U.S. v. Zielie

• Decision Date: 25 June 1984
• Docket Number: No. 82-3167,82-3167
• Parties: 15 Fed. R. Evid. Serv. 1928 UNITED STATES of America, Plaintiff-Appellee, v. Chan Walker ZIELIE, Keith H. Gustafson, Thomas David Wilkerson, Robert Walter Govern, and Leon D. Mausser, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1447

734 F.2d 1447

15 Fed. R. Evid. Serv. 1928

UNITED STATES of America, Plaintiff-Appellee, v. Chan Walker ZIELIE, Keith H. Gustafson, Thomas David

Wilkerson, Robert Walter Govern, and Leon D.

Mausser, Defendants-Appellants.

No. 82-3167.

United States Court of Appeals, Eleventh Circuit.

June 25, 1984.

Larry Mark Polsky, Daytona Beach, Fla., for Zielie.

Neal R. Lewis, Miami, Fla., for Gustafson.

Wayne E. Flowers, Jacksonville, Fla. (court-appointed), for Wilkerson.

Grafton B. Wilson, II, Robert Jennings, Gainesville, Fla., for Govern.

Harvey H. Starkoff, Cleveland, Ohio, for Mausser.

John E. Lawlor, III, Asst. U.S. Atty., Jacksonville, Fla., for plaintiff-appellee.

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

Before FAY, VANCE and HATCHETT, Circuit Judges.

FAY, Circuit Judge:

This case involves a group of individuals who associated together to profit from a large marijuana distribution network. Thirteen defendants, including the five appellants, were originally charged in an eighteen-count indictment. ¹ Following a jury trial appellants were convicted of conspiring to violate and violating the racketeering statutes, 18 U.S.C. Secs. 1961, 1962(a), (c) and (d), and 1963 (1980); the Travel Act, 18 U.S.C. Secs. 1952(a)(3) and 2 (1980); the federal drug laws, 21 U.S.C. 841(a)(1) and 846 (1980) and 18 U.S.C. Sec. 2 (1980); and the personal income tax laws, 18 U.S.C. Sec. 371 (1980). Each appellant challenges his convictions on numerous grounds. After careful examination of each of their arguments, we affirm each appellant's conviction on each count charged in the indictment, with the exception of the conviction of Robert Govern on Count Twelve, which we vacate.

I. THE FACTS

Robert Govern supervised a large network which distributed multi-ton quantities of marijuana from 1977 until 1982. Tony Fernandez was the head of the importation phase of the operation. Directly under Fernandez was appellant Govern, the head of the American distribution network, who purchased the marijuana from Fernandez and then resold it. Appellant Gustafson and Todd Reynolds worked directly for Govern. Tom Tucker, Steve Liberatore, Emmett Holcomb and appellant Zielie were some of the buyers of Govern's marijuana. These buyers, in turn, had their own employees in the network. Appellant Mausser accepted payments for the marijuana and was part of Govern's money laundering projects.

The evidence showed a highly structured and well-organized distribution network. There were numerous farms used as stash houses in Florida, Georgia and Texas. The money was kept and collected at Govern's Holatee Trail house in Florida. The marijuana was usually distributed in quantities ranging from 28,000 to 32,000 pounds. ² There was a whole network of drivers. Deliveries and pick-ups could only be made between 8:00 a.m. and 5:00 p.m., Monday through Friday. Employees in the operation had fixed weekly salaries. By late 1978 the distribution network had expanded outside of Florida.

This successful enterprise generated huge amounts of cash. The evidence showed that Govern had a cache of at least $2.5 million. Govern, through an attorney, set up an off-shore corporation named Mexivest, N.V. It served as the conduit for channeling Govern's drug money into an apartment complex and a lumber business. Money was also laundered by many off-the-books and under-the-table transactions with the subcontractors involved in the construction of the apartment complex. From the purchase of the marijuana from Fernandez through the process of channeling the money into other investments, the evidence clearly indicated a group of individuals associated in fact for the purpose of making money through a coordinated and connected series of marijuana transactions.

II. CHAN WALKER ZIELIE'S CLAIMS

A. Speedy Trial Act

Chan Walker Zielie appeals the district court's refusal to dismiss his indictment on the ground that he was denied the right to a speedy trial in violation of the Speedy Trial Act, 18 U.S.C. Secs. 3161-3174 (1976). Zielie was indicted in this case on April 13, 1982. On April 14, he made his first appearance before a judicial officer in the district where the indictment was returned. The only motions that he filed were a motion for a speedy trial and several motions to be excused from hearings involving his codefendants. The case was set for trial on June 21, 1982.

From April 22, 1982, through June 24, 1982, Zielie's codefendants filed various pretrial motions. On May 28, 1982, the government filed a motion for continuance of the trial date. Zielie objected to the motion and once more demanded a speedy trial. Several of his codefendants also filed motions to continue the trial and the district court granted the motions on June 8 to serve the ends of justice. The trial was reset for August 16, 1982. On August 12, 1982 Zielie filed a motion for discharge based upon a violation of the Speedy Trial Act and the district judge denied the motion. Zielie's argument that his right to a speedy trial was violated is based on his inclusion in his computation of the time periods during which various pretrial motions of his codefendants were pending. Yet, by doing this he ignores both Congress' statutory intent and the law in this circuit.

Section 3161(c) of the Speedy Trial Act provides essentially a seventy-day period within which a defendant must be tried.

In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs....

18 U.S.C. Sec. 3161(c).

Yet in calculating the seventy day period, Section 3161(h) of the Act excludes time during which certain proceedings involving the defendant or a codefendant are pending. Among these exclusions are three periods of time relevant to this appeal:

(h) The following periods of delay shall be excluded in computing the time within which an information or an indictment must be filed, or in computing the time within which the trial of any such offense must commence:

(1) Any period of delay resulting from other proceedings concerning the defendant including but not limited to--

(F) delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion;

* * *

(J) delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court.

* * *

(7) A reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted.

The primary purpose of the Speedy Trial Act is to accelerate criminal trials. Congress enacted Section 3161(h)(7) because it recognized that multidefendant trials are desirable for prompt efficient disposition of criminal cases. It stressed that "the purpose of the provision is to make sure that [the Speedy Trial Act] does not alter the present rules on severance of codefendants by forcing the government to prosecute the first defendant separately or to be subject to a speedy trial dismissal motion under Section 3162." S.Rep. No. 93-1021, 93rd Cong., 2d Session (1974). For this reason the rule in this circuit is clear that a time exclusion that applies to one defendant is applicable to all codefendants. United States v. Campbell, 706 F.2d 1138 (11th Cir.1983); United States v. Stafford, 697 F.2d 1368 (11th Cir.1982); United States v. Varella, 692 F.2d 1352 (11th Cir.1982); United States v. Davis, 679 F.2d 845 (11th Cir.1982). Even though Zielie may not have triggered any excludable periods of delay by the filing of his own motions, the periods of excludable delay generated by the motions of his codefendants are attributable to him under Section 3161(h)(7). There was no violation of Zielie's speedy trial rights in this case.

B. Right to be Appointed as Co-Counsel.

Zielie was represented by counsel in this case from the time of his first appearance. On August 12, 1982, four days prior to the beginning of the first trial, Zielie moved to have himself admitted as co-counsel in the case. He believed that most of the trial would relate only to his codefendant Govern, and he could, therefore, have his counsel attend the trial only on the days that directly involved his case. He would act as his own counsel during the rest of the trial. The trial court denied his motion. He now asserts on appeal that he was denied his sixth amendment right to self-representation by the court's order.

It is settled law that a defendant has the right to represent himself in a criminal trial, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); 28 U.S.C. Sec. 1654. He also has the right to the assistance of counsel. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). The concept of self-representation has been codified in 28 U.S.C. Sec. 1654 (1980) which states that "[i]n all courts of the United States ... parties may plead and conduct their own case personally or by counsel...." However, this provision does not give the criminal defendant the right to a hybrid representation, i.e., partly by counsel and partly by himself. Courts have consistently interpreted the statute as stating a defendant's rights in the disjunctive. United States v. Shea, 508 F.2d 82, 86 (5th Cir.), cert. denied, 423 U.S. 847, 96 S.Ct. 87, 46 L.Ed.2d 69 (1975); United States v. Lang, 527 F.2d 1264 (4th Cir.1975); Duke v. United States, 255 F.2d 721 (9th Cir.1958). The district court did not err in refusing to let Zielie appear as co-counsel.

C. Opening Statement

The second trial...