U.S. v. LeQuire

Decision Date17 October 1991
Docket NumberNo. 89-7155,89-7155
Citation943 F.2d 1554
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Charles Allen LeQUIRE, Mike Jenkins, Jerry Allen LeQuire, a/k/a Richard Martin, James Thomas LeQuire, Robert LeQuire, a/k/a Bob Martin, Bonnie Sue Anders, a/k/a Linda Hall, a/k/a Lynn Allen, a/k/a Ann Black, and Harold E. Ward, a/k/a Harold Hall, Defendants-Appellants.
CourtU.S. Court of Appeals — Eleventh Circuit

Roianne Houlton Frith, Montgomery, Ala. (Court-appointed), for Charles Allen LeQuire, Mike Jenkins, James Thomas LeQuire, Robert LeQuire.

F. Lee Bailey, West Palm Beach, Fla., for Jerry Allen LeQuire.

Lee Fugate, Clearwater, Fla. (Court-appointed), for Bonnie Sue Anders.

John W. Hartley, Jr., Montgomery, Ala. (Court-appointed), for Harold E. Ward.

James Eldon Wilson, U.S. Atty., D. Broward Segrest, Asst. U.S. Atty., Montgomery, Ala., for U.S.

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

Before TJOFLAT, Chief Judge, FAY, Circuit Judge, and HOFFMAN *, Senior District Judge.

HOFFMAN, Senior District Judge:

Appellants Jerry LeQuire, James LeQuire, Charles LeQuire, Robert LeQuire, Bonnie Sue Anders, Harold Ward and Michael Jenkins were convicted in the United States District Court for the Middle District of Alabama on RICO drug conspiracy charges. The convictions are based on a series of incidents involving the importation of large amounts of cocaine from Colombia, South America.

All appellants were found guilty of conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"). 1 In addition, Jerry LeQuire was convicted of conducting an enterprise's affairs through a pattern of racketeering activity 2 and engaging in a continuing criminal enterprise. 3

A multitude of issues are raised on appeal, many of which have been adopted by some or all defendants. After examining each argument, we affirm each appellant's conviction on all counts, with the exception of the judgment concerning the conviction of Bonnie Sue Anders which we reverse and remand for a new trial.

FACTS

Jerry Allen LeQuire headed an extensive operation importing cocaine from Colombia. The drug smuggling began in late 1981 or early 1982 and continued until August of 1983. The evidence at trial revealed an extensive, well-orchestrated conspiracy in which LeQuire arranged for personally owned 4 airplanes to fly from Fort Lauderdale, Florida, into South America for the purpose of transporting large amounts of cocaine back into the United States.

Upon arriving in Colombia, LeQuire's planes were loaded with duffel bags of cocaine and refueled for the return flight. The planes would fly at low altitudes until they reached an airport in Alabama, Tennessee or Georgia.

LeQuire arranged for his ground crews to arrive at the landing sites at approximately the same time as the airplanes. After scouting the area to ensure safety, the ground crew would either arrange for a landing or direct the aircraft to an alternate site.

The planes usually landed after sunset and remained on the ground long enough for the duffel bags to be pushed onto the runway. The entire procedure took only a few minutes. Subsequently, the plane would fly back to the Fort Lauderdale base while the ground crew would drive the cocaine to the base in the trunks of their cars. Vast amounts of cocaine entered the United States in this manner 5 and the enterprise produced extraordinary profits. 6

On August 3, 1983, a large quantity of cocaine was seized by the federal authorities at Dannelly Field in Montgomery, Alabama. On April 23, 1984, Jerry LeQuire pled guilty to counts of possession of cocaine and importation of cocaine (R. 6-54). LeQuire contends that another condition of the plea was that no further prosecution of any sort would be brought as a result of the August 3, 1983 importation. This contention, however, is not supported by the record. 7

On July 29, 1988, Jerry LeQuire and the other appellants were named in the indictment underlying this case. The appellants were charged with numerous RICO and Continuing Criminal Enterprise ("CCE") offenses arising out of the drug smuggling enterprise, including the August 3, 1983 incident. In all, 25 persons were named as defendants in the 50-page indictment, containing ten counts. On the motion of some defendants, a severance was granted, following which a superseding indictment was returned in the severed case. This case was tried to a jury with resulting verdicts of guilty, now approved on appeal in United States v. Gonzalez, 921 F.2d 1530 (11th Cir.1991). A large number of the original twenty-five defendants were severed, but several were fugitives and other than the appellants, the vast majority of the indicted persons entered pleas of guilty pursuant to plea agreements and testified for the prosecution.

The evidence adduced at trial demonstrated participation in the enterprise on the part of each appellant. Jerry Allen LeQuire was the kingpin in the organization. Charles LeQuire, Jerry's son, was responsible for the management and financial matters of the enterprise. Bonnie Sue Anders, the evidence showed, tapped telephones, transported cocaine and money, and laundered money on behalf of the organization. Thomas LeQuire, Jerry's brother, was involved in several decisions regarding the enterprise and also transported the cocaine. Robert LeQuire, another of Jerry's brothers, was on several ground crews and also transported large amounts of money and cocaine. Michael Jenkins stole dynamite and delivered money to various individuals in aid of the enterprise. Harold Ward was on the ground crew involving several shipments of cocaine and was linked to discussions regarding the purchase of a plane for future smuggling. The evidence shows that each appellant was involved in the enterprise in various capacities.

A jury found the appellants guilty of a conspiracy to violate RICO. In addition, Jerry LeQuire was convicted of conducting an enterprise's affairs and of engaging in a continuing criminal enterprise. Consequently, Jerry LeQuire was sentenced to a total of sixty years imprisonment and fined $500,000. Charles LeQuire was sentenced to fourteen years and fined $100,000. Bonnie Sue Anders and Michael Jenkins were sentenced to twelve years. James LeQuire, Robert LeQuire and Harold Ward were each sentenced to imprisonment for ten years. Two of the original defendants, Gene LeQuire and Mike LeQuire, 8 were found not guilty, and Jerry Allen LeQuire, on substantive counts, was also found not guilty as to Counts VII, VIII, IX and X.

Because we believe that it is a factor in determining "harmless error" in the case involving Jerry Allen LeQuire, some consideration should be given to Counts VII, VIII and IX pertaining indirectly to the murder of Mildred Ann Cornell on Sunday night, April 22, 1984, in Florida. The evidence discloses that one Terry Cornell had apparently introduced Jerry Allen LeQuire to the Colombians who were providing the cocaine which LeQuire later arranged to be flown to the United States. Subsequently, Terry Cornell, Jr., the son of Mildred Ann Cornell, became active in LeQuire's operations and, along with many others, was interviewed after August 3, 1983, and apparently finally indicated his guilt. The testimony of Karla Espinal, LeQuire's former wife, gave a vivid description of LeQuire's reaction when he learned that Terry Cornell, Jr., planned to testify for the prosecution and against LeQuire at the trial commencing on April 23, 1984. Initially, according to Espinal, LeQuire wanted to "do away" with Terry Cornell, Jr., but for some reason these plans were changed and LeQuire had his then wife arrange with certain Colombians to kill Cornell's mother, Mildred Ann Cornell. In typical gang warfare, Mrs. Cornell was assassinated in Florida on the night before LeQuire's trial was to begin. LeQuire, of course, was in jail at all times after August 18, 1983. LeQuire presented some evidence at his 1988 trial that an agreement had been reached on April 18, 1984, that LeQuire would plead guilty on the following Monday, and that any motive to silence Terry Cornell, Jr. could not have existed.

Count VII charged Jerry Allen LeQuire, Alvaro Pelaez, James Thomas LeQuire, and Charles Allen LeQuire, with violating 18 U.S.C. § 1512(b)(2)(A), in using physical force against Mildred Ann Cornell with intent to cause and induce Terry Cornell, Jr. and others, to withhold testimony in the Middle District of Alabama official proceeding. Count VIII charges the same defendants with physical force to induce Terry Cornell, Jr. and others to be absent from the official proceeding in the Middle District of Alabama, even though summoned by legal process, in violation of 18 U.S.C. § 1512(b)(2)(D). Count IX charged that these same defendants "and others known and unknown to the Grand Jury" did fire and "cause to be fired" a machine gun into Terry Cornell, Jr.'s apartment in Fort Lauderdale, Florida, causing injury and death to Mildred Ann Cornell, with intent to retaliate against Terry Cornell, Jr. for his attendance at the trial in the Middle District of Alabama, in violation of 18 U.S.C. § 1513(a)(1). Counts VII, VIII and IX were dismissed as to Charles Allen LeQuire and James Thomas LeQuire on motion of the government at the conclusion of all of the evidence in the 1988 trial, thus leaving only Jerry Allen LeQuire as a defendant on trial as to these three counts.

Since Jerry Allen LeQuire was found not guilty as to Counts VII, VIII and IX, it may seem irrelevant to even refer to these counts, but the serious error on the part of the prosecutor in his closing argument to the jury in referring to LeQuire's failure to take the witness stand or otherwise mention the Colombians makes it of importance in determining whether this was "harmless error" as applied to the facts of this case.

DISCUSSION
I. DOUBLE JEOPARDY

On appeal, Jerry LeQuire first argues that the...

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