Petition for Writ of Certiorari — Yamanis v. United States
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IN THE vc gas “el STEVAS.
Supreme Court of the United States
October Term, 1984
et tt
— oor
MICHAEL YAMANIS,
Petition. r;
—against—
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CiRCUIT
WALTER P. LOUGHLIN,
Attorney for Petitioner
15 Washington Street
Newark, New Jersey 07102
(201) 648-5457
~
DAVID S. ZAPP,
Of Counsel.
Satis
i
Questions Presented
I. Whether a term of imprisonment of 60 years,
without possibility of parole, and which is therefore ef-
fectively a term of life imprisonment for appellant, is
grossly disproportionate to the offense of which petitioner
has been convicted?
II. Whether, consistent with due process of law,
United States law enforcement agents can forcibly abduct
from a foreign country a foreign citizen lawfully residing
in that country, and involuntarily transport that individual
te the jurisdiction of the United States for purposes of
proceeding against him in a criminal prosecution?
Parties to the Proceeding
The parties to the proceeding in the United States
Court of Appeals for the Eleventh Circuit were Michael
Yamanis, petitioner herein, Constantine Yamanis, Vin-
cent Calise and George Tom Darby.
il
TABLE OF CONTENTS
Cm INE oe 5 i ino 3 60 5 A
, arties-to- the Proceeding ts
i kg, SUSE cee s Oey. CER ERRTER TE Ce
I ig uate ie oa Se, 2 eee
Constitutional Provisions Involved ................
Dees Oe Cee ae ne eu ee ees on
Reasons for Granting the Writ ..................
I.
II.
The Imposition Of A Sixty-Year Term Of
Imprisonment, Without Possibility Of Pa-
role, Which Is Therefore Effectively A Term
Of Life Imprisonment, Is Grossly Dispro-
portionate To The Offense Of Which Peti-
tioner Has Been Convicted .............
The Forcible Abduction Of Petitioner, A
Foreign Citizen Residing Lawfully In A
Foreign Country, And His Involuntary
Transportation To The United States For
Purposes Of Criminal Prosecution, Violated
Se TOO ok ere ie ee
COMGEAMIONE 66 isc Achat ee eee eee
Cases:
TABLE OF AUTHORITIES
Frisbie v. Collins, 342 U.S. 519 (1972) ...........
Government of Virgin Islands v. Ortiz, 427 F.2d 1043
(Oe Cie, 1090) ceca eee
ili
Ker v. Illinois, 119 U.S, 486 (1886) .............. 8
Mapp v. Ohio, 367 U.S. 643 (1961) ............. 9
Miranda v. Arizona, 384 U.S. 486 (1966) ........ 9
Rochin v. California, 342 U.S. 165 (1952) ......... )
Solem v. Helm, 103 S.Ct. 3001 (1988) ............ 4,6
United States v. Darby, 744 F.2d 1508 (11th Cir.
ed ea 5 45 0k d's bw EAN we 8 0 passim
United States v. Edmons, 482 F.2d 577 (2d Cir.
Sy i, i OE ees kien baka cw dx web's 8
United States v. Garrett, 727 F.2d 1003 (11th Cir.
SR ee ad. Wa ab Sec ss 8k ak Os 7
United States v. Herrera, 504 F.2d 859 (Sth Cir.
re LN bb Wk ka mk bu W800 808 8
United States v. Jeffers, 5382 F.2d 1101 (7th Cir.
ee eg ans | Wk hw A ake 8 7
United States v. Kirk, 723 F.2d 1379 (8th Cir. 1983)
United States v. Lopez, 542 F.2d 283 (5th Cir. 1976)
United States v. Phillips, 664 F.2d 971 (5th Cir.
Rents Bee Cr Bree CERGR) co acc sce cceess 7
United States v. Postal, 589 F.2d 862 (5th Cir.),
cert. denied, 444 U.S. 882 (1979) ............ 8
United States v. Toscanino, 500 F.2d 267 (2d Cir.
ee Re eek Sean aetna eo 8,9
United States v. Valenzuela, 646 F.2d 352 (9th Cir.
Ne cba aneaaaes’s 4,7
United States v. Winter, 509 F.2d 975 (5th Cir.
ee a eA KW We MK OOS 8
Wong Sun v. United States, 371 U.S. 471 (1963) ... 9
iv
PAGE
United States Constitution: ;
eS a co ci Ga vce uwabu ea ewre oha ah 2
Fee eerereerrenerste: 2
Statutes and Rules:
ETE A elena eae macnn ond ARE 2
WE nk says Coe SC4NWetandeeee 4
Se, I Shown s bo caec ae cve Cemadben 2
Oe oc int ha whens eka bee was passim
ee WI EE kk, ds bd Se 0d bbud oe coe nca ue 2
Other Authorities:
Allen, Due Process and State Criminal Procedures,
Another Look, 48 Nw. 16 (1958) ............
Pitler, The Fruit of the Poisonous Tree Revisited and
Shepardized, 56 Cal. L. Rev. 579 (1968) ......
Scott, Criminal Jurisdiction of a State over a Defen-
dant Based Upon Presence Secured by Force or
Fraud, 37 Minn. L. Rev. 91 (1953) ..........
Supreme Court 1951 Term, 66 Harv. L. Rev. 89
CRS Khe SRP EREIS EE ia ec PET RS eC
United States District Courts Sentences Imposed
Chart, Twelve Month Period Ending June 30,
1982 (Admin. Office U.S. Courts) (June 1983)
7
No. ——
: IN THE
Supreme Court of the United States
October Term, 1984
—oorw
MICHAEL YAMANIS,
Petitioner,
—against—
UNITED STATES OF AMERICA,
Respondent.
—oow
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
Petitioner Michael Yamanis respectfully prays that a
writ of certiorari issue to review the judgment of the
United States Court of Appeals for the Eleventh Circuit
in this case.
Opinion Below
The opinion of the Court of Appeals (Kravitch and
and Hatchett, Circuit Judges, and Morgan, Senior Circuit
Judge) is reported at 744 F.2d 1508 (11th Cir. 1984),
sub nom. United States v. Darby.
Jurisdiction
The judgment of the Court of Appeals was entered
on October 29, 1984. A timely filed petition for rehear-
2
ing with suggestion for en banc consideration was denied
on December 7, 1984. The jurisdiction of this Court is
invoked under 28 U.S.C. § 1254(1) and Rule 20.1 of the
Rules of this Court.
Constitutional Provisions Involved
The Eighth Amendment to the United States Con-
stitution:
Excessive bail shall not be required, nor exces-
sive fines imposed, nor cruel and unusual punish-
ments inflicted.
The Fifth Amendment to the United States Consti-
tution:
No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a present-
ment or indictment of a Grand Jury, except in
cases arising in the land or naval forces, or in
the Militia, when in actual service in time of War
or public danger; nor shall any person be subject
for the same offense to be twice put in jeopardy
of life or limb; nor shall be compelled in any crim-
inal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due
process of law; nor shall private property be taken
for public use, without just compensation.
Statement of the Case
Petitioner was convicted after trial by jury before the
United States District Court for the Northern District of
Florida of engaging in a continuing criminal enterprise
(21 U.S.C. § 848), importation of marijuana (21 U.S.C.
§ 952 and 18 U.S.C. § 2), and possession of marijuana
with intent to distribute same (21 U.S.C. § 841 and 18
U.S.C. § 2). Petitioner was sentenced to a term of sixty
3
years imprisonment, without possibility of parole, and
fined $100,000 on the continuing criminal enterprise con-
viction. On the other two counts, consecutive five-year
terms of imprisonment were imposed, to run concurrent
with the sixty-year term, as well as two fines of
$15,000, and a two-year term of special parole. The
convictions were affirmed by the United States Court of
Appeals for the Eleventh Circuit. 744 F.2d 1508.
The District Court did not have personal jurisdiction
over appellant when the indictment was filed in January
1982. Six months later, at approximately 5:00 p.m. on
July 15, 1982, appeilant was arrested in San Pedro-Sula,
Honduras, by DEA agent Thomas Zepeda and a Hon-
duran police officer. Mr. Yamanis was held incommuni-
cado for approximately 22 hours in San Pedro-Sula and
Teguciga'pa, Honduras, and at 2:00 p.m. on July 16,
1982, was placed against his will on Air Florida Flight
476 and transported to Miami, Florida in the custory of
DEA agent Zepeda. (R. 16; R.E. 11-17).*
On July 19, 1982, appellant was brought before the
Honorable Charlene H. Sorrentino, United State. Magis-
trate for the Southern District of Florida, where he chal-
lenged the jurisdiction of the court to proceed against him
on the ground that he had been unlawfully arrested.
(R.E. 19). Magistrate Sorrentino imposed bail in the
amount of 10 million dollars cash or surety, and scheduled
a removal hearing for July 29, 1982. (R.E. 20-21). On
that date, appellant waived his right to an identity hear-
ing, and was subsequently transported to the Northern
District of Florida. (R.E. 22-24). Trial commenced
on October 12, 1982, and concluded on October 19, 1982,
*“R.” refers to the record on direct appeal in the Eleventh
Circuit. “R.E.” refers to the record excerpts volume filed with
petitioner’s brief on that appeal. “Tr.” followed by date and page
number refers to the trial transcript.
4
when the jury returned its verdict against appellant on
all three counts.
Effectively, Michael Yamanis has been sentenced to
prison for the rest of his life, since the 60-year term of
imprisonment is non-parolable.* He is currently in-
carcerated, as he has been continuously since July 15,
1982.
Reasons For Granting The Writ
1. The imposition Of A Sixty-Year Term Df Impri-
sonment, Without Possibility Of Parole, Which
Is Therefore Effectively A Term Of Life Imprison-
ment, Is Grossly Disproportionate To The Offense
Of Which Petitioner Has Been Convicted.
This Court has interpreted the constitutional prohibi-
tion on cruel and unusual punishment to contain the
“principle that a criminal sentence must be proportionate
to the crime for which the defendant has been convicted.”
Solem v. Helm, 103 S. Ct. 3001, 3009 (1983). In Solem,
three factors were identified as governing review of the
proportionality of criminal sentences: (1) the gravity of
the offense and the harshness of the penalty, (2) the
sentences imposed on other criminals in the same juris-
diction, and (3) the sentences imposed for commission of
the same crime in other jurisdictions. Jd. at 3010-11.
Application of these factors to petitioner’s sixty-year non-
parolable sentence leads to the conclusion that petitioner’s
sentence is grossly disproportionate to the offense of
which he was convicted.
* See 21 U.S.C. § 848, which provides that 18 U.S.C. § 4202,
the federal parole statute, does not apply to individuals sentenced
under section 848. See also United States v. Valenzuela, 646 F.2d
352, 354 (9th Cir. 1980) (“Congress clearly intended to make
parole unavailable to those who violated section 848.”).
5
Petitioner has always taken the position that a viola-
tion of 21 U.S.C. § 848 is a serious crime. However, the
fact that Congress set a range of available statutory
penalties—from a mandatory minimum of ten years’ im-
prisonment to a maximum of life imprisonment—reflects
a legislative recognition that section 848 could be violatec
in many different ways, some less serious than others.
Petitioner’s claim has been, and remains, that if the
proportionality principle has any meaning, it must be
that the most severe criminal punishments are reserved
for the most serious cases of criminal behavior, and that
less severe sentences are imposed when the offense com-
mitted is less grave. And it is undeniable that petitioner’s
particular violation of section 848 was not so serious that
he deserves the most severe punishment of spending the
remainder of his life imprisoned.*
Although the Court of Appeals was sensitive to the
need, in assessing the question of gravity, to “focus not
only on the offense as generally defined in the statute,
but also on the offense as actually committed by appel-
lants,” United States v. Darby, 744 F.2d at 1526 (foot-
note omitted), it concluded that petitioner’s sentence,
while “certainly . . . severe punishment,” was not dis-
proportionate to appellant’s crime, which the panel deci-
sion regarded as “particularly grave.” United States v.
Darby, 744 F.2d at 1526.
However, when one genuinely focuses on the “offense
as actually committed” by petitioner, one must conclude
* Although the Court of Appeals declined to refer to appel-
lant’s 60-year non-parolable sentence as effectively a sentence of
life imprisonment, United States v. Darby, 744 F.2d at 1526 n.10,
the decision acknowledges “the distinct possibility that appellants
will not survive the duration of their prison terms.” Jd. The
“possibility” is more than “distinct.” Even if appellant earns
the maximum statutory good time credits allowable during the
first 30 years of his sentence, by the year 2012, when appelant
is 78 years of age, he will still be facing 20 more years in prison.
6
that the offense does not deserve the equivalent of life
imprisonment. For instance, the Court of Appeals failed
to acknowledge that petitioner’s illegal activity involved
exclusively marijuana, the least dangerous of the *on-
trolled substances. Applying the “ge. erally accepted
_ eriteria,”’ Solem v. Helm, 103 S. Ct. at 3011, for determin-
ing the gravity of an offense, such as “the harm caused
or threatened to the victim or society,” id., it simply cannot
be disputed that a section 848 violation involving solely
marijuana is less serious, because it threatens less harm,
than would a section 848 violation involving more dan-
gerous controlled substances. The Court of Appeals did
not address this issue.
If a sentence which has the effect of imprisoning peti-
tioner for the remainder of his life is proportionate to a
crime consisting of arranging for 10 shipments of mari-
juana to be brought to the United States, over a 7-year
period, what sentence would be proportionate had his
crime been more grave?
Turning to the second factor relevant to a propor-
tionality analysis of petitioner’s sentence, i.e., “the sen-
tences imposed on other criminals in the same jurisdic-
tion,” the Court of Appeals concluded that there was “no
significant disparity” between petitioner’s sentence and
sentences imposed on other defendants under section 848.
United States v. Darby. 744 F.2d 1528, This conclusion,
however, is simply not supported by the facts.
When petitioner was sentenced, the statistics then
available showed that the national average of all sentences
imposed for section 848 violations was 312 months. Peti-
tioner was sentenced to serve 720 months, or nearly 21
times the national average. (R.E. 30). Since that time,
the national average has declined. According to the
statistics compiled by the Administrative Office of the
United States Courts, the national average bf all sen-
tences imposed for section 848 offenses during the 12-
7
month period ending June 30, 1982, was 243 months.*
Thus, petitioner’s sentence of 720 montns is almost
exactly three times the national average of sentences
imposed during the year he was sentenced.
The Court of Appeals dismissed these statistics on the
ground that “the use of such statistics could entail no
consideration of relative gravity . . .”, L/nited States Vv.
Darby, 744 F.2d at 1529 n.17, and instead relies on its
determination that “in several recent cases involving con-
tinuing criminal enterprises comparable to the one before
us the defendants received prison terms in the same range
as those given appellants.” Jd. at 1528. The “recent
cases” cited by the Court consist of seven prosecutions
under section 848, each of which involved either crimes
of greater gravity than petitioner’s,** or sentences con-
siderably less severe. For instance, in two of the pur-
portedly “comparable” cases cited, the sentences are
one-third less than petitioner’s. United States v. Garrett,
727 F.2d 1003 (11th Cir. 1984) ; United States v. Kirk,
723 F.2d 1379 (8th Cir. 1983). For purposes of pro-
portionality analysis, however, surely a 40-year sentence
cannot be regarded as equi alent to a 60-year sentence.
* United States District Courts Sentences Imposed Chart
Twelve Month Period Ending June 30, 1982, 194 (Admin. Office
U.S. Courts) (June 1983). The Administrative Office has not
yet released the statistics for the year ending June 1983.
** F.g., the Court of Appeals referred to the following cases:
Uniied States v. Phiilips, 664 F.2d 971 (5th Cir. 1981) (defen-
dants responsible for importation of one million pounds of mari-
juana; case marked by conspiracy to assassinate trial judge,
attempted bribe of a juror); United States v. Valenzuela, 646
F.2d 352 (9th Cir. 1980) (enterprise was “one of the major
sources of Mexican heroin in the United States”; responsible for
the importation of “vast quantities of heroin”); United States
v. Jeffers, 582 F.2d 1101 (7th Cir. 1976) (enterprise distributed
“between one and two thousand capsules of heroin a day” over
two-year period). None of these cases can-be fairly equated to
petitioner’s case.
= ~~
8
The Court of Appeals improperly assessed the gravity
of petitioner’s offense, by neglecting to take adequately
into account the reduced severity of a section 848 offense
involving solely marijuana, and by failing to recognize
the clear disparity between the sentence imposed on peti-
tioner and sentences imposed on other defendants con-
victed of violating section 848.
ll. The Forcible Abduction Of Petitioner, A Foreign
Citizen Residing Lawfully in A Foreign Country,
And His Involuntary Transportation To The
United States For Purposes Of Criminal Prosecu-
tion Violated Due Process.
Petitioner challenged his conviction in the Court of
Appeals on the ground that the District Court did not
have lawful jurisdiction over him because of his illegal
abduction while living as a lawful resident alien in Hon-
duras. Petitioner acknowledged that “a straightforward
application of the ‘Ker-Frisbe’ rule would lead to a denial
of this claim,” (M. Yamanis Br. 36),* and petitioner
recognized that the Eleventh Circuit’s precedents had
accepted the rule. See, e.g., United States Vv. Postal, 589
F.2d 862 (5th Cir. 1979); United States v. Lopez, 542
F.2d 283 (5th Cir. 1976); United States v. Winter, 509
F.2d 975 (5th Cir. 1975); United States v. Herrera, 504
F.2d 859 (5th Cir. 1974).
However, petitioner continues to contend that the rule
should be re-examined in light of developments in the
law since Frisbie v. Collins, 342 U.S. 519 (1972); and
Ker v. Illinois, 119 U.S. 486 (1886), were decided.**
*“M. Yamanis Br.” refers to petitioner’s brief on direct
appeal to the Eleventh Circuit.
** See, e.g., United States v. Toscanino, 500 F.2d 267 (2d Cir.
1974); United States v. Edmons, 432 F.2d 577, 583 (2d Cir.
[Footnote continued on following page]
9
Petitioner asks this Court to re-examine the continued
validity of the “Ker-Frisbie” rule, to condemn the extra-
legal DEA abduction of petitioner in this case, and to hold
that due process requires “a court to divest itself of
jurisdiction over the person of a defendant where it has
been acquired as the result of the government’s deliberate,
unnecessary and unreasonable invasion of the accused’s
constitutional rights.” United States v. Toscanino, 500
F.2d 267 (2d Cir. 1974).
CONCLUSION
The petition for a writ of certiorari should be
granted.
Dated: New York, New York
February 1, 1985
Respectfully submitted,
WALTER P. LOUGHLIN,
Attorney for Petitioner
15 Washington Street
Newark, New Jersey 07102
(201) 648-5457
DAvID S. ZAPP,
Of Counsel.
1970) (Friendly, J.); Government of Virgin Islands v. Ortiz, 427
F.2d 1043, 1045 n.2 (3d Cir. 1970); Pitler, The Fruit of the
Poisonous Tree Revisited and Shepardized, 56 Cal. L. Rev. 579,
600 (1968); Scott, Criminal Jurisdiction of a State Over a
Defendant Based Upon Presence Secured by Force or Fraud,
87 Minn. L. Rev. 91, 102, 107 (1953); Allen, Due Process and
State Criminal Procedures, Another Look, 48 Nw. U. L. Rev. 16,
27-28 (1953); Supreme Court 1951 Term, 66 Harv. L. Rev. 89,
126-27 (1953). See also Miranda V. Arizona, 384 U.S. 436 (1966) ;
Wong Sun v. United States, 371 U.S. 471 (1963); Mapp v. Ohio,
367 U.S. 643 (1961); Rochin v. California, 342 U.S. 165 (1952).
APPENDIX
la
Order
UNITED STATES COURT OF APPEALS
For THE ELEVENTH CIRCUIT
No. 82-5840
Oct. 29, 1984
wo
Sows
UNITED STATES OF AMERICA,
Plaintiff-A ppellee,
—_—vV.—-
GEORGE ToM DARBY, CONSTANTINE YAMANIS, VINCENT
CALISE, and MICHAEL YAMANIS,
Defendants-A ppellants.
eww
—_ oor
Defendants were convicted in the United States Dis-
trict Court for the Northern District of Florida, Lynn C.
Higby, J., of various offenses arising from their involve-
ment in a large drug-smuggling operation, and they ap-
pealed. The Court of Appeals, Kravitch, Circuit Judge,
held that: (1) first defendant was not denied statutory
right to speedy trial; (2) trial court did not err in denying
first defendant’s motions for continuances; (3) there was
no plain error in trial court’s jury instructions, eviden-
tiary rulings and discovery rulings, and, taken together,
these did not deprive first defendant of fair and impartial
trial; (4) 60-year sentences for engaging in continuing
criminal enterprise did not violate Eighth Amendment;
(5) imposition of cumulative fines for engaging in con-
tinuing criminal enterprise and for predicate offenses
was permissible; (6) Government’s alleged kidnapping of
second defendant from Honduras to procure his presence,
even if true, would not have divested District Court of
2a
personal jurisdiction; (7) third defendant received ade-
quate notice of status as, and was properly sentenced as,
dangerous special drug offender; and (8) evidence sus-
tained conviction of fourth defendant for conspiring to
import marijuana.
Affirmed.
Clyde M. Taylor, Jr., Tallahassee, Fla., for
Darby.
Robert J. Vossler, Tallahassee, Fla., for Calise.
Joel Hirschhorn, Harry M. Solomon, Miami,
Fla., for Constantine Yamanis.
Walter P. Loughlin, Newark, N.J., for Michael
Yamanis.
David L. McGee, Asst. U.S. Atty., Tallahassee,
Fla., for Plaintiff-Appellee.
<i.
ae
Appeals from the United States District Court for
the Northern District of Florida.
Before:
KRAVITCH and HATCHETT, Circuit Judges, and MORGAN,
Senior Circuit Judge.
KRAVITCH, Circuit Judge:
Appellants Constantine Yamanis, Michael Yamanis,
Vincent Calise and George Thomas Darby were convicted
and sentenced for their involvement in a large drug smug-
gling operation. The issues presented on appeal are:
(1) whether Constantine Yamanis’ right to a
speedy trial under 18 U.S.C. § 3161(c) (1) was
violated ; |
(2) whether the trial court’s denying Constantine
Yamanis’ motions for continuance constituted error
under 18 U.S.C. § 3161(c) (2) or an abuse of dis-
cretion ;
3a
(3) whether Constantine Yamanis was denied a
fair and impartial trial as a result of the trial
court’s jury instructions, evidentiary rulings and
discovery rulings;
(4) whether the sentences imposed on Constantine
Yamanis and Michael Yamanis are so dispropor-
tionate to the crime as to constitute cruel and un-
usual punishment, whether Constantine Yamanis’
indigency rendered the imposition of “stand com-
mitted” fines violative of the fifth amendment and
whether the trial court erred in imposing cumula-
tive fines;
(5) whether the trial court lacked personal juris-
diction over Michael Yamanis due to the circum-
stances of his arrest;
(6) whether the presence of information of dis-
puted accuracy in the presentence report violated
Michael Yamanis’ due process rights;
(7) whether Calise was improperly sentenced as
a dangerous special drug offender under 21 U.S.C.
§ 849 because of an untimely notice, an inadequate
notice, an insufficiently onerous standard of proof
or prosecutorial vindictiveness ;
(8) whether the trial court erred in prohibiting
Calise from interviewing the jurors after trial;
(9) whether there is sufficient evidence of Darby’s
guilt to support the conviction; and
(10) whether the evidence adduced by the govern-
ment established multiple conspiracies rather than
a single conspiracy such that there was a variance
between the allegations in the indictment and the
proof at trial prejudicial to Darby or such that the
trial court abused its discretion in denying Darby’s
motions for severance.
We affirm in all respects.
4a
Facts and Proceedings Below
Between 1975 and 1982, Constantine Yamanis and
Michael Yamanis, brothers, headed an extensive mari-
juana and hashish importation organization. The bill of
particulars filed by the government listed, and the evi-
dence adduced by the government tended to show, ten
major smuggling episodes for which this organization was
responsible, to wit:
(1) the importation of a multi-ton shipment of
marijuana at Moss Landing, California in late
June and early July 1981 (the Kloto episode) ;
(2) the importation of a multi-ton shipment of
marijuana on the coast of Oregon in May 1981, and
the transportation thereof from Oregon to Califor-
nia (the Oregon episode) ;
(3) the attempted transportation of two and one
half tons of marijuana from Florida to Texas in
December 1980 (the attempted transportation
episode) ;
(4) the importation of a seven-ton load of mari-
juana aboard a DC-2 aircraft at Bascomb, Florida
in July 1980, and the transportation thereof from
Florida to Texas (the DC-6 episode) ;
(5) the importation of a multi-ton shipment of
marijuana on the west coast of Florida in Decem-
ber 1978 (the Draco episode) ;
(6) the attempted importation of a multi-ton ship-
ment of hashish in late 1977 and early 1978 (the
BP-25 episode) ;
(7) the importation of a 14-ton shipment of mari-
juana at Gloucester, Massachusetts in November
1977 (the Willig episode) ;
(8) the importation of a multi-ton shipment of
marijuana at Gloucester, Massachusetts in late
May and early June 1977 (the Gretchen episode) ;
5a
(9) the attempted importation of a 15-ton shipment
of marijuana in October and November 1976 (the
Fylke episode) ; and
(10) the importation of a seven-ton shipment of
marijuana at Ambrose Light, New York in early
1976 (the Patria episode).
The Yamanis organization was also involved in several
smaller drug incidents.
The evidence at trial indicated that the Yamanises
were engaged not only in the importation and off-loading
of marijuana, but also in its transportation, distribution
and sale. In the course of their dealings, they procured
the assistance of public officials, both in this country and
abroad, exchanged hostages to ensure adherence to bar-
gains and otherwise resorted to threats of violence. Their
operation literally spanned the globe, from Florida, Cali-
fornia and New York to Colombia and Pakistan. And
from their drug smuggling activities, they reaped millions
of dollars.
Vincent Calise was one of the Yamanises’ chief lieu-
tenants. Having joined the organization in late 1975 or
early 1976, Calise actively participated in several of the
large drug transactions recounted above. In addition to
performing relatively minor tasks, he often assumed a
supervisory role, for example, in directing personnel en-
gaged in off-loading. The Yamanises were also assisted
by Tom Darby. Specifically, Darby participated in the
DC-6 episode.
On January 7, 1982, the Grand Jury for the Northern
District of Florida returned a five-count indictment charg-
ing appellants and seven others’ with violations of the
1 Appellants’ coindictees were Gian Carlo Beretta, Giovanni
Pecunia, Don Kirshner, George Ellibee, Bill Chiari, Charlie Harris
and “Will” Lnu. Chiari and Harris were tried with Constantine
Yamanis, Calise and Darby. Chiari was acquitted, and Harris was
convicted on two counts.
6a
Comprehensive Drug Abuse Prevention and Control Act
of 1970, 21 U.S.C. § 841-852, and the Controlled Sub-
stances Import and Export Act, 21 U.S.C. §§ 951-966.
Count I charged Constantine Yamanis and Michael Yam-
anis with engaging in a continuing criminal enterprise in
violation of 21 U.S.C. § 848. Count II charged Calise and
Darby with conspiracy to possess marijuana with intent
to distribute in violation of 21 U.S.C. §§ 841, 846. Count
III charged Calise and Darby with conspiracy to import
marijuana in violation of 21 U.S.C. §§ 952, 963. Count
IV charged all four appellants with importation of mari-
juana in violation of 21 U.S.C. §952. And Count V
charged all four appellants with possession of marijuana
with intent to distribute in violation of 21 U.S.C. § 841.
In June 1982, Constantine Yamanis, Calise and Darby
were tried by a jury before Judge Lynn Higby of the
Northern District of Florida. Jury selection occurred
on June 1, and the trial commenced on June 7. On June
15, the jury returned verdicts finding Constantine Ya-
manis guilty on Counts I, IV and V, Calise guilty on
Counts II, III and V, and Darby guilty on Count III.
Following his transportation from Honduras to Florida
in July 1982, Michael Yamanis was tried by a jury,
again before Judge Higby, in October 1982. He was
found guilty on Counts I, IV and V.
Constantine Yamanis and Michael Yamanis each re-
ceived a 60-year prison term and a $100,000 fine on
Count I, a five-year prison term, a $15,000 fine and two-
year special parole term on Count IV, and a five-year
prison term, a $15,000 fine and a two-year special parole
term on Count V. The two five-year terms are to run
consecutively to each other and concurrently with the
60-year term. The total fine is $130,000. Calise was
sentenced to a five-year prison term on Count II, a five-
year prison term on Count III, and a four-year prison
term on Count V, all to run consecutively; he was also
fined $15,000 on each of the three counts. Having been
found to be a dangerous special drug offender under 2)
7a
U.S.C. § 849, Calise received an additional prison term
of 25 years, to run concurrently with the other prison
terms. As a result of his conviction on Count III, Darby
was sentenced to five-years’ imprisonment and was fined
$15,000. This appeal ensued.
Claims
I. CONSTANTINE YAMANIS: STATUTORY
SPEEDY TRIAL
Constantine Yamanis contends that because he was
denied the right to a speedy trial in violation of the
Speedy Trial Act, 18 U.S.C. §§ 3161-3174, the district
court should have dismissed his indictment pursuant to
section 3162(a)(2) of the Act. Section 38161(c) (1)
essentially provides a 70-day period within which a de-
fendant must be brought to trial:
In any case in which a plea of not guilty is en-
tered, the trial of a defendant charged in an
information or indictment with the commission of
an offense shall commence within seventy days
from the filing date (and making public) of the
information or indictment, or from the date the
defendant has appeared before a judicial officer
of the court in which such charge is pending,
whichever date last occurs.
18 U.S.C.A. § 8161(c) (1) (Supp. 1984). Under section
3161(h), however, certain periods of delay may be ex-
cluded when calculating the 70-day period:
(h) The following periods of delay shall be ex-
cluded in computing the time within which an
information or an indictment must be filed, or in
computing the time within which the trial of any
such offense must commence:
(1) Any period of delay resulting from other
proceedings concerning the defendant, including
but not limited to—
* ” * * a
8a
(F) delay resulting from any pretrial motion,
from the filing of the motion through the conclu-
sion of the hearing on, or other prompt disposition
of, such motion;
+ * + * *
(J) delay reasonably attributable to any period,
not to exceed thirty days, during which any pro-
ceeding concerning the defendant is actually under
advisement by the court.
* * * * +
(7) A reasonable period of delay when the de-
fendant is joined for trial with a codefendant as
to whom the time for trial has not run and no
motion for severance has been granted.
18 U.S.C.A. § 3161(h) (Supp. 1984).
[1, 2] Our opinion in United States v. Stafford, 697
F.2d 1368 (11th Cir. 1983), deals exhaustively with
these excludable time provisions. Reading subsections
(1)(F) and (J) together, the court defined three cate-
gories of excludable periods. ‘The first is when a pretrial
motion requires a hearing. If a hearing is held, (F)
by its terms excludes without qualification the entire
period between the filing of the motion and the conclu-
sion of the hearing.” Jd. at 1373 (footnote omitted).
“The second situation in (F) applies to motions which
result in ‘prompt disposition.’ For these motions, the
period of exclusion begins at the iiling of the motion and
ends at the point of its ‘prompt disposition.’” Td.
“Prompt disposition” is defined as disposition within 30
days. Id. at 1373-74. “(F) apparently does not exclude
time in a third situation—namely, where the motion
requires no hearing and its disposition is not prompt.
In this situation, however, (J) permits an exclusion of
up to 30 days from the time the motion is ‘actually under
advisement’ by the court. This period is measured from
the time that the court receives all the papers it expects
from the parties.” Jd. (footnote omitted).
9a
The Stafford court also commented on subsection (7) :
Congress enacted this provision recognizing that
multidefendant trials ere desirable because they
promote efficiency in the disposition of trials. If
the Act imposed rigid time limits without apply-
ing exclusions to codefendants, courts would be
forced to “grant severances which would other-
wise not be required.” United States v. Varella,
692 F.2d 1352, 1359 (11th Cir. 1982) (quot-
ing legislative history of Speedy Tria! Act). For
this reason, the rule in this Circuit is that the
delay caused by one defendant is exciudable as
to his codefendants. IJd.; United States v. Davis,
679 F.2d 845, 849-50 (11th Cir. 1982). This
rule extends to delay caused by the filing of pre-
trial motions. Varella, 692 F.2d at 13858. See
also United States v. Edwards, 627 F.2d 460, 461
(D.C. Cir.), cert. denied, 449 U.S. 872, 101 S.Ct.
211, 66 L.Ed.2d 92 (1980); United States v.
McGrath, 613 F.2d 361, 366 (2d Cir. 1979), cert.
denied, 446 U.S. 967, 100 S.Ct. 2946, 64 L.Ed.
2d 827 (1980).
697 F.2d at 1372; see United States v. Zielie, 734 F.2d
1447, 1453 (11th Cir. 1984). As noted in United States
v. Davis, 679 F.2d 845 (11th Cir. 1982), cert. denied,
459 U.S. 1207, 103 S.Ct. 1198, 75 L.Ed.2d 441 (1983),
however, subsection (7) contains two requirements: first,
the period of delay caused by the codefendant must be
reasonable, and second, as to the codefendant the time
for trial must not have run and a motion for severance
must not have been granted. Jd. at 849-50.’
* Yamanis argues that the court in Stafford was incorrect in
stating that ‘‘delay caused by one defendant is excludable as to his
co-defendants,” 697 F.2d at 1372, and urges us to dis.egard “the
rule in this Circuit,” id. Yamanis further asserts that even if
the Stafford rule is correct, we should fashion an exception in this
[Footnote continued on following page]
10a
To summarize, we must determine (1) whether the
period between the filing of the indictment or the first
appearance of the defendant, whichever came later, and
the beginning of the trial exceeds the 70-day period under
section 3161(c) (1); (2) if so, whether the period of
delay excludable under section 3161 (h) equals or exceeds
the difference between the pretrial period and the 70-day
period; and (3) if so, whether the period of delay ex-
cluded under section 3161(h) (7) is reasonable and other-
wise qualifies for exclusion. Here 118 days elapsed
between Yamanis’ arraignment on February 3, 1982,
which followed the filing of the indictment on January 7,
1982, and jury selection on June 1, 1982; thus the statu-
tory limit of 70 days is exceeded by 48 days.
[3,4] At least five days are excludable under section
3161(h) (1) (F). On May 26, Yamanis filed a motion for
continuance, which was denied on June 1. As this denial
constituted a prompt disposition of the motion, the six-
day period from May 27 to June 1, inclusive, falls within
the second category defined in Stafford. Under section
3161(h) (7), 60 additional days, perhaps more, may be
excluded. Codefendant Darby filed a motion for sever-
ance on February 24; on May 6, the motion was denied
without a hearing. Applying the 30-day limitation under
section 3161(h) (1) (J), governing pretrial motions not
promptly disposed of, see Stafford, 697 F.2d at 1374, we
may exclude the 30 days from February 25 to March 26,
inclusive. Codefendant Chiari’s discovery motions, filed
on March 11, were disposed of without a hearing on May
case. We note initially that a panel of this court lacks the au-
thority to overrule a binding precedent such as Stafford; that
authority is reserved to the court sitting en bane and the Supreme
Court. Second, a review of the decisions cited in Stafford and
Zielie, and the legislative history quoted therein, confirms that
Stafford accurately states the law not only as developed in this
circuit, but also as originally enacted by Congress. Finally, we
find nothing in the particular circumstances of this case warrant-
ing an exception,
lla
6. Having already excluded the period from March 12
through March 26, and again applying section 3161 (h)
(1) (J), we may exclude 30 of the remaining 41 days
between March 27 and May 6. Since the number of
excludable days—no less than 66—easily exceeds 48, we
must affirm if the period of delay attributed to Yamanis
under section 3161(h)(7) is reasonable and otherwise
qualifies for exclusion.
[5-8] It is undisputed that with respect to codefend-
ants Darby and Chiari the statutory speedy trial periods
had not been exhausted prior to trial. And, of course,
the trial of neither codefendant had been severed from
thet of Yamanis. The sole question, then, is whether the
period of delay excluded under section 3161 (h) (7) —
more precisely, the 42-day period representing the differ-
ence between the 48-day period of excess delay and the
six-day period consumed by Yamanis’ motion for continu-
ance *—is reasonable. We conclude that it is. In address-
ing this question, we employ alternative views of reason-
ableness, for the precise nature of the reasonableness in-
quiry is not entirely clear from the statute and case law.
Under one approach, reasonableness is determined with
reference to the totality of the circumstances prior to trial.
Thus a period of delay is reasonable under section 3161
(h) (7) if it appears necessary in order for the trial court
3 Insofar as the reasonableness requirement constitutes a re-
striction on the exclusion of time under section 3161 (h) (7)—not
a restriction on the exclusion of time under other provisions and
not an independent restriction on the expenditure of time on
pretrial motions—we focus on the 42 days of delay which resulted
from the codefendants’ pretrial motions and which must be at-
tributed to Yamanis in order to satisfy the statute. Only the
period of delay necessarily excluded under section 3161(h) (7)
is relevant, so we are not concerned with the total time actually
excluded, 48 days, the total excludable time, at least 66 days, the
entire period between the first appearance and trial, 118 days, or
the time lapsing between the filing and disposition of the codefen-
dants’ motions.
12a
to dispose of the underlying motions, cf. United States
v. Varella, 692 F.2d 1352, 1358 (11th Cir. 1982) (equat-
ing reasonableness with “the propriety of delay as to those
defendants whose motions were pending”), cert. denied,
— U.S. —, 103 S.Ct. 3542, 77 L.Ed.2d 1392, — U.S. —,
104 S.Ct. 127, 78 L.Ed.2d 124 (1983), “for the court
to conduct previously scheduled trials,” Davis, 679 F.2d
at 850, or “for [codefendants| to obtain new counsel,” id.
We cannot say that the 42-day period at issue was not
necessary in order for the district court thoroughly to
consider and rule on the codefendants’ motions. In addi-
tion, there were significant problems of representation,
particularly with regard to Yamanis and Calise, which
justified further delay.
Reasonableness may also be judged in terms of pre-
judice to the defendant. The Davis court, for instance,
emphasized that the defendant’s “ability to defend him-
self was not prejudiced by this delay.” 679 F.2d at 850.
Similarly, there is no contention, nor is there any indi-
cation in the record, that the 42-day delay in this case
impaired Yamanis’ defense at trial. Yamanis does argue
that he was prejudiced in that he suffered prolonged
pretrial incarceration. We conclude, however, that any
prejudice in this sense was insufficient to render the
period of delay unreasonable.
Finally, examination of the periods of delay held
excludable under section 3161(h)(7) in other cases con-
firms our conclusion that the 42-day period in question
was not unreasonable. The court determined that a
59-day delay was reasonable in Davis, 679 F.2d at 850,
while in Varella, the court made a similar determination
in connection wtih a 4-month delay, 692 F.2d at 1359.
Finding the period of delay excluded in this case rea-
sonable in every respect,‘ we hold that Yamanis’ stat-
* We also reject Yamanis’ assertion that the excluded period is
unreasonable in that the delay “was the result of a combination
[Footnote continued on following page]
13a
utory right to a speedy trial was not violated and that
the district court properly refused to dismiss the in-
dictment.
II. CONSTANTINE YAMANIS: CONTINUANCE
Constantine Yamanis challenges the district court’s
denials of his motions for continuance on two grounds:
first, that the denials were erroneous under 18 U.S.C.
§ 83161(c) (2), and second, that the denials constituted
an abuse of discretion as a result of which he was denied
due process.
Yamanis was arraigned on February 3, 1982, at which
time he was represented by Stephen Heiser, a retained
attorney. On May 10, Heiser withdrew due to a conflict
of interest, and the district court appointed the Public
Defender to represent Yamanis. Because of a conflict
of interest on the Public Defender’s part, the court
appointed E.C. Deeno Kitchen, a private attorney, as
counsel for Yamanis on May 11. Jury selection took
place on June 1, and the trial was recessed until June 7.
Yamanis moved for continuances on May 26 and June 7;
both motions were denied.
A. Error Under 18 U.S.C. § 2161(¢) (2)
[9] Section 3161(c)(2) of the Speedy Trial Act
provides:
of the District Court’s and Government’s failure to abide by the
mandate of 18 U.S.C. § 3161(c) (1) to provide Appellant with his
statutorily protected right to a speedy tria!, compounded by the
filing of totally unrelated motions by co-defendants who are not
even charged in Count 1, the most serious of all those counts
alleged in the Indictment.” Asserting that the court and the gov-
ernment failed to adhere to the provisions of section 3161 (h) (7)
merely begs the question. Moreover, requiring that the motions
at issue relate to the defendant or that the codefendants be charged
with equally grave offenses would thwart the intent of Congress,
i.e., not to upset existing severance rules, see Safer, 697 F.2d at
1372; Zielie, 734 F.2d at 1458.
14a
Unless the defendant consents in writing to the
contrary, the trial should not commence less than
thirty days from the date on which the defendant
first appears through counsel or expressly waives
counsel and elects to proceed pro se.
18 US.C.A. §3161(c)(2) (Supp. 1984) (emphasis
added). Yamanis asserts that the statute “contemplates
the date when a defendant first appears through an
attorney who undertakes the responsibility for preparing
the case for trial.” Terming Heiser’s representation at
the arraignment a “technical” appearance, he urges us
to treat Kitchen’s appointment on May 11 as the first
appearance.
In support of his claim, Yamanis cites the Ninth
Circuit’s decision in United States v. Daly, 716 F.2d 1499
(9th Cir. 1983), cert. dismissed, — U.S. —, 104 S.Ct.
1456, 79 L.Ed2d 773 (1984). There the court exam-
ined the legislative history underlying section 3161 (c)
(2) and determined that “the provision was meant to
guarantee a minimum period of thirty days for the
preparation of the defense.” Jd. at 1504. Underscoring
“Congressional concern . . . that a defendant be given
a reasonanle time to obtain counsel and that counsel be
provided a reasonable time to prepare the case,” id. at
1505 (emphasis in original), the court stated:
To fulfill this policy, the 30-day period should
commence only after the indictment or information
has been filed and made public and the defendant
has first appeared with counsel engaged or ap-
pointed to represent him at trial. We therefore
hold that the 30-day period begins to run when
an attorney appears on a defendant’s behalf after
the indictment or information has been filed, unless
there is an indication that the attorney is appear-
ing only for a limited purpose and will not further
represent that defendant at trial. If the attorney
15a
has been appointed to represent the defendant only
for a specific pre-arraignment purpose or at the
time of his initial appearance or prior to the filing
of the indictment or information disavows his in-
tent to represent the defendant further, the period
will not commence because the statutory purpose
of the 30-day delay would not be fulfilled.
Id. At the bail hearing in Daly, one of the appellants was
represented by an attorney “appointed only for that pur-
pose,” id; two other appellants were represented by attor-
neys who “undertook preparation of the defense from the
date of that hearing,” id. Because the former appellant’s
attorney was “explicitly appointed,” id. at 1504, for the
limited purpose of representing him at the bail hearing,
the court held that the 30-day period did not commence
until the later appearance of appointed trial counsel. Jd.
at 1505.
We are reluctant to adopt the Ninth Circuit’s reading
of section 3161(c) (2), for it ignores the plain meaning
of the phrase “first appears through counsel.” When
employing the term “first,” Congress presumably did not
have subsequent appearances in mind. More important,
the absence of any qualification on the term “counsel”
indicates that Congress did not have a particular type of
counsel in mind. We find no basis in the language of the
statute for concluding that by “counsel” Congress meant
“trial counsel,” “last retained or appointed counsel,” or
“counsel engaged or appointed to represent [the defend-
ant] at trial.” Nor does the legislative history of the
provision require such a conclusion. It is clear, as the
Daly court pointed out, that Congress intended section
3161 (c) (2) to provide a minimum period for preparation.
It is equally clear, however, that this measure alone, even
as interpreted in Daly, cannot ensure adequate prepara-
tion time in every case, and that it was not intended to do
so. Recognizing that the statute only partially addresses
“Congressional concern” about the adequacy of prepara-
l6a
tion and that Congress inevitably relied on the trial
judge’s discretion to grant a continuance where necessi-
tated by the circumstances of counsel’s retention or ap-
pointment, we conclude that a literal construction of sec-
tion 3161 (c) (2) is consistent with its legislative purpose.°
5 Furthermore to the extent that the interpretation urged by
Yamanis would enable defendants to postpone their prosecutions
by simply changing lawyers or by retaining lawyers only for
limited purposes prior to trial, it would contravene the major
purpose of the Speedy Trial Act, i.e., avoiding unnecessary delay.
Finally, our construction of the provision is censistent with that
of the Fourth Cireuit. In United States v. Wooten, 688 F.2d 941
4th Cir. 1982), the court stated, “What section 3161(c)(2) does
is simply to guarantee to the criminal defendant the right to a
delav of at least thirty days between arraignment and trial in
any circumstances.” Jd. at 951 (emphasis added) ; see also United
States v. Mers, 701 F.2d 1321, 1333-34 (11th Cir.) (quoting
Weoten with approval), cert. denied, — U.S. —, 104 S.Ct. 481,
78 L.Ed.2d 679, —- U.S. —, 104 S.Ct. 482, 78 L.Ed. 679 (1983).
Even if we were to adopt the Ninth Circuit’s approach, we
sould nevertheless reject Yamanis’ claim, for we cannot accept
his characterization of Heiser’s representation. In his brief on
appeal, Yamanis dismisses Heiser’s arraignment appearance as
merely “technical,” and he calls Heiser’s appearance at a later
hond hearing “a limited ‘special appearance.’” The implication
throughout is that Heiser was not engaged to represent him at
trial. The record, however, does not support Yamanis’ version of
the facts. Heiser entered a genera’ appearance by notice of ap-
pearance filed February 3, 1982. At the arraignment that day,
Heiser neither explicitly nor implicitly disavowed his intent to
represent Yamanis at later stages, including trial. And at the
hearing during which he sought to withdraw, Heiser in no way
uggested that he had been hired for limited purposes; he merely
stated that in fact he had rendered no services except in con-
nection with bail. Indeed, if he had been hired for the sole pur-
pose of representing Yamanis at the arraignment and the bond
hearing, it is unclear how Heiser was later put in the position
of having to withdraw as trial counsel on conflict grounds. Under
Daly, counsel is presumed to have been engaged or appointed to
represent the defendant at trial “unless there is an indication that
the attorney is appearing only for a limited purpose and will not
further represent that defendant at trial.” 716 F.2d at 1505.
There is no such indication in this case.
| BEST AVAILABLE COPY
17a
For purposes of section 3161(c)(2), Yamanis first
appeared through counsel at his arraignment on February
3. Inasmuch as the trial commenced some four months
later, we conclude that the statutory requirement was
satisfied. Accordingly, we hold that the district court
did not err under section 3161(c) (2) in denying Yam-
anis’ motions for continuance.
B. Abuse of Discretion Resulting In Denial of Due
Process
[10, 11] In Avery v. Alabama, 308 U.S. 444, 60 S.Ct.
321, 84 L.Ed. 377 (1940), the Supreme Court observed:
In the course of trial, after due appointment of
competent counsel, many procedural questions
necessarily arise which must be decided by the trial
judge in light of facts then presented and condi-
tions then existing. Disposition of a request for a
continuance is of this nature and is made in the
discretion of the trial judge, the exercise of which
will ordinarily not be reviewed.
Id. at 446, 60 S.Ct. at 322; see Ungar v. Sarafite, 376
U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964).
As the predecessor of this court pointed out in United
States v. Uptain, 531 F.2d 1281 (5th Cir. 1976):
A motion for a continuance is addressed to the
sound discretion of the trial court, and its ruling
will not be disturbed on appeal unless there is a
showing that there has been an abuse of that dis-
cretion. This issue must be decided on a case by
case basis in light of the circumstances presented,
particularly the reasons for continuance presented
to the trial court at the time the request is denied.
Id. at 1285-86 (citations omitted); see United States v.
Marquardt, 695 F.2d 1300, 1302 (11th Cir.), cert. denied,
460 U.S. 1093, 103 S.Ct. 1793, 76 L.Ed.2d 360 (1983) ;
United States v. Jimenez-Diaz, 659 F.2d 562, 567 (5th
Cir. Unit B 1981), cert. denied, 456 U.S. 907, 102 S.Ct.
1754, 72 L.Ed.2d 164 (1982).
18a
[12-14] The reasons for a continuance asserted below
generally relate to the adequacy of the time available for
preparation. In support of the May 26th motion, de-
fense counsel noted that he had been appointed 15 days
earlier and that the trial was scheduled to commence in
seven days and to recommence in 14 days. Emphasizing
that the case was “enormously complex” and “most seri-
ous in nature,” that discovery had not been completed and
that his client’s incarceration limited opportunities to
confer, counsel declared, “considerable work in the way
of investigation and preparation must yet be done prior
to being adequately prepared for trial.”
In the Uptain opinion, the court listed a host of con-
siderations bearing on a claim of this sort:
We have deemed the following factors highly rele-
vant in assessing claims of inadequate preparation
time: the quantum of time available for prepara-
tion, the likelihood of prejudice from denial, the
accused’s role in shortening the effective prepara-
tion time, the degree of complexity of the case, and
the availability of discovery from the prosecution.
We have also explicitly considered the adequacy of
the defense actually provided at trial, the skill
and experience of the attorney, any pre-appoint-
6In his brief on appeal, Yamanis contends that by virtue of
time and geographic limitations, neither he nor potential wit-
nesses were accessible to counsel. When claiming that a con-
tinuance is necessary in order to interview and procure the pre-
sence of potential witnesses,
fa] movant must show that due diligence has been exercised
to obtain the attendance of the witness, that substantial
favorable testimony would be tendered by the witness, that
the witness is available and willing to testify, and that
the denial of a continuance would materially prejudice the
defendant.
United States v. Uptain, 581 F.2d 1281, 1287 (5th Cir. 1976)
(quoting United States v. Miller, 513 F.2d 791, 793 (5th Cir.
1975)). As Yamanis utterly failed to meet this rather stringent
standard, we concentrate on his general lack of preparation claim.
19a
ment or pre-retention experience of the attorney
with the accused or the alleged crime, and any
representation of the defendant by other attorneys
that accrues to his benefit.
581 F.2d at 1286-87 (footnotes omitted). Applying the
pertinent factors’ to the facts presented, we conclude
that the district court did not abuse its discretion in deny-
ing Yamanis’ motions for continuance.
Though relatively straightforward from a legal stand-
point, the case was factually complicated, to be sure.
And inasmuch as the withdrawals of his previous coun-
sel were occasioned by conflicts of interest, Yamanis was
not entirely responsible for shortening his last appointed
counsel’s preparation time. On the other hand, as the
district court stated “for the record” at the hearing re-
garding the appointment of counsel on May 10, 1982, “‘it
would appear that all this confusion concerning lawyers
has been generated at least in part by the defendants,
notwithstanding the warning of the court back in Febru-
ary of 1982 that you should get you a lawyer and get on
with the defense of your case.” In addition, Yamanis’
trial counsel was afforded considerable time for prepara-
tion: over three weeks elapsed between Kitchen’s appoint-
ment on May 11 and jury selection on June 1, and
Kitchen had almost a full month before the first witness
testified on June 7. With respect to discovery from the
7 Citing United States v. Avites, 623 F.2d 1192 (7th Cir.
1980), Yamanis contends that a trial court’s exercise of its dis-
cretion must entail consideration of the factors enumerated in 18
U.S.C. § 3161(h) (8). A trial court may run afoul of the Speedy
Trial Act by granting a continuance without heeding subsection
3161(h) (8), but that provision does not control our review of a
trial court’s denying a motion for continuance. Subsection (h) (8)
governs only the extent to which delay caused by a continuance
may be excluded from the speedy trial computation. In addressing
the distinct issue whether the denial of a motion for continuance
violated the defendant’s due process rights, we draw on the list
of factors in Uptain.
20a
prosecution, the district court ordered the government
to furnish Kitchen with all previously disclosed material.
Even if, as Kitchen asserted on May 26, some discovery
material had not yet been made avaliable, there is no
indication that the government did not subsequently com-
ply or that the government’s noncompliance was preju-
dicial.
Turning to the adequacy of the defense actually pro-
vided at trial, we note that Yamanis identifies no seriously
prejudicial flaws in Kitchen’s performance which may be
attributed to the absence of a continuance. And although
he had no previous familiarity with his client or the
crimes, Kitchen was an experienced criminal trial attor-
ney, even by Yamanis’ account. In addition, Kitchen
evidently had the benefit of the earlier representation of
Yamanis and his codefendants by other lawyers, for the
district court ordered the clerk to furnish him with all
pleadings, including discovery motions and responses, and
according to the May 26th motion, he consulted with
several attorneys of record.
Departing from the considerations cataloged in Up-
tain, we recognize that the district court was considerate
of Yamanis’ interests in its scheduling of the trial and
in its handling of the case in general. When allowing
Heiser to withdraw as counsel, the court immediately
granted a three-week continuance. Even though his eligi-
bility for appointed counsel was questionable, the court,
“in an abundance of caution, declared Mr. Yamanis en-
titled to appointed counsel and temporarily appointed the
Public Defender to represent him.” As pointed out above,
when Kitchen was substituted as counsel, the court ar-
ronged for him to receive all discovery material and
pleadings.
Having reviewed the particular circumstances of this
case, we conclude that Yamanis has failed to make the
requisite showing that the absence of a continuance seri-
ously prejudiced him. See Jimenez-Diaz, 659 F.2d at
2la
567. Hence we hold that the district court’s denials of
his motions for continuance did not constitute an abuse
of discretion and were not so arbitrary as to violate the
due process clause.
III. CONSTANTINE YAMANIS: FAIR AND
IMPARTIAL TRIAL
Combining several discrete claims under a single head-
ing, Constantine Yamanis maintains that he was denied
a fair and impartial trial as guaranteed by the fifth and
sixth amendments. Addressing these claims separately
and together, we find no reversible error.
A. Jury Instructions
As part of its preliminary instructions to the jury,
the district court stated:
You will have ample time to deliberate your verdict
once everything is finished. That is, as you well
know, there is always two sides to every story.
For that reason, you should keep an open mind
and not form or express any opinions about the
case.
Yamanis argues that this instruction “had the effect of
shifting the burden to Appellant to prove his innocence
... and ‘challenged’ the accused to offer evidence (or at
least ‘explain’ his ‘side of the story’ to the jury).”
[15, 16] Since Yamanis failed to object to the in-
struction at trial, we review this claim under the plain
error standard. Fed. R.Crim.P. 52(b) ; see United States
v. Wolfe, 611 F.2d 1152, 1153 (5th Cir. 1980). Although
language other than “there is always two sides to every
story” might have been preferable, read in context, the
passage quoted merely exhorts the jury not to decide the
case prematurely. Given that the jury was repeatedly
charged on the government’s burden of proof, we con-
clude that the instruction in question was not plainly
erroneous. |
B. Evidentiary Rulings
[17] Yamanis contends that the testimony of three
government witnesses was inadmissible under Rules 403
and 404(b) of the Federal Rules of Evidence. Dominick
Grillo, a New York City narcotics detective, testified to
a meeting at which Michael Yamanis agreed to sell him
35 tons of marijuana. Constantine Yamanis asserts that
the evidence was irrelevant and prejudicial, and therefore
should have been excluded under Rule 403.
Again, as Yamanis made no objection at trial, we
apply the plain error standard. Fed.R.Crim.P. 52(b) ;
see Wolfe, 611 F.2d at 1153. To the extent that the event
described by Grillo may be viewed as an overt act in
furtherance of the charged conspiracies or as one in a
continuing series of violations for continuing criminal
enterprise purposes, the testimony appears to have been
relevant. Moreover, insofar as Constantine Yamanis was
not directly implicated in the transaction, the testimony
was not particularly prejudicial. We therefore conclude
that the admission of Grillo’s testimony did not constitute
plain error under Rule 403.°
[18] Yamanis next challenges the testimony of Bill
Gant regarding codefendant Harris’ involvement in co-
caine trafficking. Yamanis argues that the evidence was
used to prove his character in order to show his propensity
to commit the crimes charged and thus was inadmissible
under Rule 404(b).° Gant testified that he had known
8 Nor was it plain error under Rule 404(b) or Rule 802, as
Yamanis suggests. In his brief, he correctly states that “the
testimony obviously had no application to Appellant, since it
focused entirely on his brother.” Because the testimony recounted
only an extrinsic offense committed by Michael Yamanis and thus
related only to Michael Yamanis’ character, Constantine Yamanis
has no Rule 404(b) claim. And since the testimony arguably was
not hearsay, as defined in Rule 801(c) and (d)(2)(E), its ad-
mission was not plainly erroneous under Rule 802.
®Rule 404(b) reads in part, “Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a per-
son in order to show that he acted in conformity therewith.”
Fed. R. Evid. 404(b).
23a
Harris for twelve years and that he had transported co-
caine and money to and from Miami for Harris on
numerous occasions starting in the spring of 1980. In
his brief on appeal, Yamanis asserts, “The implication
of all this testimony . . . was that Appellant and his
brother .. . were behind each and every drug transaction
which the witness described.” However, at no point in
his testimony did Gant identify Yamanis as having been
involved in the cocaine operation. Indeed, Yamanis was
implicated only in that Harris and others involved in
the cocaine operation were also associated with the
Yamanis marijuana importation organization. Because
Gant’s testimony regarding the cocaine operation was not
probative of Yamanis’ character, we conclude that the
disputed evidence is not covered by the prohibition in
Rule 404(b) and hence was not inadmissible with respect
to Yamanis.
[19] The third government witness whose testimony
Yamanis challenges is Spiro Anthanasiades. He testified
that while in jail in Miami, he was visited by a lawyer
associated with the Yamanises. The prosecutor and the
witness then had the following exchange:
Q. What did he tell you? What was the message?
A. He told me to be quiet, take it easy, because
he say they know where my brother is at.
Q. Who knows where your brother is at?
A. He didn’t say, sir, but he didn’t mention any
names.
Q. What was your response to that?
A. I got mad at him.
At this point, counsel for appellant Darby moved for a
mistrial.
Although there was no such objection at trial, Yamanis
now maintains that Anthanasiades’ testimony was in-
24a
admissible hearsay. In particular, he asserts that the
lawyer’s statement was not an admission by a party-
opponent under Rule 801(d)(2)(D) and (E) since it
neither concerned a matter within the scope of the law-
yer’s agency, if any, nor furthered the conspiracy. We
need not address the applicability of the non-hearsay pro-
visions of Rule 801(d)(2), for we conclude that the
statement in question does not fall within the basic defini-
tion of hearsay in Rule 801(c). In order to constitute
hearsay, a statement must be “offered in evidence to
prove the truth of the matter asserted.” Fed.R.Evid.
801(c). Here the matter asserted by the out-of-court
declarant was that “they” knew where the witness’
brother was. It is evident that the statement was offered
by the government not to establish that the Yamanises
actually knew the whereabouts of Anthanasiades’ brother,
but to show the impact of the making of the statement,
whether true or false, on Anthanasiades’ inclination to
tell the truth. For this reason, Anthanasiades’ testimony
was not inadmissible under the hearsay rule.
Yamanis also contends that the testimony should have
been excluded under Rule 403. As suggested above, the
government evidently introduced the conversation between
Anthanasiades and the lawyer in an effort to bolster the
witness’ credibility, which had been called into question
on cross-examination. The government presumably sought
to demonstrate the witness’ resolve to testify truthfully
as reflected by his angry response to the lawyer’s state-
ment. Although the conversation might have been re-
garded by the jury as having instead motivated the
witness to lie, either in the government’s favor or in
the defendant’s favor, and thus was not conclusive on
the issue of credibility, we cannot say that the testimony
was irrelevant. Insofar as its probative value was not
substantially outweighed by any prejudicial effect, the
testimony was not inadmissible under Rule 403.
25a
C. Discovery Rulings
[20] Finally, Yamanis maintains that the district
court erred in refusing defense counsel access to material
purportedly discoverable under the Jencks Act, 18 U.S.C.
§ 3500. The material at issue consisted of 19 pages of a
statement given by Charles Etheridge, a government wit-
ness. After inspecting the statement in camera, the court
found that “the matters in there are irrelevant and im-
material and does not contain any impeachment material,
either Brady or Giglio, and so that I find that as a matter
of fact the government’s refusal to disclose the matter as
Jencks Act material is well taken.” “It is the primary
duty of the trial judge to determine the producibility of
a statement under the Jencks Act. Although his ruling
is subject to appellate review, it is sustainable unless
clearly erroneous.” Matthews v. United States, 407 F.2d
1371, 13876 (5th Cir. 1969) (citation omitted), cert. de-
nied, 398 U.S. 968, 90 S.Ct. 2177, 26 L.Ed.2d 554 (1970) ;
see United States v. Cathey, 591 F.2d 268, 274 (5th Cir.
1979) ; Lloyd v. United States, 412 F.2d 1084, 1088 (5th
Cir. 1969). Having examined Etheridge’s statement, we
cannot say that the district court’s findings are clearly
erroneous. Indeed, we are in complete agreement with the
court’s ruling.
[21] Viewing the district court’s instructions and
various rulings in combination, we hold that Constantine
Yamanis was not denied a fair and impartial trial.
IV. CONSTANTINE YAMANIS AND MICHAEL
YAMANIS: SENTENCES
Constantine Yamanis and Michael Yamanis raise
three claims in connection with their sentences. Each
contends that his sentence is barred by the eighth amend-
ment in that it is disproportionate to his crime. In addi-
tion, Constantine Yamanis argues that by virtue of his
indigency, the imposition of “stand committed” fines vio-
lated the due process clause. And according to both, the
district court erred in imposing fines exceeding the maxi-
mum under 21 U.S.C. $ 848. We reject all of the claims.
26a
A. Proportionality
The range of penalties for engaging in a continuing
criminal enterprise are set out in 21 U.S.C. § 848(a).
Section 848(a)(1), under which appellants were sen-
tenced, provides:
Any person who engages in a continuing criminal
enterprise shall be sentenced to a term of imprison-
ment which may not be less than 10 years and
which may be up to life imprisonment, to a fine of
not more than $100,000, and to the forfeiture pre-
scribed in paragraph (2).
21 US.C.A. § 848(a) (1) (1981). In addition to their
sentences for importation (Count IV) and possession
(Count V), appellants were each sentenced to 60 years’
imprisonment and fined $100,000 for engaging in a con-
tinuing criminal enterprise (Count I). Underscoring
their advanced years (late forties and late fifties) and
the unlikelihood of parole, they contend that their punish-
ment does not fit their crime and urge us to remand for
resentencing.
[22] We note initially that the scope of our review
is greatly restricted. As the Supreme Court made clear
in Solem v. Helm, — U.S. —, 103 S.Ct. 3001, 77 L.Ed.2d
687 (1983), it is not normally the role of an appellate
court to second-guess the trial judge’s determination of
an appropriate sentence. Rather, an appellate court
must determine only whether the sentence imposed is so
grossly disproportionate to the crime as to constitute cruel
and unusual punishment. Jd. at 3009 n. 16. As the Court
pointed out in Rummel v. Estelle, 445 U.S. 268, 100 S.Ct.
1133, 63 L.Ed.2d 382 (1980), “Outside the context of
capital punishment, successful challenges to the propor-
tionality of particular sentences have been exceedingly
rare.” Id. at 272, 100 S.Ct. at 1138; see also United
States v. Phillips, 664 F.2d 971, 1048 (5th Cir. Unit B
1981) (affirming sentences of 64, 53 and 33 years under
section 848 and other provisions with observation that
27a
“proportionality principle might be applicable in an ‘ex-
treme example’”), cert. denied, 457 U.S. 1136, 102 S.Ct.
2965, 73 L.Ed.2d 1354, 459 U.S. 906, 103 S.Ct. 208, 74
L.Ed.2d 166 (1982); United States v. Valenzuela, 646
F.2d 352, 354 (9th Cir. 1980) (affirming life sentence
under section 848 with similar observation).
Furthermore, we are mindful of the Supreme Court’s
admonition in Solem:
Reviewing courts, of course, should grant substan-
tial deference to the broad authority that legisla-
tures necessarily possess in determining the types
and limits of punishments for crimes, as well as
to the discretion that trial courts possess in sen-
tencing convicted criminals.
103 S.Ct. at 3009. In a footnote, the Court added:
In view of the substantial deference that must be
accorded legislatures and sentencing courts, a re-
viewing court will rarely be required to engage in
extended analysis to determine that a sentence is
not constitutionally disproportionate.
Id. at 3009 n. 16 (emphasis added).
Nevertheless, in our opinion this is one of those rare
cases in which “extended analysis” of a proportionality
claim may be useful, if not required. We reach this
conclusion partly because section 848, like the recidivist
statutes involved in Rummel and Solem, prescribes en-
hanced penalties in addition to those imposed for the
underlying substantive crimes. We also note that this
court has not heretofore conducted a Solem proportional-
ity analysis in the context of section 848. In light of both
the unusual nature of section 848 and the lack of prece-
dent in this circuit on the proportionality issue, we pro-
ceed to apply the Solem proportionality analysis to this
case.
[23] In Solem, the Court specified three factors gov-
erning proportionality review:
IER ii ee mee
28a
[A] court’s proportionality analysis under the
Eighth Amendment should be guided by objective
criteria, including (i) the gravity of the offense
and the harshness of the penalty; (ii) the sen-
tences imposed on other criminals in the same
jurisdiction; and (iii) the sentences imposed for
commission of the same crime in other jurisdic-
tions.
103 S.Ct. at 3010-11. Applying these factors in the in-
stant case, we conclude that appellants’ sentences comport
with the eighth amendment.
The 60-year prison terms which appellants received
under section 848 certainly constitute severe punish-
ment.” The crime for which they were sentenced, how-
ever, was particularly grave. In reaching this conclusion,
we focus not only on the offense as generally defined in
the statute, but also on the offense as actually committed
by appellants." With respect to both, we apply several
10In his brief, Michael Yamanis characterizes his sentence
under section 848 as “a sentence of life imprisonment without
possibility of parole.” Constantine Yamanis goes one step further,
referring to his sentence as “a life (or death) sentence” and as
“a death sentence.” Without question, the probability that a defen-
dant will spend the rest of his life in prison is a relevant con-
sideration. In Solem, the Court emphasized this probability in
distinguishing Rummel. See 103 S.Ct. at 3013. This probability,
moreover, would indicate that a 99-year prison term is not sig-
nificantly worse than a 60-year prison term. On the other hand,
the characterization of a sentence as life imprisonment or death
on account of this probability could be misleading, as in the case
of an aged or ill misdemeanant given 90 days in jail. In con-
cluding that their sentences are severe, we recognize the distinct
possibility that appellants will not survive the duration of their
prison terms. We decline, however, to employ their potentially
misleading terminology.
11The Solem Court’s discussion of the courts’ competency to
judge the gravity of an offense implies that the reviewing court
should concentrate on the abstract offense charged instead of the
specific facts of the case. Making judgments similar to those
[Footnote continued on following page]
29a
of the generally accepted criteria for determining the
gravity of an offense articulated in Solem, including “the
harm caused or threatened to the victim or society,” 103
S.Ct. at 3011, “(tlhe absolute magnitude of the crime,”
id., the use of “violence or the threat of violence,” id., “the
culpability of the offender,” id., whether the defendant
was the principal, and whether the crime was completed,
id.
The general offense, engaging in a continuing criminal
enterprise, is the most serious of all the drug-related of-
fenses proscribed in Title 21. First, to the extent that it
entails a series of violations—not an isolated transaction
—the concerted effort of at least six persons—not the
independent action of a single individual or the concerted
effort of as few as three persons—and, especially, the
element of organization, the offense is more serious than
the others in that it poses a greater danger to society.
The offense is also more serious in terms of the defen-
dant’s culpability, for the statute requires that the defen-
made by the legislature in the first instance, 103 S.Ct. at 3011,
the court is to compare “the severity of different crimes on a
broad scale,” id., thereby avoiding “the difficulties courts face in
attempting to draw distinctions between similar crimes,” id. Em-
ploying “generally accepted criteria,” id., the court may dis-
tinguish, for example, petty theft from grand theft, simple assault
from assault with intent to murder, robbery from armed robbery,
and assault with intent to commit rape from rape. The implica-
tion is that the court should avoid comparisons between different
instances of the same offenses, lest its determination of relative
severity become overly subjective.
That notwithstanding, Solem should not be read as prohibiting
the reviewing court from examining the particular circumstances
of the crime. Although it focused primarily on the offense
charged—uttering a “no account” check—the Court in Solem did
consider at least one fact peculiar to the case—‘[t}he $100 face
value of Helm’s ‘no account’ check.” 103 S.Ct. at 3012-13. Solem
is better read as merely counseling against subjectivity in apprais-
ing the gravity of an offense. So long as gravity is judged in
terms of accepted principles, the court may consider the crime
actually committed as well as the crime generally proscribed.
30a
dt occupy an organizational, supervisory or managerial
position. Indeed, the gravity of the offense is reflected by
its role in the sentencing scheme established by the Com-
prehensive Drug Abuse Prevention and Control Act of
1970. The legislative history of the Act reveals that
[t]his section 408 [21 U.S.C. § 848] is the only
provision of the bill providing minimum mandatory
sentences, and is intended to serve as a strong
deterrent to those who otherwise might wish to
engage in the illicit traffic, while also providing a
means for keeping those found guilty of violations
out of circulation.
H.Rep. No. 1444, 91st Cong., 2d Sess. (1970). reprinted in
1970 U.S. Cong. & Ad.News 4566, 4576.
Although section 848 could perhaps be applied to “mild”
criminal activity, id. at 4652, a review of the record con-
firms that the actual continuing criminal enterprise in
which appellants were engaged was severe. With respect
to the harm to society, we are struck by the immensity of
the Yamanis organization. The operation was world-wide
in scope, resulting in the importation, by sea and by air,
of marijuana on both coasts and the subsequent transpor-
tation and distribution of marijuana in several states.
The major smuggling incidents number ten or more, and
the persons with whom appellants acted in concert number
in the dozens, if not hundreds.** Moreover, in the course
of seven years appellants dealt not with relatively minor
amounts of marijuana and hashish, but with literally tons
of it, Thus in terms of magnitude, the crime was most
serious. The offense at issue was also marked by the
use of violent threats. A number of witnesses testified to
appellants’ practice of exchanging hostages to guarantee
the cooperation of other parties. Specifically, they testi-
12 Indeed, at Michael Yamanis’ sentencing, the district court
referred to “several hundred others probably involved in the
organization.”
3la
fied that appellants threatened to kill or maim their
hostages in the event of complications. Witnesses also
related incidents in which appellants’ subordinates were
threatened with violence. In addition to such threats, the
enterprise evidently entailed the corruption of public of-
ficials here and in other countries. As for culpability,
the evidence consistently points to appellants as the peer-
less leaders of the organization. Nor were their roles
passive ones, for they were involved in the direction of all
but the most ministerial aspects of the operation.“ It
follows, of course, that neither appellant was a mere ac-
cessory after the fact, and although not every importation
episode was entirely successful, appellants’ overall crime
was by no means a mere attempt.
From our examination of the statute and the facts of
this case, we conclude that the offense in question was of
the utmost gravity. At this point, we do not view the
punishment imposed incommensurate.
Turning to the second step of the analysis in Solem,
we consider “the sentences imposed on other criminals in
the same jurisdiction.” 103 S.Ct. at 3011. For this pur-
pose, we are concerned with the sentences imposed not
just in the Northern District of Florida, but in the juris-
diction of the United States as a whole.* Considering
13 Comparing himself to an ordinary drug courier or “mule,”
Michael Yamanis asserts that inasmuch as he merely transported
the marijuana, he was less culpable than the unprosecuted buyers
and sellers who actually owned it. The problem with this argu-
ment is two-fold. First, where the gravamen of a crime is the
importation of a controlled substance, as here, that party respon-
sible for the importation, i.e., the party who “merely transported”
the controlled substance into the country, is fully culpable. Sec-
ond, the record does not support appellant’s contention that he
only provided transport services. While the evidence does not
show the passage of title from one party to the next, incidents
such as appellants’ negotiations with Detective Grillo for the
purchase and sale of several tons of marijuana belie his contention.
44 Focusing on individual sentencing decisions, both the gov-
ernment and appellants regard the Northern District of Florida as
[Footnote continued on following page]
32a
first the sentences imposed for other federal offenses, we
find no indication that the punishment at issue is exces-
sive. Specifically, we can identify no crime which is
necessarily more serious, but which is subject to the same
or a less severe penalty.’ As for the sentences imposed
on other defendants under section 848, again we find no
significant disparity. Indeed, in several recent cases in-
the “same jurisdiction” under step three. This approach, how-
ever, ignores the Solem Court’s consideration of legislative judg-
ments of legislatures other than the one responsible for the statute
under which Helm had been sentenced. After comparing a par-
ticular legislative judgment with other legislative judgments in
South Dakota, the Court assessed the consistency of the particular
legislative judgment with legislative judgments in other states.
The approach advocated by the parties, by contrast, would restrict
the analysis to the judgments of a single legislature, Congress,
thereby eliminating the distinction between the second and third
steps. In our opinion, viewing the United States as the “same
jurisdiction” and various states as the “other jursdictions” better
corresponds with the analysis in Solem. We see no reason to
attach special significance to the sentences imposed by a particular
district court, nor is there any bar to considering the sentences
imposed in the several states.
In defining the pertinent jurisdictions, we have emphasized
the role of legislative judgments in the Solem Court’s review.
Having done so, we hasten to add that our attention to legislative
judgments, state or federal, is limited in this case because of the
peculiar nature of section 848. See infra, note 15 and pp. 501-
502. Accordingly, the discussion that follows concentrates on
individual sentencing decisions in the federal courts.
18 Our inquiry in this regard is complicated by the fact that
those offenses for which 60 years to life imprisonment may be
imposed are not readily comparable to engaging in a continuing
criminal enterprise. See, e.g., 18 U.S.C. § 351(b) (1) (kidnapping
government official punishable by life or term of years); 18 U.S.C.
$794 (delivering defense information to injury of United States
or advantage of foreign nation punishable by death, life or term
of years); 18 U.S.C. § 1201 (a) (kidnapping punishable by life or
term of years); 18 U.S.C. § 1651 (piracy punishable by life) ;
42 U.S.C. § 2272 (atomic energy offenses intended to injure United
States or secure advantage for foreign nation punishable by life
or term of years); 49 U.S.C. § 1472(i) (1)(B) (aircraft piracy
resulting in death punishable by death or life).
33a
volving continuing criminal! enterprises comparable to the
one before us the defendants received prison terms in
the same range as those given appellants. Sec, e.g.,
United States v. Garrett, 727 F.2d 1003 (11th Cir. 1984)
(defendant sentenced to 40 years’ imprisonment under
section 848); United States v. Kirk, 723 F.2d 1379 (8th
Cir. 1983) (defendant sentenced to 40 years’ imprison-
ment under section 848), cert. denied, — U.S. —, 104
S.Ct. 1717, 80 L.Ed.2d 189 (1984) ; Phillips, supra ‘defen-
dants sentenced to 64, 53 and 33 years’ imprisonment
under section 848 and otier provisions); United States
v. Webster, 639 F.2d 174 (4th Cir.) (defendant sentenced
to 50 years’ imprisonment under section 848), cert. denied,
454 U.S. 857, 102 S.Ct. 307, 70 L.Ed.2d 152 (1981),
modified, 669 F.2d 185 (4th Cir. 1982); Valenzuela, supra
(defendant sentenced to life imprisonment under section
848) ; United States v. Sperling, 560 F.2d 1050 (2d Cir.
1977) (defendant sentenced to life imprisonment under
section 848); United States v. Jeffers, 5382 F.2d 1101
(7th Cir. 1976) (defendant sentenced to life imprisonment
under section 848), rev’d on other grounds, 432 U.S. 137,
$7 S.Ct. 2207, 538 L.Ed.2d 168 (1977). To be sure,
these cases are not factually identical to the instant case.
And there may have been some more serious violations
of section 848 which have been less severely punished.
Our review of the cases, however, indicates that the sen-
tences imposed on appellants are not so out of line with
those imposed on other offenders as to constitute cruel
and unusual punishment.”
'6 There is also a host of cases involving shorter, though sub-
stantial, prison terms which, given the age of the defendants and
other circumstances, may be effectively as severe as the prison
terms in this case. See supra, note 10.
17 Michael Yamanis stresses that the length of his sentence is
over twice the nativnal average and over six vears greater than
the average for the Northern District of Florida. Since the use of
such statistics could entail no consideration of relative gravity, our
reliance on them would be misplaced. At any rate. to the extent
that they are relevant, these averages—particularly the figure for
the Northern District of Florida—hardly support appellant’s claim.
34a
The last factor mentioned in Solem relates to “the
sentences imposed for commission of the same crime in
other jurisdictions.” 103 S.Ct. at 3011.% Due to the
unique nature of section 848, consideration of this factor
is difficult, if not impossible. In short, given the key role
played by the continuing criminal enterprise provision in
the federal drug enforcement scheme and the unparalleled
comprehensiveness of that scheme, it is doubtful that “the
same crime” exists in “other jurisdictions.” In any event,
our examination of comparable state-law offenses reveals
no serious disparity indicating that appellants’ sentences
are excessive. See, e.g., Fla.Stat.Ann. § 775.084(4) (a)
(1976) (habitual felony offender punishable by 10 years’
to life imprisonment); Fla.Stat.Ann. § 893.13(1) (b)
(Supy. 1984) (pessession or sale of over 10 grams of
narcotics punishable by up to 30 years’ imprisonment) ;
Fla.Stat.Ann. § 893.13(1)(c) (1) (Supp. 1984) (delivery
of narcotics to minor punishable by up to 30 years’ im-
prisonment) ; Fla.Stat.Ann. § 895.04 (Supp. 1984) (RICO
violation punishable by up to 30 years’ imprisonment).
On the basis of the foregoing analysis, we hold that
appellants’ sentences under section 848 are not so grossly
disproportionate to their crime as to violate the eighth
amendment.
B. “Stand Committed” Fines
[24] At the time of sentencing, Constantine Yamanis
was fined a total of $130,000 and was ordered “to stand
committed until the fine is paid or until the defendant is
otherwise discharged by due course of law.” Noting that
even if paroled, he would remain incarcerated pending
payment of his fines, Yamanis now contends that because
of his indigency, the imposition of “stand committed” fines
will result in the denial of due process and equal protec-
tion. He relies entirely on the district court’s appointing
trial counsel as evidence of his indigency.
18 See supra, note 14.
35a
We dismiss this claim out of hand. Yamanis’ repre-
sentations at the hearing regarding the appointment of
counsel on May 10, 1982, and in his financial affidavit of
the same date reveal that he owned assets in excess of
$450,000. He sought the appointment of counsel not be-
cause he was poor, but because his money was not readily
available. At the May 10th hearing and in its order the
next day, the district court made it clear that it doubted
Yamanis’ indigency even for appointment of counsel pur-
poses * and that it acted strictly out of “an abundance of
caution.” As there has been no suggestion that Yamanis’
assets had dwindled or that these assets would be un-
available if he were paroled, we find no merit in his claim.
C. Cumulative Fines
[25] Appellants were fined $100,000 on Count I and
$15,000 on each of Counts IV and V. These fines were
cumulative such that they totalled $130,000. Citing Jeffers
v. United Siates, 482 U.S. 187, 97 S.Ct. 2207, 53 L.Ed.2d
168 (1977) and United States v. Chagra, 669 F.2d 241
(5th Cir.), cert. denied, 459 U.S. 846, 103 S.Ct. 102, 7
L.Ed.2d 92 (1982), appellants maintain that a fine for
engaging in a continuing criminal enterprise cannot be
made cumulative with fines for predicate offenses.
This issue is directly controlled by the recent decision
in United States v. Brantley, 733 F.2d 1429 (11th Cir.
1984). There the defendant argued that he could not be
cumulatively punished for a section 848 violation and an
underlying section 841 violation. Referring to United
States v. Garrett, 727 F.2d 1008 (11th Cir. 1984), and
United States v. Phillips, 664 F.2d 971 (5th Cir. Unit B
1981), cert. denied, 457 U.S. 1186, 102 S.Ct. 2965, 78
L.Ed.2d 1354, 459 U.S. 906, 103 S.Ct. 208, 74 L.Ed.2d
166 (1982), the Brantley court declared:
1° At the hearing, the court stated, “The affidavit of the defen-
dant Constantine Yamanis is marginal, at best. concerning his
ability to hire counsel.”
36a
Those cases hold essentially that the § 841 offense
and the $ 848 offense are distinct for double jeop-
ardy purposes. See Garrett, 727 F.2d at 1009;
Phillips, 664 F.2d at 1009. In light of the “basic
design |of double jeopardy] as a bar against re-
peated attempts to convict,” United States v.
DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66
L.Ed.2d 328 (1980), if successive prosecutions (in-
volving of course cumulative punishment) are not
barred, it follows logically that double jeopardy
does not bar cumulative punishment in a single
prosecution of § 841 predicate offenses and the
§ 848 offense.
733 F.2d at 1437 (footnote omitted). On the authority of
Brantley, we hold that the district court did not err in
imposing cumulative fines.
Vv. MICHAEL YAMANIS: PERSONAL JURISDIC-
TION
Michael Yamanis contends that under existing standards
| of due process, the district court was divested of jurisdic-
tion over his person due to the illegality of the manner in
which he was brought before the court. In support of his
claim, he alleges that an American agent, with the assist-
ance of Honduran officials, arrested him in San Pedro-
Sula, Honduras, drove him at gun-point to Tegucigalpa,
and put him against his will on a plane bound for Miami
via Belize, all under the guise of a Honduran deportation.
He further alleges that when he attempted to deplane in
Belize, asserting his righ’s as a British subject, he was
wrestled back into his seat and forced to remain there
until his arrival in Miami. Yamanis argues that the
alleged kidnapping was unlawful, particularly in that
it circumvented the judicially supervised extradition pro-
cedures specified by treaty and by statute. According to
Yamanis, we should vacate his conviction and have his in-
° dictment dismissed with prejudice.
\26] This case falls squarely within the Ker-Frisbie
doctrine, which holds that a defendant cannot defeat ~
37a
personal jurisdiction by asserting the illegality of the
procurement of his presence. This doctrine takes its name
from two cases in which the Supreme Court rejected the
due process claims of defendants who had been brought
by force into the jurisdictions in which they were tried.
See Ker v. Illinois, 119 U.S. 486, 7 S.Ct. 225, 30 L.Ed.
421 (1886) ; Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509,
96 L.Ed. 541 (1952). This circuit’s adherence to the
Ker-Frisbie doctrine was unequivocally established in
United States v. Winter, 509 F.2d 975 (5th Cir.), cert.
denied, 423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975),
in which the former Fifth Circuit declared:
[W]e are convinced that under well established
case law of the Supreme Court and this Circuit,
a defendant in a federal criminal trial whether
citizen or alien, whether arrested within or beyond
the territory of the United States may not suc-
cessfully challenge the District Court’s jurisdiction
over his person on the grounds that his presence
before the Court was unlawfully secured.
Id, at 985-86; see also United States vy. Postal, 589 F.2d
862, 873 (5th Cir.) (“A defendant may not ordinarily
assert the illegality of his obtention to defeat the court’s
jurisdiction over him’), cert. denied, 444 U.S. 832, 100
S.Ct. 61, 62 L.Ed.2d 40 (1979).
[27] Yamanis’ claim is remarkably similar to the
one rejected in United States vy. Herrera, 504 F.2d 859
(5th Cir. 1974). There the defendant, a non-resident
alien, alleged that two American agents, together with
two Peruvian agents, had unlawfully arrested him in Peru
and forcibly transported him to Florida. Not unlike the
present case,
[t}he argument is that he was kidnapped and
forcibly abducted in contravention of federal
statutes, and a manner which violated the terri-
torial integrity of Peru .... He also urges a loss
of jurisdiction by reason of the failure of the
United States to follow the orderly processes of
38a “
extradition under the treaty between the United
States and Peru.
Id. at 860. Applying the Ker-Frisbie doctrine, the court
concluded, “It is settled by both Supreme Court decisions
and decisions of this court that these contentions are
without merit.” Jd, Likewise, we hold that Yamanis’
claim that the district court lacked personal jurisdiction
is meritless.
Yamanis urges us to reverse on the authority of the
Second Circuit’s decision in United States v. Toscanino,
500 F.2d 267 (2d Cir. 1974). We decline to do so for three
reasons. First, the Second Circuit itself has limited
Toscanino to situations of extreme misconduct. See Lujan
v. Gengler, 510 F.2d 62 (2d Cir.), cert. demed, 421 US.
1001, 95 S.Ct. 2400, 44 L.Ed.2d 668 (1975). Since
Yamanis has not alleged the sort of “cruel, inhuman and
outrageous treatment allegedly suffered by Toscanino,”
id. at 65,” relief would not be warranted if we were to
follow the Second Circuit. Second, although this court has
not ruled out the possibility of a narrow exception to the
Ker-Frisbie doctrine for extreme cases, it has plainly re-
jected the broad reading of Toscanino which Yamanis
urges us to adopt. See Postal, 589 F.2d 874 n. 17; Winter,
509 F.2d at 986-88; Herrera, 504 F.2d at 860. Third,
the continuing validity of the Toscanino approach is
questionable after the intervening decision in Gerstein V.
Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975),
in which the Supreme Court refused to “retreat from the
established rule that illegal arrest or detention does not
void a subsequent conviction.” Jd. at 119, 95 S.Ct. at 865.”
20In Toscanino, the defendant had been subjected to brutal
torture and incessant interrogation for some 17 days.
While we do not condone any form of mistreatment of a
defendant, we find that Yamanis’ allegations, even if true, do not
constitute “shocking governmental conduct sufficient to convert an
abduction which is simply illegal into one that sinks to a violation
of due process.” Lujan, 510 F.2d at 66.
211In the alternative, Yamanis asks that we remand for an
evidentiary hearing on the circumstances of his arrest. To the
[Footnote continued on following page]
39a
VI. MICHAEL YAMANIS: INACCURATE PRESEN-
TENCE REPORT
Before sentencing Michael Yamanis, the district court
afforded him an opportunity to point out “anything in the
presentence investigation that is inaccurate, incomplete or
not true.” Counsel informed the court that Yamanis dis-
puted the accuracy of two factual assertions in the pre-
sentence report, one referring to the amount of marijuana
handled by the Yamanis organization and the other re-
ferring to Yamanis’ ownership of that marijuana. The
court remarked :
Well, as I recall the testimony there was ample
evidence that Mr. Yamanis and his brother, Con-
stantine, were quite capable of smuggling and had
brought in many, many, many tons before the
house of cards began to fall in Marianna. And so
to the extent that your recollection and my re-
collection differ, I guess the record will show
exactly the number of tons or pounds that Mr.
Yamanis and his brother and several hundred
others probably involved in the organization
brought in from time to time.
On appeal, Yamanis again contests the accuracy of the
report and argues that the case must be remanded for
resentencing. His claim may be broken down into two
parts: first, that the district court erred in failing to
resolve the factual dispute on the record, and second, that
the district court’s reliance on false information in sen-
tencing resulted in the denial of due process.
[28] In United States v. Stephens, 699 F.2d 534
(11th Cir. 1983), the defendant similarly disputed the
accuracy of the presentence report and argued that the
district court should have made factual findings related
extent that we have taken his allegations as true in ruling against
him, we see no point in remanding for factual development. See
also Herrera, 504 F.2d at 860 n. 1 (dismissing unsupported factual
allegations “which read on the claims made by Toscanino”).
40a
to the disputed facts and corrected the report accordingly.
Noting that the defendant had been “given the oppor-
tunity to refute the perceived discrepancies in the pre-
sentence report,” id. at 537, the court held that a sen-
tencing judge is not “required to go further and making
findings to resolve the possible conflicting versions pre-
sented . . ., id. The court explained, “Having been
presented with some contradictory facts, the district court
may, within its discretion determine that it has adequate
undisputed information to properly sentence the defen-
dant.” Jd. Stephens confirms that the first part of the
Yamanis’ claim is without merit.
(29, 30] There are several problems with the second
part of the claim, regarding the district court’s reliance
on false information. It is well settled that sentences
based on erroneous and material information or assump-
tions violate due process and that a new sentencing
hearing is required where the trial court has relied on
such information or assumptions. See United States v.
Tobias, 662 F.2d 381, 388 (5th Cir. Unit B 1981), cert.
denied, 457 U.S. 1108, 102 S.Ct. 2908, 73 L.Ed.2d 1317
(1982), and cases cited. In this case, however, it is by
no means clear that the information in the presentence
report was materially erroneous. At the sentencing hear-
ing, Yamanis offered no additional evidence to refute the
factual assertions in question; instead, he suggested that
these assertions were inconsistent with the evidence ad-
duced at trial. Our review of the record finds support
for the proposition that at least with respect to some of
the marijuana, Yamanis’ role was that of owner as well
as transporter. As for the total amount of marijuana
involved, the record does not confirm the inaccuracy of
the government’s estimate. Yamanis has therefore failed
to demonstrate a major premise of his argument, the
misstatement of material facts.
In addition, the record in this case simply does not
establish that the district court actually relied on the
contested assertions in the report. Although, as Yam-
4la
anis points out, the court inevitably took into account the
quantity of drugs involved and Yamanis’ role in the
continuing criminal enterprise, it does not follow that
the court based its decision on the version of these facts
in the presentence report. In view of his having heard
the evidence when presiding over the trial and his having
had the purported inaccuracies in the report brought to
his attention, we decline to presume that the sentencing
judge nevertheless relied on the disputed statements.
Yamanis responds that the district court’s failure to
state that the contested assertions would not influence
its sentencing determination constitutes grounds for re-
manding.** According to Yamanis, the mere possibility
of the courts having taken into account the contested
assertions renders the sentence unconstitutional. We need
not decide whether a substantial possibility of reliance
on inaccurate information would render a sentence uncon-
stitutional,** for we conclude that any possibility of reli-
22 Rule 32(c) of the Federal Rules of Criminal Procedure now
provides in part:
If the comments of the defendant and his counsel or
testimony or other information introduced by them allege
any factual inaccuracy in the presentence investigation
report or the summary of the report or part thereof, the
court shall, as to each matter controverted, make (i) a
finding as to the allegation, or (ii) a determination that
no such finding is necessary because the matter controverted
will not be taken into account in sentencing.
Fed. R. Crim P. 32(c)(3)(D). This provision, however, was not
effective until August 1, 1983. At the time of Yamanis’ sentencing,
Rule 32 required only that the court “afford the defendant or his
counsel an opportunity to comment thereon and, at the discretion
of the court, to introduce testimony or other information relating
to any alleged factual inaccuracy contained in the presentence
report.” Fed. R. Crim. P. 32(c)(3)(A). While recognizing Rule
82(c)(3)(D) as a salutory measure, we note that it does not
purport to state the requirements of due process. We also note
that in this case the district court fully complied with the rule then
in force.
23 Compare United States v. Espinoza, 481 F.2d 553, 556 (5th
Cir. 1973) (due process requires that defendant be afforded op-
[Footnote continued on following page]
42a
ance in this case is too remote to rise to the level of a due
process violation. In our opinion, the comments of the
district judge at sentencing tend to rule out the possibility
of reliance. Referring to the amount of marijuana in
particular, the court indicated that it would rely on its
own recollection of the facts, and ultimately on the
record, rather than on the corresponding statements in
the presentence report. The court’s remarks also sug-
gest that it was concerned with Yamanis’ having “brought
in” marijuana, rather than his having owned it. We
emphasize again that the judge had had the benefit of
hearing all the evidence at trial and thus was not de-
pendent on the presentence report as a source of informa-
tion,* and that his attention had been drawn to the
purported inaccuracies such that he was unlikely to rely
on the report without first resolving, albeit tacitly, the
factual dispute.* Although the district court did not
unequivocally repudiate the contested portions of the pre-
sentence report, we think it highly improbable that it
relied on them.” Thus we uphold Yamanis’ sentence.
portunity to rebut representations in presentence report only
“where a sentencing judge explicitly relies on [that] information
in assessing a sentence”), with United States v. Robin, 545 F.2d
775, 779 (2d Cir. 1976) (“Where there is a possibility that
sentence was imposed on the basis of false information or false
assumptions concerning the defendant, an appeal will lie to this
Court and the sentence will be vacated’’).
24In this regard, the present case is distinguishable from
United States v. Robin, 545 F.2d 775 (2d Cir. 1976), in which the
defendant had entered a guilty plea. The Robin court observed,
“Without the benefit of a trial, the sentencing judge necessarily
leaned heavily on the presentence report . . . as [a source] of
information concerning the appellant’s behavior and alleged crim-
inal acts.” Jd. at 781.
25 Hence this case differs from McGee v. United States, 462
F.2d 243 (2d Cir. 1972), for there the invalid premise on which
the sentence was possibly based was a conviction subsequently
vacated on appeal.
26 Our disposition of this claim is not inconsistent with United
States v. Battaglia, 478 F.2d 854 (5th Cir. 1972), and United
[Footnote continued on following page]
43a
VII. CALISE: DANGEROUS SPECIAL DRUG
OFFENDER
Calise challenges the sentence he received as a danger-
ous special drug offender under 21 U.S.C. § 849 on four
grounds: (a) that the government failed to give timely
notice, as required by the statute; (b) that the govern-
ment failed to give adequate notice, as required by the
statute; (c) that application of the preponderance stan-
dard of proof, together with admission of similar act
evidence and hearsay evidence, violated the due process
clause; and (d) that the government sought sentence
enhancement out of vindictiveness, in violation of the
due process clause. We address and reject each ground
in turn.
A. Timeliness of Notice
Under § 849(a), in order for a defendant to be sen-
tenced as a dangerous special drug offender, the govern-
ment “a reasonable time before trial” must “file with the
court” a notice regarding the defendant’s status as a
dangerous special drug offender. 21 U.S.C.A. § 849(a)
(1981). In this case, the government filed its notice on
May 28, 1982. Jury selection took place on June 1, and
the trial was recessed until June 8.
[31] Emphasizing that the notice was filed on the
last working day before jury selection and was unlikely
to reach him until after jury selection, Calise argues that
the government failed to comply with the statutory re-
quirement of notice “a reasonable time before trial.”
States v. Vasquez, 638 F.2d 507 (2d Cir. 1980), cert. denied, 454
U.S. 847, 102 S.Ct. 165, 70 L.Ed.2d 135 (1981), in which the
courts of appeal remanded for resentencing in the face of possibly
erroneous information or assumptions. In Battaglia, the sen-
tencing judge explicitly “stated that he was taking into considera-
tion certain facts which he believed to be true.” 478 F.2d at 854,
but which the defendant later claimed were false. And in Vas-
quez, the sentencing judge plainly indicated his reliance on the
assumptions in question.
44a
Addressing the identical contention in its order of Decem-
ber 30, 1982, the district court concluded, “While the
Government’s conduct in this case cannot be commended,
it satisfied the express requirement of the statute.” The
court explained that it would have been more inclined to
find the government’s delay unreasonable had Calise de-
monstrated some prejudicial effect. In this regard, the
court noted that Calise had been advised of the govern-
ment’s intent to prosecute under section 849 during plea
negotiations and thus had received actual notice well in
advance of trial. The court also noted that because he
had been charged with the two counts of conspiracy, as
well as the substantive counts arising from the DC-6 epi-
sode, Calise already had an interest in disproving his
alleged participation in the other drug episodes. We are
persuaded by the district court’s reasoning and similarly
hold that the government’s notice in this case was filed in
a timely fashion.
[32] We agree with Calise that “strict compliance by
the Government with the statutory filing requirement is
a prerequisite for an enhanced sentence,” United States
v. Noland, 495 F.2d 529, 5380 (5th Cir.), cert. denied, 419
U.S. 966, 95 S.Ct. 228, 42 L.Ed.2d 181 (1974), and that a
showing of prejudice is not independently required in
order to set aside a sentence on the ground of noncom-
pliance. Where the government has filed a notice prior
to trial, however, we consider the presence or absence of
prejudice in determining whether the interval between
filing and trial was “reasonable.” For instance, even
though actual knowledge is no substitute for the requisite
filing, to the extent that it reduces prejudice, it suggests
that the interval between filing and trial was not un-
reasonable.
As the court below observed, the prejudice attributable
to the government’s failure to file earlier was minimal in
this case. Calise asserts that despite his actua) notice
of the government’s intent to seek sentence enhancement
45a
and the incentives provided by the conspiracy charges, the
government’s delay hindered his ability to plea-bargain
intelligently and to put on a defense at trial inasmuch as
he remained ignorant of the precises circumstances on
which the government was to rely in demonstrating his
dangerous special drug offender status. While raising a
theoretical possibility of prejudice, Calise does not indi-
cate how he would have acted differently if the notice had
been filed earlier. Under the circumstances, we conclude
that the three days between filing and jury selection and
the ten days between filing and testimony constituted “a
reasonable time before trial.” *
B. Adequacy of Notice
Section 849(a) requires that the notice set out “with
particularity the reasons why [the U.S.] attorney believes
the defendant to be a dangerous special drug offender.”
21 U.S.C.A. § 849 (a) (2) (1981). In its notice, the gov-
ernment specified that Calise was a “special drug of-
fender,” as defined in subsections 849(e) (2) and (3), and
“dangerous” as defined in section 849(f). In support, the
government incorporated by reference the indictment and
the bill of particulars, noting that they contained “de-
tailed allegations regarding the defendant’s misconduct,”
and listed five points as a summary of the allegations.
Calise now asserts that the reasons given by the govern-
ment for believing him to be a dangerous special drug
offender were insufficiently particularized to satisfy the
statute.
27 The main source of difficulty identified by Calise is counsel’s
not having actually received the government’s notice until long
after trial. According to the certificate of service, a copy of the
notice was mailed to counsel on the date it was filed. Evidently,
the copy was lost in transit, and as a result of confusion in the
district court’s clerk office, counsel did not become aware of the
contents of the notice until July 12. While this was certainly a
serious turn of events, any prejudice therefrom is hardly at-
tributable to the government’s timing and hence has no bearing
on the timeliness of the notice.
46a
[33] At the outset, Calise contends that the notice
was inadequate in that it is impossible to ascertain whether
the various allegations relate to his special drug offender
status or his dangerousness, or both. Insofar as danger-
ousness may be inferred from the circumstaincs estab!'sh-
ing special drug offender status, cf. United States v.
Ilacqua, 562 F.2d 399, 403 (6th Cir. 1977) (applying 18
U.S.C. § 5775), cert. denied, 435 U.S. 906, 98 (S.Ct.
1458, 55 L.Ed.2d 497 (1978), it is certainly reasonable
for the government to use the same allegations to estab-
lish that a defendant is both a special drug offender and
dangerous. Assuming in the absence of any contrary
indication that the government assessed independently
whether Calise met the two criteria, we conclude that its
failure to designate which allegations were made in sup-
port of each did not render the notice inadequate.
[34] Next Calise argues that the government’s al-
legations were insufficient to establish his status as a
special drug offender under subsections 849(e) (2) and
(3). Because the government withdrew its assertion that
Calise was a special drug offender under subsection (2)
at sentencing and the district court found him to be a
special drug offender under subsection (3), we need only
address the sufficiency of the allegations with respect to
the latter. Subsection (3) contains two elements: first,
that the defendant was involved in “a conspiracy with
three or more other persons to engage in a pattern of
dealing in controlled substances . . .,” 21 U.S.C. § 849(e)
(3), and second, that the defendant “did, or agreed that
he would, initiate, organize, plan, finance, direct, manage,
or supervise all or part of such conspiracy or dealing,
or give or receive a bribe or use force in connection with
such dealing,” id. There were ample allegations relating
to both elements.
The indictment itself charged Calise with conspiring
with eight others to possess with intent to distribute
(Count II) and to import (Count III) marijuana. In
addition, the government’s notice alleged that he had
47a
conspired with several others to import and distribute
multi-ton quantities of marijuana and hashish. These
genera] allegations were supplemented by the bill of par-
ticulars, in which the government specifically listed the
major drug incidents constituting the core of the con-
spiracies charged.* Calise’s involvement in a conspiracy
to engage in a pattern of dealing in controlled substances
was therefore established with the requisite particularity.
With reference to the scond element, the government’s
notice stated generally that “Defendant was an organizer,
manager, and superviser in this criminal organization,
directing the illegal activities of others.” Again the bill
of particulars provided the specifics, listing numerous epi-
sodes in which Calise played a supervisory role. Thus the
nature of Calise’s participation was also established with
the requisite particularity.
[35] Finally, Calise maintains that the government
failed to allege his dangerousness under section 849 (f)
with sufficient particularity. We disagree. Section 849 (f)
defines “dangerous” in terms of whether “a period of
confinement longer than that provided for such felonious
violation is required for the protection of the public from
further criminal] conduct by the defendant.” 21 U.S.C.A.
28 Calise has argued throughout that except for the first para-
graph (which relates to the Kyoto episode and in which Calise is
named) and the third paragraph (which relates to the DC-6 epi-
sode), the bill of particulars relates only to the continuing crim-
ina] enterprise charged in Count I. We find no basis for this
assumption. Calise’s assertion to the contrary notwithstanding
the comments of the court and the prosecutor at trial indicating
that the bill of particulars relates to the continuing criminal enter-
prise do not lead to the conclusion that it relates only to the con-
tinuing criminal] enterprise. Indeed, the bill itself states only that
“Tt}he government’s case will focus on but not be limited to the
following incidents,” in no way implying that it relates to Count I.
At any rate, we think it clear beyond peradventure that in includ-
ing the bill of particulars in its notice under section 849, the
government intended it to serve as an enumeration of the incidents
relating specifically to Calise’s status as a dangerous special drug
offender.
48a
§ 849(f) (1981). The government’s notice alleges,
Numerous shiploads and planeloads of marijuana and
hashish were successfully imported into the United States
and distributed by defendant and his co-conspirators.”
As mentioned above, the bill of particulars goes on to list a
series of large-scale drug transactions in which Calise
was involved. Moreover, the notice points out his special
skills, including: “(a) the ability to organize and plan
criminal activities; (b) management and supervisory ex-
pertise; (c) knowledge of the illegal marijuana market;
(d) the knowledge of how and where to obtain the services
of other criminals to assist in this criminal conspiracy.”
In our opinion, the notice constitutes a sufficiently specific
statement of reasons for believing, as the district court
ultimately concluded, that Calise had long been “a pro-
fessional drug trafficker” and was therefore dangerous
within the meaning of the statute.
C. Standard of Proof
[36] Section 849(b) provides, “If it appears by a
preponderance of the information . . . that the defendant
is a dangerous special drug offender, the court shall sen-
tence the defendant to imprisonment for an appropriate
term... .” 21 U.S.C.A. § 849(b) (1981). Calise con-
tends that this provision is constitutionally infirm because
it authorizes findings of fact based on proof by a pre-
ponderance of the evidence rather than proof beyond a
reasonable doubt. His contention is premised on the
assertion that sentence enhancement under section 849,
particularly when the government relies on the definitions
of “special drug offender” in subsections 849(a) (2) and
(3), is in effect prosecution on new criminal charges. As
such, he argues, it is subject to the Supreme Court’s hold-
ing in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25
L.Ed.2d 368 (1970), that “the Due Process Clause pro-
tects the accused against conviction except upon proof
beyond a reasonable doubt to every fact necessary to con-
stitute the crime with which he is charged.” Jd. at 364,
90 S.Ct. at 1073.
49a
While there is a dearth of decisions on the consti-
tutionality of section 849, several cases address the stan-
dard of proof question in connection with 18 U.S.C.
§ 3575, the sentence enhancement statute governing non-
drug cases. As section 849 was modeled on and is virtually
identical to section 3575—the two statutes employ the
“preponderance of the information” standard and similar
definitions of “special offender” and “dangerous’”—we
find these cases most persuasive, if not controlling. We
know of only one decision sustaining a claim similar to
Calise’s, United States v. Duardi, 384 F.Supp. 874, 882-85
(W.D.Mo. 1974), aff'd on other grounds, 529 F.2d 123
(8th Cir. 1975). Indeed, the courts of appeal have uni-
formly held that use of the preponderance standard in
sentence enhancement proceedings comports with the due
process clause. See United States v. Davis, 710 F.2d 104
(3d Cir.), cert. denied, U.S. ——, 104 S.Ct. 505,
7% L.Ed.2d 695 (1983) ; United States v. Schell, 692 F.2d
672, 676-79 (10th Cir. 1982); United States v. Inendino,
604 F.2d 458, 463 (7th Cir. 1979) (affirming 463 F.Supp.
252 (N.D. Ill. 1978)), cert. denied, 444 U.S. 932, 100
S.Ct. 276, 62 L.Ed.2d 190 (1979); United States v. Wil-
liamson, 567 F.2d 610, 615 (4th Cir. 1977) ; United States
v. Bowdach, 561 F.2d 1160, 1172-75 (5th Cir. 1977) ;
United States v. Ilacqua, 562 F.2d 399, 405 (6th Cir.
1977), cert. denied, 435 U.S. 906, 98 S.Ct. 1453, 55
L.Ed.2d 497 (1978); United States v. Neary, 552 F.2d
1184, 1193-94 (7th Cir.), cert. denied, 434 U.S. 864, 98
S.Ct. 197, 54 L.Ed.2d 139 (1977); United States v. Stew-
art, 531 F.2d 326, 332-34 (6th Cir.}, cert. denied, 426
U.S. 922, 96 S.Ct. 2629, 49 L.Ed.2d 376 (1976). Com-
pelled not only by the overwhelming weight of these au-
thorities, but also by the force of their reasoning, we con-
clude that the use of the preponderance standard in im-
posing sentence under section 849 is likewise constitu-
tional.
While ordinary sentencing proceedings are by no
means immune from all due process attacks, the Supreme
50a
Court has required only minimal due process protections
in such proceedings. See United States v. Grayson, 438
U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978); Wil-
liams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed.
1337 (1949). In Specht v. Patterson, 386 U.S. 605, 87
S.Ct. 1209, 18 L.Ed.2d 326 (1967), however, the Court
required additional procedural safeguards where the de-
fendant had received a longer prison term pursuant to a
statute requiring additional fact-finding by the sentencing
judge. Having been convicted of a sex-related offense
under one Colorado statute, the defendant in Specht was
sentenced to an additional term of imprisonment under
the Colorado Sex Offenders Act. Under that statute, the
judge could enhance sentence without notice or a hearing
based entirely on a psychiatric report, after making find-
ings of fact regarding dangerousness, habitual offender
status and mental illness. Holding the statute unconsti-
tutional, the Court declared:
Due process . . . requires that [the defendant] be
present with counsel, have an opportunity to be
heard, be confronted with witnesses against him,
have the right to cross-examine, and to offer evi-
dence of his own. And there must be findings ade-
quate to make meaningful any appeal that is
allowed.
Id. at 610, 87 S.Ct. at 1212.
Although the courts differ on the similarity between
sentencing proceedings under the dangerous special
offender statute and the sentencing proceeding in Specht,
compare Davis, 710 F.2d at 106; Schell, 692 F.2d at 676-
78; Bowdach, 561 F.2d at 1172-75, with Stewart, 531
F.2d at 332 & n.2, they universally agree the federal
statute fulfills the due process requirements articulated
in Specht, see Davis, 710 F.2d at 106-07; Schell, 692
F.2d at 677; Bowdach, 561 F.2d at 1174; Stewart, 531
F.2d at 332. Insofar as it guarantees to a defendant the
right to notice and a hearing, to assistance of counsel, to
5la
compulsory process, to cross-examination, to findings of
fact and to appeal, see 21 U.S.C.A. § 849(b) (1981), the
dangerous special drug offender statute also affords every
procedural protection expressly required by Specht.
[37] Specht does not hold, as Calise suggests, that
due process requires all findings made by a sentencing
judge to be based on proof beyond a reasonable doubt.
See Davis, 710 F.2d at 107 & n.1; Schell, 692 F.2d at 677-
78; Bowdach, 561 F.2d at 1172-74; Hollis v. Smith, 571
F.2d 685, 689-90 (2d Cir. 1978). To determine whether
due process mandates that standard of proof, we must
balance the defendant’s liberty interests, the risk of
erroneous deprivation and the government’s interest in
protecting society. See Addington v. Texas, 441 U.S. 418,
99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) ; Mathews v. Eld-
ridge, 424 U.S. 319, 96 S.Ct. 898, 47 L.Ed.2d 18 (1976).
Having balanced these interests, we agree with our sister
circuits that the preponderance standard passes consti-
tutional muster. See Davis, 710 F.2d at 107; Schell, 692
F.2d at 678.
Calise maintains that the cases upholding section 3575
are distinguishable in that they deal exclusively with sub-
section 3575(e) (1), which corresponds with subsection
849 (e) (1), whereas the instant case involves subsections
849(e)(2) and (3), which correspond with subsections
3575 (e) (2) and (3). Unlike subsection (1), under which
sentence enhancement is based on prior convictions, he
argues, subsections (2) and (3) essentially entail distinct
criminal charges against the defendant. Since we can ac-
cept neither his characterization of the cases upholding
section 3575 nor his characterization of subsections (2)
and (3), we find the distinction urged by Calise insig-
nificant.
We note initially that several of the cases cited above
deal with section 3575(f), which defines “dangerous,”
as well as subsection 3575 (e) (1). Thus to the extent that
their treatment of the preponderance standard in con-
52a
nection with the determination of dangerousness would
also apply to the determination of special drug offender
status under subsections 849(e) (2) and (3), these cases
would not be inapposite even if subsections (2) and (3)
were significantly different from subsection (1).
[38] More important, we reject Calise’s assertion
that subsections (2) and (3) encompass new criminal
charges. To the contrary, subsections, like subsection (1),
merely introduce circumstances in aggravation of the
offense for which the conviction was obtained. Under -
subsection (2), a “pattern of dealing in controlled sub-
stances” is relevant only if it relates to the underlying
felonious violation. Similarly, a “conspiracy .. . to en-
gage in a pattern of dealing in controlled substances”
under subsection (3) must relate to the underlying felony.
In either case, the facts to be established bear on the
seriousness of the crime of which the defendant has been
convicted. In this regard, the words of the Sixth Circuit
in Stewart, referring to section 3575, are apt:
It is to be emphasized that . . . that statute here
involved does not create a new and distinct criminal
charge. Rather, the dangerous special offender
criteria provide for an increase in the penalty for
the offense itself. Under [the statute], the con-
duct embraced within the criteria must be factually
related to the felony for which sentence is im-
posed... . [The stavate] involves, in Specht’s
language, [a] “distinct issue,” but it does not con-
stitute a separate charge.
531 F.2d at 332 (citation and footnote omitted) ; see also
Inendino, 604 F.2d at 463 (“This section [8575], how-
ever, does not create a separate criminal charge but in-
stead provides for the enhancement of the penalty for
the defendants’ criminal conviction.”) ; Williamson, 567
F.2d at 614, 615 (quoting Stewart, 531 F.2d at 332);
Ilacqua, 562 F.2d at 405 (“we reemphasize that the en-
58a
hancement statute [section 3575] is not a separate crim-
inal charge”). We conclude that subsections 849 (e) (2)
and (3), if properly applied, do not introduce new and
distinct criminal charges thereby necessitating proof be-
yond a reasonable doubt. Because subsection 849 (e) (3)
and section 849(f) were properly applied in this case,
we hold that the imposition of an additional sentence on
the basis of proof “by a preponderance of the informa-
tion” did not violate Calise’s due process rights.
[39,40] Finally, we are unpersuaded by Calise’s ob-
jections to the admission of similar act evidence and hear-
say evidence at the sentencing hearing. The similar acts
in question were the drug episodes listed in the bill of
particulars. As these episodes related to the alleged “con-
spiracy . . . to engage in a pattern of dealing in con-
trolled substances” under subsection 849 (e) (3), they were
by no means extrinsic to the sentencing proceeding. With
reference to the purported hearsay testimony, we note
that under section 850, “no limitation shall be placed on
the information concerning the background, character, and
conduct of the person convicted of an offense which a
court of the United States may receive and consider for
the purpose of imposing an appropriate sentence... .”
21 U.S.C.A. § 850 (1980). As the Jnendino court con-
cluded:
The argument that the district court erred in ad-
mitting hearsay testimony in the sentencing hear-
ing is without merit. In considering a sentence the
trial judge may conduct a broad inquiry which is
“largely unlimited either as to the kind of infor-
mation he may consider, or the source from which
it may come.” The sentencing court under the
dangerous special offender statute retains the same
broad discretion as in the usual sentencing pro-
cedure.
604 F.2d at 463-64 (citations omitted (quoting United
States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591,
54a
30 L.Ed.2d 592 (1972) ); see also Williamson, 567 F.2d at
615 (“the sentencing court may, in its broad discretion,
consider all information which has a bearing upon proof
of the defendant’s dangerouness. Ths formal rules of
evidence used in criminal trials do not limit the sources
of information which a court may consider in determining
what is a proper sentence for a dangerous special of-
fender’’).
D. Prosecutorial Vindictiveness
[41] During plea negotiations, the government ex-
pressed its intent to seek sentence enhancement under
section 849 and offered to forego prosecution as a danger-
ous special drug offender if Calise would plead guilty as
charged. Calise rejected this offer and was ultimately
sentenced under section 849. He now asserts that the
government filed for sentence enhancement in a vindictive
effort to penalize his exercising his right to trial by jury.
As a result, he argues, he was denied due process.
The Supreme Court dealt with this precise issue in
Bordenkircher v. Hayes, 484 U.S. 357, 98 S.Ct. 663, 54
L.Ed.2d 604 (1978). There the defendant was initially
charged with uttering a forged instrument. During plea
negotiations, the prosecutor informed the defendant that
if he did not plead guilty, the state would seek an indict-
ment under the applicable habitual offender statute, there-
by exposing him to a possible life sentence. The defendant
chose not to plead guilty, the prosecutor carried out his
threat, and the defendant was convicted and sentenced as
a habitual offender.
In rejecting the defendant’s due process claim, the
Court stated:
While the prosecutor did not actually obtain the
recidivist indictment until after the plea confer-
ences had ended, his intention to do so was clearly
expressed at the cutset of the plea negotiations.
55a
Hayes was fully informed of the true terms of the
offer when he made his decision to plead not guilty.
This is not a situation, therefore, where the prose-
cutor without notice brought an additional and
more serious charge after plea negotiations relating
only to the original indictment had ended with the
defendant’s insistence on pleading not guilty.
Id. “i 360-61, 98 S.Ct. at 666 (footnote omitted). The
Court reasoned:
While confronting a defendant with the risk
of more severe punishment clearly may have a
“discouraging effect on the defendant’s assertion
of his trial rights, the imposition of these difficult
choices [is] an inevitable’—and permissible—“at-
tribute of any legitimate system which tolerates
and encourages the negotiation of pleas.” Chaffin
v. Stynchcombe, supra, 412 U.S. [17] at 31, 93
S.Ct. [1953] at 1985 [86 L.Ed.2d 714 (1973)]. It
follows that, by tolerating and encouraging the
negotiation of pleas, this Court has necessarily ac-
cepted as constitutionally legitimate the simple
reality that the prosecutor’s interest at the bargain-
ing table is to persuade the defendant to forego his
right to plead not guilty.
Id. at 364, 98 S.Ct. at 668. The Court concluded, “the
course of conduct engaged in by the prosecutor in this
case, which no more than openly presented the defendant
with the unpleasant alternatives of foregoing trial or
facing charges on which he was plainly subject to prose-
cution, did not violate the Due Process Clause of the
Fourteenth Amendment.” Id. at 365, 98 S.Ct. at 669;
see also United States v. Pleasant, 730 F.2d 657, 665
(11th Cir. 1984) (applying Bordenkircher in section 3575
case).
In our opinion, the present case is indistinguishable
from Bordenkircher. Calise was fully informed of the
56a
terms of the plea offer and simply declined to accept.
Accordingly, w2 find ne support for his claim of prosecu-
torial vindictiveness.
VIII. CALISE: JUROR INTERVIEWS
According to the affivavit of codefendant Harris,
shortly after the verdicts were returned on June 15, 1982,
Harris approached one of the jurors, who informed him
that she opposed the convictions, but had been told that
majority rule controlled. Counsel for Harris filed, and
Calise subsequently adopted, a notice of intention to inter-
view jurors along with Harris’ affidavit. The government
moved ,to prevent the interviewing and to strike the affi-
davit. In its order of June 28, 1982, the district court
barred the defendants and their counsel from conducting
interviews with the jurors who decided the case. On ap-
peal, Calise asserts that Harris’ affidavit raises the possi-
bility that extraneous prejudicial information was brought
to the jury’s attention, that an outside influence was
brought to bear on the jury, or that one of the jurors
was biased against the defendants. Thus, he contends,
the district court erred in disallowing juror interviews.
We disagree.
[42] Where there are allegations of extraneous in-
formation, outside influence or other jury misconduct, the
decision whether to investigate rests in the sound discre-
tion of the district court. See United States v. Barshov,
733 F.2d 842, 850 (11th Cir. 1984); United States v.
Lopez, 728 F.2d 1859, 1363 (11th Cir. 1984) ; United
29 Calise argues that he was not fully informed in that he was
unaware of the precise circumstances on which the government
would rely in seeking sentence enhancement. The precise circum-
stances, however, were not terms of the offer; rather, the gov-
ernment’s pro® *2 not to seek sentence enhancement was the
crucial term. Under Bordenkircher, regardless of the precise cir-
cumstances relied on, the government’s communicating its intent
to seek sentence enhancement in the event of trial confirms that
it was not motivated by vindictiveness in subsequently doing se.
57a
States v. Williams, 716 F.2d 864, 865 (11th Cir. 1983);
United States v. Edwards, 696 F.2d 1277, 1282 (11th
Cir.), cert. denied, — U.S.—, 103 S.Ct. 1884, 76 L.Ed.2d
813 (1983). In Edwards, the court observed:
[T]his court has not imposed a stringent duty of
investigation upon a district judge under com-
parable circumstances. Grooms v. Wainwright,
610 F.2d 344 (5th Cir.), cert. denied, 445 U.S.
953, 100 S.Ct. 1605, 63 L.Ed.2d 789 (1980). In-
stead “(t]he judge’s decision whether to interro-
gate the jury about juror misconduct is within his
sound discretion, especially when the alleged preju-
dice results from statements made by the jurors
themselves, and not media publicity or other out-
side influences.” Id. at 347.
696 F.2d at 1282. Even when the alleged misconduct
involved outside influences, investigation is not automa-
tically required. As the Barshov court noted:
Where a colorable showing of extrinsic influ-
ence is made, a trial court, in the exercise of its
discretion, must make sufficient inquiries or con-
duct a hearing to determine whether the influence
was prejudicial. However, there is no per se rule
requiring an inquiry in every instance. The duty
to investigate arises only when the party alleging
misconduct makes an adequate showing of extrin-
sic influence to overcome the presumption of jury
impartiality. In other words, there must be some-
thing more than mere speculation.
733 F.2d at 851 (citations omitted).
[48] Calise failed to make even a “colorable show-
ing” of extraneous information, outside influence or other
jury misconuuct. Indeed, Harris’ affidavit contains not
the slightest hint that the jury was exposed to media
publicity, contact with others, or a similar source of in-
formation or pressure. And although it is conceivable
that one of the jurors was biased, to infer such bias from
58a
the conversation recounted in the affidavit would be
nothing “more than mere speculation.” Insofar as the
affidavit on which Calise relies suggests confusion, rather
than impropriety, on the part of one or more jurors, we
hold that the district court acted well within the scope
of its discretion in prohibiting juror interviews.
In so holding, we concur with the sentiments expressed
by the Fourth Circuit in a similar case:
The law is settled that, following dispersal of a
jury, once it has been dismissed, if we allow such
attacks by individual members on the composite
verdict of all twelve we can expect an unsettling
of the system out of all proportion to any expect-
able improvement in the administration of justice.
The opportunities for other abuses which would
greatly exceed the possibly unfortunate conse-
quences of not pursuing belated, post-verdict claims
of intimidation by fellow jurors are obvious. In
short, on the facts presented in the present case,
the cure proposed is manifestly worse than the
hypothetical, but unproven, disease.
United States v. Barber, 668 F.2d 778, 786-87 (4th Cir.)
(citations and footnote omitted), ceri. denied, 459 U.S.
829, 103 S.Ct. 66, 74 L.Ed.2d 67 (1982).
IX. DARBY: SUFFICIENCY OF EVIDENCE
[44] Darby contends that the evidence against him
was insufficient to prove him guilty of conspiring to im-
port marijuana. In reviewing the sufficiency of the evi-
dence, we must sustain the conviction if the evidence,
viewed in the light most favorable to the government, is
such that a reasonable trier of fact could find guilt beyond
a reasonable doubt. United States v. Lippner, 676 F.2d
456, 466 (11th Cir. 1982); United States v. Bell, 678
F.2d 547, 549 (5th Cir. Unit B 1982) (en banc), aff'd
on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d
638 (1983). To prove a charge of conspiracy under
Title 21,
59a
the government must establish, beyond a reason-
able doubt, that a conspiracy existed, that the de-
fendant knew of it, and that he voluntarily parti-
cipated in it. United States v. Middlebrooks, 618
F.2d [273] at 278 [5th Cir. 1980]; United States
v. Littrell, 574 F.2d [828] at 832 [5th Cir. 1978].
The agreement between the coconspirators and the
defendant need not be proved by direct evidence
and may be inferred from concert of action. United
States v. Malatesta, 590 F.2d [1379] at 1381 [5th
Cir. 1979]; United States v. King, 532 F.2d 505,
508 (5th Cir.), cert. denied, 429 U.S. 960, 97 S.Ct.
384, 50 L.Ed.2d 327 (1976). Further, it is not
necessary for all coconspirators to know each other
or to work together on every phase of the criminal
venture. United States v. James, 590 F.2d 575
(5th Cir.) (en banc), cert. denied, 442 U.S. 917,
99 S.Ct. 2836, 61 L.Ed.2d 283 (1979).
Lippner, 676 F.2d at 466 (quoting United States v. Gar-
cia, 672 F.2d 1849, 1869 (11th Cir. 1982) (quoting United
States v. Wilson, 657 F.2d 755, 758-59 (5th Cir. 1981) )).
[45] Emphasizing the number of government wit-
nesses who did not testify against him and the question-
able credibility of those who did, Darby asserts that the
evidence failed to prove that he agreed to join the con-
spiracy. Taking the view most favorable to the govern-
ment, we find ample evidence of Darby’s guilt. A
number of government witnesses, whose testimony was
not inherently incredible, identified Darby as an active
participant in the DC-6 episode. According to those wit-
nesses prior to the night on which the plane was originally
expected, he was present at a discussion regarding plans
for the offloading and agreed to serve as a lookout; on
the night on which the plane was expected, he was at the
landing strip in a lookout position; after the plane did
not arrive as expected, he was present at a discussion
regarding whether to go out to meet the plane a second
60a
night and agreed to do so; and on the night on which the
plane finally arrived and the marijuana was offloaded,
he drove a coconspirator to the landing strip and again
assumed a lookout position. Moreover, the record indi-
cates that he was paid handsomely for his efforts. We
conclude that the jury reasonably could have found that
Darby knowingly and voluntarily joined the conspiracy.
It is true that the importation conspiracy charged in
the indictment covered the period from 1975 to 1982 and
thus was not limited to the DC-6 episode. Darby’s par-
ticipation in the overall conspiracy, however, may be
inferred from his involvement in the DC-6 episode. As
this court pointed out in United States v. Badolato, 701
F.2d 915 (11th Cir. 1983), “To be found guilty, a defen-
dant need not have knowledge of all the details of the
conspiracy, and may play only a minor role in the total
operation.” Jd, at 920. Another court has observed:
A single act may be “sufficient for an inference”
that an individual is involved in a conspiracy; the
“qualitative nature” of the act “viewed in the con-
text of the entire conspiracy” determines whether
that inference can be drawn in a particular case.
United States v. Murray, 618 F.2d 892, 908 (2d Cir.
1980) (citations omitted). The evidence in this case
suggests Darby’s awareness of the size of the shipment
and the use of a private plane, his acquaintance with
several other participants and his personal contact with
leaders of the conspiracy, one of whom assured the par-
ticipants that the organization would take care of them
in the event of arrest. Confronted with similar evidence,
the predecessor of this court held that the jury could have
rationally inferred that the defendant knew of the broader
conspiracy. See United States v. Hawkins, 661 F.2d 436,
453-54 (5th Cir. Unit B 1981). Concluding that the
evidence here permits the same inference, we sustain
Darby’s conviction.
6la
X. DARBY: MULTIPLE CONSPIRACIES
Finally, Darby asserts that the evidence at trial
proved not one overall conspiracy, but several smaller
conspiracies, including a conspiracy culminating in the
DC-6 episode. He urges reversal on the ground that
there was a prejudicial variance between the indictment
and the proof, and on the ground that the district court’s
refusal to sever his trial constituted an abuse of discre-
tion. Instead we affirm, for we reject Darby’s premise
that the government failed to establish a single con-
spiracy.
[46] At the outset, we note that the factual issue
underlying Darby’s claim was adversely determined by
the jury in this case. In United States v. Michel, 588
F.2d 986 (5th Cir. 1979), the former Fifth Circuit made
it clear that “[w]hether a scheme is one conspiracy or
several is primarily a question for the jury.” Id. at 995.
Here the jury was instructed:
[P]roof of several separate conspiracies is not
proof of the single overall conspiracy charged in
the indictments, unless one of the several con-
spiracies which is proved is the single conspiracy
which the indictment charges.
What you must do is determine whether the
single conspiracy charged in the count of the in-
dictment under deliberation existed between two
or more conspirators. If you find that no such
conspiracy existed, then you must acquit the de-
fendants as to that charge.
However, if you are satisfied that such con-
spiracy existed, you must determine who were the
members of that conspiracy.
If you find that a particular defendant is a
member of another conspiracy, not the one charged
in the indictment, then you must acquit that de-
62a
fendant. In other words, to find a defendant guilty,
you must find that he was a member of the
conspiracy charged in the indictment and not some
other separate conspiracy.
In light of this instruction, we regard the jury’s verdict
of guilty as an implicit finding that the overall conspiracy
charged in the indictment existed and that Darby par-
ticipated in it.
[47] Our review of the record confirms that there
was but one conspiracy in this case. It is true that not
every member of the conspiracy was involved in each of
the major drug incidents. Yet “‘[i]t is not crucial to
the existence of a conspiracy that each conspirator par-
ticipate in every phase of the criminal venture.” United
States v. Grassi, 616 F.2d 1295, 1808 (5th Cir. 1980).
It is also true that some conspirators assumed greater
responsibility and performed more tasks, but “[t]he plan
does not become several plans simply because some mem-
bers were cast in more vital roles than others or because
certain members performed only a single function.”
Michei, 588 F.2d at 995. And while not all of tite con-
spirators were mutually acquainted, it is not “necessary
for each conspirator to have knowledge of the identity
and role of each of his coconspirators.” Grassi, 616 F.2d
at 1303. The evidence in this case reveals the very
hallmarks of a single conspiracy: a regularized pattern
of activity involving a significant continuity of member-
ship and directed toward a common goal. See Grassi,
616 F.2d at 1308; Michel, 588 F.2d at 995. Accordingly,
we hold that there was neither a prejudicial variance nor
an abuse of discretion.
On the basis of the foregoing analysis, we uphold the
convictions and sentences of the four appellants. The
judgments of the district court are AFFIRMED.
63a
DENIALS OF REHEARING EN BANC
UNITED STATES COURT OF APPEALS
Eleventh Circuit
DENIALS OF REHEARING EN BANC
(Rule 35 Federal Rules of Appellate Procedure; Local Eleventh Circuit
Rule 26)
Group 1—Denials where no member of the panel nor Judge in regular
active service on the Court requested that the Court be
polled on rehearing en
banc.
Group 2—Denials after a poll requested by a member of the panel or
a Circuit Judge in regular active service.
Group 3—Denials on the Court’s own motion after a poll requested
by a member of the panel or a Circuit Judge in regular
active service.
Title
GROUP 1
Abdi v. State of Ga. ......++55.
Federal Deposit Ins. Corp. v.
Gulf Life Ins. Co. ........+++-
Grand Jury Subpoena of
Santarelli, In re
eeeeeereneeneeee
Hall v. Wainwright
Pacific and Southern Co., Inc.
vy. Duncan
Simon v. Kroger Co. ......+5++-
U.S. v. Arrow
eeeeeeeeeeeeeevee
U.S. v. Bascaro
eeeeeeneew. ee eeeee
USS. v.
U.S. v.
eeseeeereeeeeeees ee”
U.S. v. Pantoja-Soto
Docket
Number
83-8865
82-7173
84-5494
83-3563
83-8782
84-8168
83-5425
82-5547
82-8522
82-5840
82-5454
Date of
Denial
11/29/84
11/26/84
11/26/84
11/30/84
12/7/84
12/6/84
11/26/84
12/6/84
12/3/84
12/7/84
11/26/84
Citation of
Panel Decision
N.D.Ga., 744
F.2d 1500
M.D.Ala., 737
F.2d 1513
S.D.Fla., 740
F.2d 816
M.D.Fla., 733
F.2d 766
N.D.Ga., 744
F.2d 1490
N.D.Ga., 743
F.2d 1544
S.D.Fla., 739
F.2d 549
N.D.Fla., 742
F.2d 1335
N.D.Ga., 743
F.2d 1505
N.D.Fla., 744
F.2d 1508
S.D.Fla., 739
F.2d 1520
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.