U.S. v. Bates

• Decision Date: 08 August 1979
• Docket Number: No. 78-5418,78-5418
• Parties: 4 Fed. R. Evid. Serv. 1282 UNITED STATES of America, Plaintiff-Appellee, v. Bill Craig BATES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 505

600 F.2d 505

4 Fed. R. Evid. Serv. 1282

UNITED STATES of America, Plaintiff-Appellee, v. Bill Craig BATES, Defendant-Appellant.

No. 78-5418.

United States Court of Appeals, Fifth Circuit.

Aug. 8, 1979.

As Modified on Denial of Rehearing Sept. 21, 1979.

Dean Carlton, Dallas, Tex., for defendant-appellant.

LeRoy Morgan Jahn, Archie Carl Pierce, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before WISDOM, CLARK and FAY, Circuit Judges.

CHARLES CLARK, Circuit Judge:

The appellant Bill Craig Bates was indicted for conspiracy to import marijuana into the United States, in violation of 21 U.S.C. § 963. His first trial ended with a hung jury, his second trial with a conviction. On appeal Bates challenges the admission of what he describes as "extraneous offense" evidence, claims error in two aspects of the court's jury charge, complains of the court's refusal to allow his defense attorney to testify in an attempt to impeach a government rebuttal witness, and asserts extravagant charges of prosecutorial misconduct against the Assistant United States Attorney who handled the case. We reject all of the appellant's contentions and affirm his conviction.

I.

Bill Bates owned an island called El Cabo Rojo, or Sun Island, located in the Gulf of Mexico about 40 miles south of Tampico, Mexico. The government's case against Bates was that Bates agreed to join an ongoing conspiracy to import marijuana into the United States by providing his island as a refueling base for aircraft carrying marijuana from Mexico to Texas. The government's proof showed that two men, Benny Garrett and Frank Meece, organized and financed an enterprise for importing marijuana into central Texas. Garrett and Meece, along with a supporting cast of suppliers, pilots, ground crews, and airfield owners, were for several years actively engaged in importing marijuana from Mexico City, Guadalajara, Qaxaco and several other locations in Mexico. On some journeys, particularly those from the Mexican Pacific coast, the conspirators were having difficulty locating acceptable places to refuel their marijuana-laden aircraft, which were primarily single engine Cessnas. One of the pilots in the operation, Gary Dean Lewis, suggested Sun Island to his employers as an ideal refueling spot. It was agreed that Lewis should approach Bates about procuring the use of the island. In late February of 1976, Lewis met Bates in Houston and told him that he represented a group of people who would pay Bates $5,000 each time they used the airstrip on Sun Island to refuel aircraft transporting marijuana from Mexico. On April 10, 1976, Lewis and Garrett flew to Sun Island to explain the details of their proposed use of the island. Lewis would periodically bring fuel to Mexico in a DC-3, which he would divert to the island in the course of legitimate commercial charter flights. The stored fuel would then be used to refuel the single engine planes that would bring marijuana from Mexico. Bates agreed to the proposal. Several days later, Bates called Lewis and asked if he could receive the first $5,000 in advance of the initial flight. After consulting with Garrett, Lewis agreed to the advance, and on April 20, 1976, Garrett and Meece flew to Brownsville, Texas, and gave Bates $5,000. On May 7 or 8, 1976, Lewis flew to Sun Island and dropped off a load of fuel and a barrel pump.

The first actual use of the island was scheduled for later in that month. A load of marijuana was to be brought from the Mexico City area to Texas, with Sun Island as a refueling base. Mexican federal police, however, had begun to close in on the Mexico City airstrip that the conspirators had been using to load marijuana, and it was decided that it would be prudent to use a more remote loading spot on a dirt road near Cocolaco, Mexico. To locate the strip and arrange for the marijuana pickup there, Garrett procured the services of two unidentified fugitives who were fleeing prosecution on drug charges in the United States. The two fugitives, anxious to be taken out of the country, had seen the airstrip before and were to arrange to get the marijuana to the strip on behalf of the Garrett and Meece group. According to Lewis' testimony, Garrett, Lewis, another pilot named Dean Shute, and the two fugitives flew to Brownsville in late May to pick up Bates, and the entire group, including Bates, then flew to Mexico to drop off the fugitives and to view the landing strip. The fugitives had never seen the dirt landing strip from the air, however, and were unable to locate it. After leaving them in Mexico, the other conspirators refueled at Sun Island and eventually returned to Brownsville, empty handed. While clearing customs at Brownsville, Lewis found out that American authorities were investigating him with regard to a 5,000 pound load of marijuana Lewis had delivered to Ft. Stockton, Texas, in his DC-3. That investigation eventually led to charges against Lewis, and as part of the plea bargain agreement on those charges, Lewis divulged the information he had concerning the Garrett-Meece operations, including his involvement with Bill Bates. Sun Island was thus never actually used by the conspirators on a "live" marijuana run from Mexico.

Bates took the stand on his own behalf. He admitted that he had been contacted by Lewis, and that Lewis had used his island as a refueling spot, but he denied that Lewis had ever spoken of the possible use of Sun Island for smuggling marijuana. Bates stated that another person, Jere Cobb, had made such overtures to him but that Bates told him that he absolutely refused to get involved in the marijuana business. Bates admitted that he did receive $5,000 from Garrett on April 20, 1976, in Brownsville, and that the transaction had been arranged by Lewis. Bates claimed, however, that the money was a loan from Garrett set up to help Bates through financial straits he was experiencing in trying to maintain the island. Bates also admitted that he flew with Garrett and Lewis into Mexico, but he denied that the purpose of the trip was to locate a clandestine airstrip. Bates asserted that he took the plane flight in order to have an opportunity to discuss legitimate business with Garrett.

Bates was found guilty by the jury at his second trial and was sentenced to two years' imprisonment, two years' special parole, and a $5,000 fine.

II.

The indictment alleged that the conspiracy began November 1, 1975, and ran through November 14, 1977. The evidence showed that Garrett and Meece orchestrated and financed the ongoing smuggling enterprise, and that subordinate personnel such as pilots, ground crews, and air strip owners joined and left the operation at various times throughout its existence. Bates did not become involved until April of 1976.

Several government witnesses, including Garrett, Lewis and Cobb, testified to events concerning the smuggling operation that took place prior to the time that Bates allegedly joined the conspiracy. Garrett, Lewis and Cobb also made generalized references to their individual backgrounds in the marijuana importation business, references that included events antedating November 1, 1975. On appeal Bates raises four related allegations of error concerning this evidence, claiming that it was inadmissible "extraneous offense" evidence, that as a whole it constituted proof at variance with the offense charged in the indictment, that the court failed to instruct the jury that it must find an overt act in furtherance of the conspiracy After Bates joined it, and that the court erred in not submitting to the jury a charge concerning multiple conspiracies. The appellant's objections misapprehend both the Federal Rules of Evidence and the substantive law of conspiracy.

As the district court recognized, it is a misnomer to characterize the testimony concerning the acts and backgrounds of the co-conspirators as "extraneous offense" evidence. The testimony was not evidence of other crimes committed by Bates himself. See Fed.R.Ev. 404; United States v. Beechum, 582 F.2d 898, 902-903 (5th Cir. 1978) (en banc). Rather, the testimony was fully admissible evidence of the existence of an ongoing conspiracy as charged in the indictment. Nor was there anything improper in the brief references made by witnesses to their criminal behavior prior to joining the conspiracy. "Evidence of behavior antedating the period covered by the indictment is generally admissible as bearing on the existence and purpose of the conspiracy and the significance of later behavior." United States v. Crockett, 514 F.2d 64, 72 (5th Cir. 1975); United States v. Nakaladski, 481 F.2d 289, 296 (5th Cir.), Cert. denied, 414 U.S. 1064, 94 S.Ct. 570, 38 L.Ed.2d 469 (1973).

The appellant's variance argument is premised on the erroneous assumption that Bates' relatively late entry into the Garrett-Meece smuggling operation somehow precludes his conviction as a participant in that conspiracy. The government presented overwhelming proof of a continuing smuggling enterprise utilizing various marijuana supply points in Mexico, several aircraft, numerous landing fields, and a division of labor among different support personnel. A single plan does not become many plans simply because some members were cast in roles more vital than others, or because certain members performed only a single function. United States v. Michel, 588 F.2d 986, 995 (5th Cir. 1979); United States v. Becker, 569 F.2d 951, 961 (5th Cir.), Cert. denied, 439 U.S. 865, 99 S.Ct. 188, 58 L.Ed.2d 174 (1978). Nor does a single conspiracy become several merely because of personnel changes. United States v. Michel, supra, 588 F.2d at 995; United States v. Scott, 555 F.2d 522 (5th Cir.), Cert. denied, 434 U.S. 985, 98 S.Ct. 610, 54 L.Ed.2d 478 (1977). If Bates knowingly joined the ongoing conspiracy, it is immaterial that he may not have...