U.S. v. Kelly

• Decision Date: 10 January 1985
• Docket Number: Nos. 83-8261,83-8267,s. 83-8261
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Albert KELLY, D.J. Dorn, and Miguel Falcon, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Evasio GARCIA, George Garcia, and Jon Taute, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1541

749 F.2d 1541

UNITED STATES of America, Plaintiff-Appellee, v. John Albert KELLY, D.J. Dorn, and Miguel Falcon,

Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Evasio GARCIA, George Garcia, and Jon Taute, Defendants-Appellants.

Nos. 83-8261, 83-8267.

United States Court of Appeals Eleventh Circuit.

Jan. 10, 1985.

Amanda Maxwell, South Miami, Fla., for J.J. Dorn.

Richard Hersch (court-appointed), South Miami, Fla., for Falcon.

Dennis W. Hartley, Colorado Springs, Colo., for Kelly and D.J. Dorn.

Frank A. Rubino, Coconut Grove, Fla., for George Garcia.

Highsmith & Strauss, Ronald I. Strauss, Phillip Glatzer, Coconut Grove, Fla., for Evasio Garcia and Taute.

Joseph D. Newman, Asst. U.S. Atty., Savannah, Ga., Sara Criscitelli, U.S. Dept. of Justice, Washington, D.C., for the U.S. in both cases.

Frances J. Martin, Washington, D.C., for the U.S. in No. 83-8267.

Margaret Miller, Washington, D.C., for the U.S. in No. 83-8261.

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

Before HENDERSON and HATCHETT, Circuit Judges, and NICHOLS ^*, Senior Circuit Judge.

HATCHETT, Circuit Judge:

This appeal reviews the appellants' convictions for conspiracy to possess, import, and distribute marijuana, as well as convictions for possession and importation of marijuana. We reverse the conviction of one appellant; the convictions of the other appellants are affirmed.

I.

At 2 a.m. on November 23, 1982, a "concerned citizen" telephoned Officer Dwayne Swygert, a supervisor with the United States Customs Patrol in Savannah, Georgia, relating that "Jerome Brown was supposedly organizing a smuggling venture in the McIntosh area. Jerome Brown had allegedly approached a local McIntosh resident, Bruce Townsend." The caller provided information leading to the location of the "Gigi" in the Eulonia, Georgia, area on Cedar Creek at Jacob's Dock. From the time of the location of the "Gigi" on the afternoon of November 23rd, the Customs agents conducted surveillance on the "Gigi" continuously, except for a period of nine hours on November 26. Surveillance ceased thirty minutes after the "Gigi" left the dock at 3:45 a.m. on November 28th.

The government's chief witness was Webster Tyrone "Jerome" Brown. ¹ During Thanksgiving week in 1982, Brown received a telephone call from George Garcia. Garcia requested that Brown locate "a car," which Brown took to mean a shrimp boat. Pursuant to that conversation, Brown contacted Bruce Townsend, the owner of a shrimp boat named the "Gigi." Brown, Townsend, Bud Thomas, and Evasio Garcia boarded the "Gigi." Evasio Garcia inspected the engine, checked for evidence of water seepage, measured certain storage compartments on the boat, and conducted an inventory of the electronic equipment on board. On November 23, Joseph Saunds met with Brown and Wilfredo Cejas in a local motel to discuss Saunds's role as captain of the "Gigi." ² Cejas told Saunds that the "Gigi" should rendezvous with a freighter named the "Largo Izabal" at 12 Noon on November 28th. Further, Cejas identified a rendezvous point on a nautical chart and instructed Saunds on how to tie up the "Gigi" with a larger ship so that the marijuana could be transferred to the "Gigi" in rough seas. Saunds was instructed to take his cargo to Belvedere Landing where a crew would offload the marijuana into trucks.

On Saturday, November 28, at about 3:30 a.m., Brown delivered to the dock the "Gigi's" crew, including John Dorn, Dennis Dorn, John Kelly, and Miguel Falcon. Brown then drove Cejas back to a motel and then went to meet Saunds for the purpose of delivering "front money" to him prior to the voyage of the "Gigi." Brown returned to the motel, picked up Cejas, and they returned to Brown's home where they met with George Garcia, Evasio Garcia, Jon Taute, and another unidentified individual.

The "Gigi" departed for its rendezvous with the "Largo Izabal." The U.S. Coast Guard ship "Cape Upright" waited off the mouth of Sapelo Sound, ready to follow the "Gigi." At approximately 9:30 a.m., radar contact was made with the "Gigi" as it left the Sound. At 12 Noon the "Gigi" reached the appointed rendezvous spot about thirty-five miles offshore and anchored to await arrival of the mother ship. While waiting, Saunds showed Kelly the radar readings and received instructions that the mother ship would arrive at the rendezvous point by 5 o'clock. ³ At 5 o'clock, Saunds received a radio message from the freighter announcing its arrival. Once the shrimp boat and the freighter were secured together, the "Gigi's" crew spent approximately two hours transferring the bales of marijuana to the "Gigi."

On shore, a group of Cubans staying at Brown's house prepared to go to Belvedere Landing to assist in the offloading operation. A few hours before dawn on November 28, Brown drove the Cubans in a van to the entrance of Harris Neck Road near Highway 31. Equipped with a walkie-talkie, Brown maintained a look-out position while the Cubans drove on to the offload site at Belvedere Landing.

After the transfer of the marijuana, the "Gigi" headed back to Sapelo Sound. Once the "Gigi" entered the channel, a Customs vessel seized and boarded the boat, arresting all of its crew. The Coast Guard seized the mother ship after fifteen hours in which the Coast Guard fired fifteen warning shots and a series of disabling shots.

On shore, Drug Enforcement Administration agents arrested Cejas and George Garcia at a camper parked near the Bell Bluffs Campground. As Agent Craig approached the camper, he heard a warning over the radio to the effect that "Charlie's got company ... the monkeys are out." ⁴ As Agent Craig got out of his vehicle, Cejas exited the camper. George Garcia was discovered inside the camper at the sink. Both men were arrested. The camper contained "a large amount of radio equipment." Customs agents also arrested Evasio Garcia and Jon Taute while they were sitting in a car parked near the driveway of Brown's house. State agents seized the two trucks to be used in the offloading operation and arrested the occupants. Other members of the offload crew were arrested on Harris Neck Road and in the nearby woods. A GMC van and an abandoned radio and hunter's stool were seized near the offload area.

II.

Appellants, George Garcia, Miguel Falcon, Jon Taute, Evasio Garcia, John Kelly, and Dennis Dorn were indicted on December 3, 1982 in the Southern District of Georgia. ⁵ All defendants, except Falcon, were charged with conspiracy to possess marijuana with intent to distribute, in violation of 21 U.S.C.A. Secs. 846 and 841(a)(1) (1982), and conspiracy to import marijuana in violation of 21 U.S.C.A. Secs. 963 and 960 (1981). ⁶ In addition, Dorn and Kelly were charged with possession with intent to distribute and aiding and abetting, in violation of 21 U.S.C.A. Sec. 841(a)(1) (1982) and 18 U.S.C.A. Sec. 2 (1982), and importation in violation of 21 U.S.C.A. Sec. 952(a) and 18 U.S.C.A. Sec. 2; Falcon was charged with importation. ⁷

The jury found George Garcia, Jon Taute, and Evasio Garcia guilty of conspiracy to possess with intent to distribute and conspiracy to import; it found Miguel Falcon guilty of importation; and it found John Kelly and Dennis Dorn guilty of possession with intent to distribute, conspiracy to possess with intent to distribute, importation, and conspiracy to import.

The six appellants raise five issues on appeal. First, they raise the issue of sufficiency of the evidence, each claiming that the evidence, even taken in a light most favorable to the government, was insufficient to convict him. Second, Jon Taute claims that the trial court erred in refusing to suppress his incriminating statements obtained in violation of his sixth amendment right to counsel. Third, John Kelly claims that his right to assistance of counsel was violated through the denial of his motion for continuance to change counsel. Fourth, John Kelly and Dennis Dorn claim that their right to conflict-free assistance of counsel was violated because their lawyer, Ryland, was a "target" of government investigation in this case. Fifth, John Kelly and Dennis Dorn also claim that the trial court abused its discretion in failing to hold a mid-trial hearing to explore whether a juror had indicated hostility toward drug offenders generally. We will address each of these claims in turn.

III. Sufficiency of the Evidence

We must determine whether, in the light most favorable to the government, a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt as to each appellant. United States v. Vera, 701 F.2d 1349, 1357 (11th Cir.1983); see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942).

All reasonable inferences from the evidence must be drawn in favor of the jury's verdict. United States v. Johnson, 713 F.2d 654, 661 (11th Cir.1983). A reversal is in order only if 'the evidence, viewed in the light most favorable to the Government, is such that a reasonably minded jury must have a reasonable doubt as to the existence of the essential elements of the crime charged.' United States v. Barrera, 547 F.2d 1250, 1255 (5th Cir.1977) (emphasis in original). The government need not prove that the facts of the case are inconsistent with the defense's theory of the case. The jury is free to choose among alternative reasonable constructions of the evidence. United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc ), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983).

'To support a conviction of conspiracy, the government must prove that an agreement existed between two or more persons to commit a crime and that the defendant knowingly and voluntarily joined or participated in the conspiracy.' Vera, 701 F.2d at 1357. For the government to prevail on a charge of possessing, the possession need not be actual, but may be...