U.S. v. Darby
| Decision Date | 29 October 1984 |
| Docket Number | No. 82-5840,82-5840 |
| Citation | 744 F.2d 1508 |
| Parties | 16 Fed. R. Evid. Serv. 941 UNITED STATES of America, Plaintiff-Appellee, v. George Tom DARBY, Constantine Yamanis, Vincent Calise, and Michael Yamanis, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Joel Hirschhorn, Harry M. Solomon, Miami, Fla., for Constantine Yamanis.
Walter P. Loughlin, Newark, N.J., for Michael Yamanis.
David L. McGee, Asst. U.S. Atty., Tallahassee, Fla., for plaintiff-appellee.
Appeals from the United States District Court for the Northern District of Florida.
Before KRAVITCH and HATCHETT, Circuit Judges, and MORGAN, Senior Circuit Judge.
Appellants Constantine Yamanis, Michael Yamanis, Vincent Calise and George Thomas Darby were convicted and sentenced for their involvement in a large drug smuggling operation. The issues presented on appeal are:
(1) whether Constantine Yamanis' right to a speedy trial under 18 U.S.C. Sec. 3161(c)(1) was violated;
(2) whether the trial court's denying Constantine Yamanis' motions for continuance constituted error under 18 U.S.C. Sec. 3161(c)(2) or an abuse of discretion;
(3) whether Constantine Yamanis was denied a fair and impartial trial as a result of the trial court's jury instructions, evidentiary rulings and discovery rulings;
(4) whether the sentences imposed on Constantine Yamanis and Michael Yamanis are so disproportionate to the crime as to constitute cruel and unusual punishment, whether Constantine Yamanis' indigency rendered the imposition of "stand committed" fines violative of the fifth amendment and whether the trial court erred in imposing cumulative fines;
(5) whether the trial court lacked personal jurisdiction over Michael Yamanis due to the circumstances of his arrest;
(6) whether the presence of information of disputed accuracy in the presentence report violated Michael Yamanis' due process rights;
(7) whether Calise was improperly sentenced as a dangerous special drug offender under 21 U.S.C. Sec. 849 because of an untimely notice, an inadequate notice (8) whether the trial court erred in prohibiting Calise from interviewing the jurors after trial;
an insufficiently onerous standard of proof or prosecutorial vindictiveness;
(9) whether there is sufficient evidence of Darby's guilt to support the conviction; and
(10) whether the evidence adduced by the government established multiple conspiracies rather than a single conspiracy such that there was a variance between the allegations in the indictment and the proof at trial prejudicial to Darby or such that the trial court abused its discretion in denying Darby's motions for severance.
We affirm in all respects.
Between 1975 and 1982, Constantine Yamanis and Michael Yamanis, brothers, headed an extensive marijuana and hashish importation organization. The bill of particulars filed by the government listed, and the evidence adduced by the government tended to show, ten major smuggling episodes for which this organization was responsible, to wit:
(1) the importation of a multi-ton shipment of marijuana at Moss Landing, California in late June and early July 1981 (the Kyoto episode);
(2) the importation of a multi-ton shipment of marijuana on the coast of Oregon in May 1981, and the transportation thereof from Oregon to California (the Oregon episode);
(3) the attempted transportation of two and one half tons of marijuana from Florida to Texas in December 1980 (the attempted transportation episode);
(4) the importation of a seven-ton load of marijuana aboard a DC-6 aircraft at Bascomb, Florida in July 1980, and the transportation thereof from Florida to Texas (the DC-6 episode);
(5) the importation of a multi-ton shipment of marijuana on the west coast of Florida in December 1978 (the Draco episode);
(6) the attempted importation of a multi-ton shipment of hashish in late 1977 and early 1978 (the BP-25 episode);
(7) the importation of a 14-ton shipment of marijuana at Gloucester, Massachusetts in November 1977 (the Willig episode);
(8) the importation of a multi-ton shipment of marijuana at Gloucester, Massachusetts in late May and early June 1977 (the Gretchen episode);
(9) the attempted importation of a 15-ton shipment of marijuana in October and November 1976 (the Fylke episode); and
(10) the importation of a seven-ton shipment of marijuana at Ambrose Light, New York in early 1976 (the Patria episode).
The Yamanis organization was also involved in several smaller drug incidents.
The evidence at trial indicated that the Yamanises were engaged not only in the importation and off-loading of marijuana, but also in its transportation, distribution and sale. In the course of their dealings, they procured the assistance of public officials, both in this country and abroad, exchanged hostages to ensure adherence to bargains and otherwise resorted to threats of violence. Their operation literally spanned the globe, from Florida, California and New York to Colombia and Pakistan. And from their drug smuggling activities, they reaped millions of dollars.
Vincent Calise was one of the Yamanises' chief lieutenants. Having joined the organization in late 1975 or early 1976, Calise actively participated in several of the large drug transactions recounted above. In addition to performing relatively minor tasks, he often assumed a supervisory role, for example, in directing personnel engaged in off-loading. The Yamanises were also assisted by Tom Darby. Specifically, Darby participated in the DC-6 episode.
On January 7, 1982, the Grand Jury for the Northern District of Florida returned a five-count indictment charging appellants In June 1982, Constantine Yamanis, Calise and Darby were tried by a jury before Judge Lynn Higby of the Northern District of Florida. Jury selection occurred on June 1, and the trial commenced on June 7. On June 15, the jury returned verdicts finding Constantine Yamanis guilty on Counts I, IV and V, Calise guilty on Counts II, III and V, and Darby guilty on Count III. Following his transportation from Honduras to Florida in July 1982, Michael Yamanis was tried by a jury, again before Judge Higby, in October 1982. He was found guilty on Counts I, IV and V.
and seven others 1 with violations of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. Secs. 841-852, and the Controlled Substances Import and Export Act, 21 U.S.C. Secs. 951-966. Count I charged Constantine Yamanis and Michael Yamanis with engaging in a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848. Count II charged Calise and Darby with conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. Secs. 841, 846. Count III charged Calise and Darby with conspiracy to import marijuana in violation of 21 U.S.C. Secs. 952, 963. Count IV charged all four appellants with importation of marijuana in violation of 21 U.S.C. Sec. 952. And Count V charged all four appellants with possession of marijuana with intent to distribute in violation of 21 U.S.C. Sec. 841.
Constantine Yamanis and Michael Yamanis each received a 60-year prison term and a $100,000 fine on Count I, a five-year prison term, a $15,000 fine and two-year special parole term on Count IV, and a five-year prison term, a $15,000 fine and a two-year special parole term on Count V. The two five-year terms are to run consecutively to each other and concurrently with the 60-year term. The total fine is $130,000. Calise was sentenced to a five-year prison term on Count II, a five-year prison term on Count III, and a four-year prison term on Count V, all to run consecutively; he was also fined $15,000 on each of the three counts. Having been found to be a dangerous special drug offender under 21 U.S.C. Sec. 849, Calise received an additional prison term of 25 years, to run concurrently with the other prison terms. As a result of his conviction on Count III, Darby was sentenced to five-years' imprisonment and was fined $15,000. This appeal ensued.
CLAIMS
Constantine Yamanis contends that because he was denied the right to a speedy trial in violation of the Speedy Trial Act, 18 U.S.C. Secs. 3161-3174, the district court should have dismissed his indictment pursuant to section 3162(a)(2) of the Act. Section 3161(c)(1) essentially provides a 70-day period within which a defendant must be brought to trial:
In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.
18 U.S.C.A. Sec. 3161(c)(1) (Supp.1984). Under section 3161(h), however, certain periods of delay may be excluded when calculating the 70-day period:
(h) The following periods of delay shall be excluded in computing the time within which an information or an indictment must be filed, or in computing the time within which the trial of any such offense must commence:
(1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to--
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* * * (F) delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion;
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(J) delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court.
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(7) A reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time...
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