U.S. v. Adams, Nos. 91-3356

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: Before TJOFLAT, Chief Judge, CARNES; CARNES
• Citation: 1 F.3d 1566
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James A. ADAMS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Otto J. RUNKEL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Buddy DAVIS a/k/a Indian; Philip Cohron; Joe Wayne Jones; and James A. Adams, Defendants-Appellants.
• Docket Number: Nos. 91-3356,91-3680 and 91-3691
• Decision Date: 22 September 1993

Page 1566

1 F.3d 1566 UNITED STATES of America, Plaintiff-Appellee,
v.
James A. ADAMS, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Otto J. RUNKEL, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Buddy DAVIS a/k/a Indian; Philip Cohron; Joe Wayne Jones;
and James A. Adams, Defendants-Appellants. Nos. 91-3356, 91-3680 and 91-3691. United States Court of Appeals, Eleventh Circuit. Sept. 22, 1993.

Page 1569

Stephen E. Sutherland, Pensacola, FL, for Otto J. Runkel.

Lyndia F. Padgett, U.S. Atty., Randall J. Hensel, Asst. U.S. Atty., Pensacola, FL, for U.S.

Ronald W. Johnson, Pensacola, FL, for Buddy Davis.

Joseph L. Hammons, Pensacola, FL, for Philip Cohron.

Robert A. Harper, Tallahassee, FL, for Joe Wayne Jones.

Morris D. Berman, Charles Giesen, Giesen & Berman, S.C., Madison, WI, for James A. Adams.

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

Before TJOFLAT, Chief Judge, CARNES, Circuit Judge, and BRIGHT ^*, Senior Circuit Judge.

CARNES, Circuit Judge:

This is an appeal by five defendants who were convicted and sentenced on four counts of importing and distributing large quantities of marijuana. The defendants appeal various aspects of their trial and sentences. We conclude that the district court erred in sentencing one of the defendants, James Adams, and we vacate and remand the relevant portion of that sentence. In all other respects, the district court committed no error, and we affirm the convictions and sentences.

I. INTRODUCTION

This case involves the importation of marijuana in small aircraft. There are numerous characters in the plot and a large number of transactions. The defendants were in the practice of using their own airplanes, or leasing, stealing or borrowing other planes to fly to Belize, pick up loads of marijuana and fly them back to the United States. The marijuana would be dropped to waiting accomplices while the plane was airborne, a practice referred to by the parties as "kicking," or it would be unloaded after landing at remote, sometimes homemade, airstrips in Florida and Alabama.

The smuggling ring was organized and managed by Glen Munro, a conspirator who was convicted for his drug smuggling activities in a separate proceeding and is serving a sentence. By his own estimates he had personally made about seven million dollars from his smuggling operations. Munro established a relationship with Johnny Crawford as a source for marijuana. Crawford was living in Belize and, in addition to securing marijuana, he operated a runway and marijuana loading operation there. Munro and his partners recruited pilots and organized their flights, arranged landing sites and recruited individuals to retrieve kicked bundles of marijuana or to unload airplanes that had landed at remote airstrips. The marijuana was sold for further distribution. From the revenue generated by these sales the conspiracy's ringleaders would pay their expenses and their helpers and keep the resulting profit.

The appellants in this case are each participants in this highly organized drug smuggling operation. Appellant Joe Jones owned farm land on which a homemade airstrip was constructed for the planes to land and unload their illegal cargo. Jones and appellant Philip Cohron were implicated in securing airstrips. Cohron and appellant Buddy Davis

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were implicated as members of the operation's ground crew who retrieved kicks and unloaded planes. Appellant Otto Runkel was involved as a pilot for one aborted smuggling trip to Belize, and appellant James Adams was his co-pilot and helper for this trip.

Fourteen defendants, including the five defendants who bring this appeal, were indicted in a four-count sealed indictment. Count 1 of the indictment charged a conspiracy to knowingly and intentionally import 1000 or more kilograms of marijuana into the United States. Count 2 charged a conspiracy to possess with intent to distribute 1000 or more kilograms of marijuana. Counts 3 and 4 respectively charged each defendant with the substantive crimes of importing and possessing with intent to distribute 1000 or more kilograms of marijuana. In addition to the fourteen defendants, the indictment listed nine other co-conspirators who were not charged therein, as well as "others known and unknown." All the defendants initially pleaded not guilty.

James Adams filed a motion to dismiss the indictment on double jeopardy grounds arguing that he and co-defendant Otto Runkel had been prosecuted for crimes arising from the same facts at issue here in a prior proceeding in the Southern District of Florida. Runkel joined in Adams' motion, which was denied. Adams filed an interlocutory appeal of the trial court's denial of his double jeopardy motion, No. 91-3356, and that appeal has been consolidated with the present one. Subsequently, Runkel withdrew his plea of not guilty and entered one of guilty to all four counts, but he reserved his right to appeal the court's ruling on his double jeopardy motion. Runkel's appeal of the denial of the double jeopardy motion, No. 91-3680, is also consolidated with the main appeal by the other defendants, No. 91-3691. All of the defendants, other than Runkel, maintained their pleas of not guilty. After a lengthy trial where many co-conspirators testified against the defendants, each remaining defendant was convicted on all four counts. The defendants were sentenced and they are all presently incarcerated, with the exception of James Adams. Adams, Cohron, Davis, Jones, and Runkel appeal various aspects of their convictions and sentences.

II. ISSUES PRESENTED

A. Whether the prosecutions of Adams and Runkel were violations of double jeopardy.

B. Whether the district court erred by refusing to suppress statements made by Adams upon confrontation with Customs agents.

C. Whether the district court erred by refusing to suppress evidence seized from the aircraft in which Adams and Runkel were riding.

D. Whether the district court erred by refusing to sever Adams and Cohron from the main trial.

E. Whether the district court correctly determined the quantity of contraband for the sentences of Adams and Davis.

F. Whether the evidence was sufficient to convict Cohron.

G. Whether the district court erred by applying the mandatory minimum sentence to Cohron.

H. Whether Davis and Jones were denied a fair trial by the district court's allowing witnesses to testify in prison garb.

I. Whether the evidence established multiple conspiracies instead of only one. ¹

III. DISCUSSION

A. DOUBLE JEOPARDY

James Adams and Otto Runkel argue that earlier proceedings against them constitute

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a double jeopardy bar to the present prosecution. In February of 1987, Runkel and Adams, acting as pilot and co-pilot, took off from an uncontrolled airstrip in Avon Park Florida in a twin-engined Piper airplane. Information from an informant had led agents to obtain a court order to secretly equip the aircraft with a transponder so that it could be tracked. The aircraft was tracked flying south and west for approximately 100 miles until the signal faded. At this point the aircraft had left United States airspace. Agents picked up the same aircraft returning in an easterly direction nine or ten hours after it had taken off. Realizing that the aircraft was headed for the same strip from which it left, agents intercepted the plane as soon as it landed. Testimony from co-conspirators later revealed that the plane had been flown to Belize, but it did not stop because Runkel did not see his connections waiting on the ground. The plane returned without the intended load of marijuana.

As a result of their flight to Belize, Runkel and Adams were prosecuted in the Southern District of Florida for knowingly and willfully displaying and causing to have displayed false and misleading registration marks on the Piper aircraft with the intent to commit crimes relating to a controlled substance. 49 U.S.C.App. Sec. 1472(b). ² Although an intent to commit a controlled substance crime affects only the punishment for a violation of the false aircraft markings statute, the indictment returned in the Southern District of Florida in 1988 explicitly referred to the very crimes for which Adams and Runkel were indicted in the Northern District of Florida in 1991 in the present case. ³ Runkel pleaded guilty to the offense charged in the 1988 Southern District of Florida indictment, but Adams went to trial and was acquitted. After Runkel's guilty plea conviction and Adams' acquittal of the Southern District indictment charges relating to the airplane markings offense, both defendants were charged in the Northern District indictment in the present case with the controlled substances offenses.

The statutes averred as the punishment-enhancing controlled substance offenses in Adams' and Runkel's Southern District airplane markings indictment are the same statutory sections for which Adams and Runkel were subsequently indicted in Count 1, the conspiracy to import count, and Count 3, the

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importation count, in the present Northern District case. The evidence presented to prove those two counts against Adams and proffered against Runkel in this Northern District case is virtually the same as that presented against Adams and proffered against Runkel in their Southern District prosecutions. It is unclear why the Government did not indict Adams and Runkel on the Count 1 and Count 3 charges in this case at the time it obtained the false aircraft markings indictment against them in the Southern District. Its failure to do so forms the basis of the double jeopardy contentions of Adams and Runkel about Counts 1 and 3 of the indictment in this case. ⁴

Whether double jeopardy bars a subsequent prosecution is an issue for plenary review. Mars v. Mounts, 895 F.2d 1348, 1351 (11th Cir.1990). The Supreme Court has recently expressly overruled its...