U.S. v. Amend
| Decision Date | 30 May 1986 |
| Docket Number | Nos. 84-5356,s. 84-5356 |
| Citation | 791 F.2d 1120 |
| Parties | UNITED STATES of America, Appellee, v. Carol AMEND, Appellant. UNITED STATES of America, Appellee, v. Carol AMEND, Appellant. (L), 84-5357. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Joel Hirschhorn (Rhea P. Grossman, Miami, Fla., Jack B. Swerling, Columbia, S.C., on brief) for appellant.
John McIntosh, Asst. U.S. Atty., and Robert C. Jendron, Jr., Asst. U.S. Atty., (Vinton D. Lide, U.S. Atty., Columbia, S.C., on brief), for appellee.
Before SPROUSE and ERVIN, Circuit Judges, and MOTZ, United States District Judge for the District of Maryland, sitting by designation.
Carol Amend appeals from her conviction on all counts of a nine-count indictment which charged her, inter alia, with engaging in a continuing criminal enterprise (CCE) in violation of 21 U.S.C. Sec. 848. 1 The district court sentenced her on the CCE count only to a prison sentence of thirty years without possibility of parole and a fine of $100,000, and ordered her to forfeit all assets and profits gained through her illicit enterprise. We affirm her conviction and sentence and affirm in part and vacate in part the forfeiture judgment.
The testimony at Amend's trial established her involvement in at least five marijuana smuggling offenses between 1975 and 1980.
James Tucker, Assistant United States Attorney for the Southern District of Mississippi, testified that Amend was convicted of conspiracy to import marijuana and conspiracy to possess marijuana in federal court in the Southern District of Mississippi in 1976. Her convictions resulted from her involvement in the importation of 40,000 pounds of marijuana in 1975.
In 1978, Amend hired Rocky Bradford to captain the "Venganza" in a venture to smuggle 7,500 pounds of marijuana into Barnegat Bay, New Jersey. Bradford flew to St. Martin to meet with Amend and Jerry Kilpatrick, one of Amend's associates, to finalize arrangements for the venture. At this meeting, Amend told Bradford that Gustavus Diaz would be the source of the marijuana in South America. Bradford also testified that Amend had indicated very clearly that Kilpatrick worked for her. Two days before the boat was to leave for South America, Bradford and his two crew members met with Amend and Kilpatrick in St. Thomas, where the group discussed the pick-up and unloading sites. Bradford sailed to South America, where he met Kilpatrick and loaded approximately 7,500 pounds of marijuana onto the "Venganza." Bradford then returned on the "Venganza" to St. Martin, where he met with Amend and Kilpatrick. Amend and the others removed a bale of the marijuana from the ship to test its quality. They also discussed the plan to transport the marijuana to Barneget Bay, New Jersey where, as Amend informed Bradford, Fred Fillingham, a close associate of Amend, was to be the contact.
Bradford sailed the "Venganza" to Barneget Bay where he met Fillingham and transferred the marijuana to the "Adrienne," a vessel which Fillingham had provided for transport to shore. The smugglers then trucked the marijuana to a house which Fillingham had rented. The marijuana was later moved to a house which Amend and Kilpatrick had leased. Bradford and a crew member testified that they saw Amend on Fillingham's boat, although another crew member testified that he had not seen her. Several witnesses testified about the period in which the marijuana was kept in the second "stash" house. Amend was present at various times, and Patrice Bradford testified that Amend "acted as if [the marijuana] was hers." John Black testified that Amend told him she owned the "Venganza." He also testified that after the successful completion of the New Jersey venture, she told him that she would give the offloaders a $3,000 bonus for staying for a longer period than they had originally planned. Other witnesses' testimony concerned large amounts of money which traded hands and was counted and stored at the house. Bradford testified that he counted $2 million being kept in Amend's bedroom during this period.
In May 1979, Amend was looking for offloading sites near Charleston, South Carolina. By this time, Bradford had formed his own independent "offload business." Amend hired him to provide his services for a single 25,000 pound shipment into South Carolina to occur in June. Enno Brouwer testified that Amend had instructed him to go to Dominica to await instructions. In Dominica, she directed him to meet the mother ship, "The Golden Promise," which Fillingham owned. Amend paid Fillingham $140,000 for the use of the vessel. Fillingham testified that he picked up the marijuana in Columbia and took it to Dominica, where he met Amend and Kilpatrick. The marijuana was then distributed among four sailboats. Amend hired two crew members for one of the vessels and with Kilpatrick obtained Dennis Drum's services to take the "Venganza" to Tortola. Kilpatrick subsequently directed Drum to move the boat to Dominica. Fillingham testified that he and Amend owned two of the boats, the "Venganza" and the "Scandal."
Kilpatrick informed Bradford that the marijuana would arrive at Port Royal Sound, South Carolina on three boats instead of on one as originally planned. 2 Bradford told Kilpatrick that his fee would be $1 million for this riskier plan. Kilpatrick replied that he would have to check with Amend. Kilpatrick later agreed to the new terms.
The "Scandal," carrying 7,000 pounds of marijuana, arrived on June 3, 1979. The second, the "Serena," carrying 7,500 pounds, arrived on June 12, 1979. Amend, however, was not present at Port Royal Sound for the arrival or unloading of either boat. The third sailboat, the "Venganza," sank off the Georgia coast. Immediately after the sinking, Kilpatrick, Bradford and another man went to Georgia to find out what had happened. One of the crewmen of the "Venganza" testified that he was hired by and received instructions from Amend and Kilpatrick. An attorney, Mark Singer, testified that Kilpatrick contacted him to represent the crew arrested from the "Venganza."
Bradford was again hired as a contract offloader for a shipment of approximately 20,000 to 22,000 pounds of marijuana due to come into South Carolina on Sunday, January 20, 1980. 3 Bradford sent his wife, Patrice, to St. Barts, where she met Amend and Fillingham. Patrice and Amend then went to Aruba, where Patrice acted as an interpreter between Amend and Gustavos Diaz. Bradford later sent John Black to Guadeloupe, where Amend instructed him to deliver the coordinates of the offload site to the captain of the "Dutch Treat," which would carry the shipment to South Carolina.
Prior to the shipment, Bradford arranged accommodations for Amend and Tony Locke on Seabrook Island. Allen Patterson, a contract "offloader," testified that Locke acted "in the same capacity that Jerry Kilpatrick had, he was going to be there at the unload and help and supervise and generally make sure we didn't steal any of the marijuana." He also testified that when a Coast Guard ship almost discovered the "Dutch Treat," Amend excitedly remarked, " 'You got to do something, that's my boat and my crew and my load, what are you going to do?' " Another participant testified that Amend owned the marijuana and directed activities in general. The "Dutch Treat" safely unloaded approximately 22,000 pounds of marijuana on January 20, 1980.
In a multi-pronged attack on her conviction, Amend assigns as error the sufficiency and constitutionality of the continuing criminal enterprise count of the indictment, the denial of a bill of particulars, a motion to exclude evidence of the Mississippi conviction and a motion for acquittal, and the charge to the jury. She attacks the indictment as insufficient to allow forfeiture, the evidence as insufficient to establish the government's right to forfeiture, and the court's instructions and jury form on forfeiture as reversible error. She contends that the forfeiture order and post-judgment procedures violated her due process rights, and that she was denied a fair trial as a result of judicial bias and improper evidentiary rulings.
Some of Amend's contentions concerning the forfeiture proceedings are meritorious, and we shall consider them, infra, in greater detail. Most of her "shotgun" approach on appeal, however, is without substantial merit. First, she contends that the indictment was insufficient to charge her with a continuing criminal enterprise violation because it does not allege the elements of the crime, principally the names of the five individuals with whom she acted in concert. Alternatively, she asserts that the district court should have granted a bill of particulars setting forth this information. It has been consistently held that it is sufficient in a continuing criminal enterprise charge if the indictment tracks the statute. United States v. Lurz, 666 F.2d 69, 78 (4th Cir.1981), cert. denied, 455 U.S. 1005, 102 S.Ct. 1642, 71 L.Ed.2d 874 (1982); United States v. Sperling, 506 F.2d 1323, 1344 (2d Cir.1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 439 (1975). Count Nine of Amend's indictment in this case charged that Amend:
did engage in a Continuing Criminal Enterprise in that she did violate Title 21, United States Code, Sections 841(a)(1), 846, 952, 960, and 963, which violations were part of a continuing series of violations of said statutes undertaken by said defendant in connection with at least five other persons, with respect to whom the defendant occupied a position of organizer, supervisor, or manager, and from which continuing series of violations the defendant obtained substantial income and resources....
This count clearly tracks the...
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