U.S. v. Badolato, 81-7692

• Citation: 701 F.2d 915
• Decision Date: 01 April 1983
• Docket Number: No. 81-7692,81-7692
• Parties: 12 Fed. R. Evid. Serv. 1562 UNITED STATES of America, Plaintiff-Appellee, v. Richard Anthony BADOLATO, Dean Quarnstrom, and Richard Vaughn, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 915

701 F.2d 915

12 Fed. R. Evid. Serv. 1562

UNITED STATES of America, Plaintiff-Appellee, v. Richard Anthony BADOLATO, Dean Quarnstrom, and Richard

Vaughn, Defendants-Appellants.

No. 81-7692.

United States Court of Appeals,

Eleventh Circuit.

April 1, 1983.

Ronald A. Dion, North Miami Beach, Fla., for Badolato & Vaughn.

Jack Friday, Savannah, Ga., for Quarnstrom.

Clyde M. Taylor, Jr., Tallahassee, Fla., for Badolato.

William H. McAbee, II, and Melissa S. Mundell, Asst. U.S. Attys., Savannah, Ga., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Georgia.

Before HILL and ANDERSON, Circuit Judges, and LYNNE ^*, District Judge.

JAMES C. HILL, Circuit Judge:

Appellants Richard Badolato, Richard Vaughn, and Dean Quarnstrom were found guilty of conspiring to import and possess marijuana in violation of 21 U.S.C. Secs. 841(a)(1), 846, 952(a), 963. Vaughn and Quarnstrom also were found guilty of violating 18 U.S.C. Secs. 1952, 2, relating to Interstate Transportation in Aid of Racketeering, and Vaughn was found to have violated 21 U.S.C. Sec. 843(b)'s prohibition against Use of Communication to Facilitate Possession. The three men were tried together in district court, and each has appealed. Upon review, we affirm each conviction.

I.

As part of an ongoing investigation of federal drug law violations, four DEA agents posed as marijuana off-loaders with access to landing and storage facilities. On September 7, 1980, Richard Vaughn contacted one of the agents in Miami, Florida to hire them to off-load a boat containing marijuana and methaqualone tablets. Vaughn had a number of conversations with agents in regard to these arrangements, and on September 9, 1980, he introduced Dean Quarnstrom to the agents as the man who was going to handle the trucks and buyers. At this meeting, Quarnstrom informed the agents that he had a friend with two trucks ready, that he had warehouses set up in Jupiter, Florida and Fort Lauderdale, and that he had buyers who could be available within twenty-four hours.

On October 9, 1980, the DEA agents met with all three appellants in Savannah, Georgia to discuss and view possible off-load and stash sites for an operation in Georgia. After travelling to a number of potential storage sites, they all agreed on a remote stable as an ideal storage area. The group then proceeded to a water bank, which Vaughn approved as a docking site. The discussions between the agents and appellants indicated that Vaughn was specifically interested in the various means of importation, while Badolato and Quarnstrom were more concerned with the logistics of distribution once the marijuana was safely in the country. ¹

After travelling to potential stash sites, the group eventually arrived at a picnic area on Jekyll Island. Here they began to hammer out the details of the operation. They discussed where the agents would meet Vaughn's ship, how the marijuana would be weighed at the stable area, and finally distribution of the contraband. Quarnstrom indicated that he could take 8,000 pounds in one large van to the Atlanta area, and wanted to know the location of all weigh stations between the stable site and Atlanta. Badolato advised that the trucks be kept in Jacksonville area until the time and date of arrival of the vessel was confirmed. This was to avoid arousal of local suspicions. According to the testimony of one agent, most of the details of the plan were solidified at Jekyll Island. Although there was no definite agreement as to price, quantity, or quality of marijuana, it was agreed that the off-loaders would receive $25 per pound for the marijuana they handled. In addition, Vaughn privately indicated to the agents that Badolato and Quarnstrom agreed to pay him $265 per pound.

On February 7, 1980, Vaughn and Badolato again met with the agents in an apartment in Miami to discuss another drug deal whereby Vaughn and Badolato would purchase marijuana from the DEA agents. Vaughn and Badolato evaluated the quality of a sample bale of marijuana and negotiated for a price; however, they made no commitment to purchase it. At this meeting, Vaughn also explained that the October deal never materialized because his organization was having problems with its equipment. This entire meeting was video-taped and subsequently introduced into evidence.

At trial, Badolato's principle argument was that because there was no agreement as to price, quality or quantity, he could not be found guilty of a conspiracy. Vaughn, a treasure salvager, maintained that he was the target of government conspiracy to frame him for interfering in the treasure salvaging rights of a competitor, Bob Abplanalp. Vaughn claimed that Abplanalp, through his friends Richard Nixon and John Mitchell, was using the Justice Department to persecute Vaughn. Finally, Quarnstrom argued that he was doing undercover research for a movie script about large scale drug operations and had no intent to engage in the conspiracy. In furtherance of his defense, Quarnstrom sought to introduce an educational documentary on drug abuse among teenagers which he had produced. The trial court, however, refused to admit the film because of its prejudicial impact on Badolato and Vaughn.

II.

On appeal, appellants first challenge the sufficiency of the evidence supporting their convictions. The applicable standard of review for a sufficiency challenge recently was enunciated in United States v. Bell, 678 F.2d 547 (5th Cir. Unit B) (en banc), cert. granted, --- U.S. ----, 103 S.Ct. 444, 74 L.Ed.2d 600 (1982):

It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt. A jury is free to choose among reasonable constructions of the evidence.

678 F.2d at 549 (footnote omitted). In applying this standard we also are mindful that the evidence and all reasonable inferences are to be viewed in a light most favorable to the Government. Id. see also Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942).

Fortunately, or unfortunately as the case may be, this circuit has had the opportunity to develop a substantial body of case law with respect to the requirements necessary to sustain a conviction for drug conspiracy. The most basic element of such a conspiracy is an agreement between two or more persons to violate federal narcotic laws. United States v. Lee, 694 F.2d 649, 652 (11th Cir.1983), United States v. Tamargo, 672 F.2d 887, 889 (11th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 141, 74 L.Ed.2d 119 (1982). Although in most conspiracy cases the Government also must demonstrate an overt act in furtherance of the conspiracy, no such requirement exists when the charge involves a drug conspiracy in violation of 21 U.S.C. Sec. 846. United States v. Cuni, 689 F.2d 1353, 1356 (11th Cir.1982); United States v. Spradlen, 662 F.2d 724, 727 (11th Cir.1981); United States v. Diaz, 655 F.2d 580, 584 (5th Cir.1981), cert. denied, 455 U.S. 910, 102 S.Ct. 1257, 71 L.Ed.2d 448 (1982). What the Government must demonstrate is that a conspiracy existed, that the defendant had knowledge of it, and that he or she voluntarily became part of it. United States v. Lippner, 676 F.2d 456, 466 (11th Cir.1982); United States v. Malatesta, 590 F.2d 1379, 1381 (5th Cir.) (en banc), cert. denied, 440 U.S. 962, 99 S.Ct. 1508, 59 L.Ed.2d 777 (1979).

It also is clear that the existence of a drug conspiracy may be demonstrated by circumstantial evidence such as inferences from the conduct of the defendant or the circumstances indicating a scheme or plan. Lee, 694 F.2d at 652; Lippner, 676 F.2d at 466; Spradlen, 662 F.2d at 727. Moreover, the requirement of knowledge of the conspiracy agreement refers simply to knowledge of the essential objective of the conspiracy. Tamargo, 672 F.2d at 889; United States v. Alvarez, 625 F.2d 1196, 1198 (5th Cir.1980) (en banc), cert. denied, 451 U.S. 938, 101 S.Ct. 2017, 68 L.Ed.2d 324 (1981). To be found guilty, a defendant need not have knowledge of all the details of the conspiracy, and may play only a minor role in the total operation. Lee, 694 F.2d at 652; United States v. Nickerson, 669 F.2d 1016, 1022 (11th Cir.1982); Alvarez, 625 F.2d at 1198.

A.

Bearing in mind these principles, we turn first to the contention of Badolato and Vaughn that no agreement ever was finalized. In particular, Badolato maintains that he was not involved in the September discussions between the agents and Vaughn and Quarnstrom, and that he did not agree to buy any marijuana until he saw the merchandise. Appellants also maintain that the group never agreed on the quality, quantity, or purchase price of the marijuana to be imported. Notwithstanding these contentions, the record reveals substantial evidence of an agreement. The group agreed on an off-load site, a storage site, and many of the practical details involved in moving the marijuana. Although Badolato's discussions with the agents concerned distribution, while Vaughn was the dominant figure in the importation discussions, knowledge of all the details of the conspiracy is not necessary to sustain a conviction. See, e.g., Lee, supra; United States v. Davis, 679 F.2d 845 (11th Cir.1982). The evidence indicated that Vaughn's role was to handle shipping the marijuana into the country, while Badolato and Quarnstrom were to provide a market for the merchandise.

Although actual price, quantity and quality were not finalized when the group met in Georgia, testimony indicated that such details often are left unresolved. This is because price depends upon quality, which only can be determined at the time of delivery. Inspection, weigh-in, and division of marijuana was to take place at the storage area agreed upon by the group. Tentative plans indicated...