U.S. v. Gonsalves

• Decision Date: 09 November 1982
• Docket Number: No. 80-1860,80-1860
• Citation: 691 F.2d 1310
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Stephen A. GONSALVES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1310

691 F.2d 1310

UNITED STATES of America, Plaintiff-Appellant, v. Stephen A. GONSALVES, Defendant-Appellee.

No. 80-1860.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 3, 1981.

Decided Nov. 9, 1982.

Lamond R. Mills, U.S. Atty., Las Vegas, Nev., for plaintiff-appellant.

Richard P. Crane, Jr., Los Angeles, Cal., for defendant-appellee.

Appeal from the United States District Court for the District of Nevada.

Before ELY and NORRIS, Circuit Judges, and PECKHAM, ^* District Judge.

PECKHAM, District Judge:

The Government appeals from the District Court's order of December 17, 1980, granting the motion to dismiss the indictment on behalf of appellee-defendant Stephen Anthony Gonsalves. Appellee had been charged along with twelve other defendants and seventeen unindicted co-conspirators for violation 21 U.S.C. Sec. 963, Conspiracy to Import a Controlled Substance, and 21 U.S.C. Sec. 846, Conspiracy to Possess with Intent to Distribute a Controlled Substance. Gonsalves' alleged role was to act as a money courier in one of the numerous financial transactions that took place during the course of the charged conspiracy.

Four years earlier, the District Court had ordered a judgment of acquittal in favor of three of appellee's co-conspirators who had been brought to trial on the same indictment. Gonsalves had not been arrested as of that time. However, on August 28, 1980, he surrendered to the United States Magistrate in Las Vegas, Nevada. On September 26, 1980, he filed a motion to dismiss the indictment on the same grounds that had supported the previous judgment of acquittal in favor of three of his alleged co-conspirators.

The District Court, relying on its inherent supervisory power to prevent undue interference with the effective administration of justice, granted the motion on the grounds that, inter alia, the indictment was an "unmanageable monstrosity." Under the particular facts of this case, and for the reasons set forth below, we affirm the District Court's order of dismissal pursuant to its proper exercise of supervisory power.

I. FACTS

The Government has alleged an elaborate on-going conspiracy to import and distribute a controlled substance during the period of January 1, 1973, to June 18, 1974. The two-count indictment names a total of thirteen defendants, Gonsalves among them, as well as seventeen co-conspirators who were not named as defendants. According to the Government, these individuals were engaged in a conspiracy to import and distribute hashish purchased from England, the Netherlands, and other countries in Europe and the Middle East. The Government alleges that the following scenario took place. ¹

In February of 1973, Ernest Franz Combs contacted James Earl Gater in South Lake Tahoe, California. Combs told Gater that, with the help of James Morris and others, he was going to smuggle hashish from Europe into the United States. In particular, Morris was to get some acoustical sound speaker cabinets specially manufactured so that fiberglass sections filled with hashish could be fit into them. After the cabinets were manufactured in England, they were shipped to France where they were picked up by Robert David Work, among others, and then loaded with hashish.

Morris shipped the hashish-filled speaker cabinets from Paris, France, to New York City on March 4, 1973. From there they were shipped to Los Angeles. Gater was to meet Richard Kenneth Brown at the Orange County Airport in California and then proceed to a warehouse in San Pedro, California, where the cabinets were to be delivered and unloaded. Brown had given Gater a carnet which he was to show to the customs officials at Trans World Airlines (TWA) Air Cargo at the Los Angeles International Airport in order to pick up the cabinets.

On March 8, 1973, Gater picked up the hashish-filled sound speaker cabinets at the Los Angeles airport in a rented U-Haul truck and transported them to the warehouse in San Pedro where Gater, Brown, and Work unloaded 724 pounds of hashish. After unloading the cabinets, Brown gave Gater a kilo of hashish as compensation for picking up the equipment. Furthermore, because Gater had been involved in the operation, Combs told him that, if he desired, he could invest between twenty and thirty thousand dollars on the next shipment and receive a share of the proceeds.

In early March of 1973, Combs again contacted Gater and instructed him to go to Austria and rent a house that would be used to collect the hashish. Combs agreed to allow Gater to invest $20,000.00 in this venture. Combs told Gater that Robert Carl Fry was to receive $50,000.00 to assist Gater in Austria. Combs also explained that Gater was to fly to Graz, Austria, and meet with Salim Inard Hraoui.

On March 12, 1973, Gater flew from South Lake Tahoe to the Orange County Airport where he was picked up by Brown. They went to Brown's house where Gater was given approximately $300,000.00 in cash to take with him to Graz. In Graz, Gater met with Karl Ferdinand Krug who assisted him in finding a house to rent. After renting the house, Fry arrived and Gater gave him the $300,000.00 which he was to use to purchase the hashish. Thereafter, the hashish was purchased and was brought to the house for packing in the sound speaker cabinets. During this period, Combs persuaded Gary Lynn Lickert to rent a U-Haul truck and drive to San Pedro. Lickert loaded ten speaker cabinets on the truck and delivered them to TWA air freight to be sent to London, England.

The ten cabinets, along with other pieces of equipment, were shipped by Raymond Barry Mayo from London to Austria. Mayo then traveled to Austria where he and Hraoui picked up the equipment and delivered it to the house that Gater had rented. Gater, Fry, Mayo, and Hraoui then loaded the ten sound speaker cabinets with hashish and shipped them from Austria to Philadelphia, Pennsylvania.

After this transaction, Fry had $120,000.00 left out of the $300,000.00 sent by Combs to Austria to purchase hashish. Fry gave the remaining money to Gater. The Government claims that appellee Gonsalves instructed Gater to give the money to Kent Giles Snyder.

After the cabinets had been shipped, Gater went back to the United States where he met up with Snyder, Morris, and Kenneth Graham Plinston. Upon arrival in the United States, Gater went first to Brown's house and then to Combs's house. Gater was paid $25,000.00 for his share of this deal from Snyder.

In the latter part of May 1973, Combs asked Harold Adrian Armstrong to take $140,000.00 in cash to London. Combs instructed Armstrong to purchase a special suitcase to carry the money. Gonsalves delivered the $140,000.00 in cash to Armstrong which was to be given to Plinston in London. After delivering the money, Armstrong returned to the United States.

At the end of June 1973, Gater was again instructed to go to Austria to consummate another hashish deal. Accordingly, Gater and Brenda Marie Sibson went to an apartment in Newport Beach where they were met by Brown and Combs. There, Combs gave $260,000.00 cash to Gater to take to Austria.

On July 3, 1973, Klaus Warner met Gater and Sibson in Graz, Austria. Warner gave Gater the keys to a vehicle containing 140 kilograms of hashish, whereupon Gater paid Warner $50,000.00 cash. Gater, Sibson, and Mayo then loaded 420 kilograms of hashish in fiberglass inserts which were placed inside twelve acoustical sound speaker cabinets.

A few days later, Mayo shipped twenty-three pieces of sound equipment, including the twelve speaker cabinets, to Chicago, Illinois, and retrieved the shipment there on July 18. Mayo then shipped the speakers to Las Vegas.

On August 21, 1973, Gater, Sibson, Mayo, and Richard Jonathan Vickers loaded 500 pounds of hashish into sound speaker cabinets in Italy. Thereafter, Vickers and Mayo shipped thirty-four pieces of sound equipment, including the speaker cabinets, to San Francisco. Morris received the shipment at the San Francisco International Airport. On August 31, Combs had Lickert take $297,000.00 in cash to Amsterdam, Holland, and deliver the money to Gater and Dennis Howard Marks.

In early September 1973, Gater, Marks, and others packed 820 pounds of hashish into sixteen sound speaker cabinets. That same day, Allen Richard White shipped twenty-nine pieces of sound equipment, including the sixteen sound speaker cabinets, from Holland to Detroit, Michigan. Instead of being sent to Detroit, however, the cabinets were sent through New York to Las Vegas. It was at this point that the Government began its investigation. On September 13, 1973, a United States Customs dog at John F. Kennedy Airport in New York reacted to an odor being emitted from a large wooden chassis of one of the sound speaker cabinets. United States Customs Inspectors opened the speaker cabinet and found sixty pounds of hashish in the chassis of the speaker. An investigation determined that the speaker cabinet they discovered was one of the twenty-nine pieces of freight destined for Las Vegas.

Investigation further disclosed that the remaining twenty-eight pieces were on a TWA flight which was to arrive in Las Vegas on September 13, 1973, at 12:37 p.m. The shipment of the twenty-eight pieces had originated in Amsterdam and arrived at JFK International in bond shipment. The shipment was consigned to D & N Delivery Corporation, McCarran International Airport, Las Vegas, for delivery to Trans Atlantic Sound, Las Vegas. Special Agent Fowler of the Drug Enforcement Administration (DEA) in New York notified the Special Agent in charge at Las Vegas of these events. Special Agent Harlan Bowe arrived at TWA freight at McCarran International on the afternoon of September 13, 1973. Bowe, other DEA agents, and a United States Customs Agent were directed to a TWA agent who in turn directed the Customs agents to a Pan Am air freight transportation crate. The crate contained the twenty-eight pieces of freight....