U.S. v. Eyster

Decision Date17 December 1991
Docket NumberNo. 89-7925,89-7925
Citation948 F.2d 1196
Parties34 Fed. R. Evid. Serv. 688 UNITED STATES of America, Plaintiff-Appellee, v. Robert Irving EYSTER, a/k/a Bobby, Jack Leroy Marshall, Defendants-Appellants.
CourtU.S. Court of Appeals — Eleventh Circuit

Bronis & Portela, P.A., Stephen J. Bronis, Miami, Fla. and Beskind & Rudolf, P.A., Thomas K. Maher, Chapel Hill, N.C., for Robert Irving Eyster.

Susan G. James, Jeffery C. Duffey and Algert S. Agricola, Jr., Montgomery, Ala., for Jack Leroy Marshall.

J.B. Sessions, III, U.S. Atty., Gloria A. Bedwell, Asst. U.S. Atty. and Charles A. Kandt, Mobile, Ala., for plaintiff-appellee.

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

Before FAY and BIRCH, Circuit Judges, and KAUFMAN *, Senior District Judge.

FAY, Circuit Judge:

In a multi-count, multi-defendant indictment, appellants Robert Eyster and Jack Marshall were charged with participating in an on-going conspiracy to import and distribute cocaine. The jury convicted Eyster of one count relating to a failed importation attempt and Marshall of seven counts relating to the conspiracy. Among their several challenges to their respective convictions, the appellants contend that the district court erred in permitting the government to improperly vouch for the credibility of a key witness and misrepresent to the jury that extrinsic evidence would explain away the witness' perjury. Because we find prosecutorial misconduct and other substantive and procedural errors that prejudiced the appellants, we REVERSE both appellants' convictions and REMAND for a new trial.


Several seemingly unrelated incidents occurring over a three-year period and involving the importation of cocaine into Mississippi and Alabama form the backdrop of this appeal. An investigation into these incidents eventually resulted in the indictment of twenty-four individuals, of which five were jointly tried. This appeal concerns the fair conduct of that trial.

A. The Investigation

On June 22, 1986, police and narcotic officers found sixteen burlap sacks containing 711 kilo bricks of cocaine left abandoned by the side of an airstrip in Waynesboro, Mississippi. Two more large sacks containing smaller bricks of cocaine had been dragged into the woods off the side of the runway. An investigation ensued to determine what had happened but no arrests followed.

A little more than a year later, on the night of September 25, 1987, a small plane crash-landed at Demopolis Airport in Alabama, exploding into a ball of fire. Dental records identified the burned body of the pilot, found by the roadside, as Fred Hartley. The body of the pilot's brother, Joe Hartley, was found charred inside the wreckage. Two hundred thirteen red and green packages containing cocaine were found all over the road. Again, an investigation did not produce any immediate arrests.

On the evening of December 10, 1988, the local police chief from Marion, Alabama responded to a call from a patrol officer that unusual activity was going on at a small airstrip called Vaiden Field in Perry County. Various law enforcement officers arrived at the airstrip just as a long-nosed twin-engine plane taxied for departure in the dark. With their blue lights flashing, the police cars swerved to avoid a collision with the plane as the plane headed directly toward the cars on the airstrip. Moments after the plane escaped into the night, the police turned their attention to a moving vehicle at the end of the runway. The police gave chase and soon seized an S-10 pick-up truck containing radios, emergency lights, generators, extension cords, and other equipment. An extensive on-site search failed to locate any suspects.

The next day, law enforcement agents traced the Cessna 404 Titan to the Muscle Shoals Airport in the northern part of the state and apprehended the pilots as they were waiting to board a commercial flight at the airport. Initially the pilots falsely identified themselves but continued questioning revealed that the pilots were Patrick Abbott and Robert Clark. Abbott and Clark soon obtained immunity from prosecution in exchange for information on their activities and their cooperation in obtaining further evidence. They maintained their relationship with a group of smugglers and recorded a series of conversations with members of this group during the planning of an importation of a load of cocaine intended to take place in March 1989.

As a result of the investigation into the Demopolis crash, an individual named Tony Chambless, through his attorney, approached law enforcement agents and negotiated a plea agreement with the government. Chambless identified persons whom he maintained were involved in the Demopolis incident. He explained how a large hunting camp had been used in Sumpter County as the home base for an on-going operation where a number of loads of cocaine had been imported into Alabama.

Chambless identified the same people identified by Abbott and Clark. The government set up surveillance to observe the individuals named by these men and tracked the group over several months. In May 1989, a tape-recorded conversation between Clark and one of the named individuals indicated that imminent harm awaited a government agent, witness, or informant. Law enforcement decided to end the investigation and make arrests.

The investigation led to an indictment charging twenty-four defendants with an on-going conspiracy to import and distribute cocaine by plane into the Southern District of Alabama from 1982 through the spring of 1989. 1 The drug-trafficking enterprise allegedly smuggled massive amounts of cocaine, at least 600 kilograms per load, several times a year over several years. Five of the twenty-four defendants were tried jointly and that trial is the basis of this appeal. Of the remaining nineteen defendants, seven were fugitives, nine entered into plea agreements with the government, two were set for a separate trial, and one was in other custody. The five defendants tried jointly were Richard "Dickie" Lynn, Ricou DeShaw, Craig Keaser, Robert "Bobby" Eyster, and Jack Leroy Marshall.

The government claimed that Lynn principally directed and administrated a criminal organization that included pilots, personnel who assisted at a refueling stop in Belize, personnel who off-loaded cocaine and refueled planes in Alabama, radio operators who monitored the planes and scanned law enforcement communications, and personnel that distributed the cocaine to sites throughout Alabama, Mississippi, and Florida. The prosecution alleged that DeShaw also managed the organization and served as a pilot. Keaser was alleged to have transported cocaine from Alabama to South Florida. Eyster allegedly acted as the radio operator in Alabama. The government claimed that Marshall was an armed "enforcer" who provided intimidation when directed and that he often removed the cocaine from the airplanes and transported the cocaine to other locations for distribution.

After arraignment and the setting of the trial date, Marshall filed a motion for the inspection of jury lists and a motion to compel a jury selection date. The district court entered an order authorizing Marshall's inspection of the jury selection plan. Lynn, Eyster, and Marshall objected to the jury selection process on the grounds that the venire was selected alphabetically and not on a random basis. Lynn's counsel filed a motion with an affidavit complaining of a Sixth Amendment violation. The district court denied the motion.

A month before the trial, Marshall filed a motion to suppress unspecified evidence from a house in Miami on the grounds that Marshall's brother, who consented to the search, was coerced, did not have "common authority" over the premises, and was not a defendant or in any way involved. The government objected, asserting that the motion failed to establish Marshall's standing to contest the search. Marshall then testified in an effort to supplement the motion. The district court denied the motion to suppress without a hearing on the grounds that Marshall failed to establish standing.

B. The Trial

Although the government produced extensive documentary and physical evidence, the government's case against Eyster, and to a lesser degree Marshall, depended heavily on the credibility of witnesses who testified pursuant to plea agreements. The primary government witnesses testifying against Eyster and Marshall, who are the subjects of this appeal, 2 were Robert Clark, Patrick Abbott, Hilary DeWeese, Steve Purvis, Mike Barclay, and Kevin Sheehy. All of these government witnesses were originally named in the indictment.

As noted previously, Clark and Abbott were the pilots who were involved in the incident at Vaiden Field, which resulted in Clark and Abbott cooperating with the government. Pursuant to their plea agreements, Clark and Abbott testified that they often flew to Colombia for cocaine and returned to the United States after a refueling stop in Belize. After being recruited by Hilary DeWeese in 1987, Clark selected Abbott as his co-pilot and flew all the flights that were the subject of the substantive counts. 3 Clark testified about the importation and distribution counts and Abbott provided additional testimony about his travels to Belize. Clark testified that a "Bobby" operated the radios in Alabama and that he once met this "Bobby" in Tampa but Clark never identified Eyster as someone he spoke with on the radio and was unable to identify a photograph of Eyster as this "Bobby." Likewise, Abbott did not identify Eyster as someone he spoke with during his flights. Abbott, however, did testify that Lynn told him that Eyster ran the radio for the landing at Vaiden Field. 4 Both Clark and Abbott linked Marshall with the Demopolis incident but neither witness offered evidence concerning Eyster and Marshall during the period they cooperated with the government.


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