Etheridge v. United States

• Decision Date: 14 August 1967
• Docket Number: No. 23270.,23270.
• Citation: 380 F.2d 804
• Parties: Randall Lee ETHERIDGE, Robert D'Orsay, Robert E. Spinning and Robert Vincent Smith, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

380 F.2d 804 (1967)

Randall Lee ETHERIDGE, Robert D'Orsay, Robert E. Spinning and Robert Vincent Smith, Appellants, v. UNITED STATES of America, Appellee.

No. 23270.

United States Court of Appeals Fifth Circuit.

July 11, 1967.

Rehearing Denied August 14, 1967.

Hal Ives, Ives & Davis, West Palm Beach, Fla., Ray Sandstrom, Fort Lauderdale, Fla., J. Luther Drew, West Palm Beach, Fla., for appellants.

Lloyd G. Bates, Jr., Asst. U. S. Atty., William A. Meadows, Jr., U. S. Atty., Miami, Fla., for appellee.

Before PHILLIPS,^* JONES and THORNBERRY, Circuit Judges.

PER CURIAM:

The first count of a three-count indictment charged that Etheridge, D'Orsay, Spinning and Smith from prior to August 1, 1964, to on or about October 1, 1964, did conspire with each other to violate 22 U.S.C. § 1934 and rules and regulations duly promulgated thereunder, by knowingly, wilfully, and unlawfully exporting from the United States to Haiti arms, ammunition and implements of war, designated by the United States Munitions List, 22 C.F.R. § 121.01, Category VIII (a), without having obtained an export license or written approval from the United States Department of State so to do;

The second count charged that Etheridge, D'Orsay and Spinning wilfully and unlawfully on September 5, 1964, did export from the United States an article within the category designated by the United States Munitions List, 22 C.F.R. § 121.01, Category VIII (a), to wit, a T-28 aircraft, Registration No. N9688C, without having obtained a license or written approval for the exportation thereof from the Department of State; and the third count charged Etheridge, D'Orsay and Smith with a like unlawful exportation on September 13, 1964, of a T-28 aircraft, Registration No. N3336G.

Each of them was found guilty on Count One. Etheridge, D'Orsay and Spinning were found guilty on Count Two, and Etheridge, D'Orsay and Smith were found guilty on Count Three. Sentences were imposed and they have appealed.

About the middle of August, 1964, Etheridge met Fred Rhea, an FAA-licensed aircraft mechanic and inspector, and discussed with him a deal Etheridge had with the Government of Haiti to sell to it 20 T-28 aircraft for $10,000 each. Etheridge told Rhea no licensing would be required, because the aircraft would not be flown in the United States. He asked Rhea if he could do the mechanical and inspection work required to make the aircraft airworthy. About two weeks thereafter, Rhea introduced D'Orsay, an aircraft broker, to Etheridge. Etheridge told D'Orsay about the deal he had with the Government of Haiti for the sale of 20 T-28 aircraft for $10,000 each, delivered in Haiti, and asked D'Orsay if he could locate aircraft that could be purchased to fill the order. D'Orsay answered in the affirmative. About September 1, 1964, D'Orsay told Rhea he had located two T-28 aircraft in Naples, Florida. Thereafter, D'Orsay purchased both aircraft for $4,000 from one Hill, and Rhea agreed to inspect the aircraft and put them in airworthy condition. D'Orsay told Rhea the aircraft were going to Haiti and that he would receive $10,000 for each of them. One of them, which bore Registration No. N9688C, was flown from Naples to Opa-Locka Airport, located west of North Miami Beach, Florida. Such aircraft was equipped with an auxiliary gas tank to increase its flight range without refueling, and on about September 6, 1964, it was flown by Spinning from Opa-Locka Airport to Haiti. Later, D'Orsay told Rhea the Haitian Consul had the money to pay for the aircraft, and a few hours thereafter D'Orsay told Rhea he had been paid for the aircraft.

About September 11, 1964, one Armstrong flew a T-28 aircraft from Sarasota, Florida, to Opa-Locka Airport, where it was purchased by D'Orsay for $4,500. It bore Registration No. N3336G. An auxiliary gas tank was installed on it and on September 14, 1964, Smith flew the aircraft to Portau-Prince, Haiti, and there saw the T-28 aircraft which had been flown to Haiti by Spinner. On his return trip from Haiti, Smith used the alias, "Robert Walker."

The investigation of the offenses charged in the indictment was carried on by Customs Agents Stanley Schachter and Wallace Shanley. About three or four days after Smith left for Haiti with T-28 N3336G, Schachter and Shanley interviewed Rhea, who was working on the other aircraft purchased from Hill. At the end of the interview Shanley told Rhea to continue working on the aircraft and notify Shanley when it was to leave.

No license or permit was issued by the Department of State for the export of either aircraft from the United States to Haiti.

The purchase price of $10,000 for each plane delivered was to be collected by D'Orsay, and he was to pay $2,000 thereof to Etheridge.

"T-28" is a designation adapted and used by the United States to identify a series of aircraft manufactured by the North American Aviation Company for the United States between the years 1948 and 1953, to be used by the military forces.

The two planes herein involved were designated as T-28A and were designed for use as military trainers. The T-28As were equipped so the trainee would learn to sight and fire machine guns and release and deliver on target, bombs and rockets from the plane. They were equipped with the structures, including shelving, brackets, gunsight systems and wiring therefor of a fighter aircraft. They can readily be made operational as a trainer or fighter plane and are usable for attack missions by the military. They can carry 100 pound bombs and 50 caliber machine guns.

Much of the structures needed by the T-28 As for use as military trainers and for making them operational as fighter planes were on the two aircraft here involved.

Evidence of facts and circumstances introduced at the trial afforded adequate support for a finding by the jury that each of the defendants knew it was unlawful to export from the United States to Haiti the aircraft which Spinner and Smith flew from Opa-Locka to Haiti.

After the major portion of the Government's evidence had been introduced, it developed that Etheridge occupied a room in the Miami Airways Hotel on the afternoon of September 24, 1964; that before Etheridge arrived, Schachter arranged with the hotel management to monitor telephone conversations over the telephone in Etheridge's room, and also concealed a microphone in Etheridge's room, by which he could hear and tape-record conversations in Etheridge's room, in a room across the hall occupied by Schachter; and that on the afternoon of September 24, 1964, while Etheridge occupied his room at the hotel, Schachter monitored two outgoing telephone calls between Etheridge and a third party, and also heard and made a tape recording of a conversation between one Leon Cruger and Etheridge in the latter's room. Prior to the trial below, Schachter erased the recording on the tape.

When it was developed on the cross-examination of Schachter that he had monitored telephone conversations between Etheridge and a third party and listened to and tape-recorded a conversation between Etheridge and Leon Cruger, transmitted by the concealed microphone in Etheridge's room, the trial judge interrupted the trial for the purpose of determining whether the evidence secured, either by the monitored telephone conversations or the conversation transmitted by the microphone, or evidence obtained through leads from such conversations, had been introduced at the trial. The trial court conducted a full and exhaustive inquiry and at the beginning held that since the unlawful conduct of the Government's agents had been admitted, the burden was on the Government to prove that none of the evidence that had been introduced was derived from or tainted by the agents' unlawful conduct.

The court properly gave each defendant an opportunity to establish that the Customs Agents, either by such monitoring of telephone conversations or by the conversation with Cruger transmitted by the microphone, secured evidence introduced against him at the trial, or secured leads to evidence introduced against him at the trial.¹

Both Schachter and Shanley were cross-examined by counsel ...