U.S. v. LaChance

• Decision Date: 01 June 1987
• Docket Number: No. 86-3070,86-3070
• Citation: 817 F.2d 1491
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph Lee LaCHANCE, Sonia Luz Meza-de Cepeda, and John Thomas Bowles, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1491

817 F.2d 1491

UNITED STATES of America, Plaintiff-Appellee, v. Joseph Lee LaCHANCE, Sonia Luz Meza-de Cepeda, and John Thomas Bowles, Defendants-Appellants.

No. 86-3070.

United States Court of Appeals Eleventh Circuit.

June 1, 1987.

Joseph Ficarrotta, Bennie Lazzara, Jr., Tampa, Fla., for LaChance and Meza-deCepeda.

Robert T. Kennedy, Asst. U.S. Atty., Tampa, Fla., Mervyn Hamburg, Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Tom McCoun, St. Petersburg, Fla., for Bowles.

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

Before TJOFLAT and VANCE, Circuit Judges, and ATKINS ^*, Senior District Judge.

ATKINS, Senior District Judge:

Appellants LaChance, Cepeda and Bowles appeal their convictions for conspiracy to import controlled substances and related offenses. They were indicted with fifteen co-defendants in a thirteen count indictment which focused upon the criminal activities of Albert Fortna. ¹

None of the appellants was charged with substantive offenses. LaChance and Cepeda were charged in Count II only, for conspiracy to import marijuana into the United States. Bowles was charged in Count II and III only, for the importation conspiracy and conspiracy to possess marijuana with intent to distribute it, respectively. They seek reversal on grounds that the evidence was insufficient to support the verdicts, and that the district court erred in denying their motions for severance, in admitting certain evidence, and in refusing to permit hybrid representation during closing argument. We find no error and affirm.

I. SUFFICIENCY OF THE EVIDENCE

Cepeda and Bowles challenge their convictions for conspiracy to import marijuana into the United States on the ground that the evidence was insufficient to support the verdicts.

A. Cepeda's Involvement

Cepeda argues that the record shows only isolated contacts between her and members of the conspiracy, during which she was merely present and did not participate in the conspiracy. However, the evidence adduced at trial, when examined in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), supports a finding that Cepeda was not a mere bystander, but was in fact a participant in the conspiracy.

There was testimony from which the jury could find that in November 1982 Cepeda attended a conspiratorial planning meeting in Tampa and participated in the discussions at that meeting; that Cepeda and Rivas, her husband, were jointly responsible for furnishing the 22,000 pounds of marijuana that formed the subject matter of the illicit agreement; that in May 1981, Cepeda attended another meeting in Tampa wherein Rivas, Fortna, LaChance and co-conspirator Martinez reviewed the importation plans; and that the next day Cepeda accompanied Rivas and Martinez on a flight to San Antonio.

Further testimony indicated that Cepeda was a contact for members of the conspiracy. Fortna called a woman named "Sonia" for information regarding a flight to Aruba and the crew's abandonment of the plane there. Martinez characterized Cepeda as "the contact in Colombia to purchase the marijuana," and co-conspirator Kelly described Cepeda's family in Colombia as the source for the marijuana.

Kelly further testified that Cepeda "was financing the operation," that she provided $40,000.00 to lease a replacement aircraft, and that, together with Rivas, she was entitled to half the marijuana load. Cepeda attended two meetings in Miami when Kelly was hired to pilot the replacement aircraft to Colombia.

Testimony also indicated that Cepeda was the contact for members of the conspiracy for information regarding the seizure of the plane and the arrest of the crew. Martinez telephoned Cepeda upon his arrival in Texas on the eve of the plane's scheduled return from Colombia, and she informed him that the others were already at the designated landing strip. ² The day after her plane's scheduled return, Cepeda conveyed a message to Martinez from Colombia that the plane had been seized when it landed at the wrong location. Cepeda informed Kelly of the loss of the plane and the arrest of the crew in detail. She indicated that it would cost her $35,000 for each crew member's release. During this conversation, she gave Pearson $5,000.00 to lease an aircraft for a flight to Colombia.

It is well settled that participation in a conspiracy need not be proved by direct evidence; it may be inferred from the actions of the accused or by circumstantial evidence of a scheme. United States v. Carter, 760 F.2d 1568, 1582 (11th Cir.1985); United States v. Cole, 755 F.2d 748, 755 (11th Cir.1985). The evidence of Cepeda's conduct recited above, although circumstantial, easily affords a sufficient basis for finding that she deliberately and knowingly joined and participated in the conspiracy. See Cole, 755 F.2d at 754.

B. Bowles' Involvement

Bowles challenges the sufficiency of the evidence supporting his conviction on Count II for conspiracy to import marijuana into the United States. He does not challenge his conviction on Count III.

Bowles' argument that the evidence shows conduct that at worst is suspicious, and that indicates mere presence or association, is fatuous. The fact that his acts appeared not to be illegal when viewed in isolation does not bar his conviction. "An act innocent in nature and of no danger to the victim or society suffices if it furthers the criminal venture." United States v. Jones, 642 F.2d 909, 914 (5th Cir.1981). Moreover, the totality of the circumstances compels the conclusion that Bowles was a knowing participant in the importation conspiracy. United States v. Fernandez, 797 F.2d 943, 949 n. 3 (11th Cir.1986).

Bowles participated in organizational activities in Florida, Aruba, and California that concerned aircraft intended solely for use in the effectuation of the importation plan. Testimony indicated that Bowles was brought to his first meeting in Florida by principal conspirators Fortna and LaChance. Present at that meeting was a Colombian whose express role was to guide the airplane to the marijuana pickup site in Colombia. Bowles was identified as a flight navigator. The specific details of the importation venture were discussed at that meeting. Bowles accompanied Kelly ³ to Aruba to inspect the DC-7 that had been impounded by Aruban authorities, even though he was not qualified to navigate a DC-7. The trip to Aruba was paid for by the conspirators. While in Aruba Bowles learned what was necessary to obtain access to the impounded airplane. Bowles returned to the United States with Kelly and Reece. Bowles went to California only a couple of weeks after his return to Florida and met with Hernandez, a principal conspirator who had not attended the Florida meeting. Bowles' assignment that time was to assist Kelly and Pearson in checking the airworthiness of a KC-97 tanker that the conspirators hoped to lease for their venture. Bowles went to an airport with Hernandez, Kelly and Pearson where the KC-97 was parked and examined the aircraft. Efforts to lease the KC-97 collapsed, and Bowles thereafter accompanied Kelly, Pearson, Hernandez and Fortna to another airport, where Kelly and Pearson tested a DC-7. Bowles later attended the meeting with Martinez, Fortna, Hernandez and Pearson at which Martinez revealed that Cepeda had provided $40,000 to lease the DC-7.

Bowles' conduct cannot be regarded as innocent when examined in context. Bowles was present at places where nonparticipants in the smuggling venture would have not been invited. He was not present merely on an isolated occasion; rather, he attended multiple planning meetings, and was not heard to have protested that he was not a part of the illicit scheme that was the obvious topic of discussion. See United States v. Kincade, 714 F.2d 1064, 1065 (11th Cir.1983). This evidence affords a sufficient basis from which the jury could infer that he heard, understood, and acquiesced in the statements. Carter, 760 F.2d 1568, 1579.

II. THE DENIAL OF THE MOTION FOR SEVERANCE

The trial of Cepeda, LaChance, and Bowles began with three others joined as defendants, William Jeske, James Harnage, and Albert Fortna. A mistrial was declared as to Fortna one week into the trial because a cancer detected in his lawyer's arm prevented his continued participation in the case. Jeske was subsequently severed before any evidence incriminating him was adduced. The trial continued to conclusion with the four remaining defendants. All three appellants argue that the district court erred in denying their motions for severance. Each sought severance on diverse grounds including a spillover effect of testimony relating to Fortna's activities, comments by counsel on the testimony of co-defendants, comments made by Bowles in his pro se closing argument, and the court's instructions bearing upon all of these alleged errors.

A. Governing Principles

Persons charged together should be tried together. United States v. Butler, 792 F.2d 1528, 1534 (11th Cir.1986). However, Rule 14 of the Federal Rules of Civil Procedure provides that a court may in its discretion order a severance of defendants to avoid prejudice resulting from the joinder. See United States v. Taylor, 792 F.2d 1019, 1023 (11th Cir.1986). A defendant must demonstrate specific and compelling prejudice to justify reversal of a denial of severance. United States v. Meester, 762 F.2d 867, 883 (11th Cir.1985). The standard for determining compelling prejudice is whether the jury could compare and estimate the independent evidence against each defendant on each count and thereupon reach individual verdicts. United States v. Pirolli, 742 F.2d 1382, 1386 (11th Cir.1984); United States v. Garrett, 727 F.2d 1003, 1014 (11th Cir.1984); United States v. Phillips, 664 F.2d 971, 1017 (5th Cir.1981).

In addition, cautionary instructions limit the effect of evidence which might otherwise...