U.S. v. Bolinger
| Decision Date | 15 August 1986 |
| Docket Number | CRUZ-BARRIENTO,Nos. 84-3528,84-3751,84-3638,84-3758 and 84-3860,D,s. 84-3528 |
| Citation | 796 F.2d 1394 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Steven Robert BOLINGER, Robert Jerome McTeer, Bruce Hayes Munro, Juan Carlos de la Fuente, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Johnny Dean HALL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Juan Carlos DE LA FUENTE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Oscarefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Juan Carlos DE LA FUENTE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
John C. Wilkins, III, Bartow, Fla., for Bolinger.
Elizabeth L. White, Jacksonville, Fla., for McTeer.
Dan R. Warren, Daytona Beach, Fla., for Munro.
Bruce Hinshelwood, Asst. U.S. Atty., Orlando, Fla. for Appellee.
Bernard Dempsey, Manuel Socias, Orlando, Fla., Mark J. Kadish, Atlanta, Ga., Alan J. Baverman, Kadish & Kadish, P.C., Atlanta, Ga., for de la Fuente.
Marc Lubet, Lubet & Woodard, Orlando, Fla., for Hall.
Linda Carroll, Miami, Fla., for Cruz-Barrientos.
Bruce Hinshelwood, Asst. U.S. Atty., Orlando, Fla., for U.S.
Appeals from the United States District Court for the Middle District of Florida.
Before RONEY and CLARK, Circuit Judges, and FAIRCHILD, * Senior Circuit Judge.
Juan Carlos de la Fuente, Steven Robert Bolinger, Oscar Cruz-Barrientos, Johnnie Dean Hall, Robert McTeer and Bruce Munro appeal from their convictions for engaging in a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848 (de la Fuente), conspiracy to possess cocaine and in excess of 1,000 pounds of marijuana with intent to distribute in violation of 21 U.S.C. Sec. 846 (Bolinger, McTeer, Munro), conspiracy to import cocaine in violation of 21 U.S.C. Sec. 963 (de la Fuente, Cruz-Barrientos), importation of cocaine in violation of 21 U.S.C. Sec. 952 (de la Fuente, Hall), and possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841 (de la Fuente, Bolinger). We affirm.
According to government witnesses, de la Fuente was the head of a scheme to distribute marijuana and to import and distribute cocaine. Charles Burroughs, who testified extensively for the government, described himself as de la Fuente's "bookkeeper, collector, organizer, and whipping boy." Record, Vol. 46 at 229.
Beginning in December, 1980, de la Fuente and Burroughs met to plan the distribution of large quantities of marijuana. The first sales took place in North and South Carolina. As of the summer of 1981, the operation had moved to central Florida. Testimony linked government witness Charles Hitchens and defendants McTeer and Bolinger with the Florida marijuana operations.
Because of collection difficulties and the theft of a large quantity of marijuana, de la Fuente and Burroughs decided to obtain cocaine in Bolivia and bring it to Florida for distribution. Planning began in the fall of 1981. An airplane was purchased and outfitted for the importation. The plan called for Cruz-Barrientos to help fly a plane carrying forty-two kilograms of cocaine from Bolivia to Honduras. There, the cocaine was to be transferred to a seaplane (the "Goose") and flown to Florida by pilot Rick McPherron and Hall, who was to kick the drugs out of the plane at a predetermined spot. On February 16, 1982, according to plan, Burroughs, Hitchens and Karl Koermandy waited for the Goose at a crossroads approximately fifty miles from Gainesville, Florida. As the bundles of cocaine dropped from the side of the plane, Burroughs could see McPherron at the controls.
Customs officers intercepted the seaplane off the west coast of Florida and followed it for about an hour and a half. They lost sight of it for twenty to thirty minutes and re-established contact as the seaplane was landing at the Gainesville airport. They did not see anything unloaded from the plane as they followed it. At the airport, the customs officers watched as McPherron and Hall got off the otherwise empty aircraft.
Burroughs and Hitchens took the cocaine to Hitchens' house in central Florida. The cocaine was processed and sold over the next eight months. Cocaine was delivered to Bolinger and Munro among others. Munro also helped plan an aborted scheme to sell most of the cocaine to someone in California.
Following a lengthy investigation by Drug Enforcement Administration agents, participants in the marijuana and cocaine operations provided information forming the basis of a six-count indictment naming appellants and several others as defendants. 1 Count one charged de la Fuente with engaging in a continuing criminal enterprise ("CCE") in violation of 21 U.S.C. Sec. 848. Count two charged de la Fuente, Bolinger, McTeer, Munro and others with conspiracy to possess cocaine and in excess of 1,000 pounds of marijuana with intent to distribute in violation of 21 U.S.C. Sec. 846. Count three charged de la Fuente and another co-defendant with possession of in excess of 1,000 pounds of marijuana with intent to distribute in violation of 21 U.S.C. Sec. 841. Count four charged de la Fuente, Cruz-Barrientos, Hall and others with conspiracy to import cocaine in violation of 21 U.S.C. Sec. 963. Count five charged de la Fuente, Hall and others with importation of cocaine in violation of 21 U.S.C. Sec. 952. Count six charged de la Fuente, Bolinger and others with possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841. Count one (CCE) identified counts two through six as predicate offenses.
Following a three-week trial, the jury found de la Fuente guilty of counts one, four, five and six and failed to reach a verdict with respect to counts two and three. It found Bolinger guilty of counts two and six. The jury returned a verdict of guilty against McTeer and Munro on count two. It acquitted Hall on count four (conspiracy to import), but failed to reach a verdict as to count five (substantive importation). Finally, the jury failed to reach a unanimous decision with respect to Cruz-Barrientos on count four. On retrial, Hall was found guilty of importation of cocaine and Cruz-Barrientos was found guilty of conspiracy to import cocaine.
After the jury returned its verdicts following the initial trial, de la Fuente moved for a new trial or for acquittal on the ground that a juror, H.L. ("Junior") Hunter, expressed his belief in de la Fuente's guilt during conversations with his neighbor and obtained extrinsic information about de la Fuente's arrest prior to the conclusion of trial. The court permitted de la Fuente's counsel to interview the jurors. On July 18, 1984, the court held an evidentiary hearing at which those jurors subpoenaed by de la Fuente's counsel testified.
As a result of the hearing, the court found that juror Hunter had read enough of a newspaper article to learn that one to two hundred thousand dollars had been seized in a raid on de la Fuente's home or place of business. Although finding that Hunter referred to the article in the presence of several jurors, it found that only juror Hodges overheard the substance of Hunter's comments. Because the evidence of de la Fuente's guilt was "overwhelming," the court concluded that Hunter's misconduct was harmless and denied the motion for new trial.
In September, 1984, de la Fuente again moved for a new trial on the basis of an affidavit sworn by juror Quick. Because Quick was in Europe when the hearing on juror misconduct took place, de la Fuente's counsel had been unable to interview him or call him to testify at the July 18, 1984 hearing. The district court denied the second motion because Quick's affidavit was untimely and insufficient to overcome the evidence in favor of the verdicts against de la Fuente.
On appeal, de la Fuente argues that the finding of juror misconduct should have raised a presumption of prejudice necessitating a new trial. Bolinger and McTeer also argue that they were prejudiced by the juror misconduct and should be granted new trials. De la Fuente further argues that he should be given a new trial on the CCE count on the basis of government witness Burroughs' post-trial "recantation" of his testimony against de la Fuente, that trial of the CCE count should have been severed to permit co-defendants to testify on his behalf, that conspiracy cannot be a predicate offense to a CCE charge and that the jury should have been instructed that "in concert" in the CCE statute requires the government to prove agreement. Cruz-Barrientos contends that the evidence at retrial was insufficient to support his conviction for conspiring to import cocaine. Hall argues that principles of collateral estoppel and double jeopardy should have barred the government from retrying him for substantive importation of cocaine or from introducing on retrial evidence used against him at the first trial once he had been acquitted of the conspiracy to import charge. Hall also appears to argue that the evidence was insufficient to support the second jury's verdict on importation of cocaine. Finally, Munro contends that his trial should have been severed to allow him access to documents that were suppressed on behalf of co-defendant de la Fuente and that prejudicial variance between the conspiracy charged and the evidence produced at trial requires reversal of his conviction on count two. We affirm the conviction of each appellant for the reasons that follow.
The district court found that the evidence against de la Fuente was so overwhelming that juror Hunter's consideration of the extrinsic information he gleaned from the newspaper could not have been prejudicial. De la Fuente argues on appeal that the extrinsic information was so inherently prejudicial that the district court erred in requiring a showing of actual prejudice and should have...
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