U.S. v. Bennett

• Decision Date: 07 July 1988
• Docket Number: No. 86-5861,86-5861
• Citation: 848 F.2d 1134
• Parties: 26 Fed. R. Evid. Serv. 312 UNITED STATES of America, Plaintiff-Appellee, v. Michael R. BENNETT, William G. Bennett, Anastasio Cervantes, Eydler Castellano, Maximo Hildo Feijo-Garcia, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1134

848 F.2d 1134

26 Fed. R. Evid. Serv. 312

UNITED STATES of America, Plaintiff-Appellee, v. Michael R. BENNETT, William G. Bennett, Anastasio Cervantes Eydler Castellano, Maximo Hildo Feijo-Garcia Defendants-Appellants.

No. 86-5861.

United States Court of Appeals Eleventh Circuit.

July 7, 1988.

J. Brian Brennan, West Palm Beach, Fla., Milton Hirsch, Miami, Fla., for Bennetts.

Donnie Murrell, Adler & Murrell, West Palm Beach, Fla., for Cervantes.

James L. Eisenberg, Green, Eisenberg & Cohen, West Palm Beach, Fla., for Castellano.

Leon B. Kellner, U.S. Atty., Miami, Fla., Robert B. Cornell, Andrea M. Simonton, Linda Collins Hertz, Asst. U.S. Attys., Ft. Lauderdale, Fla., for plaintiff-appellee.

Theodore J. Sakowitz, Federal Public Defender, Miami, Fla., Miguel Caridad, Asst. Federal Public Defender, for Feijo-Garcia.

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

Before FAY and VANCE, Circuit Judges, and HOFFMAN ^*, Senior District Judge.

VANCE, Circuit Judge:

This case arises out of the authorities' seizure of over 750 kilograms of cocaine. Appellants were each convicted of one count of possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1), and one count of conspiracy to commit that offense in violation of 21 U.S.C. Sec. 846. Following their convictions all five appellants brought this appeal raising various points of error. We affirm.

I.

On the morning of October 30, 1985 a most peculiar series of events occurred on the grounds of "Montsorrel," a large oceanfront estate in Palm Beach. Shortly after sunrise Thomas Basile, the estate's caretaker, encountered three men walking on the property. The men were soaking wet and covered with sand. According to Basile the men "looked like they just came out of the ocean." After telling the men to get off the property Basile called the police.

When the police arrived they noticed an unoccupied three-seat ocean racer about fifty yards offshore. On the beach they observed various items, including a life jacket, swim fins, shoes and a locked canvas duffel bag that had been cut open. As one of the officers peered at the unoccupied boat through binoculars, he noticed another boat approaching from the southeast. As the boat drew closer the officers were able to see that it was occupied by two white males, one older than the other. When the boat had moved to within about thirty yards of the unoccupied vessel, the younger of the two men picked up a pair of binoculars and began to stare at the unoccupied vessel. Shortly thereafter the man trained his binoculars on the shoreline where uniformed officers were standing in plain view. Almost immediately the boat turned sharply and headed back toward the southeast at the high rate of speed. The officers on the scene contacted aerial units of the Palm Beach County Sheriff's office which proceeded to track and pursue the fleeing vessel.

At that point officers swam out to the unoccupied vessel and found thirty-two duffel bags containing more than 750 kilograms of cocaine. At about the same time three men fitting the description Basile had given police were being detained a short distance from the estate. The men had been "pretending" to jog down the road when they were stopped by police. ¹ After Basile arrived and positively identified the men, they were arrested and later identified as appellants Eyder Castellano, Anastasio Cervantes and Maximo Feijo-Garcia.

In the meantime the authorities had managed to stop the fleeing boat, which had sped about twenty-five miles at almost fifty miles an hour--its maximum speed. Manning the boat were appellants William and Michael Bennett. Upon being stopped William Bennett exclaimed, "I don't know why they stopped me. We were just going fishing." When authorities searched the boat, however, they found no fishing equipment. Instead they found a loaded handgun, an AR-15 semi-automatic rifle, plastic baggies and $110,790 in cash hidden in a panel in the boat's cabin.

The Bennetts were arrested and placed in a holding cell with other prisoners. Roger Furbee was one of those prisoners. Furbee testified that he and the Bennetts discussed cocaine. When Furbee told the Bennetts that he had been involved in cocaine transactions of four to eight hundred pounds, Michael Bennett stated, "That's not a lot of cocaine." In addition, William Bennett expressed concern over how he was going to explain that he was fishing with over $110,000 in his boat. According to Furbee, William Bennett told his son that the best thing they could say was that they were trying to render assistance to the other boat.

Back in Palm Beach Cervantes, Feijo-Garcia and Castellano were being questioned. Cervantes and Feijo-Garcia steadfastly maintained that they did not know anything about a boat, and that they had simply been "out for a stroll" when detained by police. ² Castellano, however, told a different story. He gave a full confession, describing how he, Cervantes and Feijo-Garcia had picked up the cocaine on an island. Castellano described the island in some detail and told of a mother ship with people working on it. Castellano also led authorities back to the estate and showed them where an additional twenty-nine kilograms of cocaine were hidden.

All five appellants were indicted on one count of possession with intent to distribute cocaine and one count of conspiracy. They were tried jointly, with Castellano's confession being introduced in evidence. Appellants were each convicted on both counts. This appeal followed.

II.

A.

We first address the Bennetts' contentions. The Bennetts argue: (1) that the court erred in admitting evidence of William Bennett's prior drug smuggling activity, and (2) that the evidence was insufficient to support their convictions.

At trial the government introduced in evidence William Bennett's 1986 conviction for conspiracy to import and conspiracy to possess with intent to distribute methaqualone. The government introduced evidence that Bennett's role in the conspiracy had been to find an airstrip and assemble an offload crew. The government also introduced evidence of William Bennett's involvement in a 1980 scheme to import cocaine from the Bahamas. The Bennetts contend that this evidence was inadmissible under Rule 404(b) of the Federal Rules of Evidence and that any probative value it had was outweighed by the danger of unfair prejudice. We disagree.

The standard governing the admissibility of evidence of prior bad acts is well settled:

First, it must be determined that the extrinsic offense evidence is relevant to an issue other than the defendant's character. Second, the evidence must possess probative value that is not substantially outweighed by its undue prejudice....

United States v. Nabors, 707 F.2d 1294, 1300 (11th Cir.1983), cert. denied, 465 U.S. 1021, 104 S.Ct. 1271, 79 L.Ed.2d 677 (1984) (quoting United States v. Beechum, 582 F.2d 898, 911 (5th Cir.1978) (in banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979)); see Fed.R.Evid. 403, 404(b). The determination of whether extrinsic offense evidence meets this two-part test is a matter within the district court's discretion, and the court's decision to admit such evidence will not be upset on appeal absent an abuse of that discretion. United States v. Dothard, 666 F.2d 498, 501 (11th Cir.1982).

At trial the Bennetts' defense was that they had simply taken their boat out to do some fishing and diving in the Bahamas or Florida Keys. They testified that the only reason they pulled up to the drug laden vessel was that they were concerned for the safety of anyone who might have been aboard. Seeing that the boat was unoccupied, they decided to leave.

Given the Bennetts' explanation of their activities, intent became the central issue in the case. The extrinsic offenses admitted in evidence both involved the intent to import and distribute illegal narcotics. The fact that William Bennett had engaged in narcotics smuggling on other occasions certainly makes it less likely that his intentions were innocent in this instance. Beechum, 582 F.2d at 911; see also United States v. Ospina, 823 F.2d 429, 433 (11th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1232, 99 L.Ed.2d 432 (1988); United States v. Dorsey, 819 F.2d 1055, 1060 (11th Cir.1987). Accordingly, the evidence of William Bennett's prior drug-related offenses was relevant to the issue of his intent. Because the evidence was relevant to intent, it was admissible under Rule 404(b).

Even if evidence of prior bad acts is relevant to an issue other than the defendant's character, it cannot be admitted if it is unduly prejudicial. Rule 403 allows a court to exclude otherwise relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice.

In this case the probative value of the extrinsic offense evidence was substantial. As we noted earlier, intent was the central issue in the case against the Bennetts. Because the government did not have overwhelming evidence connecting the Bennetts to the conspiracy, the extrinsic offense evidence was an important aspect of the government's case against William Bennett. The evidence was especially probative in light of the Bennetts' "mere presence" defense. In addition, the two prior offenses were quite similar to the one involved here. In both instances William Bennett had been involved in a scheme to import narcotics into the United States.

Turning to the other side of the Rule 403 balance, we cannot say that the extrinsic offense evidence presented a significant danger of unfair prejudice. The offenses involved were " 'not of a heinous nature, likely to incite the jury to an irrational decision.' " United States v. Tunsil, 672 F.2d 879, 881 (11th Cir.), cert. denied, 459 U.S. 850, 103 S.Ct. 110, 74 L.Ed.2d 98 (1982) (quoting United States v. McMahon, 592 F.2d 871, 876 (5th Cir.), cert. denied,...