769 F.2d 453 (8th Cir. 1985), 84-5223, United States v. Moeckly

Docket Nº:84-5223 to 84-5225.
Citation:769 F.2d 453
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Kent August MOECKLY, Joseph Diego Ramirez, and William J. Coulombe, Defendants- Appellants.
Case Date:July 15, 1985
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 453

769 F.2d 453 (8th Cir. 1985)

UNITED STATES of America, Plaintiff-Appellee,

v.

Kent August MOECKLY, Joseph Diego Ramirez, and William J.

Coulombe, Defendants- Appellants.

Nos. 84-5223 to 84-5225.

United States Court of Appeals, Eighth Circuit

July 15, 1985

Submitted June 11, 1985.

Rehearings and Rehearing En Banc Denied Oct. 17, 1985.

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Phillip S. Resnick and Ronald Mesbesher, Mark W. Peterson, Minneapolis, Minn., for defendants-appellants.

John M. Lee, Asst. U.S. Atty., Minneapolis, Minn., for plaintiff-appellee.

Before ARNOLD, Circuit Judge, PHILLIPS, [*] Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

PHILLIPS, Senior Circuit Judge.

Defendants Kent Moeckly, Joseph "Casey" Ramirez, and William Coulombe appeal separately their convictions for conspiracy to import cocaine, 21 U.S.C. Sec. 963, and conspiracy to possess cocaine with intent to distribute it, 21 U.S.C. Sec. 846. The indictment charged these conspiracies were in existence from early 1981 through April of 1983 and were carried out in Minnesota, Florida, and elsewhere. Appellant Moeckly also was convicted of two counts of perjury before a grand jury investigating defendants' smuggling activities, 18 U.S.C. Sec. 1623. Following their convictions upon jury verdicts, they received the following penalties: Moeckly was sentenced to serve seven years of imprisonment and received a $10,000 fine. Coulombe received a total penalty of ten years of confinement and a $10,000 fine. Ramirez received a total sentence of twenty years of confinement and a $50,000 fine. Defendants filed timely appeals to this court. We affirm the convictions.

I

This prosecution arose when a small airplane belonging to defendant Ramirez was abandoned in the Bahamas with twelve duffel bags of cocaine after being pursued by United States customs planes. Ramirez operated a fixed-base operation at the Princeton, Minnesota airport, a business

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providing storage and maintenance services for private airplanes, as well as flight lessons.

On April 20, 1983 Ramirez placed a telephone call from Florida to Gregory Schmidt in Minnesota, requesting him to fly one of Ramirez' planes, a Cessna 210, No. 6544 Yankee, from Princeton to Florida. Schmidt was the prosecution's chief witness; he testified under a promise of immunity from prosecution for smuggling charges. The next day, Schmidt flew the plane to Fort Lauderdale and was met at the airport by Ramirez and Moeckly. The three went to a townhouse owned by Ramirez and later returned to the airport. They installed four or five extra fifteen gallon fuel tanks into another of Ramirez' planes, a Cessna 210, No. 6608 Charlie, and had it fueled. Ramirez gave a $100.00 tip to the person who fueled the plane. The three then returned to Ramirez' townhouse.

Schmidt testified that Coulombe came by the townhouse sometime that evening. Ramirez decided that it would be Coulombe, and not Schmidt, who would fly 6608 Charlie on a smuggling mission from South America and be paid $50,000. Later that night, Schmidt and Moeckly prepared a large lunch for Coulombe's flight. The following morning, Friday, April 22, 1983, Ramirez, Schmidt, and Moeckly loaded the lunch, a life raft, and other gear onto 6608 Charlie, and connected auxiliary fuel pumps. The co-pilot's seat had been taken out of the plane. Coulombe checked out of his hotel at 6:20 a.m., met the others at the airport, and took off with a single male passenger. That afternoon, Ramirez' girlfriend, Pamela Jackson, arrived to vacation with him.

On Saturday afternoon, Ramirez asked Schmidt and Moeckly to fly his planes in a "cover" operation to determine whether Coulombe was being pursued by customs aircraft upon his return. Ramirez was to fly another of his planes. They operated on a particular radio frequency and were to use prearranged codes. Moeckly was to fly "touch and goes" at the Opa Locka West airport, a remote and unoccupied airport where, according to Schmidt, Ramirez and Moeckly had landed on a previous occasion, and Moeckly had criticized Ramirez for using his name on the radio frequency.

Schmidt heard Ramirez and Coulombe converse and Ramirez gave a signal to indicate trouble. Ramirez gave instructions to evade two customs planes that were in pursuit. Schmidt and Moeckly landed their planes at Boca Raton airport after Ramirez and Coulombe had decided to abandon Florida airspace. Moeckly told Schmidt that Coulombe and Ramirez probably flew to the Bahamas and that they should stay away from Ramirez' townhouse. Pamela Jackson later relayed a message to Schmidt to fly to the Bahamas.

A customs pilot testified he observed evasive maneuvers by 6608 Charlie and that it finally headed toward the Grand Bahamas while continuing its evasive maneuvers. It made two approaches to a field, passed over Freeport airport, and landed on a dirt road between 5:00 and 5:15 p.m. The pilot observed green duffel bags in the plane. Ramirez landed at the Freeport airport at 5:20 p.m. in 5296 Yankee according to customs documents. At 7:00 p.m., Bahamian police located 6608 Charlie and removed five blue plastic gas cans and twelve duffle bags of cocaine. Schmidt landed at Freeport airport around 10:30 p.m. and was met by Ramirez who informed him that Coulombe had landed on the island. After a search, they found Coulombe and brought him to a hotel. Ramirez criticized Coulombe for not burning the plane. Coulombe was angry over the loss of the 400 pound cargo of cocaine.

In a secondary search of 6608 Charlie, sixteen international aeronautical maps were recovered. Eight of these bore 44 fingerprint impressions and seven palmprint impressions of Coulombe concentrated along the path to South America. One had multiplication figures apparently reflecting the pounds of cocaine loaded on the plane. Four of Ramirez' fingerprint impressions were identified on one of the maps. The canvas bags were found to

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have 181 fiberglass-encased packages each containing a kilogram of cocaine, a total of 398 pounds.

On Sunday, April 24, 1983, Ramirez instructed Schmidt and Coulombe to ditch a seat from 6608 Charlie in the ocean. Upon their return that day to the United States in 5296 Yankee, Schmidt filed a customs report listing himself as pilot and Coulombe as a passenger. They returned to Ramirez' townhouse where Moeckly and Jackson were waiting. Ramirez flew back separately and went to the townhouse where he argued with Coulombe about his refusal to pay Coulombe for the mission. Schmidt and Moeckly then flew to Minnesota in 6544 Yankee.

Schmidt had flown from Minnesota to Florida to assist Ramirez in preparing 6608 Charlie for similar flights and had flown cover on other occasions in 1982. Schmidt had been acquitted of perjury in a trial in May 1984. He offered to testify in return for immunity from smuggling charges. The district court held a hearing to evaluate inconsistencies between statements he made and previous testimony he had given and to determine whether he had received immunity from perjury charges for his trial testimony. Schmidt previously had denied knowing how Coulombe got to the Bahamas and denied having searched for him with Ramirez. Schmidt admitted being threatened with prosecution if he refused to testify against Ramirez. He admitted to smuggling activity and cover operations that he had denied previously. At trial, Schmidt described previous operations with Ramirez that used common plans or schemes, including cover flights, use of radio frequencies and codes, use of auxiliary fuel containers, use of the same plane, 6608 Charlie, and operations smuggling guns or drugs from South America. He testified that Moeckly also had flown cover for Ramirez on another occasion.

Apart from Schmidt's testimony, the Government introduced other evidence of Ramirez' past activity. Stephen Lett testified, over objection by Coulombe's counsel, that Ramirez made four trips to the Bahamas with him, two of which involved attempts to purchase marijuana. Jack Devoe testified under a plea agreement conditioning the Government's sentencing recommendation on the quality and quantity of his trial testimony. He had pleaded guilty to federal smuggling charges and faced between thirty and ninety years of imprisonment. The sentencing recommendation would affect this sentence as well as parole eligibility and further immunity. Devoe testified he was aware that how he testified would affect his sentence. His testimony was allowed by the court despite objections that he had an incentive to perjure himself. Devoe testified that he had made several smuggling trips with Ramirez between 1980 and 1981, and helped Ramirez set up his own operation. He testified Ramirez admitted smuggling cocaine in Cessna 210 airplanes such as 6608 Charlie. Devoe had given testimony previously in other trials. The district court ordered the Government to supply this prior testimony to the defense, and it supplied Devoe's testimony from a federal trial in West Palm Beach and before a grand jury in Minneapolis. The Government was not able to supply his testimony before a Bahamian commission, testimony before a state grand jury in Miami, or testimony in a federal trial in Miami.

Marvin Osheroff, a Hialeah dry cleaner, testified over objection that Ramirez brought a green duffel bag to his establishment early in 1981. He stated that the bag was full of over $1 million in cash that Ramirez transferred to some suitcases. Osheroff produced the bag and it was found to contain traces of cocaine. The bag was similar to those used to transport cocaine.

Over objection, Donald Perbix testified to large cash deposits Ramirez made at the Community State Bank of...

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