U.S. v. Binker
| Decision Date | 05 August 1986 |
| Docket Number | No. 85-3614,85-3614 |
| Citation | 795 F.2d 1218 |
| Parties | 21 Fed. R. Evid. Serv. 602 UNITED STATES of America, Plaintiff-Appellee, v. Manuel BINKER, a/k/a Manolo, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Richard A. Sharpstein, Coconut Grove, Fla., Melvin S. Black, Miami, Fla., for defendant-appellant.
Marilyn Barnes, Asst. U.S. Atty., John Volz, U.S. Atty., Joseph I. Giarrusso, Jr., Asst. U.S. Atty., New Orleans, La., for plaintiff-appellee.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before GARWOOD and HILL, Circuit Judges, and WILL, * District Judge.
Appellant Manuel Binker appeals his conviction of conspiracy to import and to possess with intent to distribute more than one thousand pounds of marihuana. Binker was indicted with five others who pleaded guilty prior to trial. Counts I through IV of the indictment concerned a scheme to import marihuana on the vessel MARENOSTRUM; counts V and VI concerned a scheme to import marihuana aboard the vessel HARRY I. Binker was acquitted on counts I through IV, but was convicted on counts V and VI for the conspiracy involving the HARRY I.
Binker raises three claims of error on appeal. First, he objects to the government's use of the plea agreements of the co-conspirators that testified against him. He also claims that the government unlawfully intimidated one witness to testify against him. Finally, Binker challenges the admission of testimony concerning evidence seized aboard the HARRY I, because this evidence was destroyed prior to trial. Finding Binker's arguments present no reversible error, we affirm his conviction.
On June 23, 1984, a patrolling United States Coast Guard cutter came across the disabled vessel HARRY I, which was anchored on the high seas taking on fuel from a smaller vessel beside it. The HARRY I indicated that its fuel had been contaminated by water. After receiving permission from the master of the HARRY I, the Coast Guard boarded the vessel and obtained documents denoting that mangoes were the ship's only cargo and that the HARRY I had departed from Haiti over a month before. The Coast Guard searched the vessel and discovered 405 bales of marihuana in the cargo hold camouflaged by a load of rotting mangoes. In addition, they initially found thirteen persons aboard, all of South American nationality, and eventually discovered a fourteenth person, an American named Robin Rhodes.
The HARRY I was seized and escorted to Key West, Florida, where the vessel, its contents, and the persons aboard were turned over to the custody of the Drug Enforcement Administration (DEA). The DEA's search of the HARRY I produced 329 bales of marihuana weighing approximately 16,450 pounds (there was no explanation for the discrepancy in the number of bales), some rotting fruit, and straw goods. Ten random samples taken from the marihuana and one large bale were sent to the DEA lab for testing. All of the marihuana seized from the HARRY I, including the lab samples, was destroyed prior to trial. A DEA chemist testified at trial that he examined the bale and the samples and found that they were marihuana.
Rhodes and the thirteen other persons found aboard the HARRY I were arrested upon their arrival in Florida. Rhodes decided to cooperate with the government, and the information he provided eventually led to Binker's indictment. On November 15, 1984, Binker and others were indicted for conspiracy to import in excess of one thousand pounds of marihuana aboard the vessel HARRY I and conspiracy to possess with intent to distribute the marihuana. A final superseding indictment was returned against Binker and five others on April 18, 1985, which charged Binker under counts V and VI with the HARRY I conspiracy and, in counts I through IV, charged him with conspiracy to import and conspiracy to possess with intent to distribute in excess of one thousand pounds of marihuana aboard the vessel MARENOSTRUM, and with the substantive counts of importation of and possession with intent to distribute the marihuana. The other defendants named in this indictment and co-conspirators charged in other districts all pleaded guilty, leaving Binker the only defendant to proceed to trial. Most of the evidence against Binker came from co-conspirators who testified pursuant to plea agreements.
Faiz Sikaffy, Binker's partner in several ostensibly legitimate businesses, was a primary witness for the government. Sikaffy testified that he was a partner with Binker in marihuana smuggling ventures involving the MARENOSTRUM and the HARRY I. 1 Binker and Sikaffy purchased the HARRY I, a refrigerated vessel, initially for the purpose of importing seafood. Sikaffy testified that in March 1984 he and Binker decided to use the vessel to import marihuana. Sikaffy's role was to transport the marihuana, while Binker's was to sell it. Sikaffy hired an airplane pilot, William Earle, to maintain aerial watch over the HARRY I and to communicate with the ship's captain. Miguel Canahuati's role was to perform various odd jobs concerning the importation, including a trip to Colombia to check on the crop. Rhodes was the ship engineer of the HARRY I, and also bought smaller boats to carry the marihuana from the HARRY I to the United States. Sikaffy testified that Binker furnished some of the money used to purchase the small boats, through a courier named Miguel Suriano.
Sikaffy further testified that in May 1984 the HARRY I was anchored in Haiti prepared to set sail and to receive the load of marihuana from a Colombian ship at sea. At that time, Binker, Sikaffy, Earle, and Suriano traveled to Haiti to prepare for the departure of the HARRY I. In Haiti, Binker and Suriano bought mangoes and straw products to hide the marihuana load. After the HARRY I left Haiti, it met with the Colombian ship and received the marihuana.
Sikaffy then joined other co-conspirators in Louisiana because, under the original plan, the HARRY I was to be off-loaded about two hundred miles from the coast of Louisiana. Binker apparently returned to Florida. Because Sikaffy and others began to suspect that one of the participants was an informant, they changed their plans and decided to meet the HARRY I off the coast of Florida. Sikaffy described ship-to-shore telephone calls from the HARRY I to him and to Binker during this time, which the government corroborated with telephone records and other witnesses. Sikaffy explained that he and Binker were able to arrange for the off-loading of some of the marihuana onto the vessel SEACRUST. This marihuana eventually was sold to Hector Perez. Before they could unload any more of the marihuana, the HARRY I and its crew were seized. Sikaffy stated that he and Binker then obtained an attorney for Robin Rhodes and the crew of the HARRY I. This attorney was paid by Josefina Caporale, Sikaffy's personal secretary, with money that she obtained from Binker.
Sikaffy's description of the HARRY I smuggling scheme was corroborated by other witnesses. Perez testified that in March 1984 he met with Binker in Florida to discuss the importation. Perez explained that he initially went to Louisiana to await the arrival of the marihuana, but after the difficulties arose with off-loading there, he returned to Florida. Perez was subsequently informed that the marihuana had been unloaded and was available. He received approximately 6,800 pounds of marihuana for which he made several cash payments to Binker.
Suriano testified that when Binker and Sikaffy purchased the HARRY I they informed him of their intention to use it for marihuana importation. He also stated that he was in Haiti during the preparations for the voyage of the HARRY I, and that he and Binker bought the mangoes and straw products to conceal the marihuana aboard the HARRY I. He further testified that he received money from Binker, which he delivered to Rhodes for the purchase of the small boats.
Earle testified that he flew to Haiti and gave Binker and Suriano cash for the purchase of the mangoes and straw products. According to Earle, Binker explained to him that the smell of the mangoes would hide the smell of the marihuana, and that the straw products would take up a lot of space without weighing much. Earle also described his aerial observation of the meeting at sea between the SEACRUST and the HARRY I. Earle stated that he was accompanied by an employee of Binker's, and that he heard the employee call Binker to report on the successful rendezvous of the two vessels when the marihuana was off-loaded. Furthermore, Earle was present at meetings between Sikaffy and Binker when they discussed the importation and observed Binker pay Sikaffy several hundred thousand dollars in cash.
Canahuati described his trip to Venezuela and Colombia to inspect the marihuana that was to be imported on the HARRY I. He also recounted his subsequent trip to Florida to report to Sikaffy and Binker about the marihuana.
The testimony of Caporale, Sikaffy's personal secretary, corroborated some of Sikaffy's account of Binker's involvement in the HARRY I importation scheme. She related that she received ten thousand dollars cash from Binker and delivered it to the attorney for the crew of the HARRY I. She also stated that on previous occasions Binker had delivered large sums of cash to Sikaffy.
Each of these witnesses testified pursuant to a plea agreement, which the government introduced into evidence over appellant's objection. The government presented further evidence corroborating Binker's involvement in the HARRY I smuggling venture, including Rhodes' account of meetings with Sikaffy and Binker and of the events that occurred while he, Rhodes, was aboard the HARRY I. Although Rhodes testified pursuant to a plea agreement, the government did not offer his agreement into evidence.
After the close of the government's case, several character...
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