U.S. v. Reme, 83-5076

• Citation: 738 F.2d 1156
• Decision Date: 09 August 1984
• Docket Number: No. 83-5076,83-5076
• Parties: 16 Fed. R. Evid. Serv. 40 UNITED STATES of America, Plaintiff-Appellee, v. Fritznel REME and Fritz Pierrot, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1156

738 F.2d 1156

16 Fed. R. Evid. Serv. 40

UNITED STATES of America, Plaintiff-Appellee, v. Fritznel REME and Fritz Pierrot, Defendants-Appellants.

No. 83-5076.

United States Court of Appeals, Eleventh Circuit.

Aug. 9, 1984.

Luis A. Fors, Miami, Fla., court appointed, for Reme.

Jose Batista, Reemberto Diaz, Hialeah, Fla., for Pierrott.

Stanley Marcus, U.S. Atty., Michael W. Burnbaum, Linda Collins-Hertz, Sonia Escobio O'Donnell, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before GODBOLD, Chief Judge, TJOFLAT and HENDERSON, Circuit Judges.

GODBOLD, Chief Judge:

Appellants Reme and Pierrot are two Haitian nationals who arrived in this country by boat along with approximately 80 of their countrymen. They were convicted by a jury on 14 counts of transporting the other Haitians to this country and on one count of conspiring to do so. They appeal, and Pierrot also challenges his sentence. We affirm the convictions but vacate Pierrot's sentence and remand to the district judge for a new sentencing hearing.

I. FACTS AND PROCEDURAL HISTORY

On October 1, 1981, a primitive wooden sailboat 30 to 40 feet in length left Haiti for the United States with approximately 89 people on board, including appellants Reme and Pierrot. Three weeks later, after an arduous voyage, the boat landed at Miami Beach. The boat people were Haitian nationals without visas or other documents permitting their legal entry into the United States. As soon as the vessel landed those on board were rounded up by police and taken to a detention center and detained as illegal aliens.

On July 9, 1982, a grand jury returned a 15-count indictment against Pierrot, Reme, and eight others. ¹ Count I charged them with conspiring to bring into and land in the United States 77 illegal aliens, in violation of 8 U.S.C. Sec. 1324(a)(1) (1982) and 18 U.S.C. Sec. 371 (1976). Counts II through XV charged all ten defendants with transporting, or attempting to transport, 14 named aliens into the country in violation of 8 U.S.C. Sec. 1324(a)(1) (1982) and 18 U.S.C. Sec. 2 (1976).

Pierrot's pretrial motion to dismiss the indictment for denial of speedy trial was denied. Pierrot filed another pretrial motion to prohibit the government from introducing evidence concerning an alleged voodoo ceremony that occurred during the voyage and culminated in the disappearance of two passengers. This motion was also denied, and the case proceeded to trial.

The government's case included the testimony of five Haitian nationals who had been passengers on the sailboat. Witness Clement testified that Pierrot was the captain. Rec. 4:8, 5:78. In describing Pierrot's control over the boat and its occupants, Clement related in some detail how Pierrot made the passengers sing voodoo songs, Rec. 4:43, 5:105, and submit to searches for valuables and black magic, Rec. 4:27, ordered and controlled the distribution of food, Rec. 6:234, and water, Rec. 5:95, on the boat, and how Reme, Rec. 5:21, and Pierrot, Rec. 5:74, beat the passengers. Both defendants took turns steering the boat, Rec. 4:10-13, and issued commands to the passengers. Rec. 4:15, 5:112. According to the testimony of Clement, Rec. 5:30, when the South Florida coast was sighted, Pierrot and two of the other defendants warned those on board:

"If anyone talks, that is their problem."

They said that if anyone talks, saying that there were more people aboard, that they would have problems and that they, themselves, would not be in trouble.

We should say that the boat does not have any captain, everyone is helping.

Pierrot gave similar warnings to the Haitians while they were at the detention center. Rec. 5:42.

Clement described a voodoo ceremony that led to the disappearance of the two missing passengers, Luc Alliance and Luc Vixamar. Prior to the voodoo rituals the boat's progress had been hindered by lack of wind. Pierrot had ascribed this to the presence of someone on the boat who had "black magic." Rec. 4:25-26. He threatened to throw overboard anyone with black magic. Rec. 6:258. Ultimately, searches of the passengers turned up black magic on Alliance, Rec. 4:52, and Vixamar, Rec. 4:31. After a conference between Pierrot and four of the defendants who were acquitted, the two men were ordered undressed and bathed in special water. Then, pleading for their lives, they were made to sit cross-legged facing each other. All passengers other than Pierrot, Reme, several of the other defendants, and Vixamar and Alliance were sent below deck and remained there for the night. Rec. 4:63, 66. When everyone awoke the next morning, Alliance and Vixamar were gone. Rec. 5:166.

The government's other Haitian witnesses essentially corroborated Clement's testimony. Witness Belizire testified that the boat had two captains, Pierrot and Reme. Rec. 6:331. Witness Accilien testified that he had seen Pierrot working for Jasmine, the owner of the sailboat, prior to when the Haitians departed for this country. Rec. 6:217. Witness Baptiste testified that Jasmine introduced him to Pierrot the day the boat was to leave Haiti. Rec. 6:371-72. Accilien also stated that both Reme and Pierrot beat the passengers. Rec. 6:237.

At the close of the government's case all defendants moved for judgments of acquittal, which were denied. Pierrot declined to put on evidence. Reme and several other defendants testified in their own behalf and called witnesses. Motions for acquittal were renewed at the close of all the evidence and again denied. The jury found Reme and Pierrot guilty on all counts and acquitted the other five defendants.

Reme and Pierrot present several issues: (1) sufficiency of the evidence to support their convictions; (2) violation of Pierrot's speedy trial rights; (3) error in denying Pierrot's motion for mistrial; (4) abuse of discretion in denying Pierrot's motion for severance; (5) violation of Pierrot's right to a fair trial by the prosecutor's closing argument; and (6) denial of due process in the district court's reliance on hearsay concerning the voodoo murders in imposing Pierrot's sentence.

II. SUFFICIENCY OF THE EVIDENCE

In reviewing sufficiency we must view the evidence in the light most favorable to the government and draw all reasonable inferences and make all credibility determinations in support of the jury's verdict. Glasser v. U.S., 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). The verdict is sufficiently supported if, so viewed, the evidence would permit a reasonable trier of fact to conclude that the defendant is guilty beyond a reasonable doubt. U.S. v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc), aff'd on other grounds, --- U.S. ----, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt. Id. & n. 3.

Reme's contention that the evidence required a conclusion that he was a paying passenger and therefore could not be guilty of conspiring to transport or attempting to transport aliens has no merit. ² The Haitian passengers testified that Reme was one of the navigators. From this the jury could have inferred that he knew where the boat was headed and was attempting, in conjunction with Pierrot, to land the boat in the United States. The evidence established that none of the Haitians had papers permitting legal entry. These facts are sufficient to sustain Reme's conviction.

His assertion that he was simply a passenger is belied by the substantial control he exerted over the boat and its occupants. In addition to his navigation function Reme issued commands to the passengers and directed their movements on board. He spent the majority of the trip on the upper bridge area with the other defendants, while the passengers were ordered to remain below throughout almost the entire voyage. He beat passengers who failed to follow his commands. This evidence permitted reasonable jurors to conclude beyond a reasonable doubt that Reme was one of the principals in a smuggling operation and that his role was to help get the ship to the United States and to keep order on the boat during the trip.

Even if Reme was not paid that would not render his conviction invalid. The statute does not require payment as an element of the offense, and lack of payment does not render the evidence insufficient as a matter of law. U.S. v. Hanna, 639 F.2d 192, 194 (5th Cir. Unit B 1980), rehearing denied, 639 F.2d 194 (5th Cir. Unit B 1981). The indictment did state that one of the objects and goals of the conspiracy was to transport aliens "for the purpose of obtaining money," but it included other objects as well.

It was further an object and goal of the conspiracy that the defendants would keep control over the Haitian alien passengers during the course of the voyage to the United States by use of force.

There was overwhelming evidence that Reme shared in this object of the conspiracy.

Reme contends that he did not possess any knowledge that he was involved in a smuggling operation. The government's proof concerning Reme's activities on the vessel and the absence of papers permitting legal entry constitutes sufficient evidence for a reasonable trier of fact to conclude beyond a reasonable doubt that Reme intended to transport aliens into the country and that he knew of their illegal status.

The conspiracy conviction requires proof of an agreement to commit the substantive offense. U.S. v. Avila-Dominguez, 610 F.2d 1266, 1271 (5th Cir.), cert. denied sub nom. Perez v. U.S., 449 U.S. 887, 101 S.Ct. 242, 66 L.Ed.2d 113 (1980). Proof of Reme's agreement to commit the substantive offense is supplied by testimony that Pierrot and Reme jointly controlled the movements of both the boat and its passengers. From this evidence the jury could reasonably have inferred that Reme agreed with...