U.S. v. Wilson
| Decision Date | 20 February 1990 |
| Docket Number | Nos. 87-3458,88-3678,s. 87-3458 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. James Douglas WILSON, Donald Scott Smith, Carl Lee Woodworth, James Michael Levine, John Lee Howard, Leigh Bruce Ritch, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. John Lee HOWARD, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Daniel F. Martinez, David A. Dee, Stull and Heidt, P.A., Tampa, Fla., for defendants-appellants.
Robert Merkle, U.S. Atty., Tampa, Fla., Joseph Magri, U.S. Atty., Robert T. Kennedy, Asst. U.S. Atty., Denver, Colo., for the U.S.
Theda James, Asst. Federal Public Defender, Tampa, Fla., for James Michael Levine.
Raymond E. LaPorte, Tampa, Fla., for John Lee Howard.
Henry Lee Paul, Lazzara, Caskey, Polli, Gillick and Paul, Robert P. Polli, Tampa, Fla., for Leigh Bruce Ritch.
Mark P. Bryan, Clearwater, Fla., for James Douglas Wilson.
Appeals from the United States District Court for the Middle District of Florida.
Before HATCHETT and COX, Circuit Judges, and HENDERSON, Senior Circuit Judge.
The appellants, James Wilson, James Levine, Leigh Ritch, John Howard, Carl Woodworth, and Donald Smith, and seventeen other defendants were charged in a multiple count indictment with several drug related offenses. The charges included two counts of engaging in a continuing criminal enterprise, six counts of conspiracy to import marijuana, one count of conspiracy to possess with intent to distribute marijuana, three counts of conspiracy to import cocaine, one count of conspiracy to possess with intent to distribute cocaine, and five substantive counts of drug importation and distribution. Following a nine week jury trial, the appellants were convicted on multiple counts. They appeal their convictions on nine different grounds. Appellants Howard, Levine and Ritch also challenge the district court's denial of their motion for a new trial on the basis of newly discovered evidence, and the district court's denial of their motion to vacate their sentences under 28 U.S.C. Sec. 2255. For reasons set forth herein, we vacate that portion of the order of the district court denying the appellants' section 2255 motion. We affirm on all other issues.
We present only a brief overview of the facts here; the facts most pertinent to each issue are discussed separately.
The convictions in this case arise from a large drug smuggling operation, headed by defendant Steven Kalish and defendant-appellant Leigh Ritch. From 1981 through 1985, under the guidance of these leaders, the actors in this operation smuggled massive quantities of marijuana and cocaine from South America into the United States and then distributed it throughout the country. The operation included seven different ventures: the Lady Mauricette load, the Bobby M load, the Bulldog operation, the Shreveport load, the Masterblaster load, the Dallas conspiracy, and the Seamaid load.
The defendants acquired a shrimper named Lady Mauricette in Louisiana and outfitted it with sophisticated electronic devices and refrigeration units designed to store marijuana. In June of 1982, the Lady Mauricette was taken to the northern coast of Colombia and loaded with thirty thousand pounds of marijuana. The vessel then sailed to the coast of North Carolina, where the contraband was to be off-loaded and shipped to Michigan. The plan was foiled the following month, however, when the shrimper was apprehended and seized off the North Carolina coast. Appellants Ritch and Wilson were convicted of conspiracy to import approximately thirty thousand pounds of marijuana in connection with this venture.
Having determined that the off-load sites in North Carolina had not been detected in the Lady Mauricette seizure, the defendants decided to try again in the fall of 1982. Another shrimper, the Bobby M, was acquired and outfitted in Texas, loaded with more than thirty thousand pounds of marijuana in Colombia, and successfully off-loaded at the planned site in North Carolina. From North Carolina the marijuana was transported by trucks to a warehouse in Detroit, Michigan, and then sold to various distributors throughout the country. Appellants Ritch and Wilson were convicted of conspiracy to import and conspiracy to possess with intent to distribute thirty thousand pounds of marijuana in connection with the Bobby M venture. Appellant Levine was also convicted of the conspiracy to import charge but acquitted of the conspiracy to possess charge.
In this venture, the defendants located and outfitted a tug and barge in the Dominican Republic. In the spring of 1983, the vessels were taken to Colombia and loaded with 280,000 pounds of marijuana. They then travelled to Louisiana, successfully off-loaded 220,000-240,000 pounds of the cargo onto tractor trailer trucks, and transported it to Ohio. In Ohio the contraband was stored in farmhouses and warehouses and eventually distributed. Drug enforcement officials later seized the tug and barge, which contained about 35,000 pounds of marijuana that had not been unloaded. To celebrate the success of the venture, many of the participants took a week long cruise in the Caribbean. With the profits from this venture, Kalish and Leigh Ritch also purchased a yacht and a Lear jet. In connection with this venture, Ritch and Wilson were convicted of conspiracy to import, importation, and conspiracy to possess with intent to distribute 280,000 pounds of marijuana. Ritch was also convicted of possession with intent to distribute, a charge of which the jury acquitted Wilson.
Certain of the defendants next acquired an airplane and in the spring of 1984, used it to import one thousand kilograms of cocaine from Colombia into Shreveport, Louisiana. In Shreveport, the load was placed in several vehicles and then driven to Tampa. Some of the load was taken to Miami. For this incident, Ritch and Wilson were again convicted of conspiracy to import twelve hundred kilograms of cocaine, importation of one thousand kilograms of cocaine, conspiracy to possess with intent to distribute, and possession with intent to distribute cocaine.
In 1984, Leigh Ritch and Steven Kalish also planned to import more than 500,000 pounds of marijuana into the United States via the tug, the Seamaid, and the barge, the Guzzetta 100. The Guzzetta 100 was to be loaded in Colombia, transported up the Mississippi River, and off-loaded in St. Louis, Missouri. The operation was cancelled after Kalish's arrest in the summer of 1984. Leigh Ritch was convicted of conspiracy to import 500,000 pounds of marijuana in connection with the Masterblaster venture. The district court granted Wilson's motion for judgment of acquittal on this charge. 1
Pressured by investors to continue the smuggling operation after the failure of the Masterblaster venture, some of the defendants arranged to smuggle more than one thousand kilograms of cocaine into the United States in the spring of 1985. An airplane was to be loaded in Colombia and flown into the Albuquerque, New Mexico area. Shortly before the plane was to depart for Colombia to pick up the cargo, however, some of the key participants were arrested and the plan was aborted. Leigh Ritch was convicted of conspiracy to import one thousand kilograms of cocaine for his role in this venture.
In the summer and fall of 1985, appellant Leigh Ritch arranged to import 165,000 pounds of marijuana from Colombia into the Norfolk, Virginia area. The same tug and barge involved in the aborted Masterblaster venture transported the contraband to the Virginia coast, where another tug, the Eagle, was to trade places with the Guzzetta 100 and pull the barge ashore. The Eagle was captained by appellant Popp and crewed by appellants Woodworth and Smith. Authorities stopped both vessels in the waters off the coast of Virginia before the exchange transpired. Ritch, Levine, Howard, Popp, Smith, and Woodworth were convicted of attempting to import 165,000 pounds of marijuana in connection with the incident. Ritch, Levine and Howard were also convicted of conspiracy to import this quantity of marijuana for their roles in the venture. Popp, Smith and Woodworth were acquitted by the jury of this conspiracy charge.
On the sixth day of the jury's deliberations, a Friday, a member of the jury became ill, causing the district court to dismiss the jury early for the weekend. That Sunday evening, the juror telephoned the court clerk to inform him that she would be unable to deliberate on Monday because of her continuing illness. She explained that she had an abscessed tooth and that due to her pregnancy, it could not be treated with medication. She expressed hope that she would be able to return on Tuesday.
Upon reconvening of the court on Monday, the district judge voiced his doubt that the juror would return the next day and stated that the juror's poor health had been a matter of concern to him on more than one occasion throughout the trial. Over the appellants' objections, the district court excused the juror for just cause pursuant to Fed.R.Crim.P. 23(b) ("Rule 23(b)") 2 and instructed the remaining eleven jurors to resume their deliberations. The jury returned a unanimous verdict the following day.
All the appellants contend that the district court erred in accepting the verdict of eleven jurors. Several of the appellants argue on appeal that Rule 23(b) is unconstitutional in that it violates their right to a unanimous verdict and their Sixth Amendment right to a twelve person jury. Appellants Ritch, Howard and Wilson argue that Rule 23(b)'s application to their conduct prior to August 1, 1983, the date the rule was amended to allow the court to...
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