742 F.2d 1335 (11th Cir. 1984), 82-5547, United States v. Bascaro

Docket Nº:82-5547, 82-6043.
Citation:742 F.2d 1335
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Antonio E. BASCARO, Patrick M. Waldrop, Russell Hobson, III, Manuel Eric Villanueva, Gustavo J. Fernandez, Manuel W. James, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee, v. Manuel W. JAMES, Defendant-Appellee, Cross-Appellant.
Case Date:October 01, 1984
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1335

742 F.2d 1335 (11th Cir. 1984)

UNITED STATES of America, Plaintiff-Appellee,

v.

Antonio E. BASCARO, Patrick M. Waldrop, Russell Hobson, III,

Manuel Eric Villanueva, Gustavo J. Fernandez,

Manuel W. James, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee,

v.

Manuel W. JAMES, Defendant-Appellee, Cross-Appellant.

Nos. 82-5547, 82-6043.

United States Court of Appeals, Eleventh Circuit

October 1, 1984

        Rehearings and Rehearings En Banc Denied in No. 82-5547 Dec.

        6, 1984.

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        Max B. Kogen, Loren Cohen, Miami, Fla., for Bascaro.

        Albert J. Krieger, Miami, Fla., for Waldrop.

        James M. Shellow, Steven M. Glynn, Milwaukee, Wis., for Hobson.

        Weiner, Robbins, Tunkey & Ross, P.A., Geoffrey C. Fleck, Dean & Hartman, P.A., Miami, Fla., for Villanueva & Fernandez.

        Ferdinand W. Bockelman, Dept. of Justice, Mervyn Hamburg, Washington, D.C., Appellate Sect./Crim. Div., Kenneth W. Sukhia, Kevin M. Moore, Asst. U.S. Attys., Tallahassee, Fla., for U.S.

        Ron A. Dion, Atty., North Miami Beach, Fla., for Manny W. James.

        Lehrman & Denker, Paul A. Lehrman, Tallahassee, Fla., for F. James.

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

        Before HENDERSON and CLARK, Circuit Judges, and ATKINS [*], District Judge.

        CLARK, Circuit Judge:

        Appellants were tried and convicted in the Northern District of Florida on drug conspiracy charges. Their convictions are founded upon a series of incidents taking place in 1977 and 1978, involving the importation of massive quantities of marijuana into the United States from Colombia, South America. 1

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        Generally stated, the appellants, together with six other individuals (four of whom have either pled guilty or been separately tried and convicted, and two of whom remain fugitives), were charged in a thirty-count indictment in connection with their alleged involvement in a drug smuggling ring. Evidence adduced at trial indicates that appellants Bascaro and Villanueva, together with one Jose Acosta, who was separately tried and convicted, were the organizers and principal decision makers of the enterprise. Appellant Fernandez was responsible for overseeing the purchase of vessels to haul marijuana, and the hiring of crews to operate such vessels. Marijuana procured in Colombia and brought into the United States on board various vessels was purchased by appellants Hobson and Waldrop, among others, from an unindicted co-conspirator, Bill Cobb. Appellant James, an attorney, was the functional equivalent of "house counsel" for the group; James furnished legal advice, prepared documentation on fishing vessels owned by organization participants, and represented group members in criminal matters arising in connection with enterprise dealings.

        James was convicted on one count only--conspiracy to possess marijuana with intent to distribute. 2 All other defendants were found guilty of conspiracy to violate the Racketeering Influenced and Corrupt Organizations Act (RICO) 3; completed RICO substantive offenses 4; conspiracy to import marijuana 5; possession of marijuana with intent to distribute 6 (Bascaro--four counts; Villanueva, Fernandez and Waldrop--two counts; Hobson--one count); and with the exception of Bascaro, conspiracy to possess marijuana with intent to distribute. 7 In addition, Bascaro and Villanueva were convicted of engaging in a continuing criminal enterprise 8 and interstate travel in aid of racketeering enterprises, 9 and Hobson and Waldrop were convicted of importing marijuana. 10

        The appellants raise a myriad of issues on appeal, a number of which have been adopted by some or all defendants, and others that apply only to one or two defendants in particular. We shall first address those issues common to all or nearly all appellants.

Common Issues

       I. In General--Marijuana Related Offenses as a Basis for Prosecution Under RICO

        The Racketeering Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Sec. 1962, makes it unlawful to conduct or participate in the conduct of an enterprise affecting interstate commerce, through a pattern of racketeering activity, and also makes it a crime to conspire to do so. Racketeering activity is defined in terms of a laundry list of offenses, including "the felonious manufacture, importation, receiving, concealment, buying, selling, or otherwise dealing in narcotic or other dangerous drugs, punishable under any law of the United States." 18 U.S.C. Sec. 1961(1)(D) (emphasis supplied).

        Joining appellant Hobson in his brief to this court is G. Robert Blakey, a professor of law at Notre Dame and a principal drafter of the RICO statute. Professor Blakey argues that marijuana offenses do not qualify as racketeering activity under RICO, because Congress did not intend the phrase "narcotic or other dangerous drugs" to include marijuana offenses. In support of his position, he points out that proposed drafts of the Act, listing marijuana in addition to narcotic and other dangerous

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drugs, were considered but ultimately rejected, and that in the federal wiretap statute, which Professor Blakey also had a hand in drafting, wiretaps were authorized for suspected offenses involving "narcotic drugs, marihuana, or other dangerous drugs." 18 U.S.C. Sec. 2516(e) (emphasis supplied). Since Congress separately listed marijuana alongside narcotic or other dangerous drugs in the wiretap statute, its failure to do so in the RICO statute, the argument goes, reflects a congressional intent to exclude marijuana offenses from coverage under the Act.

        Our consideration of the appellants' argument is foreclosed by United States v. Phillips, 664 F.2d 971 (5th Cir. Unit B 1981). In Phillips, as here, it was argued that RICO did not apply to marijuana offenses. The holding in Phillips was explicit: "Marijuana may be the subject matter of a RICO charge," Phillips 664 F.2d at 1040. The appellants argue that Phillips is not controlling, because there, the basis for the defendant's claim was that marijuana is neither a narcotic nor a dangerous drug in fact, whereas here, the claim is grounded in legislative history and intent. However, the mere act of proffering additional reasons not expressly considered previously for accepting a particular statutory interpretation that has been explicitly rejected by a panel of our court, will not open the door to reconsideration of the question by a second panel. In short, Phillips held that marijuana may be the subject matter of a RICO charge; we are not at liberty to hold that it may not.

       II. Issues Relating to Matters Arising Prior to Trial

        A. The Wiretap

        On January 5, 1979, Florida law enforcement agent Stephen Dobson applied for and received authorization from a Florida circuit court judge to intercept telephone conversations on two telephones listed to unindicted co-conspirator Bill Cobb, for a period of thirty days. Within that thirty-day period, Cobb had the numbers on both of his telephones changed; the telephone company refused to intercept the new numbers without new court orders, and so Dobson returned to court on January 15 and 29 and obtained amendments to the January 5 order, substituting the new numbers for the old. On February 2, 1979, Dobson applied for and was granted a thirty-day extension of the amended January 5 authorization, and it was during the extension period that certain telephone calls were intercepted incriminating several of the appellants.

        1. Newly discovered evidence that the wiretap order was issued on the basis of false information

        The appellants' initial challenge respecting the sufficiency of the wiretap application concerns what might best be termed "newly discovered evidence." Dobson's original affidavit relied in part upon information obtained from an informant, Rayburn Morgan. In the affidavit, Dobson alleged that he interviewed Morgan on December 5, 1978, and credits Morgan with having furnished certain details of Cobb's involvement in the marijuana conspiracy prior to July 1978.

        In April 1983, several months after the conclusion of trial and while this appeal was pending, the defendants located Rayburn Morgan, and obtained his affidavit. Morgan stated that he did not make "many" of the statements attributed to him in the Dobson affidavit, and listed those statements with which he took issue. He added that he had reason to believe Cobb intended to kill him, for which reason he had been in hiding since the spring of 1978, and had made himself unavailable to all but the government prosecutors.

        On the basis of this newly discovered evidence, appellants insist that the Dobson affidavit failed to establish the probable cause needed to authorize a wiretap on Cobb's phone. Consequently, appellants continue, this court should remand the case to the district court, presumably for a determination of whether a new trial is in order.

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        Evidence discovered post-trial, calling into question the existence of probable cause for a search conducted by law enforcement officers, is properly considered by the district court in a motion for a new trial pursuant to Fed.R.Crim.Pro. 33. See, e.g., United States v. VanMaanen, 547 F.2d 50, 52-53 (8th Cir.1976). Rule 33 provides, however, that where, as here, such a motion is filed with the district court during the pendency of an appeal, the motion may be denied but may not be...

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