U.S. v. Michel
| Decision Date | 01 February 1979 |
| Docket Number | No. 77-5518,77-5518 |
| Citation | 588 F.2d 986 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Lewis Davis MICHEL, Robert Joseph Belmares, John Handy Jones, Daniel Stewart Henshaw and Ted Ray Hines, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Melvyn Carson Bruder, Dallas, Tex., for Michel and Jones.
Gary D. Jackson, Dallas, Tex., for Henshaw and Belmares.
Ted Ray Hines, pro se.
John Handy Jones, pro se.
Michael H. Rodgers, Dallas, Tex., for Hines.
Kenneth J. Mighell, U. S. Atty., Fort Worth, Tex., Judith A. Shepherd, H. Jay Ethington, Asst. U. S. Attys., Dallas, Tex., for plaintiff-appellee.
Appeals from the United States District Court for the Northern District of Texas.
Before GEWIN, RONEY and GEE, Circuit Judges.
Facts
This case arose out of a two-year scheme to import large quantities of marijuana into the United States from the Republic of Mexico. The scheme, more notable for its spectacular failures than for its successes, was at last brought to a halt by various law enforcement agencies following the importation of two plane loads of marijuana into South Texas from Mexico. Count 1 of the 17-count indictment charged a conspiracy among 19 named defendants and others to acquire marijuana in the Republic of Mexico and to transport it to Dallas, Texas, and other areas of the United States in violation of 21 U.S.C. § 963. 1 In count 2, appellant Belmares was charged with the conduct of a continuing criminal enterprise in violation of 21 U.S.C. § 848. 2 Counts 4 and 5 charged Belmares and others with importation of marijuana in violation of 21 U.S.C. §§ 952(a) 3 and 960. 4 Counts 10, 11 and 12 charged appellants Michel, Belmares and others with importation offenses. Count 13 charged an importation offense against Belmares and Jones. In count 14, Jones and another defendant were charged with an additional act of importation.
Appellant Michel was acquitted on counts 11 and 12 and was convicted on counts 1 (conspiracy) and 10 (importation). Belmares was acquitted on counts 11 and 12 and convicted on counts 1 (conspiracy), 2 (continuing criminal enterprise), 4, 5, 10 and 13 (importation). Appellant Jones was acquitted on counts 11 and 12 and convicted on count 1 (conspiracy) and counts 10, 13 and 14 (importation). Appellants Henshaw and Hines were convicted on count 1 (conspiracy). 5
The evidence adduced by the government at trial established the existence of a loosely organized group of people who, during a period of approximately two years, participated in the importation of marijuana from the Republic of Mexico into the United States. Most of the testimony came from witnesses who were actual participants in the purchase, importation, and transportation of the marijuana and who were testifying pursuant to plea bargains or in exchange for immunity from prosecution. In order to provide an evidentiary foundation for our discussion of the claimed errors and to better identify the "cast of thousands," 6 we shall set out the facts in some detail.
The central figure of the group was appellant Robert Belmares. In early 1975 Belmares, who had been engaged in smuggling marijuana from Mexico by backpack, sought to expand and modernize his operation and to increase his profits by flying the marijuana from Mexico into Texas. Belmares and his associate, Ronnie Dyer, joined forces with Robert Potter, who had a connection for the purchase of marijuana, and T. Michael Powell, who was a pilot for their combined venture. Also joining the group during this period was Allan Wilkes, who helped locate a landing site in Texas. In February of 1975, Powell, Belmares, and Potter flew to Mexico in a private airplane to familiarize themselves with the problems to be encountered in flying across the border. Potter characterized this trip as a "recognizance" mission.
In March of 1975, Potter began purchasing marijuana in Oaxaca, Mexico, using money furnished by himself and Belmares. The Mexican "connections," or sources of the marijuana, were Oscar Garcia de Anda and Geronimo Rodriguez. Potter handled the Mexican end of the venture, and Belmares was responsible for the return flight to the United States and for transportation of the load and distribution in the United States. Powell flew the load of marijuana from Oaxaca, but the venture ended in disaster when he landed the plane on a beach in Tampico and damaged the landing gear, stranding the cargo. Belmares engaged Thomas Waldon to replace Powell as pilot and to pick up the beached marijuana, which was returned safely to the United States in April with the help of Belmares and a number of his associates. 7 Belmares and Potter then returned to Mexico with funds to begin a month-long series of marijuana purchases. This marijuana was flown by Waldon in May to Addison, Texas, where Wilkes had arranged for the flight to be met. 8
Between late spring and summer 1975, the same group made additional flights with marijuana. During this time they paid a Mexican official named Luis Garza to provide protection at a landing site in northern Mexico. Belmares became less active in the physical acts of importation but continued to retain a financial interest in the ventures. Belmares and Wilkes had a disagreement concerning some marijuana that vanished in transit; 9 Potter dropped out, but the group continued to use the source introduced to them by Potter at the inception of the plan. Powell continued to fly for the enterprise, and Wilkes was a distribution agent in the United States.
By January 1976, additional people had become involved in Belmares' operation. Appellant John Handy Jones was a pilot for the group and referred to Belmares and Dyer as his partners. Appellant Lewis Davis Michel served as a go-between for Jones and Belmares and performed various services on the ground, including meeting the flights when they landed in the United States. William C. White had been recruited as a pilot, and on one evening in early 1976 he received a call from Michel asking him to meet Jones at Love Field in Dallas. Michel explained that he had planned to meet Jones at their clandestine airstrip near Cleburne but that Jones passed over the landing site in the darkness and was proceeding to Love Field. White went to the airport as requested and met Jones, who announced that he had just flown in a load of marijuana from Mexico. White later watched as Jones and Michel loaded the marijuana into a van, and Michel drove it away. 10
Powell continued to fly for the Belmares organization, but in April 1976, a load which Powell had been scheduled to transport from Mexico several weeks earlier was flown by Waldon instead. The marijuana had been purchased with the aid of Oscar Garcia de Anda and Geronimo Rodriguez, the group's Mexican sources. Waldon was forced by weather conditions to land at Temple, Texas, where he was met by Wilkes and another man. The marijuana was unloaded but was transported only as far as the gate of the airport, where all three men were arrested. In May of 1976, Powell was arrested in Mexico, and Belmares, in his attempt to recruit another pilot, was introduced to Douglas Spitler. At this time Spitler was an employee of Jim Wood and was engaged in a separate operation flying marijuana from Mexico into West Texas and New Mexico for Wood and his partner, McVey, using aircraft supplied by James Malone. Neither Belmares nor White was successful in recruiting Spitler to fly for their organization, but White recruited Robert Cross to accompany Jones to Mexico, where a marijuana purchase was made and loaded on their airplane. Cross flew the load to Lancaster, Texas, and transferred it to a U-Haul truck, but this load was seized after delivery. 11
In the meantime, Belmares succeeded in obtaining an introduction to Jim Wood. Each had something the other needed. Belmares had excellent connections for high-grade marijuana through Oscar Garcia de Anda and Oaxaca but needed money, planes and a pilot. Wood and McVey had all of these but lacked a source of high-grade marijuana. In late spring of 1976, Belmares and Wood agreed to join forces to their mutual benefit. McVey left the expanded operation at this point because he wished to avoid southern Mexico.
Meanwhile, John Handy Jones, in order to secure a protected landing site in the United States, had offered a bribe to the chief of police of Addison, Texas. In return for the money, Jones expected noninterference with landings at the Addison airport and tipoffs in the event of an impending drug bust. The Addison airport was used in May and June, 1976, for several trips in which Jones, Michel, and Wilkes were involved. In fact, however, the Addison police chief had only pretended to accept the offer and was cooperating with other law enforcement agents. In late June 1976, Michel, Jones, and others were arrested at the Addison airport following a flight from Mexico. 12 In July of 1976, Belmares, Mike Lallier and Wilkes arranged for a landing site and ground crew at Horseshoe Bay in Central Texas, and Belmares then went to Mexico to buy marijuana. One load of marijuana was successfully flown to Horseshoe Bay from Tampico, with Wood assisting at the landing site, but later in the month two of Belmares' ground personnel were arrested at Horseshoe Bay with 200 pounds of marijuana. In September of 1976, Lallier flew a load of marijuana from Oaxaca to a landing strip in South Texas for refueling and on to Dallas, where Wood again helped transport the marijuana when the plane landed.
In October 1976, Spitler, under the direction of Wood and Malone, flew 1,300 pounds of marijuana from Oaxaca to the vicinity of Cotulla and Freer in South Texas. Oscar Garcia de Anda and appellant Henshaw met Spliter at the Oaxaca airport; later Henshaw got on Spliter's plane and directed him to a landing strip in Mexico where, after Henshaw deplaned, the marijuana was loaded on...
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