U.S. v. Johnson, No. 77-5327

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore TUTTLE, MORGAN and CLARK; CHARLES CLARK; The four men left Key West and sailed to the island of Cozumel off the Yucatan Peninsula where they stayed for several months. Johnson explained that the delay was caused by difficulties with agents in
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Charles A. JOHNSON, Dennis Lee Lipper, Lawrence Jess Storey, Jr., Jesse Roscoe Storey, Roger Mark Schlager and Brent Harelson, Defendants-Appellants.
Docket NumberNo. 77-5327
Decision Date05 July 1978

Page 1347

575 F.2d 1347
UNITED STATES of America, Plaintiff-Appellee,
v.
Charles A. JOHNSON, Dennis Lee Lipper, Lawrence Jess Storey,
Jr., Jesse Roscoe Storey, Roger Mark Schlager and
Brent Harelson, Defendants-Appellants.
No. 77-5327.
United States Court of Appeals,
Fifth Circuit.
July 5, 1978.

Page 1350

Carl E. Stewart, Newport Beach, Cal., for Lipper.

James P. Judkins, Tallahassee, Fla., for J. Storey & L. Storey.

William L. Camper, Tallahassee, Fla., for Schlager.

Richard B. Mazer, San Francisco, Cal., John L. Pollok, New York City, for Harelson.

Nickolas P. Geeker, U. S. Atty., Pensacola, Fla., Robert J. Erickson, Joseph S. Davies, Jr., Dept. of Justice, Washington, D. C., for plaintiff-appellee.

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

Page 1351

Before TUTTLE, MORGAN and CLARK, Circuit Judges.

CHARLES CLARK, Circuit Judge:

The six appellants in this case were named in five counts of an indictment charging them with crimes related to marijuana transactions occurring between July 1971 and December 1974. Count I charged all appellants with conspiracy to import marijuana in violation of 21 U.S.C. §§ 952 and 963. Counts II, III, and IV charged specific substantive acts of importation, violations of 21 U.S.C. § 952(a). Count V charged all appellants with participating in a continuing criminal enterprise, a violation of 21 U.S.C. § 848. At trial Count II was dismissed as to all appellants for failure to prove venue. At the close of the government's case other counts were dismissed as to various defendants. The jury found Charles Johnson guilty on all of the remaining four counts, that is, conspiracy to import marijuana, two substantive acts of importation, and continuing criminal enterprise. Dennis Lipper was found guilty of conspiracy to import marijuana and one substantive count. Larry Storey was convicted only for conspiracy to import marijuana. Jesse Storey was also convicted only of conspiracy to import marijuana. Roger Schlager was convicted of conspiracy to import marijuana and one act of importation. Brent Harelson was convicted of conspiracy to import marijuana and one substantive count. A seventh defendant, Kenneth Vance, was acquitted of conspiracy after all other counts against him had been dismissed.

Many of appellants' arguments relate to the sufficiency of the evidence or to evidentiary rulings made by the trial court. To provide a foundation for our discussion of those arguments, we will first relate the facts in the light most favorable to the government and in some detail. At trial the principal government witness was John de Pianelli, though other witnesses corroborated portions of his testimony. According to de Pianelli, in the late spring of 1971 a mutual friend arranged a meeting between him and Charles Johnson at which the importation of marijuana was discussed. Later in 1971 de Pianelli and Harelson met with Johnson in California to provide the necessary "front" money for a prospective importation venture. At that meeting Johnson explained that through a partner in Colombia he had arranged for the marijuana to be shipped to the United States. They originally thought that the marijuana would arrive in December 1971, but the arrival was delayed until January 1972. Harelson, who was in California, telephoned de Pianelli, in Maryland, to tell him of the new date. Harelson and de Pianelli met Johnson in Pensacola, Florida, after the load of marijuana arrived. The three men drove to Interarity Point, Florida, where Johnson had rented a house, using the name Charles Storey. The rental was confirmed by the testimony of the owner of the house. After receiving their shares of the marijuana, de Pianelli and Harelson drove to Maryland where they distributed the marijuana. Later de Pianelli was told that Lipper and Roger Schlager also received shares of this marijuana.

In the spring of 1972, de Pianelli and Harelson once again met with Johnson in California and gave him additional front money to finance a second importation of marijuana. Later, Harelson telephoned de Pianelli from California to confirm the date for the arrival of the marijuana. de Pianelli and Harelson met in Tallahassee, Florida, and drove to the Interarity Point house where Lipper, Schlager, George Driver, David Barca, and Johnson were already present. de Pianelli recalled that he arrived about five days before hurricane Agnes struck the coast, on June 19. Johnson explained that the load of marijuana was on the way from South America by boat but that it was to be delivered about nine miles away at a house which he had rented in Orange Beach, Alabama, because of his fear that repeated usage of the Interarity Point house would attract attention. During the wait for the marijuana to arrive, de Pianelli also discussed the timing of the arrival and the kind of marijuana with Lipper, Schlager, Harelson, Driver, and Barca.

Page 1352

de Pianelli and Harelson drove to the house at Orange Beach to await the arrival of the marijuana. Some days later, in the early afternoon, de Pianelli saw a skiff coming toward the Orange Beach residence. de Pianelli and Harelson helped to pull the skiff ashore, moor it, and cover it. On the skiff were J. Moen, Gary Smith, and Gary Vance. Moen told Harelson and de Pianelli that they had come from South America on board a vessel named "Decatur," which was captained by Larry Storey, Sr., and had a crew of one or both of his sons, Larry Storey, Jr., and Jesse Storey, and Mathew Moen. After the skiff used to make the run to shore had been hidden, the men drove to the Interarity Point house to inform Schlager, Lipper, Barca, and Driver of the boat's arrival.

That night the men drove back to the Orange Beach house to unload the skiff. While Johnson supervised the weighing and allocation of the marijuana, everyone else helped in unloading the marijuana, most of which was packed in burlap bags. After the marijuana had been separated, Johnson told Schlager, Lipper, Driver, Harelson, and de Pianelli that there would soon be another importation. The individuals then left to distribute the marijuana.

As support for de Pianelli's testimony the government introduced aerial photographs of the house at Interarity Point. de Pianelli testified that he recalled a plane flying low over the house while they were there. He also identified the vehicles in the photograph as belonging to Johnson, Schlager, Lipper, and Moen.

Later in the summer de Pianelli met with Johnson in California to give him additional front money to finance another shipment of marijuana. In December 1972, de Pianelli and Harelson went to Crawford's Fishing Camp near St. Marks, Florida, where Johnson had told Harelson he would meet them. The owner of the camp testified that he rented it to Charles Storey for the month of December 1972. Schlager and Lipper were at the fishing camp when de Pianelli and Harelson arrived; Johnson, Driver, Barca, and J. Moen arrived later. Johnson asked de Pianelli and Driver to go to Pensacola and return with the skiff which had been modified since its use in bringing the marijuana ashore at Orange Beach. In the interim it had been repainted at a boatyard and fitted with a larger gas tank. de Pianelli recalled that the boatyard owner's name was Blanchard. Blanchard later testified that Charles Storey had brought the skiff to his boatyard and had requested certain modifications. When asked if he could identify Charles Storey in the courtroom, Blanchard pointed to Charles Johnson. Blanchard also identified the piece of paper on which the modifications had been drawn by the man claiming to be Charles Storey. Blanchard's records showed that the boat had left on December 18, 1972, without the modifications being completed. The owner of a marina at St. Marks identified the same boat as the one moored by Charles Johnson at the marina from December 1972 through August 1973. This marina owner also correctly identified Charles Johnson at the trial. Both marina owners had records that listed the address of the house on Interarity Point which Johnson had rented as the address of the owner of the boat.

After the skiff arrived at St. Marks, Schlager and Lipper took it out into the Gulf of Mexico on several nights in an effort to contact a vessel, the Aurora, carrying the marijuana. Lipper and Schlager discussed their intentions with Harelson, Barca, and Driver as well as with de Pianelli. While they were at Crawford's Fishing Camp they often discussed the fact that the marijuana was coming from Colombia, which they anticipated would assure a high quality. About ten days after de Pianelli's arrival at St. Marks, Schlager and Lipper returned with the marijuana. de Pianelli related how he and the others formed a human chain to unload the bales of marijuana from the skiff. Again the marijuana was weighed, using the same scale as at Orange Beach, and distributed among the various men.

The owner of a marina at Alligator Point, southwest of St. Marks, testified that the

Page 1353

Aurora had been docked at his marina from December 1972 to April 1973. In court, he identified Dennis Lipper as the man who had been the captain of the boat. He explained that he was told that Charles Johnson owned the boat, though he could not identify him in the courtroom. He also testified that the men on the boat once told him that they were taking it to St. Marks. The owner of a marina at St. Marks identified Johnson as the man to whom he had sold gasoline in December 1972.

In the spring of 1973, Johnson, Lipper, Schlager, and de Pianelli met at the house at Interarity Point to discuss yet another shipment of marijuana. Johnson explained that between five and six thousand pounds of marijuana was in storage in Colombia and that J. Moen was making the necessary arrangements to send it by ship from Colombia into the Gulf of Mexico where it would be transferred to another vessel for transportation...

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127 practice notes
  • U.S. v. Stoner, No. 94-6377
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • October 10, 1996
    ...States, 692 F.2d 223, 226 (2d Cir.1982), cert. denied, 462 U.S. 1131, 103 S.Ct. 3111, 77 L.Ed.2d 1366 (1983); United States v. Johnson, 575 F.2d 1347, 1354 (5th Cir.1978), cert. denied, 440 U.S. 907, 99 S.Ct. 1213, 1214, 59 L.Ed.2d 454 (1979), I have found no cases holding that a conspiracy......
  • U.S. v. Bascaro, Nos. 82-5547
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • October 1, 1984
    ...were amply supported by Abbey's previous testimony concerning Villanueva's financial control of the enterprise. United States v. Johnson, 575 F.2d 1347 (5th C. Double jeopardy and Villanueva's convictions for both continuing criminal enterprise and underlying conspiracy counts. In affirming......
  • United States v. Zavala, No. CR-83-0154 RFP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 19, 1985
    ...the heads of highly structured drug distribution organizations. See, e.g., United States v. Sinito, supra; United States v. Johnson, 575 F.2d 1347, 1358 (5th Cir. 1978), cert. denied, 440 U.S. 907, 99 S.Ct. 1213, 59 L.Ed.2d 454 (1979). But it is just as clear that the CCE applies to less st......
  • Williams v. United States, Case No. 2:13-cv-1124
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • June 23, 2015
    ...526 (9th Cir.1984) (no legal requirement that specific violations underlying series be listed in indictment); United States v. Johnson, 575 F.2d 1347, 1356 (5th Cir.1978) (indictment sufficient because it charged in the words of the statute that the defendant and others had participated in ......
  • Request a trial to view additional results
127 cases
  • U.S. v. Stoner, No. 94-6377
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • October 10, 1996
    ...States, 692 F.2d 223, 226 (2d Cir.1982), cert. denied, 462 U.S. 1131, 103 S.Ct. 3111, 77 L.Ed.2d 1366 (1983); United States v. Johnson, 575 F.2d 1347, 1354 (5th Cir.1978), cert. denied, 440 U.S. 907, 99 S.Ct. 1213, 1214, 59 L.Ed.2d 454 (1979), I have found no cases holding that a conspiracy......
  • U.S. v. Bascaro, Nos. 82-5547
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • October 1, 1984
    ...were amply supported by Abbey's previous testimony concerning Villanueva's financial control of the enterprise. United States v. Johnson, 575 F.2d 1347 (5th C. Double jeopardy and Villanueva's convictions for both continuing criminal enterprise and underlying conspiracy counts. In affirming......
  • United States v. Zavala, No. CR-83-0154 RFP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 19, 1985
    ...the heads of highly structured drug distribution organizations. See, e.g., United States v. Sinito, supra; United States v. Johnson, 575 F.2d 1347, 1358 (5th Cir. 1978), cert. denied, 440 U.S. 907, 99 S.Ct. 1213, 59 L.Ed.2d 454 (1979). But it is just as clear that the CCE applies to less st......
  • Williams v. United States, Case No. 2:13-cv-1124
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • June 23, 2015
    ...526 (9th Cir.1984) (no legal requirement that specific violations underlying series be listed in indictment); United States v. Johnson, 575 F.2d 1347, 1356 (5th Cir.1978) (indictment sufficient because it charged in the words of the statute that the defendant and others had participated in ......
  • Request a trial to view additional results

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