U.S. v. Lee, s. 83-2294

• Citation: 743 F.2d 1240
• Decision Date: 23 October 1984
• Docket Number: Nos. 83-2294,83-2295,83-2298 and 83-2613,s. 83-2294
• Parties: 16 Fed. R. Evid. Serv. 1049 UNITED STATES of America, Appellee, v. Jeffrey Dewayne LEE, Appellant. UNITED STATES of America, Appellee, v. James Edward NETTLE, Appellant. UNITED STATES of America, Appellee, v. Ed PAQUETTE, Appellant. UNITED STATES of America, Appellee, v. ONE PIPER NAVAJO MODEL PA 31, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1240

743 F.2d 1240

16 Fed. R. Evid. Serv. 1049

UNITED STATES of America, Appellee, v. Jeffrey Dewayne LEE, Appellant.

UNITED STATES of America, Appellee, v. James Edward NETTLE, Appellant.

UNITED STATES of America, Appellee, v. Ed PAQUETTE, Appellant.

UNITED STATES of America, Appellee, v. ONE PIPER NAVAJO MODEL PA 31, Appellant.

Nos. 83-2294, 83-2295, 83-2298 and 83-2613.

United States Court of Appeals,

Eighth Circuit.

Submitted May 14, 1984.

Filed Sept. 12, 1984.

Rehearing Denied Oct. 23, 1984.

Raymond C. Conrad, Jr., Federal Public Defender, W.D.M., Gregory K. Johnson, Asst. Federal Public Defender, Thomas J. Carlson, Springfield, Mo., Donald L. Ferguson, Donald L. Ferguson, Miami, Fla., for appellant.

Robert G. Ulrich, U.S. Atty., Michael A. Jones, Asst. U.S. Atty., Springfield, Mo., for appellee.

Before HEANEY, BRIGHT and JOHN R. GIBSON, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

A plane load of marijuana from Belize destined for an airport near the Lake of the Ozarks gives rise to this series of appeals. The plane was piloted by James E. Nettle. Because a transponder or beeper had been installed on the plane before it left Texas on the way to Belize, the plane was picked up by radar when it approached New Orleans on its return with the marijuana and was followed by first one and then another U.S. Customs Service chase plane. Ed Paquette was one of the ground crew at the airport awaiting the plane. Jeffrey Dewayne Lee had been at the airport making arrangements for receipt of the shipment but was in Indianapolis at the time of the flight. Nettle, Paquette and Lee were convicted in the district court ¹ of four counts of violating 21 U.S.C. Secs. 963, 952(a), 846 and 841(a)(1) (1982) and 18 U.S.C. Sec. 2 (1982). The Piper Navajo plane owned and piloted by Nettle was ordered forfeited. The primary issues raised on appeal involve the propriety under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), of the issuance of the search warrant given the claim of false statements intentionally or recklessly made; the denial of motions for acquittal and severance; and the closing argument by the Assistant United States Attorney. We affirm the convictions of Nettle and Lee and affirm the forfeiture of the aircraft but reverse the conviction of Paquette as to all counts because of the prejudicial argument.

Patrick David Wright, a prime mover in the events giving rise to the prosecution, testified on behalf of the government. He entered a guilty plea to two counts of conspiracy as part of an agreement that other charges would not be filed against him. Wright was in contact with an individual in Miami who wanted Wright to fly drugs from the Bahamas. He made arrangements for Nettle to fly from California to meet him in Miami, and, at that time, informed him of his connection with Gene Sellers, owner of the Mistwood Airport near the Lake of the Ozarks in Missouri. In the conversation Nettle mentioned a pilot and mechanic, Jeffrey Lee from Indianapolis with whom he had been working on a deal in Mexico. The following Saturday Nettle introduced Wright to Lee and Ed Paquette, both of whom told the others of drug sources in Belize. Nettle also mentioned a possible source in Oaxaca, Mexico. It was arranged that Lee would look at the airstrip in Missouri. Wright and Lee later met in Indianapolis and traveled to Missouri to look at the airport, talk with Sellers and discuss certain improvements to be made, such as more lights for the airport.

They returned to Indianapolis, where Wright obtained a sample of the Belize marijuana from Lee and traveled to California to show it to Nettle before Nettle flew to Mexico. Wright then flew back to Indianapolis to meet with Lee, obtained a car and traveled to Missouri to begin work on the airport. Nettle and Lee flew into Lee Fine Airport near the Lake of the Ozarks, and Lee took the plane to Indianapolis for repair work. Nettle and Wright met with Sellers on February 12, 1983, and Nettle offered Sellers $50,000 for the use of the airport, house, and a nearby farm for storing the marijuana. Wright had taken $5,000 expense money from Lee before going to the Lake of the Ozarks; after Nettle left, Nettle mailed Wright an additional $2,000 in expense money. With the expense money, Wright purchased two pick-ups and a Jeep Wagoneer to transport the marijuana from the plane to the farm. Another $1,500 in expense money was turned over to Wright, and four portable radios were purchased.

Lee originally had planned to make the flight to Belize with Nettle. Because Lee's son had been convicted of a crime, Lee decided not to remain as a pilot on the flight because of the possible damage to his son's chances at sentencing. Wright then became Nettle's copilot, while Lee continued to be the connection with Belize. A ground crew for the Mistwood Airport was organized which included Ed Paquette and Wright's brother-in-law, Len Clark. Tim Johnson, Jeff Levine, Mark Owen and Mark McLaughlin were also present at the Mistwood Airport.

On March 4, 1983, Lee and Paquette arrived at the Fine Airport in Nettle's plane with extra fuel tanks on board. Lee gave Nettle and Wright aeronautical charts on which Lee had marked the landing strip in Belize. The seats were taken out of the plane, and black plastic was taped to the floor and sides. On March 6, the plane was fueled, and Wright and Nettle flew to Beaumont, Texas. Lee then called them by telephone and postponed the trip because four other planes were scheduled ahead of them in Belize. On March 9, Wright and Nettle again flew to Texas, this time to Bay City, where they landed and checked into the Holiday Inn. While on the ground the plane, Nettle, and Wright were under surveillance, and the transponder or beeper was installed.

Saturday morning, March 12, at about 1:30 a.m. Nettle and Wright left their motel, went to the Bay City Airport and took off. They flew past Galveston, turned off their exterior lights, and were seen by a following plane flying out into the Gulf of Mexico toward Merida, Mexico, which, as the maps demonstrated, was on the route to Belize.

Wright testified that at the Belize Airport the plane was met by waiting trucks, an American, and several local residents armed with automatic weapons. The American asked if Freddie, who had been mentioned by Lee and Nettle as the contact with Belize, had sent money and said that their plane was the fifth to land that week. There was not room in the plane for all thirty-four bags of marijuana, so seven were left behind. The plane took off and flew across the Gulf, entered the United States near New Orleans, and flew northward through Mississippi, Arkansas and into Missouri, headed for the Mistwood Airport. It was picked up by radar because of the beeper and followed by a Customs' chase plane from Houston and a Customs' plane departing from Jefferson City, Missouri. Near Lebanon, Missouri, Nettle and Wright spotted a following plane. At that time, Nettle made radio contact with the ground crew, who told him that a state trooper had been spotted earlier observing the airport with binoculars. Nettle decided to abort the landing at Mistwood and warned the ground crew to leave the area. He instructed Wright to open the door and throw the bags out while he flew at a low level. The plane landed in Springfield, Missouri, at the small downtown airport. Nettle and Lee were arrested in a residential area about three blocks away.

There was evidence of numerous telephone calls made between Lee in Indianapolis, motels in Beaumont and Bay City, Texas, and the house at the Mistwood Airport. Twenty-six of the twenty-seven bags of marijuana were recovered. The recovery locations were charted and shown to be within the computer-recorded flight path of the plane. A DEA agent stationed in Central America examined the twenty-six recovered bags, some of which bore the printed word "Belize," and determined from the materials and packaging that all twenty-six bags came from Belize. Customs Agent Richardson, who had been present when the beeper was placed in the plane in Bay City, Texas, and was a passenger in the second chase plane, testified that in Bay City the plane was free of marijuana smell, but that when it landed in Springfield it smelled of marijuana. A police chemist testified that he had recovered marijuana debris from the plane.

After receiving the radio message from Nettle, the ground crew left the airport. Tim Johnson drove away without being stopped, but Mark Owen and Jeff Levine were stopped and questioned briefly by police. Len Clark hid in the woods until after dark, eventually hitchhiked to Springfield, and flew to his home in Oregon. Levine, Owen, Johnson and Paquette all went to a nearby hotel and checked out.

Len Clark testified at the trial in return for an agreement that charges would not be brought against him. In return for a plea bargain involving a guilty plea and an agreement not to have other charges filed against them, Levine and Owen also testified at the trial.

Sellers, the owner of the Mistwood Airport, was tried jointly with Nettle, Paquette and Lee, but was acquitted. At the conclusion of the trial Nettle, Paquette and Lee were convicted on all four counts, including wilfully and knowingly agreeing together to import marijuana in violation of 21 U.S.C. Sec. 963, importing six hundred pounds of marijuana in violation of 21 U.S.C. Sec. 952(a) and 18 U.S.C. Sec. 2, wilfully and knowingly agreeing together to possess with intent to distribute marijuana in violation of 21 U.S.C. Sec. 846, and possessing with intent to distribute marijuana in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Nettle and Lee were sentenced to five years on Counts I and III to be served consecutively, five years on Counts II and IV to be served consecutively to each other, but concurrently with Counts I and III, with a special two-year parole term imposed on...