U.S. v. Reed, 90-3076

Citation980 F.2d 1568
Decision Date20 January 1993
Docket NumberNo. 90-3076,90-3076
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jack Carlton REED, Donald Kenneth Lady, Barry Kane, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Clyde M. Collins, Jacksonville, Fla., for Reed.

Lawrence E. Besser, Miami, Fla., for Kane.

Edward Dawkins, Jacksonville, Fla., for Lady.

Ernst D. Mueller, Asst. U.S. Atty., Jacksonville, Fla., for U.S.

Appeals from the United States District Court for the Middle District of Florida.

Before KRAVITCH and HATCHETT, Circuit Judges, and BROWN *, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

Defendants Jack Carlton Reed ("Reed"), Donald Kenneth Lady ("Lady") and Barry Kane ("Kane") appeal their convictions and sentences imposed under Title 21 of the United States Code. Reed was convicted of engaging in a continuing criminal enterprise (CCE) in violation of 21 U.S.C. § 848 and of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846; Kane and Lady were convicted of conspiring to import cocaine in violation of 21 U.S.C. § 963. We reverse Reed's CCE conviction on double jeopardy grounds. We uphold the remaining convictions.

I. Course of Proceedings
A. The Prior Lehder-Rivas Indictment

On September 18, 1981, Reed, Carlos Enrique Lehder-Rivas ("Lehder") and two co-defendants were charged in an eleven count indictment. Count One charged Lehder and Reed with engaging in a conspiracy to import cocaine from June 1978 to September 1980 in violation of 21 U.S.C. § 963. 1 Counts Two through Eleven charged Lehder with nine acts of importing and possessing cocaine with intent to distribute in violation of 21 U.S.C. §§ 952 and 841 and with engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848. Reed was arrested in Panama on February 7, 1987. Following seven months of testimony, a jury returned guilty verdicts on all counts. Reed was sentenced on July 20, 1988 to fifteen years imprisonment and fined $25,000. Lehder was sentenced to life imprisonment without parole to be served consecutively with 120 years imprisonment. He was also fined $100,000 and ordered to forfeit his property. The convictions of both Reed and Lehder were affirmed upon appeal. United States v. Lehder-Rivas, 955 F.2d 1510 (11th Cir.1992) ("Lehder/Reed trial").

B. The Reed, Kane, Lady Indictment

The defendants in the present drug conspiracy case, Reed, Lady, and Kane, along with thirty-two other co-defendants, were charged in a twelve count indictment returned on February 29, 1989. 2 Count One charged defendants with conspiring to distribute five or more kilograms of cocaine from 1974 through February 1989, in violation of 21 U.S.C. § 846. Count Two charged Kane and Lady, but not Reed, with conspiring to import five kilograms or more of cocaine during the same time period, in violation of 21 U.S.C. § 963. Count Seven charged Reed with conducting a CCE from January 1978 through February 1987, in violation of 21 U.S.C. § 848. None of these three defendants were charged in the remaining counts of the 1989 indictment. Only five of the original thirty-five individuals indicted were named in the final prosecution.

During trial, prospective jurors were subjected to an intensive voir dire and the number of peremptory challenges available to both defense and prosecution was increased due to the overlap between the conspiracy alleged and the conspiracy proven in the highly publicized Carlos Lehder trial. It was established that all fifty-six prospective jurors were familiar with the Lehder trial and with Lehder's conviction. However, only thirteen had heard of the instant case, and four of these jurors were excused for cause. None of the nine remaining jurors who had been exposed to pretrial publicity served on the final jury, either due to defense or prosecutorial strikes or because these jurors were not reached in the selection process.

After a six-week trial, Reed was convicted on Count One, conspiracy to distribute, and Count Seven, engaging in a CCE. Lady and Kane were acquitted on Count One, conspiracy to distribute, but convicted on Count Two, conspiracy to import. The two other defendants, Herington and Stewart, were acquitted on all counts.

At sentencing, the court determined that the Federal Sentencing Guidelines were applicable to the offenses charged in Counts One and Two of the Indictment. Under these guidelines, Lady was subject to an imprisonment of 188 to 235 months. The court made a downward departure, however, based on 1) a comparison between Lady's role and the role of others who had been sentenced, 2) the age of the offense, and 3) the failure of the guidelines to account for a situation in which defendants who plead guilty receive non-guideline sentences yet those who go to trial are sentenced under the more stringent guidelines. Accordingly, Lady was sentenced to the mandatory minimum sentence of ten years.

These same factors caused the court to depart downward five levels during the sentencing of Kane who otherwise would have received 235 to 292 months imprisonment. Kane received a sentence of 144 months and a fine of $500,000.

In sentencing Reed, the district court adopted the probation officer's report which suggested three increases in Reed's base level offense. The report recommended increasing the base level by four points due to Reed's leadership role in the conspiracy. It recommended a further increase of two points for possession of firearms during the commission of the crime; this recommendation was based on a 1979 raid of Reed's residence in Norman's Cay, Bahamas, during which the Bahamanian police found weapons, ammunition and dynamite. The district court also adopted the report's suggestion that Reed's base level be enhanced by two points for obstruction of justice due to his involvement in a conspiracy to escape from custody prior to trial.

Reed was sentenced to life imprisonment on Count One, to run concurrently with the previously imposed fifteen-year sentence in the Lehder/Reed case for conspiring to import cocaine. He was also fined $2,000,000. The district court also sentenced Reed to a consecutive life term on Count Seven (the CCE charge), a non-guideline offense.

Defendants appeal these convictions and sentences.

II. Statement of the Facts

Defendants Reed, Lady and Kane were charged with a farreaching and longlasting conspiracy to import drugs into the United States. Much of the conspiracy involved Carlos Lehder, who managed the entire operation out of Norman's Cay in the Bahamas.

A. Kane's Involvement

Kane, a pilot and attorney, first became involved in the Lehder drug business in 1976 when he agreed to fly smuggling runs for Lehder. In 1977, Kane flew several times from Norman's Cay to Colombia, each time acquiring several hundred kilograms of cocaine for importation into the United States. Between 1977 and 1985, George Jung ("Jung"), a major organizer of many cocaine importations, contacted Kane several times. Jung testified that Kane declined to participate in further smuggling activities when Jung contacted him in 1985 because "it was too risky and he no longer wished to involve himself in the business." Jung's nephew, Jose Ahmed ("Ahmed"), was standing next to Jung as he held this conversation from a public phone. Ahmed testified, in contrast to Jung, that Kane had indicated a willingness to smuggle drugs during the 1985 conversation as well as during a 1981 contact. Ahmed stated that the 1985 flight never occurred because Kane and Jung disagreed over price. Jung did not testify concerning any specific contact in 1981 but did state that he had asked Kane to fly drugs "half a dozen times" over the years since 1977 but that Kane had refused each time.

B. Reed's Involvement

In 1978 Lehder asked Reed, a pilot, to smuggle drugs from Colombia into the United States, via Norman's Cay. Reed made at least ten such trips during 1978. Between 1978 and 1979, Reed ascended to a leadership role within the Lehder enterprise, directing other members' activities and coordinating the operation on Norman's Cay. In September 1979, the activities of the conspiracy were interrupted due to a Bahamanian police raid of Norman's Cay. Lehder was arrested during the raid, but Reed, who had been warned in advance, was not on the island when the police arrived. Pursuant to a search warrant, the police confiscated guns, ammunition and dynamite from Reed's residence on the island. The degree of Reed's involvement following his return to Norman's Cay in the fall of 1980 is unclear.

In September 1981, Reed moved to Colombia and later moved to a remote area of Panama. In September of 1986, a confidential government informant, James Torres ("Torres"), traveled to Panama to discuss with Reed the distribution of cocaine through Arizona. During Torres' visit, Reed extensively discussed his association with Lehder. Forty days after Torres' departure, Reed contacted Torres in Arizona. Torres returned to Panama and discussed delivery of cocaine into the United States with Reed and two other men. One of these men, Gonzalo Mejia ("Mejia"), asked Torres to provide ground crews to offload planes in the United States and to locate places to store the cocaine. Reed was to receive payment based on the number of kilograms handled by Torres.

C. Lady's Involvement

Sometime in 1986, Mejia asked Larry Triplett ("Triplett") to locate a ranch in Mexico that could be used as a smuggling waystation. Triplett recruited defendant Lady, who spoke Spanish and was an airplane mechanic, to help lease such a ranch. Once the property was located, Lady oversaw the day-to-day operations and security on the ranch and was paid $1,000 a month for his services.

Late in 1986 or early in 1987, Triplett informed Lady about his plans to use the ranch as a waystation for the importation of cocaine. Lady was told that he would receive $100,000 in addition to his salary if Triplett used the ranch for...

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