619 F.2d 1041 (4th Cir. 1980), 79-5025, United States v. Meinster
|Docket Nº:||79-5025, 79-5026.|
|Citation:||619 F.2d 1041|
|Party Name:||UNITED STATES of America, Appellee, v. Robert MEINSTER a/k/a Robbie, Appellant. UNITED STATES of America, Appellee, v. Robert PLATSHORN (a/k/a Bob Auction, a/k/a Bob Knapp, a/k/a Bob Elliott), Appellant.|
|Case Date:||April 18, 1980|
|Court:||United States Courts of Appeals, Court of Appeals for the Fourth Circuit|
Argued Nov. 7, 1979.
Mark E. Kogan, Philadelphia, Pa., (Dennis J. Cogan, Gilbert B. Abramson, Philadelphia, Pa., Frederick D. Anderson, Wilmington, N. C., on brief), for appellants.
Herman E. Gaskins, Jr., Sp. Asst. U. S. Atty., Raleigh, N. C., (George M. Anderson, U. S. Atty., Raleigh, N. C., on brief), for appellee.
Before HALL and MURNAGHAN, Circuit Judges, and PERRY, [*] District Judge.
K. K. HALL, Circuit Judge:
Robert Platshorn and Robert Meinster appeal from convictions under 21 U.S.A. § 952(a), 960(a)(1) and 18 U.S.C. § 2 for aiding and abetting the importation of marijuana. They present numerous claims of error; only two need discussion: (1) Whether appellants are entitled to a new trial because the government allowed its key witness to give false testimony regarding offers of leniency, and (2) Whether the evidence presented was sufficient to sustain a conviction on charges of aiding and abetting. Finding no error in the district court's rulings, we affirm.
The marijuana importing operation was conceived in July, 1977, when Platshorn met at his Florida home with Mark Phillips and George Purvis, Jr., a Fayetteville, North Carolina, automobile dealer who had come to Florida at Phillips' request. The three discussed plans to bring a boat load of marijuana into North Carolina over Labor Day weekend, and Purvis returned to North Carolina to find a suitable offloading site.
Purvis selected six potential sites and contacted Platshorn, through Phillips. Platshorn arrived in North Carolina on August
24. The following day, the three, having leased a helicopter, selected an offloading site on the Brunswick River. Thereafter, Platshorn's yacht, "Nature's Way," was brought to the site to test the depth of the water. Platshorn provided three pickup trucks and twenty thousand dollars in cash for the purchase of other equipment necessary for the operation.
The Labor Day weekend scheme aborted. The mothership "Presidential," carrying a cargo of marijuana ran aground near the Bahamas. Phillips and a friend, Lee Smith, set out for the Bahamas on the "Nature's Way" in an attempt to salvage the cargo, but the yacht broke down on the way south and was towed to port by the coast guard. 1 Phillips reassured Purvis that another boat would be on the way in a few weeks.
In late September, Purvis returned to Florida and met with Phillips and Robert Meinster, Platshorn's partner in the South Florida Auto Auction, to arrange for the importation of another shipment. Because they believed "Nature's Way" to be under suspicion, they sought out Wade Bailey, owner-captain of the "Osprey," to rendezvous with the mothership in early October. Bailey was a government agent.
After several delays and some additional planning, the scheme finally crystallized in early December. Accompanied by Smith and Purvis, Meinster took a room at the Hilton hotel in Wilmington, North Carolina, on November 30. Richard "Chip" Grant, who had followed the mothership "Don Elias" up the coast in a truck equipped with radio scanners, arrived the next day. Radio equipment was also set up in Meinster's room so that he and Grant could monitor law enforcement communications. Meinster then left town, while Purvis and Grant located and leased storage space for the shipment. All returned to the hotel room on December 7 for final arrangements.
The next day Wade Bailey and his crew took the "Osprey" to its rendezvous with the "Don Elias," and eleven tons of marijuana were transferred to the "Osprey." Bailey brought his cargo back up the Cape Fear River to its final destination on the Brunswick River. The cargo was partially unloaded when customs officials arrived to seize the shipment and arrest Lee Smith, who was leaving the site in a rental truck full of marijuana.
Grant and Meinster immediately returned to Florida. Later, Meinster met with Purvis, Phillips and Platshorn in Florida to discuss what had happened in North Carolina. Both Platshorn and Meinster provided funds for Smith's defense and expenses. Purvis remained in Florida, living with Platshorn and working at the South Florida Auto Auction until early February, 1978, when he surrendered to North Carolina authorities. Afterwards, he returned to Florida where he was approached by the Drug Enforcement Administration.
I. ALLEGATIONS OF PERJURY
Appellants' principal claim is that the prosecution knowingly allowed its chief witness, George Purvis, Jr., to testify falsely that he had received no offer of leniency in exchange for his cooperation. They contend there was a two-fold "deal" struck in a related investigation in the Southern District of Florida, and Purvis' emphatic denial of this arrangement at trial, supported by the prosecutor's arguments and continued refusal to acknowledge it, deprived appellants of a fair trial under principles set forth in Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and Boone v. Paderick, 541 F.2d 447 (4th Cir. 1976). 2
The district judge heard testimony on this issue from the Justice Department attorney in charge of the Florida investigation, the Assistant United States Attorney who handled the North Carolina prosecution, and defendants' counsel. In its Memorandum
of Decision of December 22, 1978, the court found:
(The Florida) investigation was separate and apart from the investigation surrounding the seizure of marijuana in the Eastern District of North Carolina. Purvis cooperated by providing valuable information to the DEA agents in Florida and performed in an exemplary fashion while working undercover for the DEA. In return for Purvis' cooperation the United States Attorney's office in Florida decided not to prosecute Purvis, although Purvis was never told of that decision. However, the DEA officials and the United States Attorney's office in Florida did promise to make Purvis' cooperation with them known to this court in North Carolina at the time of his sentencing following his guilty plea to the charges brought against him in this state. This was in exchange for Purvis' cooperation regarding the Florida investigations, and was not conditioned on Purvis' cooperation with the authorities in North Carolina.
We find no basis for disputing these findings, and find them dispositive of appellants' claim.
Assuming the North Carolina prosecutor had constructive, if not actual knowledge of these facts, 3 we are nevertheless unable to conclude that a new trial was required under Napue, Giglio and Boone. The intent of those holdings is not to punish the prosecutor; rather the primary concern is that the jury not be misled by the prosecution's knowing use of perjured testimony. 4 The critical question is whether the undisclosed promise was material, i. e., whether the purported false testimony "could . . . in any reasonable likelihood have affected the judgment of the jury." Boone, supra, at 451, quoting Giglio v. United States, 405 U.S. at 104, 92 S.Ct. at 766.
When the terms of a "deal" between the government and a witness create a motive
for falsification, the jury's perception of the witness' testimony is likely to be affected. Cases such as Giglio, Napue and Boone illustrate situations where the prospect of immunity or favorable treatment awaited the witness at the conclusion of trial if his performance on the stand was favorable to the government. We think it obvious that promises of immunity or leniency premised on cooperation in a particular case may provide a strong inducement to falsify in that case.
This is a very different situation. Nothing was promised in exchange for Purvis' testimony in this case. Herman Gaskins, the Assistant United States Attorney in North Carolina, repeatedly refused to promise anything in exchange for Purvis' testimony, nor did he hint that his aid might be forthcoming depending on the outcome. Although government officials in Florida promised to bring Purvis' cooperation there to the attention of the sentencing judge in North Carolina in exchange for his cooperation in Florida, this promise was not conditioned on cooperation in this case. 5
We do not think the circumstances of Purvis' cooperation in Florida created a substantial motive for falsification in this case.
Whatever impact the Florida "deal" might have had on the jury is further diminished when the government's evidence is viewed in its entirety. Although Purvis was undoubtedly a key witness, other testimony provided independent proof of guilt.
Co-conspirator Lee Smith 6 testified at length about his participation in the operation, beginning with the unsuccessful attempt to rescue the "Presidential's" cargo. He personally assisted Meinster in setting up radio monitoring equipment in the Wilmington Hilton and participated, along with Meinster and others, in various monitoring, planning and support activities on the final day of the operation. And it was Smith who was arrested during the offloading and after his arrest received financial assistance from Platshorn and Meinster.
Smith provided substantial independent proof of appellants' guilt. In addition, the government offered extensive documentary evidence to corroborate the testimony of both Purvis and Smith. We think this evidence was more than sufficient to offset any conceivable impeachment value inherent in...
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