554 F.2d 665 (5th Cir. 1977), 76-1737, United States v. Archbold-Newball

Docket Nº:76-1737.
Citation:554 F.2d 665
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Otto ARCHBOLD-NEWBALL, a/k/a Otto Archibald, a/k/a
Case Date:June 22, 1977
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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554 F.2d 665 (5th Cir. 1977)

UNITED STATES of America, Plaintiff-Appellee,

v.

Otto ARCHBOLD-NEWBALL, a/k/a Otto Archibald, a/k/a "Otto"

Alberto Ramirez-Betancourt, a/k/a Alberto Bravo,

and Adolfo Gomez-Giraldo, a/k/a Adolfo

Ramirez, a/k/a Adolfo Gomez,

Defendants-Appellants.

No. 76-1737.

United States Court of Appeals, Fifth Circuit

June 22, 1977

Rehearing and Rehearing En Banc Denied Sept. 7, 1977.

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[Copyrighted Material Omitted]

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Sky E. Smith, Miami, Fla. (Court-appointed), for Archbold.

Robert L. Moore, Miami, Fla., for Ramirez-Betancourt.

William P. Cagney, III, Miami, Fla., for Gomez-Giraldo.

Robert W. Rust, U.S. Atty., Miami, Fla., Ronald W. Rose, U.S. Dept. of Justice, Los Angeles, Cal., Marty Steinberg, Dept. of Justice, Miami, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before GOLDBERG and HILL, Circuit Judges, and KERR, [*] District Judge.

JAMES C. HILL, Circuit Judge:

This tale involves international drug smuggling surreptitious police tactics, high finance and an ocean going rendezvous ingredients which would undoubtedly make a successful modern day melodrama. The sub-plot of the story, with which we are principally concerned, reveals a continuing effort by the actors to avoid the consequences of flouting the criminal laws of this country. The well-staffed cadre of conspirators responsible for this web of lawlessness are here represented by only three of their number. 1

The appellants, Otto Archbold-Newball ("Archbold"), Alberto Ramirez-Betancourt

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("Ramirez") and Adolfo Gomez-Giraldo ("Gomez") were convicted of conspiring to import and to possess cocaine and marijuana with the intent to distribute them. (Count I). They were also convicted of aiding and abetting the importation of cocaine and marijuana into the United States on or about June 23, 1974 (Count II). The case was tried and the convictions were obtained before a jury in the United States District Court for the Southern District of Florida. The court sentenced each appellant to consecutive ten year terms of imprisonment on both Count I and Count II to be followed by consecutive parole terms of three years.

I. The Facts.

The events leading to this appeal are intriguing and, at times, incredible. Before we unravel the bizarre script of this unrealistic but true chronicle of events, we must divide the rendition into two portions, representing the two phases of the conspiracy. The first portion involved members of a drug smuggling ring headed up by one Richard Cravero ("Ricky"). In that portion of the conspiracy, a government informant, William Orr, 2 led federal agents to a house in which Cravero and three of his co-conspirators, Chandler, Cook and Willits, were arrested with various drugs in their possession.

The second portion of the conspiracy began on November 4, 1974, when a Drug Enforcement Administration ("DEA") agent, Jack Short, and another agent arrested one William Andries on an outstanding warrant from New York in an unrelated case. Andries agreed to cooperate with them after he was promised that his cooperation would be made known to appropriate judicial authorities. Andries began to tell the agents about the narcotics operation which he, Cravero and Chandler had operated. Using telephone numbers of suspected Colombian drug smugglers furnished by the government agents, Andries called appellant Archbold, posing as a buyer of narcotics. Andries intended to introduce Short into the drug operation as a prospective buyer. Thereafter, agent Short traveled with Andries and Andries' girlfriend 3 to Martinique on November 15, 1974, where Short had a series of conversations and meetings with appellants. Appellants are challenging, among other things, the admissibility at their trial of various statements which they made to Short while he was in Martinique. With this brief introduction and overview in mind, we proceed with a more detailed explanation of both portions of the conspiracy.

A. The Voyage of the "Yankee Clipper."

On May 2, 1974, William Orr went to Cravero's residence to discuss certain debts which Orr owed but was unable to pay. After explaining the purpose of his visit to Rose Lauro, an unindicted co-conspirator who was in Cravero's house at the time, Orr arranged a meeting with Cravero. When they met later that night, Cravero told Orr that he needed a boat and asked Orr to obtain one. Cravero later told Orr that he needed the boat so that he could go to the Bahamas that weekend to pick up narcotics. Orr was to be paid $10,000 for making the trip with Cravero. Orr subsequently rented the boat "Yankee Clipper" for $1,000. In the meantime, Eugene Cella, another co-conspirator acting as a nominee owner for Cravero, had bought a forty-foot diesel powered boat, the "Tempest XI" for $42,000. Although the Yankee Clipper was gasoline-powered, Cravero instructed Orr to obtain 50 gallons of diesel fuel in canisters for "another boat." On June 22 Cravero

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and Orr left for the Bahamas on the Yankee Clipper. Cravero told Orr that they would rendezvous with a Colombian boat which would be carrying 5,000 pounds of marijuana, and that they would pick up a suitcase of cocaine and as much marijuana as their boat would hold.

On the way to the Bahamas, Cravero repeatedly used the radio in fruitless efforts to contact "Ronnie" (Chandler), "Toad" (Miller) and "Otto" (Archbold) to direct their boat to switch from "Position 2" (Orange Cay) to "Position 1" (South Riding Rock). After reaching South Riding Rock in the early morning hours of June 23, Cravero used a green signal light in a further unsuccessful attempt to contact the other boat. At that point, Cravero was unaware that Chandler and the others had already used the same signal to make contact with the Colombians and Archbold.

After their unsuccessful attempt to locate the Colombian boat near South Riding Rock, Cravero and Orr went to Bimini, where Cravero telephoned Florida to find out that Chandler had already picked up the cocaine and marijuana using the forty-foot boat. 4 Cravero told Orr what had occurred, and stated that because of this Orr would not receive the full $10,000, promising instead that he would get several thousand dollars, an ounce of cocaine and several pounds of marijuana. Cravero told him that he had paid $100,000 in advance to "the Colombians" but would receive cocaine worth much more than that because they trusted him based on past dealings. The Yankee Clipper docked in Florida late on June 23 and, before they parted, Cravero told Orr to contact him in two or three weeks regarding payment. 5

B. The Burning of the "Tempest XI."

In the early morning hours of July 2, the Tempest XI was discovered aground and on fire several miles south of Jupiter, Florida. In the debris investigating officers found several fuel containers and the remnants of a large amount of marijuana. The officers also found approximately 3,000 pounds of marijuana secreted on a nearby island. At about the same time, on July 2, a taxi driver picked up Cravero and two companions near the burned boat. The taxi driver testified that they took a circuitous route to Cravero's house, where he dropped Cravero and was paid with soggy money. The destruction of the Tempest XI had been carried out by Cravero himself.

One of the government's witnesses before the district court, Bobby E. Miller ("Toad") corroborated the testimony of several other witnesses and supplied the background to the Cravero drug transactions. After stating that he had worked in the narcotics business with Cravero from April, 1973, until November, 1974, Miller explained what had happened on the Tempest XI while Orr and Cravero made their fruitless trip and returned to Florida. Miller explained that Cravero had asked his help in May, 1974, in receiving an expected narcotics shipment from Colombia. Miller assisted Cravero in locating a house in Jupiter, Florida to unload the marijuana for eventual distribution to New Jersey and New York. In addition, Miller inspected the Tempest XI in June, 1974, to determine if Cravero should buy it to haul eight thousand to nine thousand pounds of marijuana.

Miller also testified in detail about what happened during the rendezvous near Bimini. Although Chandler and the others picked up twenty-eight kilos of cocaine and five to seven thousand pounds of marijuana when they made the transaction with the Colombians, Chandler gave Archbold only $10,000 in cash at that time. Chandler and his accomplices then took the boat to the house in Jupiter, Florida where they left

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the marijuana on the boat and drove back to Miami with the cocaine. They were to give the cocaine to a man named Norm at a designated meeting place, but Miller testified that the meeting never occurred. Miller stated that he later talked to Cravero in early July and found that Cravero had had to burn the Tempest XI and hide the marijuana nearby. 6 Miller testified further that Cravero told him in late July that Chandler's arrest in New Jersey had caused him to lose all of the cocaine. 7

C. Meeting at the Ranch House Restaurant.

About three weeks after the Yankee Clipper trip, Cravero contacted Orr and arranged a meeting at the Ranch House Restaurant. Orr met with Cravero, Willits, and Chandler at about 7:00 p. m. on the evening of July 14. Cravero said that he had intentionally burned his own boat near Palm Beach, after it ran aground, and that he had lost all the marijuana. Chandler was angry at this loss but Cravero assured him that the loss did not matter because he had gotten the suitcase full of cocaine off the boat before the fire. At this meeting, Cravero gave Orr $1,000 and promised more in the future, but said there was too much "heat" to deliver the promised narcotics to Orr. Acting on information supplied by Orr, federal...

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