U.S. v. Kessler, 74--4190

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation530 F.2d 1246
Docket NumberNo. 74--4190,74--4190
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Murray Morris KESSLER, Richmond C. Harper, Adler B. Seal, James M. Miller,Jr., and Joseph Mazzuka, Defendants-Appellees.
Decision Date03 May 1976

Gerald J. Gallinghouse, U.S. Atty., Jimmy L. Tallant, Sp. Atty., New Orleans Strike Force, U.S. Dept. of Justice, J. Phillip Krajewski, New Orleans, La., Mervyn Hamburg, Sidney M. Glazer, App. Sec., Crim. Div., Dept. of Justice, Washington, D.C., for plaintiff-appellant.

Murray Morris Kessler, E. Howard McCaleb, New Orleans, La. (Court-appointed), for Kessler.

Ralph Brewer, Baton Rouge, La. (Court-appointed), for Seal.

William L. Crull, New Orleans, La. (Court-appointed), for Miller.

A. J. McNamara, Metairie, La. (Court-appointed), for Mazzuka.

Donald Scott Thomas, Jr., Austin, Tex., for Harper.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GEWIN and AINSWORTH, Circuit Judges, and MARKEY *, Chief Judge.

MARKEY, Chief Judge:

The Government appeals an order of the United States District Court for the Eastern District of Louisiana which dismissed a two-count indictment charging the five defendants 1 with criminal conspiracy 2 and criminal attempt to export a military explosive. 3 The appeal is based on 18 U.S.C. § 3731. 4


The five defendants (hereafter 'the defendants') were arrested on July 1, 1972. A first indictment was returned December 21, 1972 in the Alexandria Division of the Western District of Louisiana. Arraignment in Alexandria occurred on January 15, 1973. Various discovery and pretrial motions were filed in that court, including a motion to dismiss for lack of a speedy trial.

On March 30, 1973 a second indictment, covering the same alleged offenses, was filed in the Shreveport Division of the Western District of Louisiana. The Alexandria indictment was dismissed on the Government's motion. Arraignment under the second indictment was held May 4, 1973 in Shreveport. Various discovery and pretrial motions were filed in that court, again including a motion to dismiss for lack of a speedy trial.

Several of the defendants filed motions for a change of venue to the Eastern District of Louisiana at New Orleans. On July 11, 1973 the case was transferred to New Orleans where various discovery and pretrial motions were filed anew. On November 28, 1973 the District Court denied a third motion to dismiss for lack of a speedy trial. On February 8, 1974 the case was set for a jury trial on June 24, 1974.

Trial commenced on the appointed day. The Government's principal witnesses were Alfonso Cortina Rodriguez (hereafter 'Cortina'), an agent of the Mexican Government, and Cesario Diosdado, a United States undercover agent. A summary of their testimony follows.

Cortina testified concerning statements and acts of two residents of Mexico, Jaime Fernandez, the absent unindicted coconspirator, and Francisco 'Paco' Flores, the absent nonarrested defendant (see note 1, supra). His testimony concerned statements made to him or in his presence at various times and places during the course of the alleged criminal conspiracy dating from its genesis on February 6, 1972 when, Cortina said, Fernandez first approached him in Mexico City and asked if he knew 'who might be interested in buying some weapons that were for sale in the United States.' Cortina testified that he met Fernandez the next day and that '(h)e told me that he had the weapons, and that he would call his friend, Paco (Flores), at Piedras Negras (Mexico), to know about the price.'

Defendants immediately objected on the grounds that such testimony violated the hearsay rule, that the declarant (Fernandez) was not and had not been available for cross-examination, and that the right of confrontation was being violated. The trial judge overruled these objections and stated '(w)e have to start somewhere in a conspiracy trial.' The jury was cautioned that the out-of-court statements of Fernandez were 'being admitted subject to the evidence establishing a conspiracy' because '(i)f a conspiracy is shown beyond a reasonable doubt by the evidence, then any statements made by a conspirator, is admissible, if made in furtherance of the conspiracy.'

Cortina then testified that he met Fernandez again on April 24, 1972 at a garage in Mexico City at which time Fernandez opened the trunk of a car and took out an AR--180 rifle 5 stating this was 'an example' of the weapons. 6 Cortina further stated that during their conversation on April 24, 1972, Fernandez asked him for assistance in obtaining the release of Garcia, a friend of Fernandez, who was in a United States federal penitentiary. Cortina testified: 'He (Fernandez) said he had some American friends in the (U.S.) Embassy who wanted me (Cortina) to help him with a friend (Garcia) who was in prison.' Cortina then obtained 2,000 pesos from his superior officer and the next day purchased the AR--180 from Fernandez with this money, although Fernandez was willing to let Cortina take the weapon without payment. Over a defense objection, the AR--180 was admitted in evidence (Government Exhibit No. 3).

On May 26, 1972 Cortina introduced United States undercover agent Diosdado The next day Diosdado and Cortina met at the residence of Fernandez and Fernandez placed a telephone call to Flores, who lived in Piedras Negras, Mexico. Fernandez and Diosdado (who was introduced as the 'client') talked to Flores. Flores was reluctant to say 'anything' over the telephone, and he told them to come to Eagle Pass, Texas. Diosdado made a tape recording of this telephone conversation, and Fernandez was aware of this tape recording. Fernandez also told Diosdado that he had made tape recordings of earlier telephone conversations with Flores regarding arms.

to Fernandez in Mexico City. Diosdado was apparently introduced under the assumed name of 'Carlos Diaz,' and described as a United States 'official' who could assist Fernandez in the Garcia matter.

On May 29, 1972 Fernandez, Cortina, and Diosdado flew from Mexico City to San Antonio, Texas, where they were met by defendant Hagler (see note 1, supra). The next day the trio met with Flores and a meeting was held at a hotel in Eagle Pass, Texas where defendant Harper, owner of the hotel, was introduced to Cortina, Diosdado and Fernandez. According to Cortina, some of the details 7 of an arms sale were discussed at this meeting, but the weapons were said to be located in New York City. According to Diosdado, he obtained a 3-day Letter of Credit from a San Antonio bank then he and Flores made an airplane trip to New York City on June 2, 1972, where they met defendant Kessler. Kessler drove to a steel company plant located in Newark, New Jersey. He told Diosdado that 'unfortunately the arms were not there any longer' and that 'the arms had been moved to Virginia.' Nevertheless, Kessler assured Diosdado that the transaction would be completed by June 30, 1972. On June 17, 1972, Kessler met Diosdado in Mexico City and further discussed the weapons which were available. For the first time, Kessler stated that Composition C--4 plastic explosive was available also. Kessler informed Diosdado that the payment for the transaction was to be in the form of $100 bills, rather than by Letter of Credit which defendant Harper had originally insisted upon.

Diosdado testified that on June 28, 1972, he, Cortina, and two other undercover United States agents met Kessler at the airport in Vera Cruz, Mexico. Kessler introduced them to defendant Seal, a pilot. They drove to the town of Minatitian, Mexico, where there was a small airport which was to be used for the landing of the airplane bringing the arms from the United States. The landing strip was inspected by defendant Seal who took photographs of the surrounding area.

Diosdado then testified that he and the two other undercover agents met Kessler late in the evening on June 30, 1972, at a motel near New Orleans, Louisiana. Kessler introduced 'Carlos Diaz' (Diosdado) to defendant Mazzuka. Seal then arrived and stated that he would use his private airplane to fly to Shreveport, where the C--4 explosive was warehoused. Kessler stated to Diosdado that a payment of $100,000 was needed to obtain the release of the explosive. Diosdado, however, refused to make any payment because he 'had not as much as seen even a rifle yet, let alone all the other arms they had been talking about.'

Then, according to Diosdado, they went out to the motel parking lot where Mazzuka had parked a rental van truck. Mazzuka opened the back end of the van and Seal took out some electric blasting caps or detonators and some rolls of 'prima cord.' Diosdado indicated satisfaction with what he saw in the van. Seal gave Mazzuka some expense money to drive the van to the Shreveport airport, and then Mazzuka drove away.

Diosdado testified that he then returned to his motel room where he telephoned other law enforcement officers to inform them of the plans to deliver the C--4 explosive to a waiting airplane in Shreveport. The next day, July 1, 1972, the defendants were arrested.

The foregoing testimony of Agents Cortina and Diosdado, along with that of several minor prosecution witnesses, consumed four trial days. 8 At the beginning of the fifth trial day (June 28, 1974) before the jury came in, defendant Seal moved for a mistrial asserting, inter alia, violation of the Sixth Amendment right of confrontation and cross-examination caused by the absence of Fernandez, violation of the hearsay rule because Fernandez was not a coconspirator but was actually 'working for the government,' and violation of 'the right to a fair and impartial jury trial.'

In opposition, Government trial counsel argued that Fernandez was a coconspirator until shortly after Cortina received the AR--180 from him, that he had...

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