U.S. v. Finestone, 86-5224

• Citation: 816 F.2d 583
• Decision Date: 07 May 1987
• Docket Number: No. 86-5224,86-5224
• Parties: 23 Fed. R. Evid. Serv. 190 UNITED STATES of America, Plaintiff-Appellee, v. Leonard FINESTONE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 583

816 F.2d 583

23 Fed. R. Evid. Serv. 190

UNITED STATES of America, Plaintiff-Appellee, v. Leonard FINESTONE, Defendant-Appellant.

No. 86-5224.

United States Court of Appeals, Eleventh Circuit.

May 7, 1987.

Charles G. White, Miami, Fla., for defendant-appellant.

Leon B. Kellner, U.S. Atty., Linda Collins Hertz, Asst. U.S. Atty., Miami, Fla., Frank J. Marine, Organized Crime and Racketeering Section, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT and EDMONDSON, Circuit Judges, and MORGAN, Senior Circuit Judge.

TJOFLAT, Circuit Judge:

Appellant, Leonard Finestone, was convicted in the district court of conspiring to participate in the affairs of an enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. Sec. 1962(d) (1982) (RICO) (count one), of conspiring to import marijuana, in violation of 21 U.S.C. Sec. 963 (1982) (count four), and of conspiring to possess with intent to distribute in excess of 1,000 pounds of marijuana, in violation of 21 U.S.C. Sec. 846 (1982) (count five). He appeals, seeking a new trial, on three grounds: (1) the trial judge abused his discretion by not asking certain questions requested by appellant during the court's voir dire examination of prospective jurors; (2) the trial judge abused his discretion by admitting evidence of an execution-style murder and certain marijuana smuggling engaged in or committed by other members of the charged conspiracies; and (3) the trial judge erred by refusing to give appellant's requested instructions on appellant's defenses of withdrawal from the alleged conspiracies and alibi, as well as on his general theory of defense. Appellant's first ground is frivolous and requires no discussion. For the reasons stated below, we find no merit in appellant's second and third grounds. We accordingly affirm his convictions.

I.

Count one alleged that from 1978 to the date of the indictment, January 11, 1985, appellant and others conspired to participate in the affairs of an enterprise through a pattern of racketeering activity. The enterprise purportedly consisted of a group of individuals, headed by Raymond Thompson (the "Thompson enterprise"), associated in fact for the purposes of, among others, deriving financial profit from importing and distributing marijuana, taking various measures to avoid detection and to conceal the enterprise's affairs, and murdering James Savoy to benefit the enterprise. Appellant allegedly captained and maintained boats that were used in the marijuana smuggling venture and provided other assistance to the enterprise. Count four charged that appellant and others involved in the count one offense conspired from 1978 to July 15, 1981 to import marijuana into the United States. Count five alleged that they conspired to possess, with intent to distribute, more than 1,000 pounds of marijuana.

The Government's proof established that the Thompson enterprise operated in southern Florida, as alleged, during the period set forth in the indictment, and that appellant knowingly participated in each of the charged conspiracies. The Thompson enterprise smuggled large quantities of marijuana into the United States, using various boats to pick up loads of marijuana from ships located beyond the territorial waters of the United States. The marijuana was usually transferred from larger boats to smaller boats, owned by Thompson, that traveled to yacht basins in the Fort Lauderdale area, where the marijuana was off-loaded. The marijuana was then put onto trucks for distribution. To avoid detection, the enterprise frequently changed the names of the boats it used and often had middle-aged persons on the boats to serve as decoys, posing as tourists or fishermen.

At times, the Thompson enterprise employed as many as one hundred persons in its smuggling business. Among its principal members were Irving Schrager, who managed the Amity Yacht Center in Fort Lauderdale (used to store and repair Thompson's boats and as the center for loading the marijuana onto trucks); Charles Allred, who aided Schrager in supervising the importation and distribution of the marijuana; appellant, Robert Stephens, Robert Sheer, Kurt Vierthaler, and Paul Vierthaler, all of whom captained boats the enterprise used to smuggle the marijuana; and Patrick Menillo, Scott Errico, and Michael Vierthaler, all of whom served as crew members on these boats.

In addition to serving as a boat captain, appellant helped maintain the boats, performing electrical and other work, and handled inquiries from the enterprise's workers when Thompson was not available. With this factual background in mind, we turn to appellant's second and third claims of reversible error.

II.

Appellant contends that the district court abused its discretion by admitting evidence of the kidnapping and murder of James Savoy and of the conspirators' importation of marijuana in June 1978, November 1980, and June 1981, because appellant was not directly involved in those acts and the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. See Fed.R.Evid. 403. We are not persuaded.

The Federal Rules of Evidence favor admission of any evidence tending to prove or disprove a fact in issue. United States v. King, 713 F.2d 627, 631 (11th Cir.1983), cert. denied, 466 U.S. 942, 104 S.Ct. 1924, 80 L.Ed.2d 470 (1984). The "balance [under Rule 403] should be struck in favor of admission." United States v. Dennis, 625 F.2d 782, 797 (8th Cir.1980) (citation omitted); accord King, 713 F.2d at 631; United States v. Moore, 732 F.2d 983, 988-89 (D.C.Cir.1984). Appellate courts "must look at the evidence in a light most favorable to its proponent, maximizing its probative value and minimizing its prejudicial effect." United States v. Jamil, 707 F.2d 638, 642 (2d Cir.1983) (quoting United States v. Brady, 595 F.2d 359, 361 (6th Cir.), cert. denied, 444 U.S. 862, 100 S.Ct. 129, 62 L.Ed.2d 84 (1979)); accord United States v. Zipkin, 729 F.2d 384, 389-90 (6th Cir.1984); 1 J. Weinstein & M. Berger, Weinstein's Evidence p 403, at 403-47 (1986).

The district court's discretion to exclude evidence under Rule 403 is limited. Evidence may be excluded only when "its probative value is substantially outweighed by the danger of unfair prejudice." Fed.R.Evid. 403. As we have cautioned, "Rule 403 is an extraordinary remedy which should be used only sparingly since it permits the trial court to exclude concededly probative evidence." United States v. Betancourt, 734 F.2d 750, 757 (11th Cir.) (citing United States v. King, 713 F.2d 627, 631 (11th Cir.1983), cert. denied, 466 U.S. 942, 104 S.Ct. 1924, 80 L.Ed.2d 470 (1984)), cert. denied, 469 U.S. 1021, 105 S.Ct. 440, 83 L.Ed.2d 365 (1984), and 469 U.S. 1076, 105 S.Ct. 574, 83 L.Ed.2d 514 (1984); accord United States v. Plotke, 725 F.2d 1303, 1308 (11th Cir.), cert. denied, 469 U.S. 843, 105 S.Ct. 151, 83 L.Ed.2d 89 (1984). In sum, the district court is vested with considerable discretion to admit evidence, and its decision to admit evidence may "not be reversed on appeal unless the defendant can demonstrate abuse of that discretion." United States v. Mitchell, 666 F.2d 1385, 1390 (11th Cir.) (citations omitted) cert. denied, 457 U.S. 1124, 102 S.Ct. 2943, 73 L.Ed.2d 1340 (1982).

A.

The Government placed before the jury the following facts concerning the kidnapping and murder of James Savoy. Savoy was a self-employed carpenter. In 1979, Thompson made him a part of the enterprise. He hired Savoy to construct some special cabinets for two of his smuggling boats in order to conceal the bales of marijuana that were to be transported.

In late June 1981, after a law enforcement search of the Amity Yacht Center threatened the security of the drug smuggling operation, Thompson had Savoy build a safe in the concrete floor of Savoy's carpentry shop and gave him $500,000 to $600,000, proceeds of the enterprise's marijuana smuggling, to keep there. In the fall of that year, Savoy disappeared, apparently taking the money Thompson had left with him. Thereafter, Thompson, appellant, Robert Davis, Patrick Menillo, Scott Errico, and the others involved in the enterprise began looking for Savoy. At some time between late 1981 and the early part of 1982, appellant, Thompson, Thaddeus Pryor, Errico, Menillo, and others met at Thompson's residence to discuss the matter. Appellant indicated that he felt responsible for the Savoy "rip off" because it would not have occurred had he not introduced Savoy to Thompson. Appellant stated that he, and some of the others, had been looking for Savoy at the local racetracks.

In March 1982, Robert Stephens saw Savoy at the Cricket Club bar in Pompano, Florida, and he related this information to Robert Davis. The following day, Stephens, Davis, Thompson, Menillo, and Errico went to the Cricket Club and saw Savoy there. One day later, Davis, Errico, and Menillo brought Savoy to Stephens' house; Savoy's hands and feet were taped. Shortly thereafter, Thompson arrived at Stephens' house, and Thompson and Menillo questioned Savoy about the theft of the money. Savoy said that he had become involved with a "hooker" and that she stole the money. Savoy was then taken to Thompson's house. The next morning, Thompson, Stephens, Menillo, and Robert Davis took Savoy out to sea on one of Thompson's boats. They shot Savoy and threw him overboard.

The Government placed these events in evidence to prove the count one RICO conspiracy. That count, in charging that kidnapping and murder were part of the Thompson enterprise's pattern of racketeering activities, alleged that "[f]or the benefit of 'the Enterprise' the defendants Raymond Michael Thompson, Patrick Anthony Menillo, Scott Nicholas Errico, Robert Marion Stephens, and other persons would kidnap and murder James Savoy." In addition, count one cited Savoy's kidnapping and...