U.S. v. Canino

• Decision Date: 14 January 1992
• Docket Number: 89-1740 and 89-1746,89-1721,Nos. 89-1719,s. 89-1719
• Citation: 949 F.2d 928
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael John CANINO, James Gilbert Marcum, John G. Flynn, and David Leonard Malkin, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 928

949 F.2d 928

60 USLW 2392

UNITED STATES of America, Plaintiff-Appellee, v. Michael John CANINO, James Gilbert Marcum, John G. Flynn and David Leonard Malkin, Defendants-Appellants.

Nos. 89-1719, 89-1721, 89-1740 and 89-1746.

United States Court of Appeals Seventh Circuit.

Argued April 4, 1991.

Decided Nov. 27, 1991.

As Corrected Dec. 9, 1991.

Rehearing and Rehearing En Banc

Denied Jan. 14, 1992.

Michael C. Carr, Asst. U.S. Atty., Benton, Ill., argued, for plaintiff-appellee U.S.

Thomas M. Dawson, Leavenworth, Kan., Andrew Cotzin, Broad & Cassel, Joel Hirschhorn, argued, Miami, Fla., for defendant-appellant Michael J. Canino.

William J. Sheppard, Sheppard & White, Jacksonville, Fla., argued, for defendant-appellant James G. Marcum.

Kenneth N. Flaxmann, Chicago, Ill., for defendant-appellant John G. Flynn.

William H. Thomas, Miami, Fla., Lawrence Elliott Hirsch, Philadelphia, Pa., William J. Sheppard, argued, Sheppard & White, Jacksonville, Fla., Joel Hirschhorn, Miami, Fla., for defendant-appellant David Leonard Malkin.

Before EASTERBROOK and MANION, Circuit Judges, and ESCHBACH, Senior Circuit Judge. ^*

MANION, Circuit Judge.

On September 29, 1987, a federal grand jury handed down a two-count indictment filed in the Southern District of Illinois. Count 1 charged Michael John Canino with having knowingly and willingly engaged in a continuing criminal conspiracy to distribute and sell marijuana in violation of 21 U.S.C. § 848. To substantiate the "continuousness" of the criminal enterprise, the indictment listed five (5) specific occasions in which Canino spearheaded a group of people to possess and distribute marijuana. Count 2 of the indictment charged Canino, along with James G. Marcum, John G. Flynn, and David L. Malkin, with conspiracy to distribute over 1,000 pounds of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846.

Following a jury trial in which the defendants were tried together, defendant Michael Canino was found guilty of violating the Continuing Criminal Enterprise statute (CCE), 21 U.S.C. § 848. ¹ Canino, along with defendants James G. Marcum, John G. Flynn, and David Malkin, were each convicted for their part in a conspiracy to distribute more than 1,000 pounds of marijuana. The defendants appeal from the verdict collectively on some issues and individually on others. After reviewing the record, the briefs and the law controlling this case, we affirm the jury verdict in all respects.

I. Background

This case comes to us as one of a series of prosecutions in the Southern District of Illinois involving a nationwide marijuana importation/distribution network. The criminal defendants in this case are accused for their part in the notorious "Randy Lanier--Benjamin Kramer" drug ring that was responsible for importing over 600,000 pounds of marijuana into the United States over a ten-year period. The defendants Canino and Malkin were associated with what was called the "Pennsylvania Set-up." In very broad terms, Canino and Malkin had a system of procuring marijuana directly from Lanier and his importing operation and storing it in a "stash house" outside of Allentown, Pennsylvania, for ultimate distribution around the United States. Some of this marijuana was purchased by Canino to supply his drug-selling enterprise, and some was simply stored for Lanier's customers until they picked it up. Canino earned valuable commissions per pound on marijuana stored in his stash house.

The government produced evidence demonstrating that defendant Marcum was a substantial customer of illegal Lanier imports. Evidence at trial showed that Marcum purchased millions of dollars worth of marijuana from each shipment listed in the indictment for later sale and distribution. Marcum would regularly accept and transport his marijuana around the United States in tractor-trailers in order to supply his purchasers who themselves were large-scale pushers.

Defendant Flynn was an offloader for Lanier's group. Flynn was involved in each of the five specified acts listed in the indictment, helping get marijuana off the ships and loading it into the vans and tractor-trailers which were used in transporting the marijuana to its ultimate destination. At Lanier's behest, Flynn also went to Colombia, South America, to help arrange the purchasing, packing, and exporting of marijuana for three of the five Lanier-organized shipments which Canino is accused of having helped distribute.

As noted earlier, the indictment handed down by the grand jury listed five specific occasions on which an organization headed by Canino accepted drug shipments from Lanier-organized imports for distribution, sale and storage. Each itemized occasion in the indictment represented a partial distribution of an enormous shipment of marijuana from Randy Lanier to the group of distributors spearheaded by Canino. The first offense listed in the indictment involved Canino's involvement in the importation of a 36,000-pound shipment of marijuana in November or December 1982. By late 1982, Randy Lanier and Benjamin Kramer, who had been running a successful marijuana importing business since the late 1970's discovered that their imports had overgrown the storage capacity of their "stash house" in southern Florida. At that time they were expecting the arrival of their largest single shipment yet, a tugboat carrying 36,000 pounds of marijuana, and needed a place to store the shipment. Canino, until that time, had been a mere purchaser from the Lanier importing group. However, on this occasion Canino volunteered to make his stash house available for the marijuana's storage, and also volunteered to send workers and trucks to help unload the marijuana from the tugboat once it reached its port-of-call, Bridgeport, Connecticut, and safely transport the drugs to Allentown, Pennsylvania. In addition to his warehousing functions, Canino continued to be a significant customer of the Lanier group.

Ultimately, the marijuana was trucked throughout the United States from Canino's stash house for distribution and sale. A portion of this 1982 load (as well as future loads warehoused by Canino) was sold to Jerry Juenger of Millstadt, Illinois. This connection is important because it is the conspiracy's connection with Millstadt, Illinois, which is the basis of the jurisdiction and venue of the United States District Court for the Southern District of Illinois. Juenger, who was questioned by and cooperated with authorities investigating the drug ring with which he was connected, provided helpful evidence for this case and in a number of other successful prosecutions pursued in the Southern District of Illinois.

The second drug transaction chronicled in the indictment involved a 1983 importation of 126,000 pounds of marijuana transported to New York City. The marijuana was stored in hollowed-out compartments in the sides of a specially designed barge. Thirty-six thousand pounds of this load went to Canino for storage and distribution. Much of this share was sold to defendant Malkin for further sale and distribution across the country.

In 1984 Canino was again involved in the distribution of another import of marijuana. This time the Lanier group successfully imported 150,000 pounds of marijuana in their special barge to San Francisco, California. Canino was contacted by the Lanier group and asked to send a tractor-trailer truck to accept his share of the contraband. Canino sent his brother John Canino with a truck to San Francisco to pick up roughly 27,000 pounds of marijuana. Half of the 27,000 pounds was sold to Malkin for distribution and sale to his particular customers.

Canino was getting tired of the relative infrequency of drug shipments organized by the Lanier group, which averaged out to once a year. Although not listed in the indictment of the present case, the government produced evidence at trial that Canino organized his own independent shipment in 1984 of 20,000 pounds of marijuana from Jamaica. This shipment, known at trial as the "Jamaica Load," was interdicted by law enforcement officials. Canino was indicted and ultimately convicted in 1986 for his efforts to import and distribute this shipment of marijuana. After Canino went to jail for this offense, defendant Malkin became the front man for Canino's organization, maintaining contact with representatives of the Lanier group on Canino's behalf in order to continue purchasing marijuana for Canino's drug enterprise and to make sure Canino could still continue receiving commissions for storing Lanier's marijuana.

While awaiting trial for the Jamaica Load offense, the indictment states that in 1985 Canino arranged to receive a portion of yet another bargeload of marijuana imported by Lanier and his group. This time, the barge was expected to arrive in New Orleans, Louisiana. Of the 165,000 pounds of the entire New Orleans shipment, Canino's group picked up 18,000 pounds. Canino had his cohort Malkin travel to Kansas City, Missouri, where most of the New Orleans shipment was being stored, to arrange having the 18,000 pounds brought back to the Allentown, Pennsylvania stash house by tractor-trailer truck.

The last shipment constituting the final itemized predicate act in the indictment involves a 1986 bargeload of marijuana once again shipped to San Francisco. As usual, regular Lanier customers were summoned to send representatives with tractor-trailers to San Francisco to receive their split from the imported shipment. The shipment which Malkin obtained on behalf of Canino's group was interdicted by the Federal Bureau of Investigation en route to Pennsylvania.

Confiscated record books and confessions acquired by investigating officials introduced at trial, as well as witnesses' testimony, revealed that defendant Marcum was a regular and substantial customer from Lanier and made a healthy profit selling his share of the Lanier imports. Flynn was shown at trial to be a steadfast ...