803 F.2d 123 (3rd Cir. 1986), 86-3283, United States v. Sandini

Docket Nº:86-3283.
Citation:803 F.2d 123
Party Name:The UNITED STATES v. Hilmer Burdette SANDINI, Ernest G. Rockwell, George White Kost, Ronald Paul Urban, Carol Ann Hineman Sandini, Sandra Jean Sandini, Michael Frawley, David Thompson, George Strickler, Sherman John Glunt, Santos Ruiz, Robert Kotula, Eugene Anthony Gesuale, Robert Maker, Vincent Ciraolo, Richard Moody, Edward Mills, Rex Foster, Ken
Case Date:October 16, 1986
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 123

803 F.2d 123 (3rd Cir. 1986)

The UNITED STATES

v.

Hilmer Burdette SANDINI, Ernest G. Rockwell, George White

Kost, Ronald Paul Urban, Carol Ann Hineman Sandini, Sandra

Jean Sandini, Michael Frawley, David Thompson, George

Strickler, Sherman John Glunt, Santos Ruiz, Robert Kotula,

Eugene Anthony Gesuale, Robert Maker, Vincent Ciraolo,

Richard Moody, Edward Mills, Rex Foster, Kenneth Hill, Harry

Jessup, Rose Jessup.

Appeal of Richard MOODY.

No. 86-3283.

Submitted Under Third Circuit Rule 12(6)

United States Court of Appeals, Third Circuit

October 16, 1986

Sept. 30, 1986.

Rehearing and Rehearing En Banc Denied Nov. 10, 1986.

Page 124

Jon A. Sale, Ira N. Loewy, Bierman, Sonnett, Shohat & Sale, P.A., Miami, Fla., for appellant.

J. Alan Johnson, U.S. Atty., Constance M. Bowden, Asst. U.S. Atty., Pittsburgh, Pa., for appellee.

Before WEIS, MANSMANN, and HUNTER, Circuit Judges.

OPINION

JAMES HUNTER, III, Circuit Judge:

On June 27, 1985, in the United States District Court for the Western District of Pennsylvania, appellant Richard Moody was charged in four counts of a 23 count indictment with conspiracy to import marijuana in violation of 21 U.S.C. Sec. 963, conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. Sec. 846, importation of marijuana in violation of 21 U.S.C. Sec. 952(a), and possession of marijuana with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). The same indictment charged a number of defendants, including Hilmer Sandini, one of Moody's conconspirators, in a large-scale cocaine trafficking conspiracy. Prior to trial, Moody filed a Motion for Severance and Relief from Prejudicial Joinder, arguing that the marijuana conspiracy was entirely separate from the cocaine conspiracy, and that joinder could not be justified by the mere fact that Moody's coconspirator Sandini was alleged to be a participant in both conspiracies.

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Moody also argued that joinder was prejudicial as to him because the introduction of evidence concerning the cocaine conspiracy at his trial would deprive him of a fair opportunity to have the jury determine his guilt or innocence on the marijuana charges. The trial court agreed, and on August 27, 1985, entered an Order of Severance. Moody's trial commenced on December 18, 1985, and the jury returned verdicts of guilty on all four counts on December 20, 1985. On April 24, 1986, Moody was sentenced to concurrent terms of imprisonment of 360 days on each count, to be followed by a special parole term of two years. He was also fined on all four counts a total of $16,000. This appeal, in which Moody challenges (a) the admission of allegedly prejudicial evidence at trial and (b) improper venue, followed.

According to the testimony, Moody was a member of a marijuana trafficking conspiracy led by indicted coconspirator Ed Mills. Moody supplied the airplane, a Cessna 401, used in the group's importation of marijuana into the United States, and provided partial financing for the purchase of the marijuana. The Mills group started business in 1981. They planned to purchase marijuana in Jamaica, fly the marijuana from there to the Bahamas, and ship it from there by boat to Florida. This trip was attempted for the first time in 1982. Moody's plane was used to move the contraband from Jamaica to the Bahamas. The load was then lost because Mills failed to arrange for boats to carry the drugs from the Bahamas to Florida. Shortly thereafter, a second trip was planned, for which Moody supplied $15,000 for the drug purchase as well as his airplane. This mission also failed. Moody again agreed to supply $15,000 and the use of this airplane for a third importation effort, and this time his partners promised him $60,000 for the use of the plane and 1/3 of the balance of all profits to compensate him for his previous investments.

Around the same time that the Mills group was planning its third marijuana run from Jamaica, the members of the conspiracy met with Hilmer Sandini and his associate Dan Mitrione at the Clock Restaurant in Florida. The meeting's participants discussed the marijuana importation scheme; a proposal by Sandini that members of the Mills group become involved in his cocaine importation scheme; the possible use by Sandini of Moody's Cessna 401; and the possible use by Mills of Sandini's Cessna 411. Moody, though present, may not have actively participated in any of these conversations. After several more meetings with the Mills group, Sandini learned that neither Moody nor...

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