U.S. v. Rice, 76-2477
| Citation | 550 F.2d 1364 |
| Decision Date | 20 April 1977 |
| Docket Number | No. 76-2477,76-2477 |
| Parties | 1 Fed. R. Evid. Serv. 703 UNITED STATES of America, Plaintiff-Appellee, v. Paul RICE, Pedro Alvarez, John Leslie Wells, Jr., and Jerold Massler, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Herman I. Graber, Lynne Stewart, New York City, N. Y., Allen L. Jacobi, Coconut Grove, Fla., for Massler.
Bernard H. Dempsey, Jr., Robert A. Fraser, Tampa, Fla., for Alvarez.
John L. Briggs, U. S. Atty., Jacksonville, Fla., L. Eades Hogue, Special Atty., Tampa, Fla., Milton J. Carp, Dept. of Justice, for plaintiff-appellee.
Appeals from the United States District Court for the Middle District of Florida.
Before JONES, COLEMAN and TJOFLAT, Circuit Judges.
Along with others, Alvarez, Wells, Rice and Massler were charged in a one count indictment with conspiracy to import, possess and distribute marijuana, 21 U.S.C. §§ 841(a)(1), 952(a). A twelve day trial resulted in a guilty verdict. Alvarez received a three year sentence, Wells one year, while Rice and Massler were sentenced to two and one-half years.
We affirm.
The government's case depended, in the main, on the testimony of William Kilgore, an unindicted co-conspirator, in protective custody, who appeared under a grant of "informal" immunity.
Kilgore first met Alvarez in 1968 or 1969. In February, 1972, Alvarez hired Kilgore to guard a cache of marijuana located at "Stash House No. 1" in Odessa, Florida. For three weeks Kilgore was paid to guard the contraband, to weigh it for customers, and collect for it. Alvarez told Kilgore that the marijuana, stored in bales and burlap sacks, came from Colombia, South America.
Later on in February Alvarez took Kilgore to Mike Sarga's "Stash House No. 2", in the same vicinity, where he did similar work.
In March, Kilgore and Alvarez flew to New York. After arrival Kilgore went with Allen Jacobs to Woodstock to guard a stash house located there. Sarga and Massler soon drove up in a van with a boat on top. The boat contained 350 pounds of marijuana. The next day Alvarez directed Kilgore to let Jacobs and Massler have 100 pounds each, on consignment. Later, Alvarez directed Sarga and Kilgore to transfer the remainder of the marijuana to Massler in Manhattan. Kilgore stayed in New York about a week and collected $120,000 from Jacobs and Massler, owed Alvarez for the pot. Kilgore then returned to Tampa and turned the money over to Alvarez.
Around the first of April, Alvarez contacted Kilgore again and asked him if he would like to go to Colombia and guard a return load of marijuana. Kilgore was also to pay the Colombian connection, Pedro and Alberto Davilla. He was to fly down on a DC-3, piloted by Wells and Rice and was to be paid $5000 for his part in the trip. Alvarez drove Kilgore to the Hawaiian Village Motel where Kilgore met Rice and Wells. Rice there stated that Alvarez had paid $10,000 to rent the plane for a prior trip and had then bought the plane for $10,000. Rice and Wells related to Kilgore an account of a prior similar trip to Colombia on which Alvarez had accompanied them. Alvarez had also told Kilgore of the prior trip, saying that the marijuana at "Stash House No. 1" had been obtained at that time.
The next day Kilgore, Rice and Wells flew to a location south of Bogata, Colombia. Once there, the defendants gave the Colombians the money and certain other items and loaded 3500 pounds of marijuana on the plane.
On return to the United States, they landed first at Lakeland, then returned to Zephyrhills. Once they landed, Alvarez and two others arrived in a Winnebago, into which they loaded the marijuana. From there, the party went to a house in Riverview and distributed part of the marijuana.
Subsequently, Alvarez again contacted Kilgore and asked him if he'd like to make a second trip to Colombia. A couple of weeks later, Alvarez approached Kilgore about making another trip to New York to collect money from Massler. Kilgore made this trip around the end of April, 1972, but returned to Tampa without the money. Massler followed a few days later and paid Alvarez in excess of $100,000.
Kilgore's testimony was supported by other items of evidence adduced by the government. Much of the conspiratorial activities had been recorded on film. One of the defendants had taken several hundred photos of the operation. Negatives of these photographs were volunteered to the law enforcement officers by the manager of the photography department at J. C. Penney's, who discovered the contents by chance.
The manager of the Hawaiian Village Motel corroborated Kilgore's account of the stay at that motel, although his testimony did differ in some aspects.
Lastly, one Porter reluctantly testified that Rice discussed with him the possibility of using one of Porter's airplanes for importing marijuana, that Rice leased a Douglas DC-3, and Wells had signed the agreement as a witness. He stated that sometime in April, 1972, he sold the craft to Rice and Wells. Porter once saw Rice and several other individuals unloading several dark, big, square parcels from the plane. He also saw a late night operation in April or May of 1972, in which a DC-3 landed, a vehicle approached the plane, there was activity around the plane, and the vehicle left. Additionally, Porter testified that Rice and Wells made inquiries of him as to how to arrange additional fuel sources for the DC-3.
This array of evidence, accepted by the jury as being true beyond a reasonable doubt, reduces the appellants to a many sided attack on various aspects of the trial.
A. Massler, Alvarez, Wells, and Rice
There was a three and one-half year delay between the close of the alleged criminal activities and the return of the indictment. It is argued that this unconstitutionally prejudiced the defense and that by not holding an evidentiary hearing to determine the cause for the delay the District Court reversibly erred.
The defendants complained generally that due to the delay, possible witnesses were either "unremembered or unavailable", that the delay severely prejudiced the defense, and that it was intended to give the government a tactical advantage over the defendants, that is, to enable the government to procure evidence of subsequent No such later acquired evidence was ever offered against any of the defendants. No list of unavailable witnesses was tendered, nor was there any recitation of any exculpatory testimony thus put beyond the reach of the defense.
criminal acts of some co-defendants to bolster the prosecution of all.
The Supreme Court has held that the applicable statute of limitations is the primary, but not the sole, guarantee against the bringing of overly stale criminal charges; that one seeking to establish impermissible indictment delay under the Due Process Clause must show substantial actual prejudice resulting from the delay or that the delay was an intentional measure designed to gain a tactical advantage for the prosecution. Absent such a showing no Constitutional violation has been inflicted and the indictment need not be dismissed. See United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). The Sixth Amendment right to speedy trial arises only when a defendant becomes an accused, either through arrest, indictment, or information. See United States v. Marion, supra; United States v. Harrington, 5 Cir. 1976, 543 F.2d 1151; United States v. Davis, 5 Cir. 1973, 487 F.2d 112, 116, cert. den., 1974, 415 U.S. 981, 94 S.Ct. 1573, 39 L.Ed.2d 878; United States v. Broadway, 5 Cir. 1973, 477 F.2d 991, 996.
Speculative assertions, such as allegations of lost witnesses, ensuing indigency, failure of memory, and general inability to defend oneself due to the delay, fall short of the Marion standard, United States v. Butts, 5 Cir. 1975, 524 F.2d 975, 977; United States v. McGough, 5 Cir. 1975, 510 F.2d 598, 604; United States v. Broadway, 5 Cir. 1973, 477 F.2d 991.
An evaluation of this appellate record in the light of the foregoing considerations shrinks the complaint about pre-indictment delay to nothing more than a complaint. There was no showing of actual prejudice. The contention fell so far short of Marion standards and our own decisions on the subject that it was without substance. The denial of an evidentiary hearing on the matter was not erroneous.
Various motions for severance were grounded on an expressed desire to call one co-defendant or another as a witness on behalf of the respective movants.
In our previous decisions we have clearly delineated what must be shown to warrant granting a motion to sever under the circumstances present here. The movant must demonstrate:
(1) bona fide need for the testimony;
(2) the substance of the desired testimony;
(3) its exculpatory nature and effect; and
(4) that the designated co-defendant will in fact testify at a separate trial.
United States v. Morrow, 5 Cir. 1976, 537 F.2d 120, 135; United States v. Diez, 5 Cir. 1975, 515 F.2d 892, 903, cert. den. 423 U.S. 1052, 96 S.Ct. 780, 46 L.Ed.2d 641 (1976); United States v. Burke, 5 Cir. 1974, 495 F.2d 1226, 1234; United States v. Martinez, 5 Cir. 1973, 486 F.2d 15, 22; Byrd v. Wainwright, 5 Cir. 1970, 428 F.2d 1017, 1019-1022.
The trial court should
(1) examine the significance of the alleged exculpatory testimony in relation to the defendants' theory of defense;
(2) assess the extent to which the defendant might be prejudiced by the absence of the testimony;
(3) pay close attention to judicial administration and economy; and
(4) give weight to the timeliness of the motion.
Massler moved pretrial for a severance predicated on Rule 14, Fed.R.Crim.P. 1 In the instant case, Pedro Alvarez has stated, and he will so depose if requested, that if called at a separate trial...
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