U.S. v. Dorr, 79-5598

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation636 F.2d 117
Docket NumberNo. 79-5598,79-5598
PartiesUNITED STATES of America, Plaintiff-Appellee, v. John R. DORR and John Grant Passmore, Defendants-Appellants. . Unit A
Decision Date06 February 1981

Anthony Nicholas, Yale G. Phillips, Jr., San Antonio, Tex., for Dorr.

Victor Sherman, Los Angeles, Cal., for Passmore.

LeRoy Morgan Jahn, W. Ray Jahn, Asst. U. S. Attys., San Antonio, Tex., for United States.

Appeals from the United States District Court for the Western District of Texas.

Before GOLDBERG, GARZA and TATE, Circuit Judges.

GARZA, Circuit Judge:

The appellants were both charged with conspiracy to import marijuana into the United States from the Republic of Mexico in violation of 21 U.S.C. §§ 952(a) and 963 and conspiring to possess marijuana with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846. The appellants were also charged with aiding and abetting themselves and other conspirators in the commission of the above offenses in violation of 18 U.S.C. § 2. Following a trial by jury, both appellants were convicted on all three counts. The appellants now raise a number of issues, some of which overlap. Because we find that the prosecutor stepped beyond the acceptable limits in his closing argument, we remand the case for a new trial.

At the trial of appellants, the great bulk of the incriminating testimony against Passmore and the sole damaging testimony against Dorr were given by Terry Wayne Fagan, a private pilot employed by Dorr. Although there were a number of coconspirators in this case, only Passmore and Dorr went to trial. Fagan, a man named Gregory Mark Halteman and a woman named Vivian Gonzalez Hagger pled guilty in return for their testimony, and two other coconspirators became fugitives. Dorr, who is a successful businessman in Pecos, Texas, involved in oil, ranching, real estate and banking, was accused by Fagan as being the supplier of funds for a marijuana smuggling operation based in Mexico. Fagan testified that Dorr had given him large amounts of cash to make such purchases and had given him the use of his credit cards on such junkets. Fagan also testified that Dorr paid the rental charges on the airplanes which were used to smuggle the marijuana out of Mexico. Fagan testified that after he had been forced to destroy a leased plane in Mexico after an unsuccessful attempt to smuggle marijuana, Dorr obtained a loan and paid $190,000 to the aviation company which owned the plane. Fagan also stated that following this transaction, Dorr leased an even more expensive twin engine airplane upon Fagan's recommendation. Fagan's testimony against Passmore was that the latter was the one who had contacts with the marijuana people in Mexico and that Passmore had helped load the airplane with marijuana.

Fagan testified that on April 7, 1978, he landed the leased twin engine plane on a highway near Dimos, Mexico, which is about 40 miles north of Mazatlan. Fagan stated that Passmore and a number of other people loaded about one thousand pounds of marijuana into the plane. Fagan's destination that night was Los Angeles, California, but because of various factors, he realized he did not have enough fuel to fly nonstop. He was to meet certain individuals in Los Angeles who would offload the marijuana. Dorr was not implicated in any way with the upcoming offloading in Los Angeles.

Because of his lack of fuel, Fagan entered the United States south of Presidio, Texas, and landed in Roswell, New Mexico for refueling. The plane had been detected on radar, however, and suspicions were aroused. Sergeant Vance Adams of the New Mexico State Police was requested to investigate any recently landed airplanes at the Roswell Airport. When he arrived at the Roswell Airport, Sergeant Adams saw Fagan's plane. As he walked past the airplane he noticed that the curtains were drawn back in one of the windows allowing him a view of the interior. Shining his flashlight in the window, he saw a plastic sack with what appeared to be stems protruding from the sack. Sergeant Adams then went into the airport building to contact his office and request assistance. Fagan followed Sergeant Adams and yanked the phone receiver out of his hand at which time the officer drew his gun and arrested Fagan. Sergeant Adams gave Miranda warnings to both Fagan and a passenger in the plane who was subsequently indicted and who is now a fugitive. Other law enforcement officers arrived shortly, and Fagan gave the officers his consent to search the plane and handed over the keys to the airplane.

Fagan also testified that Dorr had supplied him with cash while he was in jail. Halteman, who had been involved in the loading of the plane on the highway near Dimos, Mexico, did not refer to Dorr at all and incriminated Passmore by saying that the latter had helped load the marijuana that night. The government also introduced a great number of telephone records, credit card and hotel receipts and flight plans, which it claimed supported Fagan's story. During the presentation of the government's case in chief, the plea bargain agreements of Halteman and Gonzalez were also introduced. A cover letter sent by the United States Attorney's Office was attached to both agreements addressed to the district judge in this case, Judge Dorwin Suttle. The letter explained the ramifications of the accompanying plea agreements.

At the trial, Dorr testified and admitted that he had paid for the crashed plane, but he denied any knowledge, at the time, of its destruction. He stated that Fagan had told him that the plane had been sold to a group of individuals in Tucson, Arizona. Dorr also admitted that he leased the twin engine which was seized in New Mexico. Dorr did not deny that Fagan was his pilot, but he consistently denied that he knew Fagan was using the planes for transporting marijuana. It is clear that Dorr considered Fagan a friend and trusted employee and that he had bestowed upon him a great deal of responsibility as a pilot. Passmore did not take the stand. Both defendants presented an array of character witnesses.

Although a great amount of documentary evidence was presented, such records in and of themselves do not indicate any criminal endeavors. Because it was Fagan's testimony which breathed the possibility of criminal activity into those records, the greatest thrust of the defense strategy was to discredit Fagan. Defense counsel attempted this by attacking Fagan's character, his story, the fact that he had entered into a plea bargain with the government and his personal relationships with DEA agents involved in the case.

During final argument by defense counsel, Fagan's credibility was attacked and an implication was left with the jury that the government had been out to convict Dorr. During its closing argument in rebuttal, the government, in an apparent attempt to dilute defense counsel's argument that the government was trying to convict either appellant, stated:

They would also have you believe, ladies and gentlemen, that this entire conspiracy was cooked up by Mr. Fagan, a conspiracy to get these men, and it was aided and abetted by Mr. Whitworth (DEA agent) and myself. And I believe Mr. Sherman (counsel for Passmore) told you that a Court in this United States can do whatever they want (sic) and he would never question that. Look at the transcript of that proceeding where Mr. Fagan was sentenced when the Judge says, "You have done what I asked you to do." That's Judge Sneed (District Judge for the State of New Mexico who accepted Fagan's guilty plea in state court). Look at the plea agreements of Mr. Halteman and Miss Gonzalez in which it says (sic), "The Court," that means the Judge, "must decide if these agreements are in the interest of justice and has the sole discretion." The Court has the discretion not to accept them.

I would have to assume then, ladies and gentlemen, that Mr. Sherman and Mr Nicholas and Mr. Barrera (defense counsel for Dorr) feel that this Court, Judge Suttle and the Judge up in Rosswell (sic), New Mexico are all out to get their clients. Does that make sense? Does that appeal to your reason? Does that appeal...

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