U.S. v. Dean

• Citation: 666 F.2d 174
• Decision Date: 22 January 1982
• Docket Number: No. 80-7466,80-7466
• Parties: 9 Fed. R. Evid. Serv. 1131 UNITED STATES of America, Plaintiff-Appellee, v. Roscoe Emory DEAN, Jr., and John Thomas Bigley, Defendants-Appellants. . * Unit B
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 174

666 F.2d 174

9 Fed. R. Evid. Serv. 1131

UNITED STATES of America, Plaintiff-Appellee, v. Roscoe Emory DEAN, Jr., and John Thomas Bigley, Defendants-Appellants.

No. 80-7466.

United States Court of Appeals, Fifth Circuit. ^*

Unit B

Jan. 22, 1982.

Zuckerman, Spaeder, Taylor & Evans, John F. Evans, Michael R. Smith, Miami, Fla., for defendants-appellants.

William A. Wehunt, Atlanta, Ga., for Bigley.

Thomas R. Taggart, Savannah, Ga., for Dean.

Melissa S. Mundell, William H. McAbee, II, Asst. U. S. Attys., Savannah, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before RONEY, VANCE and RANDALL, Circuit Judges.

VANCE, Circuit Judge:

Appellants Roscoe Emory Dean, Jr. and John Thomas Bigley were convicted after trial by jury on three counts of conspiracy to import cocaine, marijuana, and methaqualone in violation of 21 U.S.C. §§ 956, 963. Bigley alone was convicted on one additional count of using a firearm in the commission of a federal felony in violation of 18 U.S.C. § 924(c)(2). ¹ These crimes were committed as episodes in a tragicomic effort to enlist narcotics interests in Dean's campaign to become governor of the State of Georgia. Dean and Bigley allege numerous errors at trial.

In the summer of 1979 Dean, then a state senator in the Georgia legislature, asked James Chaffin to introduce him to someone with connections in the South American drug importation trade. Dean explained to Chaffin that he intended to solicit $10,000,000 from such a person for his 1982 gubernatorial campaign in exchange for his promise to facilitate the importation of drugs into Georgia if he were elected governor. Chaffin consulted with his attorney, Hirsch Friedman, and decided to act as a government informant in exchange for leniency in an unrelated state criminal prosecution against him. Friedman contacted the Georgia Bureau of Investigation which thereafter coordinated the probe.

Chaffin arranged for Dean and Friedman to meet August 24, 1979 on Jeckyll Island, Georgia. At that meeting, Dean explained his plan to assist the drug smugglers in exchange for campaign contributions. He also expressed his concern about surveillance devices and suggested that they speak in riddles. Dean's concern was well founded because this conversation was being recorded surreptitiously by Friedman, as were most of the later conversations between the two.

Dean and Friedman next met September 6, 1979 on Jeckyll Island. Dean added a number of details to his plan to facilitate importation as governor, including the appointment of narcotics interests to law enforcement positions and the selective prosecution of rival drug importers. On October 12, 1979 Friedman brought Sergio Abreu to a meeting with Dean on Jeckyll Island. Abreu, a Florida law enforcement agent, posed as a Colombian involved in Friedman's drug organization. Dean informed Abreu that an associate of his, Richard Daily, was negotiating with narcotics interests in Tampa, Florida for additional campaign contributions. Dean stated that Daily was at a friend's house four or five minutes away from the hotel on Jeckyll Island at which they were meeting. That placed Daily in the proximity of the home of Dean's coappellant, Bigley. ²

On November 5, 1979, Friedman informed Dean that Abreu had agreed to Dean's scheme. On January 9, 1980, however, Friedman told Dean that Abreu had died in an earthquake in Colombia, and that different arrangements would have to be made. Dean proposed that they meet on January 11, 1980 at Bigley's home on Jeckyll Island. At this meeting, which Bigley did not attend, Friedman told Dean that the narcotics organization wanted to test his trustworthiness by undertaking an importation at a site suggested by Dean. Although Dean expressed reservations about safety, he agreed to the test. He also expanded upon his plans to launder the $10,000,000 campaign contribution. The meeting was interrupted when a neighbor of Bigley appeared at the front door. Dean telephoned Bigley at his fiancee's house and directed him to tell anyone who inquired that Dean was meeting with his lawyer about the campaign.

Dean and Friedman agreed that Bigley, using the alias of "Moore," would meet Friedman at a bank in Savannah to count $10,000,000. Dean informed Friedman that Bigley was "in the thing with us" but did not know Friedman's identity. ³ On January 18, 1980 Dean drove Bigley to a point several blocks from the bank. Bigley identified himself to Friedman as "Mr. Moore" and proceeded to count $7,500,000 contained in several safety deposit boxes in a bank vault. While counting, Bigley checked for counterfeits and carried on a general conversation with Friedman about marijuana from Colombia and gambling. Dean subsequently stated that Bigley expressed his suspicion that Friedman was a government agent.

During the next week, Dean and Friedman undertook a "dry run" of the trial drug importation. ⁴ Dean reported to Friedman that Bigley had observed the local police station during the exercise and that Bigley had later gone to Miami to meet with a Haitian about laundering the money.

On January 28, 1980 Dean and Friedman drove to the Savannah airport accompanied by Bigley in a separate car. Dean's purpose was to receive custody of the $10,000,000. When Bigley arrived at the airport, he noticed frantic activity by law enforcement personnel. He waved down Dean and Friedman and informed them of what he had seen. Soon thereafter, Friedman effectuated a citizen's arrest and confiscated a Smith and Wesson .38-caliber revolver that Bigley carried in a shoulder holster.

At trial, Dean declined to testify on his own behalf. Bigley testified that he had no knowledge of the narcotics-related purpose of the dealings between Dean and Friedman, but had been told by Dean that the $10,000,000 was part of a legitimate real estate transaction. He also denied that he had observed the local police station for Dean or had made any arrangements to launder money. ⁵

I.

Both appellants challenge the sufficiency of the evidence against them on the conspiracy counts. The bases for these challenges differ. Bigley claims that the government failed to prove beyond a reasonable doubt that he conspired with Dean to violate the narcotics laws. Dean claims that his conviction cannot stand if Bigley is acquitted because Bigley is the only person with whom Dean is accused of conspiring. See, e.g., United States v. Sheikh, 654 F.2d 1057, 1062 (5th Cir. 1981); United States v. Espinosa-Cerpa, 630 F.2d 328, 331 (5th Cir. 1980). We find that the evidence was sufficient to convict both Dean and Bigley of conspiracy to import narcotics.

The standard of review as to sufficiency of the evidence is whether a reasonably minded jury must necessarily entertain a reasonable doubt of the defendant's guilt. United States v. Rodriguez, 654 F.2d 315, 317 (5th Cir. 1981); United States v. Kelley, 630 F.2d 302, 303 (5th Cir. 1980). In conducting that review, we view the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), and we accept all credibility choices and draw all reasonable inferences that support the jury's verdict. United States v. Staller, 616 F.2d 1284, 1292 (5th Cir.), cert. denied, 449 U.S. 869, 101 S.Ct. 207, 66 L.Ed.2d 89 (1980); United States v. Barrentine, 591 F.2d 1069, 1083 (5th Cir.), cert. denied, 444 U.S. 990, 100 S.Ct. 521, 62 L.Ed.2d 419 (1979).

In order to sustain the convictions of Dean and Bigley, it must appear that both men agreed to violate the narcotics laws. United States v. Diaz, 655 F.2d 580, 584 (5th Cir. 1981) cert. denied, --- U.S. ----, --- S.Ct. ----, --- L.Ed.2d ----, 50 U.S.L.W. 3567 (1982). See also United States v. Spradlen, 662 F.2d 724, 727 (11th Cir. 1981). The government need not show that either man committed an overt act in furtherance of the conspiracy. United States v. Rodriguez, 612 F.2d 906, 919-20 n.37 (5th Cir. 1980) (en banc), aff'd sub nom., Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); United States v. Michel, 588 F.2d 986, 994 (5th Cir.), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979). The existence of an agreement may be inferred, however, from the concert of action between the two men. United States v. Wilson, 657 F.2d 755, 759 (5th Cir. 1981); United States v. Arredondo-Morales, 624 F.2d 681, 684 (5th Cir. 1980).

In this case, the only serious question of appellants' guilt is whether Bigley knew of the narcotics-related objective of the dealings between Dean and Friedman. Taken in the light most favorable to the government, the evidence shows:

(1) Dean's statement to Friedman that Bigley was "in the thing with us."

(2) The meeting between Dean and Friedman at Bigley's house.

(3) Dean's instructions to Bigley to offer an explanation to Bigley's neighbors of Dean's presence.

(4) Bigley's use of the alias agreed upon by Dean and Friedman.

(5) The meeting between Bigley and Friedman at the bank to count millions of dollars and their discussion of marijuana from Colombia.

(6) Dean's statement that Bigley suspected Friedman of being a government agent.

(7) Bigley's meeting with a Haitian in Miami to arrange for the laundering of the $10,000,000.

(8) Bigley's activities around a police station during a "dry run" of narcotics importation.

(9) Bigley's travel to the Savannah airport with Dean and Friedman while carrying a firearm.

(10) Bigley's departure from the Savannah airport to warn Dean and Friedman of the activity of law enforcement personnel.

This evidence certainly suffices to allow a reasonable jury to discredit Bigley's statement that he believed he was assisting a real estate transaction. Cf. United States v. Hinds, 662 F.2d 362, 366 (5th Cir. 1981); United States v. Spradlen, 662 F.2d at 727 (jury could reasonably disbelieve defendant's innocent explanation of...