U.S. v. Klein, 75-1859

• Decision Date: 14 February 1977
• Docket Number: No. 75-1859,75-1859
• Citation: 546 F.2d 1259
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Edward KLEIN, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1259

546 F.2d 1259

UNITED STATES of America, Plaintiff-Appellee, v. William Edward KLEIN, Jr., Defendant-Appellant.

No. 75-1859.

United States Court of Appeals Fifth Circuit.

Feb. 14, 1977.

Jackson B. Battle (Court-appointed), Tallahassee, Fla., for defendant-appellant.

Robert W. Rust, U.S. Atty., William R. Northcutt, Karen L. Atkinson, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before BROWN, Chief Judge, GODBOLD, Circuit Judge, and MEHRTENS, ^* District Judge.

MEHRTENS, District Judge:

William Edward Klein and Kenneth Burnstine appealed from a jury conviction for conspiracy to import cocaine and marihuana into the United States, in violation of 21 U.S.C. §§ 952(a) and 963. Burnstine subsequently was killed in a plane accident, leaving only Klein's appeal active. We affirm.

William Edward Klein, Charles Christian and Robert Davison met at the Hialeah, Florida apartment of Jerry Buchanan, who was a government confidential informant. The purpose of this meeting, and several subsequent meetings attended by them, was to discuss the possibility of importing cocaine and marihuana into the United States from Mexico.

During one of the meetings, Klein told Buchanan that they wanted to go to Guadalajara, Mexico to inspect the airfields which they had been discussing. Klein instructed the informant that Davison, the pilot, and Kenneth Burnstine would go on this trip to Mexico. Klein said he would not be able to accompany them and that Davison would be the go-between for him. Klein gave Buchanan $250.00 to use for his airfare to Mexico.

Shortly thereafter, Buchanan met Davison and Burnstine in Guadalajara. The trio drove through the surrounding Mexican countryside examining various airfields for potential use in the smuggling venture. Buchanan then reported to Burnstine that he was unable to contact his friend in Mexico who was supposed to be the source of the cocaine and marihuana. Burnstine then gave Buchanan his telephone number in Newport Beach, California, saying that if the friend arrived in Guadalajara, Buchanan should call him; that he, Burnstine, wanted between three and five kilos of cocaine; and that he would come down to Mexico within twenty-four hours.

At a subsequent meeting attended by Klein, Burnstine and Buchanan in Hollywood, Florida, Klein gave Buchanan another check to pay his expenses in returning to Mexico. Klein instructed Buchanan that even though Burnstine was the buyer, any business the informant did with Burnstine was to be done through him, Klein.

Following this second advancement, Klein and Buchanan met again, and Buchanan told Klein that he would be unable to return to Mexico. Instead, Buchanan informed Klein he had set up a meeting between Klein and his source in Mexico. Unknown to Klein, Buchanan had arranged for Drug Enforcement Administration Agent Sedillo to meet with Klein in a Mexico City hotel.

During the first meeting between Agent Sedillo and Klein in Mexico City, Drug Enforcement Administration Agent Salinas was introduced to Klein by Agent Sedillo. At this meeting, Klein announced that his objective in coming to Mexico was to find a steady source of quantities of high quality cocaine, and to find clandestine airstrips or airports for smuggling. Klein stated that he represented a very sophisticated organization which was responsible for smuggling large amounts of marihuana from Jamaica into the United States. During this meeting, a preliminary agreement was made whereby Klein was to purchase three kilograms of cocaine for $30,000.00 from Agent Sedillo, the understanding being that if this first deal worked out favorably, larger drug deals involving 20 to 40 kilograms would follow. Later that day, Klein gave Agent Sedillo a telephone number and requested that Sedillo call him the following month. This telephone number was listed to a William Klein in Miami, Florida.

Pursuant to Klein's request, Agent Sedillo called Klein's home telephone number in Miami. Sedillo and Klein, speaking in a code that Klein had previously arranged, discussed the drug deal that had been arranged in Mexico City. It was agreed that Sedillo was to call Klein again later that week. After this later telephone conversation, Buchanan met with Klein and Burnstine at a restaurant in Hollywood, Florida. Klein then told Burnstine that they were to meet "Arturo" in Vera Cruz, Mexico and that between three to five kilograms of cocaine could be purchased at that time.

As planned, Burnstine, Davison and Buchanan met with Agents Sedillo and Salinas in Vera Cruz, Mexico to transact the drug deal. From this point on, Klein played a secondary role in the conspiracy.

Klein first complains of the trial court's refusal to grant his motion for severance and a new trial.

The motion was made after Burnstine's wife testified that she had received three sealed letters from her husband during the period of time in which the conspiracy took place. Burnstine had instructed his wife to turn the sealed letters over to his attorney if anything bad happened to him. The letters, which were read in camera, were self-serving in nature and revealed Burnstine's supposed desire to not be implicated in the conspiracy.

The letters also disclosed that Burnstine, at the outset of the conspiracy, had approached Special Agent Hall of the Miami, Florida office of the Alcohol, Tobacco and Firearms Division of the United States Treasury Department and offered to give him information about a possible cocaine operation. Agent Hall had dealings with Burnstine prior to the conspiracy due to Burnstine's ownership of a munitions company.

Agent Hall relayed Burnstine's offer to give information to a Mr. Mosley at the Miami, Florida office of the Drug Enforcement Administration. Hall also indicated that he told Burnstine of his communication with Mosley and that if Burnstine had information, he should go to Mosley's office and they would discuss the matter there, as Hall's office was not the proper recipient for that type of information.

Klein contends that he should have a new trial because, unknown to him, the defendant Burnstine was a government informant; that the government attorney knew of this but did not disclose it to Klein or his attorney, thereby deliberately deceiving the court and utilizing Burnstine as a "spy in the camp" of Klein.

The insufficiency of the trial record precludes our making a ruling on this point a ruling which also appears to involve matters not necessarily in this record. Accordingly, we pretermit ruling on this point, which Klein may raise by a 28 U.S.C. § 2255 petition.

It is within the sound discretion of the trial judge as to whether defendants should be tried together or severally. There is nothing in the record of this case to indicate an abuse of such discretion when Klein's motions for severance and for a new trial were denied. Opper v. United States,348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954). See also Peterson v. United States, 344 F.2d 419 (5th Cir. 1965); West v. United States, 311 F.2d 69 (5th Cir. 1962); Davis v. United States, 148 F.2d 203 (5th...