U.S. v. Bissell
| Decision Date | 02 March 1989 |
| Docket Number | CARABALLO-LUJA,87-8311,CARABALLO-SANDOVAL and H,D,87-8395 and 87-8504,Nos. 87-8246,s. 87-8246 |
| Citation | 866 F.2d 1343 |
| Parties | , 57 USLW 2550 UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Michelotti BISSELL and Theophilos E.M. Nicholis, Defendants- Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Carlosenry Caraballo-Sandoval, Defendants- Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Rolando ZALDIVAR, Sr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Carlosefendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Douglas N. Peters, Decatur, Ga. (court-appointed), for Nicholis.
Donald I. Bierman, Pamela I. Perry, South Miami, Fla., for Bissell.
Wilmer Parker, III, Asst. U.S. Atty., Atlanta, Ga., for U.S. in Nos. 87-8246, 87-8395, 87-8504.
Bruce S. Harvey, Atlanta, Ga., for defendants-appellants in No. 87-8311.
James Ponsoldt, Athens, Ga., (court-appointed), for Henry Caraballo.
Robert L. Barr, Jr., U.S. Atty., Wilmer Parker, III, Asst. U.S. Atty., Atlanta, Ga., for U.S. in No. 87-8311.
Donald I. Bierman, Bierman, Shohat & Loewy, Miami, Fla., Benton L. Becker, Law Office of Benton L. Becker, Coral Gables, Fla., Arthur Joel Berger, Miami, Fla., for Zaldivar.
Robert Altman, Atlanta, Ga., (court-appointed), for Caraballo-Lujan.
Appeals from the United States District Court for the Northern District of Georgia.
Before HILL and FAY, Circuit Judges, and DUBINA *, District Judge.
A jury convicted Carlos Caraballo-Lujan, Carlos Caraballo-Sandoval, Henry Caraballo-Sandoval, Rolando Zaldivar, Jeffrey Bissell and Theophilis Nicholis for their participation in a conspiracy to import cocaine into the United States from Colombia, South America. The conspiracy committed several acts of cocaine importation between 1983 and 1986, involving numerous other co-conspirators. In this appeal, we consider thirteen issues, and, for the reasons stated below, we hold that no reversible errors occurred in the trial of this case.
On or about June/July 1983, Carlos Caraballo-Lujan (Carlos Caraballo, Sr.), and his son, Carlos Caraballo-Sandoval (Carlos Caraballo, Jr.), arranged to smuggle approximately 300 kilograms of cocaine from Colombia into the United States. They met with co-conspirator Marty Daniel, who testified for the government at trial, and asked him to find a pilot, an airplane and a landing strip. Accordingly, Daniel introduced the Caraballos to appellant Theophilos Nicholis, an experienced pilot who had previously been involved in smuggling marijuana from Jamaica into the United States. 1 Nicholis agreed to smuggle the drugs, and Carlos Caraballo, Sr. paid the pilot $25,000 to prepare an airplane for the trip. The preparations, however, did not go smoothly. Nicholis encountered difficulties in locating a clandestine landing strip and in solving his airplane's fuel consumption problems. As a result, Nicholis stalled, and Carlos Caraballo, Sr. grew impatient. Carlos, Sr. ordered Marty Daniel to retrieve the $25,000 from Nicholis. Daniel did so, and Carlos Caraballo, Sr. found another pilot who successfully smuggled the cocaine.
A second importation of 300 kilograms of cocaine occurred in May/June 1984. Appellant Carlos Caraballo, Jr. requested the help of Marty Daniel in locating another pilot. That pilot was David Burt, who also testified for the government at trial. Burt met with Carlos, Sr., Carlos, Jr., appellant Henry Caraballo-Sandoval--also a son of Carlos, Sr.--and other co-conspirators to plan the trip. Burt proposed to fly an airplane laden with cocaine from Colombia over the Yucatan Peninsula into an area full of oil derricks in the Gulf of Mexico. At that point, he would fly his airplane at a slow speed and at a low altitude, as would an oil supply helicopter, in order to avoid radar detection by law enforcement authorities. Further, he proposed to land the airplane at a clandestine landing strip in Pike County, Georgia, which lies in the Northern District of Georgia. The conspirators agreed with the plan, and, subsequently, Carlos, Sr. offered Burt over $200,000 to make the trip. While not agreeing on a price, Burt nonetheless agreed to fly for the Caraballos. Preparations then ensued, which included the installation of an extra fuel tank in the airplane and frequent trips by the conspirators to Atlanta and Pike County in order to survey the landing strip.
Burt completed a successful flight to Colombia and back to Georgia, bringing with him 300 kilograms of cocaine. Carlos, Sr. and other co-conspirators met Burt at the Pike County landing strip. They unloaded the cocaine and stored it at a farm near Cordelle, Georgia where Carlos Caraballo, Jr. awaited. The Caraballos then arranged for a drug courier to transport the cocaine to Miami. Carlos, Jr. paid Burt only $100,000 for his services, while Henry Caraballo paid Marty Daniel for his efforts by delivering to him four kilograms of cocaine. Daniel and Burt were upset with the payments since they fell far short of their expectations. However, after the conspirators threatened to kill Daniel upon further complaints, Daniel and Burt protested no further.
In March, 1985, the conspirators again attempted to smuggle cocaine into the United States. The Caraballos employed a new pilot, appellant Jeffrey Bissell. Bissell, together with co-conspirator Cappy Verplank, planned to fly an airplane to Colombia, fill it with cocaine, and then fly it to Long Island in the Bahamas. The cocaine would be smuggled subsequently into the United States. The plan failed, however, because low fuel and bad weather forced Bissell to land on Lee Stocking Island, a private island in the Exuma chain of the Bahamas. Upon landing, the island's security guard, Robert Wicklund, apprehended Bissell and Verplank, accusing them of being drug smugglers. Bissell responded, "I guess you figured that out." Later, Bahamian authorities arrested Bissell and Verplank, and a search of the landing strip revealed eighteen duffel bags containing approximately 691 kilograms of cocaine and a maroon bag. Bissell confessed to Bahamian authorities that the maroon bag belonged to him. The capture of the pilots and cocaine ended the smuggling operation.
Not to be deterred, the Caraballos sought to import another cargo of 600 kilograms of cocaine in October, 1985. To accomplish the venture, the Caraballos expanded their operation into a 50/50 partnership with appellant Rolando Zaldivar and his organization. Also, the conspirators employed yet another new pilot, Steve Smith, who, like co-conspirators Marty Daniel and David Burt, cooperated with the government in this case. Smith would fly a Mitsubishi MU 2 aircraft purchased by Zaldivar between Colombia and a clandestine airstrip in Georgia. Initially, the conspirators considered using the Pike County, Georgia airstrip, and they traveled to the Northern District of Georgia to survey the facility. But, in the end, the conspirators chose a landing strip in Cuthbert, Georgia provided by two undercover agents of the Drug Enforcement Administration (DEA).
Numerous planning sessions occurred at the home of appellant Zaldivar in anticipation of smuggling 600 kilograms of cocaine in October, 1985. At one session, attended by Rolando Zaldivar, Carlos, Sr., Carlos, Jr., Henry Caraballo, Rolando Zaldivar's three sons, co-conspirator Carlos Vasquez (a/k/a "Fat Carlos"), Marty Daniel and pilot Steve Smith, the conspirators vigorously debated how much cocaine could be transported in the MU 2 aircraft. For example, Zaldivar's son, Miguel Zaldivar, told his father that the airplane would be dangerously overweight, necessitating a reduction in the amount of cocaine. However, Zaldivar ordered his son and the other conspirators to recompute figures relating to the airplane's fuel capacity and range. Similarly, when pilot Smith suggested a reduction in the amount of cocaine to Carlos, Sr., Carlos, Sr. refused to consider the idea, stating that he was committed to smuggling 600 kilograms. In the end, the fathers had their way, and the conspirators settled on a plan in which the airplane would carry 600 kilograms of cocaine between Colombia and Cuthbert, Georgia.
This plan failed also, however. The MU 2 ran out of fuel, and pilot Smith landed the airplane at Bay Minnette, Alabama. Smith abandoned the airplane and the cocaine on board. While Smith was aborting the trip, the conspirators, including the three Caraballos and undercover DEA agents, waited at the landing strip. At 3:30 a.m., the conspirators received news of Smith's landing at Bay Minnette. They attempted to salvage the cocaine, but law enforcement authorities seized the MU 2 and approximately 566 kilograms of cocaine. Thereafter, the conspirators blamed Steve Smith and Marty Daniel for the failure at Bay Minnette. Rolando Zaldivar was particularly enraged at losing the cocaine. Zaldivar's son, Miguel, informed Smith and Daniel that their lives were in peril. However, at a meeting attended by the Caraballos and Rolando Zaldivar, the conspirators decided that no one would be killed.
Subsequently, DEA undercover agents maintained their relationship with the Caraballos. In January, 1986, for instance, Carlos, Jr. and Henry Caraballo proposed another smuggling venture to the agents. That venture never matured. Nevertheless, during this period, Carlos, Jr. managed to import successfully 100 kilograms of cocaine into Washington, D.C. The DEA finally arrested the Caraballos on May 29, 1986. A search of the Caraballo home pursuant to a warrant revealed 17 kilograms of cocaine, nine weapons, including an illegal machine gun, and $120,000 in U.S. currency. Also, on June 2, 1986, pursuant to a search warrant, the government found 45 kilograms of cocaine in a warehouse...
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