U.S. v. Lochmondy

• Citation: 890 F.2d 817
• Decision Date: 28 November 1989
• Docket Number: 88-2134,Nos. 88-2049,s. 88-2049
• Parties: 29 Fed. R. Evid. Serv. 486 UNITED STATES of America, Plaintiff-Appellee, v. Paul LOCHMONDY (88-2049); Charles Ludlow (88-2134), Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 817

890 F.2d 817

29 Fed. R. Evid. Serv. 486

UNITED STATES of America, Plaintiff-Appellee, v. Paul LOCHMONDY (88-2049); Charles Ludlow (88-2134) Defendants-Appellants.

Nos. 88-2049, 88-2134.

United States Court of Appeals Sixth Circuit.

Argued July 27, 1989.

Decided Nov. 28, 1989.

John C. Bruha, argued Office of the U.S. Atty., John A. Smietanka, U.S. Atty., Grand Rapids, Mich., for plaintiff-appellee U.S.

Craig W. Haehnel, Grand Rapids, Mich., for defendant-appellant Paul Lochmondy.

Larry C. Willey, argued, Dennis C. Kolenda, Varnum, Riddering, Schmidt & Howlett, Grand Rapids, Mich., for defendant-appellant Charles Ludlow.

Before WELLFORD and RYAN, Circuit Judges, and CONTIE, Senior Circuit Judge.

WELLFORD, Circuit Judge.

Charles Ludlow and Paul Lochmondy appeal their convictions for participation in a large conspiracy to distribute marijuana. We affirm.

I.

In August 1983, Dennis Erikson obtained a 43,000 pound load of marijuana that was brought to Atlantic City, New Jersey from Colombia, South America. The marijuana was loaded onto a semi-truck and taken to the home of a codefendant, Willis Canter, on MN Avenue in Galesburg, Michigan, near Kalamazoo.

At the MN Avenue address, the truck got stuck in the driveway and almost tipped over. A tow truck was called to free the semi, and the semi was then taken to a backup storage site at the farm of Cornelius Plantefaber near Three Rivers, Michigan. The marijuana was unloaded, weighed, and put into a pole barn. The total weight was 43,000 pounds, including packaging.

The marijuana was distributed directly from the farm, and was also taken to other locations for distribution. Plantefaber and Martin Pierman guarded the marijuana while it was at the farm. Plantefaber, who was granted immunity for his cooperation in this and other cases, testified that he purchased between 4,000 and 6,000 pounds of the marijuana for distribution. He testified that he initially sold about 4,500 to 4,700 pounds of this marijuana to David Dildine in Ann Arbor, but that much of this marijuana was later returned. He also sold some of the marijuana to appellants Ludlow and Lochmondy and other individuals.

Plantefaber identified records showing that he sold over 4,400 pounds of marijuana to Dildine, over 7,000 pounds to Ludlow, and several hundred pounds to Lochmondy. Exhibit 5, which was in both Plantefaber's and Pierman's handwriting, showed bales of marijuana distributed to "C," which Plantefaber said stood for Charles Ludlow. Exhibit 6 reflected bales of marijuana distributed to "R" or "RA" (a nickname for Ludlow) and "P," which stood for Paul Lochmondy. Exhibit 7 was a running total of marijuana from this load sold to "C" (Ludlow). Plantefaber said that he delivered the marijuana to Ludlow at Ludlow's residence in Oshtemo, Michigan, and to Lochmondy at Lochmondy's body shop in Marcellus, Michigan.

Erikson testified that Plantefaber took marijuana from this load to Dildine, appellants Ludlow and Lochmondy, as well as other individuals. Erikson testified that Plantefaber wanted to avoid conflicts of interest, and recalled Plantefaber asking him if it would be all right for Plantefaber to take marijuana to Ludlow and Lochmondy.

Pierman testified that he helped guard the marijuana at Plantefaber's farm and kept records on the load. He identified his handwriting on Exhibits 2, 3 and 5. He recalled being at the farm one evening by himself when appellant Lochmondy came to the farm looking for Plantefaber. Lochmondy did not say why he was looking for Plantefaber and left after a brief discussion with Pierman. Pierman testified that Plantefaber also knew Charles Ludlow at the time, but did not see Ludlow at the farm.

In March 1988, a grand jury returned a three-count indictment against Ludlow and Lochmondy and 15 other defendants. Count 1 of the indictment charged all of the defendants with conspiracy to possess with intent to distribute and distribution in excess of 1,000 pounds of marijuana, in violation of 21 U.S.C. Secs. 846, 841(a)(1). Count 2 of the indictment charged all of the defendants with possession with intent to distribute and distribution of in excess of 1,000 pounds of marijuana, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2.

Prior to trial, the district court severed the defendants into two groups for trial. The first trial consisted of five defendants and resulted in convictions of four out of the five. Ludlow and Lochmondy were in the second group to be tried, along with several codefendants. The appellants' trial began on August 2, 1988, and ended on August 26, 1988. At the close of the government's case, the court dismissed Count 1 against appellants Ludlow and Lochmondy. The government's motion to reconsider that ruling was denied. The court also ruled that it would instruct the jury only on the lesser-included offense in Count 2 of possession with intent to distribute less than 1,000 pounds of marijuana as to Ludlow and Lochmondy. Both appellants were found guilty of the lesser-included offense. Their motion for a new trial was denied.

Ludlow was sentenced to two years in prison, a two year special parole term, and assessed a $10,000 fine. Lochmondy, who had a previous felony marijuana conviction, was sentenced to an enhanced penalty of eight years in prison, a four year special parole term, and was also assessed a $10,000 fine.

II.

1. Bolstering Credibility and Evidence of Guilty Pleas

Appellants' first argument is that the government improperly bolstered the testimony of Plantefaber by eliciting testimony that he had cooperated on other cases that resulted in convictions and by referring to that testimony in rebuttal argument. The government responds that it bolstered Plantefaber's testimony only in response to "severe attacks on his credibility by the defense." In denying the defendants' motion for a mistrial, the court found that the bolstering of Plantefaber's credibility was not improper because it was in response to an attack on the witness' credibility. The court offered to deliver a limiting instruction, but that was declined by the defendants.

The record shows that the credibility of witness Plantefaber was strongly attacked by the defendants at trial. During his opening statements, counsel for defendant Ludlow told the jury that "any witness who says that [Ludlow] did it is simply lying to you." He also told the jury that "I think it will be clearly demonstrated that the prosecution witnesses are indeed lying to you." The only prosecution witness defense counsel mentioned by name was Plantefaber.

On cross-examination, Plantefaber was questioned about various drug and income tax violations for which he was not being prosecuted pursuant to his immunity agreement. The government then asked Plantefaber the following questions on redirect:

Q. Now, Mr. Plantefaber, did you cooperate with the government in an investigation of Mr. Erikson's, Dennis Erikson's cocaine business in addition to his marijuana business?

A. Yes, sir, I did.

Q. Do you know whether or not Mr. Erikson has pled guilty to being involved in the sale of cocaine as a result of this investigation?

A. I think he admitted it, but was not charged for it.

Q. Do you know what the scope of his charges were?

A. No, sir, I really don't know the exact.

Q. Mr. Plantefaber, have you cooperated with the government in other major investigations that do not involve the people in this trial or the subject matter of this case?

A. Yes, sir, I think numerous.

Q. And have some of those investigations resulted in convictions of various defendants, Mr. Plantefaber?

A. Yes, sir, they have.

No objection was made to this line of questioning at the time or at the close of the trial later that day. On the following morning, however, Ludlow's counsel moved for a mistrial, citing irreversible error.

During final argument, counsel for defendant Ludlow argued that no reasonable person could believe Plantefaber on "anything." He argued that Plantefaber's immunity agreement gave him an "incredibly powerful reason to lie." He also argued that Plantefaber was a "master of deception who, from 1980 on, lied about everything." He accused Plantefaber of lying to the government, to the grand jury, and to the trial jury, and of manufacturing evidence against his client. Lochmondy's counsel alleged that "K.C. Plantefaber for that grant of immunity would do and say anything the government asked."

Responding to these attacks on Plantefaber's credibility during final argument, the government argued on rebuttal that:

... they describe Mr. Plantefaber as the second biggest drug dealer you have heard about in this case, ladies and gentlemen, that he was walking away Scot free; and one of the other lawyers referred to you, ladies and gentlemen, that the government was using big fish to catch little minnows. Well, keep in mind, ladies and gentlemen, that Mr. Plantefaber was not given immunity to testify in just this particular case. Mr. Plantefaber told you that he has provided information in a number of other cases, and he told you that some of those cases have already resulted in convictions of other people.

Defense counsel immediately objected, and the objection was sustained. At the request of the defense, the court included the following instruction in its final jury instructions:

There was some comment made about, or testimony made about Mr. Plantefaber's cooperation with the government. His cooperation with the government in other cases is not to be considered by you at all in determining the guilt or innocence of these defendants on trial.

Several circuits have held that evidence of cooperation on other matters is admissible to justify a cooperation agreement and to rebut allegations of bias. United States v. Sanchez, 790 F.2d 1561 (11th Cir.1986); United States v. Fusco, 748 F.2d 996 (5th Cir.1984); United States v. Martinez, 775 F.2d 31 (2d Cir.1985). In Martinez, the court held that the...