U.S. v. Wilner, s. 561
| Citation | 523 F.2d 68 |
| Decision Date | 10 September 1975 |
| Docket Number | Nos. 561,814,815,s. 561 |
| Parties | UNITED STATES of America, Appellee, v. Robert WILNER et al., Defendants-Appellants. UNITED STATES of America, Appellee, v. Dominic MECCA, Defendant-Appellant. , and 983, Dockets 74-1955, 74-2534, 74-2549, and 74-2607. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Gerald L. Shargel, New York City (LaRossa, Shargel & Fischetti and James M. LaRossa, New York City, of counsel), for appellant Wilner.
E. Thomas Boyle, New York City (William J. Gallagher, and The Legal Aid Society, New York City, of counsel), for appellant Belanger.
Thomas J. O'Brien, New York City, for appellant Vissa.
Samuel Boxer, White Plains, N. Y., for appellant Mecca.
Daniel J. Pykett, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty. S. D. N. Y. and Lawrence S. Feld, Asst. U. S. Atty., of counsel), for appellee.
Before FEINBERG, TIMBERS and VAN GRAAFEILAND, Circuit Judges.
These are appeals from convictions, following separate trials, for conspiracy to distribute and possess with intent to distribute controlled substances and for possession with intent to distribute approximately 500 pounds of marijuana in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B) and 846.
Since a resume of the facts upon which the convictions were based reads somewhat like the scenario of an adventure movie, it may appropriately be begun with the following listing of the cast of characters:
Air Seas Charter, Inc.: a corporation ostensibly formed to conduct chartered fishing excursions in Miami, Florida;
Robert Wilner: president of Air Seas Charter, Inc. and an amateur pilot;
Richard Belanger: secretary of Air Seas Charter, Inc.;
Dominic Mecca: another officer of Air Seas Charter, Inc.;
Robert Vissa: a friend of Mecca and the owner of a sailing sloop located in Maine;
Richard Palmer: airplane pilot, flight instructor and part-time government informer whose case was severed after indictment and who testified as a government witness;
Richard Thurlow: a licensed fishing boat captain and a government witness who was not indicted;
Stephan Smith: a boat mechanic and friend of Thurlow who was acquitted;
James Adams: a dealer and processor of marijuana and hashish at Runaway Bay, Jamaica, and a fugitive from justice at the time of trial Gerald Mitchell: a drug courier, government informer and witness who was not indicted;
Anthony Coviello: a drug courier not arrested at time of trial;
Gary Stephan, Paul Stephan and Nicholas Calabro: alleged conspirators who were acquitted.
In August of 1971, appellant Mecca and Paul Stephan chartered a fishing boat in Miami and smuggled 600 pounds of marijuana into the United States from Montego Bay, Jamaica. Richard Thurlow was the mate on this boat. The trip was financially rewarding.
The following year, Mecca decided to become more directly involved in the "fishing" business. Together with appellants Wilner and Belanger, 1 he incorporated Air Seas Charter, Inc., which purchased several boats, one of which was a 49 foot "Cigarette" ocean racing boat. Thurlow and Smith became employees of Air Seas Charter, Inc.
The cost of these boats, plus other "fishing" equipment, such as an airplane specially equipped with long-range fuel tanks, made another trip to Jamaica financially imperative. Thurlow introduced Belanger to Adams as a possible marijuana supply source, and Wilner, Mecca and Belanger agreed to enter into a profit sharing arrangement with Adams for the importation of this drug.
Wilner recruited Palmer, his flight instructor, and these two, with the help of Belanger and Mecca, searched for and found a deserted island in the Bahamas called Williams Island which contained a landing strip and could be used as a drop spot. Belanger, Mecca and Wilner also visited Adams' processing plant at Runaway Bay where they sampled his wares, and Belanger and Mecca located a suitable landing area in the vicinity where their plane could be loaded without attracting the attention of the authorities.
By March of 1973 all was in readiness, and Wilner and Palmer flew to Runaway Bay, where, with the assistance of Mecca and Belanger, they loaded their plane with approximately 600 pounds of marijuana. They then flew the marijuana to Williams Island and left it stashed under a tarpaulin. Following the plane's return to Miami, Thurlow and Smith left by boat to pick up the waiting cargo.
Unfortunately for them, the cargo was not waiting alone. United States and Bahamian officials, acting on a tip from Palmer, and armed, among other things, with a video tape camera, were also present. Thurlow and Smith were arrested and were subsequently tried and convicted in the Bahamas.
Undaunted by this setback, Belanger and Mecca met with Mitchell to discuss arrangements for another trip. Mitchell was dispatched to Southwest Harbor, Maine, to help Vissa prepare the sloop Good News for a voyage to Jamaica in June 1973, the purpose being to smuggle marijuana into Maine. To help defray the cost of this venture, another flight from Miami to Jamaica was made in May.
On this occasion, Palmer and Vissa flew to Jamaica where they were met by Mecca, and approximately 500 pounds of marijuana were loaded on the plane. Wisely avoiding their "deserted" island, they dropped the marijuana into the ocean near a waiting boat which brought it into Miami. Two automobiles driven by Coviello and Mitchell then transported the drug to the Rye Hilton Hotel in Port Chester, N. Y., where Mecca and Wilner were waiting. It was then taken to Vissa's home where it was weighed and packaged.
Another trip, using the same modus operandi, was made in June 1973. This time, two planes transported the marijuana to a waiting boat. Wilner and Mitchell were in one plane and Palmer and Vissa in the other. Coviello and Gary Stephan apparently operated the boat. Calabro and Mitchell drove the smuggled goods north. Mitchell was stopped en route by a New Jersey State Trooper and arrested upon discovery of the marijuana.
A last trip was made in August 1973. This one involved only Palmer and Mecca and a rented airplane, the association of the defendants apparently having been dissolved.
Appellants Wilner, Belanger and Vissa were tried together before Judge Lasker and a jury in May of 1974. Appellant Mecca, whose case was severed, was tried before the same judge in September of that year. All were convicted on both counts. Because of the separate trials, the appeals herein do not allege the same errors.
The indictment, filed on December 7, 1973, contained two counts, the first alleging a conspiracy to distribute and possess with intent to distribute controlled substances running from August 1, 1971 to the date of indictment and the second alleging a substantive count of possession with intent to distribute approximately 500 pounds of marijuana in May 1973.
At the conclusion of the proof, as outlined above, Judge Lasker concluded that the evidence relating to the August 1971 and August 1973 junkets to Jamaica was insufficient to submit to the jury as part of the conspiracy alleged in the indictment, struck the testimony concerning these junkets, and instructed the jury to disregard it. He also instructed the jury that overt act # 1 relating to the August 1971 incident was stricken from the indictment. The overt act thus stricken simply charged that Mecca and Thurlow both went to Montego Bay, Jamaica, West Indies by boat.
Appellants contend that these acts of the trial judge constituted an amendment of the indictment and were thus improper under Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887). We disagree. In United States v. Colasurdo, 453 F.2d 585 (2d Cir. 1971), Cert. denied, 406 U.S. 917, 92 S.Ct. 1766, 32 L.Ed.2d 116 (1972), we held that the elimination of a portion of the proof offered under a conspiracy count which narrowed rather than broadened the reach of the count was not improper. In so holding, we relied upon Salinger v. United States, 272 U.S. 542, 47 S.Ct. 173, 71 L.Ed. 398 (1926) and a number of cases which followed in its wake.
We are not impressed by appellants' contention that the elimination of this irrelevant testimony weakened their argument, based on Kotteakos v. United States, 328 U.S. 750 (1946), that they were being tried for multiple conspiracies rather than the single one with which they were charged. What the District Court did, in fact, was to eliminate testimony which, as a matter of law, was not relevant to or probative of the single conspiracy charged. Cf. United States v. Cirami, 510 F.2d 69 (2d Cir. 1975). He then permitted the jury to determine the conspiracy issue on the basis of proper and relevant proof.
We do not approve of the procedure followed by the District Court in physically deleting the allegations relating to the August 1971 overt acts. We are informed that this was accomplished by making a photostatic copy of the indictment with the deleted portion covered over. As we pointed out in United States v. Cirami, supra, "The preferable course is to prepare a retyped 'clean' version of the indictment, omitting the language to be disregarded without any indication of its omission". However, since Judge Lasker had already advised the jury that he was physically deleting a portion of the indictment and only 23 words were actually deleted, we see no prejudicial error.
As is often the case in conspiracy trials, the Government did not prove that each defendant was directly involved in all the substantive acts which resulted from the conspiracy. Thus, there is no proof in the instant...
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