U.S. v. Carter

Decision Date28 May 1985
Docket NumberNo. 83-3533,83-3533
Citation760 F.2d 1568
Parties18 Fed. R. Evid. Serv. 108 UNITED STATES of America, Plaintiff-Appellee, v. J.R. "Buddy" CARTER, Joy Carter, Kevin Sheehy, William M. "Billy" Butts, Defendants-Appellants.
CourtU.S. Court of Appeals — Eleventh Circuit

Bruce Rogow, Ft. Lauderdale, Fla., for Joy Carter.

Richard Hersch, Barry J. Siegel, South Miami, Fla., for Kevin Sheehy.

Karen Berkowitz, Tampa, Fla., for William Butts.

Bruce J. Ennis, Kit Kinports, Washington, D.C., for J.R. Carter.

Lynn Cole, Asst. U.S. Atty., Tampa, Fla., Kathleen A. Felton, Crim. Div., Appellate Section, Washington, D.C., for plaintiff-appellee.

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

Before FAY and JOHNSON, Circuit Judges, and DYER, Senior Circuit Judge.

FAY, Circuit Judge:

On July 9, 1981, United States Customs officials in Miami monitored and pursued a suspicious airplane as it made its way from the Bahamas into the United States. The plane eventually landed on a secluded grass airstrip along Florida's west coast. Federal agents quickly converged on the scene, but by the time they arrived, the suspects had fled. The agents did, however, find evidence of marijuana aboard the abandoned plane. Following a lengthy investigation, five suspects were indicted on federal drug charges. They were tried jointly and four of the five were convicted in a jury trial in federal district court. On appeal, defendants argue that: (1) the trial court erred in not granting defendants' motions for severance; (2) the agents' warrantless search of the plane was not a valid border search and the items seized were therefore inadmissible; (3) the trial court erred in not granting a mistrial on account of a government witness' reference to defendant Sheehy's prearrest silence; (4) the prosecutor improperly commented on defendant Sheehy's election not to take the stand; (5) the trial court erroneously admitted extrinsic offense evidence and co-conspirator statements; (6) the district court abused its discretion in restricting cross-examination and in limiting the time allowed for closing arguments; (7) there was insufficient evidence to support appellants' convictions; and (8) the trial court improperly relied on ex parte material in imposing sentence. We have reviewed these arguments and have found no grounds for reversal. Appellants' convictions are, therefore, affirmed.

I. FACTS

In the early evening of July 9, 1981, U.S. Customs officers at the Customs Command Control Center in Miami detected on radar a suspicious aircraft heading in the direction of the United States. At the time it was detected, the aircraft was located approximately twenty-seven miles northwest of Bimini and was on a course for southern Florida. The plane was not sending out a transponder signal, 1 and no flight plan had been filed in the United States.

Customs officers continued to track the plane as it headed toward the United States. When the aircraft passed within the twelve-mile territorial limit, Customs supervisors gave the order to scramble. Two Customs aircraft, a Citation jet referred to as Omaha 52, and a twin engine plane, Omaha 17, took off to intercept the suspect aircraft. The Command Center designated this suspicious plane Suspect 13.

The Citation jet, Omaha 52, quickly intercepted Suspect 13 as it made its way across southern Florida. Omaha 17 was close behind. According to the crew of Omaha 52, Suspect 13 was flying with its visual and landing lights off. Omaha 52 got close enough to Suspect 13 to get its tail number and identify it as a Cessna Skymaster 337 Push-Pull aircraft. The Customs jet then dropped back to continue following. As Suspect 13 approached the west coast of Florida, it began to make its descent into a rural area just south of Ft. Myers known as Corkscrew.

It was just getting dark as Suspect 13 made its landing on a secluded, unlit, grass airstrip. The crew of Omaha 52 watched from the air and could see two vehicles waiting for the plane at the end of the runway. As the plane landed, the vehicles had their headlights on and were facing each other. When the plane came to a stop between them, the lights went out.

The pilot of Omaha 52 considered landing directly behind Suspect 13, but realized that the short grass runway would not accommodate the small jet. It was decided that Omaha 17, now on the scene, would attempt to land. The twin engine plane made its approach and was just fifty feet above the airstrip when its lights illuminated a horse trailer which had been placed in the middle of the runway. The pilot quickly pulled up, narrowly averting disaster, and decided against any further attempt at landing.

Unable to land, Omaha 17 and Omaha 52 circled overhead while awaiting the arrival of a helicopter carrying armed Customs agents. During their wait, and with the aid of night vision equipment, the crew of Omaha 17 was able to observe several vehicles in the vicinity of the suspect aircraft. They could not tell, however, whether the aircraft was being unloaded. The Customs agents continued to watch as the two vehicles left the landing strip heading in opposite directions.

A short time thereafter, the Customs helicopter arrived. Omaha 52 directed the helicopter in along with ground units from the DEA and the Collins and Lee County Sheriff's Departments. One of the Sheriff's units responding to the call stopped a car which was coming from the direction of the airstrip. After briefly detaining the driver, Joy Carter, the deputies allowed her to leave. Customs officials would later learn that Joy Carter and her husband, Buddy, were primary suspects in the smuggling operation. 2

When the Customs helicopter landed, the agents immediately approached Suspect 13 and found its doors locked. The Cessna appeared empty. There were no other vehicles or persons present. A search of the outer perimeter was immediately undertaken. Finding nothing, the agents returned to the Cessna and managed to unlock the doors. Once the doors were open, the agents noticed the strong odor of marijuana coming from within. Small particles of what appeared to be marijuana were collected from inside the plane and a field test for the substance yielded positive results.

While the airport search continued, another group of agents drove down a nearby road in search of a vehicle which Omaha 17 had reported leaving the scene. The agents soon came upon an abandoned vehicle which was off the road and stuck in the sand. A set of footprints led from the driver's side into the underbrush. The agents followed the tracks approximately one mile when they came upon a woman who identified herself as Maryann Best. Best was sitting huddled on an abandoned piece of machinery and told the agents that she had been horseback riding. The agents decided to escort her back to the airfield for further questioning.

Meanwhile, back at the airstrip, the federal agents' search of the suspect aircraft continued. In addition to the traces of marijuana, a passport was discovered belonging to a Kevin Sheehy. The agents also found a bottle of insulin, some syringes, a Bahamas Flight Planning Chart, and a Jamaican road map. A certificate of aircraft registration was also discovered inside the plane and it revealed that the Cessna was owned by a Buddy Carter. The officers noticed, however, that the identification numbers painted on the plane were different from those listed on the certificate of registration. Upon closer observation, the officers discovered that portions of the tail numbers had been covered and altered with tape, and that with the tape removed, the numbers on the plane and the numbers on the certificate were indeed identical.

Approximately one hundred feet from where the Cessna had stopped stood a stilt house. When Maryann Best was brought back to the airstrip, she told the Customs agents that she and her boyfriend, William Butts, had been staying in the house and that the house belonged to Kevin Sheehy, the same individual whose passport had been found inside the plane. She further told the agents that they had a U-Haul and a jeep which they planned to use to move furniture. Neither the jeep nor the U-Haul were anywhere in sight, but tire tracks were evident around and between the house and the plane. There were also three sets of footprints near the plane. Agents testified that two of the sets of prints appeared to have been made by males, and the third set of prints by a female.

While searching the crime scene, the agents noticed that the door to the stilt house was open and that no one appeared to be inside. They entered the house and found two purses. One purse belonged to Maryann Best, whom the agents had just found hiding in the woods, and the other to Joy Carter, who was stopped earlier by sheriff's deputies as she drove away from the Corkscrew airstrip. Inside Best's purse, the agents found a rental contract for the U-Haul trailer.

The investigation continued for several months. Among other things, the agents learned that the horse trailer that was placed on the runway belonged to Buddy Carter, the owner of the plane. In addition, the agents' persistence eventually led them to Jeffrey Martin, an alleged accomplice who agreed to cooperate with the government. Martin told the agents that on the evening in question, at approximately 2:00 a.m., he received a telephone call from his friend Buddy Carter. Carter told Martin that he was calling from the Corkscrew General Store, that he had had some trouble, and that he needed a ride. Martin said that he drove to the store, which is adjacent to the airstrip, to pick up Carter. Carter emerged from the woods, got into Martin's car, and the two of them proceeded down the road with the car lights off. According to Martin, they drove a short distance down the road and picked up two more men--William Butts and Kevin Sheehy.

Martin told the agents that Carter asked to be...

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