U.S. v. Gray

• Decision Date: 26 September 1980
• Docket Number: No. 79-5133,79-5133
• Citation: 626 F.2d 494
• Parties: 6 Fed. R. Evid. Serv. 1245 UNITED STATES of America, Plaintiff-Appellee, v. Billy W. GRAY, Lee Andrew Fennell, Roger Lee Wright, Ronald Cecil Barker and Vance C. Dyar, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 494

626 F.2d 494

6 Fed. R. Evid. Serv. 1245

UNITED STATES of America, Plaintiff-Appellee, v. Billy W. GRAY, Lee Andrew Fennell, Roger Lee Wright, Ronald Cecil Barker and Vance C. Dyar, Defendants-Appellants.

No. 79-5133.

United States Court of Appeals Fifth Circuit.

Sept. 26, 1980.

D. Wayne Childress, Tuscaloosa, Ala. (Court-appointed), for Gray.

Robert F. Clark, Mobile, Ala., for Dyar.

J. B. Sessions, III, Mobile, Ala., for Fennell.

Thomas E. Harrison, Mobile, Ala. (Court-appointed), for Wright.

John R. Martin, Mary J. Wilkes, Atlanta, Ga., for Barker.

Wm. A. Kimbrough, Jr., U. S. Atty., William R. Favre, Jr., Asst. U. S. Atty., Mobile, Ala., for plaintiff-appellee.

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

Before WISDOM, KRAVITCH and POLITZ, Circuit Judges:

POLITZ, Circuit Judge:

Billy Gray, Lee Fennell, Roger Wright, Ronald Barker and Vance Dyar were convicted of: (1) distribution and possession with intent to distribute marijuana, 21 U.S.C. § 841(a)(1); (2) conspiracy to distribute and to possess with intent to distribute marijuana, 21 U.S.C. § 846; (3) importation of marijuana, 21 U.S.C. § 952(a); and (4) conspiracy to import marijuana, 21 U.S.C. § 963. They received concurrent sentences on all counts. They appeal, contending: (1) each defendant may adopt the arguments of the others on appeal, albeit not urged in their briefs; (2) venue was improper; (3) a DEA affidavit supporting a search warrant inadequately established probable cause; (4) there was government misconduct because of entanglement in the criminal scheme and excessive payments to informants; (5) the trial judge improperly limited cross-examination; (6) the jury was erroneously instructed that "slight evidence" was all that was needed for a conviction; (7) the evidence was insufficient to convict Fennell; and (8) the prosecution prejudiced Ronald Barker in its closing arguments. We reverse in part and affirm in part.

Laden with 12,000 pounds of marijuana, the defendants flew into Stennis Field in Mississippi early on the morning of July 24, 1978. They loaded the marijuana onto waiting trucks and drove to somewhere near Mobile, Alabama, where the trucks were searched and they were arrested. They were tried in the U.S. District Court for the Southern District of Alabama.

Two DEA informants, Ed Conn and Joe Haas, provided crucial testimony at trial. Conn had a history of drug smuggling, having been indicted for a 1978 scheme to smuggle 8,000 pounds of marijuana into Thomasville, Georgia. The DEA promised him help with his Thomasville problems in exchange for his cooperation. Conn was paid $25,000 for his work in this case. Haas had worked with the DEA for a period of about 10 years and was paid about $37,000 for his efforts in this case.

I. Adoption of Codefendants' Arguments

On appeal, only Wright followed Fed.R.App.P. 28(i) and adopted his codefendants' arguments by reference in his brief. The other defendants waited until oral argument to adopt their codefendants' contentions. Ordinarily we would limit each defendant's appeal to the issues raised in his brief. However, we have discretion to suspend the Federal Rules of Appellate Procedure "for good cause shown," Fed.R.App.P. 2. Believing it anomalous to reverse some convictions and not others when all defendants suffer from the same error, we consider the arguments to be adopted, except as noted. United States v. Anderson, 584 F.2d 849 (6th Cir. 1978). See also Marcaida v. Rascoe, 569 F.2d 828 (5th Cir. 1978); 9 Moore's Federal Practice P228.02(8) (2d ed. 1980). This adoption does not prejudice the government which had the opportunity to fully brief all issues in response to the various contentions of the defendants.

II. Venue

The defendants claim an abridgement of their Sixth Amendment right to a trial in "the State and district wherein the crime shall have been committed." The marijuana was imported into Mississippi and then transported to Alabama, where the defendants were arrested for violating 21 U.S.C. § 952(a). The defendants contend that the Sixth Amendment requires that the trial be held in the state of importation Mississippi, and not the state of arrest, Alabama. Defendants err.

We are in accord with the decision of our brethren of the Tenth Circuit. United States v. Jackson, 482 F.2d 1167 (10th Cir. 1973), cert. denied, 414 U.S. 1159, 94 S.Ct. 918, 39 L.Ed.2d 111 (1974), wherein it was held that importation of a controlled substance in violation of 21 U.S.C. § 952(a) is a "continuous crime" that is not complete until the controlled substance reaches its final destination point, and that venue is proper in any district along the way. We adopted the reasoning of Jackson in our decision in United States v. Godwin, 546 F.2d 145 (5th Cir. 1977).

III. Fourth Amendment

The defendants contend that the evidence resulting from the search of the tractor-trailer should have been suppressed because the DEA's affidavit for a search warrant, grounded on information from an informant, did not articulate the basis for the claim of reliability of the informant. This contention is without the semblance of merit.

The affidavit stated that the informant had provided reliable information in the past resulting in convictions for drug violations, and set forth information given by the informant telling when the plane carrying the marijuana would arrive at Stennis Field and describing the truck onto which the marijuana would be loaded. This alone would have been enough to sustain the affidavit under Fed.R.Crim.P. 41(a), the past reliability of the informant plus the detailed information given indicating that the informant knew whereof he spoke. United States v. Jenkins, 525 F.2d 819 (6th Cir. 1975). There was additional confirmation of the informant's reliability. The affidavit stated that DEA agents were present at Stennis Field, they saw a plane land there at about the time given by the informant, and saw people unload several bales from the plane into a truck that matched the description given by the informant. The agents' check of the bumper of the truck revealed marijuana seeds. When the informant's data is supported and corroborated by the observation of the affiant, probable cause is established. Marderosian v. United States, 337 F.2d 759 (1st Cir. 1964), cert. denied, 380 U.S. 971, 85 S.Ct. 1328, 14 L.Ed.2d 268 (1965).

IV. Government Misconduct

The defendants contend that the government's conduct was so outrageous as to require reversal of their convictions for failure of due process. United States v. Graves, 556 F.2d 1319 (5th Cir. 1977), cert. denied, 435 U.S. 923, 98 S.Ct. 1485, 55 L.Ed.2d 516 (1978).

Conn and Haas first met Gray at an airplane auction in Missouri. According to the defendants, Haas raised the subject of smuggling to Gray, thereby initiating the drug scheme. Later, Conn offered to provide a plane, but withdrew the offer because the plane was under observation by several government agencies. The defendants then bought their own plane, with Conn providing repair services and the airstrip and Haas providing the crew. Conn and Haas never had any contact with Dyar, Barker, Wright and Fennell.

The defendants organized and ran the operation: they provided the airplane, the money and the sources of supply in Colombia, and they made the arrangements for transportation of the marijuana from Stennis Field. The informants may have suggested the scheme and aided in arranging the air transportation. This does not constitute government misconduct. The providing of essential aid is not misconduct per se. Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976) (government supplied narcotics); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973) (government provides essential ingredient for manufacture of illegal drug). Here the informants merely eased the way for the conspirators. Cf. United States v. Thomas, 567 F.2d 638 (5th Cir. 1978), cert. denied, 439 U.S. 822, 99 S.Ct. 90, 58 L.Ed.2d 114 (government offer, which was never acted on, to supply airplane, crew, and name of foreign supplier was not misconduct). But cf. United States v. Twigg, 588 F.2d 373 (3rd Cir. 1978) (government misconduct found where agent suggested establishment of drug laboratory, provided place, equipment, supplies and know-how, and then ran entire enterprise operation merely assisted by defendants).

The defendants also contend that there was misconduct because the informants were paid excessive amounts of money. Haas was paid about $37,000 for his services and Conn received $25,000. Although high informant fees are and must be suspect, an informant's testimony will not be rejected unless there is evidence that he was promised payment contingent upon conviction of a particular person. United States v. Garcia, 528 F.2d 580 (5th Cir. 1976), cert. denied, 426 U.S. 952, 96 S.Ct. 3177, 50 L.Ed.2d 1190, 429 U.S. 898, 97 S.Ct. 262, 50 L.Ed.2d 182. There is neither allegation nor proof that a contingent fee was promised to either Conn or Haas.

Nor is there misconduct in the offer to help Conn with his Thomasville problems because that promise of help did not depend on whether Conn's testimony played a part in the conviction of a specific person. ¹

There is no merit in defendants' claim of government misconduct warranting dismissal of the indictments.

V. Limitation on Cross-Examination

Conn's testimony lies at the heart of the government's case. The defendants sought to discredit Conn by informing the jury that he had a drug charge pending against him in another airplane smuggling operation in Thomasville, Georgia, and that the DEA had offered him help with that charge in return for his help in this case. Counsel asked several questions about whether Conn had committed a crime in the Thomasville operation. The district judge sustained objections to these questions because Conn had made known his...