U.S. v. Phillips

• Decision Date: 28 December 1981
• Docket Number: 80-5320,Nos. 79-3189,s. 79-3189
• Citation: 664 F.2d 971
• Parties: 9 Fed. R. Evid. Serv. 970 UNITED STATES of America, Plaintiff-Appellee, v. Mark Steven PHILLIPS and Richard Elliott Grant, Jr., Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Robert Jay MEINSTER, a/k/a "Robby", Eugene Arter Myers, a/k/a "Big Gene", Richard Elliott Grant, Jr., Randall Gene Fisher, Modesto Echezarreta-Cruz, Robert Elliot Platshorn, a/k/a "Roger Culpepper", Defendants-Appellants. . Unit B *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 971

664 F.2d 971

9 Fed. R. Evid. Serv. 970

UNITED STATES of America, Plaintiff-Appellee, v. Mark Steven PHILLIPS and Richard Elliott Grant, Jr.,

Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Robert Jay MEINSTER, a/k/a "Robby", Eugene Arter Myers, a/k/a "Big Gene", Richard Elliott Grant, Jr., Randall Gene

Fisher, Modesto Echezarreta-Cruz, Robert Elliot Platshorn,

a/k/a "Roger Culpepper", Defendants-Appellants.

Nos. 79-3189, 80-5320.

United States Court of Appeals, Fifth Circuit.

Unit B ^*

Dec. 28, 1981.

Page 984

John F. Brown, Jr., Miami, Fla., Dana D. Biehl, Marvyn Hamburg, Atty., U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Dennis Cogan, Philadelphia, Pa., for Meinster.

Rebekah J. Poston, Theodore Klein, Miami, Fla., for Myers.

Samuel Sheres, Hollywood, Fla., for Fisher.

Geoffrey C. Fleck, Miami, Fla., for Echezarreta-Cruz.

Thomas G. Murray, Miami, Fla., for Robert Elloit Platshorn.

Appeals from the United States District Court for the Southern District of Florida.

Before FRANK M. JOHNSON, Jr., and HATCHETT, Circuit Judges, and SCOTT, ^** District Judge.

Page 985

FRANK M. JOHNSON, Jr., Circuit Judge:

Appellants were members of a marijuana smuggling organization which called itself the "Black Tuna" enterprise. The Black Tuna group imported on a massive scale. According to statements by one appellant, during the period from October 1976 to shortly after September 1977, one of the four years covered by the indictment, the Black Tuna group successfully imported into the United States over one million pounds of marijuana.

Twelve defendants were charged in a one-hundred page superseding indictment containing thirty-six counts. The superseding indictment covered the period from August 1974 to April 1978. Following a lengthy jury trial appellants were convicted of violating the racketeering statute, 18 U.S.C.A. § 1962(c) and (d); the travel act, 18 U.S.C.A. § 1952; and federal drug laws, 21 U.S.C.A. §§ 841(a)(1), 843(b), 848, 952, and 963. Four of the appellants were acquitted on some of the counts charged against them. ¹ Appellants received substantial sentences. ²

The trial in this case was extraordinary in several respects. Because of the extent of Black Tuna's importation and distribution of marijuana, the trial, which lasted from September 1979 to February 1980, received extensive publicity. The publicity was intensified on December 6 when the Government announced that two separate indictments were to be returned that day: one against appellant Fisher for bribing a juror, and another against several of the defendants charging them with conspiracy to obstruct justice. The obstruction of justice indictment alleged that those charged had plotted to disrupt the proceedings and to assassinate the trial judge. The trial court then sequestered the jury during the week of December 6-13, 1979.

The trial court also found it necessary to substitute three alternate jurors for regular jurors. First, the juror who was implicated in the bribery charge was replaced. Another regular juror was later replaced by a substitute juror after she revealed that she had inadvertently learned that an indictment had been returned against a juror. Finally, after the jury had been deliberating for a day and a half, one juror suffered a heart attack. The trial court, over defense objections, substituted an alternate after receiving assurances from the jurors who had deliberated that they could and would erase from their minds their past deliberations and start anew.

Appellants raise numerous contentions on appeal. ³ After careful examination of each of these arguments, ⁴ we conclude that all of

Page 986

appellants' convictions should be affirmed, except for Echezarreta's racketeering conviction.

I. THE BLACK TUNA ENTERPRISE ⁵

In August 1974 Lucas McLeod arranged with appellant Platshorn to ship a load of marijuana from Florida, where they resided, to appellant Meinster in Philadelphia, where he operated two dress shops which he used as fronts for his marijuana dealing. In October 1974 McLeod had 2000 pounds of marijuana trucked to Meinster in Philadelphia. One of McLeod's employees, a podiatrist named Dr. Morris Keller, was the truck driver on that occasion. Keller was also a government witness at trial. Meinster paid McLeod approximately $700,000 in installments. McLeod did not pay a brokerage fee to Platshorn because Platshorn disclosed that he was Meinster's partner.

McLeod later delivered two additional loads of marijuana, one of 2000 and another of 4000 pounds at $275 per pound, to Meinster in Philadelphia. McLeod informed Platshorn of the size of each of those shipments to Meinster. After the third delivery to Philadelphia, Platshorn instructed McLeod to deliver future shipments to Platshorn's residence in Miami. Two such deliveries, one of 2000 and another of 3000 pounds, were made in 1975 although Platshorn rejected the second delivery because he believed the marijuana to be of inferior quality.

The source of McLeod's marijuana was co-conspirator Raul Davila, a Colombian resident. Platshorn later acquired marijuana from sources other than McLeod; among them were members of the Miami Cuban community.

In the late spring of 1976 Platshorn leased property in Miami for the purported purpose of operating an automobile auction business. The auction was in fact intended to be a cover for the marijuana importation and distribution activities of Meinster, Platshorn and others. The auction business constantly lost money-up to $4000 weekly. Keller was hired to work at the auction, ostensibly as a general manager. Keller's actual primary responsibility was to supervise the loading of the marijuana that was stored at the auction site into customers' vehicles parked at the auction or on occasion at Platshorn's residence. Marijuana was also placed in vehicles that were delivered to customers; one such customer was appellant Myers.

In June 1976 Platshorn hired Raymond Jiminez as the comptroller for the auction. Jiminez was a central government witness at trial. Numerous marijuana transactions were completed in Platshorn's office at the auction. Jiminez became acquainted with a number of persons, including appellants Myers and Echezarreta, who came to the auction to engage in marijuana transactions.

By mid-1976 Platshorn and Meinster had a flourishing importation and distribution business. Appellant Fisher worked as a pilot for vessels which offloaded marijuana from mother ships on the high seas and delivered it to American shores. Fisher allegedly received $100,000 for each such pilotage effort made for the Platshorn-Meinster enterprise. Appellant Grant worked for Platshorn and Meinster as a security chief in charge of protecting the cargos of marijuana. Most of the enterprise's marijuana, until the summer of 1976, was obtained from a Latin-American organization based in Miami.

Page 987

In the fall of 1976 Platshorn went to Colombia and personally arranged with Davila to import marijuana directly from Colombia. The cost for obtaining the marijuana was approximately $60 per pound. The first shipment, totalling 1100 pounds, was delivered directly from Davila to the auction in the fall of 1976. Delivery preceded Platshorn's return from Colombia; after Meinster forwarded payment for the shipment, Platshorn was able to leave Colombia. ⁶

Davila and the others used the code phrase "Black Tuna," spoken in English or Spanish, as the signal for arriving aircraft in Colombia or for vessels rendezvousing with Davila's cargo ships on the high seas. Davila himself was referred to as the Black Tuna and eventually the enterprise came to be known as Black Tuna. Platshorn even distributed to the organization's members a medallion in the form of a dark-colored fish, worn around the neck.

The initial 1100-pound shipment was only a portion of the shipment that Davila had set aside for the Black Tuna organization. Platshorn, Myers, Keller and others arranged to send a plane to Colombia for the balance of the marijuana. Myers offered to furnish manpower to unload the plane after it landed at the Punta Gorda Airport near Fort Myers, Florida. Myers also indicated that for a payment of $10,000 he could keep the airport manager away while the unloading took place. By happenstance, the airport manager was not on duty when the plane arrived. Myers also stated that he wished to purchase any marijuana exceeding the amount designated for a particular customer. The plane landed on November 5, 1976; Keller supervised the successful unloading of approximately 3800 pounds of marijuana. The plane was abandoned because of engine trouble and was discovered the following day by law enforcement officers.

Meinster moved to Miami in early 1977. The enterprise at that time owned several yacht-sized vessels and operated out of several locations, including a suite in the Fontainebleau Hotel. In January 1977 Jiminez went to that suite to deliver a car to Myers. Upon entering the suite Jiminez saw Platshorn, Meinster, Myers, and other Black Tuna members. Large stacks of money covered a table. After asking Jiminez whether he had ever seen so much money, Myers remarked that "It is not all ours yet, so don't worry about it." The Black Tuna members apparently did not hesitate to fully avail themselves of the Fontainebleau's room service; Jiminez testified that Platshorn told him that the room service bill from October 1976 to April 1977 was $66,000.

The enterprise used several vessels for offloading marijuana and could recycle vessels after their use because co-defendant Phillips sold boats in Fort Lauderdale. The enterprise used luxury craft rather than shrimping trawlers or other such vessels in order to attract less suspicion.

The Fontainebleau suite was the Black Tuna headquarters until March 1977. In April 1977 Platshorn obtained a houseboat, called BEAM'S POST TIME, which was moved into waters adjacent to the...