690 F.2d 1144 (5th Cir. 1982), 80-1704, United States v. Kalish

Docket Nº:80-1704, 80-1716.
Citation:690 F.2d 1144
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Steven KALISH, Defendant-Appellant.
Case Date:July 23, 1982
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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690 F.2d 1144 (5th Cir. 1982)

UNITED STATES of America, Plaintiff-Appellee,


Steven KALISH, Defendant-Appellant.

Nos. 80-1704, 80-1716.

United States Court of Appeals, Fifth Circuit

July 23, 1982

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Dick DeGuerin, Houston, Tex., for defendant-appellant.

John M. Potter, Asst. U. S. Atty., Houston, Tex., Mervin Hamburg, Atty., Appellate Sec., Criminal Div., Dept. of Justice, Washington, D. C., for plaintiff-appellee.

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

Before RUBIN and REAVLEY, Circuit Judges, and HUNTER[*], District Judge.

REAVLEY, Circuit Judge:

On December 10, 1979, a government joint task force seized a shrimp boat called the EL COBRE, loaded with 40,000 pounds of marijuana, a few miles off the coast of Texas near Freeport. On December 19, 1979, the same joint task force seized an offshore supply boat called the MR. JAKE, loaded with 100,000 pounds of marijuana, as it was being unloaded at the Intracoastal Marina in Freeport.

Appellant Steven Kalish was indicted in connection with both seizures. The EL COBRE indictment, filed January 11, 1980, charged Kalish and four co-defendants with one count of conspiracy to import marijuana, 21 U.S.C. § 963, and one count of conspiring

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to possess marijuana with intent to distribute, 21 U.S.C. § 846. The MR. JAKE indictment, filed January 18, 1980, named Kalish and 36 co-defendants 1 in three counts: two counts charging violations of the same two conspiracy statutes charged in the EL COBRE indictment, and a third count charging Kalish with the substantive offense of possession with intent to distribute, 21 U.S.C. § 841(a)(1).

Kalish was tried on the EL COBRE indictment in March 1980. A jury found Kalish not guilty of both conspiracy counts of that indictment.

Prior to this April 1980 trial on the MR. JAKE indictment, Kalish filed a plea in bar, contending that his trial on the conspiracy counts of that indictment was barred by the double jeopardy clause of the Fifth Amendment to the United States Constitution. After a full hearing, the court denied Kalish's plea. Although Kalish immediately filed a notice of appeal from the trial court's ruling, see Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed. 651 (1977), the trial court refused to stay Kalish's trial pending appeal, expressly finding Kalish's double jeopardy claim to be "frivolous," see United States v. Dunbar, 611 F.2d 985 (5th Cir.) (en banc), cert. denied, 447 U.S. 926, 100 S.Ct. 3022, 65 L.Ed.2d 1120 (1980). The court did grant Kalish's request to stay the trial pending his petition to this court for a writ of prohibition. This court denied the petition, and the trial commenced.

A jury found Kalish guilty on all three counts of the MR. JAKE indictment. After judgment was entered on the verdict, Kalish filed his second notice of appeal.

This is a consolidation of the two appeals. Kalish argues that trial on the conspiracy counts of the MR. JAKE indictment places him in double jeopardy. He also argues that his conviction on the substantive count should be reversed because the district court lacked jurisdiction to try him, because the government should have been collaterally estopped from introducing the evidence it presented at the EL COBRE trial, and because of an alleged evidentiary error. 2

We reverse Kalish's conviction on the two conspiracy counts. We affirm his conviction on the substantive count.

I. Double Jeopardy

  1. Procedural Considerations

    In the usual Abney appeal from a pretrial ruling denying a double jeopardy plea, the court has only the record of the pretrial hearing on the question whether the impending trial concerns the same offenses previously tried. In such pretrial proceedings, the defendant has the burden "to tender a prima facie nonfrivolous double jeopardy claim," United States v. Stricklin, 591 F.2d 1112, 1117 (5th Cir.), cert. denied, 444 U.S. 963, 100 S.Ct. 449, 62 L.Ed.2d 375 (1979); it is then the government's burden to prove by a preponderance of the evidence, prior to trial, that the indictments charge different crimes. Id. at 1118.

    Because the district court proceeded to trial in this case, however, we have the record of the second trial to help us determine whether the indictments involved different conspiracies. The court might first consider the pretrial record alone, and then, if it determined that the government was entitled to prevail on the pretrial motion, consider the trial record to determine if appellant was actually tried for the same offense.

    We need not take those steps here. The government did not meet its pretrial burden of proving that the indictments concerned different conspiracies, and we think that the trial record confirms that conclusion.

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  2. The Evidence

    At both trials, the only evidence sufficient to connect Kalish to the loads of marijuana was the testimony of Tommy Troutwein. Troutwein was the manager of the Intracoastal Marina, which was located on the Intracoastal Waterway in Freeport, Texas. The waterway provides access to the Gulf of Mexico.

    Troutwein was a friend of Bobby Weaver, a United States Customs Patrol Officer. Weaver was a member of a task force that was investigating smuggling activity on the waterway. The task force included Customs, Coast Guard, Drug Enforcement Administration (DEA) and local officers. Weaver usually worked in an undercover capacity, often posing as the private owner of an unmarked speedboat that Customs had docked at the Intracoastal Marina.

    Weaver believed that the marina was a likely place for smuggling activity, and sometime in the late spring or early summer of 1979 he asked Troutwein to pass along any information he obtained about smuggling activity. Troutwein agreed. It was Troutwein's information that focused the government's suspicion on Kalish.

    1. The Evidence at the EL COBRE Trial

      At the EL COBRE trial, Troutwein testified as follows: He first met Kalish on August 7, 1979. Kalish was introduced to him as "Steven Kay" by two other men whom Troutwein suspected of marijuana smuggling. Kalish and his companions were interested in leasing a shrimp boat owned by Troutwein's boss, Robert Brushingham, the owner of the marina. The shrimp boat was located at a different dock in downtown Freeport. Troutwein agreed to take Kalish to see the boat. The two travelled alone. During the ride, Kalish told Troutwein that he made a lot of money in "the smuggling business." After the two arrived at the dock and boarded the shrimp boat, Kalish commented on the boat's marijuana-hauling capacity.

      The next day, Kalish arrived at the marina with two different men whom he introduced to Troutwein as "Peaches" and "Doc." 3 Kalish asked Troutwein to allow Peaches and Doc to spend their nights at the marina conducting surveillance. Peaches and Doc spent about 10 consecutive weeknights at the marina, making logs of the nightly traffic along the waterway.

      Officer Weaver corroborated Troutwein's testimony that Kalish had been present at the marina in August 1979. On August 7 or 8, Troutwein introduced Kalish to Weaver. Kalish asked if Weaver would take him for a ride on the speedboat at a later date. Weaver agreed. A few days later, Weaver took Kalish and Troutwein for a ride. During the ride, Kalish told Weaver that he might need to use the boat at a later date "in an errand-running capacity."

      Troutwein testified that, after these two or three meetings in August, he had no further contact with Kalish until December 6, 1979. On that day, Kalish approached Troutwein while he was working on the marina's fuel dock. Kalish gave Troutwein $1,000 in $100 bills, told Troutwein that he was "making arrangements for a load," and said that he would return in a few days to discuss "unloading there at the marina."

      Kalish returned to the marina on December 8. He offered Troutwein $50,000 for letting him unload at the marina. Kalish told Troutwein that the unloading would take place "relatively soon."

      On the morning of December 10, Kalish came into Troutwein's office at the marina. Four persons accompanied him: Bill Boren, "a pilot," and two other persons whom Troutwein could not identify. Kalish told Troutwein that he needed a boat to send his companions out to meet a shrimp boat. Troutwein suggested that Kalish telephone Weaver to ask about leasing Weaver's speedboat. The call was made. Weaver corroborated this testimony, testifying that Kalish asked him whether he would lease the speedboat for an "errand." Weaver told Kalish that the boat needed repairs.

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      After the phone call, Troutwein told Kalish that he had a single boat available, the MISS CLARA, but that if Kalish wanted to use it he would have to buy it for $35,000. Kalish reluctantly agreed, giving Troutwein $5,000 and telling him he could pick up the balance that day in Houston. Then Kalish's four companions went out to sea in the MISS CLARA.

      Troutwein testified that Kalish remained at the marina for a time and that the two of them had another meeting with "other people," including Bud Stockton and Judd McCormick. 4 For reasons that will become clear below, Troutwein was asked not to testify to the substance of this conversation. Afterwards, Troutwein followed Kalish to Houston in Bill Boren's car. In Houston, Kalish gave Troutwein another $15,000 for the MISS CLARA.

      Meanwhile, Weaver had alerted his task force about the voyage of the MISS CLARA. Aerial surveillance teams observed the MISS CLARA rendezvous with the shrimp boat EL COBRE. After the MISS CLARA departed, the EL COBRE was stopped and boarded; officers found 40,000 pounds of marijuana and a four-member crew. One of the crew was Bill Boren. These four became Kalish's four co-indictees in the EL COBRE case.

      When Troutwein returned to the marina from Houston, he found the crew of the MISS CLARA waiting to use...

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