U.S. v. Kaufman

• Decision Date: 17 October 1988
• Docket Number: No. 87-1462,87-1462
• Citation: 858 F.2d 994
• Parties: 26 Fed. R. Evid. Serv. 1459 UNITED STATES of America, Plaintiff-Appellee, v. Steven Warren KAUFMAN, a/k/a John Rayford, Leonard Joseph Kissell, James Gregory Smith, Perry Franks and Paddy D. Franks, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 994

858 F.2d 994

26 Fed. R. Evid. Serv. 1459

UNITED STATES of America, Plaintiff-Appellee, v. Steven Warren KAUFMAN, a/k/a John Rayford, Leonard Joseph

Kissell, James Gregory Smith, Perry Franks and

Paddy D. Franks, Defendants-Appellants.

No. 87-1462.

United States Court of Appeals, Fifth Circuit.

Oct. 17, 1988.

Ronald G. Guyer, San Antonio, Tex. (court-appointed), for Steve W. kaufman.

Martha Dickey, Austin, Tex. (court-appointed), for James Gregory Smith.

Michael E. Tigar, Austin, Tex. (court-appointed), for Perry Franks & Paddy D. Franks.

Charles O. Grigson, San Antonio, Austin, Tex. (court-appointed), for Kissell.

Helen M. Eversberg, LeRoy Morgan Jahn, Asst. U.S. Atty., San Antonio, Tex., Louis M. Fischer, Appellate Sect., Crim. Div., Washington, D.C., James H. DeAtley, Asst. U.S. Atty., Austin, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Western District of Texas.

Before KING, JOHNSON and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This consolidated appeal concerns five of fourteen individuals indicted for attempting to bring marijuana into the United States. The appellants raise numerous objections to their drug-possession and conspiracy convictions, including, inter alia, assertions that the evidence was insufficient to support certain convictions, that certain evidence was inadmissible, and that the trials of some of the defendants should have been severed. In addition, Perry and Paddy Franks challenge their extradition from Mexico. We uphold the jury's conviction of the defendants on all counts.

I The Facts

The drug conspiracy began in March 1986 when Wayne McClenney, James Smith and other individuals not involved in this appeal met on several occasions to discuss the scheme. The plan began to materialize when Chris Fithian bought a Piper Navajo airplane for the purpose of transporting marijuana from Belize to the Midland-Odessa, Texas area. McClenney was told that the Franks brothers would be supplying the marijuana from Belize. McClenney then contacted the DEA, and in April 1986, the DEA initiated an investigation, using agent Larry Lamberson as its undercover operative. Lamberson posed as a provider of clandestine airfields and support services and met with Smith on April 25. Smith agreed to pay Lamberson $10,000 for each load of marijuana flown into Lamberson's clandestine airfield. On May 1, Smith introduced Lamberson to another co-conspirator, Gilbert Perez, at an Austin restaurant. Perez renegotiated the arrangement with Lamberson, agreeing to pay him with both cocaine and money.

On May 2, McClenney and Smith traveled to Chetumal, Mexico, to meet the Franks brothers and secure appropriate landing sites for the Piper Navajo. Smith and McClenney met the Franks brothers and discussed the details of the Belizean marijuana operation. The Franks brothers also helped Smith and McClenney obtain possession of the Piper Navajo at Chetumal airport. McClenney and Smith then flew the plane to the United States.

On May 21, agent Lamberson and informant McClenney met another co-conspirator, Leonard Kissell. Kissell gave McClenney money to make repairs on the plane and told McClenney how to avoid radar detection when smuggling the marijuana. On the afternoon of June 16, Lamberson, McClenney, Smith, Perez, and Douglas Costa met to discuss their plans. Costa stated that he owned the plane and because Fithian had been hurt in a car accident, Costa would control the smuggling operation. On June 17 Lamberson and McClenney had lunch with Perez and Costa. Perez said he had sent Smith to Belize so that Smith could check on the marijuana supply. Costa then asked whether Lamberson could also supply marijuana in case the Franks brothers were unable to provide it. Lamberson informed Costa that he could supply Mexican marijuana if the Franks brothers did not complete their part of the deal. Smith returned from Belize on June 27 and advised Lamberson that Kissell and the Franks brothers had been unable to obtain a full load of marijuana. Because of the failure to obtain marijuana from Belize, Costa attempted on several occasions to buy marijuana from Lamberson. Several meetings were held, at which Costa offered to pay Lamberson either in cash or cocaine for marijuana purportedly shipped from Mexico. On June 30, Costa and Smith met Lamberson again and paid him nine kilograms of cocaine to deliver marijuana.

The next morning, July 1, DEA agents loaded approximately 800 lbs. of marijuana into a twin-engine plane and flew to Lamberson's airstrip. On the same morning, Lamberson delivered two canvas bags containing sample bales of marijuana to Costa's motel room. Costa stated that he would deliver the bags to his buyers. He then drove across the street where he met with Kaufman and other conspirators. After they looked inside the bags for several minutes, they put them into Kaufman's car and Kaufman drove away. Lamberson, Smith and Costa then drove to the airstrip to meet the planeload of marijuana scheduled to arrive at 1 p.m. Smith signalled the plane to land and assisted in its unloading. Costa then drove a pickup truck loaded with the marijuana to an Austin warehouse where he weighed the marijuana and attempted to pay Lamberson for additional services. Kaufman drove around the warehouse several times in an apparent attempt at counter-surveillance. All parties, except for the Franks brothers, were then arrested and indicted in the Western District of Texas on July 15, 1986.

Paddy Franks and Perry Franks were arrested on July 22, 1986, by DEA agents in Chetumal, Mexico, for a Louisiana indictment relating to another drug-importation conspiracy. The arrests were made only on the basis of the Louisiana indictment and arrest warrants, even though the Frankses had been indicted on July 15 in Texas on the instant charges. After taking custody of the Franks brothers, the DEA agents flew them out of Mexico on a commercial flight on which Mexican authorities had placed them. The Louisiana charges were dismissed against Paddy Franks on September 4, and Perry Franks was convicted. On October 21, an indictment superseding the July 15 indictment on the instant charges was handed down against the Franks brothers. The brothers were then transferred from Louisiana to the custody of Sheriff Jack Harwell in Texas, and various hearings followed. The Franks brothers petitioned for habeas relief, contending that their trial on the Texas charges, when they had been extradited solely on the Louisiana charges, would violate the United States-Mexican extradition treaty and therefore deprive the court of jurisdiction. Their petition was denied by the district court.

After a jury trial in district court, appellants Kissell, Smith, Perry Franks and Paddy Franks were convicted of conspiring to import more than fifty kilograms of marijuana into the United States. Kaufman and Smith were convicted of conspiring to possess more than fifty kilograms of marijuana with intent to distribute. Kaufman was also convicted on two substantive marijuana possession counts, and Smith on one such count. Finally, Smith was convicted on one count of distributing more than one kilogram of cocaine. ¹ The defendants appeal.

II The Sufficiency of the Evidence

Only three defendants challenge the sufficiency of the evidence against them--Kaufman, Kissell and Smith. The question on appeal is whether there is substantial evidence, viewed in the light most favorable to the government, to uphold a jury's guilty verdict. United States v. Alvarado Garcia, 781 F.2d 422, 423 (5th Cir.1986) (citing Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) and Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942)). Put another way, the question is whether a reasonable jury could have found beyond a reasonable doubt that the defendants committed the offenses. United States v. Walker, 720 F.2d 1527, 1538 (11th Cir.1983).

A. Kaufman

Kaufman contends that the evidence does not support his conviction on the Count II conspiracy charge or the two possession charges. In examining Kaufman's conviction for conspiracy to possess marijuana, we begin with the premise that the government must prove (1) a conspiracy existed, (2) the defendant knew of the conspiracy, and (3) the defendant voluntarily participated in the conspiracy. See United States v. Littrell, 574 F.2d 828, 832 (5th Cir.1978). A defendant's knowledge of the conspiracy and his participation in the conspiracy can be inferred from circumstances. United States v. Vergara, 687 F.2d 57, 61 (5th Cir.1982). "A conviction will not be reversed for lack of evidence that the defendant was acquainted with or knew all of the coconspirators, or lack of evidence that he knew each detail of the conspiracy, or because he became a member of the conspiracy after its inception, or played only a minor role in the overall scheme." Id. (citations omitted).

The existence of a conspiracy to possess marijuana is not in doubt here. Moreover, the record contains convincing evidence, circumstantial to be sure, that Kaufman was involved in the conspiracy. A reasonable view of the evidence shows that on several occasions, including the day agent Lamberson delivered the marijuana to Costa, Kaufman made his house available as a meeting place for members of the conspiracy and was present when the other conspirators arrived and entered. Furthermore, on the morning of July, 1, after Lamberson had delivered the marijuana to Costa, Costa proceeded across the street from his motel and met individually with Kaufman and others immediately after telling Lamberson that he was about to deliver the samples to his "buyers." According to government agents, Kaufman and the other buyers gathered around the two bags of marijuana in the back of Costa's pickup and made motions indicating that they were opening the bags and examining the contents. Then, by a circuitous...