U.S. v. Harris
| Decision Date | 08 August 1990 |
| Docket Number | No. 88-6212,88-6212 |
| Citation | 908 F.2d 728 |
| Parties | 30 Fed. R. Evid. Serv. 1197 UNITED STATES of America, Plaintiff-Appellee, v. Albert HARRIS, a/k/a Bert, Lloyd Frink, Steven Bucchiere, Philip Cardilli, a/k/a Shaver, Jesus Haim, a/k/a Waterbucket, Alp Martin, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Robert P. Foley, Foley and Colton, P.A., West Palm Beach, Fla., for Frink.
Leonard J. Cooperman, Miami, Fla., for Bucchiere.
S. Skip Taylor, Miami, Fla., Nathan Z. Dershowitz, Dershowitz & Eiger, P.C., New York City, for Cardilli.
Hilliard Moldof, Whitelock & Moldof, Ft. Lauderdale, Fla., for Haim.
Lori Barrist, Asst. Federal Public Defender, Miami, Fla., for Martin.
Michael E. Runowicz, Linda Collins Hertz, Lynne W. Lamprecht, Anne Ruth Schultz, Asst. U.S. Attys., Miami, Fla., for the U.S.
Appeal from the United States District Court for the Southern District of Florida.
Before HATCHETT and ANDERSON, Circuit Judges, and DYER, Senior Circuit Judge.
In this multiple count and multiple defendant drug importation case, we reverse the convictions on one appellant, but affirm on at least one count on the other appellants.
In 1982, Philip Cardilli, along with co-conspirators James Coley, Michael Munday, Daniel Sims, Richard Bahmann, and Frank Bahmann, devised a plan to import cocaine into the United States. The conspiracy, known as the "Munday/Coley organization," between 1983 and 1986, successfully completed many importations of cocaine and marijuana. The plan called for Coley and Munday to fly a Piper Navajo to Stella Maris, in the Bahamas. Coley and Munday would dress in uniforms to resemble charter pilots and bring women including Joyce Coley, Lisa Cardilli, and Nancy Sims, to stay on the island as if on vacation to give a legitimate appearance to the trip. Coley and Munday then would fly the aircraft to Colombia and obtain a load of cocaine. Upon returning to the Bahamas, they usually dropped the drugs into the waters of Scrub Cay where Cardilli stowed them aboard small boats. A second plane, a scout, accompanied the boats either to Nassau or to the United States to detect law enforcement activities. Munday and Coley would then return to Stella Maris in the Navajo and fly the women back to the United States. The government presented evidence of at least nine successful importations of approximately 400 kilograms of cocaine per trip under this plan.
In August, 1983, some members of the conspiracy assisted an unidentified man known as "Uncle Bill" in off-loading marijuana from a freighter in the Bahamas. Frank Bahmann flew a plane over the area to search for the freighter while Cardilli assisted in retrieving the bales of marijuana which were thrown out of the freighter. On the evening of the day when the drugs were off-loaded, Frank Bahmann saw Cardilli, Daniel Sims, Bill Cossin, a man named Vince, and Bucchiere enter the restaurant where Bahmann was having dinner with Nancy Sims. Bahmann testified that Cardilli, Sims, Cossin, Vince and Bucchiere were all "dirty, scratched up," and "disheveled." Danny Sims told Bahmann that they had unloaded the freighter and put the marijuana on an island. It took Cardilli three separate trips to bring the entire load to the United States.
In 1985, the conspiracy devised a new scheme which bypassed the Bahamas. Under the new scheme, drugs were flown directly to "the ranch," located near Lakeland, Florida. In Lakeland, the conspiracy employed several people, including Martin, to act as "lookouts," to warn co-conspirators not to land the plane if law enforcement personnel were nearby. The conspiracy's activities ended in September of 1986 when law enforcement agents intercepted a plane after it landed at the Lakeland ranch.
A grand jury returned a twenty-eight count indictment against thirty co-defendants associated with the conspiracy. The counts included continuing criminal enterprise, 21 U.S.C. Sec. 848, violation of the Travel Act, 18 U.S.C. Sec. 371, conspiracy to import controlled substances, in violation of 21 U.S.C. Sec. 963, and a variety of counts for the importation of cocaine and the importation of marijuana, in violation of 21 U.S.C. Sec. 952(a). Eighteen defendants entered guilty pleas; six remained at large at the time of the appellants' trial; only the six appellants went to trial.
The jury convicted Harris of conspiracy to violate the Travel Act, conspiracy to import controlled substances, and two counts of importing cocaine, but acquitted Harris on one count of importing cocaine and one count of importing marijuana.
The jury convicted Frink of conspiracy to import controlled substances and one count of importing cocaine, but acquitted Frink of conspiracy to violate the Travel Act.
The district court granted Bucchiere's motion for judgment of acquittal on one count of importing cocaine. The jury convicted Bucchiere on one count of importing marijuana, and acquitted him on three other counts of importing marijuana.
The jury convicted Cardilli of operating a continuing criminal enterprise, conspiracy to violate the Travel Act, conspiracy to import controlled substances, three counts of importing cocaine, and three counts of importing marijuana. The jury acquitted Cardilli on one count of importing marijuana.
The jury convicted Haim of operating a continuing criminal enterprise, conspiracy to violate the Travel Act, and three counts of importing cocaine.
The district court granted Martin's motion for a judgment of acquittal on two counts of importing cocaine. The jury convicted Martin of continuing criminal enterprise, conspiracy to violate the Travel Act, and three counts of importing cocaine, but acquitted him of two other counts of importing cocaine.
On the second day of trial, the court took testimony that during a lunch break, one One of the same jurors later was heard to say from the jury box "do it to him good" as a Drug Enforcement Agency agent was about to testify. The defense again moved that the juror be excused or that the court grant a mistrial. The district court denied the motion.
juror was overheard telling another juror that "these guys sitting across from us think they're going to get off on this." The defense asked that the two jurors be examined and also moved that either the two jurors be excused or that a mistrial be granted. The court denied the motion and without repeating the comment, asked the jury as a group whether "any juror has made any kind of decision up to this point that he or she could not keep a completely open mind until all of the evidence is in, and until the case has been explained to you." No juror responded affirmatively and the trial continued
CONTENTIONS OF THE PARTIES
All appellants contend that the district court failed to adequately investigate the alleged incidents of juror misconduct, and that the evidence is insufficient to prove their guilt beyond a reasonable doubt. Martin contends that the district court erred in denying his motion for severance. Bucchiere and Harris contend that the district court erred in admitting the declarations of co-conspirators.
Cardilli raises the following contentions: (1) the district court improperly instructed the jury on the continuing criminal enterprise charge; (2) the district court erred in excluding impeachment testimony; (3) the district court improperly answered a jury question regarding Federal Bureau of Investigation reports; (4) the district court erred in denying his motion for a Byrd severance; (5) the district court improperly allowed the trial to proceed during his absence; and (6) the district court improperly ordered separate convictions and sentences for the conspiracy and continuing criminal enterprise counts.
ISSUES
The issues presented are: (1) whether the district court abused its discretion in investigating the alleged incidents of juror misconduct; (2) whether sufficient evidence supports the convictions; (3) whether the district court erred in denying Martin's motion for severance; (4) whether the district court erred in admitting declarations of co-conspirators; (5) whether the district court properly instructed the jury on the continuing criminal enterprise charge; (6) whether the district court erred in excluding impeachment testimony; (7) whether the district court properly answered the jury's question regarding FBI reports; and (8) whether the district court erred in denying Cardilli's motion for a Byrd severance.
DISCUSSION
The district court has broad discretion in choosing the investigative procedure to be used in checking for juror misconduct and only abuse of that discretion will constitute error. United States v. Caldwell, 776 F.2d 989, 997 (11th Cir.1985). Juror misconduct concerning outside influences must be fully investigated to determine if any misconduct actually occurred and whether or not it was prejudicial. United States v. Brantley, 733 F.2d 1429, 1439 (11th Cir.1984), cert. denied, 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985). Failure to hold a hearing in these cases constitutes an abuse of discretion and is thus reversible error. United States v. Chiantese, 582 F.2d 974, 979 (5th Cir.1978), cert. denied, 441 U.S. 922, 99 S.Ct. 2030, 60 L.Ed.2d 395 (1979). 1
When, however, the alleged juror misconduct is based on statements jurors made which were not caused by media publicity or other outside influences, the court may use its discretion in deciding whether to interrogate the jurors. Grooms v. Wainwright, 610 F.2d 344, 347-48 (5th Cir.), cert. denied, 445 U.S. 953, 100 S.Ct.
1605, 63 L.Ed.2d 789 (1980). In United States v. Caldwell, 776 F.2d 989, 998 (11th Cir.1985), the court found that "[t]he more speculative or unsubstantiated the allegation of misconduct, the less the burden to
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