U.S. v. DeSimone

• Citation: 660 F.2d 532
• Decision Date: 02 November 1981
• Docket Number: No. 79-5675,79-5675
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Anthony DeSIMONE, III, George Robert Thomson, George Christopher Broderick, Phillip Eugene Miner, David Hampton Butler, Warren Waldon, a/k/a Warren Cook, John Robert Howard, a/k/a John Hamilton, Roy Barron Elder and William Robert Ralston, Defendants-Appellants. . Unit B *
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 532

660 F.2d 532

UNITED STATES of America, Plaintiff-Appellee, v. Robert Anthony DeSIMONE, III, George Robert Thomson, George Christopher Broderick, Phillip Eugene Miner, David Hampton Butler, Warren Waldon, a/k/a Warren Cook, John Robert Howard, a/k/a John Hamilton, Roy Barron Elder and William Robert Ralston, Defendants-Appellants.

No. 79-5675.

United States Court of Appeals, Fifth Circuit.

Unit B ^*

Nov. 2, 1981.

Steven W. Ludwick, Atlanta, Ga., for DeSimone.

Alvin E. Entin, North Miami Beach, Fla., for Thomson, Broderick, Howard, Elder, Ralston and Waldon.

Sheldon "Skip" Taylor, Miami, Fla. (Court-appointed), for Butler and Miner.

W. A. Kimbrough, Jr., U. S. Atty., William R. Favre, Jr., Asst. U. S. Atty., Mobile, Ala., for plaintiff-appellee.

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

Before GODBOLD, Chief Judge, and MORGAN and HENDERSON, Circuit Judges.

HENDERSON, Circuit Judge:

This case originated with the indictment of sixteen defendants, all of whom were charged in four counts with distribution and possession with intent to distribute marijuana, 21 U.S.C.A. § 841(a)(1) and 18 U.S.C.A. § 2; conspiracy to distribute and to possess with intent to distribute marijuana, 21 U.S.C.A. § 846, importation of marijuana, 21 U.S.C.A. § 952(a); and conspiracy to import marijuana, 21 U.S.C.A. § 963. The trial commenced on October 17, 1979 in the United States District Court for the Southern District of Alabama with all defendants present except H. B. Sandini, who failed to appear, and Frank Kostof and William Joseph Wolff, both of whom died before trial. At the conclusion of the government's case, the trial court granted judgments of acquittal in favor of William Thomas Craig and Charles Alsup Baughman and dismissed the first count of the indictment as to all defendants. At the end of the trial, the jury returned guilty verdicts against all defendants except Allen Ervin Singleton, who was acquitted of all charges, and George Robert Thomson, who was found not guilty on Count Four. Each defendant was sentenced consecutively to a five-year prison term, $15,000.00 fine, and ten-year special parole term on each count. This appeal followed. We affirm in part and reverse in part.

The evidence, taken in its light most favorable to the government, establishes that on June 7, 1979, several of the original sixteen defendants arrived at the Quality Inn Motel in Tuscaloosa, Alabama. Sandini, the apparent leader of the group, paid cash for all of the rooms rented and registered them in the name of Atlas Land Development Company. He and his driver, Craig, checked into adjoining rooms numbers 115 and 117, while the other defendants in the entourage were located throughout the motel. Sandini placed several telephone calls from his room to the Island of Aruba and to a number in Florida. These circumstances aroused the suspicions of Mrs. Stevenson, the motel manager. She contacted the Tuscaloosa Police Department, which in turn undertook surveillance of the defendants. From the facts thereafter observed or uncovered, a sequence of events emerged.

On June 5, 1979, the defendant Roy Barron Elder rented two Hertz eighteen-foot stake bed trucks in Birmingham, Alabama. Several days later, Baughman purchased over 900 gallons of fuel and filled the tank of one of the Hertz trucks. On June 9, 1979, Singleton rented an eight-wheel trailer in Mobile, Alabama. He hauled the trailer to Tuscaloosa the following day and checked into the Holiday Inn across the street from the Quality Inn. On the same day, June 10, 1979, Elder purchased a Honda generator presumably to be used in conjunction with a barrel pump for transferring fuel into an airplane. The next day, the defendant George Christopher Broderick rented a van, six skate conveyors, three ladders and a barrel pump. The defendant James Joseph Iouna was seen driving the van later that evening. Also on that date, Elder and the defendant David Hampton Butler rented automobiles in Tuscaloosa, Butler leasing a yellow Caprice and Elder a red Caprice. During this relevant time period, the officers conducting the surveillance observed all of the defendants within the area of the Quality Inn with the exception of Wolff, Kostof and Phillip Eugene Miner.

On the evening of June 11, 1979, Broderick, Elder, John Robert Howard, William Robert Ralston, Thomson, Craig and Warren Waldon, a/k/a Warren Cook, met in front of Sandini's room and then went to dinner. Later that evening, Sandini walked to his Lincoln Continental automobile, removed a bottle of liquor, and handed it to Iouna, who had driven up in the van containing the ladders and skate conveyors. Sandini also distributed flashlights to Iouna, Ralston and Waldon. Singleton moved his tractor-trailer rig to another location and was later observed leaving Sandini's room with Ralston. The two men then opened the rear doors of the trailer and unidentified persons loaded the ladders and skate conveyors onto it. Baughman, who was standing next to the van, was joined by Thomson and both of them changed into working clothes. Shortly thereafter, Sandini, Craig, Butler, Iouna, Waldon and Broderick congregated in front of rooms 115 and 117. The watching officers noted that everyone except Sandini left the motel, but they were unable to determine which individuals departed in each of the various vehicles.

By this time, around midnight, the Customs Service had been informed of these activities and dispatched an airplane which followed Singleton's tractor-trailer rig to a small airport near Greensboro, Alabama. At 3:30 a. m., the Customs crew and several officers on the ground saw a DC-6 aircraft land on the airstrip. The Custom's plane landed and nosed up to the DC-6, which had by that time turned around, to prevent it from taking off. The crew observed the tractor-trailer and one of the fuel trucks pulling away from the DC-6. The other fuel truck was abandoned nearby.

Police officers approaching the airport stopped the tractor-trailer as it was leaving the area, arrested Singleton, and observed ladders, skate conveyors, a flashlight and a ground-to-air radio in the trailer. Within a few minutes of this arrest, the fuel truck emerged from the airport area. An officer fired a warning shot and the truck stopped. Howard, the driver, Broderick, Miner, Ralston and Wolff were arrested. Shortly thereafter, the red Caprice drove into a ditch as it was traveling away from the airport on the same road. Elder, Kostof, Thomson and the defendant Robert Anthony DeSimone were apprehended in the vicinity of that automobile. Iouna was arrested a few miles from the airport in the yellow Caprice. Large quantities of marijuana were discovered in the DC-6.

Later in the day of June 12, 1979, Butler and Waldon were apprehended at the Uniontown, Alabama bus station, several miles from the Greensboro airport. Baughman was found hitchhiking in the Greensboro area. Sandini and Craig were arrested as they drove away from Tuscaloosa.

A search of Sandini's Lincoln Continental revealed walkie-talkies, strobe lights, aeronautical charts and maps, aircraft gauges, a flashlight and items of identification. Receipts from the Holiday Inn Motel on Aruba indicated that Kostof, Miner and Wolff stayed there on the night of June 10, 1979.

In searching the DC-6, officers found a suitcase belonging to Miner and numerous items bearing the fingerprints of Kostof, Wolff and Miner. Flight documents covering locations in Colombia, Aruba, Florida and Alabama were discovered. A map of South America located in the cockpit of the plane bore Butler's fingerprint. Elder's prints appeared on the van, and a fingerprint belonging to DeSimone was found on the trunk of the yellow Caprice. Finally, Waldon's prints were found on an out-dated flight plan situated in the cockpit of the DC-6 and on a piece of paper inside a suitcase located in the rear of the red Caprice.

Of the original defendants, only Ralston, DeSimone, Thomson, Broderick, Howard, Miner, Butler and Waldon are appellants in this case. ¹ They assign numerous purported errors on appeal, some of which are of common interest and others which have more limited application. We concentrate our attention on those issues which we believe are of major and controlling significance.

Sufficiency of the Evidence

Although all appellants timely moved for judgments of acquittal at the trial, only DeSimone and Waldon directly challenge the sufficiency of the evidence on appeal. Our task is to read the record in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), and, from there, determine whether the jury's verdict is supported by substantial evidence, United States v. Malatesta, 590 F.2d 1379 (5th Cir.) (en banc), cert. denied, 440 U.S. 962, 99 S.Ct. 1508, 59 L.Ed.2d 777 (1979). To uphold the convictions on the conspiracy counts, we must be satisfied that the government proved beyond a reasonable doubt that these appellants had "the deliberate, knowing, specific intent to join the conspiracy." 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 not enough for it merely to establish a climate of activity that reeks of something foul." United States v. Wieschenberg, 604 F.2d 326, 331-32 (5th Cir. 1979).

The government's evidence against DeSimone no doubt places him in a suspect "climate of activity." He checked into the Quality Inn in Tuscaloosa on June 7, 1979 and, we can assume, occupied one of the rooms registered to the nonexistent Atlas Land Development Company. He was observed in the presence of several other defendants on the afternoon of June 11, 1979. Finally, he was apprehended in the early morning hours of June 12, 1979 in the vicinity of the red Caprice, presumably having fled from that vehicle along with three other defendants. ²

DeSimone maintains...