U.S. v. Anderson

• Decision Date: 23 May 1989
• Docket Number: No. 85-5869,85-5869
• Parties: 28 Fed. R. Evid. Serv. 162 UNITED STATES of America, Plaintiff-Appellee, v. Keith ANDERSON, Byron Carlisle, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1508

872 F.2d 1508

28 Fed. R. Evid. Serv. 162

UNITED STATES of America, Plaintiff-Appellee, v. Keith ANDERSON, Byron Carlisle, Defendants-Appellants.

No. 85-5869.

United States Court of Appeals, Eleventh Circuit.

May 23, 1989.

Laurel White Marc-Charles, Miami, Fla. (Court-appointed), for Anderson and Carlisle.

Dexter W. Lehtinen, U.S. Atty., Lawrence H. Sharf, Linda C. Hertz, Lynne Lamprecht, Asst. U.S. Attys., Miami, Fla., for U.S.

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

Before RONEY, Chief Judge, COX, Circuit Judge, and MORGAN, Senior Circuit Judge.

MORGAN, Senior Circuit Judge:

Appellants Keith Anderson and Byron Carlisle were convicted on three separate conspiracies and eight substantive charges arising from an unauthorized removal from Fort Bragg, North Carolina and unlicensed transfer of a variety of military armaments and explosive devices. On appeal, appellants challenge these convictions on numerous grounds. The principal issues raised by appellants concern the exclusion of classified information in their defense that their actions were taken in reasonable good faith reliance on the apparent authority of a purported agent of the Central Intelligence Agency ("CIA"), and the imposition of consecutive sentences upon multiplicitous conspiracy counts. We vacate the sentence imposed and remand for resentencing, and otherwise affirm. We address only those issues that merit discussion.

I. BACKGROUND

In an eleven-count superseding indictment filed in the Southern District of Florida on October 16, 1985, appellants were charged with various federal violations involving firearms and explosives. In summary, appellants were each charged in ten counts as follows: I, II, and III, conspiracies to possess unregistered firearms, to transfer unregistered firearms, and to sell property of the United States, respectively, in violation of 18 U.S.C. Sec. 371; IV and V, possession and transfer, respectively, of firearms on August 24, 1984, and VII and VIII, possession and transfer, respectively, of firearms on October 6, 1984, all in violation of 26 U.S.C. Sec. 5861(d), (e); VI, unauthorized sale of government property on August 24, 1984, and IX, unauthorized sale of unregistered firearms on October 6, 1984, all in violation of 18 U.S.C. Sec. 641; and XI, knowingly engaging in the business of dealing in explosive materials without a license, in violation of 18 U.S.C. Sec. 842(a)(1). Additionally, appellant Anderson was charged in Count X with carrying a concealed unregistered weapon during the commission of a felony on October 6, 1984, in violation of 18 U.S.C. Sec. 924(c)(2).

Appellants filed a pretrial motion to dismiss Counts I, II and III. Each count charged conspiracies concerning the same time frame, alleging the same overt acts in furtherance thereof, but claiming that each had a separate criminal object. This motion was denied.

The government requested by motion that a pretrial conference be set in order to consider matters relating to the possible disclosure of classified information at trial. The government also filed a motion in limine to preclude assertion of an "apparent authority" or "CIA" defense, to which the appellants responded. Appellants filed formal notices of their intention to disclose classified information, pursuant to the Classified Information Procedures Act ("CIPA"), 18 U.S.C.App. Sec. 5(a). The government moved pursuant to Section 6(a) of CIPA for an in camera hearing to consider the use, relevancy and admissibility of classified information. After a two-day hearing, District Judge Norman C. Roettger, Jr. determined that the classified information was irrelevant and could not be disclosed at trial. Motions for continuances on the eve of the CIPA hearing and trial were denied.

On July 22, 1985, a one-week jury trial began before a visiting district judge. ¹ Thereafter, the case was submitted to the jury, and verdicts of guilty to all charges were returned as to each defendant. Appellants were each sentenced to incarceration for 40 years and were each ordered to pay $13,076.13 restitution to the United States Army. ² This appeal followed.

A. Government's Evidence at Trial

The government's case was presented almost entirely through the testimony of Special Agent Fredrick L. Gleffe of the Bureau of Alcohol, Tobacco and Firearms ("ATF"), and the videotapes and audiotapes introduced during that testimony. The government's evidence at trial established that the appellants, Sergeant First Class Keith Anderson and Sergeant First Class Byron Carlisle, both of whom were members of the Special Forces of the United States Army stationed at Fort Bragg, North Carolina, conspired with other unknown military personnel to steal high explosives and other military supplies from Fort Bragg and to sell this material to undercover government agents and an informant posing as narcotics distributors and dealers in stolen property. Pursuant to this conspiracy, the appellants made multiple transfers to the agents of large quantities of items such as Claymore anti-personnel mines, M-67 hand grenades, C-4 plastic explosives, T.N.T., dynamite, 35 mm. practice L.A.W.S. rockets, detonation devices, and tons of ammunition and other military supplies, including large shells such as 106 mm. and 90 mm. canisters. The government also presented evidence that appellants provided and offered to provide assistance to undercover agents in their purported activity as drug distributors.

In November 1982, following an arrest for attempting to sell two silencers to undercover ATF agents, Richard Flaherty agreed to cooperate with the government. Flaherty had once been with the Special Forces and, at the time of his arrest, was a captain in the Army Reserves. Flaherty later told ATF agents that during his last two-week period of active duty in July 1982, he had met appellant Anderson who offered to supply him with munitions from Fort Bragg. In July 1984, Agent Gleffe decided to pursue this lead and instructed Flaherty to reinitiate contact with Anderson. Agent Gleffe adopted the undercover name "Griff," and assumed the role of a narcotics smuggler and distributor of stolen property.

On August 14, 1984, Flaherty introduced "Griff" to Anderson at a motel in Fayetteville, North Carolina. ³ Later the same day, Anderson delivered to them 196 pounds of military high explosives and accessories, together with a written inventory, in return for $3,200 cash. Both then and at subsequent meetings, Anderson described his unnamed "partner," but the agents did not actually meet Byron Carlisle until September 11, 1984.

At the August 14, 1984 meeting, Agent Gleffe expressed a special interest in acquiring Claymore mines and fragmentation grenades. At a later meeting, Anderson agreed to deliver thirty grenades and thirty Claymore mines when he was in Key West, Florida, on military business. On August 24, 1984, Anderson delivered thirty M-67 grenades and six Claymore mines from Fort Bragg to Gleffe in a Key West hotel room in exchange for $27,000 in cash; the other twenty-four Claymore mines were left behind in Fayetteville. The delivery and payment were recorded on videotape.

Following several further recorded telephone conversations, Agent Gleffe and Flaherty again met with Anderson at a Fayetteville motel on September 10, 1984. Anderson had the twenty-four remaining Claymore mines and a case of ammunition in his vehicle, but Gleffe arranged instead for a later delivery in Jacksonville, Florida. Thereafter, Anderson showed the agents the warehouse which he and his partner had rented in the name of their corporation, C-MAC, to store the military supplies.

On September 11, 1984, at the motel in Fayetteville, Anderson for the first time introduced the undercover agents to his partner, appellant Byron Carlisle. The parties planned to make a large exchange in the future of one kilogram of cocaine for $27,000 in military ordnance. The appellants explained, however, that cash also was needed so that necessary payments could be made to other military personnel for their connivance in procuring munitions. Carlisle acknowledged that Anderson had advised him of his previous transactions with the agents. The meeting ended with an agreement to transfer the Claymore mines and ammunition in Jacksonville.

On September 15, 1984, in a Jacksonville motel, Anderson delivered to Agent Gleffe the twenty-four Claymore mines and a case of tracer ammunition in return for $6,000 cash. The transaction was recorded on videotape. At this time, Anderson said that a drug distribution network was almost in place at Fort Bragg, and plans were made to exchange drugs for munitions in early October.

Agent Gleffe and another agent met with Anderson and Carlisle in Fayetteville on September 26, 1984, to make preparation to trade a large quantity of high explosives and office supplies for one kilogram of cocaine and approximately $27,000 cash. The appellants again explained that cash was needed to pay military personnel to procure additional explosives from Fort Bragg. The agents were taken to the warehouse a second time, which on the previous visit had been almost empty, but now held a large quantity of office supplies, as well as crates of blank ammunition and military goods.

On October 6, 1984, Anderson drove a rented truck to Vero Beach, Florida, carrying over two tons of military ammunition and explosives. Anderson gave Gleffe an accurate written inventory itemizing an approximate value of almost $50,000. ⁴ In exchange, Anderson received one kilogram of fake cocaine and $27,000 cash. After the transaction was completed, Anderson was placed under arrest. A loaded .380 pistol was seized from Anderson's shoulder bag. Carlisle was contemporaneously arrested in Fayetteville, where he had remained.

B. The Appellants' Testimony at Trial

Appellant Keith Anderson testified at trial that, as a member of the Special Forces, he...