U.S. v. Deerman
| Decision Date | 17 February 1988 |
| Docket Number | No. 87-3033,87-3033 |
| Citation | 837 F.2d 684 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Keith DEERMAN and Francis G. Kinney, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert Glass, Arthur A. Lemann, III, New Orleans, La., for defendants-appellants.
Patty Merkamp Stemler, Atty., Dept. of Justice, Crim. Div./Appellate Section, Washington, D.C., for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before CAROLYN DINEEN KING * and DAVIS, Circuit Judges, and PARKER **, District Judge.
Appellants and others were tried on multiple charges relating to a scheme to introduce a large quantity of marijuana into the country. The jury acquitted appellants on two counts of the indictment and failed to agree on two other counts. The government then filed a superceding indictment against appellants that appellants sought to dismiss on grounds of double jeopardy and collateral estoppel. The district court denied appellants' pretrial motions to dismiss. We affirm.
In reviewing the district court's ruling on appellants' motions we consider the facts developed at appellants' trial in a light most favorable to the government. See United States v. Mulherin, 710 F.2d 731 (11th Cir.), cert. denied sub nom. Moore v. United States, 464 U.S. 964, 104 S.Ct. 402, 78 L.Ed.2d 343 (1983), and Hornsby v. United States, 465 U.S. 1034, 104 S.Ct. 1305, 79 L.Ed.2d 703 (1984); United States v. Seijo, 537 F.2d 694 (2d Cir.1976), cert. denied, 429 U.S. 1043, 97 S.Ct. 745, 50 L.Ed.2d 756 (1977).
Appellants, Keith Deerman and Francis G. Kinney, were employed as United States Customs agents in charge of the marine operations in the New Orleans area. In June 1985, a former Customs agent, Sam Edwards, contacted his old friends, Kinney and Deerman, and sought their assistance in arranging the importation of more than 50,000 pounds of marijuana. At the initial meeting, the three men discussed the logistics of importing the marijuana, the payment, the availability of an offloading site, and the need to have Customs agents check names of individuals and vessels on the Treasury Enforcement Communication System (TEC) computer. According to Edwards, who was the government's star witness, both Kinney and Deerman agreed to assist in the criminal enterprise.
Randy Fink was the ringleader. His partner, Tony Varca, supplied the ships and the crew. Sam Edwards was charged with locating a suitable site to unload the marijuana and obtaining the assistance of Customs agents in the area where the marijuana was to be landed. The total value of the shipment was approximately eighteen million dollars. The profits were to be divided into three equal shares: one third was to go to Fink and Varca, another share to the Colombian suppliers, and the remaining third to Edwards and the Customs agents chosen by Edwards to assist in the undertaking. According to Edwards, one of the major reasons the New Orleans area was selected as the site to land the marijuana was his close contact with Deerman and Kinney. Fink, who also cooperated with the government at trial, testified that New Orleans was selected because Edwards and his New Orleans agents "had more control" over their area than the South Florida agents whom he had contacted.
Kinney and Deerman lent substantial support and assistance to the efforts to land the marijuana in the New Orleans area.
Fink asked Kinney and Deerman to recommend a safe waterfront site to unload the marijuana. Kinney and Deerman initially suggested Michael Mayer's boat maintenance and repair facility as an unloading site. Deerman and Kinney knew Mayer because they had sent Customs service vessels to Mayer's yard for repairs. After Mayer declined Edwards' offer of $100,000 for use of his repair yard, Kinney accompanied Edwards to other possible offloading sites. Based on Kinney's advice, Varca purchased riverfront property for $600,000 for the unloading site. When appellants learned that a confidential informant had advised the FBI about the possible use of this site or one in that immediate area for unloading a large amount of marijuana, appellants warned Edwards and Fink about this tip and advised against use of this site. Fink and Edwards then instructed appellants to find a new site to unload the marijuana. Appellants next suggested an abandoned riverfront warehouse in Dulac, Louisiana, that had once been seized by the U.S. Customs Service. Although appellants showed Edwards the suggested warehouse in Dulac, when Edwards attempted to drive Fink to the warehouse he lost his way and telephoned Kinney for directions. Fink approved the warehouse as an unloading site and sent the men he had hired as truck drivers (who turned out to be undercover FBI agents) to the warehouse to make repairs before the marijuana arrived.
Fink and Varca used three ships to transport the marijuana from Colombia to New Orleans: the MACVIE, the BLUE STAR, and the ISLAND VENTURER. At Edwards' request, Kinney ran the names of these three ships through the TEC computer. He told Edwards that both the BLUE STAR and the ISLAND VENTURER were on the Customs "hot list." With this information, Fink and Varca used the BLUE STAR to make the first leg of the trip from Colombia to a point near Jamaica where the crews transferred the marijuana to the MACVIE. As the vessels neared New Orleans, the BLUE STAR and the ISLAND VENTURER acted as decoys while the MACVIE steamed toward the unloading site.
Appellants also diverted at least one Customs agent away from the warehouse in Dulac where the trucks waited to receive the marijuana.
On August 18, the FBI agents working undercover as truck drivers took the U-haul trucks to the Dulac warehouse to await the arrival of the marijuana. On the following day, a Customs agent received a tip from the local sheriff's office that three U-haul trucks were at the deserted warehouse in Dulac. When this information was transmitted to appellants, Kinney telephoned Edwards and told him "that all hell had broken loose and that the State Police had seen us go in that night or early that morning, ... and that it was imperative to get all the vehicles out of the warehouse, but I [Edwards] was not to go back under any circumstances." Deerman ordered surveillance of the trucks and directed the surveilling agents to obtain the names of the truck drivers from hotel desk clerks where they were directed to register as well as any telephone numbers the drivers might dial. Deerman eventually passed all of this information along to Edwards.
The FBI ultimately realized that someone was leaking information to the smugglers, and on August 20 the agents arrested a number of the participants in the smuggling scheme, including Fink. The United States Coast Guard seized the marijuana in the Gulf of Mexico, where it was being transferred from the MACVIE to shrimp boats for transportation to the Dulac warehouse. Fink had Kinney's phone numbers with him at the time of his arrest, and when the agents searched Deerman's office they found his notes of locations and phone numbers of the three truck drivers/FBI agents and a blueprint of the Dulac warehouse.
Appellants Kinney and Deerman were indicted, along with twenty-five other defendants, in a four count indictment charging them as follows: conspiracy to import marijuana in violation of 21 U.S.C. Secs. 952 and 963 (Count 1); attempted importation of marijuana in violation of 21 U.S.C. Secs. 952 and 963 (Count 2); conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (Count 3); and possession of marijuana with intent to distribute in violation of 21 U.S.C. Sec. 955 (Count 4).
Following the trial, the jury deliberated for approximately six hours and announced that it had reached a verdict. The jury foreman delivered a completed verdict form to the court which reflected that the jury found appellants not guilty on the possession counts (Counts 3 and 4) and guilty on the importation counts (1 and 2). When the court polled the jury, however, two of the jurors announced that they did not concur in the convictions of appellants on Counts 1 and 2. Counsel for Deerman immediately moved for a mistrial, which the court denied. No counsel asked the court to retire the jury for further deliberations. The district court ordered the verdicts recorded and later received and considered appellants motions for a new trial. The government offered no opposition to these motions and the district court granted appellants' motions for a new trial on Counts 1 and 2.
Following these developments, the grand jury handed down a superceding indictment charging appellants with conspiracy to import marijuana and attempt to import marijuana in substantially the same form as the earlier indictment. Additionally, the grand jury charged Deerman with three counts of using the telephone to facilitate the importation offenses in violation of 21 U.S.C. Sec. 843(b) and Kinney with two counts of using the telephone to facilitate the importation offenses. These charges are predicated on the telephone calls Kinney made to Edwards giving him directions to the Dulac warehouse and telephone calls Deerman made to warn Edwards about the surveillance being conducted on possible unloading sites.
Kinney and Deerman both testified at the trial and admitted making the telephone calls. They denied, however, that they knew that Edwards was planning to import marijuana into the country or that the information they transmitted to him could be of any assistance in any such scheme.
The defendants moved to dismiss all counts of the superceding indictment on the following grounds. First, the government is barred from retrying defendants on...
To continue reading
Request your trial
-
U.S. v. Carraway
...court's discretion. Fed.R.Crim.P. 31(d); see United States v. Williams, 873 F.2d 1102, 1105 (8th Cir.1989); United States v. Deerman, 837 F.2d 684, 688-89 (5th Cir.), cert. denied, 488 U.S. 856, 109 S.Ct. 146, 102 L.Ed.2d 118 (1988); Deane v. Dunbar, 777 F.2d 871, 875 (2d Cir.1985); United ......
-
U.S. v. Ricks
...v. Dowling, 855 F.2d 114, 120-21 (3 Cir.1988), cert. granted, --- U.S. ----, 109 S.Ct. 1309, 103 L.Ed.2d 579 (1989); United States v. Deerman, 837 F.2d 684, 690 (5 Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 146, 102 L.Ed.2d 118 (1988); United States v. Bennett, 836 F.2d 1314, 1316 (11 Ci......
-
U.S. v. Brackett
...estoppel will bar the introduction or argumentation of facts necessarily decided in the prior proceeding. E.g., United States v. Deerman, 837 F.2d 684, 690 (5th Cir.1988). In this appeal, both applications of collateral estoppel are at issue: The district court declined to dismiss the indic......
-
U.S. v. Yeager
...will bar the introduction or argumentation of facts necessarily decided in the prior proceeding." Id. (citing United States v. Deerman, 837 F.2d 684, 690 (5th Cir.1988)). "Facts so established in the first trial may not be used in the second trial either as ultimate or as evidentiary facts.......