721 F.2d 1514 (11th Cir. 1984), 82-8053, United States v. Carter
|Citation:||721 F.2d 1514|
|Party Name:||UNITED STATES of America, Plaintiff-Appellee, v. James Bazel CARTER, a/k/a|
|Case Date:||January 13, 1984|
|Court:||United States Courts of Appeals, Court of Appeals for the Eleventh Circuit|
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Ronald A. Dion, North Miami Beach, Fla., for Carter.
Lewis M. Groover, Jr., Atlanta, Ga., court-appointed, for Sapp.
William H. Glover, Jr., Brunswick, Ga., court-appointed, for James Holt Griffin.
Edward T.M. Garland, Steven H. Sadow, Atlanta, Ga., for Lemuel Morris and James W. Griffin.
M. Theodore Solomon, Alma, Ga., for Thomas Morris.
Robert Killian, Brunswick, Ga., court-appointed, for Joe V. Lightsey.
John P. Rivers, Brunswick, Ga., court-appointed, for Charlotte Lightsey.
Frank J. Pretrella, Atlanta, Ga., for Larry and Suzette Jackson.
Mervyn Hamburg, Crim. Div., Washington, D.C., for plaintiff-appellee.
Appeals from the United States District Court for the Southern District of Georgia.
Before JOHNSON and HENDERSON, Circuit Judges, and ALLGOOD [*], District Judge.
JOHNSON, Circuit Judge:
Typical of prosecutions under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.A. Secs. 1961 et seq., the present case involves ten appellants charged and convicted under various counts of a seven count indictment; the common thread connecting the appellants is found in their association with and participation in a drug smuggling and bribery ring operating in and around Appling County, Georgia. Untangling the skein of the various challenges to their convictions raised by the appellants, 1 we begin at the beginning of the prosecution. The indictment presented to the jury in this case 2 charged twelve defendants, including the ten appellants, with various crimes arising from the drug smuggling and bribery activities. Count One, on which eight appellants were charged and convicted, charged conspiracy to violate RICO, in violation of 18 U.S.C.A.
Sec. 1962(d). 3 Counts Two through Four, on which nine appellants were charged and convicted, charged possession of marijuana with intent to distribute, and aiding and abetting in the possession of marijuana with intent to distribute, in violation of 21 U.S.C.A. Sec. 841(a)(1) and 18 U.S.C.A. Sec. 2. Count Five, on which only appellant Charlotte Lightsey was charged and convicted, charged perjury before a grand jury, in violation of 18 U.S.C.A. Sec. 1623. Count Six, on which only appellants Larry and Suzette Jackson were charged and convicted, charged tax evasion, in violation of 26 U.S.C.A. Sec. 7201. Count Seven, on which only appellant Larry Jackson was charged and convicted, charged filing a false federal tax return, in violation of 26 U.S.C.A. Sec. 7206(1). 4
Each appellant challenges his or her convictions on numerous and varied grounds, some common to those of other appellants convicted on the same count, and others necessarily unique to each appellant. Generally, these challenges fall into one of six main categories: 1) the admissibility of recorded conversations between certain appellants and a co-conspirator; 2) challenges to the RICO conspiracy convictions; 3) sufficiency of the evidence to convict appellants on various counts; 4) the propriety of
cumulative sentences for RICO conspiracy and possession of marijuana with intent to distribute imposed on certain appellants; 5) the alleged denial of certain appellants' right to conflict-free counsel; and 6) tax issues raised by appellants convicted on Counts Six and Seven. We address these contentions seriatim and, after a careful review of the record, affirm each appellant's conviction on each count charged in the indictment, with the exception of the convictions of Larry and Suzette Jackson on Count Six, which we reverse.
II. THE FACTS
Simply stated, this case involves the association of a group of persons with the common objective of profiting from criminal activity entailing drug smuggling and bribery. The facts pertinent to each appellant's role and participation in this objective are here set forth.
Appellants Lemuel and Thomas Morris owned the Morris Brothers Dairy Farms, Inc., located twenty miles south of Baxley, in Appling County, Georgia, a largely rural area. Prior to March of 1980, an airstrip was constructed on an open field that was part of the dairy farm. This airstrip was used to land planeloads of marijuana and hashish for both Larry Jackson and Lemuel Morris, leaders of the smuggling operation. Access to the airstrip on the dairy farm was provided by a dirt road adjacent to Thomas Morris' house. A stash house for the drugs prior to distribution was located nearby.
The individuals involved in the drug smuggling and bribery operations can be divided into two groups: those who participated in the drug smuggling and bribery, and the law enforcement officials who provided protection for the drug smuggling activities. In the first group, Larry Jackson and Lemuel Morris were the leaders of the operations. Larry Jackson, a resident of Baxley, Appling County, Georgia, received the air shipments of drugs, stored them and arranged for their distribution. His partner, George Mitchell, a resident of Miami, Florida, arranged for the importation and delivery of the drugs to Appling County. Larry Jackson was instrumental in bribing law enforcement officials for protection of the drug smuggling. Lemuel Morris provided the airstrip necessary for deliveries to both Larry Jackson and himself, and bribed law enforcement officials for protection. Suzette Jackson, Larry Jackson's wife, was the group's bookkeeper, handled the money, and was present during deliveries. The other appellants played lesser roles in the group's affairs. James "Red" Carter, the former sheriff of Appling County, worked at the dairy farm and participated in deliveries to the airstrip; he also unsuccessfully attempted to bribe the Sheriff of Wayne County, Georgia, to permit the use of an airport in Wayne County for deliveries of marijuana without fear of arrest. Robert Wayne Sapp, who occasionally worked at the dairy, was an unloader for the drug shipments. James Holt Griffin refueled the airplanes and helped unload the drugs. James Washington "J.W." Griffin stored fuel for the airplanes and was present during the deliveries. Thomas Morris, Lemuel Morris' brother, was a co-owner of the dairy farm, the property upon which the airstrip and stash house were located, and managed its affairs.
The next group of individuals involved in the drug smuggling operations included the law enforcement officials who provided protection for the deliveries on the airstrip in return for bribes. Joe Lightsey, the sheriff of Appling County, headed this group. His wife, Charlotte Lightsey, monitored the police radio from her station in the sheriff's office when planeloads of marijuana were scheduled to arrive, and was present during meetings between Joe Lightsey and the other law enforcement officials that involved setting up the protection for deliveries. Larry Carter, Lightsey's deputy, and Rayford Phillips, a Georgia Bureau of Investigation agent assigned to Appling County, provided protection and participated in the drug smuggling operations; they were paid on behalf of Larry Jackson and Lemuel Morris by Joe Lightsey. Both
Larry Carter and Rayford Phillips testified on behalf of the government at appellants' trial.
At least as early as 1979, Larry Jackson and George Mitchell were bringing drugs into Appling County, Georgia. In December of 1979, Larry Jackson purchased approximately 2,000 gallons of airplane fuel from a company owned by Suzette Jackson, then Suzette Slade. This fuel was stored at J.W. Griffin's farm. Prior to March of 1980, the airstrip was constructed on the dairy farm, and the Morris-Jackson operation began.
In May of 1980, Joe Lightsey, Larry Carter and Rayford Phillips discussed joining Larry Jackson's drug business, and in early August all three met with Larry Jackson in a cemetery near Jackson's house. At this meeting, Jackson told them that they could earn anywhere from $5,000 to $10,000 each on every load of marijuana that came in by monitoring the police radio during the delivery of shipments and reporting the presence of the authorities. Larry Jackson told them he was expecting a shipment any day.
On the afternoon of August 29, 1980, Phillips and Larry Carter met with Joe Lightsey and Charlotte Lightsey in Charlotte Lightsey's office at the sheriff's department. Joe Lightsey told them that a load of marijuana would be arriving that night and arranged a meeting with Phillips and Carter to discuss the details. Joe Lightsey directed Carter to call the regularly scheduled sheriff's radio operator for that night and arrange for Charlotte Lightsey to monitor the radio and notify them if any calls came in about the drug delivery.
Larry Carter and Phillips met with Joe and Charlotte Lightsey at the Lightsey home as arranged. Joe Lightsey sent Charlotte Lightsey to monitor the radio at the sheriff's office; Phillips was sent to Surrency, Georgia, to monitor calls on the state police band; Carter was told to meet Larry Jackson at 7:30 that evening; and Joe Lightsey was going to be in the vicinity of the dairy farm in an unmarked patrol car. Later that evening, while present during the drug deliveries, Carter heard Joe Lightsey on...
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