205 F.3d 23 (2nd Cir. 2000), 99-1327, United States v Williams

Docket Nº:Docket No. 99-1327
Citation:205 F.3d 23
Party Name:UNITED STATES OF AMERICA, Appellee, v. ZOLTON WILLIAMS, Defendant-Appellant.
Case Date:February 23, 2000
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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205 F.3d 23 (2nd Cir. 2000)

UNITED STATES OF AMERICA, Appellee,

v.

ZOLTON WILLIAMS, Defendant-Appellant.

Docket No. 99-1327

United States Court of Appeals, Second Circuit

February 23, 2000

Argued: November 1, 1999

Corrected: March 21, 2000

Defendant appeals from a judgment of the United States District Court for the Eastern District of New York (Dearie, J.), convicting him of conspiracy to import cocaine in violation of 21 U.S.C. § 963, and importation of cocaine in violation of 21 U.S.C. § 952(a).

AFFIRMED.

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[Copyrighted Material Omitted]

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NIKKI KOWALSKI, Assistant United States Attorney for the Eastern District of New York (Loretta E. Lynch, United States Attorney for the Eastern District of New York, of counsel), for Appellee.

LAWRENCE MARK STERN, New York, New York, for Appellant.

Before: McLAUGHLIN, JACOBS, and SACK, Circuit Judges.

BACKGROUND

McLAUGHLIN, Circuit Judge:

Zolton Williams is a Jamaican-born, former law student at Columbia Law School in New York City. In August 1998, he was indicted in the United States District Court for the Eastern District of New York (Dearie, J.), on one count of conspiracy to import cocaine and one count of importation of cocaine. The alleged conspiracy, which lasted from November 1995 to June 1997, involved Williams and his friends, Anthony Fleurancois and Keith Carmichael, all of whom engaged in an ongoing scheme to smuggle cocaine into the United States from Jamaica. The completed importation occurred on June 14, 1997, when Williams and Fleurancois succeeded in smuggling one kilogram of cocaine into this country.

Williams's first trial took place in October 1998. The government's case consisted of essentially two witnesses, Fleurancois and Carmichael, both of whom had agreed to cooperate. After deliberating for over two days, the jury announced that it could not reach a verdict. Finding the jury deadlocked, the district court declared a mistrial.

Although the government introduced some additional evidence at the second trial, the bedrock evidence against Williams remained the testimony of the government's cooperating witnesses, Fleurancois and Carmichael. The government's proof at trial revealed the following details of the charged offenses.

Williams had dealt with Fleurancois and Carmichael well before the trio hatched the cocaine importation conspiracy. He had obtained several pounds of marijuana from them in 1994; and in 1995, he had engaged in credit card fraud with Fleurancois.

In 1995, Williams, then a law student at Columbia, persuaded Fleurancois and Carmichael to join him in a scheme to import cocaine from Jamaica. According to Williams's plan, they would hire strippers to act as couriers. The trio would go to Jamaica where Williams would buy cocaine, and have the strippers smuggle the cocaine back into the United States inside their bodies. Williams told his cohorts that he had successfully used this method to import cocaine several times in the past. Carmichael, who knew several strippers, was placed in charge of finding a suitable woman to act as a courier.

Their first two attempts to carry out the conspiracy failed when they had trouble

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making arrangements for suitable couriers. Williams scheduled the first trip to Jamaica for December 1995 during a scheduled break at Columbia Law School. The trip had to be postponed, however, when the woman Carmichael had recruited to act as a courier got cold feet. The second target date was in March 1996, when Williams would have another scheduled recess from law school. This attempt also failed, when the woman Carmichael had recruited showed up at the airport without proper travel documents.

Williams and Fleurancois were angry about the aborted plans and blamed Carmichael. A dispute arose among Carmichael and his two co-conspirators, who had by now lost faith in him. On Williams's initiative, Williams and Fleurancois ultimately filed fraudulent charges of assault and robbery against Carmichael in order to discredit him if he ever talked to the police.

In April 1997, Williams and Fleurancois revised the plan. This time, Williams offered Fleurancois $10,000 to become the courier himself by carrying the cocaine in his stomach. Williams assured Fleurancois that he could safely swallow the cocaine encased in several small plastic packages and expel them after he arrived in the United States. Williams told Fleurancois that he usually imported cocaine in this manner with a courier named Steve, but that Steve was unavailable. Fleurancois, who was then saddled with approximately $45,000 in student loan and credit card debt, agreed to the plan.

In order to learn what law enforcement authorities looked for in identifying drug smugglers, the pair researched drug profiles on Westlaw, a computerized legal database. Notes from the research session, in Williams's and Fleurancois's handwriting, were introduced into evidence, as were computer printouts of some of the research materials bearing Williams's name and student Westlaw password.

The pair set a target date for the Spring of 1997. In May, the conspirators traveled to Jamaica to execute their plans. However, they returned home empty-handed after they began to suspect that their potential suppliers were planning to rob them.

They tried again in early June, traveling on separate flights. Fleurancois arrived in Kingston, Jamaica on June 8, 1997, a few days after Williams. Fleurancois financed the trip with $3700 that Williams had transferred to Fleurancois's credit card. This transfer was corroborated by documents introduced into evidence. When they found no reasonably priced cocaine in Kingston, they decided to get the drugs in Negril, a town five or six hours away where Williams had located a supplier. They drove to Negril on or about June 11, 1997, and checked into the Negril Beach Club Hotel.

To corroborate Fleurancois's testimony that Williams was in Negril with Fleurancois at the time, and that he had stayed at the Negril Beach Club, the government introduced, over Williams's objection, a receipt dated June 12 from the Negril branch of the Bank of Nova Scotia. The receipt reflected a cash advance of $900 on Williams's credit card. It bore Williams's signature and the handwritten local address of the Negril Beach Club. An official from the Bank of Nova Scotia, Cyril Woung, testified that he was familiar with the bank's practice for processing a cash advance on a credit card and with the documents generated during such a transaction. He identified the receipt as memorializing a cash advance. Woung also testified that the bank maintained such records as a regular part of its business.

On June 13, Williams left the hotel. When he came back he had a kilogram of cocaine. Williams prepared the cocaine in several small plastic packages which Fleurancois began swallowing shortly thereafter. Fleurancois continued to swallow these packages throughout the night and into the next day as the pair drove back to the airport to catch a June 14 flight to

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New York. Upon arrival at JFK Airport, the conspirators left the airport separately.

Fleurancois went to his apartment. He was nauseated and began hallucinating because the cocaine packages in his stomach had started to dissolve. He managed to expel some of the cocaine packages at his apartment, but his hallucinations became so bad that he asked neighbors to take him to the hospital. Williams's telephone records show that he called Fleurancois's number 18 times between the time when the pair split up in New York and when Williams later learned that Fleurancois was in the hospital. He also called Fleurancois's parents' house twice and several local hospitals.

Eventually, Fleurancois was visited at the hospital by his sister and Williams. Fleurancois's sister witnessed the pair whispering between themselves. She testified that she heard Williams tell Fleurancois that he should not worry because he had gotten into Fleurancois's apartment and had flushed the "stuff" down the toilet. Fleurancois was later arrested when packages of cocaine were found in his hospital bed. Ultimately, 104 packages of cocaine were recovered from Fleurancois's stomach.

The government also introduced evidence of Williams's unexplained wealth to support the conspiracy charge. It introduced evidence that, despite Williams's apparent lack of financial resources, he purchased a $27,000 cooperative apartment for cash in 1996. Williams's mother, Pauline Bygrave, later testifying in Williams's defense, asserted that she had provided the money for the apartment from funds she had received as part of an insurance settlement. On cross-examination, the government asked Bygrave if she had any documents proving the source of the funds for the apartment. Bygrave answered that she did not have the documents with her but that she could get them. In summation, the government reminded the jury of Bygrave's inability to produce these documents, stating that if the documents had indeed existed, she would have produced them at trial.

In his defense, Williams introduced alibi testimony. Williams's father, a resident of Jamaica, testified that Williams had stayed at the home of a relative in Kingston and that he had seen his son there on June 12, 13, and 14, and thus defendant had never gone to Negril from June 11 to June 14.

A friend of Williams, Michael Cummings, also testified. He stated that he had met Williams on the subway in the Spring of 1997, in the weeks before Williams went to Jamaica. When the pair realized that they would be in Jamaica at the same time, Cummings stated, they agreed to meet after Cummings's scheduled arrival on June 12. Cummings stated that he traveled to...

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