U.S. v. Monaco, 80-5595

• Decision Date: 17 March 1983
• Docket Number: No. 80-5595,80-5595
• Parties: 13 Fed. R. Evid. Serv. 248 UNITED STATES of America, Plaintiff-Appellee, v. James R. MONACO and Eugene O. Hicks, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 860

702 F.2d 860

13 Fed. R. Evid. Serv. 248

UNITED STATES of America, Plaintiff-Appellee, v. James R. MONACO and Eugene O. Hicks, Defendants-Appellants.

No. 80-5595.

United States Court of Appeals, Eleventh Circuit.

March 17, 1983.

As Corrected April 6, 1983.

Alan E. Weinstein, Richard J. Preira, Miami Beach, Fla., for Monaco.

P.D. Aiken, Fort Lauderdale, Fla., for Hicks.

Mervyn Hamburg, Washington, D.C., for plaintiff-appellee.

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

Before FAY, ANDERSON and CLARK, Circuit Judges.

R. LANIER ANDERSON, III, Circuit Judge:

James Ronald Monaco and Eugene O. Hicks appeal their convictions for conspiring to import marijuana into the United States in violation of 21 U.S.C.A. Sec. 963 (West 1981) and for importation of marijuana into the United States in violation of 21 U.S.C.A. Sec. 952(a) (West 1981). We affirm the convictions, but remand for resentencing of appellant Hicks.

I. BACKGROUND

On October 4, 1977, appellants were indicted along with three other persons for conspiracy to import marijuana, importation of marijuana, and distribution of marijuana. After a jury trial in early 1978, Monaco, Hicks and one co-defendant were convicted on all three counts; the other two co-defendants were acquitted on all counts. Several months after the conclusion of the 1978 trial, appellants and their convicted co-defendant discovered that the government had failed to disclose certain Jencks Act material, see 18 U.S.C.A. Sec. 3500 (West 1969), to the defense. They also learned that three of the government's witnesses at the first trial had violated the court's witness sequestration order. Based on these revelations, appellants and their co-defendant filed a motion for a new trial, which was granted. See Record on Appeal, vol. 2, at 433-36. Before the new trial began, the government dismissed the charges against the third co-defendant.

At the second trial, which also was a jury trial, appellants again were convicted of conspiracy to import marijuana and importation of marijuana. ¹ The district court entered judgment on these convictions, and this appeal followed.

The major issues on this appeal involve the admissibility of John Steel's testimony from the first trial (Part II); the admissibility of certain hearsay declarations of Joseph Nadaline as related by Richard Manfredi (Part III); the sufficiency of the evidence as to both appellants (Part IV); and a challenge to Hicks' sentence based on Bifulco v. United States, 447 U.S. 381, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980), and North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (Part V).

II. ADMISSIBILITY OF PRIOR TESTIMONY OF JOHN STEEL

A. FACTS

The government's first witness at appellants' second trial was John Steel. Although Steel had testified at appellants' first trial, he had indicated prior to the second trial that he was unwilling to testify again. See 1st Supp. Record on Appeal, vol. 1, at 4, 8. Nevertheless, when Steel was called to the stand he began to answer questions about his personal background and his involvement in marijuana smuggling. ² Steel indicated that in late 1975 and early 1976 he was a major organizer in the smuggling and distribution of marijuana from South America into the United States. Specifically, Steel arranged the transportation of marijuana on large ocean-going vessels and the offloading of marijuana onto smaller boats to bring the drugs ashore. One of the vessels under Steel's supervision at this time was the CINA IV or GINA IV. ³ Steel testified that in mid-February of 1976, this vessel was bringing a load of marijuana from Columbia to an offloading point somewhere near the Bahamas.

After eliciting these facts from Steel, the prosecutor began a line of questions designed to tie appellants to Steel's smuggling activities. However, Steel refused to testify any further. Record on Appeal, vol. 9, at 43-44; id., vol. 10, at 37-39. At first, Steel stated that he would not testify because he feared reprisals in jail. ⁴ A public defender then was appointed to represent Steel and advised him that he had a right not to testify under the Fifth Amendment, despite the fact that the government had granted him use immunity. ⁵ In any event, Steel persisted in his refusal to testify even though the court ordered him to testify and held him in contempt for failing to do so.

At this point in the proceedings, the government sought to read the transcript of Steel's testimony at the first trial into the record. The defense objected to the admission of this prior testimony, pointing out that Steel was one of the witnesses who had violated the court's witness sequestration order at the first trial. According to the defense, the opportunity to cross-examine Steel at the first trial had not been adequate because the sequestration violation had not been revealed until after the trial was over. In addition, the defense argued, the fact that the sequestration violation took place made Steel's first-trial testimony inherently unreliable. The district court rejected these contentions, ruling that Steel's refusal to testify rendered him unavailable within the meaning of Fed.R.Evid. 804(a)(2) and, therefore, that Steel's prior testimony was admissible as an exception to the hearsay rule under Fed.R.Evid. 804(b)(1). Consequently, the court permitted the government to read into the record the entire transcript of Steel's direct examination at the first trial.

The most important aspects of Steel's direct examination testimony from the first trial can be summarized as follows: Steel indicated that he had difficulty procuring boats to handle the offloading of 50,000 pounds of marijuana from the CINA IV in early February of 1976. Steel discussed this problem with John Boyd, ⁶ and Boyd stated that he knew a person who had "the ability and the boats to take the marijuana off the CINA IV." Record on Appeal, vol. 10, at 105. Subsequently, on February 10 or 12, 1976, Boyd brought appellant Monaco to a meeting at Steel's home. At the meeting, Boyd and Monaco agreed to offload the CINA IV and smuggle the marijuana into the United States. Steel gave Boyd a secret signal code and one-half of a 50-peso note that the captain of the CINA IV would use to identify the persons who had been hired to unload the marijuana. Boyd later told Steel that he had given the signal code and the half of the 50-peso note to Monaco. A day or two later, Steel's partner in Columbia informed Steel that approximately 1,200 pounds of marijuana had been removed from the CINA IV. When Steel asked Boyd to ascertain who had taken the marijuana from the CINA IV, Boyd arranged a meeting with a person named "Hickey" who supposedly was working with Monaco. Steel later identified "Hickey" as appellant Hicks. Hicks denied any responsibility for the 1,200 pounds of marijuana, but stated that he thought he knew who had taken the marijuana off the CINA IV. Steel then contacted Monaco, but Monaco also denied any knowledge of the offloading of 1,200 pounds from the CINA IV. Subsequently, however, Monaco told Steel that he would pay for 600 pounds of the marijuana. When Steel refused this offer, additional negotiations took place between the parties, and Boyd finally agreed to pay Steel for 1,000 pounds of the marijuana. No payment on this "settlement" was ever made.

After the government finished reading this direct testimony from the prior trial into the record, the district court allowed the defendants to attempt a cross-examination of Steel. Once again, Steel refused to testify about matters dealt with at the first trial. However, Steel agreed to answer questions regarding matters not covered at the first trial.

During this live cross-examination, Steel denied that he had violated the court's sequestration order during the first trial. Steel also denied that he had ever met or roomed with Lamar Fitzpatrick, one of the persons who had previously revealed that Steel had violated the sequestration order. Steel admitted that before he agreed to testify at the first trial, the government had promised to send a representative to his parole board hearing to recommend early parole. Steel also admitted that while he was still at a federal half-way house immediately after his parole hearing, he attempted to negotiate the sale of 200,000 quaaludes to a person who turned out to be an undercover narcotics agent. Throughout the cross-examination, however, Steel was hostile, evasive and contentious, repeatedly stating that he was "quitting" and that he would not testify further. Moreover, the cross-examination was interrupted by several profane outbursts by Steel in front of the jury. Eventually, in response to a proposal from the prosecutor after another outburst, the defendants agreed to conclude their cross-examination by reading into evidence the transcript of the cross-examination from the first trial. At the same time, the defendants expressly preserved their objections to the court's decision to admit any of Steel's prior testimony.

Later in the trial, the defendants called Lamar Fitzpatrick as a witness. Fitzpatrick testified that he had been Steel's roommate at the Federal Correctional Institution in Miami during the first trial. He stated that Steel had violated the court's sequestration order on numerous occasions, spending a considerable amount of time with two other witnesses in the case, Sam Sclafani and Ron Whitaker. Further, although Fitzpatrick was not privy to the substance of most of these conversations, he testified that he believed that these conversations concerned the case in which Steel and the others were witnesses. In addition, Fitzpatrick stated that on one occasion he overheard Steel ask Sclafani, "Why did you tell them that?" or something to that effect. When cross-examined on this latter allegation, Fitzpatrick stated that Steel already had finished testifying when he asked...