U.S. v. Capo, 80-5903

• Decision Date: 20 December 1982
• Docket Number: No. 80-5903,80-5903
• Parties: 11 Fed. R. Evid. Serv. 1915 UNITED STATES of America, Plaintiff-Appellee, v. Floyd F. CAPO, Amos Lisenby, Cody Lisenby, Tim Williams, John Booker, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1330

693 F.2d 1330

11 Fed. R. Evid. Serv. 1915

UNITED STATES of America, Plaintiff-Appellee, v. Floyd F. CAPO, Amos Lisenby, Cody Lisenby, Tim Williams John Booker, Defendants-Appellants.

No. 80-5903.

United States Court of Appeals Eleventh Circuit.

Dec. 20, 1982.

James P. Judkins, Tallahassee, Fla., for Capo.

E.C. Deeno Kitchen, Tallahassee, Fla., for A. Lisenby.

Leo A. Thomas, Charles J. Kahn, Jr., Pensacola, Fla., for C. Lisenby.

J. LaDon Dewrell, F. Lloyd Blue, Jr., Fort Walton Beach, Fla., for T. Williams.

John R. Weed, Conrad C. Bishop, Jr., Perry, Fla., for Booker.

David L. McGee, Asst. U.S. Atty., Tallahassee, Fla., for plaintiff-appellee.

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

Before GODBOLD, Chief Judge, HILL and FAY, Circuit Judges.

PER CURIAM:

All appellants were convicted of conspiracy to possess marijuana with intent to distribute and possession of marijuana with intent to distribute in violation of 21 U.S.C. Secs. 846 and 841(a)(1). The convictions of all appellants are affirmed.

All judges concur in Parts I-V of the opinion of the court written by Chief Judge Godbold. Judge Hill concurs in Part VI, written by Judge Fay. Chief Judge Godbold dissents from Part VI, insofar as it concerns Amos Lisenby; he has filed a dissenting opinion thereto, and would reverse the conviction of Amos Lisenby.

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GODBOLD, Chief Judge:

I. The facts

Government operative Carlisle, posing as a seafood broker with organized crime connections, met appellant Capo under the pretext of arranging a large seafood transaction. Carlisle introduced Capo to undercover government agents who also supposedly had organized crime connections. Capo indicated an interest in drug smuggling. A series of meetings and telephone calls ensued. Unbeknownst to Capo, many of these conversations were monitored and recorded.

Capo agreed to supply a load of marijuana to Carlisle, to be brought by boat from Colombia, South America and delivered to an off-loading site supplied by Carlisle near Freeport, Florida. ¹ Capo wanted to keep a low profile in the operation and told Carlisle he would send a man using the name "Jake" to handle the arrangements.

"Jake", identified at trial as appellant Tim Williams, met with Carlisle and an agent a few days later and discussed in detail arrangements for the delivery. But the initial plan did not work out; the boat to Colombia returned empty. Capo, in a recorded phone conversation, told Carlisle not to worry because another load would probably arrive in a week or so. A few days later "Jake" told Carlisle he had a load for him, and the two made new delivery arrangements. Carlisle would supply "Jake" with a truck to be loaded with marijuana and returned to Carlisle at his motel in DeFuniak Springs, Florida. ² Carlisle telephoned Capo and told him that "Jake" had gotten Carlisle some marijuana to which Capo replied, "I know." The next day the truck was dispatched and returned that night with approximately 4000 pounds of marijuana. This marijuana had been brought in from Jamaica in a boat owned by Capo's son-in-law Danny Stewart and stored overnight in a warehouse near Panama City, Florida. ³ "Jake" (Williams), appellant Booker who was seen earlier driving the truck, Vern Oblisk, and others were arrested at a motel when the delivery was made. Capo was arrested the following day.

On the night of the delivery a marine patrol officer was conducting surveillance of the Panama City warehouse where the marijuana was stored. The officer saw appellant Amos Lisenby get out of a van looking hot and sweaty. After Amos left the van, the officer approached and saw what appeared to be marijuana residue on the bumper. The officer searched the van and found more residue inside. Amos was arrested the following afternoon and charged with simple possession of marijuana in violation of 21 U.S.C. Sec. 844. This charge was later dropped and Lisenby was indicted along with the other appellants.

Oblisk, a lookout in the Capo/Williams/Carlisle operation, began cooperating with the government soon after his arrest. He recorded several telephone calls he made to appellant Cody Lisenby. He then arranged a meeting, also recorded, between himself and Amos and Cody Lisenby. These recorded conversations along with Oblisk's trial testimony implicated the Lisenby brothers in the deal as part of the crew that transferred the marijuana from Stewart's boat to the warehouse. Cody Lisenby was arrested shortly after the meeting with Oblisk.

II. One or two conspiracies, severance and joinder

Appellants urge that joinder was improper because there were two separate conspiracies, an abortive deal for Colombian marijuana and a completed deal for Jamaican marijuana. They contend that, while Williams as "Jake" was involved in both deals, there was no agreement between Capo and the remaining appellants. Viewing the evidence in the light most favorable to the government, we find that the jury could have concluded that one continuing conspiracy existed. The link between Capo and the ultimate delivery does not necessarily rest solely on mere awareness of criminal activity nor simply on association with those engaged in criminal activity. This is not a case where the acts planned differ substantially from the acts completed. Capo promised marijuana; marijuana was delivered. It was to come in by boat to Freeport. It came by boat to Panama City, 35 miles away. Capo indicated an expected delivery date about a week in the future; six days later marijuana arrived. Capo said his man "Jake" would take care of the arrangements; "Jake" did. When coupled with Capo's knowledge of the change in plans and his familial relationship with the person bringing in the marijuana from Jamaica, the jury had ample reason to conclude appellants participated in a single conspiracy as charged. A single conspiracy is not divisible simply because of personnel changes, U.S. v. Pool, 660 F.2d 547, 562 (5th Cir.1981) (Unit B); it does not become divisible because of the changes in the plan by which, after the Colombian shipment aborted, a Jamaican cargo was substituted. That all the participants did not know each other does not prevent the existence of a conspiracy. See U.S. v. Watson, 669 F.2d 1374, 1379 (11th Cir.1982). It is enough that each one knew of the conspiracy and voluntarily participated in it. Id. at 1380.

Appellants also contend they were prejudiced by being tried jointly because of antagonistic defenses and a prejudicial overspill in the evidence. Appellants fail to show an irreconcilable conflict of defenses as required for reversal by U.S. v. Herring, 602 F.2d 1220, 1225 (5th Cir.1979), cert. denied, 444 U.S. 1046, 100 S.Ct. 734, 62 L.Ed.2d 732 (1980); and we see no antagonism at all. All of the defenses centered on disassociating Capo from the completed delivery. As for overspill of evidence, merely showing some prejudice from the joint trial is not enough. U.S. v. Dohm, 597 F.2d 535, 539 (5th Cir.1979), cert. denied, 444 U.S. 937, 100 S.Ct. 287, 62 L.Ed.2d 196 (1979). Appellants must demonstrate compelling prejudice. See id. They have not. As in most joint trials, some participants were shown to have participated more extensively than others.

III. Prosecutorial misconduct, excessive government involvement

Appellants seek reversal based on a long list of purported bad acts by the government in the investigation and prosecution of the case. A few of these issues we discuss. Others may be disposed of summarily, some without comment.

In rebuttal to defendants' closing argument, the prosecutor said to the jury: "Did you ever hear Mr. Capo tell anyone in here 'I was only kidding'." Capo contends this was an improper comment on his right to remain silent; the government contends the remark was a reference to what Capo said and did not say in the tape-recorded conversations in evidence. Since it cannot be said that the prosecutor's manifest intention was to comment on Capo's failure to testify, or that the remark was of such character that the jury would naturally and necessarily take it to be such a comment, reversal is not required. See U.S. v. Rochan, 563 F.2d 1246, 1249 (5th Cir.1977). Moreover, the district judge immediately gave a curative instruction. See U.S. v. DeSimone, 660 F.2d 532, 543 (5th Cir.1981) (Unit B), cert. denied, --- U.S. ----, 102 S.Ct. 1732, 72 L.Ed.2d 149 (1981).

The prosecutor commented in closing argument that the trial of alleged co-conspirator Deral Holman would begin the next day, a fact that had not been introduced into evidence. This remark was made in response to a defense jury argument implying that Holman was not to be tried. In these circumstances the statement did not unfairly prejudice appellants. See U.S. v. Henley, 502 F.2d 585 (5th Cir.1974).

Appellants challenge various characterizations of themselves and their counsel made by the prosecutor, the principal one being a description of Capo as "sinister." The transcript shows that the prosecutor in closing argument referred to Capo as "sinister." The prosecutor maintains this is a transcription error and the word actually used was "sincere." The reference, whether "sinister" or "sincere," was to how Capo sounded on the tape recordings the jury had heard. Capo did not object. Characterizing Capo as sounding "sinister," if it occurred at all, does not amount to plain error where the characterization was based on evidence adduced at trial and the jury could readily evaluate the accuracy of the characterization. See U.S. v. Webb, 463 F.2d 1324, 1328 (5th Cir.1972). Other characterizations challenged were cured by the district judge's instructions or do not merit any discussion.

The argument that the prosecution violated appellants' due process rights by acting in bad faith in pursuing this case is totally meritless.

Capo contends that the conduct of investigatory personnel was so excessive that it...