U.S. v. Cotton

• Decision Date: 06 September 1985
• Docket Number: No. 84-8513,84-8513
• Citation: 770 F.2d 940
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul COTTON, Efrain Madrid, and Carlos Fernando Pereira, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 940

770 F.2d 940

UNITED STATES of America, Plaintiff-Appellee, v. Paul COTTON, Efrain Madrid, and Carlos Fernando Pereira Defendants-Appellants.

No. 84-8513.

United States Court of Appeals Eleventh Circuit.

Sept. 6, 1985.

Bobby Lee Cook, Summerville, Ga., and Rikki J. Klieman, Friedman & Atherton, Boston, Mass., for Cotton.

Victor Hawk, Augusta, Ga., and Harvey Rogers, Miami, Fla., for Madrid.

Richard Hersch and Oscar Arroyave, Miami, Fla., for Pereira.

William H. McAbee II, Asst. U.S. Atty., Savannah, Ga., for plaintiff-appellee.

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

Before KRAVITCH, CLARK and PECK ^*, Circuit Judges.

CLARK, Circuit Judge:

Appellants Paul Cotton, Efrain Madrid, and Carlos Pereira appeal their convictions stemming from a conspiracy to import and distribute cocaine. Appellant Cotton was found guilty of Counts Two and Four of a four-count indictment, charging importation, aiding and abetting, and conspiracy to import cocaine. Appellant Pereira was found guilty of Counts One and Three, charging possession with intent to distribute, aiding and abetting, and conspiracy to distribute cocaine. Appellant Madrid was also found guilty of the offenses alleged in Counts One and Three. ¹

Appellants challenge their convictions on several grounds, asserting insufficient evidence, defective jury instructions, search and seizure violations, prosecutorial misconduct, Jencks Act/Brady violations, misjoinder and improperly admitted evidence. We affirm the convictions on all counts.

FACTS

In early 1983, co-defendant Lopez purchased a Piper Navaho aircraft for 10,000 ounces of silver bar from a Texas broker. The bill of sale was made out to the Union Square Investment Corporation and the plane at the time of purchase was equipped with a "Panther conversion kit," which increases the horsepower and fuel capacity of the aircraft. Appellant Cotton accompanied Lopez on this trip to evaluate the plane and serve as a pilot.

During 1983, pursuant to information received from an informant, the government began surveillance of the plane to determine if it was being used in drug smuggling activities. From October 1983, to the end of February 1984, the plane sat idle at the Sylvania (Plantation Air Park) airport. The record shows that law enforcement personnel maintained surveillance of the aircraft, either directly or through an informant. Larry Sapp, a U.S. Customs Parole Officer, testified that this suspicious aircraft, was at Plantation Air Park from October 13, 1983, through the period of activities charged in the indictment, February 27 to March 2, 1984.

Tony Dugger, an employee at Plantation Air Park, testified that he did maintenance work on the plane while it was stored there. An airport work order for repairs and maintenance was also introduced at trial and was directed to Union Square Investment Corporation and bore the name "Paul." Dugger named Cotton as one of two men who put an antenna on the plane a few weeks before the events alleged in the indictment.

Appellant Cotton was observed in Savannah, Georgia from February 28 through March 2, 1984. He was seen in the company of defendants Lopez, Bravo, and Ginoris, initially at the Heart of Savannah/Quality Inn Motel and later at the Howard Johnson Motel on West Boundary Street in Savannah. Lopez rented Room 128 at the Quality Inn and it was placed under surveillance on February 28, 1984, until he checked out of the room on March 1, 1984.

Michael Dull, Special Agent for the Georgia Bureau of Investigation, first observed Cotton at the Heart of Savannah Motel between 6:20 and 6:36 P.M. on Tuesday, February 28. Dull's surveillance showed that Pablo Bravo first entered Room 128 and that Cotton entered later that evening. Dull identified two others who later entered the room as Mario Ginoris and the "unidentified Latin male" who flew on the plane but did not return to Georgia.

Ed Hope, a Georgia Bureau of Investigation Narcotics Agent, also conducted surveillance of Room 128. He saw a Buick arrive in the parking area at 2:25 A.M. on February 29. Hope observed Bravo and Ginoris put ice in the cooler in the trunk. Bravo parked the Buick and removed a white K-car Dodge Aries from its space. Bravo and Ginoris transferred items from the Buick to the Dodge. Hope saw Cotton and the unidentified male leave Room 128 and approach the Dodge with luggage. Cotton walked to the Buick trunk and removed plywood covered with cellophane, which Hope characterized as a "chart board" and placed it in the Dodge. Cotton left in the Dodge with Bravo, Ginoris and the "unidentified Latin male" at approximately 2:40 A.M.

James Burch, of the Georgia Bureau of Investigation, and Dennis Craig, of the Drug Enforcement Administration, both conducted surveillance at the Plantation Air Park early on February 29. Burch used binoculars, and Craig used a zoom camera from inside a nearby aircraft. Sometime between 3:45 and 3:55 A.M., a white vehicle arrived with Cotton, Bravo, Ginoris and the "unidentified Latin male." All four took items out of the car and placed them in the terminal. The agents then observed Cotton and the other three men push the Lopez aircraft from the hangar to the gas pump, where they proceeded to fill the aircraft with fuel. Cotton was also seen carrying two fuel containers from the hangar to the plane.

The pilot, defendant Russell Bowen, arrived at the Plantation Air Park at 4:45 A.M. Cotton and Bowen conversed in the hangar and Bowen removed a paper from a brown tote bag and showed it to Cotton.

Agent Burch testified that an unidentified person then made a phone call. Bravo placed two apparently full gas cans on a dolly and took them back to a second hangar. Two "Latins" then removed luggage and a cooler from the plane and placed them in the Dodge. Agent Craig testified that Cotton helped them in moving the luggage. Between 5:45 and 6:00 A.M., Cotton, Ginoris, Bravo and the unidentified male left in the Dodge. Approximately 85 minutes later, the white Dodge reappeared at the Quality Inn and the four individuals in the car went back to their rooms.

During the next day Cotton, Bravo, Ginoris, two others and Lopez, the owner of the plane, were observed at the motel. At 1:45 A.M. on March 1, Agent Dull saw Cotton, Bravo and two short males leave the Heart of Savannah lot in the white Dodge. Agent Sapp saw a white car arrive at the Plantation Air Park at 3:40 A.M. Five males went from the car to the office. Agent Sapp stated that Cotton did not come out to the airplane but stayed on the sidewalk in front of the office, apparently overseeing the preparations for departure. Shortly thereafter, at approximately 4:00 A.M., the plane took off with pilot Bowen and two male passengers. Cotton and Bravo then left the airport and returned to the Heart of Savannah hotel shortly after 5:00 A.M. Agent Dull testified that Cotton and Bravo left the motel with Lopez on Thursday afternoon, March 1, and traveled in two cars to the Howard Johnson Motel. The three used Room 115, and Lopez and Bravo used outside pay telephones at 8:40 P.M.

On Friday, March 2, Lopez left and returned to the motel with Cotton in the white Dodge. Bravo had arrived earlier in a taxi. Agent Dull saw Cotton several times that afternoon. At 3:00 P.M. Agent Dull saw Lopez speaking with two people in a black Toyota truck with an attached trailer in the parking lot. At 6:15 P.M. Cotton and Lopez departed by cab.

On that same day defendant Bravo and appellants Madrid and Pereira went to the Taylor Furniture Store in Savannah where Bravo purchased two mattresses, two box springs and a set of cookware. Bravo paid for the merchandise in cash from a large roll of bills that he had in his pocket. Also that day, appellant Pereira registered at the Mulberry Inn Motel on Bay Street in Savannah, and was observed driving a black Toyota pickup truck towing a U-Haul trailer. The Toyota was registered under Pereira's name. Persons fitting the descriptions of Madrid and Pereira were seen in and out of Room 128 at the Quality Inn and later at the Howard Johnson Motel. A gray Buick and a black Toyota truck arrived at the Plantation Air Park late in the afternoon of March 2. The Toyota truck was driven by Pereira and inside the truck was Madrid. Pablo Bravo had arrived in the gray Buick. The truck was pulling an open trailer without a top and had three or four mattresses in it when it arrived. Between 6:00 and 6:30 P.M., upon hearing an aircraft approach the airfield, Pereira, Madrid, and Bravo were observed jumping up and down and hugging each other. Pilot Bowen and defendant Ginoris were in the plane. Once the plane came to a stop, Ginoris exited and greeted Bravo, Pereira and Madrid. Ginoris, Pereira, Bravo, and Madrid then began to unload the duffle bags, later found to contain cocaine, from the plane into the U-Haul trailer. Shortly thereafter government agents converged on the scene and arrested Bowen, Ginoris, Bravo, Pereira and Madrid. Defendant Lopez and appellant Cotton were arrested at the Savannah Airport as they waited to board a flight to Miami, Florida.

DISCUSSION

Sufficiency of the Evidence

All three appellants challenge their convictions, claiming a lack of sufficient evidence to convict. Appellants principally claim that no more than mere presence was shown and that the government piled inference upon inference in proving its case without clearly proving each link in the inferential chain.

In reviewing the sufficiency of the evidence, this court must sustain the convictions if the evidence, when viewed in the light most favorable to the government, is such that a reasonable jury could find guilt beyond a reasonable doubt. See 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 sustain a conviction in a federal drug conspiracy case the government...