U.S. v. Benz

• Decision Date: 04 September 1984
• Docket Number: No. 83-3168,83-3168
• Citation: 740 F.2d 903
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. August Carl BENZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 903

740 F.2d 903

UNITED STATES of America, Plaintiff-Appellee, v. August Carl BENZ, Defendant-Appellant.

No. 83-3168.

United States Court of Appeals, Eleventh Circuit.

Sept. 4, 1984.

Anthony F. Gonzalez, Samuel R. Mandelbaum, Tampa, Fla., for Benz.

Lee W. Atkinson, Karla R. Spaulding, Asst. U.S. Attys., Tampa, Fla., for U.S.

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

Before GODBOLD, Chief Judge, TJOFLAT and HENDERSON, Circuit Judges.

TJOFLAT, Circuit Judge:

August Carl Benz was convicted in the district court on a two-count indictment of conspiracy to import over 1,000 pounds of marijuana into the United States and to possess that marijuana with intent to distribute (count one) ¹ and of submitting a false statement and document to the U.S. Customs Service in an effort to recover his sailing vessel which Customs had seized after the marijuana had been imported (count two). ² Benz appeals, questioning the sufficiency of the evidence to sustain his convictions and several of the district court's rulings, both before and during his trial. We conclude that the jury had ample evidence to convict Benz on both counts of the indictment and that the district court's challenged rulings were correct. We therefore affirm.

I.

The crimes in this case involved the actions during the summer and fall of 1981 of several people who frequented a St. Petersburg marina. Some transacted business at the marina: appellant Benz chartered boats, among them the Carpe Diem, a forty-eight foot sail boat; Debra Engh was Benz' secretary; John Hunt was a skilled sailor and sailmaker who had made a set of sails for the Carpe Diem; Douglas Lee, Michael Ernst, and Steve Maros, who was Debra Engh's boyfriend, had at some point done some work around the marina; Laurie Miller had lived for a while on a houseboat at the marina, before moving to a house in the area. She was a former employee of the U.S. Customs Service and knew many of the Customs officers stationed in the area. Ed Cowart was her boyfriend.

In September 1981, Cowart and Hunt discussed the possibility of smuggling a load of marijuana into the United States. They broached the idea with Benz, Maros, and Miller, and soon they all agreed on a plan to transport several thousand pounds of marijuana from Aruba, in the Lesser Antilles, to Florida aboard Benz' sailboat, the Carpe Diem. Hunt, as captain, would sail the vessel; Maros and Lee would serve as the crew during portions of the voyage. Miller showed them photographs of several Customs agents she knew whom they might encounter during their trip.

In late September, Hunt and Lee set sail from St. Petersburg, bound for the Cayman Islands. There Hunt placed a telephone call to Cowart for instructions on how to proceed once the Carpe Diem got to Aruba. Hunt was unable to reach Cowart, however, so he called Benz. He asked Benz to have Cowart call him in the Caymans, and Cowart subsequently did so. Thereafter, Hunt, Lee, and Maros, who had joined them, sailed for Aruba. Following Cowart's directions, they met a trawler off the coast of Aruba and took on around 200 forty to fifty pound bales of marijuana. By this time, it was early December 1981. The Carpe Diem then sailed to a point off the Florida coast where they rendezvoused with Cowart and Ernst who were aboard the Suzi Q. The two vessels proceeded to Cedar Key and off-loaded the marijuana there. Hunt and Maros then sailed the Carpe Diem to a point off the west Florida coast, near Hernando Beach, where they left the boat. They then returned to St. Petersburg. Hunt later spoke with Benz and Cowart about when he would be paid for his efforts; he eventually collected over $13,000. ³

On December 17, 1981, Customs officers on routine patrol found the abandoned Carpe Diem. They seized the boat ⁴ and collected marijuana residue from its deck. On December 19, a Coast Guard officer found the Suzi Q anchored elsewhere off the Florida coast. It too was unoccupied and covered with marijuana residue.

Meanwhile, Benz sent Douglas Lee to retrieve the Carpe Diem, but Lee could not find the boat because it had been seized. Customs subsequently sent Benz a notice of seizure; he responded with a Petition for Remission or Mitigation of Forfeiture, prepared by his attorney. Attached to the petition was a charter agreement purporting to show that the Carpe Diem had been chartered by Benz to an Edgar Picado at the time of the seizure. The signature "Edgar Picado" was in Miller's handwriting.

Customs managed to learn of Hunt's involvement in the smuggling incident and persuaded him to testify against the others. On September 16, 1982, Benz, Miller, Cowart, Engh and Maros were indicted. All were charged with conspiracy to import and to possess with intent to distribute marijuana; ⁵ Benz, Miller, and Engh were charged with submitting a false statement and document to Customs in an effort to recover the Carpe Diem. ⁶ Benz and Miller were arrested; the other indictees became fugitives and are still at large.

Prior to trial, Benz moved the court to dismiss the indictment, contending that it had been returned against him in retaliation for his efforts to recover the Carpe Diem. Benz also moved for a severance of parties and of counts. He sought a severance of counts because he wished to testify only to count two of the indictment. The court denied Benz' motions to dismiss and for severance, and the case proceeded to trial.

The trial began with opening statements by counsel both for the government and Benz. The government's statement was straightforward; the government would prove that Benz was one of the principals of the smuggling enterprise and that he submitted a false statement and document to Customs in an effort to set aside the government's forfeiture of the Carpe Diem. Benz' false statement, contained in his affidavit, was that the Carpe Diem was under charter to Edgar Picado during the period of time covered by the conspiracy and that he, Benz, had played no role in the smuggling venture. The false document was a fake agreement purporting to establish that Benz had chartered the Carpe Diem to Picado. Benz' opening statement was somewhat equivocal. He denied outright any involvement in the smuggling venture, but he offered no explanation for the false charter agreement which, the parties stipulated, bore his genuine signature and the name Edgar Picado signed by Laurie Miller.

In its case-in-chief the prosecution established the facts we have related supra, principally through the testimony of Hunt, Douglas Lee, and the Customs officers who seized the Carpe Diem and the Suzi Q. The government also proved that, following Customs seizure of the Carpe Diem, Benz had possession of a piece of letterhead stationery from his boat chartering business, with the name Edgar Picado written on it several times in Laurie Miller's handwriting.

In his defense Benz called three witnesses, Benz' brother and two witnesses who simply attacked Hunt's credibility. Benz' brother testified that Benz had shown him a blank charter agreement in the month preceding the smuggling trip, asking if it accorded him, as a charterer, sufficient protection for a long-term charter he was about to make. In turn, Benz' brother had shown the document to his lawyer, who had approved it. Benz attempted to place into evidence records from his charter business without authenticating them. He was the only person who could authenticate the records, but he would not take the witness stand. The court consequently excluded the evidence, and Benz' defense rested.

Miller then presented her defense and chose to testify. She denied participating in the smuggling scheme. She admitted that she had known the other indictees socially but insisted that that was all. She also admitted that she had signed Edgar Picado to the charter agreement Benz had presented to Customs with his Petition for Remission or Mitigation of Forfeiture. Miller explained that she signed Picado's name at the request of Benz' secretary, Debra Engh, because she thought from something that Cowart had told her that Edgar Picado had in fact chartered the Carpe Diem.

Benz cross-examined Miller. During the course of the examination he sought to have Miller identify copies of an undated handwritten letter and an envelope, apparently composed and mailed in December 1978, ⁷ and to introduce them into evidence. The letter, purportedly from Cowart to a man in South America, described a scheme for smuggling marijuana aboard a boat to be captained by Picado. Both the prosecutor and Miller objected on hearsay grounds to the receipt in evidence of the letter and envelope, and the court sustained their objection.

Miller then announced that she intended to call Benz as a witness. Outside the jury's presence Benz stated that he would invoke his fifth amendment right to remain silent in response to any question Miller asked. He added that he would testify if the court severed the conspiracy count from the case. The court declined to do so, ⁸ and Benz did not testify. Miller's final witness would have been Benz' trial attorney. ⁹ The court, sustaining Benz' objection, refused to allow him to testify, however.

At the close of all the evidence, Miller moved for a mistrial on the ground that the court's ruling concerning the attorney's testimony materially prejudiced her defense. The court granted her motion and severed her from the case. At this point, Benz moved the court to strike Miller's testimony from the record and to instruct the jury to disregard it. His motion was denied.

Benz' closing argument to the jury resembled his opening statement. His attorney reiterated that the government had not shown Benz to have been a member of the smuggling enterprise. He then implied that Benz had thought the false charter agreement to be genuine. Later, he implied that Benz had chartered the boat to Cowart or to Hunt and that Picado may have been...