U.S. v. Lee

• Decision Date: 03 January 1983
• Docket Number: No. 80-5224,80-5224
• Parties: 12 Fed. R. Evid. Serv. 246 UNITED STATES of America, Plaintiff-Appellee, v. Randall J. LEE, George Grindrod and Gregg Parker Lyell, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 649

694 F.2d 649

12 Fed. R. Evid. Serv. 246

UNITED STATES of America, Plaintiff-Appellee, v. Randall J. LEE, George Grindrod and Gregg Parker Lyell,

Defendants-Appellants.

No. 80-5224.

United States Court of Appeals, Eleventh Circuit.

Jan. 3, 1983.

Certiorari denied April 18,1983.

See 103 S.Ct. 1779,

H. Jay Stevens, Asst. Federal Public Defender, Orlando, Fla., for lyell.

Bruce S. Rogow, Nova University Law Center, Fort Lauderdale, Fla., for Grinrod.

Richard L. Wilson, Orlando, Fla., for Lee.

Robert A. Leventhal, Donald E. Christopher, Asst. U.S. Atty., Orlando, Fla., for plaintiff-appellee.

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

Before TJOFLAT and CLARK, Circuit Judges, and MILLER ^*, Judge.

CLARK, Circuit Judge:

Gregg Parker Lyell, George Grindrod, and Randall J. Lee appeal their convictions under 21 U.S.C. Secs. 960 and 963 for conspiracy to import cocaine into the United States. We affirm their convictions.

The bizarre story opens in late 1977 when defendant Lee commented to Luis Edwards Vergara that he was looking for a cocaine buyer. Vergara mentioned this conversation to a friend of his, Jim Brewer, who passed along the name and number of "Tony Wingo" (undercover agent Herb Williams) to defendant Lyell, who was acting in concert with Lee. Lyell called "Tony Wingo" and arranged a meeting to discuss "South American products."

At this meeting, Lyell identified the "South American products" as "pink champagne," a slang term for cocaine. Lyell indicated that it would cost $20,000 for an introduction to a Peruvian cocaine producer and that the cocaine would be available for $13,000 per pound. Over the next few days, Lyell had several meetings with "Wingo" as well as with "Reno" (undercover agent Peter Scrocca) and "Georgie" (undercover agent John Ellis). During these meetings, Lyell indicated that one hundred kilos of cocaine were available for sale. Further, he indicated that his sources in Peru agreed to deliver the cocaine to Orlando or Miami at $23,000 per kilogram.

On January 17, at a meeting in Kissimmee, Lee joined the negotiations. Lee announced that for $20,000 he would introduce them to a source in Lima and that they would get "top quality merchandise." Lee then informed Grindrod of the day's events.

In meetings afterward, Lee tried to convince the agents that his proposed movie, "The Marksman," would provide an excellent front for their smuggling operations and repeatedly attempted to sell them shares in it. The agents, posing as Mafia chieftains, rejected all such solicitations and pressed negotiations for the cocaine sale.

A long series of meetings then commenced. Lee attempted to get the agents to invest in his movie, but continued to promise to secure them a cocaine source in return for $20,000. It was arranged that Grindrod, a pilot for Braniff Airlines, would fly down to Peru and make the arrangements for the agents to meet the Peruvian source, Juan Lujan. Lee was paid the $20,000.

Grindrod met several of the agents at the Hotel Carillion in Lima on February 7, 1978. The agents met with Lujan, and Grindrod showed them how cocaine could be smuggled into the United States inside the leather backing of llama rugs. The actual attempt to buy cocaine failed when Lujan announced that his deliveryman with a sample was not going to arrive. The agents then returned to Miami.

Further meetings were held between the agents and both Lee and Grindrod. During one of these meetings, Lee introduced MacLester Snow, who offered "Wingo" help in solving the problems that had developed. Later, Lee offered to sell his business, "The House of Llama," so it could be used by Wingo as a front to smuggle cocaine.

On March 1, 1978, Grindrod turned over to agents 7/10 of a gram of cocaine which tested out at 100% pure. Grindrod informed the agents that this was a sample of the cocaine that they would purchase. Lee attempted to facilitate negotiations between Lujan and the agents, specifically in the area of how Lujan would be paid for his cocaine. Lee did make clear that he would not physically get involved in the discussions between Lujan and the agents. Lee also set the price for the delivery of the cocaine at $12,000 per kilo, which did not include the $13,000 per kilo to be paid to Lujan.

In late April, arrangements were made for a cocaine sale to be transacted in Lima. This deal fell through, but new arrangements were made and the agents met Grindrod on May 7, 1978 at the Hotel Cesar in Mira Flores, Peru. This trip, however, also proved fruitless as Lujan called off the deal when he became aware of the Peruvian investigative police watching the Americans.

After this point, the deal began to fall apart. On July 17, 1978, the agents told Grindrod they wanted their $20,000 back. On July 26, 1978, Grindrod returned $6,500; Lee explained that he had no money left to return. Lee stated that of the original $20,000, he kept $6,500; Grindrod got $6,500; $5,000 went into "The House of Llama"; and $2,000 went to Lyell. Thus, $13,500 was not recoverable.

On October 12, 1978, Grindrod and Lee made one more attempt to connect the agents and Lujan. This too fell through and the agents broke off contact. On July 25, 1979, Grindrod, Lee, and Lyell (as well as several other individuals) were indicted by the Orlando grand jury and charged with conspiracy to import cocaine into the United States.

The appellants allege that the evidence is insufficient to convict them of conspiracy to import cocaine into the United States. At most, the appellants contend, there was an agreement to provide the name of the Peruvian drug connection. Lyell argues that this argument is especially applicable to him as he claims he withdrew from the conspiracy in January, long before the sample of cocaine was delivered. The appellants present a case out of New York, United States v. Hysohion, 448 F.2d 343 (2d Cir.1971), as authority. Hysohion stands for the proposition that a man can bring together a willing buyer and a willing seller without necessarily creating a conspiracy.

The Eleventh Circuit, in reviewing the sufficiency of the evidence to support a criminal conviction, inquires whether "a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt." United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc). ¹

The essential element of a drug conspiracy is an agreement by two or more persons to violate the narcotics laws. United States v. Tamargo, 672 F.2d 887, 889 (11th Cir.1982); United States v. Spradlen, 662 F.2d 724, 727 (11th Cir.1981). The existence of such an agreement may be proved by circumstantial evidence, such as "inferences from the conduct of the alleged participants or from circumstantial evidence of a scheme." Id. A person need not have knowledge of all the details of a conspiracy; proof is required only that he knew of the essential objective of the conspiracy. United States v. Tamargo, supra, 672 F.2d at 889; United States v. Hernandez, 668 F.2d 824 (5th Cir.1982). Moreover, the "defendant may be found guilty of conspiracy ... even if he plays only a minor role in the total scheme." Id.; see also United States v. Hirst, 668 F.2d 1180, 1185 (11th Cir.1982).

The evidence in this case, viewed in the light most favorable to the government, supports the convictions of the appellants. Grindrod traveled to Peru to facilitate the drug deal, he showed the agents how they might smuggle drugs into the country in llama skins, he produced a sample of cocaine in Miami, he paid the agents $1,000 to defray their expenses on their unsuccessful trip to Lima and remarked that Lujan would pay him back, as well as numerous other acts which indicate his guilt. Lee was in close contact with Grindrod throughout this whole period and had knowledge of his actions, he was concerned about facilitating the remittance of payment from the agents to Lujan, and he negotiated the price of the delivery of the cocaine, to name but a few of his activities that indicated Lee conspired to import the drugs into the country. Lyell, among other acts, informed the agents of the price of the cocaine, he guaranteed its quality, he announced the 100 kilos were available for sale, he acted as an intermediary between Grindrod who was in Peru making arrangements with Lujan and the agents, and he was a party to conversations where schemes to import the cocaine were discussed. Given this extensive involvement on the part of the appellants, it is clear that they did considerably more than just facilitate the meeting of willing buyers and sellers. Therefore, we find Hysohion inapposite. We hold that the evidence was sufficient to convict the appellants of conspiracy to import cocaine into the United States. ²

Lyell raises an argument that the trial court erred in finding by a preponderance of the evidence that he was a member of the conspiracy charged, and thus admitting hearsay statements against him. This argument has no merit. We have already held that the government presented evidence sufficient to prove beyond a reasonable doubt that a conspiracy existed and that Lyell was a part of it. Necessarily, therefore, the government must have proved by a preponderance of the evidence that Lyell was part of a conspiracy to import cocaine.

Lyell also maintains that the trial court erred in denying his motion for mistrial based upon the admission of a statement in a taped conversation that implied he had been in prison before. Specifically, the complained of statement was Lee's comment to one of the agents that Lyell "gets involved in stuff that's gonna, you know, wind him back in the slammer, and, ahh, if, if you get too involved with some of his crazy things, ah, you know, he'll drag a...