United States v. Milisci, 71-2577.

• Decision Date: 18 December 1972
• Docket Number: No. 71-2577.,71-2577.
• Citation: 465 F.2d 700
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Peter John MILISCI et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

465 F.2d 700 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Peter John MILISCI et al., Defendants-Appellants.

No. 71-2577.

United States Court of Appeals, Fifth Circuit.

August 17, 1972.

Rehearings Denied September 7, October 18, 1972.

Certiorari Denied December 18, 1972.

Arthur Massey, Miami, Fla., Albert Lehrer, Washington, D. C., for Milisci.

Joel Hirschhorn, Miami, Fla. (Court appointed), for Corbett and Brinson.

Edward C. Sawyer, Coconut Grove, Fla., for Beauchamp.

Philip J. Mandina, Miami, Fla., for Kline.

Robert W. Rust, U. S. Atty., Harold F. Keefe, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Before TUTTLE, MORGAN and RONEY, Circuit Judges.

Certiorari Denied December 18, 1972. See 93 S.Ct. 684.

TUTTLE, Circuit Judge:

The defendants in this case were convicted of a conspiracy to import large amounts of marijuana into the United States in violation of 21 U.S.C.A. § 176a. Six of the original seven defendants have appealed their conviction and sentences. The remaining defendant, one Rosentrouch, originally charged as a conspirator, entered a plea of guilty to a lesser offense and his indictment was dismissed. He was one of the principal witnesses at the trial of the remaining six.

Nowhere in the briefs filed by the appellants nor in the government's briefs is there a clear statement of the facts which were brought out during the trial of the case. In view of the fact that all of the defendants contended that there was a failure of proof by the government of the facts essential to establish a conspiracy to the satisfaction of the jury beyond a reasonable doubt, the appellants' briefs were deficient in that they did not undertake to state the facts actually proved as against themselves in the light most favorable to the government. Nor, in turn, did the government, in its very abbreviated brief, undertake to list precisely, the evidence in this 600 page record which, under its theory of the case, precisely pointed to the involvement of each of the six individuals. This has made it necessary for the court to read carefully every page of the transcript of the evidence in the case.

Having carefully read the testimony of all the witnesses and having considered all of the motions for exclusion of testimony and the rulings of the trial court, we state briefly the facts with respect to each group of defendants.

On or about February 11, 1971, the alleged date of the commencement of the conspiracy, Peter John Milisci and Royce Brinson met with special agent Rogue of the United States Bureau of Narcotics, not knowing that Rogue was other than the owner of a boat which they wished to engage. At this meeting Brinson and Milisci told Rogue that they wanted to charter a boat capable of carrying approximately one and a half tons of marijuana from Jamaica to the United States. As a result of this meeting, they did, indeed, charter a motor vessel—the Cayman Pilot—which was berthed at Grand Cayman Island, for the purpose of transporting the drug. It would be necessary for them to fly to Grand Cayman Island in order to pick up the vessel, a fishing boat of some 52 feet in length.

On February 13, 1971, Tom Corbett, Aubrey Wayne Beauchamp and Paul Wescott Kline met with Rogue at Miami International Airport and flew to Grand Cayman Island. Brinson flew over separately. The record does not disclose that the funds for this flight were furnished from government sources. However, it is clear that Rogue had arranged for them to get in touch with a friend of his named Bethel, known as a "cooperating individual", who was not paid for his services by the government but who was furnished with the funds necessary for him to acquire the motor vessel from its owner for the proposed trip. The group stayed with Bethel during the evening and night of February 13th and on February 14th, the group, excluding Brinson, boarded the motor vessel at Grand Cayman Island and proceeded to Jamaica. They expected Brinson to be in Jamaica at their arrival.

Evidence that could be believed by the jury was to the effect that Bethel, although considered as the captain, appeared not to be familiar with the waters in the vicinity of Jamaica towards which the group was headed, but that Beauchamp produced charts covering the area of the trip and that he and Bethel poured over the charts and charted the course to the vicinity of a marked spot at Jamaica. There is ample evidence that during several conversations while aboard the vessel, Corbett, Beauchamp and Kline all discussed the objective of the trip and each of them stated some reason as to why he was involved in this kind of a scheme. Corbett was apparently sick during much of the trip and was not as much in evidence as the other members of the party. However, there was testimony that he discussed the project on several different occasions. Also, there was testimony that he was present at an apartment the night before they flew to the Islands together with Kline and Brinson and Milisci who "were talking and giving me Rosentrouch the details on the boat, and they said that the boat was docked in Grand Cayman Island, and they would have to fly—that whoever was going on the boat was going to fly there and proceed from Grand Cayman Islands to Jamaica".

In brief, our reading of the record makes it plain that there was ample evidence from which the jury could conclude that beginning on February 11th a conspiracy existed among all of the six named appellants substantially as charged in the indictment. In order not to leave the story incomplete we add the following: The Cayman Pilot attempted to make contact at night with the ground party at Jamaica, but the crew were unable to raise any one by walkie talkie instruments. The vessel ran aground, was refloated, and limped back to Grand Cayman Island. The government, through Rogue and Bethel, paid the owner of the boat $2000 for charter hire and some $600 for repairs. The conspirators flew home without any contraband.

Although what we have heretofore said makes clear that we have concluded that there was sufficient evidence to establish the existence of the conspiracy, and we also state that there was ample evidence to prove several of the alleged overt acts, the appellants all complain here, as they did in the trial court, that testimony received from Rosentrouch included evidence concerning efforts made by Rosentrouch and Milisci to set up the trip to Jamaica some weeks before the alleged commencement of this conspiracy on February 11th. Although the trial court ruled out testimony by government agent Prevette, relating to a good many transactions and discussions between Rosentrouch, Rogue and Milisci that occurred in connection with an abortive effort to complete the trip earlier, the trial court, properly we think, permitted to stand substantial evidence relating to the initial effort by Rosentrouch to set up a plan involving the use of a boat and its essential crew necessary to carry out the illegal importation of marijuana into the United States. The record discloses that the first boat obtained as a result of the payment by Rosentrouch of the sum of $3,000 to Milisci ran into difficulties and the trip was never completed. However, Rosentrouch and Milisci pursued the matter with Rogue, the undercover agent, who then made the final arrangements to obtain the Cayman Pilot from Bethel on February 14th, the boat on which the alleged conspirators did actually embark and proceed to Jamaica.

Appellants strongly urge that the aborted effort that occurred prior to February 11th was an entirely different conspiracy, and any evidence relating to it was immaterial and irrelevant to the conspiracy charged and, of course, was highly prejudicial. Undoubtedly it was prejudicial, but also, undoubtedly, it was relevant for the government to show the efforts which Rosentrouch and Milisci, the original conspirators, where engaging in in trying to work up a final group which could effectuate their plan. The fact that the conspiracy involving all persons who were finally tried, finally brought together all of them on February 11th or 12th, does not mean that it is improper for the government to prove the steps that had to be taken by some of the conspirators in bringing the final group together to enter into the conspiracy "on or about February 11th." We find no error in the admission of evidence relating to the acts that occurred prior to that date.

We do not place this on the basis that the principle that when the terminology "on or about" is used the court may permit proof of occurrences within as much as "several weeks" of the date stated, cf. Kokotan v. United States, 10 Cir., 1969, 408 F.2d 1134, and United States v. Antonelli, 1st Cir., 1971, 439 F.2d 1068, but rather on the fact that the existence of a conspiracy on or about February 11th may be proved by showing the actions of the person who later perfected the conspiracy leading up to the date on which the conspiracy was actually formed. We think it...