U.S. v. Bolts

• Decision Date: 29 August 1977
• Docket Number: No. 76-4253,76-4253
• Citation: 558 F.2d 316
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Lidge BOLTS and Joe Dee Hicks, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 316

558 F.2d 316

UNITED STATES of America, Plaintiff-Appellee, v. Charles Lidge BOLTS and Joe Dee Hicks, Defendants-Appellants.

No. 76-4253.

United States Court of Appeals,

Fifth Circuit.

Aug. 29, 1977.

John A. Brady (Court-appointed), Fort Worth, Tex., for Charles Lidge bolts.

Joe Dee Hicks, pro se.

David K. Meyercord (Court-appointed), Dallas, Tex., for Joe Dee Hicks.

Michael P. Carnes, U. S. Atty., Judith A. Shepherd, H. Jay Ethington, Asst. U. S. Attys., Dallas, Tex., John W. Sweeney, Jr., Asst. U. S. Atty., Fort Worth, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before THORNBERRY, AINSWORTH and RONEY, Circuit Judges.

AINSWORTH, Circuit Judge:

This criminal case involves a conspiracy, of which appellant Joe Dee Hicks was the alleged mastermind, to smuggle thousands of dollars worth of heroin and cocaine into the United States from Southeast Asia and from Colombia, South America. Appellants were convicted pursuant to an eleven-count indictment against fifteen persons. Hicks and the other appellant, Charles Lidge Bolts, were tried together before a jury with Hicks' wife, Janet, whose case was severed after the Government had rested. The other persons named in the indictment, with the exception of those not yet apprehended, entered guilty pleas.

Specifically, Hicks was found guilty of conspiring to commit violations of 21 U.S.C. §§ 841(a)(1), 843(b), 952 and 960 (Count I); engaging in a continuing criminal enterprise, in contravention of 21 U.S.C. § 848 (Count II); and causing the importation of heroin and cocaine, in violation of 21 U.S.C. §§ 952(a), 960, and 18 U.S.C. § 2 (Counts III and IV). He received consecutive sentences of fifteen years' imprisonment plus special parole terms of three years for each of Counts I, III and IV, and a concurrent sentence of life imprisonment for Count II. Bolts was convicted of conspiracy (Count I), and received a sentence of fifteen years' imprisonment plus a special parole term of five years.

Both appellants challenge their convictions on a number of separate grounds. Hicks raises the following issues: (1) that his passport was unreasonably seized in violation of the fourth amendment, and thus was improperly admitted into evidence; (2) that the evidence was insufficient to support the conviction on Count II, because all of the elements of a continuing criminal enterprise under 21 U.S.C. § 848 were not proven; (3) that prosecutorial questioning, comments by the trial judge and the admission of certain evidence individually or cumulatively constituted prejudicial error in connection with the jury's consideration of Count II; and (4) that the consecutive sentencing was improper. Bolts contends on his appeal: (1) that the court erred in trying him jointly with Hicks; (2) that the court erred in refusing to issue the particular jury charge proposed by Bolts on accomplice testimony; (3) that the general guilty verdict returned against him was impermissibly vague and indefinite; (4) that the evidence was insufficient to support his conviction; and (5) that he was improperly and prejudicially denied the right to question co-defendant Janet Hicks at trial. We have considered each of these contentions and, for the reasons stated below, we affirm the convictions.

The evidence adduced at trial described a courier system, worldwide in operation, for narcotics trafficking into the United States. Most of the evidence consisted of the testimony of appellants' coconspirators. Witnesses testified that Hicks induced them to become his couriers, that in some instances he went to Southeast Asia or South America with a courier at the outset, paid the latter's travel expenses, provided the drugs to be smuggled into the United States or arranged contacts for the procurement of the narcotics and financed the purchases, arranged for the illegal importation of the heroin and cocaine and, once the narcotics had been smuggled into the country, received either the narcotics or the proceeds therefrom. There was also testimony by couriers as to meetings with Bolts within the United States for the purpose of either delivering narcotics to him or receiving money from him. Sometimes Janet Hicks was the actual source of expense money or a transportation ticket, according to the testimony. While there was also testimony that some of the couriers were hired by another coconspirator, Bandy, rather than by Hicks, there was also evidence that Hicks financed those persons' expenses. In sum, there was ample evidence describing Hicks as the kingpin of the trafficking system. Although Bolts' role was not as exhaustively described at trial, he was also directly implicated by the testimony.

I. Hicks' Appeal

The first issue raised by Hicks involves the seizure of his passport, which was admitted into evidence at trial, over Hicks' motion to suppress. Hicks maintains that the seizure violated the requirement of Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), that a "plain view" discovery be inadvertent. His argument is that the federal Drug Enforcement Administration agents who arrested him had been aware for several months that Hicks had a passport and that it would constitute evidence of a conspiracy. Hicks contends that the agents "anticipate(d) the discovery of the passport and intend(ed) to seize it." Brief for Appellant Hicks at 10.

Hicks was arrested along with his wife in the bedroom of their home, pursuant to a warrant. At the time, Janet Hicks was permitted to call her parents to have them pick up her daughter. After the Hickses had dressed, they were taken into the den to await the arrival of Janet Hicks' parents. While one of the agents was leaning against a bookcase, he saw the passport close by in plain view on an open shelf at approximately his shoulder height. No search was made of the room in order to observe the passport. Immediately grasping the passport's significance, the agent seized it without a warrant for the seizure.

This case does not present a situation where an agent maneuvered himself into a position in order to discover evidence he was seeking. The discovery of the passport, although a foreseeable possibility, was unplanned and inadvertent. What Coolidge proscribes is an anticipated discovery, where the police know in advance the location of the evidence and intend to seize it. Id., 403 U.S. at 470, 91 S.Ct. at 2040. Here the agent had a legitimate reason for being in the room, he came upon the passport inadvertently and it was immediately apparent to him that the passport constituted evidence of the conspiracy. Even if the DEA agents had expected to find the passport and the evidence does not suggest they did that would not have destroyed the necessary inadvertence to satisfy Coolidge. United States v. Worthington, 5 Cir., 1977,544 F.2d 1275, 1280 n.4, [cert. Denied --U.S., 98 S.Ct. 55, --L.Ed.3d --]; see United States v. Cushnie, 5 Cir., 1973, 488 F.2d 81, cert. denied,419 U.S. 968, 95 S.Ct. 233, 42 L.Ed.2d 184 (1974).

Hicks' second argument on appeal is that there was insufficient evidence to support a conviction for engaging in a continuing criminal enterprise. A person engages in a continuing criminal enterprise, as defined in 21 U.S.C. § 848(b)(2), if he violates the Drug Act in a continuing series of such violations

(A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and

(B) from which such person obtains substantial income or resources.

Hicks maintains that the requisite elements of the crime were not present. He asserts that there were not five persons in positions under his supervision, and that he did not obtain substantial income from the narcotics transactions.

We consider first the issue of the number of persons in the enterprise. There was evidence indicating that there were six couriers: Coleman Ray Bandy, Dale Norris, Jerry Lynn Coffman, Mary Norris, Lloyd Pitchford and Jackie Kennedy. Hicks maintains, however that Pitchford and Kennedy worked for Bandy, and that Bandy was not a subordinate of Hicks but was perhaps some sort of business equal. Hicks asserts that there were inconsistencies in the testimony as to whether Bandy was working under him. Our examination of the record leads us to reject appellant's argument. The testimony clearly shows that Hicks was calling the shots with respect to the narcotics smuggling of the couriers. Whether he had personal contact with two of them is immaterial; he was the kingpin of the trafficking activities, and thus occupied an organizational, supervisory or management status with respect to the other persons involved therein. We note, too, although it is unnecessary to our decision, that Janet Hicks also played a role in the courier system, thus bringing the number of persons subordinate to Hicks in the continuing criminal enterprise to at least seven.

Appellant Hicks contends in addition that, for a section 848 violation, the requisite five subordinates must act in concert at the same time. However, the statute contains no such requirement, and we decline to impose it here. United States v. Sperling, 2 Cir., 1974, 506 F.2d 1323, cert. denied, 420 U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 439 (1975), 421 U.S. 949, 95 S.Ct. 1682, 44 L.Ed.2d 103 (1975).

We now consider the other element disputed herein of a section 848 violation: "obtain(ing) substantial income or resources." Hicks asserts that the statute requires the accused to obtain substantial income from the violations. He concedes, however, that the testimony showed substantial amounts of money passing through the hands of the parties to the transactions. Indeed, there was ample evidence that large quantities of heroin and cocaine passed through the trafficking operations and that many thousands of...