U.S. v. Khoury

• Citation: 901 F.2d 948
• Decision Date: 21 May 1990
• Docket Number: No. 86-5175,86-5175
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George M. KHOURY, Howard Kluver, David W. West, Louis H. Chippas, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 948

901 F.2d 948

58 USLW 2710

UNITED STATES of America, Plaintiff-Appellee, v. George M. KHOURY, Howard Kluver, David W. West, Louis H Chippas, Defendants-Appellants.

No. 86-5175.

United States Court of Appeals, Eleventh Circuit.

May 21, 1990.

As Amended June 7, 1990.

Michael E. Gelety, Ft. Lauderdale, Fla. (Court-appointed), for Kluver.

Leonard J. Cooperman, Ferguson & Ferguson, Miami, Fla. (Court-appointed), for Chippas.

Bonnie Phillips Del Corral, Coconut Grove, Fla. (Court-appointed), for West.

George M. Khoury, Eglin Air Force Base, Fla., pro se.

Dexter W. Lehtinen, U.S. Atty., Linda Collins-Hertz, Dawn Bowen, Asst. U.S. Attys., Miami, Fla., for the U.S.

Appeal from the United States District Court for the Southern District of Florida.

Before FAY and KRAVITCH, Circuit Judges, and THOMPSON ^*, District Judge.

KRAVITCH, Circuit Judge:

INTRODUCTION

Various drug-related conspiracy, aiding and abetting, and Travel Act offenses are involved in this multi-defendant methaqualone importation case. Appellants raise a multitude of claims, some with merit, some without: the jury voir dire, sufficiency of

the evidence, variance between indictment and proof, coconspirator hearsay, severance, an inventory search, the competence of a government witness, a witness' invocation of his fifth amendment right to remain silent, ineffective assistance of counsel, an alleged Brady violation, and the Speedy Trial Act. The government raises the propriety of special parole sentences given by the district court.

BACKGROUND

Joseph Vershish had some experience with the importation business, having imported coupons to Haiti during the 1980s with the assistance of Serge Alexis, a Haitian lawyer. In July 1987, Vershish initiated a venture to import methaqualone powder from Hong Kong to Haiti via Canada, thus avoiding the violation of any United States drug laws. In Haiti, the powder was to be mixed by machine and pressed into pills. Vershish enlisted the aid of Joseph Candella, an electrician who invested $6,000 to fund Vershish's trip to Hong Kong. Candella was to modify the motors on the machinery so that the machines could run on Haitian electrical current.

Vershish traveled to Hong Kong and arranged delivery to Canada by cargo freight a shipment of methaqualone, in green barrels clearly marked methaqualone. While awaiting the arrival of the methaqualone, in September 1981 Vershish contacted Bob Armstrong, a pilot, and presented documents reflecting that Serge Alexis' company had a contract to pay for a seventy-five hour flight. The same month, Vershish and Candella examined some chemical mixing machinery in Florida.

During the following months, David West and his brother-in-law Louis Chippas traveled throughout New England, investigating warehouse space, with West occasionally using an alias and representing himself as working for a novelty item manufacturing concern. Vershish, Candella, West, and Chippas met with Ray (last name unknown), who Vershish said was the chemist who, assisted by George Khoury, would make the pills. The equipment was subsequently moved to another storage location in New England, after being inspected by Ray. There were various meetings between West, Chippas, Khoury, and Vershish during this time, documented by hotel and travel receipts and Candella's testimony. Meanwhile, storage charges were accruing on the methaqualone barrels in bonded storage in Halifax, Canada, and AirCanada contacted Howard Kluver in an attempt to reach Alexis. Kluver denied any knowledge of the goods in storage.

The plan now, according to Vershish, was to load the methaqualone into the plane in Canada, offload the powder in Maine, reload empty boxes into the plane, and deliver the empty boxes to Haiti as a ruse to cover the importation into the United States. Candella, Chippas, and West scouted the Maine airstrip, and Armstrong, an experienced drug smuggler, agreed to make the flight for $250,000. There was police surveillance in Maine and Canada, however, and as a result the importation attempt was abandoned. There was also concern that a "bug" had been planted in the methaqualone barrels.

Armstrong testified he met with Alexis and Kluver in Ft. Lauderdale in November 1982 to discuss the failure of the Canada importation. According to Armstrong, Kluver said he had a methaqualone connection in China, and Alexis said he could arrange for financing.

In December 1982, Armstrong was arrested and became a government informant, taping subsequent conversations with Alexis, who wanted to reorganize the methaqualone importation from Canada, or to bring in another shipment. DEA agent Simpkins, posing as a buyer, brought up reactivating the Canada transaction, but Alexis nixed the idea because there was too much "heat." Alexis said he would speak to Kluver who had expertise and was trustworthy.

In March 1984, the indictment came down charging Chippas, West, Khoury, Kluver, Alexis, Vershish, and Williams with various narcotics offenses. All seven defendants were charged in counts one, two, three, and four with: conspiracy to import methaqualone into the United At trial the thrust of the defense case was that there was a legitimate plan to import methaqualone into Haiti without violating United States law. Several defendants contended they were innocent dupes who thought they were assisting a legitimate enterprise. The jury, however, believed the government's evidence.

States, in violation of 21 U.S.C. Sec. 963; conspiracy to possess methaqualone with intent to distribute, in violation of 21 U.S.C. Sec. 846; conspiracy to create a counterfeit controlled substance, that is, methaqualone tablets manufactured to resemble pharmaceutical quaaludes, in violation of 21 U.S.C. Sec. 846; and aiding and abetting the attempted importation of methaqualone, in violation of 21 U.S.C. Sec. 963 and 18 U.S.C. Sec. 2. The defendants were also charged in various counts with violations of the Travel Act, in violation of 18 U.S.C. Secs. 1952 and 2.

Vershish was convicted on all counts with which he was charged. West was convicted on the first four counts and three Travel Act violations, but was acquitted on the fourth Travel Act violation charged. Khoury and Chippas were also convicted on the first four counts. In addition, Chippas received a guilty verdict on three Travel Act violations while Khoury was found guilty of one Travel Act violation. Kluver was convicted on the three conspiracy counts, but acquitted of aiding and abetting.

Neither Alexis, Williams, nor Vershish is an appellant: Williams was a fugitive at the time of trial; Alexis entered a guilty plea; Vershish dismissed his appeal.

DISCUSSION

I. THE JURY VOIR DIRE

Khoury and Kluver both allege that they were denied their right to a fair and impartial jury. During voir dire of the panel, one juror said that her son had been charged with a crime and murdered in a drug-related incident. The juror subsequently began to cry in the presence of the rest of the panel, and defense counsel moved to strike the entire panel because of the prejudicial impact of her statements. The court, although striking the juror for cause, refused to strike the entire panel, and instructed the remaining jurors that the statements made during voir dire were not evidence and had "nothing to do with the case.... Anything that is said by anyone here should not in any way affect you or if it does, it's only to all of the parties, the lawyers in the room [sic], that you make it known to us immediately and you should not let anything affect you."

Whether or not to strike a single juror or the entire panel "for cause" is committed to the discretion of the district court. The party challenging the refusal "must demonstrate that the juror in question exhibited actual bias: That is, either an express admission of bias, or proof of specific facts showing such a close connection to the circumstances of the case that bias must be presumed." Ward v. United States, 694 F.2d 654, 665 (11th Cir.1983). The defendants made no such showing in this case. United States v. Tegzes, 715 F.2d 505 (11th Cir.1983) supports the district court's refusal to strike the panel. In Tegzes, a juror, in the presence of the panel, stated that her youngest son had "OD"ed before his eighteenth birthday. She was stricken for cause, and the district court refused defense motions to strike the entire panel. This court approved the district court's actions, noting that a comment such as the one at issue

did not constitute an opinion concerning the guilt or innocence of the defendants, nor did it relate to knowledge about the facts, parties, or witness involved.... Appellants' suggestion that mere awareness of the adverse consequences of crime induces bias toward the defendant is highly speculative and falls far short of the potential actual prejudice which would mandate additional voir dire.

715 F.2d at 508.

The jurors in this case took their oath, and absent evidence to the contrary, we must presume that they were fair and impartial, as indeed they swore to be. ¹ The

defendants had a fair and impartial jury as required by the constitution.

II. VARIANCE

Khoury and Kluver contend that there was a material variance between the conspiracies alleged in counts one and two and the proof at trial. ² Count one alleged a conspiracy to import methaqualone beginning in July 1981 and continuing until March 1984; count two alleged a conspiracy to possess methaqualone with intent to distribute beginning prior to July 1, 1981 and continuing until March 1984. Each of these conspiracies was alleged to be between the same coconspirators: Chippas, Alexis, Vershish, Kluver, Khoury, West, and Williams.

Khoury and Kluver contend that as to each of the counts, the government's proof showed that there were actually two conspiracies rather than one, that the first conspiracy ended when the first Halifax scheme terminated, and that the subsequent scheme to...