910 F.2d 725 (11th Cir. 1990), 89-5736, United States v. Byrom

Docket Nº:89-5736.
Citation:910 F.2d 725
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Randall Clark BYROM, Heriberto Rene Perez, Defendants-Appellants.
Case Date:August 14, 1990
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 725

910 F.2d 725 (11th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,

v.

Randall Clark BYROM, Heriberto Rene Perez, Defendants-Appellants.

No. 89-5736.

United States Court of Appeals, Eleventh Circuit

August 14, 1990

As Amended Oct. 11, 1990.

Page 726

Vincent J. Flynn, Flynn & Tarkoff, Miami, Fla., for defendant-appellant Byrom.

Richard A. Sharpstein, Janice B. Sharpstein, Coconut Grove, Fla., for defendant-appellant Perez.

Dexter W. Lehtinen, U.S. Atty., Barbara A. Ward, Mayra R. Lichter and Linda Hertz, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

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

Page 727

Before EDMONDSON and BIRCH, Circuit Judges, and RE [*], Chief Judge.

BIRCH, Circuit Judge:

This appeal presents the potentially recurring issue of whether a videotaped conversation between an informant and a coconspirator can be used to implicate another coconspirator. With a limiting instruction, the district court admitted the videotape into evidence. Both defendants were convicted for conspiracy to import cocaine into the United States. Our review of the record has shown that admission of the videotape was proper; we affirm.

I. FACTUAL BACKGROUND

This case concerns a cocaine importation conspiracy, organized by defendant-appellant Heriberto Rene Perez, who used the alias Eddie Franco, 1 and which involved airplane pilots David Thomas, Bernard Dudas and defendant-appellant Randall Clark Byrom. In October or November, 1986, Perez, whom Thomas knew as Franco, asked Thomas, previously a charter pilot for Perez, to obtain an airplane to be used for the transportation of narcotics. Thomas located a suitable airplane for which Perez/Franco paid $50,000 in cash, delivered to Thomas in a parking lot.

In approximately February, 1987, Perez/Franco asked Thomas to fly 1,100 pounds of marijuana from Jamaica to Chub Cay in the Bahamas to be loaded onto boats for transportation to the United States. Thomas aborted this trip when he discovered that it was not feasible for the loaded plane to take off from the Jamaican airstrip. In February or March, 1987, Perez/Franco offered Thomas $200,000 to fly 500 kilograms of cocaine from Columbia, South America to Chub Cay, where the cocaine would be loaded onto boats for transportation into the United States. Thomas also canceled this trip because the fuel capacity of the plane was insufficient.

Dissatisfied with the copilot provided by Perez/Franco, Thomas recruited Dudas to be his copilot for the cocaine importation trips. On April 15, 1987, with tickets purchased by Perez/Franco, Thomas and Dudas flew commercially, to Nassau. From Nassau, they were to fly Perez/Franco's plane to Tamiami Airport in Miami, Florida, where Perez/Franco had arranged to have the fuel capacity of the plane increased. Thereafter, Perez/Franco met with Thomas and Dudas on several occasions to discuss the details of the trip to Columbia to obtain 500 kilograms of cocaine. With Perez/Franco's approval, Thomas asked Dudas to be his copilot for transporting the 500 kilogram load of cocaine from Colombia to Spanish Key, near Nassau. Thomas and Dudas agreed to divide Perez/Franco's $200,000 payment. Fearing detection, Thomas planned to leave the plane on Treasure Key, and he asked Byrom to fly

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Thomas and Dudas to Florida in Byrom's plane. 2

In May, 1987, Thomas and Dudas flew the plane to an airstrip in Colombia; the coordinates and call signs were provided by Perez/Franco. Individuals met the plane in Colombia, and the leader informed Thomas that he had communicated with Perez/Franco by short wave radio. After the plane was loaded with cocaine, Thomas and Dudas flew it to Spanish Key, where the cocaine was off-loaded onto boats for transportation to Florida. Thomas and Dudas then flew the plane to Treasure Key, where they left it. Thomas and Dudas flew to Fort Lauderdale commercially.

Subsequently, Dudas flew the plane from Treasure Key to Freeport, and Byrom flew it from Freeport to Florida. Perez/Franco paid Byrom $300 for his portion of the return flight. Both Thomas and Dudas informed Byrom that the plane had been used to transport 500 kilograms of cocaine. Thomas and Dudas had several meetings with Perez/Franco after they flew the cocaine load from Colombia. Perez/Franco paid them only $2,500 each for this trip since the cocaine did not enter the United States, because it was stolen or lost by members of the off-loading crew in the Bahamas. Perez/Franco agreed to pay them the remainder of their money for the first trip, plus $200,000 for a second trip to Colombia for cocaine.

Following the first load of cocaine carried by Thomas and Dudas, Thomas told Perez/Franco that he wanted the ownership of the plane changed. Although Perez/Franco had financed the plane, the ownership had been placed in Thomas' name. Perez/Franco instructed Thomas to change the ownership of the plane into the name of Franco. Thomas used a Miami post office address on the new registration and backdated the Federal Aviation Administration form to May 1, 1987.

In June, 1987, Perez/Franco planned a second trip to Colombia with Thomas and Dudas to obtain 350 kilograms of cocaine to be flown to Stella Maris in the Bahamas for boat transportation to the United States. Thomas discussed the proposed trip with Byrom, who agreed to meet the plane in Stella Maris and to transport Thomas and Dudas back to the United States in his plane in exchange for payment from Perez/Franco. Byrom also informed Thomas that his friend Clyde would perform these duties if Byrom were unable to do so. Before the second trip to Colombia for cocaine, Perez/Franco had asked Dudas if he would be interested in using Byrom as a load pilot. Dudas informed Perez/Franco that Byrom had said that he would not smuggle drugs outside of the United States.

The second flight to Colombia for cocaine was interrupted on several occasions because of various problems with the fuel system. Perez/Franco coordinated with Thomas and Dudas the details of each delay, including their return to Florida by commercial airline. Perez/Franco arranged a charter flight for Thomas, Dudas and a mechanic to return to the plane for repairs. After the fuel pump was repaired, Byrom flew the plane from Rock Sound to North Eleuthera with Perez/Franco's approval. Thomas verified with Byrom that Byrom would meet Thomas and Dudas on Stella Maris when they landed with the cocaine load from Colombia.

On June 20, 1987, Thomas and Dudas finally left for Colombia to acquire the cocaine load, with the call signs and landing strip coordinates provided by Perez/Franco. Upon landing in Colombia, the

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plane was met by many of the same individuals who had met and loaded the plane on the first trip. Under armed guard, they loaded the plane with 350 kilograms of cocaine. The Bahamian in charge used a short wave radio to contact Perez/Franco, who denied Thomas' request that they be allowed to spend the night. Perez/Franco also had instructed Thomas to bring back a Colombian male, Miguel, who was a relative of the owner of the cocaine load.

After their departure from Colombia, the trio encountered a severe thunderstorm. Lightning struck the aircraft and caused malfunction of the plane's avionics or directional system. Dudas jettisoned some of the cocaine. When the right engine caught fire, Thomas landed the plane in the water off the shore of Andros Island in the Bahamas. The three men exited the plane onto a liferaft. Dudas and Miguel returned to the plane and removed the remaining packages of cocaine, which were carried away by the current.

Thomas, Dudas and Miguel floated ashore and camped on the island until July 11, 1987, when they located natives who took them to customs in Congo Town. Dudas called his wife and asked her to call Byrom and to tell him to come to get the men. The three men were permitted to stay in a hotel. Within an hour and a half, Byrom, who flew his airplane to Andros, met Thomas, Dudas and Miguel at the hotel. Byrom was accompanied by local police and an immigration officer. At the request of the immigration officer, Byrom flew Dudas and the officer in Byrom's plane over the crash site.

That evening, Byrom told Thomas and Dudas that he had been on Stella Maris as planned to meet them with the cocaine load from Colombia, and that he was chased from the island by a Drug Enforcement Administration (DEA) helicopter. Byrom also related that he had searched the islands for Thomas and Dudas at Perez/Franco's request and with his financing. Byrom told Thomas that he had arranged to have "friends" inspect the plane for incriminating evidence. Later in the evening, a Bahamian male came to Thomas' room and informed him that the plane revealed no evidence of the cocaine.

The following day, Thomas went with the local police to inspect the wreckage. During this inspection, Dudas and Byrom flew in Byrom's plane over the island to see if they could spot any of the cocaine packages that Dudas had thrown from the plane. None of the packages were found. Byrom and Dudas returned to the hotel to wait for Thomas and the police.

Subsequently, an immigration officer informed Thomas, Dudas, Byrom and Miguel that they were to go to immigration in Nassau. The men flew in Byrom's plane to Nassau. The following day, Thomas, Dudas and Byrom were allowed to leave and flew to Fort Lauderdale in Byrom's plane. Miguel was detained as an illegal alien. Byrom called Perez/Franco, who provided the name of an attorney for Miguel. Byrom related Perez/Franco's message to Thomas and Dudas that they were responsible for getting themselves back to the United States. Byrom, who paid the hotel and other expenses for the men...

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