U.S. v. Collins

• Citation: 779 F.2d 1520
• Decision Date: 14 January 1986
• Docket Number: Nos. 84-5472,84-5499,s. 84-5472
• Parties: 20 Fed. R. Evid. Serv. 78 UNITED STATES of America, Plaintiff-Appellee, v. Richard COLLINS, John Charles Chaplin, Robert Wells, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Michael RICHARDSON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1520

779 F.2d 1520

20 Fed. R. Evid. Serv. 78

UNITED STATES of America, Plaintiff-Appellee, v. Richard COLLINS, John Charles Chaplin, Robert Wells,

Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Michael RICHARDSON, Defendant-Appellant.

Nos. 84-5472, 84-5499.

United States Court of Appeals, Eleventh Circuit.

Jan. 14, 1986.

William P. Cagney, III, P.A., Miami, Fla., Sheryl J. Lowenthal, Coral Gables, Fla., for R. Collins.

Bennie Lazzara, Jr., Tampa, Fla., for J. Chaplin.

Douglas L. Williams, P.A., Miami, Fla., for R. Wells.

Joel Hirschhorn, P.A., Miami, Fla., for M. Richardson.

William Norris, Asst. U.S. Atty., Miami, Fla., plaintiff-appellee.

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

Before HATCHETT and CLARK, Circuit Judges, and ALLGOOD ^*, district judge.

HATCHETT, Circuit Judge:

Appellants urge reversal in this multi-thousand pound marijuana importation case on a multitude of grounds, including denial of assistance of counsel, sentencing errors, admissibility of evidence, double jeopardy, and prosecutorial misconduct. We affirm.

FACTS

The Drug Enforcement Administration conducted a two-year undercover drug investigation in Collier County, Florida, code named "Operations Everglades." During the investigation, agent William J. Segarra masqueraded as Willie Santos, a marijuana smuggler. At various times other undercover agents assisted him.

On April 11, 1983, at the invitation of Ancile Levi Dupree, Segarra held meetings and made arrangements to provide a shrimping boat to receive 30,000 pounds of marijuana from a freighter off the Yucatan Peninsula in the Gulf of Mexico and to transport it to shore. Participants in the meetings also discussed a separate load of 10,000 pounds of marijuana. Five persons, other than government agents, attended meetings held to plan the transportation of the marijuana. These persons were Ancile Levi Dupree, Richard Collins, Robert W. Wells, John Chaplin, Michael Richardson, and Kelvin Townsend. During the course of the meetings, the participants agreed that Segarra's boat, the "Yellow Fin," would be called the "Barracuda." The freighter with the marijuana would be called the "Blue Runner," and the base station would be called the "Flying Fish."

The listed participants held the meetings listed below:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

From May 6 to May 10, special agent Rene Gonzalez traveled on the "Yellow Fin" from Panama City, Florida, and attempted to establish communication with the contact boat off the Yucatan. On May 10, he returned to Panama City after failing to establish contact. On May 13, 1983, acting on information provided by agent Pulley, the United States Coast Guard stopped and boarded a vessel, the "AVCOG6," containing 30,000 pounds of marijuana. The Coast Guard seized the vessel and the contraband, and took the vessel and its occupants to Key West.

On June 30, 1983, a four-count indictment was returned against Richardson, Townsend, Wells, Collins, Dupree, and Chaplin. The indictment charged in Count I, conspiracy to possess with intent to import marijuana into the United States; in Count II, conspiracy to possess with intent to distribute marijuana; in Count III, attempted importation of marijuana; and in Count IV, aiding and abetting the possession of marijuana with intent to import marijuana into the United States. Pursuant to a plea agreement, Dupree received a sentence of probation in exchange for his testimony. Following a jury trial, the other defendants, except Chaplin, were found guilty as charged; the jury acquitted Chaplin on Counts I and II, the conspiracy counts.

ISSUES

Collins, Wells, Chaplin, Richardson, and Townsend, the appellants, raise a variety of issues, which we have grouped under eight headings. Except for Richardson and Townsend, whose motions were denied, each appellant has adopted by reference the contentions of the others, where applicable. ¹

Collins's Ability to Assist his Counsel

Defendant Richard Collins suffered from a long-standing severe back problem. The trial court continued the original trial date of March 27, 1984, after receiving an affidavit from Collins's physician describing a conservative treatment plan intended to avoid the necessity for a myelogram. The court denied Collins' motion for severance, but agreed to continue the trial until April 9.

On April 9, Collins notified the court that his physicians had recommended a myelogram. The court agreed that the myelogram should proceed the next morning (Tuesday). Collins's physician stated that he did not think Collins would have a problem in attending court by the next week.

Collins underwent the myelogram on Tuesday, April 10. The trial began on Wednesday, April 11.

Collins contends that his physical condition during the voir dire examination violated his fifth and sixth amendment rights to be present at all stages of his trial and violated an understanding with the court that the trial would not begin until the next week. Collins argues that a myelogram causes debilitating headaches that can only be relieved by lying prone. Because at trial he was on a stretcher and in a prone position, Collins claims he could not see the jurors and was not in any meaningful sense present in the courtroom. Collins cites Lewis v. United States, 146 U.S. 370, 375- 76, 13 S.Ct. 136, 138, 36 L.Ed. 1011 (1892) for the proposition that a defendant has the right to bring peremptory challenges based upon his visual impression of a juror. Collins also maintains that his absence (some absences occurred when he occasionally dozed) did not arise from a voluntary waiver of a constitutional right in conformance with the standard of Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).

We find these contentions to be without merit. No evidence shows that Collins had to be in the courtroom on a stretcher. The doctor's instructions were that if Collins experienced pain he should take a pill and lie down. In any event, Collins was present in the courtroom and heard the responses of the jurors.

This court has recently found that a defendant's absence from individual voir dire was not a violation of Rule 43(a), Federal Rules of Criminal Procedure, and even if error, it was harmless. United States v. Willis, 759 F.2d 1486, 1500 (11th Cir.1985). We find that Collins was not legally absent and the district court did not abuse its discretion in scheduling the trial after conducting an evidentiary hearing on Collins's ability to attend trial.

Collins's Sentencing

Upon being found guilty, Collins entered Metropolitan Correctional Center (MCC), Miami, as a result of convictions in another case, pending sentencing in this case. Collins desired evaluation by a psychological expert to assist the trial court's exercise of sentencing discretion. The trial court refused to order MCC Miami to give a psychologist access to Collins. Collins contends that he could have received an ex parte order for psychological evaluation if he had been an indigent, and he could have obtained an evaluation if he had been free on bond pending appeal. Therefore, Collins concludes that he has been denied equal protection of the law. Additionally, he argues that the implications of Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984), caused him not to make any statements at sentencing. In Collins's view, the combination of the lack of psychological evaluation and his inhibition at the sentencing hearing precluded counsel from providing effective assistance.

These contentions are without merit. Collins has not cited any authority requiring that a psychologist be admitted into a penal institution before sentencing. The district court has wide discretion to determine the information needed to "enable it to exercise its sentencing discretion in an enlightened manner." United States v. Satterfield, 743 F.2d 827, 840 (11th Cir.1984). On the facts before us, Collins's recitation of an equal protection argument has no effect on the Satterfield standard.

The Leon Dupree Testimony

Collins subpoenaed Leon Dupree to testify in his behalf, but the court refused to allow the testimony. Collins's use of Leon Dupree as a witness would have been to support the claim that Collins withdrew from the 30,000 pound conspiracy because he was busy with his work as a crabber and not because he was participating in the 10,000-pound deal. Collins's claim could have merit if no other witnesses could testify about the seasonal nature of crabbing work in the Everglades area. The record shows, however, that the defense called other witnesses. In addition, Collins elicited the facts on which he predicated his withdrawal defense from Levi Dupree on cross-examination. We also credit the government's suggestion that Collins's real purpose for wanting to call Leon Dupree was to impeach him and to bring other irrelevant matters into the trial.

The trial court acted within its discretion in refusing to allow Collins to call Leon Dupree.

Instruction on Withdrawal

Collins requested an instruction to the jury on the defense of withdrawal from the conspiracy. He now contends that the court should also have given an instruction on withdrawal from the substantive crime. The district court gave the jury the instruction on withdrawal from the conspiracy although the law of this circuit is to the contrary. Once the evidence showed that the conspiracy was complete, withdrawal was no longer legally possible from the completed crime of conspiracy. United States v. Nicoll, 664 F.2d 1308 (5th Cir.1982).

Collins has cited no authority establishing that one can withdraw from the commission of a substantive offense. In addition, the evidence does not support Collins's claim that he carried the burden of showing that he "acted affirmatively to defeat or disavow the purpose of the conspiracy." United States v....