U.S. v. Wilson, 83-2125

Citation732 F.2d 404
Decision Date04 May 1984
Docket NumberNo. 83-2125,83-2125
Parties15 Fed. R. Evid. Serv. 978 UNITED STATES of America, Plaintiff-Appellee, v. Edwin P. WILSON, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Marian S. Rosen, Houston, Tex., for defendant-appellant.

Daniel K. Hedges, U.S. Atty., James R. Gough, Asst. U.S. Atty., Houston, Tex., for defendant-appellee.

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

Before GEE, POLITZ and JOHNSON, Circuit Judges.

POLITZ, Circuit Judge:

Convicted by jury of conspiracy, 18 U.S.C. Sec. 371, and of substantive counts arising out of an illegal shipment of plastic explosives, contrary to 18 U.S.C. Secs. 2 and 1001, 22 U.S.C. Sec. 2778(c), and 49 U.S.C. Sec. 1809(b), Edwin P. Wilson appeals, assigning multiple errors. Finding no reversible error, we affirm.

Procedural Background

Wilson, Edward Bloom and Donald Thresher were indicted for conspiracy to make an illegal shipment of twenty tons of C-4 plastic explosives from Houston, Texas to Tripoli, Libya in October 1977. Bloom and Thresher were severed. Bloom was separately tried and convicted; Thresher pled guilty to a misdemeanor charge.

The indictment contains four counts. Count one charges the conspiracy, 18 U.S.C. Sec. 371. Count two charges the presentation of a falsified Shipper's Export Declaration, which listed the explosives as drilling mud, 18 U.S.C. Secs. 2 and 1001. Count three charges the export of cyclotrimethylene trinitramine (the active ingredient in the C-4 explosive) without obtaining the required license from the State Department, in violation of 22 U.S.C. Sec. 2778(c), 18 U.S.C. Sec. 2, and Title 22 C.F.R. Secs. 121.01 (category V), 121.11, 123.01. Count four charges the illegal transportation of a hazardous material by cargo aircraft, in violation of 49 U.S.C. Sec. 1809(b), 18 U.S.C. Sec. 2, and 49 C.F.R. Secs. 172.100, 172.101.

Prior to trial two hearings were conducted. The first involved Wilson's motion to dismiss the indictment because of the manner in which he was taken into custody and brought before the court. Wilson maintained that the government had acted improperly in luring him back to the United States. The district court denied this motion. The court then conducted a James hearing and made the requisite findings of a conspiracy and Wilson's involvement in it. After trial, the jury returned verdicts of guilty on all four counts.

Factual Background

In early 1977, Jerome S. Brower, a manufacturer and distributor of explosives from Pomona, California, met with Wilson to discuss the purchase by Wilson of C-4 explosives for shipment to Libya. Brower obtained 40,000 pounds which he sold to Wilson for $13.75 per pound, payable in advance to Brower's account in a Swiss bank. The payment was made on August 18, 1977. At Wilson's direction, Brower prepared an invoice reflecting a price of $20 per pound.

After acquiring the C-4 from different sources Brower packaged it in five-gallon cans and covered it with drilling mud. Brower completed the disguise by affixing fictitious drilling mud labels.

The camouflaged explosives were trucked to Houston and loaded on a chartered DC-8 for ostensible shipment to Lisbon, Portugal. The flight did not terminate in Portugal, but continued to Tripoli, Libya where the aircraft was met by Wilson who directed the ultimate delivery of the explosives.

In the shipping process, Wilson's representative falsified the shipping documents by claiming that the cargo was drilling mud additive and by falsely declaring the destination. No license to export was secured and the cargo carrier was not informed of the hazardous nature of the shipment.

Assignments of Errors
1. "CIA Defense"

Wilson contends that he was denied a fair trial because evidence probative of his intent was excluded, thus denying him an opportunity to present his "CIA defense." He maintains that he was precluded from introducing evidence that he was either employed by the Central Intelligence Agency or his actions were welcomed and sanctioned by that agency. By showing the government's approval of his actions and that the apparent criminal acts were a cover for governmental operations, Wilson argues that he could have demonstrated his lack of specific intent to commit the violations charged.

The record belies Wilson's assertions that he was not accorded an opportunity to develop his "CIA defense." 1 He was allowed that opportunity. Wilson claims, however, that the exclusion of the testimony of former Attorney General Ramsey Clark and a portion of the proposed testimony of Victor L. Marchetti, undercut the development of this defense. There is no suggestion that Clark had personal knowledge of Wilson or of his activities. Marchetti denied having such knowledge. There is an indication that in an earlier case Clark testified that the CIA had once claimed non-involvement in an incident. This later proved untrue. The record also reflects that Marchetti formerly worked for the CIA but had left that employment 14 years before the trial and eight years before the C-4 shipment. Thereafter his knowledge about CIA activities and practices was limited to public information and conversations with friends in the agency. We find nothing to support a suggestion that Clark or Marchetti had any expert knowledge about the specific types of activities Wilson purportedly engaged in or about the CIA involvement in such activities.

Since neither Clark nor Marchetti had pertinent personal knowledge of Wilson or of his association or involvement with the CIA, their testimony could only relate to irrelevant issues or to facts involving the internal practices and procedures of the agency. Clark had no such knowledge and Marchetti's knowledge was dated. If they were ostensible expert witnesses on agency practices and procedures it fell within "the trial judge['s] broad discretion in the matter of the admission or exclusion of expert testimony, and his action is to be sustained unless manifestly erroneous." Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 1122, 8 L.Ed.2d 313 (1962). Considering the attenuated nature of the proffered testimony, we cannot say that the trial court's exclusion constituted reversible error. See Perkins v. Volkswagen of America, Inc., 596 F.2d 681 (5th Cir.1979).

2. Good Faith Defense

Wilson contends that he was denied a fair trial because the trial judge declined to instruct the jury on his good faith defense. The trial judge refused the instruction for lack of sufficient evidence to support the claimed defense. We agree. United States v. Caicedo-Asprilla, 632 F.2d 1161 (5th Cir.1980). The evidence which Wilson marshals in support of this assigned error "was insufficient to instruct the jury on the availability of that defense." Id. at 1171. Wilson's evidence indicates that during the period of his activities in Libya, Wilson twice met with United States government officials, received a list of Russian military equipment from a CIA agent, discussed with U.S. officials the possibility of acquiring a Russian aircraft through Libya and delivered what was purportedly a set of plans for an atomic weapon. But there is no evidence of government authorizations, express or implied, for the C-4 shipment to Libya. The trial judge did not err in denying the good faith defense instruction.

3. Extraneous Offenses

Defendant contends that his trial was tainted by the government's introduction of evidence concerning extraneous offenses and incidents involving terrorism. Wilson complains of testimony that in 1976 he supported terrorist activities including the building of booby traps, letter bombs and the shipment of explosives to England. He complains of evidence that in 1979 similar cans as were involved in the instant shipment were seen in a Rotterdam warehouse and two such cans were recovered in 1982. He further complains of the use of a videotape showing the recovery of cans containing C-4 and detonation tests reflecting the explosive power of C-4. Wilson further complains of testimony by Brower about a contract Brower had to furnish personnel for production of certain "clandestine devices" in Libya. These devices included lamps that exploded instead of lighting, fire extinguishers that blew up instead of spraying an apyrous material, and briefcases which detonated on command. In closing argument the prosecutor stressed the terrorist training schools, explosive devices and the contents of the videotape.

The evidence was offered by the government under Fed.R.Evid. 404(b). 2 Admissibility of such evidence is governed by the rule as expressed in United States v. Beechum, 582 F.2d 898, 911 (5th Cir.1978):

First, it must be determined that the extrinsic offense evidence is relevant to an issue other than the defendant's character. Second, the evidence must possess probative value that is not substantially outweighed by its undue prejudice and must meet the other requirements of Rule 403.

The first prong is immediately satisfied; the government offered the evidence to establish Wilson's motive, intent and plan. The more difficult question is posed by the second requirement.

The advisory committee notes to Rule 404(b) caution that

No mechanical solution [to the issue of admissibility of extrinsic offense evidence] is offered. The determination must be made whether the danger of undue prejudice outweighs the probative value of the evidence in view of the availability of other means of proof and other factors appropriate for making decisions of this kind under Rule 403.

28 U.S.C.A. Rules of Evidence at 109 (1975). The determination of probative value vs. unfair prejudice "calls for a commonsense assessment of all the circumstances surrounding the extrinsic offense." Beechum, 582 F.2d at 914. Wilson sought to justify his acts by claiming that he had no intent to commit the charged crimes. The prosecution's evidence was probative of that essential...

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