U.S. v. Cole, No. 82-5455

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBefore KRAVITCH and HATCHETT; HATCHETT
Citation755 F.2d 748
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Wendell COLE, Howard Masters, B.K. Taylor, Larry Masters, Defendants- Appellants.
Decision Date19 March 1985
Docket NumberNo. 82-5455

Page 748

755 F.2d 748
UNITED STATES of America, Plaintiff-Appellee,
v.
Wendell COLE, Howard Masters, B.K. Taylor, Larry Masters,
Defendants- Appellants.
No. 82-5455.
United States Court of Appeals,
Eleventh Circuit.
March 19, 1985.

Page 753

G. Russell Petersen, Vero Beach, Fla., defendant-appellant H. Masters.

Bruce Wilkinson, Stuart, Fla., for defendants-appellants B.K. Taylor and L. Masters.

Robyn J. Hermann, Asst. Federal Public Defender, Miami, Fla., for defendant-appellant W. Cole.

Samuel J. Smargon, Linda C. Hertz, Sonia Escobio O'Donnell, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before KRAVITCH and HATCHETT, Circuit Judges, and HANCOCK *, District Judge.

HATCHETT, Circuit Judge:

In this criminal drug case, we review the district court's order entering judgment against appellants. We affirm.

Facts

Sometime between October, 1977, and July, 1981, Donald Raulerson organized a marijuana smuggling operation. As a result, Raulerson imported more than 500,000 pounds of marijuana and earned over $100 million dollars. Although a large number of co-conspirators are involved in this case, for purposes of this appeal we review the convictions of Wendell Cole, Howard Masters, Larry Masters, and B.K. Taylor.

Early in the enterprise, Raulerson recruited Jose Pena and instructed him to go to Texas and purchase $5,000 worth of marijuana. In accordance with Raulerson's instruction, Pena went to Texas and purchased 30 pounds of marijuana at $150 per pound. Pena kept the remaining $500 as expense money; he delivered the marijuana to Raulerson.

On numerous occasions during the spring and early summer of 1978, Raulerson employed small airplanes to import marijuana from Colombia, South America. On each trip, the airplanes brought more than 1,000 pounds of marijuana into the United States. Raulerson, with the help of appellant, Howard Masters, and James Taylor, made the necessary arrangements for each load. Jose Pena, Guy Brown, Sam Stefanides, Jerry Raulerson, and appellants, Larry Masters and B.K. Taylor offloaded the marijuana from airplanes at various drop off points in south Florida.

Raulerson also used vessels to import marijuana. On several occasions, Raulerson's offloading crew moved more than 6,000 bales of marijuana from vessels located behind appellant, Taylor's, home. Occasionally, Raulerson's crew loaded the marijuana into vans and delivered it to other parties by leaving the vans at prearranged sites.

In October, 1978, Raulerson supplied Pena with $500,000 of front money and instructed Pena to purchase marijuana for Raulerson's smuggling operations. Pena went to Colombia, South America, and met with Enrique Coronado, Raulerson's South American supplier. While in South America, Pena arranged for 100,000 pounds of marijuana to be imported to the United States on a 200-foot freighter; the marijuana was to be offloaded near Marathon, Florida. Pena and a crew of sixteen people returned to the United States aboard this freighter.

Later, on December 28, 1978, the freighter, BP25, came within seventy miles east of Marathon, Florida. Crewmen, on three shrimp boats, met this vessel. The crewmen offloaded the marijuana into the smaller vessels. The marijuana was offloaded, counted, weighed, and distributed at a

Page 754

house leased by Donald Raulerson in the Marathon, Florida, area. Appellant, B.K. Taylor, supervised the offloading crew which was composed of approximately thirty people including Guy Brown, Jorge Pena (Jose Pena's brother), Sam Stefanides, appellant, L. Masters, and appellant, Wendell Cole.

During the offloading process, appellant, L. Masters, assisted Sam Stefanides weigh the marijuana. The offloading process took approximately three days. For this three-day period, Donald Raulerson resided in a nearby motel with appellant, Howard Masters, and Billy Morris. These men examined the marijuana and made arrangements for its delivery and distribution. Appellant, Wendell Cole, along with other offloaders, drove a truck loaded with marijuana from Marathon, Florida, to Naples, Florida.

On March 27, 1979, Jose Pena, Sam Stefanides, and appellant, Taylor, went to Colombia, South America, with $1 million and instructions from Donald Raulerson to arrange another "Marathon marijuana deal." The three men carried the $1 million dollars in three or four suitcases. They arrived in Colombia on a commercial airplane and were met at the airport by Coronado's employees. Appellant, Taylor, helped Stefanides and Pena carry the money while in Colombia.

Pena and Coronado discussed the amount of marijuana to be imported and the price. They concluded that 100,000 pounds of marijuana would be shipped to the United States at $70 a pound. Donald Raulerson, Billy Morris, and Jose Pena owned this load of marijuana. The freighter, BP25, was used to import the marijuana. Upon arrival, this vessel was offloaded onto three large fishing vessels near Biloxi, Mississippi. Two of the three large fishing vessels were seized by local authorities in Biloxi. The third vessel, however, was offloaded on the gulf coast of Florida.

On August 27, 1979, Pena met with Donald Raulerson, Robert Ewan, Jr., Billy Morris, and Enrique Coronado. At this meeting, Pena informed Coronado that the vessel's seizure was not his fault because he had nothing to do with the choice of locations taken by the boats. The working relationship between Pena and Raulerson deteriorated; Pena never worked for Raulerson again. The remaining salient facts are in the discussion below.

Issues

On appeal, we must determine: (1) whether the evidence was sufficient to convict Howard Masters and Larry Masters of conspiracy to import marijuana; (2) whether the evidence was sufficient to convict Larry Masters of attempted importation of marijuana; (3) whether the district court erred in denying appellants' motion to inspect grand jury records; (4) whether the district court erred in denying appellants' motion to dismiss Count II of the indictment; (5) whether the district court erred in denying appellants' request for a bill of particulars; (6) whether the evidence was sufficient to support a jury finding that the substance in question was marijuana; (7) whether the district court properly denied the motions for severance of appellants B.K. Taylor, Larry Masters, and Howard Masters; (8) whether appellant Taylor was deprived of due process of law and his right to a fair trial; (9) whether the district court properly denied appellant, Cole's, request for a judgment of acquittal on the theory of multiple conspiracies; (10) whether the district court abused its discretion in admitting the tape recordings into evidence; (11) whether the opening statement and closing arguments presented by the government were improper; and (12) whether the district court erred in denying appellant, Larry Masters, adopted challenges to the composition of the grand jury. We will consider these issues in turn.

Discussion

I. Sufficiency of the Evidence to Sustain the Convictions of Appellants Howard Masters and Larry Masters.

Howard Masters and Larry Masters contend that the evidence produced against them was legally insufficient to support the jury's verdict, and, therefore, they were entitled to judgments of acquittal. In reviewing

Page 755

this issue, we must determine whether, viewing the evidence in the light most favorable to the government, a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt as to each appellant. United States v. Vera, 701 F.2d 1349, 1357 (11th Cir.1983); see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). All reasonable inferences must be drawn in favor of the jury's verdict. United States v. Ceballos, 706 F.2d 1198, 1202 (11th Cir.1983). Moreover, credibility choices in deciding which version of a story to believe are a matter for the jury. United States v. Branca, 677 F.2d 59, 61 (11th Cir.1982).

This circuit does not require that the evidence preclude every reasonable hypothesis of innocence. Rather, we determine whether a reasonable jury could find that the evidence establishes appellants' guilt beyond a reasonable doubt. United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). The government, however, need not prove that the facts of the case are inconsistent with the defense's theory of the case. The jury is free to choose among alternative reasonable constructions of the evidence. Bell, 678 F.2d at 549.

The jury convicted Larry Masters of conspiracy to import and attempted importation of marijuana. It convicted Howard Masters of conspiracy to import marijuana.

To sustain the convictions on the conspiracy counts, we must be satisfied that the government proved beyond a reasonable doubt that these appellants had "deliberate, knowing, specific intent to join the conspiracy." United States v. DeSimone, 660 F.2d 532, 537 (5th Cir. Unit B 1981), cert. denied, 455 U.S. 1027, 102 S.Ct. 1732, 72 L.Ed.2d 149 (1982) (citing United States v. Morado, 454 F.2d 167, 175 (5th Cir.), cert. denied, 406 U.S. 917, 92 S.Ct. 1767, 32 L.Ed.2d 116 (1972)).

It is well-settled law that participation in a conspiracy need not be proved by direct evidence. United States v. Arredondo-Morales, 624 F.2d 681, 683 (5th Cir.1980). A common purpose and plan may be inferred from the actions of the actors or by circumstantial evidence of a scheme. United States v. Conway, 632 F.2d 641, 643 (11th Cir.1980). To be sure, participation in a criminal conspiracy can be inferred from a "development and collection of circumstances." United States v. Malatesta, 590 F.2d 1379, 1381 (5th Cir.1981), cert. denied, 444 U.S. 846, 100 S.Ct. 91, 62 L.Ed.2d 59 (quoting Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed....

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223 practice notes
  • U.S. v. Khoury, No. 86-5175
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • May 21, 1990
    ...conspiracies, and the court considered the evidence sufficient to support a finding of one conspiracy; in United States v. Cole, Page 957 755 F.2d 748 (11th Cir.1985) there were two common participants and one common supplier of marijuana. Our disposition of the instant case is controlled b......
  • U.S. v. Hernandez, No. 89-3395
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • January 30, 1991
    ...prejudice." See, e.g., United States v. Nixon, 918 F.2d 895, 906 (11th Cir.1990); Russo, 796 F.2d at 1450; United States v. Cole, 755 F.2d 748, 762 (11th Cir.1985). Appellants claim that the jury could not have assessed a two-week trial involving five defendants, nine counts, 57 witnesses, ......
  • United States v. McGarity, No. 09–12070.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • February 6, 2012
    ...in part on other grounds by United States v. Lewis, 492 F.3d 1219 (11th Cir.2007); see also [669 F.3d 1274] United States v. Cole, 755 F.2d 748, 759 (11th Cir.1985) (rejecting challenge to indictment on charge of conspiracy to import marijuana where indictment specified time of conspiracy a......
  • United States v. Chagra, No. SA-82-CR-57(4).
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • February 26, 1986
    ...357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978); Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); United States v. Cole, 755 F.2d 748 (11th Cir.1985); United States v. Chagra, 669 F.2d 241 (5th Cir.), reh'g denied, 673 F.2d 1321, cert. denied, 459 U.S. 846, 103 S.Ct. 102, 74......
  • Request a trial to view additional results
223 cases
  • U.S. v. Khoury, No. 86-5175
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • May 21, 1990
    ...conspiracies, and the court considered the evidence sufficient to support a finding of one conspiracy; in United States v. Cole, Page 957 755 F.2d 748 (11th Cir.1985) there were two common participants and one common supplier of marijuana. Our disposition of the instant case is controlled b......
  • U.S. v. Hernandez, No. 89-3395
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • January 30, 1991
    ...prejudice." See, e.g., United States v. Nixon, 918 F.2d 895, 906 (11th Cir.1990); Russo, 796 F.2d at 1450; United States v. Cole, 755 F.2d 748, 762 (11th Cir.1985). Appellants claim that the jury could not have assessed a two-week trial involving five defendants, nine counts, 57 witnesses, ......
  • United States v. McGarity, No. 09–12070.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • February 6, 2012
    ...in part on other grounds by United States v. Lewis, 492 F.3d 1219 (11th Cir.2007); see also [669 F.3d 1274] United States v. Cole, 755 F.2d 748, 759 (11th Cir.1985) (rejecting challenge to indictment on charge of conspiracy to import marijuana where indictment specified time of conspiracy a......
  • United States v. Chagra, No. SA-82-CR-57(4).
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • February 26, 1986
    ...357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978); Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); United States v. Cole, 755 F.2d 748 (11th Cir.1985); United States v. Chagra, 669 F.2d 241 (5th Cir.), reh'g denied, 673 F.2d 1321, cert. denied, 459 U.S. 846, 103 S.Ct. 102, 74......
  • Request a trial to view additional results

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