U.S. v. Goff

• Decision Date: 02 June 1988
• Docket Number: No. 87-1183,87-1183
• Citation: 847 F.2d 149
• Parties: 25 Fed. R. Evid. Serv. 1198 UNITED STATES of America, Plaintiff-Appellee, v. James R. GOFF, Benjamin Phillip Barrington, Romulo Lon Kuntze, Terry B. Drewes, and Horst Schoenhoff, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 149

847 F.2d 149

25 Fed. R. Evid. Serv. 1198

UNITED STATES of America, Plaintiff-Appellee, v. James R. GOFF, Benjamin Phillip Barrington, Romulo Lon Kuntze, Terry B. Drewes, and Horst Schoenhoff Defendants-Appellants.

No. 87-1183.

United States Court of Appeals Fifth Circuit.

June 2, 1988.

Opinion on Rehearing July 18, 1988.

John Eichman, Dallas, Tex., (Court-appointed), for Romulo Lon Kuntze.

Steve Orr, Orr & Davis, Austin, Tex., for Terry B. Drewes.

Lius E. Islas, Douglas Gelo, El Paso, Tex., for Horst Schoenhoff.

Stephen Stein, Oscar & Goodman, Las Vegas, Nev., for Barrington.

Charles Louis Roberts, El Paso, Tex., for Schoenhoff.

Joseph Cronin, Minden, Nev., (Court-appointed), for Goff.

Mervyn Hamburg, Dept. of Justice, Washington, D.C., Sidney Powell, Asst. U.S. Atty., Dallas, Tex., for U.S.

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

Before RUBIN, KING and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Five appellants raise numerous issues challenging their convictions on multiple counts relating to several importations or attempted importations of marihuana and cocaine between June 1984 and August 1985. The original indictment contained twenty-nine counts against twenty-six defendants. Shortly before trial, certain counts were dismissed without prejudice, leaving eighteen remaining counts. The government proceeded against eight of the defendants in a six-week trial that commenced December 1, 1986, and generated some six thousand pages of record and transcript. ¹

The eight brought to trial included the appellants, Benjamin Phillip Barrington, Terry B. Drewes, James Ruth Goff, Romulo Lon Kuntze, and Horst Schoenhoff. ² Several of those initially indicted plea bargained and testified for the government: Aura Henriquez de Becerra, David Duke, Robert Finchum, George G. Gantt, Lloyd Wayne Green, Randy Lee Hunt, Alvaro Munoz, and Weldon Eugene Wyatt.

We conclude that the prosecutor engaged in some misconduct, and that some of the appellants' convictions must be reversed for lack of adequately strong supporting evidence. We affirm convictions on the majority of the counts. In addition, we find that two of the conspiracies charged were actually parts of a single, on-going conspiracy; we vacate convictions on the related counts, and remand so that the district court can enter judgment appropriately, as the government may elect.

I. FACTS

A. Episodes, Counts and Participants

Essentially, the government charged some or all of the appellants with involvement in five sets of episodes or activities, three of which gave rise to multiple counts. ³ The five sets were labeled during trial as the Fort Stockton, Tye, Granbury, Maraquita, and Arauca episodes.

Fort Stockton: Count 6 (June--October, 1984)

Four of the appellants, Barrington, Drewes, Goff, ⁴ and Kuntze, together with several others, ⁵ were charged with conspiracy to import more than one kilogram of cocaine from southern Colombia to Fort Stockton, Texas, during the period June through October, 1984, in violation of 21 U.S.C. Secs. 952, 960 and 963. According to the government's theory, Barrington planned the transaction; he and Kuntze would arrange for the pick-up through two Colombians, Munoz and de Becerra. Goff and Drewes would pilot Barrington's Titan 404 Cessna to Colombia and back to Texas. The load was to be "kicked out" over the Fort Stockton drop site and picked up by a ground crew which included Tom Spratlen and others. Spratlen had long worked for Barrington. He became a government informer early in September, 1984, while the alleged conspiracy was being carried out. Later, he was the government's principal witness at trial as to this and most of the other counts.

Because the southern Colombian pick-up point would have been beyond the range of the Titan 404, the cocaine "stash" was to be moved to a more northerly location. Before the move was accomplished, however, the cocaine was reportedly confiscated by the Colombian army, and the planned importation was cancelled.

Tye: Counts 9 through 12 (November--December 3, 1984)

According to the government, four of the appellants, along with others, planned and effectuated the importation of nearly 1,000 pounds of marihuana from Belize in November and early December, 1984. Goff was alleged to be in charge of this load, Drewes was his co-pilot and "kicker," Schoenhoff was the "contact" with the Belizian source or growers, and Barrington loaned Drewes and Goff a Loran navigational instrument to assist the venture. ⁶ On December 1, Goff and Drewes flew a Twin Bonanza from Sweetwater, Texas, to Belize and picked up the marihuana. The initial plan was to "kick" the load at a drop site near Fort Stockton. Goff and Drewes, however, decided instead to land at Sweetwater airport, where they brought the airplane into Poe Hangar which had been leased by a co-conspirator. Drewes and others loaded the marihuana from the airplane onto a truck which had been outfitted with a camper shell to conceal its contents. After the loaded truck had been parked at a number of locations it was finally driven to Tye, Texas, where government agents seized 969 pounds of marihuana from the truck.

Count 9 charged appellants Barrington, Drewes, Goff, and Schoenhoff, and others, with conspiracy to import approximately 1,000 pounds of marihuana, from November through December 3, 1984, in violation of 21 U.S.C. Secs. 952, 960, and 963.

Count 10 charged appellants Barrington, Drewes, Goff, and Schoenhoff, and others, with importing more than 50 kilograms of marihuana ⁷ on or about December 2, 1984 in violation of 21 U.S.C. Secs. 952, 960, and 18 U.S.C. Sec. 2.

Count 11 charged appellants Drewes and Goff, and others, with conspiracy to possess with intent to distribute over 50 kilograms of marihuana ⁸ from November through December 3, 1984, in violation of 21 U.S.C. Secs. 841(a)(1) and 846.

Count 12 charged appellants Drewes and Goff, and others, with aiding and abetting another individual to possess with intent to distribute approximately 967 pounds of marihuana on or about December 3, 1984, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2.

Granbury: Counts 14 through 21 (November 28, 1984--January 17, 1985)

Here all five appellants were charged with planning to import and actually importing a load of marihuana from Belize to Texas. The government's theory is that Barrington was in charge of this operation, that Goff and Drewes were the pilots, and that Spratlen along with others were to be the ground crew. The aircraft used was Barrington's Titan 404. The load of some 45 bags of marihuana was dropped at a site near Pecos, Texas on the night of January 4, 1985. Thirty-eight bags were retrieved by the ground crew, ⁹ and loaded onto a truck which was driven to Odessa and parked for the night at Spratlen's motel. The next day as the truck was driven off government narcotics officers followed it to a secluded house at Lake Granbury, Texas. After further surveillance, the officers executed a search warrant on January 6, 1985. They seized 968 pounds of marihuana from the truck and the house. Spratlen testified that after the load had been confiscated Barrington nevertheless insisted that those who had received the marihuana prior to seizure would still have to pay for it. Spratlen also testified that on January 9 or 10, Barrington and Schoenhoff flew to Las Vegas carrying a total of $660,000.

Count 14 charged the five appellants and others with conspiring to import approximately 1,250 pounds of marihuana from Belize to Texas, between November 28, 1984 and January 17, 1985, in violation of 21 U.S.C. Secs. 952, 960 and 963.

Count 15 charged that on or about January 4, 1985, appellants Drewes and Goff imported over 50 kilograms of marihuana from Belize to Texas, and that Barrington and Kuntze, along with others, aided and abetted the importation offense, in violation of 21 U.S.C. Secs. 952 and 960, and 18 U.S.C. Sec. 2.

Count 16 charged Barrington with traveling in interstate commerce to Odessa and then to Dallas, Texas, with intent to distribute the proceeds of an unlawful activity, namely a business enterprise involving marihuana, and related unlawful activities on or about December 16, 1984, in violation of 18 U.S.C. Sec. 1952.

Count 17 charged Barrington, Drewes, and Goff with traveling in interstate commerce from Sweetwater, Texas, to Missouri with intent to distribute the proceeds of an unlawful activity, namely, a business enterprise involving marihuana, and related unlawful activities, on or about December 21, 1984, in violation of 18 U.S.C. Sec. 1952.

Count 18 charged Barrington and Schoenhoff with traveling in interstate commerce from Fort Worth, Texas to Las Vegas, Nevada, with intent to distribute the proceeds of an unlawful activity, namely, a business enterprise involving marihuana, and related unlawful activities, on or about December 24, 1984, in violation of 18 U.S.C. Sec. 1952.

Count 20 charged all five appellants and others with conspiring to possess with intent to distribute over 50 kilograms of marihuana from on or about January 3 to January 6, 1985, in violation of 21 U.S.C. Secs. 841(a)(1) and 846.

Count 21 charged that on or about January 6, 1985, other co-conspirators possessed with intent to distribute over 50 kilograms of marihuana, and that all five appellants, along with others, aided and abetted the commission of the possession offense in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2.

Maraquita: Count 25 (January--July, 1985)

The government's theory as to this episode is that Barrington decided to sell his aircraft and use the proceeds to bring in a big cocaine load from Colombia. The Titan 404 was sold for some $170,000 in late January or early February, 1985. Barrington again was alleged to be the principal organizer of the conspiracy. He obtained a Merlin turbo-prop airplane in Oklahoma City. He and...