U.S. v. Elam

Decision Date21 June 1982
Docket NumberNo. 81-1042,81-1042
Citation678 F.2d 1234
Parties10 Fed. R. Evid. Serv. 1013 UNITED STATES of America, Plaintiff-Appellee, v. William Michael ELAM, Richard Victor Jennings, Jr., George Anthony Seek and William Lykergus Miller, Jr., Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

William M. Ravkind, Dallas, Tex., for Elam.

George R. Milner, Ronald L. Goranson, Dallas, Tex., for Jennings.

Charles Robinson, Charles Louis Roberts, El Paso, Tex., for Seek.

Tom Mills, Elizabeth U. Carlyle, Dallas, Tex., for Miller.

Cheryl B. Wattley, H. Jay Ethington, Asst. U. S. Attys., Dallas, Tex., for the U. S.

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

Before POLITZ and RANDALL, Circuit Judges, and PARKER *, District Judge.

JOHN V. PARKER, District Judge:

On March 21, 1980, in a single-count indictment filed in the Northern District of Texas, Dallas Division, eighteen persons, including appellants William Michael Elam, Victor Jennings, Jr., and William Lykergus Miller, Jr., were charged with conspiring to import and to distribute imported marijuana and possession of the contraband with intent to distribute it in violation of 21 U.S.C. § 963 and § 846.

Following a jury trial of these four defendants only, 1 guilty verdicts were returned against each of them. The district court denied motions for new trials made by appellants Elam, Jennings and Miller, and all appellants have appealed. 2

The record on appeal is substantial, 3 and the issues on appeal are numerous, but, after careful examination of the record and legal arguments presented, we conclude that all convictions should be affirmed.

The principal bone of contention in this case is the recurring dispute between prosecution and defense over single versus multiple conspiracies.

The indictment charges that 18 defendants and other persons "known and unknown" to the grand jury conspired to violate 21 U.S.C. § 952(a) by importing large quantities of marijuana from Colombia and Mexico, to violate 21 U.S.C. § 959 by distributing the imported contraband and to violate 21 U.S.C. § 841(a) by possessing marijuana with intent to distribute and distributing it. The conspiracy to violate these statutes is charged as violating 21 U.S.C. § 963 and § 846.

The government contends that this was a single conspiracy beginning in August, 1978, and continuing until July, 1979, involving the acquisition, conversion and use of a DC-6 aircraft and several smaller aircraft, together with necessary flight and ground crews, landing sites, both foreign and domestic, and some subsidiary ventures designed to help finance the flight of the DC-6, loaded with some 12 tons of marijuana, from Colombia to Texas. The government further contends that after the primary landing site near Jayton, Texas, was discovered by law enforcement officers, the conspirators utilized an alternate landing site in Mexico, from whence the marijuana was shuttled (in part) to the United States.

Appellants take, of course, the opposite position, asserting that the evidence presented to the jury proved not one, but several unrelated conspiracies involving different people.

The issues on appeal include those relating to whether the evidence presented at trial was at variance with the indictment's charge of a single, large conspiracy, and instead established separate conspiracies, whether the evidence adduced at trial was sufficient to sustain the convictions of appellants Elam, Jennings and Miller, and whether the trial court properly denied motions to elect.

The election and variance issues are common to all appellants. Several sub-issues of the variance issue, including motions to sever, motions for mistrial, and several evidentiary and jury instruction issues, were raised by one or more appellants. Appellants Elam, Jennings and Miller challenge the sufficiency of the evidence against them. Appellants Miller and Seek also claim that the trial judge admitted co-conspirator statements without first determining by independent evidence that Miller and Seek and the other co-conspirators were members of the same conspiracy, contrary to the holding of United States v. James, 590 F.2d 575 (5th Cir. 1979) (en banc) cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979). Finally, Elam raises an issue regarding the correctness of the trial court's ruling on the admissibility of evidence of certain telephone records.

FACTS

The various aspects of the single, overall conspiracy charged in the indictment, which appellants contend were independent conspiracies, are denominated by the defense as, "the DC-6 Venture," "the Guatemalan Venture," "the Oaxacan Transactions," and "the Jayton Incident." 4

THE "DC-6 VENTURE" 5

In August, 1978, a group of persons assembled at the Timber Ridge Apartments in Dallas, to discuss preliminary plans for the purchase of approximately twelve tons of marijuana in Colombia, South America. At this meeting, plans were discussed for the transportation of the marijuana from Colombia using a Douglas DC-6 aircraft, for ultimate arrival and distribution in the United States. The apparent director of these activities was James William Edward Caldwell ("Bill Caldwell") who was a fugitive from federal authorities. Among others also present at the Timber Ridge meeting, who were destined to play key roles in the venture, were Michael Coleman Christopher ("Mike Christopher"), 6 William Anthony Dugan ("Tony Dugan"), and Jay Caldwell Emerson ("Jay Emerson" or "Jaybird"). Christopher was acquainted with qualified pilots and was asked to attend the meeting by Bill Caldwell in order to help the group procure a pilot for the contemplated mission. Appellant Elam was also present. 7

Subsequent to the August meeting at Timber Ridge, William Edson Claire ("Bill Claire" or "Dusty Claire") purchased a DC-6 airplane bearing identification number N9393A for approximately $150,000.00. The plane was flown to Santa Maria Airport in San Jose, Costa Rica, where it remained for several months, until March, 1979, for extensive renovations and repairs costing approximately $20,000.00. The DC-6 was converted from a passenger airplane to a cargo or freight aircraft. Upon completion of the modifications and repairs, the plane was inspected by appellant Seek, Bill Claire, and others, after which it was flown to Tucson, Arizona.

Meanwhile, another meeting had been held in October of 1978 at the Brandywine Apartments in Dallas at which further negotiations and discussions were held concerning the use of the DC-6 in the smuggling venture.

In November, 1978, two meetings were held at the former Airport Marina Hotel at the Dallas/Fort Worth Airport. Bill Caldwell, Mike Christopher, Tony Dugan, David Beach, appellants Elam and Seek, four "Yankees" (the "financiers") from New York, and others were present at one or both of the meetings. 8 The primary purpose for these two meetings was the selection, by interview, of a qualified pilot to fly the DC-6 to Colombia and back. A prospective pilot was interviewed at each meeting, and additional discussions were held concerning potential loading sites and the use of a recently enlarged, secluded landing strip at Nuding Ranch near Jayton, Texas, as the planned landing site. The cargo and fuel capacities of the DC-6 were also discussed at these meetings. Ultimately, appellant Seek was chosen to be the pilot for the DC-6, because no other qualified pilot was found who was willing to get involved in the scheme. 9

At least one additional meeting was held that year, in December, 1978, to further discuss plans and make preparations for the "DC-6 Venture." The meeting was held at a house located at 11236 Quail Run in northeast Dallas in which Jay Emerson resided, and behind which an aluminum ramp, at least twenty feet long and four feet wide, was being built for the purpose of unloading bundles of marijuana from the aircraft. Among the persons present at this meeting were Bill Caldwell, Tony Dugan, Bill Claire, David Beach, Mike Christopher, Jay Emerson and appellant Seek. It is not clear whether appellant Elam was in attendance.

At one of these early meetings, Guatemala was specifically discussed as a possible refueling site for the Colombia-Texas flight.

During the first five months of 1979, approximately twenty meetings were held at a Hunter's Hill apartment, located on Holly Hill Road in Dallas. It was at these meetings that appellant Seek was selected as pilot, and Thomas Edward Leiferman ("Charles Lindberg") as co-pilot for the importation mission, and certain people were designated as "unloaders" of the contraband once it had arrived. 10 Appellant Jennings was present "once or twice" at the Hunter's Hill apartment during this period, at times when members of the "DC-6 Venture" were conducting business. On one occasion in January, 1979, Jennings was present when Mike Christopher paid $7,000.00 to Bill Caldwell as a payment owed for marijuana which he had earlier purchased "on credit."

In March, 1979, the DC-6, having been converted for cargo use, was flown to Tucson International Airport. On May 7, 1979, according to the accounting records of the Tucson Airport Authority, the DC-6, identification number N9393A, was fueled with 3,930 gallons of aviation fuel costing $3,584.16.

The "Jayton Incident" was the arrest of Tony Dugan and others on May 8, 1979, near the recently expanded aircraft landing strip on the Nuding Ranch near Jayton, Texas, and the seizure of approximately 950 pounds of marijuana by police at that site. That development dictated a change of landing plans for the DC-6, since the initial decision to have the DC-6 ultimately land on this strip had to be modified once the police became aware of its illegal use. The occurrence of this "Jayton Incident" destroyed the usefulness of the group's plan to employ that facility as a landing strip for the DC-6 with its cargo of contraband. Ultimately, a dry lake...

To continue reading

Request your trial
85 cases
  • United States v. Shorter
    • United States
    • U.S. District Court — District of Columbia
    • 26 Marzo 1985
    ...scheme. United States v. Mangieri, supra, 694 F.2d at 1281-82; United States v. Robin, supra, 693 F.2d at 378; United States v. Elam, 678 F.2d 1234, 1250 (5th Cir.1982); United States v. Berardi, supra, 675 F.2d at 898; United States v. Margiotta, supra, 646 F.2d at 733; United States v. Al......
  • United States v. LOC. 560, INTERN. BRO. OF TEAMSTERS
    • United States
    • U.S. District Court — District of New Jersey
    • 8 Marzo 1984
    ...United States v. Elliott, 571 F.2d 880 (5th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978); United States v. Elam, 678 F.2d 1234, 1246 (5th Cir.1982). 27 All reported RICO conspiracy cases except one, see United States v. Loften, 518 F.Supp. 839 (S.D.N.Y.1981), have ......
  • U.S. v. Richerson
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 2 Dicembre 1987
    ...(2) the accused knew of the conspiracy; and (3) the accused, with knowledge, voluntarily joined the conspiracy. United States v. Elam, 678 F.2d 1234, 1245 (5th Cir.1982). In Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), the government obtained a single count cons......
  • U.S. v. Swingler
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 20 Marzo 1985
    ...Cir.1984); United States v. Dickey, 736 F.2d 571 (10th Cir.1984); United States v. Lee, 695 F.2d 515 (11th Cir.1983); United States v. Elam, 678 F.2d 1234 (5th Cir.1982); United States v. Grunsfeld, 558 F.2d 1231 (6th Cir.1977). We see no reason why this rule should not also be applied in t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT