U.S. v. Ellender

• Decision Date: 12 November 1991
• Docket Number: 90-4475,Nos. 90-4403,s. 90-4403
• Citation: 947 F.2d 748
• Parties: 34 Fed. R. Evid. Serv. 395 UNITED STATES of America, Plaintiff-Appellee, v. Stephen F. ELLENDER, Jim Swope, Roger Dale Collins, and Jim Bourgeois, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Carl TANGREDI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 748

947 F.2d 748

34 Fed. R. Evid. Serv. 395

UNITED STATES of America, Plaintiff-Appellee, v. Stephen F. ELLENDER, Jim Swope, Roger Dale Collins, and Jim

Bourgeois, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Carl TANGREDI, Defendant-Appellant.

Nos. 90-4403, 90-4475.

United States Court of Appeals, Fifth Circuit.

Nov. 12, 1991.

Patricia A. Thomas, Abbeville, La. (court-appointed), for Ellender.

J. Lomax Jordan, Jr., Lafayette, La. (court-appointed), for Swope.

Michael C. Piccione, Sr., Lafayette, La. (court-appointed), for Collins & Bourgeois.

William J. Flanagan, Josette L. Cassiere, Asst. Attys. Gen., Shreveport, La., for U.S.

J. Gary Trichter, Houston, Tex. (court-appointed), for C. Tangredi.

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

Before CLARK, Chief Judge, REAVLEY and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge.

These appeals are the remnants of an ambitious drug prosecution involving a cast of 187 defendants, scores of witnesses, numerous sailing vessels, many thousands of pounds of marijuana, and hundreds of kilograms of cocaine. Courtroom spectators heard accounts of great intrigue spanning several years and involving colorful characters, including a certain deposed Central American dictator. Twenty-three defendants, less than a sixth of the named defendants, were eventually tried. As the dust settled in the specially-modified courtroom, only a handful of defendants stood convicted. The low ratio of convictions to the number of defendants tried, plus the very small sentences against those convicted, best demonstrate the flaw in the government's apparent assumption that "bigger is better" in this type of proceeding.

Five defendants have appealed. We find no reversible errors in the points they have raised, although we must remand Ellender's double jeopardy claim for further investigation in light of Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990).

BACKGROUND

Nearly a decade ago, Stephen Kalish, Leigh Ritch, and Micheal Vogel, joined forces to import approximately 35,000 pounds of marijuana into North Carolina. The plan went awry when the U.S. Coast Guard seized the ship off the Carolina coast. Undaunted, the group repeated the plan a few months later and successfully imported 40,000 to 50,000 pounds of marijuana. Encouraged by their success in avoiding law enforcement agents, Kalish and his associates planned and executed a quarter-million pound shipment of marijuana in 1983.

Kalish had joined the ranks of the drug running elite and required a safe haven for his many millions. General Manuel Antonio Noriega was only too happy to extend the use of Panamanian banks to Kalish. As Kalish's drug smuggling acumen grew and as his profits swelled, so did his ambition. He and his cohorts began staging early preparations for a one million pound marijuana shipment, and he added a new product line--cocaine--to his distribution system.

Appellant Ellender introduced Kalish to Ellender's uncle, who supplied the Lady Mauricette, a shrimp boat used to bring the load of marijuana which was seized by the Coast Guard. An able sailor, Ellender acted as the ship's engineer on the Jason Lee, another shrimp boat used to transport the second marijuana shipment, which was successfully unloaded and sold. Ellender assisted in the construction modifications necessary to prepare the Jason Lee for its new role as a marijuana transport. Ellender was among those detained after the Colombian Navy seized the ship in Colombian waters. After payment of a bribe, Ellender was released and the operation continued unhindered.

Appellant Swope was also a crew member, beginning with the third importation, transported on the Bulldog, a tugboat/barge combination. Swope joined the crew while the barge was en route to Louisiana. After the marijuana was unloaded, Swope remained with the Bulldog. Swope was later questioned by a Customs Officer because the tug and barge had not cleared through U.S. Customs. After urging the officer to return later to meet with the tug's captain, Swope warned Kalish of the contact and fled the area with other crew members.

Kalish teamed up with Cesar Cura, a cocaine supplier from Medellin, Columbia, and Albert "Chic" Fortna. Kalish and Fortna agreed to transport cocaine from Cura's Colombian sources to Cura's wholesalers in the United States. In exchange, Kalish and Fortna retained twenty percent of the cocaine. Fortna would then sell their portion of the cocaine through his distributors and he and Kalish would split the profits. Kalish and Fortna forecast net profits of three million dollars per shipment, with an anticipated eventual volume of one shipment every ten to fourteen days.

Appellants Collins and Bourgeois each received four or five kilograms of cocaine from the first consignment. Each dealt through Fortna, who claimed to have been a long-time supplier to the pair. Fortna also stored some of the cocaine at a ranch property leased by Collins. Fortna later testified that Bourgeois balked when he attempted to interpose another distribution associate between himself and Bourgeois.

Ultimately, the group completed only one cocaine importation. The first shipment was plagued by adverse weather, necessitating an emergency landing in Jamaica, where Jamaican government officials stole a substantial amount of the cocaine and extracted a hefty bribe. The second flight fell prey to mechanical trouble, and plans for the third were terminated with the arrest of Stephen Kalish on July 26, 1984, on unrelated charges. Appellant Tangredi was implicated in the second and third failed shipments for his agreement to assist in unloading cocaine in Lubbock, Texas The original indictments were superseded as new defendants and charges were added. The charges in the final indictment were separated into two trials. The first trial, which began on October 16, 1989, and ended on January 15, 1990, covered the marijuana charges. The second trial commenced on February 12, 1990, and ended on March 7, 1990, and covered the cocaine charges. Numerous witnesses and exhibits were presented, creating an appellate record of some eighty volumes.

                a designated backup destination had the second and third importations occurred.   Kalish's arrest also curtailed preparations for the planned million-pound marijuana scheme.   Later, Kalish became a key witness for the prosecution in a number of drug related trials, including the instant case.   He was joined as a government witness by his former partner, Albert Fortna
                

Ellender and Swope were charged with thirteen counts related to a conspiracy to import, possess, and distribute marijuana, in violation of 21 U.S.C. §§ 841, 846, 952, 955, and 963. (counts one through thirteen). ¹ Swope was also charged with conspiring to violate the Travel Act and two substantive Travel Act violations (counts fourteen, twenty-one, and twenty-two). 18 U.S.C. §§ 371, 1952. The jury found Ellender guilty on counts one through six, and not guilty on counts seven through thirteen. Swope was found guilty on counts one through fourteen, twenty-one, and twenty-two.

Collins and Bourgeois were charged with five counts related to a conspiracy to import and distribute cocaine (counts twenty-four through twenty-seven), 21 U.S.C. §§ 841, 846, 952, and three substantive customs violations (counts twenty-eight through thirty). 18 U.S.C. § 545, 19 U.S.C. §§ 1459, 1461, 1484, 1485. Tangredi was also charged in two cocaine importation and distribution counts (counts twenty-three and twenty-five). 21 U.S.C. §§ 841, 952, 963. Before the second trial began the court granted the government's motion to dismiss counts twenty-four, twenty-six, twenty-eight, twenty-nine, and thirty. The court dismissed count twenty-seven. The jury found Collins and Bourgeois guilty on count twenty-five, and found Tangredi guilty on counts twenty-three and twenty-five.

The appellants present several points of error. Each defendant asserts that the court abused its discretion in denying his respective motion for severance. Ellender and Swope both complain that the indictment was impermissibly vague, the discovery process was flawed, and that the trial was contaminated with prosecutorial misconduct. Ellender additionally alleges that the evidence established multiple conspiracies rather than the single conspiracy charged, his conviction violated the Double Jeopardy Clause, and that the court erred in ordering him to be shackled throughout the trial. Swope also contends that the evidence was insufficient to sustain his conviction. Collins further argues that he was substantially prejudiced by the court's limitation on cross-examination, and that he should have been granted a new trial. We now discuss these claims in turn.

SEVERANCE

Ellender, Swope, and twenty-one other defendants were tried together on charges of conspiracy to import over one million pounds of marijuana in four operations. The trial lasted approximately three months and seventy-three witnesses testified. Ellender and Swope argue that they were prejudiced by the "spill-over" effect of the evidence presented against their co-defendants, which they claim was not relevant to the charges brought against them. They also argue that the court should have granted them separate trials because they could have been tried in a few days and the three month trial was unduly burdensome. Tangredi makes essentially the same assertions, though he was tried in the smaller cocaine phase of the trial rather than in the marijuana phase.

We review the district court's denial of a motion for severance for an abuse of discretion. United States v. DeVarona, 872 F.2d 114, 120 (5th Cir.1989); United States v. Wheeler, 802 F.2d 778, 781 (5th Cir.1986), cert. denied, 480 U.S. 908, 107 S.Ct. 1354, 94 L.Ed.2d 524 (1987). To successfully show abuse of discretion in denial of a severance motion an...