U.S. v. Fogelman, 75-4048
| Citation | 586 F.2d 337 |
| Decision Date | 11 October 1978 |
| Docket Number | No. 75-4048,75-4048 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Nina Helene FOGELMAN, Mark Knight Odiorne, Peter Michael Davis, Harold E. Olson and Eldon Thompson, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Alex L. Zipperer, III, W. Lance Smith, Savannah, Ga., for Fogelman & odiorne.
Joseph B. Bergen, Savannah, Ga., for Davis.
Frank R. Madera, Greenvale, N. Y., for Olson.
Thomas R. Taggart, Frederick Kramer, III, Savannah, Ga., for Thompson.
William T. Moore, Jr., U. S. Atty., Augusta, Ga., Lamar C. Walter, Asst. U. S. Atty., S. D. Ga., Savannah, Ga., for plaintiff-appellee.
Appeals from the United States District Court for the Southern District of Georgia.
Before BROWN, Chief Judge, GODBOLD, Circuit Judge, and MEHRTENS *, District Judge.
Harold E. Olson, Peter Michael Davis and Eldon Thompson appeal from a conviction by a jury of importing, conspiracy to import, possessing with intent to distribute, and conspiracy to possess with intent to distribute marihuana, in violation of 21 U.S.C., §§ 952, 960, 812 and 18 U.S.C. § 2. We affirm those convictions.
Since the Court is not unanimous in its disposition, the opinion is constructed in subparts to indicate our action more clearly. All are in agreement in Part I. The Chief Judge and Judge Godbold are in agreement with Part II as to which Judge Mehrtens files a dissent. The Chief Judge and Judge Mehrtens joins in Part III, to which Judge Godbold files a dissent. 1
In preparation for later importation of marihuana, Olson and Odiorne came to the Savannah, Georgia area, seeking to buy waterfront property which would accommodate a boat approximately 42 feet in length. On February 24, 1975, Olson agreed to purchase land on Schley Avenue, fronting on deep water. On March 13, 1975, Olson signed a sales contract for the purchase of a 30-acre farm in Georgia, allegedly for the purpose of storing excess marihuana. Later Davis picked up the keys to the farm property. In mid-March a neighbor who lived next door to the Schley Avenue property met Olson and Davis. Olson introduced Davis as his partner.
On April 13, 1975, Odiorne, Fogelman and Cuschieri brought a boatload of marihuana to the Schley Avenue property in the boat "ODESSA" owned by Davis. The marihuana was taken from the boat and loaded on two pickup trucks by Odiorne, Fogelman, Cuschieri, Davis, Olson, Eldon Thompson, his brother Denver Thompson, and a government informant. After it was loaded, it was transported to Atlanta by Olson, Davis, the Thompsons and the informant.
A few months later, on June 18, 1975, Georgia narcotics agent James T. Hallman met Denver and Eldon Thompson at the Schley Avenue property. Denver stated that his boss owned the property at Schley Avenue and that they were waiting for him.
Because of information obtained through its investigation, the Government believed that the ODESSA would again be coming into the United States with an illegal cargo. Based on multiple charts and the ODESSA's log book found later, the Government was able to show that beginning on June 6, 1975, the ODESSA had traveled from off the coast of Curacao, Netherlands Antilles to Columbia, South America and back through the Caribbean area to the Georgia coast.
On June 20, 1975, at 1:00 P.M. the ODESSA docked at the boat house at Schley Avenue. Three persons were on board: Fogelman, Cuschieri and Odiorne. The informant observed that the entire bottom of the boat was completely full of marijuana and reported this to the federal agents. That day, between 9:00 and 11:00 P.M., the marijuana was taken from the boat by the Thompsons, Odiorne, Fogelman, and the informant, and loaded on to four trucks. The trucks were then driven to the Days Inn Motel in Savannah. Early in the morning of June 21, 1975, two of the trucks were driven from the Days Inn Motel in Savannah to the Motel One in Atlanta, Georgia by the Thompsons.
Government agents observed the unloading of the ODESSA and the loading of the trucks. This surveillance and the informant's reports provided the government, beyond any doubt, with reasonable cause to suspect that the trucks were loaded with marijuana from the ship. And from the loading at Schley Avenue on, through to the Days Inn in Savannah and finally to the Motel One in Atlanta, the trucks were kept under constant observation by various government agents.
At 1:00 A.M. on the twenty-first, agents of Customs, the Drug Enforcement Administration and the State of Georgia boarded the ODESSA and placed Cuschieri under arrest. Customs agents observed marijuana residue all over the vessel, and seized the boat. Cuschieri stated the agents had just missed $5,000,000 worth of "grass."
At 2:00 A.M. an agent examined the contents of the two other trucks not driven by the Thompsons at the Days Inn in Savannah and found bales of marihuana.
At 5:30 P.M. the informant received a call from Olson which was recorded with the informant's consent. Olson indicated surprise that the boat was early. He was then arrested in his hotel room. After obtaining Olson's consent, the arresting officers opened his briefcase, finding money and other documents of evidentiary value.
At 8:30 P.M. as the Thompsons left the Motel One in Atlanta, they turned and waved at one of the surveillance agents. Because of this believed-to-be gesture of recognition, the Customs, state and federal personnel who had followed the two trucks to Atlanta in an attempt to discover where the marijuana would be delivered proceeded to arrest the Thompsons. By the time of the arrest of Eldon and Denver Thompson, the Customs agents had learned of the seizure of the other trucks which revealed marijuana. With this information, a Customs agent seized and opened the two trucks in Atlanta and verified that they contained marijuana.
All the defendants were found guilty on all four counts of the indictment. Olson, Davis and Eldon Thompson appealed.
Olson's primary allegation of error is that his constitutional rights were violated by the admission into evidence of portions of the recorded conversation between himself and the government's confidential informant.
A motion for discovery was filed by Olson's attorney, seeking, among other evidence, the inspection and production of any written or recorded statements or confessions of Olson.
At a hearing the United States Attorney stated to the court that there were some incriminating statements (meaning the tape) that he would use at trial, that had not been produced. The judge stated that Olson's attorney was entitled to see them and that they should be delivered to the judge for inspection in camera. The United States Attorney replied that he had no objection. No formal order, however, requiring delivery of the tape is in the record.
The trial extended from Wednesday, September 10, to Thursday, September 18, 1975. On the first day of the trial, the court asked the government to give the defense a list of witnesses it intended to call. The United States Attorney did so and included the name of the informant, stating that he would testify and that the government had a tape of his conversation with Olson.
One of the defense attorneys then asked the court to instruct the United States Attorney to deliver a copy of the statement and tape of the informant he had just included in the witness list. It is unclear when the defense first learned of the existence of the tape. It is clear, however, that up until that point the government had not complied with the motion for discovery and had not produced it.
On the second day of trial, the court directed the government to allow the defense to listen to the tape.
On Friday, the next day, in chambers, the United States Attorney admitted he had withheld the tape and the identity of the informant because of a threat on the life of the informant, who had been placed in protective custody. The tape was suppressed by the court for use in the case in chief.
During his direct examination, Olson imparted a definite impression that his relationship with the informant was of a superficial nature, wholly unrelated to any marihuana. To contradict this, the court admitted an edited transcript of the tape for impeachment purposes only. Through editing, all references to the other defendants were excluded.
Such impeachment evidence was properly admitted. Even if there was no disclosure of the Olson tape as required by Rule 16 of the Federal Rules of Criminal Procedure, any error was corrected by the trial judge's ruling that the contents of the tape would not be admissible in the government's case in chief.
The language of Judge Ingraham in United States v. James, 5 Cir., 1974, 495 F.2d 434, 436, a case in which the United States Attorney failed to produce a tape recording under a discovery order, is significant in the present case:
The tape contained nothing exculpatory, but the remarks were relevant,...
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