United States v. Lill

• Decision Date: 15 August 1980
• Docket Number: Crim. A. No. 79-20045,79-20056.
• Citation: 511 F. Supp. 50
• Court: U.S. District Court — Southern District of West Virginia
• Parties: UNITED STATES of America v. Jerome Otto LILL, Mark Douglas Chadwick, Shahbaz Shane Zarintash, Marshall Mechanik, Steven Henry Riddle.

511 F. Supp. 50

UNITED STATES of America v. Jerome Otto LILL, Mark Douglas Chadwick, Shahbaz Shane Zarintash, Marshall Mechanik, Steven Henry Riddle.

Crim. A. Nos. 79-20045, 79-20056.

United States District Court, S. D. West Virginia, Charleston Division.

August 15, 1980.

Robert B. King, U. S. Atty., Rebecca A. Betts, J. Timothy DiPiero, Asst. U. S. Attys., Charleston, W. Va., for plaintiff.

Richard G. Chosid, Bloomfield Hills, Mich., for Lill.

W. Dale Greene, Charleston, W. Va., for Chadwick.

Michael B. Pollack, New York, for Zarintash.

D. J. Esposito, Richmond, Va., Alan Silber, Newark, N.J., for Mechanik.

Edwin F. Kagin, Jr., Louisville, Ky., for Riddle.

MEMORANDUM ORDER

COPENHAVER, District Judge.

This matter is before the court on the defendants' motion to dismiss by virtue of a violation of Rule 6(d) of the Federal Rules of Criminal Procedure in that two government agents appeared simultaneously and testified interchangeably as witnesses before the grand jury returning the second of two indictments in this case. This issue was reserved from prior rulings by the court.

The procedural history of defendants' motion is as follows: The first of two indictments in this case was returned on June 14, 1979. In his omnibus motion filed on July 6, 1979, defendant Zarintash, asserting the possibility of a violation of Rule 6(d), sought a list of all persons appearing before the grand jury. All defendants thereafter filed motions adopting the various pretrial motions filed by each defendant. A second or superceding indictment was returned on August 10, 1979. Defendants then moved to have all pre-trial motions made applicable to the August 10th indictment. By order entered January 4, 1980, Judge Dennis R. Knapp denied all pre-trial motions which had not been previously ruled upon. On several occasions prior to trial defendants unsuccessfully sought disclosure of the transcripts of the grand jury testimony in connection with various pre-trial motions.

Trial of seven of the twelve named defendants commenced under the superceding indictment on February 19, 1980. On February 28, 1980, defendants received a partial transcript of the grand jury testimony of Drug Enforcement Administration Agent Jerry Rinehart pursuant to 18 U.S.C. § 3500 which revealed that Agent Rinehart testified before the grand jury simultaneously with DEA Agent Randolph James just prior to the return of the superceding indictment. The defendants thereupon moved for dismissal of the indictment on the basis of a violation of Rule 6(d). By order entered on March 14, 1980, defendants' motion to dismiss and their alternative motion to stay the trial pending appeal was denied by Judge Knapp. While the trial continued, defendants filed a Notice of Appeal and petitioned Circuit Judge James M. Sprouse on March 19, 1980, for a stay pending appeal. The stay was denied by order entered on March 25, 1980. On April 10, 1980, a panel of the United States Court of Appeals for the Fourth Circuit, consisting of Circuit Judges Hall, Phillips and Sprouse, denied defendants' petition for a writ of mandamus and for a writ of prohibition.

Thereafter, Judge Knapp was unexpectedly hospitalized. On April 28, 1980, he directed that this action be transferred to the docket of the undersigned judge. On May 22, 1980, defendants moved for rehearing of their motion to dismiss the indictment on the ground of unauthorized appearances before the grand jury. The court took that motion under advisement while the trial continued in progress.

When the trial concluded July 3, 1980, two of the seven defendants on trial were acquitted. Of the remaining five, named in the caption above, the jury was unable to reach a verdict as to Mark Chadwick. Jerome Lill was found guilty on counts one, two and four, Marshall Mechanik was found guilty on counts one and ten, Steven Riddle was found guilty on count one, and Shahbaz Zarintash was found guilty on count one.

I.

The event giving rise to the two indictments and subsequent jury trial in this criminal action was the crash landing of a DC-6 aircraft laden with some ten tons of marijuana at the Kanawha County Airport, Charleston, West Virginia, at 12:53 a. m., on June 6, 1979. On June 12, 1979, a federal grand jury convened to investigate the crash, and on June 14, 1980, after having heard approximately thirty witnesses, the first of two indictments was returned (No. 79-20045 CH).¹ The June 14th indictment consisted of one conspiracy count and seven substantive counts and named nine defendants.²

On July 31, August 2, 9 and 10, the same grand jury received further testimony regarding the June 6, 1979, DC-6 crash. On August 10, 1979, the grand jury returned a second, superceding indictment consisting of one conspiracy count and eleven substantive counts and adding three defendants (No. 79-20056).³ The conspiracy count in the August 10th indictment was amended and expanded as set forth, infra, at 59-60.⁴

As noted, the trial of seven of the twelve defendants named in the August 10th indictment commenced on February 19, 1980.⁵ On February 28, 1980, Agent Rinehart testified on behalf of the government, at which time the government furnished defendants with a portion of the transcript of Agent Rinehart's grand jury testimony as § 3500 material. The transcript disclosed that on August 10, 1979, Agent Rinehart was placed under oath simultaneously with fellow-DEA Agent James. The agents were sworn immediately prior to the reading of portions of the proposed superceding indictment to the grand jury by Assistant United States Attorney Hoffman. Questions were then propounded to Agents Rinehart and James by United States Attorney King, Assistant United States Attorneys Hoffman and DiPiero, and by the grand jurors.

More specifically, the agents' joint testimony commenced with Agent Rinehart who testified regarding changes made in the first eight paragraphs of the conspiracy count in the proposed superceding indictment. Agent James interjected once at the conclusion of this phase of the agents' joint testimony in response to a juror's question directed to Agent Rinehart regarding the flight experience of defendants (and pilots) Anderson and Seesing:

JUROR: You don't know how many flight hours or anything like that?

MR. RINEHART: No.

MR. JAMES: The way you would determine their hours is from their last medical. I think David Seesing was the pilot who probably had the best credentials for flying. He had ratings in addition to what Anderson had.

I believe his hours of flight time were quite a bit more than Anderson's. I would have to check the records on that to make sure.

But I think his records outweighed Anderson's, or his credentials.

MR. HOFFMAN: Agent Rinehart, is there anything else you would like to clear up before we go into the overt acts?

MR. RINEHART: Okay.

MR. HOFFMAN: Let's go through the overt acts beginning with paragraph 9. The overt acts will show how it was part of the conspiracy, the charges in paragraphs 1 through 8.

(Tr. 39).

Thereafter Agents Rinehart and James generally alternated their testimony with respect to each of the overt acts alleged in paragraph nine of the proposed superceding indictment. On several occasions, Assistant United States Attorney Hoffman interjected to refer the jurors to the substantive count in the indictment which corresponded to the testimony they were about to receive from Agent Rinehart or James regarding an overt act. The following excerpt is representative of the nature of the remainder of the Rinehart/James joint testimony:

MR. HOFFMAN: I believe, Agent Rinehart, that an analysis of the telephone tolls of the Sanderson number in Daytona Beach reveals numerous calls by and between various of the defendants charged in the indictment, is that correct?

MR. RINEHART: That's correct. We have calls from the Sanderson number, where Kook and Powers reside, to several of the defendants alleged in the indictment.

MR. HOFFMAN: Go ahead with (c).

MR. JAMES: "On or about the 20th day of April, 1979, defendant Gregory Louis McCafferty, using the name George T. Markos, rented a Ryder rental truck in Cleveland, Ohio."

As you are aware, I traveled to Cleveland, interviewed people at the Ryder Truck Rental Company's district office on Brook Park Road in Cleveland, and, in reviewing their records for trucks rented to a George T. Markos, we determined that a George T. Markos had rented trucks, or a truck, a Ryder truck, from them on April 20, 1979.

There was a rental agreement in file reflecting the rental of a truck on that date. An employee of that company who rented the truck to Mr. Markos identified a photograph which was presented in what we call a photo spread, a series of photos, identified a photo of Gregory McCafferty as being the individual who had come in and rented the truck using the name George Markos.

MR. RINEHART: If you will notice from that overt act, then you will have a time period of April 23 through April 28 where there are several telephone calls made shortly after the rental of that truck.

Overt act (e) reads, "On or about the 23rd day of April, 1979, a phone call was made from Fern Creek, Kentucky, to Daytona Beach, Florida."

MR. JAMES: There is a second rental of a truck in overt act (d) which I will cover before we get to the phone calls ....

(Tr. 44-46). The bulk of their testimony found Agent James relating information he had obtained respecting Ryder truck rentals and travel, as well as James Chadwick's alleged involvement, while Agent Rinehart undertook to weave this and other information into the network of telephone calls being summarized for the grand jury by Rinehart. The complete transcript of the grand jury proceedings at which Agents Rinehart and James were present jointly, apart from the reading of the indictment by the Assistant United States Attorney, is some sixty-two pages in length.

II.

Rule 6(d) of the Federal Rules of Criminal Procedure delineates who may be...