants.
Composition of Grand and Petit Juries
Defendants argue the procedures by which the grand and
petit juries were selected resulted in a geographic imbalance
on the grand jury and racial and sexual imbalance on both
juries, in violation of federal law end the Fifth and Sixth
Amendments of the Constitution. After a two-day hearing on
the claims, the district court upheld the legality of the selec-
tion process. United States v. Rosenthal, 482 F.Supp. 867
(M.D.Ga.1979).
A description of the disputed selection process would be
helpful in understanding the issues. As explained by the trial
court, the Middle District of Georgia is composed of 70 of
Georgia’s 159 counties and is statutorily divided into seven
divisions: Albany, Americus, Athens, Columbus, Macon,
Thomasville and Valdosta. Following the passage of the Jury
Selection and Service Act of 1968,° the active judges of the Mid-
dle District adopted a plan for random jury selection, which
was approved administratively, but not judicially, by a
Reviewing Panel comprised of judges of this Court. The plan
is supervised by the clerk of the district court.
Pursuant to the plan, voter registration forms are obtained
from each county every four years immediately following the
presidential election. The jury wheels involved in this case
were constituted after the 1976 election. In order to obtain a
sufficiently large master and qualified wheel, the clerk ran-
domly selected 2,500 names from each of the Albany,
Americus, Athens, Thomasville and Valdosta divisions, and
5,000 names from each of the Columbus and Macon divisions.
The names so selected became the Master Jury Wheel. The
*28 U.S.C.A. §§ 1861 et seq.
clerk then sent a questionnaire to each person on the wheel,
seeking responses that would either qualify, exempt, or excuse
_ Prospective jurors.
From the responses to the completed questionnaires, the
clerk determined those persons who were qualified to serve as
jurors. Computer cards containing the names of these persons
were placed in a box which became the Qualified Jury Wheel.
It is from this wheel that the grand and petit juries were
selected.
Under the plan, grand juries were selected from the entire
district. The plen provides that the clerk shall select a grand
jury venire “by drawing a pro rata, or approximately pro rata,
number of names at random from the qualified jury wheels of
each division in the district.” The clerk interpreted “pro rata”
to mean that the number of names selected should be in pro-
portion to the size of the master and qualified wheels so that
the Macon and Columbus Divisions should have twice as
many names in the grand jury venire as the other five divi-
sions. The selection of the grand jury venires was conducted
as follows: the qualified boxes from all seven divisions were
gathered in open court and the clerk or his designee blindly
drew one name each from the Albany, Americus, and Athens
Divisions’ boxes, two names from the Columbus and Macon
Divisions, and one name each from the Thomasville and
Valdosta Divisions so that nine names were selected. This
process was done in rotation five times until 45 names were
drawn — ten names each from Columbus and Macon and five
names each from the other divisions. From this venire the first
23 names of those who had not been excused for hardship or
removed because of death or other reasons were chosen by the
court to serve as grand jurois.
Persons for the petit j.:zies were selected randomly from the
qualified box. The number of jurors for a particular venire
7a
was determined by the court and memorialized in an order to
the clerk to draw that number of prospective jurors.
[1] In challenging this selection process, defendants first
contend an unlawful statistical disparity existed between the
racial and sexual composition of the Master and Qualified Jury
Wheels and the composition of these elements in the general
population of the district. In Duren v. Missouri,* the Supreme
Court held a defendant's right to a jury selected from a fair
cross-section of the community is violated when there is a
systematic disproportion between the percentage of a “distinc-
tive” group in the community and its representation in venires
from which the juries are selected. The Court set forth the
following three-part test for establishing a violation:
In order to establish a prima facie violation of the fair-
cross-section requirement, the defendant must show (1)
that the group alleged to be excluded is a “distinctive”
group in the community; (2) that the representation of
this group in venires from which juries are selected is not
fair and reasonable in relation to the number of such per-
sons in the community; and (3) that this underrepresenta-
tion is due to systematic exclusion of the group in the
jury-selection process.”
While it is undisputed that the allegations concerning race and
sex satisfied the first element of a prima facie case, defendants
have failed to satisfy the remaining elements. They concede
the selection process is random and objective, but argue the
statistical disparity establishes a prima facie violation. The
trial court, however, found the underrepresentation of women
*439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).
"Id. at 364, 99 S.Ct. at 668.
8a
and blacks on the qualified jury wheel to be only 1.75 and 5.45
percent, respectively. 482 F.Supp. at 872-73. These dispari-
ties fall well within the limits set forth by the Supreme Court
and in this Circuit.* The trial court did not err in concluding
defendants failed to make out a case of a constitutionally im-
permissible proportion based on race and sex.
[2] Defendants next contend the manner in which the
grand juries are selected does not assure that each county in a
division is “substantially proportionally represented,” as re-
quired by the Jury Selection and Service Act.* They argue
grand jurors must be chosen by a “mathematically proportion-
ate method,” in which the number of grand jurors from a
county is in direct proportion to the number of the county's
registered voters.
In response, the Government contends that : addition to
showing a geographic imbalance, defendants must establish
* See, e.g., Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759
(1965); United States v. Goff, 509 F .2d 825 (Sth Cir.), cert. denied, 423 U.S.
857, 96 S.Ct. 109, 46 L.Ed.2d 83 (1975); Thompson v. Sheppard, 490 F.2d
830 (Sth Cir. 1974), cert. denied, 420 U.S. 984, 95 S.Ct. 1415, 43 L.Ed.2d
666 (1975).
* See 28 U.S.C.A. § 1863(b)(3). This section provides in pertinent part:
(b) Among other things, such [juror selection) plan shall —
(3) specify detailed procedures to be followed by the jury commis-
sion or clerk in selecting names from the sources specified in paragraph
(2) of this subsection. These procedures shall be designed to ensure the
random selection of a fair cross section of the persons residing in the
community in the district or division wherein the court convenes. They
shall ensure that names of persons residing in each of the counties,
parishes, or similar political subdivisions within the judicial district or
division are placed in a master jury wheel; and shall ensure that each
county, parish, or similar political subdivision within the district or
division is substantially proportionately represented in the master jury
wheel for that judicial district, division, or combination of divisions.
9a
that county residents form a “cognizable” group under the
Act. We need not decide this issue, because the record in-
dicates the counties were substantially proportionally rep-
resented.
According to the uncontested findings of the trial court, on
an average panel of 23 grand jurors the Macon division will be
underrepresented by approximately 2 jurors, while the Col-
umbus division will be overrepresented by only 1.5 jurors. The
remaining divisions would reflect a disparity of 1 or less
jurors."° We agree with the district court these statistics in-
dicate that while the current method is not mathematically
Maskeny,"' in which this Court upheld a selection process
which resulted in one division in the district having three
fewer seats on the grand jury than its population would war-
rant. Moreover, as in Maskeny, defendants “fail to show the
10 Po" a 45-person grand jury venire, the composition would be as follows:
Mathematically
Proportionate Current (+) Over representation
Division Method (-—) Underrepresentation
Albany 5 5 0
Americus 4 5 +1
Athens 7 5 -2
Columbus 7 10 +3
Macon 14 10 4
Thomasville 4 5 +1
Valdosta 4 5 +1
45 45
The disparity figures for a 23-person grand jury panel would be approx-
imateiy half those indicated in the last column above.
"609 F.2d 138 (Sth Cir.), cert. denied, 447 U.S. 921, 100 S.Ct. 3010, 65
L.Ed.2d 1112 (1980).
10a
impact of this alleged misallocation of seats on representation
of the particular groups on the jury list.”
[3] Defendants’ final contention is that the composition of
the grand and petit juries was unlawful because registrars in
two counties in the district violated the Voting Rights Act of
1965."* Defendants allege the registrars removed names from
the county voter registration lists, from which the Master
Wheel was compiled, in violation of section 1973e(d)(2). This
section provides that “a person whose name appears on such a
list shall be removed therefrom by an examiner if . . . he has
been determined by an examiner to have lost his eligibility
under State law .. . .”"* While defendants concede the
reasons the names were removed under state law were valid,
they argue only the federal examiners had the power to
remove the names.
We need not decide whether the county registrars violated
this provision of the Voting Rights Act. Even assuming a
violation, defendants fail to show how this violation resulted
in racially or sexually-imbalanced juries, or had any other
discriminatory impact. Any potential effect on the pool of
potential jurors is countered by defendants’ concession the
voters were removed from the list for legitimate reasons under
state law, primarily for failing to vote in the preceding three
years. Moreover, the number of persons removed from the
lists in these two counties represented a statistically insignifi-
cant percentage of the total voters in the district. Defendants
have not cited to this Court any cases holding such a violat’..
of the Voting Rights Act requires a finding of an unlawful jury
selection process, and we decline to reach this conclusion here.
"Id. at 191. See also United States v. Foxworth, 599 F.2d 1, 4 (ist Cir.
1979).
942 U.S.C.A. §§ 1973 et seq.
42 U.S.C.A. § 1973e(d)(2) (emphasis supplied).
lla
Restrictions on Scope of Cross-Examination
[4] Defendants challenge several restrictions placed by the
trial court on the scope of cross-examination of the key
Government witnesses. The standard of review for this
challenge is well established. A trial court, based upon its
sound discretion, may limit the scope and extent of cross-
examination, and its decision will not be disturbed on review
unless an abuse of discretion is present. This discretion, how-
ever, is limited by a defendant's right of cross-examination suf-
ficient to satisfy the confrontation clause of the Sixth Amend-
ment.'® The inquiry, then, is whether the trial court's restric-
tions impermissibly interfered with the Sixth Amendment
rights of the defendants or were otherwise so prejudicial as to
result in an abuse of discretion. '*
[5] The trial court refused to permit defense counsel to
cross-examine Norris Reed and Newton Coley about their
postindictment arrests. Reed and Coley were pilots who had
participated in the drug conspiracy. During the trial, counsel
obtained information from the State Department indicating
Reed and Coley had been arrested twice outside the country
by foreign authorities. The first arrest took place in Curacao
in November 1979 for operating an aircraft without adequate
personnel. Reed and Coley were soon released on that charge,
apparently because of insufficient evidence. The second ar-
rest occurred in Colombia a month later for violating Colom-
bian airspace. They were released only after payment of a
fine and confiscation of their aircraft. Defense counsel sought
to cross-examine Reed and Coley concerning these arrests
'* Unit:d States v. Ramirez, 622 F.2d 898, 899 (5th Cir. 1980). See also
Davis v. Alaske 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).
"* United States v. Vasillios, 598 F.2d 387, 390-91 (Sth Cir.), cert. denied,
444 U.S. 967, 100 S.Ct. 456, 62 L.Ed.2d 380 (1979).
12a
primarily to show bias, on the theory the Government may
have assisted the pair in their release in exchange for their
testimony against defendants, and also to impeach Reed, who
had testified he had not been out of the country since his
release from prison in March 1979.'"
There was no evidence the Government assisted the pair in
any way it: connection with their release on the foreign
charges. The Government specifically denied such assistance
and defense counsel presented no evidence to the contrary.
Moreover, both Reed and Coley had agreed to testify for the
Government against defendants well before these foreign ar-
rests. The trial court did not err in restricting this line of in-
quiry concerning possible bias.
[6] The initial questioning of Reed as to whether he had
been out of the country since March 1979 was irrelevant and
collateral to the main issues in this case. There is no right to
impeach a witness with respect to collateral or irrelevant mat-
ters."* The trial court’s refusal to permit defense counsel to
impeach Red’ false anewer to this question with evidence of
the arrests was therefore not error.
[7] Defendants next challenge restrictions on the cross-
examination of Verne Voll and J. D. Scarborough, two other
pilots in the conspiracy, with respect to the conditions of the
Panamanian jails in which they were imprisoned at the time
'’ Reed testified during cross-examination:
Q. Have you violated the conditions of your parole since you were
released in March of 78 [sic]?
A. No sir.
Q. Have you left the country without permission since that date?
A. No sir.
Tr. V, pp. 113-14.
* See, ¢.g., United States v. Nace, 561 F.2d 763, 770-71 (9th Cir. 1977);
United States v. Cochran, 499 F.2d 380, 391 (Sth Cir. 1974), cert. denied,
419 U.S. 1124, 95 S.Ct. 810, 42 L.Ed.2d 825 (1975).
13a
they agreed to testify for the Government. They had been de-
tained by Panamanian authorities in April 1979, following the
crash of their plane in that country. A substantial quantity of
cocaine was found aboard the plane. After discussion with
agents of the United States Drug Enforcement Agency (DEA),
Voll and Scarborough agreed to testify against defendants in
exchange for immunity and assistance in their release from
prison. Defense counsel argue the prison conditions reflect on
the state of mind of the pair at the time they agreed to testify,
which was relevant to the issue of bias and motivation.
The trial transcript indicates the court permitted both Voll
and Scarborough to be fully cross-examined about their state
of mind during their imprisonment in Panama, and the effect
of this confinement on their decision to cooperate with the
Q. d you might die in Panama if you didn’t cooperate?
A.
> See Pe enes Detenth Reet yee aguas
. And did you think that the only people that could out of
°. yo wine E = + ol al with them all those things that
wer of fhieom to you? Pe
-) . ‘
l4a
then, was adequately apprised of the pair’s state of mind at the
time they agreed to testify. The trial court did not err in limit-
A. That's correct.
Q. Do you remember the Midnight Express was a movie about brutality
in Turkish jails where an American prisoner \ as brutalized and went insane?
A. That's right.
Q. You were afraid of that happening to you if you didn't cooperate with
the United States Drug Enforcement Administration, weren't you?
A. Yes.
Q. From everything you heard about jails in Panama you were afraid
they might even forget you there and leave you to rot there, weren't you?
A. Right.
Q. You were afraid they might even shoot you because you had no legal
rights. Is that right?
A. That's right.
Tr. VII, pp. 103-04.
Scarborough was also cross-examined on his state of mind as well as about
prison conditions:
Q. Hadn't you suffered during those seven days in the Panama jail?
A. Yes sir.
Q. Weren't you afraid of being physically harmed in the Panama jail?
A. No sir.
Q. Did you just see an act of brutality committed right in front of your
eyes for the purposes of showing you what could happen to you?
A. I thought it was a sham.
Q. You thought it was a sham done for your benefit? Right?
A. That's correct.
Q. To show you what could happen to prisoners who don’t cooperate?
Right?
A. To try to scare us. Yes sir.
Q. Scare you. That's why they had a naked man out in front of you, to
seare you. Is that right?
A. That's correct
Q. Kicked him in front of you to scare you. Is that right?
A. They did not kick him.
Q. Rather than kick, sir, I was mistaken. What happened were that peo-
ple were stepping on his toes and he was punched in the back while he was
naked on the floor. Is that right?
15a
ing further inquiry into details of the conditions of the Pana-
manian jails.
A. That's correct.
Q. That was done on May 3, 1979 in Panama City during the time that
you were in Latinez’ office and the day before you made the statement to the
DEA in writing in the hotel. Is that right?
A. That's correct.
Q. Sir, is it not a fair statement that from the conversation that you had
with the American consul and from what you heard from Agent Sedillo that
you feared the system of justice that was in Panama?
Mr. Netrum: Objection to the form of the question.
Tue Courr: He may answer that.
A. No, I did not.
Q. You had no fear of it?
A. No sir.
Mar. Martin: Your Honor —
Tue Covrr: You may go ahead.
Q. Is it not true that Mr. McLean and Agent Sedillo told you that —
Mr. Nerrum: Objection to what Mr. McLean and Agent Sedillo told him.
Tue Courr: He may go ahead and ask him about it.
Q. That in Panama they have a Napoleonic code and one of the things
about the Napoleonic code is that as opposed to America where you are pre-
sumed innocent until proven guilty, in Panama you are presumed guilty until
you prove yourself innocent. Is that not true? Did he not tell you that?
A. That's correct.
Q. Didn't that raise some fear in your mind?
A. No, it didn’t. May I explain?
Q. Yes.
4. Consul also advised us that it was very hard to get a conviction on
smuggling into Panama.
Q. He also told you, though, did he not, that you would be held incom-
municado until you made a statement?
A. That is correct.
Q. No one would know whether you were alive or dead or where you
were until you made a statement? He told you that? That was the law of
that country?
A. That's correct.
Q. So you knew that your friends and your family wouldn't know a thing
about you until you made a statement. You knew that, didn’t you?
16a
[8] Defendants’ third challenge is to the limits placed on the
questioning of Scarborough with regard to whether he had as-
sisted the DEA in other cases since his return from Panama.
Defense counsel again contend this information was relevant
to show bias or allegiance to the DEA. The transcript, how-
ever, reveals there was adequate cross-examination about his
alleged involvement with the DEA:
Q. You stated the income you received in regards to
this case, did you receive any other income at all for
informing for any law agency at all, state level or other?
A. I have not.
Q. Have you sought to work directly with the DEA?
A. I have not.”
A. I knew that to be the law, yes sir.
Q. And the American consul told you there was nothing he could do about
that, did he not tell you that?
A. That's correct.
Q. And even though he knew you were there he couldn't notify your fami-
ly because he was bound by Panamanian law Is that not correct?
A. That is correct.
Q. The consul did tel! you that you were in pretty serious trouble at that
time, did he not?
A. Yes sir.
Q. And you might serve up to eight years for the offense. Is that correct?
A. That's correct.
Q. Now you stayed in Panamaian jails, | think you went to the city of
David, that was your next transport, to the city of David. Is that correct?
A. That's correct.
Q. And you stayed in that jail — that jail was a pretty crude jail. Is that
not correct?
A. That's correct.
Tr. VU, pp. 177-79; 224-27.
"Tr. IX, p. 34.
17a
In addition, the Government informed the court and defense
counsel that its records indicated Scarborough had not worked
with the DEA other than in this case.*' In light of the lack of
any evidence to the contrary, the trial court did not err in
restricting further inquiry into Scarborough’s alleged DEA ac-
tivities.
[9] As to cross-examination, defendants finally contend the
court erred in not permitting defense counsel to ask the key
Government witnesses whether they were aware of the max-
imum sentences for the first two counts of the indictment,
with which they might have been charged had (iey not been
immunized. Counsel argue this questioning was for the pur-
pose of showing bias and motivation of the witnesses by
demonstrating the value of the bargain gained by virtue of
their cooperation with the Government. The trial court re-
fused to permit this line of questioning on the grounds the
™ The chief prosecutor stated to the court and defense counsel:
Mr. Weinberg [a defense counsel | indicated that he had some basis
for believing that Mr. Scarborough was or might be a confidential in-
formant. | will state for the record as follows Your Honor, you will see
it when I give you the DEA 6's on Mr. Scarborough that at the time
Mr. Scarborough was arrested in Panama and a debriefing began,
DEA, as is the custom in such cases, assigned a confidential informant
or cooperating individual number to Mr. Scarborough. He has got a
CI number at the DEA. He has not been, to my knowledge or to the
knowledge of Mr. Dempsey [a DEA agent), and I can put Mr. Demp-
sey on the stand and he will so testify, he has not been a Cl in any other
case. He is not presently working for the Drug Enforcement Adminis-
tration. Mr. Dempsey went on Thursday when this question “ rst
came up, he contacted headquarters in Washington and asked the. to
assess the computer and see if there were any Cl numbers besides ours
in the computer that was connected to the witness Scarborough in any
way and it came back negative, there was not. But there is that one Cl
Ee
to >
Tr. IX, pp. 4-5.
18a
potential sentences the witnesses could have received was in
the discretion of the sentencing court, and in any event there
was no evidence the maximum sentences were discussed as
part of the bargain.
We need not decide whether the restriction on this inquiry was
error, although an earlier decision by this Court suggests defense
counsel should have had the opportunity to at least inquire
whether maximum sentences had been discussed by the witnesses
and the prosecution.“ The jury here was made aware of the
potential sentences through the counsel's questions,” the court's
™ See United States v. Benavides, 549 F.2d 302, 304 (Sth Cir. 1977). See
generally United States v. Mayer, 556 © .2d 245 (Sth Cir. 1977).
® The following took place before the jury during the cross-examination of
Newton Coley, one of the key Government witnesses:
Q. Mr. Martin: Isn't it true you knew the maximum penalty for
Count One is 15 years in the penitentiary?
Mra. Nerrum: Your Honor, I object and ask the witness be in-
structed to not answer the
Tue Courr: Well, what relevance does that have, gentlemen? If the
bargain is that he is not going to be prosecuted at all. Do you want to
argue about how good the bargain is?
Mr. Martin: Your Honor, | am saying what considerations got out
of the bargain. He had a potential 15 year sentence for one and —
Ma. Nerrum: Your Honor, please, I object to that. May we ap-
proach the Bench?
Tue Cover: You may.
Tr. Il, p. 246.
19a
response, ™ and the closing arguments.* As this Court held in
a similar situation:
™ After sustaining an objection to the above questioning on maximum
sentences, the court remarked to the jury:
Tue Court: Ladies and gentlemen of the jury, you will recall when
the Court first explained to you ladies and gentlemen how this case was
going to proceed, that the Court in essence told you that under the laws
passed by Congress it is the responsibility of the judge of every United
States court as to anyone who has been convicted of any crime to deter-
mine that the sentence is, and that that is not a function of the jury.
Because of that, that you yourself in determining guilt or innocence
should not give any consideration to what the possible penalty might
be, if you find somebody guilty.
Now in this instance the witness has testified that the United States
agreed that if he testified he would not be prosecuted for the charges
for which all of these other people are being prosecuted. There is no
question about the fact that the charges are felonies and are very
serious crimes. The defense counsel has the right to go fully into that
bargain. Every phase of it. What was said and what was done. Any
agreements, favors, promises, it doesn't matter what it is. In the
Court's best judgment there is no foundation under the evidence for
there to be any inquiry and argument about what Congress says the
maximum possible penalty might have been had this gentleman been
tried. In other words, if he didn’t take the bargain and if he was tried
and convicted. There has been no evidence that such a discussion was
a part of the bargain. If it had been he could go into it. So the Court
instructs you that while it has been mentioned that so far there is no
basis for that to be now argued about or inquired into further by coun-
sel. The Court is not going to let counsel go any further into the sub-
ject
Tr. Ill, pp. 251-52.
™ In closing arguments, defense counsel told the jury with respect to one of
the Government witnesses:
Mr. Trammedl told you he knew that the penalty on Count Two was
five years and the penalty on Count One is fifteen years. . . . So you
decide to become a Government witness... . He is going to avoid the
exposure to the fifteen year count and he is also still to be sentenced by
the Court and he wants the Government to tell the Court how much
The jury was adequately, if not conventionally, advised
about the maximum penalty that [the witness] could
have feared. Despite the intervention of the trial judge,
the primary impeaching material was presented to the
jury.”
This restriction by the trial court, therefore, presents no rever-
sible error.
We note in summary the trial transcript indicates all five
key Government witnesses were cross-examined at length
about the bargains struck with the Government in exchange
for their testimony. The jury was fully informed of each wit-
ness’ possible bias and motivation for testifying. In light of
this extensive cross-examination, we canr t say the trial court
abused its discretion in limiting at times the scope of question-
ing with respect to bias.”
[10] Defendants’ next two challenges are closely related.
They concern the foreign arrests of Reed and Coley, discov.
ered by defense counsel through documents obtained from the
State Department during trial. First, defendants contend the
failure of the prosecution to disclose information about these
help he had been, and even minimize that five years and maybe get
probation. That's his motive.
Tr. XV, p. 57.
United States v. Onori, 535 F.2d 938, 946 (Sth Cir. 1976).
™ See, ¢.g., United States v. Vasilios, 508 F.2d 387, 390 (Sth Cir.), cert.
denied, 444 U.S. 967, 100 S.Ct. 456, 62 L.Ed.2d 380 (1979); United States v.
DeLeon, 498 F.2d 1327, 1332 (7th Cir. 1974).
2la
arrests prior to trial violated Brady v. Maryland.” Second,
defendants argue the prosecution engaged in misconduct by
allowing perjured testimony by Reed, who testified he had not
been out of the country since March 1979. The State Depart-
ment documents indicate this testimony was false. In Brady,
the Supreme Court held “the suppression by the prosecution of
evidence favorable to an accused . . . violates due process
where the evidence is material either to guilt or to punish-
ment, irrespective of the good faith or bad faith of the prosecu-
tion.”” Napue v. Illinois® and its progeny hold “a conviction
obtained by the [Government's] knowing use of perjured testi-
mony is fundamentally unfair, and must be set aside if there is
any reasonable likelihood that the false testimony could have
affected the judgment of the jury.”
Defendants concede the prosecution team had no actual
knowledge of the foreign arrests or the State Department
documents, but contend such knowledge should be imputed. ™*
We need not decide this issue. Assuming the prosecution
knew of these arrests, defendants fail to satisfy the “material-
ity” requirement necessary to support either a Brady violation
or a charge of prosecutorial misconduct. Defense counse!’s on-
ly intended use of information about the arrests was to show
bias and to impeach Reed. As discussed earlier, however, the
373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
"Id. at 87, 83 S.Ct. at 1196-97. Sev also United States v. Anderson, 574
F.2d 1347 (Sth Cir. 1978).
360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).
™ United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2302, 2397, 49
L.Ed.2d 342 (1976) (frotnotes omitted). See also Giglio v. United States,
405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); United States v. Antone,
603 F.2d 566 (Sth Cir. 1979).
* See, e.g., United States v. Auten, 632 F .2d 478 (Sth Cir. 1980); Martinez
v. We 621 F.2d 184 (Sth Cir. 1980); United States v. Antone, 603
F.2d 566 Cir. 1979).
trial court did not err in excluding cross-examination about the
arrests for either of these purposes.** Even if the information
could have been introduced in some way by decense counsel, it
is doubtful whether it would have affected the jury verdict. As
the Supreme Court has noted:
The proper standard of materiality must reflect our
overriding concern with the justice of the finding of guilt.
Such a finding is permissible only if supported by
evidence establishing guilt beyond a reasonable doubt. It
necessarily follows that if the omitted evidence creates a
reasonable doubt that did not otherwise exist, constitu-
tional error has been committed. This means that the
omission must be evaluated in the context of the entire
record. If there is no reasonable doubt about guilt
whether or not the additional evidence is considered,
there is no justification for a new trial. On the other
hand, if the verdict is already of questionable validity,
additional evidence of relatively minor importance might
be sufficient to create a reasonable doubt.*
In light of the cumulative nature of Reed's testimony, the
minor importance of the information about the arrests, and
the entire record concerning guilt, the Government's failure to
disclose the arrests was not reversible error.
* See text at notes 17-18, supra. Cf. United States v. Martin, 565 F.2d
362, 364 (Sth Cir. 1978) (standard vf materiality not met where undisclosed
evidence material only for impeachment purposes and not material to guilt
or punishment).
™ United States v. Agurs, 427 U.S. 97, 112-13, 96 S.Ct. 2392, 2401-02, 49
L.Ed.2d 342 (1976) (footnote omitted).
23a
Refusal to Hold a James Hearing
{11] Defendants challenge the trial court’s decision not to
hold a hearing pursuant to United States v. James*™ to deter-
mine the admissibility of coconspirator statements. Under
James, decided by this court sitting en banc, a coconspirator’s
hearsay statement is not admissible unless the trial court deter-
mines the Government has established by a preponderance of
the evidence independent of the statement itself that a con-
spiracy existed, that the coconspirator and the defendant
against whom the statement is offered were members of the
conspiracy, and that the statement was made during the
course of the conspiracy. The Court in James held that a hear-
ing on this issue was preferred but not required:
The district court should, whenever reasonably prac-
ticable, require the showing of a conspiracy and of the
connection of the defendant with it before admitting
declarations of a coconspirator. If it determines it is not
reasonably practical to require the showing to be made
before admitting the evidence, the court may admit the
statement subject to being connected up.*
In the present case the trial court, after reviewing the Govern-
ment’s investigative file and the applicable law, held a James
hearing was not reasonably practicable. It therefore admitted
the statements subject to being connected up.*” The prosecu-
* 590 F.2d 575 (Sth Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct.
2836, 61 L.Ed.2d 283 (1979).
* Id. at 582.
* The trial court ruled:
The Court has very carefully considered the James case and at this time
based upon that determines that it is not reasonably practicable to
24a
tion, however, agreed to structure its order of proof to make
an independent showing of a defendant's connection to the
conspiracy before offering a coconspirator’s statement im-
plicating the defendant.
hold a complete hearing as to who was and who was not in this con-
spiracy before each and every little tidbit of it is produced. And accor-
dingly will permit the Government to proceed in the manner that
James says it may proceed, without making a showing before the
evidence being admitted that the peril of the Court acting as James
says it shall act in the event that what the Court expects from its ex-
amination of the Government's file is to be forthcoming does not come
forth.
Tr. Il, p. 123.
* Mr. Nettum, the chief prosecutor, informed the trial court:
Your Honor, the Government is prepared to offer through this wit-
ness and through other witnesses — in every situation in preparing a
witness for trial we have attempted to limit and intended to limit the
out of court statements to two kinds basically. And we feel that the
statements are admissible in the following fashion. For example, —
Tue Courr: Well, what two kinds first?
Ma. Nerrum: Let me explain. If a witness is on the stand saying I
had a conversation with the Defendant George Rawls and he said thus
and such, and the thus and such that he said in no way names or in-
criminates or implicates some other defendant it's admissible against
Defendant Rawls. If Mr. Rawls and Mr. Rosenthal and the witness
are in a room and statements are made by either Mr. Rawls or Mr. Ro-
senthal, any statements made by Mr. Rawls are admissible as state-
ments against interest; statements by Rosenthal are admissible against
Rawls as statements made in his presence. In no instance do we intend
to offer until very, very late in the trial after we have been able to
demonstrate some sufficient independent evidence that each and every
one of these individuals is a member of the conspiracy then and only
then would we offer a statement such as Defendant A and the witness
in a conversation with Defendant A saying Defendant B has gone to
such and such a place and done thus and such for the purpose of. I
know of no other way to do it, Your Honor, except to try the case
twice. Once to the Court and once to the jury.
Tue Courr: That sounds reasonable to the Court... .
Tr. Ill, pp. 133-34.
Given the sheer volume of the evidence as well as the large
number of Government witnesses, the trial court reasonably
concluded the holding of a separate James hearing was im-
practicable. Through its examination of the investigative file,
the court was in a position to review the Government's inde-
pendent evidence supporting the admissibility of the cocon-
spirator statements. This case is similar to United States v.
Ricks,* in which the trial court’s decision not to hold a James
hearing was upheld, because the court had become familiar
with the Government’s evidence from presiding over earlier
trials of other members of the same conspiracy. We conclude
the trial court did not err in declining to hold a hearing in this
case.
{12, 13] Defendants, in particular Ned Ames, also contend
the trial court erred in concluding the Government had of-
fered substantial evidence to support the admission of the
coconspirator statements. This finding by the court is a fac-
tual determination which is subject to the “clearly erroneous”
standard of review.“ Upon review of the record, we cannot
say the court clearly erred in this determination.
Judicial Bias and Interference
Defendants contend they received an unfair trial on the
ground the trial court demonstrated prejudicial bias in favor of
the Government throughout the entire proceedings. They cite
numerous examples of allegedly prejudicial conduct by the
judge, including the extensive questioning of defense witnes-
ses, the cutting off of defense counsel, and the creation of a
generally “intimidating atmosphere.”
*639 F.2d 136. (Sth Cir. 1981).
United States v. Perry, 624 F.2d 29, 30-31 (Sth Cir. 1980).
[14, 15] While a trial judge, of course, has “a duty to con-
duct the trial carefully, patiently, and impartially,”“' the
judge has wide discretion in managing the proceedings:
[A] federal judge is not a mere moderator of proceedings.
He is a common law judge having that authority historic-
ally exercised by judges in the common law process. He
may comment on the evidence, may question witnesses
and elicit facts not yet adduced or clarify those previously
presented, and may maintain the pace of the trial by in-
terrupting or cutting off counsel as a matter of discretion.
Only when the judge’s conduct strays from neutrality is
the defendant thereby denied a constitutionally fair
trial.“
A careful review of the lengthy transcript in this case indicates
that while the trial judge played an active role, his overall
management of the proceedings was within the bounds of per-
mitted conduct. The judge’s continuous and aggressive efforts
to maintain control over the month-long trial were not surpris-
ing in light of the number of defendants and defense counsel,
as well as the volume and complexity of the evidence. The
court did not limit its admonishments to defense counsel, as
defendants contend, but chided the prosecutor on several oc-
casions for various conduct. In fact, the court at one point
threatened the prosecutor with contempt for what it believed
to be unnecessary delay in turning over certain documents
“ Herman v. United States, 289 F .2d 362, 365 (Sth Cir.), cert. denied, 368
U.S. 897, 82 S.Ct. 174, 7 L.Ed.2d 93 (1961).
“ Moore v. United States, 598 F.2d 439, 442 (Sth Cir. 1979) (citations
omitted).
27a
to defense counsel.** Moreover, most of the court’s arguments
with counsel took place during bench conferences, out of the
hearing of the jury.
At the beginning of trial and again in its final instructions,
the court cautioned the jury:
During the course of a trial I occasionally make com-
ments to the lawyers or ask questions of a witness or ad-
monish a witness concerning the manner in which he
should respond to the questions of counsel. Do not
assume from anything I may have said that I have any
opinion concerning any of the issues in this case. Except
for my instructions to you on the law you should disre-
gard anything I may have said during the trial in arriving
at your own findings as to the facts.“
® The following exchange took place in the judge’s chambers concerning
the Government's delay in obtaining a rap sheet on one of its witnesses for use
by defense counsel:
Tue Courr: Why do you wait until the witness takes the stand gentle-
men? This case has been scheduled for months — to get a rap sheet.
Mr. Nerrum: Negligence on my part, Your Honor. I will have to
take the blame.
Tue Cover: Gentlemen, this is not going to happen again. I
thought we had a plain understanding earlier in the week, there is no
reason, with the facilities available to you gentlemen, that a rap sheet
_ could not have been available when this man hit that witness stand.
And that was the Court's instruction to you. It wasn't to get it this
morning, he took the stand yesterday. It doesn’t take that long to get a
rap sheet. Now one of you better get out of the courtroom and go get it
or we are going to start a contempt proceeding here before long. That's
not a threat, it's a promise.
Acent Dempsey: Your Honor, we have three people working on it
right now.
Tue Courr: Well you better get four. That would include you.
Tr. VIII, p. 80.
“Tr. XVII, p. 7. See also Tr. Il, p. 54.
We conclude defendants did not receive an unfair trial.
Defendants cite to several adverse legal rv-lings by the court
to support their argument of bias and prejudicial conduct by
the trial judge. Without addressing these numerous objections
in detail, we find no reversible error.
GEORGE RAWLS
Count IV of the indictment charged Rawls, also charged in
other counts, with operating a “continuing criminal enter-
prise” in violation of 21 U.S.C.A. § 848. For a person to
operate a continuing criminal enterprise within the meaning
of section 848, he must act “in concert with five or more other
persons” and with respect to those persons he must occupy a
“position of organizer, a supervisory position, or any other
position of management.”* Count IV did not name the per-
sons whom Rawls allegedly supervised.“ Rawls contends the
trial court erred in denying his motion for a bill of particulars
seeking these names.
#21 U.S.C.A. § 848(b).
“Count IV of the indictment provided:
From on or about May, 1978, and continuously thereafter up to and
including the date of this indictment, in the Americus Division of the
Middle District of Georgia, and elsewhere, GEORGE RAWLS, A/K/A
HOWARD KENITH LEIGH, unlawfuily, willfully, and intentionally
did violate Title 21, United States Code, Sections 841 (a)(1), 846, 952,
960, and 963 as alleged in Counts I and II of this indictment, which are
incorporated herein by reference, which violations were a part of a
continuing series of violations of subchapters I and II of the Drug
Abuse Control Act of 1970, 21 U.S.C. §§ 801, et seqg., undertaken by
the defendsat GEORGE RAWLS and with at least five (5) other per-
sons with respect to whom GEORGE RAWLS occupied a position of
organizer, a supervisory position, and a position of management, and
from which continuing series of violations the defendant GEORGE
(16, 17] The purpose of a bill of particulars is to inform the
defendant of the charge against him in sufficient detail and to
minimize surprise at trial. The denial of a bill rests within the
sound discretion of the trial court and can be reversed only
when it is established that defendant was actually surprised at
trial and thus incurred prejudice to his substantial rights.‘
While the indictment in this case could have been more speci-
fic, it adequately put Rawls on notice of the persons the Gov-
ernment would claim he supervised. The indictment con-
tained a detailed list of overt acts in which Rawls and Rosen-
thal were named as central figures. The list also contained the
names of the codefendants as well as those who ultimately
became the key Government witnesses. It is these persons
who were alleged by the prosecutor in his opening argument as
those supervised by Rawls and Rosenthal. Rawls has failed to
show he was surprised at trial by the persons listed in the in-
dictment and alleged by the prosecutor.
This Court addressed a similar situation in United States v.
Johnson,“ in which the indictment charging a section 848
violation also did not specify the names of the persons alleged-
ly supervised by defendants. Defendants were later informed
RAWLS obtained substantial income and resources of which the
United States seeks forfeiture, including all profits obtained by the de-
fendant GEORGE RAWLS in such continuing enterprise and of his in-
terest in, claim against, and property and contractual rights of any
kind affording a source or influence over such enterprise; all in viola-
tion of 21 U.S.C. § 848.
* United States v. Diecidue, 003 F.2d 535, 562-63 (Sth Cir. 1979), cert.
denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 781 (1980). See also
United States v. Johnson, 575 F.2d 1347, 1356 (Sth Cir. 1978), cert. denied,
440 U.S. 907, 99 S.Ct. 1213, 59 L.Ed.2d 454 (1979); United States v.
Mackey, 551 F.2d 967, 970 (Sth Cir. 1977).
“575 F.2d 1347 (5th Cir. 1978), cert. denied, 440 U.S. 907, 99 S.Ct. 1213,
59 L. Ed.2d 454 (1979).
by the prosecutor only that these persons would include “four
Spanish-surnamed individuals as well as other persons un-
named at that time.” This Court upheld the denial of the
bill of particulars, holding defendants had not shown they
were surprised or misled at trial.”
In light of the sufficiency of the indictment and the lack of a
showing of surprise or prejudice, we hold the trial court did
not abuse its discretion in denying the motion for a bill of par-
ticulars.
[18] Ames was indicted only in Count I for conspiracy to
import drugs, and found guilty by the jury. Ames first chal-
lenges the sufficiency of the evidence implicating him in the
conspiracy. The standard of review for this claim is “whether
the jury might reasonably conclude that the evidence, viewed
in the light most favorable to the prosecution, is inconsistent
with every reasonable hypothesis of the accused's inno-
cence.”"*
The evidence established that Ames, a pilot and airplane
mechanic, owned a small, unattended air strip in Florida
known as “Ames Field.” In September 1978, Rosenthal and
pilot Norris Reed used a hangar at Ames Field to remove the
“Id. at 1357.
™ See also United States v. Howard, 500 F .2d 564, 566-67 (4th Cir.), cert.
denied, 440 U.S. 976, 99 S.Ct. 1547, 50 L.Ed.2d 795 (1979); United States v.
Sperling, 506 F.2d 1323, 1344 (2d Cir. 1974), cert. denied, 420 U.S. 962, 95
S.Ct. 1351, 43 L.Ed.2d 439 (1975).
™ United States v. Black, 644 F.2d 445, 447 (Sth Cir. 1981). See also
United States v. Alfrey, 620 F.2d 551 (Sth Cir. 1980), cert. denied, 449 U.S.
938, 101 S.Ct. 337, 66 L.Ed. 2d 160 (1981); United States v. Maner, 611 F.2d
107 (Sth Cir. 1980).
3la
seats from a plane in preparation for smuggling. Rosenthal
paid Ames for the use of this hangar.
After the crash of this plane in South America, Ames agreed
to purchase a new plane for Rosenthal. He subsequently
found and purchased a Beechcraft Queenair for Rosenthal,
paying for it with a $75,000 draft drawn on a bank in the
Bahamas. Approximately one month earlier, Ames had re-
cruited a pilot, Verne Voll, for Rosenthal.
Voll and another pilot involved in the conspiracy, J. D. Scar-
borough, later flew the plane to Ames Field, where they
removed the seats and installed equipment designed to in-
crease its flying range. Scarborough, one of the Government's
key witnesses, testified that on this occasion:
Mr. Ames was inquiring as to the size of the bales of mari-
juana so that we could determine how many bales we
could put into the plane below the window area and for-
ward of the entry door and rear of the entry door so that
upon exit and entry of the plane, anybody standing on the
ground outside couldn't see what was in it.™
The Government also established that Rosenthal had paid
Ames a substantial amount of money for the use of his field
and for various work on the plane, and that numerous tele-
phone calls in connection with the conspiracy were made to
and from Ames Field.
Although Ames admits the use of his field and hangars by
the conspirators, his purchase of the plane and recruitment of
Voll, and the work he performed on Rosenthal’s planes, he
contends these were all legal activities and that he had no
knowledge of the drug conspiracy. He disputes Scarborough’s
testimony implicating him as “uncorroborated and inherently
unreliable.”
“Tr. VIII, p. 50.
The evidence, as summarized above, was sufficient for the
jury to conclude Ames had knowledge of and participated in
the conspiracy to import drugs. It was up to the jury to deter-
mine whether Scarborough’s testimony, perhaps the most
damaging evidence, was credible.™ Ames’ counsel as well as
other defense counsel vigorously cross-examined Scarborough
in an attempt to discredit his testimony, but apparently did
not succeed.
[19] Ames also contends the court erred in denying his mo-
tion for severance. He argues that since the evidence against
him was de minimis in relation to the evidence against the
other defendants, there was a real danger of a prejudicial
“spillover” effect. This argument fails, however, in light of
evidence sufficient to implicate Ames in the conspiracy. Any
spillover effect is countered by the fact three of Ames’ code-
fendants were acquitted by the jury, which indicates an ap-
parent careful weighing of the evidence against each defend-
ant. The trial court did not abuse its discretion in denying the
severance motion.
WILLIAM McCAIN
[20] McCain was indicted and found guilty on Counts I and
II of the indictment for conspiracy to import and possess drugs
with intent to distribute. McCain challenges the sufficiency of
the evidence to support his conviction.
The evidence, viewed most favorably for the Government, ™
derived largely from the testimony of Scarborough. It estab-
lished that McCain managed a nightclub in Lebanon, Illinois.
™ See, e.g., United States v. Palacios, 612 F.2d 972 (Sth Cir. 1980); United
States v. Cravero, 530 F.2d 666 (Sth Cir. 1976).
™ See text at note 5] supra.
One day in November 1978, Rawis and Scarborough met with
McCain at his home and later at the nightclub. That evening,
McCain and Scarborough drove to an airport in St. Charles,
Missouri. Scarborough testified that while at the airport, he
and McCain set up an antenna for the purpose of radioing an
airplane that was expected to arrive with a large load of mari-
juana. Although they waited all night, the plane did not ar-
rive and the two finally left. They later discovered they had
been waiting at the wrong airport and the plane had arrived at
at.other airport in the vicinity that evening.
After leaving the airport, McCain stopped in St. Charles to
make a telephone call. Scarborough testified that McCain
told him he had called Rawls, who reportedly said the load
was already in and was presently stored in a nearby ware-
house. That evening, Scarborough and Rawls met McCain at
his nightclub, where McCain handed to Rawls a suitcase he
had taken out of the office safe. Scarborough later discovered
the suitcase contained a large sum of money. McCain report-
edly also told Scarborough he had placed a bale of marijuana
in the van Scarborough and Rawls planned to drive that night
to Georgia.
McCain argues that even if Scarborough’s testimony was
credible, it was insufficient to show he had knowledge of or
had participated in the drug conspiracy. He contends that
apart from Scarborough’s hearsay testimony on what McCain
had told him, evidence of McCain's presence at the airport
and the handing over of the suitcase to Rawis reasonably sug-
gests he may inave been a mere “errand boy” without further
knowledge of the conspiracy.
(21) Upon review of Scarborough’s testimony and other evi-
dence against McCain, it appears the jury could reasonably
conclude McCain knew of and participated in the conspiracy.
Even though the evidence indicated his involvement in only
one drug transaction, the law is clear that:
JAa
[C]onduct consisting only of involvement in a single
transaction may nevertheless be treated as rationally per-
mitting the inference of knowledge of the broader con-
spiracy where the single act itself shows so much
familiarity with or high-level participation in the overall
conspiracy as to be in and of itself indicative of the broad-
er conspiracy. ™
McCain’s knowledge of the broader conspiracy could be in-
ferred from his awareness of the use of private planes in the
operation, his personal contact with Rawls and his involve-
ment with additional members of the conspiracy. We hold
the evidence was; sufficient to support his conviction.
[22] McCain next contends the indictment was insufficient
because it failed to allege an overt act by him in furtherance of
the conspiracy. This Court has held, however, that an indict-
ment charging a violation of 21 U.S.C.A. § 846 or its sister
statute § 963 “is sufficient if it alleges a conspiracy to
distribute [or import] drugs, the time during which the con-
spiracy was operative and the statute allegedly violated, even
if it fails to allege or prove any specific overt act in furtherance
of the conspiracy.”™ The indictment in this case met the
above requirements and was therefore sufficient.
JAMES HERMAN
[23] Herman, convicted on the first two counts of the in-
dictment, argues a single point of error relating to statements
United States v. Torres, 503 F.2d 1120, 1124 (2d Cir. 1974); See also
United States v. Consolidated Packaging Corp., 575 F.2d 117 (7th Cir.
1978); United States v. Fontenot, 483 F.2d 315 (Sth Cir. 1973).
™ United States v. Marable, 578 F.2d 151, 154 (Sth Cir. 1978).
made by a codefendant’s attorney during his closing argu-
ment. George Rawls’ counsel argued in closing to the jury:
I will argue to you something I don’t think you would
expect from a defense attorney, especially when his client
is charged with serious crimes but what I will argue to
you this morning is the evidence in this case and my belief
that this evidence shows that my client is, in fact, guilty
of Count Two of the indictment.
He is, however, not guilty of Count One and Count
Four.”
Counsel’s strategy apparently was to concede the Count II
conspiracy with intent to distribute charge and concentrate on
preventing a conviction on the more serious Count IV charge,
which alleged Rawls was supervisor of a continuing criminal
enterprise. Herman contends these statements amounted to a
“confession” by Rawls that a conspiracy did exist, which
therefore incriminated the codefendants. Since Rawls did not
testify and could not be cross-examined, Herman argues his
rights under the Confrontation Clause of the Sixth Amend-
ment were violated. ™
Herman’s characterization of the statements as a “confes-
sion” by Rawls is misleading. Counsel did not state that Rawls
admitted his guilt or the existence of a conspiracy, but instead
only indicated it was his belief the evidence was sufficient to
establish Rawls’ guilt on the second count. Counsel's state-
ments, then, while perhaps questionable,” did not trigger
"Tr. XV, p. 4.
"See Bruton v. United States, 301 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d
476 (1968).
™ See, e.g., United States v. Garza, 608 F.2d 659, 662-63 (Sth Cir. 1979)
(during closing argument attorney may not express his personal opinion on
the Confrontation Clause of the Sixth Amendment. More-
over, the trial court gave a cautionary instruction concerning
these and other statements by counsel:
Remember that any statements, objections, or argu-
ments made by the lawyers are not evidence in the case.
The function of lawyers is to point out those things that
are most significant or most helpful to their side of the
case. And in so doing to call your attention to certain
facts of inferences that might otherwise escape your
notice. In the final analysis, however, it is your own
recollection and interpretation of the evidence that coa-
trols in the case. What the lawyers say is not binding
upon you. When an attorney in behalf of his client states
that you should find his client guilty of a particular
charge such a statement is not evidence and is not by itself
sufficient for you to base a finding of guilty on. Such a
statement does not relieve you of your duty to determine
whether or not in truth and fact and under these instruc-
tions the defendant is guilty of what his lawyer suggests
he is guilty of.
In view of this cautionary instruction, we cannot say the trial
court erred in declining to grant a mistrial on the basis of
counsel’s statements.
JORGE LUIS VALDES
Valdes was convicted on Count I of the indictment tor con-
spiracy to import drugs. He offers three grounds of appeal.
the merits of the case, although he may state his contentions as to the conclu-
sions the jury should draw from the evidence).
Tr. XVII, pp. 6-7 (emphasis supplied).
Incidents in Panama
Valdes’ first ground of appeal arises from his allegations of
brutal treatment by Panamanian authorities and their illegal
search of a plane on which he was a passenger following its
crash in Panama. Arguing the United States Government
should be held responsible for the actions of the Panamanians
because of their involvement in the incidents, Valdes contends
the court should have dismissed the indictment against him on
the basis of the mistreatment or, at the least, suppressed the
evidence obtained from the search and the testimonial fruits
derived therefrom, in particular the trial testimony of pilots
Scarborough and Voll.
The trial court held a lengthy hearing on Valdes’ claims, in
which testimony was presented by Valdes, two of his compan-
ions on the plane, and the Panamanian and American authori-
ties involved. This testimony established that on April 26,
1979, a private plane carrying Valdes made a crash landing on
a rural airstrip in Panama. Rosenthal, Voll and Scarborough
were also on the plane. The DEA, whose El Paso Intelligence
Center had been keeping track of this plane because of its sus-
pected drug activities, informed Panamanian authorities of
the crash. Since the plane was disabled, the four passengers
departed for a nearby village, where they were later arrested.
A search of the plane by Panamanian authorities pursuant to a
Panamanian search warrant uncovered “three cases full of co-
caine,” as well as additional suitcases and briefcases contain-
ing various documents.
During the next two weeks, the four were transferred to a
jail in Panama City and interrogated by both Panamanian and
DEA agents. They were also visited on several occasions by
the American consul in Panama. It is during this period that
Voll and Scarborough agreed to testify for the Government in
exchange for immunity and assistance in their release from
38a
prison. Scarborough and Voll were permitted to leave the
country on May 4. Rosenthal and Valdes were deported five
days later, and were immediately arrested upon their arrival
in the United States.
[24] With respect to the allegations of an illegal search, the
general rule is that the Fourth Amendment does not apply to
arrests and searches made by foreign authorities in their own
country and in enforcement of foreign law. Two exceptions to
this rule are recognized: first, if the conduct of the foreign
authorities in conducting the search “shocks the conscience” of
the American court; and second, if American officials par-
ticipated in the foreign search, or if the foreign authorities
were acting as agents for their American counterparts.*'
[25] Neither of these exceptions is applicable here. There
are no circumstances surrounding the search which shocks the
conscience. The search of the plane was carried out pursuant
to a Panamanian search warrant and there is no evidence any
subsequent search of the occupants was conducted in an unac-
ceptable manner. The evidence also failed to establish a level
of American participation in the search that would trigger the
application of the Fourth Amendment. Valdes concedes the
DEA agents did not participate in the actual search. There is
no indication the DEA agents persuaded the Panamanian au-
thorities to conduct the search on their behalf in an attempt to
evade the strictures of the Fourth Amendment. American in-
volvement was limited to notifying Panamanian authorities
that a plane suspected of carrying drugs had made a crash
landing in their country. This case is similar to United States
*' See, e.g., United States v. Heller, 625 F.2d 594, 599-600 (Sth Cir. 1980);
United States v. Morrow, 537 F.2d 120, 139-40 (Sth Cir. 1976); Birdsell v.
United States, 346 F.2d 775, 782-83 (Sth Cir.), cert. denied, 382 U.S. 963, 86
S.Ct. 449, 15 L.Ed.2d 366 (1965).
39a
v. Morrow, where this Court held that a similar notification
of foreign authorities was insufficient to invoke the exclusion-
ary rule.”
[26] With respect to the charge of mistreatment, a careful
review of the testimony and other evidence indicates the trial
court was not clearly erroneous in finding that Valdes failed to
prove his claim. The Panamanian authorities and DEA
agents involved in the interrogations of the four passengers
vigorously denied any mistreatment. Voll and Scarborough
also denied any personal mistreatment. They indicated that
while prison conditions in Panama were not altogether com-
fortable, they were adequately housed and fed. hey testified
that prior to interrogation they were advised of their rights by
the American consul and the DEA agents.
The only evidence in support of Valdes’ claim was his own
testimony and that of an attorney who met him upon his re-
turn to the United States. The attorney testified he noted
bruises on Valdes’ face. The American consul who saw Valdes
in Panama as well as others who met him upon his return to
this country, however, testified that Valdes did not complain
at the time of any mistreatment and that they witnessed no
physical signs of abuse. The trial court did not err in denying
Valdes’ motion to dismiss the indictment or to exclude the evi-
dence seized from the plane.
Overbroad Theory of Conspiracy
[27] Valdes does not seriously deny he was involved in a
conspiracy to import cocaine. He contends, however, his
537 F.2d 120 (Sth Cir. 1976), cert. denied, 430 U.S. 956, 97 S.Ct. 1602,
51 L.Ed.2d 806 (1977).
Id. at 139-40. See also United States v. Heller, 625 F.2d 504, 599-600
(5th Cir. 1980) (fact that defendant arrested by British on tip from American
agents insufficient to establish American participation).
40a
conspiracy was separate from the Rosenthal-Rawls conspiracy
involving the importation and sale of marijuana and metha-
qualone, and that he used the Rosenthal-Rawls network only
to smuggle his cocaine into the United States. He therefore
argues the evidence failed to establish the existence of a single,
broad conspiracy involving the sale of all three drugs, as
charged in the indictment.
The evidence presented by the Government established that
in April 1979, Valdes met with Rosenthal, Voll and Scarbor-
ough in Miami to plan a trip to Bolivia to purchase a large
amount of cocaine for distribution in the United States. Later
that month, Valdes flew to Bogota, Columbia from Miami
where he again met Rosenthal, Voll and Scarborough, who
had flown in on a private plane. Valdes accompanied them
on a five-day trip through Central and South America until
they arrived in Lima, Peru. He then left them to take a com-
mercial flight to Santa Cruz, Bolivia, to make final arrange-
ments for the purchase of the cocaine. When the other three
arrived in Santa Cruz, the cocaine was loaded into the private
plane and they took off to return to the United States. The
plane, however, crashed in Panama which resulted in the ar-
rests of all four occupants and the confiscation of the cocaine,
as described more fully in the preceding section.
Whether a scheme is one conspiracy or several is primarily a
question for the jury.“ The evidence in this case established
that Valdes tied into the existing Rosenthal-Rawls conspiracy
for the purpose of importing cocaine into the United States.
The jury could reasonably conclude from this evidence both
that a single broad conspiracy existed and that Valdes had
knowledge of the larger conspiracy. The Second Circuit, in
* See, ¢.g., United States v. Michel, 588 F.2d 986, 995 (Sth Cir.), cert.
denied, 444 U.S. 825, 900 S.Ct. 47, 62 L.Ed.2d 32 (1979); United States v.
Rodriguez, 500 F.2d 1342, 1348 (5th Cir. 1975).
4la
considering a heroin conspiracy, noted: “[I}t would be un-
realistic to assume that major producers, importers, wholesal-
ers or retailers of drugs do noi know that their actions are inex-
tricably linked to a large on-going plan or conspiracy.” The
fact that Valdes was not involved in transactions of other
drugs by the Rosenthal-Rawls network does not counter the
existence of a single conspiracy or his involvement therein.
This Court has held:
A finding of a single conspiracy is not defeated merely
because of personnel changes. On the contrary, we have
recognized proof of overlapping membership and ac-
tivities directed toward a common goal as factors reflec-
ting only one conspiracy.”
The conspiracy alleged in this case involved at varying times
shipments of marijuana, methaqualone, and with Valdes, co-
caine. Although there were some changes in personnel from
transaction to transaction, the conspiracy was supervised
throughout its entire duration by the same two persons, and
retained as its general object the importation of drugs from
South America. We therefore conclude the jury reasonably
found a single conspiracy of which Valdes was a participant.
Because of this holding, it is not necessary to address Valdes’
related contention of lack of venue in the Middle District of
Georgia.
[28] Valdes also challenges the trial court’s instructions con-
cerning the issue of single versus multiple conspiracies. With-
* United States v. Arroyo, 494 F.2d 1316, 1319 (2d Cir.) cert. denied, 419
U.S. 827, 95 S.Ct. 46, 42 L.Ed.2d 51 (1974).
United States v. Ochoa, 609 F.2d 198, 201 (Sth Cir. 1980) (emphasis
supplied and citations omitted).
42a
out reviewing these instructions in detail here, we find that
when read as a whole they were adequate to inform the jury of
the proof required to establish a single conspiracy.’
Denial of Motion for Severance
Valdes contends the trial court erred in denying his motion
for a severance. He argues it would have been “extremely sim-
ple” and would have “created no impediment to judicial
economy” to try him separately.
(29, 30) The granting or denial of a motion for severance is
in the discretion of the trial court, and appellate courts are
hesitant to second guess a trial court’s refusal to grant a sever-
ance.” The joint trial of Valdes with his codefendants result-
ed in a significant judicial economy because of the overlap of
evidence and testimony. Valdes does not show any undue
prejudice from being jointly tried. The trial court did not
abuse its discretion in denying severance.
HOWARD HAWKINS anp ROGER BECKMAN
As noted earlier, counsel for Hawkins and Beckman did not
file separate briefs or participate in oral argument before this
Court. All counsel concurred in the arguments advanced by
other counsel to the extent they were relevant to their clients.
Accordingly, with respect to Hawkins and Beckman, the argu-
ments of others having failed to prevail, we note only that we
have reviewed the evidence implicating them in the conspiracy,
and conclude it was sufficient to support their convictions.
AFFIRMED.
" See United States v. DeLeon, 641 F.2d 330, 334-35 (Sth Cir. 1981).
See, e.g., United States v. Horton, 646 F.2d 181, 186 (Sth Cir. 1981);
United States v. Salomon, 609 F.2d 1172, 1176-77 (Sth Cir. 1980).
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.