U.S. v. Burchinal
| Decision Date | 09 September 1981 |
| Docket Number | Nos. 80-2025,80-2026 and 80-2032,s. 80-2025 |
| Parties | 8 Fed. R. Evid. Serv. 1400 UNITED STATES of America, Appellee, v. Isaac N. BURCHINAL, Jr., Appellant. UNITED STATES of America, Appellee, v. Russell Jack KERN, Appellant. UNITED STATES of America, Appellee, v. John GERARD, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Donald L. Wolff, Leonard J. Frankel (argued), Wolff & Frankel, Clayton, Mo., for appellant Kern.
Robert D. Kingsland, U. S. Atty., Kevin F. O'Malley (argued), David M. Rosen, Pamela H. Bucy, Asst. U. S. Attys., E. D. Mo., for appellee United States of America.
Russell Jack Kern, pro se.
John Gerard, pro se.
Allen I. Harris, St. Louis, Mo., for appellant Gerard.
Frederick H. Mayer, Ronald E. Jenkins (argued), St. Louis, Mo., for appellant Burchinal; Armstrong, Teasdale, Kramer & Vaughan, St. Louis, Mo., James P. Finstrom, Dallas, Tex. (rebuttal), of counsel.
Before LAY, Chief Judge, and ROSS and ARNOLD, Circuit Judges.
Isaac Newton Burchinal, Jr., Russell Jack Kern and John Gerard were indicted on August 6, 1980, along with 11 other individuals. Count I of the indictment charged all 14 defendants with conspiring "to distribute, and possess with intent to distribute, marijuana, methaqualone and hashish," in violation of 21 U.S.C. §§ 841(a)(1) and 846. Each of the three appellants also faced charges of interstate travel in furtherance of their unlawful activities in violation of 18 U.S.C. § 1952(a)(3) and (2) of the Travel Act.
Burchinal, Kern and Gerard were tried before a jury in the United States District Court for the Eastern District of Missouri, 1 along with Joseph S. (PaPa Jo) Olivastro. Although Olivastro was acquitted, Burchinal was convicted of conspiracy (the government dismissed Count VI, charging Burchinal with a Travel Act violation) and Kern and Gerard were found guilty of both the conspiracy and Travel Act charges. Burchinal was fined $15,000 and sentenced to five years imprisonment and both Kern and Gerard were fined $25,000 and sentenced to 10 years imprisonment. We affirm the convictions on all counts, but remand to the district court for the purpose of reducing the costs assessed against Kern.
The history of this conspiracy is rather complicated but may be summarized from the evidence at trial as follows: In the fall of 1978, Anthony Clay (T.O.) Olivastro, a St. Louis drug dealer, came in contact with Oscar Ansourian, who was to serve as a new source of drugs. Ansourian was interested in obtaining an airplane to transport marijuana and methaqualone from a landing strip in Colombia, South America, to the United States. Joseph M. (JoJo) Olivastro thereafter contacted a pilot, Robert H. Boumis (the prosecution's chief witness in the trial of the three appellants), who agreed to obtain and fly the aircraft that was needed for the smuggling venture.
In late March of 1979, after alternate plans had failed, JoJo Olivastro directed Boumis to investigate the possibility of buying Burchinal agreed to provide a C54 transport and to modify it to meet Boumis' requirements. In addition, Burchinal agreed to train Boumis to fly the plane under conditions similar to those anticipated at the clandestine landing strip in Colombia, and eventually accepted approximately $167,000, in advance, for his efforts. When Burchinal's progress on the deal proved unsatisfactory, the members of the conspiracy decided to go forward with an offer from appellant John Gerard, whom Boumis had met in the course of his dealings with Burchinal in Eloy. The money "fronted" to Burchinal was ultimately regained by the group, less several thousand dollars for Burchinal's expenses in completing the few improvements which had been made up to that point in time.
a plane from a man who had been recommended by Billy Muniz, a pilot from Arizona. Boumis and JoJo Olivastro then flew to Tucson, and eventually were taken to the municipal airport in Eloy, Arizona. Muniz then introduced Boumis and JoJo Olivastro to Isaac Newton (Junior) Burchinal, Jr.
Immediately after the group terminated its arrangements with Burchinal, several members met with Gerard in a restaurant near Eloy. Gerard repeated the substance of his earlier proposals to Boumis, wherein he had indicated that he knew an individual who would supply a C54 which was in better condition than Burchinal's and for less money, and that an experienced and qualified crew could also be provided. Gerard additionally offered to fly the plane with Boumis in the event that a qualified crew could not be found.
Later that same day, Boumis inspected the plane and was then introduced to appellant Russell Jack Kern. Boumis explained the difficulties that the group had had with Burchinal and said that they were in no position to go through a similar experience with Kern and Gerard. He therefore explained to both of them that he needed the plane to fly to Colombia and bring back a load of marijuana, and that if the plane could not be prepared and if a qualified crew with previous smuggling experience could not be provided, there would be no point in entering into the venture. Kern indicated that he could definitely provide the plane and the crew. Gerard had earlier stated that the plane, with modifications, would cost $145,000.
On the following day, T. O. Olivastro and Boumis met with Gerard and Kern at Kern's place of business at the Tucson International Airport. Olivastro got a commitment from Gerard that the plane would be ready, and an agreement was reached. Boumis later received phone calls from pilots who had been referred to him by Kern, and a crew was assembled. In addition, Kern falsified the plane's registration, along with other FAA documents, and agreed that the plane could be returned to the Tucson International Airport after the trip, for a fee. Kern also indicated that he would explain the plane's absence if anyone should inquire, and told Boumis that if he wanted to bring the plane back after a second smuggling trip, he would have to relinquish all interest in the plane without compensation.
On June 16, 1979, after a few minor setbacks, the crew attempted its flight to Colombia. Shortly after the plane took off one of the engines broke down and the plane made an emergency landing back at the airport in Tucson. Although Kern was disappointed that an emergency had been declared, he told the crew to leave, and he said that he would handle the problems with the authorities.
In the middle of August, a meeting was arranged in Peoria, Illinois. T. O. Olivastro informed Boumis that the meeting was called to discuss the least expensive solution to their problem of finding an aircraft to complete the smuggling venture. Several members of the conspiracy met, including T. O. Olivastro, Boumis, Kern and Gerard. Most of the meeting was devoted to the topic of what Kern intended to do to compensate the rest of the group for the damaged C54. Although Kern felt little responsibility for the plane, an agreement was finally reached whereby the group would Prior to the trial, nine of the defendants entered guilty pleas and only the three appellants and Joseph S. Olivastro went to trial. One defendant, Oscar Ansourian, was not in custody at the time of the trial.
receive the title to an airplane which Kern and Gerard had flown to Peoria. The group took possession of the plane in October of 1979.
ISAAC NEWTON BURCHINAL, JR.
On appeal, Burchinal raises several issues for our consideration: (1) whether the evidence was sufficient to support his conviction for conspiracy; (2) whether the trial court erred in admitting evidence of a prior bad act; (3) whether the trial court erred in limiting the scope of cross-examination of Boumis; (4) whether the evidence established the existence of multiple conspiracies rather than the single one charged in the indictment; (5) whether the trial court erred in denying Burchinal's motion for severance; and (6) whether the trial court erred in denying the appellant's access to alleged Brady material.
(1) The Sufficiency of the Evidence
Burchinal first argues that the evidence was insufficient to support his conviction, as a matter of law, because the government merely established that he had agreed to supply a lawful item to the conspiracy which was never actually supplied, and that there therefore was no evidence of "deliberate, knowing and specific intent to join the conspiracy." United States v. Chandler, 586 F.2d 593, 599 (5th Cir. 1978), cert. denied, 440 U.S. 927, 99 S.Ct. 1262, 59 L.Ed.2d 483 (1979). We disagree for two reasons.
First, the law in this Circuit is quite clear that an individual becomes a member of a conspiracy when the person knowingly contributes his or her efforts in furtherance of the objectives of the conspiracy:
(A) coconspirator may even become a member of the conspiracy without being in on it at its inception. One need only knowingly contribute his efforts in furtherance of it. * * * he still would adopt the previous acts and declarations of his fellow conspirators. Phelps v. United States, 8 Cir., 160 F.2d 858; Hernandez v. United States, 9 Cir., 300 F.2d 114, United States v. Dardi, 2 Cir., 330 F.2d 316. We said in Phelps :
" * * * And, of course, a defendant can join a conspiracy at any time and may be found to have done so when, with knowledge of its existence, he has undertaken to further its design." 160 F.2d at 868.
Nassif v. United States, 370 F.2d 147, 152 (8th Cir. 1966) (emphasis supplied). See United States v. Jones, 545 F.2d 1112, 1115 (8th Cir. 1976), cert. denied, 429 U.S. 1075, 97 S.Ct. 814, 50 L.Ed.2d 793 (1977); United States v. Hester, 465 F.2d 1125, 1127 (8th Cir. 1972). And if these elements are established by the evidence, we see little relevance to Burchinal's suggestions that this case must be viewed in a different light because he had agreed...
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