U.S. v. Record

• Decision Date: 28 April 1989
• Docket Number: No. 88-1405,88-1405
• Parties: 27 Fed. R. Evid. Serv. 1302 UNITED STATES of America, Plaintiff-Appellee, v. Marmon Dennis RECORD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1363

873 F.2d 1363

27 Fed. R. Evid. Serv. 1302

UNITED STATES of America, Plaintiff-Appellee, v. Marmon Dennis RECORD, Defendant-Appellant.

No. 88-1405.

United States Court of Appeals, Tenth Circuit.

April 28, 1989.

David E. O'Meilia, Asst. U.S. Atty. (Tony M. Graham, U.S. Atty., with him, on the brief), Tulsa, Okl., for plaintiff-appellee.

James L. Martin, Arlington, Tex., for defendant-appellant.

Before MOORE, ANDERSON and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

Marmon Dennis Record (Record) was convicted by a jury of conspiring to import cocaine and marijuana, in violation of 21 U.S.C. Secs. 963, 960 & 952(a), and of conspiring to possess with intent to distribute and to distribute cocaine and marijuana, in violation of 21 U.S.C. Secs. 846 & 841. The trial court sentenced Record to twenty-five years in prison on each of the two counts, the sentences to be served concurrently. Record appeals his convictions, invoking our jurisdiction under 28 U.S.C. Sec. 1291.

Background

Considering the evidence in the light most favorable to the government as we must, United States v. Dickey, 736 F.2d 571, 581 (10th Cir.1984), cert. denied, 469 U.S. 1188, 105 S.Ct. 957, 83 L.Ed.2d 964 (1985), the relevant facts may be summarized as follows:

From approximately summer 1980 until December 1982, indicted coconspirator Frank Palmero (Palmero), along with several others, imported three 500-700 pound loads of marijuana into Florida. The marijuana was obtained from Jamaican suppliers and flown into Florida. Palmero testified that this "smuggling network" was set up using the names of connections provided by defendant Record. Rec. vol. V at 323. Palmero also testified that the second load of marijuana brought into Florida was sold by Record.

In 1982, Record and unindicted coconspirator Boris Olarte (Olarte) arranged to import marijuana into Florida from Columbia by way of the Bahamas. In this arrangement Olarte would provide the marijuana and a landing strip in Colombia, while Record would furnish a plane, a Cessna 421, pilots, and pay $100 per pound for the marijuana. After being loaded with marijuana in Colombia, the plane would stop in the Bahamas, where Record would transfer the marijuana from the plane to a boat for transport to Florida. Record utilized connections with Bahamian authorities to maintain "security" for the operation. Once the drugs arrived in Florida, Record had "clients" to whom he could sell the marijuana for $280-$300 per pound.

In the summer of 1982, Olarte and Record imported 2000 pounds of marijuana into the United States, where Record sold it. Olarte and Record consummated a similar deal in fall 1982 involving 1500 pounds of marijuana. Record, Palmero, and indicted coconspirator Bobby Jamieson (Jamieson) helped to unload marijuana from at least one of these plane deliveries to the Bahamas. On at least one occasion, the Jamieson transported the marijuana to Florida in his boat, a 30-foot Rybovich.

Around December 1982, while using the same general method of operation, the activity of the participants expanded to include dealing in cocaine. Record, Palmero, and Olarte agreed to import 100 kilograms (kilos) of cocaine in the next transaction, but Olarte had difficulty with his cocaine source and instead substituted 1200 pounds of marijuana in this first intended cocaine deal. Apparently, this load of marijuana was dumped into the ocean and was never sold. The next transaction, in early 1983, successfully brought 115 kilos of cocaine and 500 pounds of marijuana into the United States. In this deal, Record, Jamieson, and Palmero helped to offload the plane in the Bahamas, and Jamieson transported the drugs to Florida by boat. Planning for the next importation of drugs began soon thereafter, with the discussions involving Record, Palmero, Olarte, and Olarte's wife, Clara Lacle (Lacle).

A few months later in 1983 or early in 1984, with Palmero taking a more active organizational role and piloting the plane, a Cessna 310, the operation smuggled into Florida 290 kilos of cocaine and 400 pounds of marijuana. Record assisted in offloading the plane, and Jamieson transported the drugs to Florida by boat. In the 290-kilo deal, Record held back 20 to 25 kilos of Olarte's cocaine, claiming that they were lost. Olarte absorbed the loss and decided to exclude Record from the next planned deal, using Palmero and Jamieson instead to fill Record's former organizational and transportation roles.

In early 1985, Olarte, Palmero, and Jamieson brought 390 kilos of cocaine into Florida. Olarte, Palmero, and Jamieson met in Aruba around October 1986 to plan the importation of 400 to 500 kilos of cocaine into the United States. Olarte was arrested in November 1986 regarding participation in a different drug operation, but continued from his place of incarceration in the Tulsa county jail to try to organize the deal originally planned in Aruba.

After being imprisoned in Oklahoma, Olarte contacted Palmero by telephone in Florida, seeking money directly or through a drug deal. Palmero initially sent Olarte $4,000, and then Palmero met a second time in Aruba with, among others, Jamieson and Lacle. The parties agreed to pursue the cocaine importation deal, planned at the first meeting in Aruba, to raise funds for Olarte. In May 1987, however, Olarte began to cooperate with the government, and this cooperation led to the indictment and arrest of Palmero, Jamieson, and the defendant Record. Jamieson, Palmero, and Olarte negotiated pleas and testified for the government in return for consideration of such testimony at the time of their sentencing. Record was convicted by a jury and sentenced in January 1988.

Record seeks reversal of his conviction, arguing that 1) the evidence was insufficient to prove one continuous conspiracy as charged in the indictment, 2) the trial court unduly emphasized evidence harmful to the defense by instructing the jury that "using a telephone" could constitute an overt act underlying a conspiracy, 3) the trial court erred by advising the government before it rested that it had not proven venue, 4) the trial court failed to adequately define the term "broader conspiracy" in its instructions to the jury, 5) the trial court erroneously admitted evidence of a prior bad act by Record, and 6) the government's closing argument unfairly implied that Record would commit future crimes if acquitted. We affirm.

I.

Record argues that the government's proof constituted a fatal variance in that the evidence at trial showed four distinct conspiracies rather than the single conspiracy charged in the indictment. Specifically, Record contends that the first conspiracy consisted of a July 1980 agreement between Palmero and several unindicted individuals to import cocaine and marijuana into Florida. The second conspiracy, according to Record, involved an April 1983 agreement between himself, Palmero, Olarte, and Jamieson to import cocaine and marijuana into Florida, resulting in the two deals which brought into Florida first 115 kilos of cocaine and 500 pounds of marijuana, and then 290 kilos of cocaine and 400 pounds of marijuana. Record claims that this was the only conspiracy in which he was actively involved and that the other conspirators chose to cut him out of future dealings at that point due to the shortage of 20-25 kilos of cocaine. Record asserts that the third conspiracy surrounded the October 1985 agreement between Olarte, Jamieson, and Palmero to import 390 kilos of cocaine into Florida. Finally, according to Record, the fourth conspiracy was a May 1987 agreement between Olarte and Palmero for the purpose of accomplishing Olarte's escape from the Tulsa county jail.

A variance occurs when the trial evidence establishes facts different from those charged in the indictment. United States v. Dickey, 736 F.2d 571, 581 (10th Cir.1984), cert. denied, 469 U.S. 1188, 105 S.Ct. 957, 83 L.Ed.2d 964 (1985). Such a variance may be "fatal" or prejudicial if it "affects the substantial rights of the accused." United States v. Morris, 623 F.2d 145, 149 (10th Cir.), cert. denied, 449 U.S. 1065, 101 S.Ct. 793, 66 L.Ed.2d 609 (1980). Record claims two sources of prejudice. First, he cites Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1945), where the Supreme Court found a variance prejudicial in a thirteen-defendant "mass conspiracy" because "[t]he dangers of transference of guilt from one to another across the line separating conspiracies ... are so great that no one can really say prejudice to substantial right has not taken place." Id. at 773-74, 66 S.Ct. at 1252.

Record's primary assertion of prejudice, however, is that the claimed variance prevented the government from properly establishing venue in that only the "fourth conspiracy" touched the Northern District of Oklahoma, and Record argues he was not a party to that conspiracy. Venue in federal criminal cases is an element of the prosecution's case which must be proved, unlike the other elements, by a preponderance of the evidence. United States v. Rinke, 778 F.2d 581, 584 (10th Cir.1985). In a conspiracy, venue " 'lies either in the jurisdiction in which the conspiratorial agreement was formed or in any jurisdiction in which an overt act in furtherance of the conspiracy was committed by any of the conspirators.' " Id. at 584-85 (quoting United States v. Smith, 692 F.2d 693, 697 (10th Cir.1982)). Thus, if the conspiratorial agreements or overt acts touching the Northern District of Oklahoma were part of a separate conspiracy not involving Record, venue there would be inappropriate. See United States v. Durades, 607 F.2d 818 (9th Cir.1979).

Whether the evidence was sufficient to establish a single conspiracy is a question of fact for the jury to decide. ¹ Dickey 736 F.2d at 581. We review the sufficiency of the evidence by considering all the evidence, both direct and circumstantial, in the light most favorable...