772 F.2d 1172 (5th Cir. 1985), 84-3461, United States v. Walker

Docket Nº:84-3461, 84-3605.
Citation:772 F.2d 1172
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Roy E. WALKER, Defendant-Appellant.
Case Date:September 18, 1985
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1172

772 F.2d 1172 (5th Cir. 1985)

UNITED STATES of America, Plaintiff-Appellee,

v.

Roy E. WALKER, Defendant-Appellant.

Nos. 84-3461, 84-3605.

United States Court of Appeals, Fifth Circuit

September 18, 1985

Page 1173

Lemann, O'Hara & Miles, Arthur A. Lemann, III, New Orleans, La., for defendant-appellant.

John P. Volz, U.S. Atty., New Orleans, La., William C. Bryson, Washington, D.C., Sara Criscitelli, Atty., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before GOLDBERG, REAVLEY, and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant, Roy E. Walker, appeals from his conviction in a jury trial of various offenses relating to the importation, possession, and distribution of marihuana, and of wire fraud. On appeal, he argues, inter alia, that the district court erred in denying his motion to reopen the evidence to permit him to testify in his own defense. We find that the district court exceeded its discretion and reverse and remand for a new trial. 1

FACTS AND PROCEEDINGS BELOW

Defendant-appellant, Roy E. Walker, a former New Orleans restaurateur and honorary reserve captain in the Jefferson Parish Sheriff's Office, was convicted in a jury trial of two counts of conspiracy to import marihuana into the United States in violation of 21 U.S.C. Secs. 952(a), 960(a)(1), 963; one count of importation of marihuana into the United States in violation of 21 U.S.C. Secs. 952(a), 960(a)(1) and 18 U.S.C. Sec. 2; four counts of conspiracy to possess with the intent to distribute marihuana in violation of 21 U.S.C. Secs. 841(a)(1), 846; four counts of possession with the intent to distribute marihuana in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2; and one count of wire fraud in violation of 18 U.S.C. Sec. 1343. He was sentenced to nine years' imprisonment, consisting of concurrent four-year terms on all counts except the importation and wire fraud charges, a consecutive three-year term on the importation charge, and a consecutive two-year term on the wire fraud count.

Evidence at trial reflected that while in Las Vegas in October 1980, Walker was introduced to Leroy Buras, the head of a massive drug smuggling operation, 2 by their mutual friend and attorney, A.J. Graffagnino. Contemporaneous with this meeting, Buras was told of Walker's position in the reserve force and that Walker was a brother-in-law of Harry Lee, the sheriff of Jefferson Parish. Shortly after their initial meeting, Buras asked Walker to obtain for him a copy of a police report which discussed the November 1980 seizure of five trucks and a shrimp boat, "Will's Folly," which had been caught transporting approximately twenty-one tons of marihuana. Buras had been involved in the smuggling of the marihuana that had been aboard the seized boat and trucks. Walker agreed and obtained a copy of the report, for which he supposedly was paid $5,000. Walker conceded that he had obtained a copy of the report, but denied that he was paid for his assistance.

There was evidence that Buras subsequently asked Walker to become part of his drug smuggling organization, and that Walker, prompted by his serious financial condition, accepted the offer in February 1981. According to immunized testimony by members of the Buras organization, Walker's role was to monitor local police activity when drug shipments arrived into port by boat. The first such operation took place in March 1981 when a shrimp boat, the "Lil Thomas," arrived in a Lafitte, Louisiana port with approximately 20,000

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pounds of marihuana on board. According to the smugglers' testimony, Walker provided a list of radio frequencies and call signs used by local law enforcement officers to enable the smugglers to keep track of local police activity by monitoring radio communications while the drug cargo was being offloaded and hidden in the marshes. There was also evidence that Walker supplied Buras' men with a police walkie-talkie radio from which the smugglers could determine the frequency at which the local police walkie-talkies were tuned. Testimony also indicated that while the boat was being offloaded, Walker cruised in a police car with a deputy of the Jefferson Parish Sheriff's Office and kept Buras informed of local police activity, and that the deputy was paid $25,000 for his role.

There was also evidence that Walker subsequently helped distribute the marihuana that had arrived aboard the "Lil Thomas." Buras left several bales of marihuana in a grey truck outside appellant's restaurant on three separate occasions, and an additional load of marihuana at the home of one of appellant's associates. Walker, under this arrangement, took the bales, sold them, and retained a portion of the sales proceeds in partial payment for his help in providing surveillance when the shipment arrived in port.

The government also presented evidence that Walker took part in the smuggling of a second shipment of 40,000 pounds of marihuana which arrived in New Orleans aboard the vessel "Shady Lady" in May 1981. Walker took part in negotiations for warehouse space to store the cargo once it arrived. He also again took part in surveillance of police activity the night the vessel arrived. There was evidence that for his participation in both the "Lil Thomas" and "Shady Lady" ventures, Walker earned approximately $220,000 in cash.

In July 1981, Buras, along with several of his coconspirators, fled to Costa Rica after receiving a tip from his attorney, Graffagnino, that he was about to be indicted. One of Buras' accomplices, Frank Smith, subsequently was arrested on February 25, 1982, when he made a return visit to the United States. 3 Shortly after Smith was arrested, Walker and Buras had a telephone conversation during which, according to Buras' testimony, Walker stated that he could get a magistrate to reduce Smith's $350,000 bond in exchange for a bribe of $10,000 and use of a stud horse for breeding purposes. Buras testified at trial that his attorney, Graffagnino, gave the bribe money to Walker. Smith's bond subsequently was reduced to $150,000, 4 which he met. Smith subsequently was convicted of four counts of importing marihuana and was sentenced to twenty years' imprisonment.

Smith's conviction and twenty-year sentence prompted Buras to contact the government and attempt to arrange lighter sentences for himself and his associates, including Smith, in exchange for cooperation in drug cases. Buras and his associates began providing information to the government; in exchange, Smith's sentence was reduced to five years, and Buras and certain smugglers received relatively light sentences. 5

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Information provided by Buras and the members of his organization led to an investigation into Walker's possible involvement in drug smuggling activity. In November 1983, Walker was charged under a superceding indictment 6 with eleven counts of conspiracy to import, importation, conspiracy to possess, and possession of marihuana, and one count of wire fraud in connection with his alleged telephone conversation with Buras and receipt of bribe money from Graffagnino. The case, which was tried to a jury, commenced on Monday, May 14, 1984. The prosecution completed its case-in-chief the following Thursday, May 17, after calling twenty-six witnesses, including Buras, Smith, and six other smugglers testifying under government immunity. The court adjourned for the day at 4:00 p.m., May 17. The defense began its case Friday morning, May 18. In his opening statement that morning, counsel for defense told the jury, "[W]e intend to put Mr. Walker on the stand so Mr. Walker can tell you what--how he came to know Leroy Buras, how he came to know all these other people, and what his business dealings were with them. We intend to go at great length with Mr. Walker into all the allegations that are made by the Government witnesses." The same day, at approximately 3:00 p.m., Walker's attorney requested a brief recess so he could talk to appellant "about possibly testifying in his own behalf." Walker's attorney added that the speed with which the government presented its case-in-chief "caught [him] with [his] ... pants down." The district court granted a recess so that Walker and his attorney could confer. 7 Before the jury was brought back into the courtroom, defense counsel informed the court that he was "absent a couple of witnesses" and that the defense would be unable to present them that day. At this point, the district court asked whether the defense had available any other witnesses it planned to call to the stand, and asked whether Walker was going to testify. The following dialogue ensued:

"DEFENDANT ROY E. WALKER: I'd like very much to have the opportunity to say something, Judge, because I'm the person here and my life is at the stake. And I think that I have been--excuse me, Judge. I am very emotional. I am very upset. I have put some very personal friends of mine through some experiences that I don't--that I wouldn't want to put anybody through. I have been exposed to this thing. I have been ruled off the race track. I have had so much pressure.... I don't have any money. I was in [my attorney's] ... office until 10:30 last night going over this stuff with just him and I.... [My attorney] ... and I did not find ourselves compatible and still don't. I think [he's] ... done a magnificent job with the circumstances as it is. I have so much pressure on me, Your Honor, that if I have to testify, if I'm forced to get on the stand right now, I--

"THE COURT: I'm not going to force anybody to do anything.

"DEFENDANT ROY WALKER: I'm not saying that. I would love to testify. I would love to testify."

The...

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