U.S. v. Coy

• Decision Date: 27 April 1994
• Docket Number: No. 92-2143,92-2143
• Parties: UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee, v. Mary Sue COY; Joseph Reilly; Daniel Heaton, Defendants-Appellees, Cross-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 629

19 F.3d 629

UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee, v. Mary Sue COY; Joseph Reilly; Daniel Heaton,

Defendants-Appellees, Cross-Appellants.

No. 92-2143.

United States Court of Appeals, Eleventh Circuit.

April 27, 1994.

Sandra Mullgrav, Tampa, FL, for Coy.

Javier Guzman, Tampa, FL, for Reilly.

Robert H. Dillinger, St. Petersburg, FL, for Heaton.

Dennis Moore, Asst. U.S. Atty., Tamra Phipps, David P. Rhodes, Asst. U.S. Atty., Tampa, FL, for appellant/cross-appellee.

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

Before KRAVITCH and COX, Circuit Judges, and HENDERSON, Senior Circuit Judge.

PER CURIAM:

The defendants were convicted of various crimes involving the importation and distribution of marijuana. On appeal, the defendants challenge their convictions. The Government challenges the defendants' sentences, contending that the district court erred in failing to impose relevant mandatory minimum sentences. We affirm the convictions but vacate the sentences and remand for resentencing.

I. Facts and Procedural History

This case involves the tale of two fishing vessels (the Duke and the Dan's Plan ) and an unusual event in the Gulf of Mexico. In 1987, both vessels fished out of the docks of Dick's Seafood in Madeira Beach, Florida. The Duke was owned by Mary Sue Coy and captained by Raymond "Baby Ray" Koethe. ¹ The Dan's Plan was owned by Daniel Heaton and captained by Joseph Reilly.

In late February 1987, the Duke departed the docks of Dick's Seafood for a three-week fishing excursion in the Gulf of Mexico. During the trip, the weather started getting rough as a storm approached, so the crew anchored the vessel at Fort Jefferson in the Dry Tortugas to ride out the storm. Four days later, the storm passed and the Duke and crew returned to the Gulf to continue fishing.

Around noon the same day, the Duke rendezvoused with the Dan's Plan for a fuel transfer approximately thirty miles north of Fort Jefferson and sixty miles west of the Florida coast. The crews knew each other and the Duke needed additional fuel to continue its trip. The Dan's Plan had departed Madeira Beach a day earlier for a similar fishing excursion in the Gulf. After the transfer, the vessels parted a short distance to continue their quest for grouper. ²

Both vessels laid out their fishing lines shortly after the fuel transfer. A crew member on the Dan's Plan saw a small twin engine airplane flying low above the water and being pursued by a U.S. Customs airplane. ³ The planes were flying west and away from shore. About an hour later, both crews saw the small twin engine airplane returning east, flying just yards above the water. On board the Duke, a crew member heard Koethe radio "low flying duck" while a crew member on board the Dan's Plan heard Koethe radio "low flying bird." ⁴ The plane passed the Dan's Plan first and as it passed near the Duke, square bales started falling from its cargo doors into the waters of the Gulf below. The plane continued to dump the bales roughly in a line until it reached the horizon. The bales were tan and contained packages of marijuana.

Both crews ceased their fishing activity; Reilly on the Dan's Plan and Koethe on the Duke steered their vessels toward the line of bales. Both crews loaded several bales aboard their respective vessels but apparently without any coordination between the two crews. There were additional radio conversations between Koethe and Reilly after the drop, but none of the witnesses could testify as to what was said.

Shortly thereafter, both vessels headed for Dick's Seafood dock in Madeira Beach. The Dan's Plan arrived early the next morning before the Duke. Upon arrival, Reilly phoned Terry Dinninger, an acquaintance, to request his assistance in selling the marijuana. Dinninger in turn called John Albee. Soon thereafter a van arrived at the dock. The marijuana was then transferred from the vessel to the van. The van was owned by John Albee and the marijuana was taken to his house.

At Albee's house, the marijuana was dried, rewrapped, and packaged. The marijuana remained at Albee's house for nearly a week. During this time, Reilly and Heaton met with Dinninger to arrange for the distribution of the marijuana. The three agreed the marijuana would be sold to an acquaintance of Dinninger's in Michigan. It was also agreed each crew member and Albee would receive $10,000.00 for their participation in the venture.

The Duke arrived at Dick's Seafood dock later on the same day the Dan's Plan had arrived. Coy drove her Jeep to the dock and met the vessel upon its arrival. The Duke's crew loaded the marijuana into Coy's Jeep. Coy, along with Koethe and Duke crew members, then drove it to a home shared by Coy and Koethe. Within the week, Koethe paid at least two of his crew members $10,000.00 for their assistance with the marijuana.

Sometime thereafter, Wade Tappan arranged a purchase of some of the marijuana from Koethe. A local fisherman named Robert Lacius met Tappan and delivered the marijuana to Tappan. Tappan then called Koethe to arrange payment for the marijuana. The next day, Coy went to Dick's Seafood where Tappan worked. Tappan and Coy drove in separate vehicles to a place several blocks from Dick's Seafood where Tappan placed a knapsack containing $14,000.00 into Coy's vehicle as payment for the marijuana.

On September 12, 1991, a federal grand jury in Tampa, Florida, returned a four-count indictment against Heaton, Reilly, Koethe, and Coy. Count one charged conspiracy to import marijuana in violation of 21 U.S.C. Sec. 963 (1988), and count two charged importation of marijuana in violation of 21 U.S.C. Sec. 952 (1988). Count three charged conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. Sec. 846 (1988), and count four charged possession with intent to distribute marijuana in violation of 21 U.S.C. Sec. 841(a) (1988). None of the counts alleged the quantity of marijuana involved. The indictment also sought forfeiture of the two vessels and the home owned by Coy.

The case proceeded to trial. At the close of the Government's evidence, the court granted Heaton's motion for judgment of acquittal on counts one and two. On December 10, 1992, the jury returned guilty verdicts against Heaton on counts three and four, against Reilly on all counts, and against Coy on counts three and four. The jury subsequently returned a special verdict finding that the two vessels and Coy's house were subject to forfeiture.

At the sentencing hearing, the court heard arguments concerning the propriety of imposing mandatory minimum sentences based on the quantity of marijuana involved. The court found that the amount of marijuana involved in the conspiracy ⁵ exceeded 1000 kilograms, but determined that the mandatory minimum provisions could not be applied to the defendants because of the Government's failure to provide the defendants with sufficient pre-trial notice of its intent to seek such penalties. (R. 11 at 20). Subsequently the court sentenced Coy to forty-two months imprisonment on counts three and four, to run concurrently, and to a special parole term of two years on count four. The court sentenced Heaton to terms of five years imprisonment on counts three and four, to run concurrently, and a special parole term of two years on count four. The court sentenced Reilly to terms of imprisonment of five years on counts one and two, to run concurrently, and five years as to counts three and four, to run concurrently with each other but consecutive with the sentences imposed on counts one and two. The court also imposed a special parole term of five years on counts three and four.

II. Issues on Appeal & Contentions of the Parties

All three defendants contend that there was a prejudicial variance between the indictment, which charged a single conspiracy, and the proof at trial, which they contend established separate conspiracies. In addition, Coy argues that the court violated her due process rights by giving a coercion instruction to the jury when coercion was not a theory of defense she relied upon. Coy also contends that the court erred in failing to sever her trial based on her need for exculpatory testimony from co-defendant Koethe. Heaton and Coy argue that the court erred in rejecting a Batson challenge to the Government's peremptory strike of a black juror and in denying a motion for a bill of particulars. ⁶ Heaton also contends that the court erred in restricting the cross-examination of a Government witness and in ordering forfeiture of the Dan's Plan. ⁷ In response, the Government maintains that all convictions should be affirmed.

Additionally, the Government contends that the district court imposed an illegally short custody sentence when it found that over 1000 kilograms of marijuana were involved in the conspiracy, but refused to impose mandatory minimum ten year sentences pursuant to 21 U.S.C. Secs. 841(b)(1)(A)(vii) & 960(b)(1)(G). The defendants counter that the court correctly refused to impose the mandatory minimum penalty provisions because the Government failed to provide adequate notice to the defendants of its intent to seek penalties under these provisions.

III. Discussion

A. Variance

The defendants argue that the indictment erroneously charged them with a single conspiracy and that the proof at trial revealed multiple conspiracies. Accordingly, they contend that no reasonable jury could have found that a single conspiracy existed. Because of this variance between the indictment and the proof at trial, the defendants argue, this court must vacate their conspiracy convictions.

As the defendants paint the picture, the airplane drop in the Gulf was a wholly unexpected and unplanned event. When the crews saw the drop, they separately picked the bales up, separately returned to Madeira Beach, and, ultimately, separately distributed their booty. Thus, the...