U.S. v. Russo

• Decision Date: 19 August 1986
• Docket Number: No. 85-3000,85-3000
• Parties: 21 Fed. R. Evid. Serv. 552 UNITED STATES of America, Plaintiff-Appellee, v. Nick RUSSO, James Lowery, Joseph Pine, V.L. Underhill, Jeff Underhill, Harry Almerico, Felipe Muratte, Renee Sanchez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1443

796 F.2d 1443

21 Fed. R. Evid. Serv. 552

UNITED STATES of America, Plaintiff-Appellee, v. Nick RUSSO, James Lowery, Joseph Pine, V.L. Underhill, Jeff

Underhill, Harry Almerico, Felipe Muratte, Renee

Sanchez, Defendants-Appellants.

No. 85-3000.

United States Court of Appeals, Eleventh Circuit.

Aug. 19, 1986.

Britt Whitaker, Tampa, Fla., for Russo.

Arthur E. Huttoe, John Lipinski, Miami, Fla., for Lowery.

Stevan T. Northcutt, Tampa, Fla., for Pine.

Kenneth L. Rodman, Jr., Tampa, Fla., for Almerico.

Ward A. Meythaler, U.S. Atty., Tampa, Fla., for U.S.

Frank J. Tassone, Jr., Jacksonville, Fla., Joel Gershowitz, Dept. of Justice, Crim. Div./Appellate Section, Washington, D.C., for Underhills and Pine.

Peter N. Macaluso, Tampa, Fla., (court-appointed), for Muratte.

Thomas John Hanlon, Lopez & Hanlon, Tampa, Fla., (court-appointed) for Sanchez.

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

Before FAY and KRAVITCH, Circuit Judges, and HENLEY ^*, Senior Circuit Judge.

Corrected Opinion

HENLEY, Senior Circuit Judge:

Appellants Nick Russo, Joseph Pine, V.L. Underhill, Jeff Underhill, Rene Sanchez, James Lowery, Harry Almerico and Felipe Muratte challenge their RICO, RICO conspiracy, and other convictions on several grounds. We affirm.

Appellants were named in an indictment of numerous defendants handed down on February 3, 1984, and in a superseding indictment filed March 12, 1984. Count one charged appellants and others with participating in an illegal enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. Sec. 1962(c). Count two charged appellants and others with conspiring to violate the RICO statute, in violation of Sec. 1962(d). The balance of the indictment charged several substantive drug and drug related crimes.

The enterprise alleged by the government was a large drug importation and distribution organization headed by Angelo Bedami and John Hernandez. From 1978 through 1982 a number of people acting for the organization imported large quantities of drugs from Columbia and Ecuador into Florida, Georgia and Alabama. Distribution operations extended far and wide. The evidence showed a somewhat striking continuity in participants in the organization. The same landing strips, pilots, off-loaders, stash houses, and distributors were used repeatedly.

Following what may be described as a mass jury trial in the United States District Court for the Middle District of Florida, ¹ appellants were convicted as follows: Lowery, Almerico and Muratte were convicted of violating Secs. 1962(c) and (d); Pine was convicted of violating Secs. 1962(c) and (d), of violating 21 U.S.C. Sec. 952(a), of violating 21 U.S.C. Sec. 841(a)(1), and of violating 18 U.S.C. Sec. 1952; V.L. Underhill was convicted of violating 18 U.S.C. Secs. 1962(c) and (d), and of three counts of violating 21 U.S.C. Sec. 952(a); Sanchez was convicted of violating 18 U.S.C. Sec. 1962(d), of two counts of violating 21 U.S.C. Sec. 952(a), and of violating 21 U.S.C. Sec. 841(a)(1); Jeff Underhill was convicted of violating 18 U.S.C. Sec. 1962(d); and Russo was convicted of violating 21 U.S.C. Sec. 843(b). These appeals followed. We affirm.

I. MISJOINDER/SEVERANCE.

Appellants first challenge their convictions on the basis of misjoinder or erroneous denial of motion for severance. The standard for evaluating joinder under Fed.R.Crim.P. 8(b) was best summarized in United States v. Hewes, 729 F.2d 1302, 1318 (11th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 790, 83 L.Ed.2d 783 (1985), as follows:

In order to determine whether the requirements for joinder contained in Rule 8(b) are met, we must examine the face of the indictment; if its allegations, taken as true, establish participation of each defendant in a single conspiracy, joinder is proper under the rule. United States v. Russell, 703 F.2d 1243, 1247 (11th Cir.1983). If the indictment charges participation in a single conspiracy, joinder is proper although the indictment also charges "some but not all of the defendants with substantive counts arising out of the conspiracy." United States v. Phillips, 664 F.2d 971, 1016 (5th Cir. Unit B 1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982).

(Footnotes omitted.) As in Hewes, we feel that the allegations in the indictment that all of the appellants participated in one RICO enterprise conspiracy sufficiently linked them for purposes of joinder under Rule 8(b). As will be demonstrated, we also find that the government proved one RICO enterprise conspiracy rather than multiple conspiracies.

Slightly different considerations must be addressed in reviewing a trial court's denial of a motion for severance pursuant to Fed.R.Crim.P. 14. These considerations were again summarized in Hewes.

Rule 14 requires trial courts to balance the right of defendants to a fair trial, absent from the prejudice that may result from joint trials, against the public's interest in efficient and economic administration of justice. Phillips, 664 F.2d at 1016. We will reverse a trial court's denial of severance under Rule 14 only for an abuse of discretion. United States v. Russell, 703 F.2d at 1247; United States v. Harper, 680 F.2d 731, 733 (11th Cir.), cert. denied, 459 U.S. 916, 103 S.Ct. 229, 74 L.Ed.2d 182 (1982); Phillips, 664 F.2d at 1016. This court has repeatedly stated that "[i]n order to demonstrate an abuse of discretion, the defendant must establish that the joint trial subjected him not just to some prejudice, but to compelling prejudice against which the district court could not afford protection." Harper, 680 F.2d at 733. The test for compelling prejudice is "whether [considering] all the circumstances of the particular case, as a practical matter, it is within the capacity of the jury to follow the admonitory instructions and accordingly to collate and appraise the independent evidence against each defendant solely upon that defendant's own acts, statements, and conduct." [United States v.] Kabbaby, 672 F.2d at 861 [ (11th Cir.1982) ], quoting United States v. Zicree, 605 F.2d 1381, 1389 (5th Cir.1979), cert. denied, 445 U.S. 966, 100 S.Ct. 1656, 64 L.Ed.2d 242 (1980). Standing alone, the mere fact that the defendant would have had a better chance of being acquitted if tried individually is not "compelling prejudice." Kabbaby, 672 F.2d at 861-62.

Hewes, 729 F.2d at 1318-19.

Appellants allege that they were entitled to severances due to jury confusion evidenced by inconsistent verdicts, the danger of transference of guilt, and the danger of evidentiary spillover. They contend that the evidence against them individually was weak and that they would not have been convicted if they had been tried separately. None of the appellants raising this issue has proved compelling prejudice resulting from being tried en masse.

"There are times when of necessity, because of the nature and scope of the particular federation, large numbers of persons taking part must be tried together.... When many conspire, they invite mass trial by their conduct." Kotteakos v. United States, 328 U.S. 750, 773, 66 S.Ct. 1239, 1252, 90 L.Ed. 1557 (1946). A large RICO enterprise conspiracy such as this one presents a situation where many defendants must be tried together. As will be discussed later, we feel that the convictions of these appellants were supported by sufficient evidence, and we do not find the jury's verdicts to be inconsistent. The jury in fact evidenced its ability to separate the evidence by convicting on some counts and acquitting on others. We will not look behind the verdicts for evidence of jury confusion. In addition, the court's special jury instructions dealing with transference of guilt and the separation of individuals and evidence were clear and correct, and there is no evidence that the jury was unable to follow them. In short, every safeguard was used "to individualize each defendant in his relation to the mass." Id.

II. ALLEGED PRETRIAL ERRORS.

A. Delay/Speedy Trial.

Appellant Pine contends that his statutory and constitutional rights to a speedy trial were violated. He first argues that he was not indicted within thirty days of his arrest, as required by the Speedy Trial Act, 18 U.S.C. Sec. 3161(b). ² Pine was the subject of a joint state and federal investigation. He contends that even though he was arrested by state officials and was charged with a state offense, his federal speedy trial clock began to run in mid-July of 1983 when the federal government "took control" of the case. The government contends that Pine's speedy trial clock began to run with his federal arrest on October 24, 1983. Pine was indicted on federal charges on November 16, 1983.

Pine's argument is a slightly modified version of the argument made in United States v. Iaquinta, 674 F.2d 260, 264 (4th Cir.1982), a case cited with favor by this court in United States v. Shahryar, 719 F.2d 1522, 1524 (11th Cir.1983). In Iaquinta, the defendant argued, and the district court agreed, that substantial federal involvement in the defendant's state investigation and state arrest was sufficient to start the speedy trial clock. Iaquinta, 674 F.2d at 263. The Fourth Circuit disagreed and reversed the district court's dismissal of the indictments. Id. at 269. The court began its analysis by noting that "[s]ince the Act applies only to federal prosecutions it is only a federal arrest, not a state arrest, which will trigger the commencement of the time limits set in the Act." Id. at 264 (emphasis in original). The court then determined, after discussing several similar cases reaching the same conclusion, that even "substantial" or "extensive" federal involvement in the state investigation and arrest is not enough to start the speedy trial clock. Id. at 267-68.

Pine contends that the government had in effect taken over the state investigation in mid-July of 1983 and that the state had lost all...