U.S. v. Pool
| Decision Date | 02 November 1981 |
| Docket Number | No. 79-5242,79-5242 |
| Citation | 660 F.2d 547 |
| Parties | 9 Fed. R. Evid. Serv. 490 UNITED STATES of America, Plaintiff-Appellee, v. Ralph POOL, Carl Billy Knowles, Brad William Tarpley, Marvin Paul Leask, Charles Thomas Purcell, Edward Frederick Petrulla, Arthur John Loye, and Geoffrey Bain Tannhauser, Defendants-Appellants. . Unit B * |
| Court | U.S. Court of Appeals — Fifth Circuit |
Curtis Fallgatter, Asst. U.S. Atty., Jacksonville, Fla., for plaintiff-appellee.
Martin Weinberg, Boston, Mass., Reese A. Waters, Jr., Orange Park, Fla. (Court-appointed), for Pool and Petrulla.
Carlton P. Maddox, Jacksonville, Fla., for Knowles.
Archibald J. Thomas, III, Asst. Federal Public Defender, Jacksonville, Fla., for Tarpley.
Joseph H. Kelinson, Coconut Grove, Fla. (Court-appointed), for Leask.
Michael J. Doddo, Fort Lauderdale, Fla., for Loye.
Jack R. Blumenfeld, Coconut Grove, Fla., James K. Jenkins, Atlanta, Ga., for Tannhauser.
Moran & Gold, Sheryl Javits, Miami, Fla., for Petrulla.
Gerald H. Goldstein, San Antonio, Tex., for Purcell.
Edward F. Petrulla, pro se.
Appeal from the United States District Court for the Middle District of Florida.
Before HILL, KRAVITCH and HATCHETT, Circuit Judges.
A jury found beyond a reasonable doubt that the eight appellants participated in a scheme to import approximately 225,000 pounds of marijuana worth $60,000,000 into the United States.
Specifically, all eight were convicted of conspiracy to import marijuana. 21 U.S.C. § 963 (West 1972) (Count 1). Appellants Petrulla, Purcell, Tannhauser, Knowles, Loye, and Pool were also found guilty of conspiring to possess marijuana with intent to distribute. 21 U.S.C. § 846 (West 1972) (Count II). In addition, Petrulla was convicted of five counts of using a telephone to facilitate the commission of a Title 21 violation. 21 U.S.C. § 843(b) (West 1972) (Counts 4, 5, 6, 7 and 10). Purcell, Knowles, Loye, and Tannhauser were each convicted of one § 843(b) violation. (Counts 2, 8, 9 and 10 respectively).
Appellants raise twelve issues:
(1) Whether the district court may properly consider, as one factor in imposing sentence, the refusal of several appellants to cooperate with the government's investigation of the same criminal scheme from which their convictions arise?
(2) Whether several appellants were prevented from developing an entrapment defense because: (a) the court improperly restricted the cross examination of a government informant, Ed Allen, and (b) whether the court failed to disclose "highly relevant" in camera testimony of another informant?
(3) Whether the trial court erred in giving a partial entrapment instruction?
(4) Whether the trial court erred in giving a limiting instruction that characterized a statement of appellant Petrulla as an admission or incriminatory statement?
(5) Whether the trial court erred in imposing consecutive sentences on several appellants for conspiracy to import and conspiracy to possess with intent to distribute?
(6) Whether the proof of an overt act is required to convict for conspiracy to import and for conspiracy to possess with intent to distribute?
(7) Whether the testimony of a DEA special agent that identified a caller whose voice he had never heard based solely on the caller's self-identification is admissible?
(8) Whether the evidence is sufficient to convict appellants Loye and Leask of conspiracy to import; to convict appellants Loye and Tannhauser of conspiracy to possess with intent to distribute; and to convict Loye of § 843(b)?
(9) Whether it is legally impossible to violate § 843(b) by telephoning a federal agent?
(10) Whether it was proper for the trial court to restrict Loye's counsel from arguing that Petrulla and Purcell were responsible for the § 843(b) count for which Loye was charged?
(11) Whether the trial court erred in denying the severance motions of Leask, Loye, Tarpley, and Pool?
(12) Whether certain testimony was admitted in violation of the rules against hearsay?
For the reasons set out below, we affirm the jury's verdict in all but one respect. The evidence is insufficient to convict appellant Loye of Count 9. We also affirm the sentencing considerations of the trial judge.
This case is a testament to the excellent and resourceful work of the Drug Enforcement Administration (DEA). Through skillful undercover infiltration, several DEA agents were able to monitor the appellants' constantly changing plans to import marijuana into this country. Ultimately, the appellants were arrested while attempting to import $60,000,000 of marijuana. We set out the facts in some detail to accurately portray each appellant's role in the scheme.
On April 20, 1978, DEA agent Weed met appellant Purcell. Purcell asked if Weed could "off-load" some marijuana coming from Colombia. Informant Ed Allen was present at this meeting.
On June 5, 1978 DEA agents Story and Weed met Purcell in Miami, Florida. Purcell introduced them to "Chuck" and "Dale." Chuck and Dale were to arrange for a freighter to bring 10,000 pounds of marijuana to a point approximately 50 miles off the coast of Florida. Story and Weed were to provide the "off-load" boats necessary to bring the marijuana to shore. Purcell was to examine an alternate off-load site suggested by the agents. The next day, June 6, Purcell examined the alternate site, actually suggested by the agents to enhance DEA surveillance, and pronounced it ideal.
A month later, on July 6, agents Story and Weed again met with Purcell. Purcell stated that he had just returned from Colombia where he had paid $15,000 to obtain the necessary protection to move the marijuana from the shore area of the Colombian coast. He also mentioned that "Jeff," later identified as appellant Tannhauser, was going to Colombia with an additional $10,000 of protection money. Purcell also said that Chuck and Dale were no longer in the deal because "they had cheated his man out of some money" and that 42,000 pounds of marijuana would be coming from Colombia. Purcell's passport showed entry/exit dates for Colombia, South America on June 21, and July 1, 1978.
On July 10, Purcell introduced the agents to "his man," appellant Petrulla. Petrulla explained that Tannhauser was in Colombia making final arrangements for the marijuana load which would be 40,000 to 60,000 pounds. Petrulla also stated that he wanted to view Story and Weed's off-load boat, the LADY ELIZABETH. Finally, he told the agents that the marijuana would be stored at a chicken farm in St. Augustine, Florida owned by appellant Knowles.
On July 12, 1978, Knowles took Agent Weed, Petrulla, and Purcell to possible places for the off-load boats to land. Knowles also showed them his chicken farm and noted that the chicken manure would mask the odor of the marijuana as it had been effective in doing before. Petrulla then explained that the "mother ship," the freighter bringing the marijuana from Colombia, would be off-loaded sixty-five miles off the shore of St. Augustine. He also explained that he had two buyers coming from Georgia and Alabama with $2,000,000 cash.
On July 21, Purcell told Story and Weed that Tannhauser had called the previous night and that the captain of the Colombian mother ship had backed out.
On July 24, Purcell told Weed and Story that the deal was on again and that Petrulla wanted Weed to move his off-load boat, the LADY ELIZABETH, from Miami to St. Augustine immediately. Purcell also gave Weed $1,500 which he said came from Petrulla. On the evening of July 24 Weed and Purcell moved the LADY ELIZABETH to St. Augustine. Subsequently, Purcell decided that in the small town of St. Augustine attention might be drawn to their operation; hence, the operation should be moved to Jacksonville.
On July 27, Story, Weed, Petrulla, Purcell, Tannhauser, and Knowles met at the St. Augustine Holiday Inn. Tannhauser, having just arrived from Colombia, brought news of the mother ship. He explained that 100,000 pounds of marijuana would be off-loaded in the South Caicos Islands, 90 miles off Puerto Rico. Petrulla added that this was a positive development because if the Coast Guard were watching, the mother ship would be seized at this point. Tannhauser then explained he would be the first person to contact the mother ship because he would have to match one half of a five-peso note with "Miguel," the captain of the mother ship. Tannhauser then gave his half of the five-peso note to Petrulla. Petrulla then asked Weed if he could acquire a third off-load boat because they would be off-loading 80,000 pounds. Tannhauser then described the mother ship and produced nautical charts showing that the rendezvous with the mother ship would occur approximately 250 miles east-southeast of Jacksonville. Petrulla also gave Weed another $2,500 for the off-load boats and advised Weed that he still had $1,000 coming. Finally, concern was expressed that "pirates" might try to raid the off-load boats.
On July 28, Weed called Petrulla and said he would be able to rent a third off-load boat for $5,000. Over the next several days Petrulla met with his Colombian connections and Knowles arranged for a tractor trailer to move the marijuana from the Florida shore to his home.
On August 1, Petrulla advised Weed that there would be a two day delay because the Puerto Rican group was having difficulty off-loading their 100,000 pounds. Petrulla also explained that "Chips," appellant Loye, would be arriving in Jacksonville with $6,000 for Weed. Weed and Purcell met Loye at Jacksonville International Airport. In the presence of Story and Purcell, Loye gave Weed $6,000 that he said was from Petrulla. Loye then returned to Miami to assist Petrulla.
On August 3, Knowles showed Weed a new barn on his farm which Petrulla gave him $2,000 to build. Knowles told Weed to make sure that none of Weed's men jumped off the off-load boats and ran...
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