U.S. v. Love

• Decision Date: 29 July 1985
• Docket Number: Nos. 83-5171,s. 83-5171
• Citation: 767 F.2d 1052
• Parties: 18 Fed. R. Evid. Serv. 1335 UNITED STATES of America, Appellee, v. Newby Franklin LOVE, Appellant. UNITED STATES of America, Appellee, v. Newby Franklin LOVE, Appellant. UNITED STATES of America, Appellee, v. Robert Edward LEE, Appellant. UNITED STATES of America, Appellee, v. Sue Robinson YOUNGBLOOD, Appellant. UNITED STATES of America, Appellee, v. Robert Edward LEE, Appellant. (L), 83-5172 to 83-5174 and 84-5262.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1052

767 F.2d 1052

18 Fed. R. Evid. Serv. 1335

UNITED STATES of America, Appellee, v. Newby Franklin LOVE, Appellant.

UNITED STATES of America, Appellee, v. Newby Franklin LOVE, Appellant.

UNITED STATES of America, Appellee, v. Robert Edward LEE, Appellant.

UNITED STATES of America, Appellee, v. Sue Robinson YOUNGBLOOD, Appellant.

UNITED STATES of America, Appellee, v. Robert Edward LEE, Appellant.

Nos. 83-5171(L), 83-5172 to 83-5174 and 84-5262.

United States Court of Appeals Fourth Circuit.

Argued Nov. 1, 1984.

Decided July 3, 1985.

Rehearing and Rehearing En Banc Denied July 29, 1985.

Jack B. Swerling, Columbia, S.C., J. Edward Bell, III, Sumter, S.C., John L. Pollok, New York City (Edward Gasthalter, New York City, on brief), for appellants.

Cameron B. Littlejohn, David J. Slattery, Asst. U.S. Attys., Columbia, S.C. (Henry Dargan McMaster, U.S. Atty., Columbia, S.C., Sylvia K. Amaker, Paralegal Specialist on brief), for appellee.

Before ERVIN and WILKINSON, Circuit Judges, and MICHAEL, United States District Judge for the Western District of Virginia, sitting by designation.

ERVIN, Circuit Judge:

Newby Franklin Love, Sue Robinson Youngblood, and Robert Edward Lee appeal from their convictions after a two-week jury trial on a nineteen-count superseding indictment alleging various drug related offenses. Specifically, the three appellants were convicted of violating the federal racketeering statute, 18 U.S.C. Sec. 1962(c), (d) (1982), (i.e. the "RICO" statute) together with various federal drug laws, 21 U.S.C. Sec. 841(a)(1), 846, 952(a), 960, 963 (1982). ¹ In addition, Love and Youngblood were also convicted of violating the Travel Act, 18 U.S.C. Sec. 1952(a)(3) (1982), and of transporting stolen aircraft in interstate commerce in violation of 18 U.S.C. Sec. 2312 (1982). ² Love was also convicted of wilfully and knowingly engaging in a continuing criminal enterprise ("CCE") in violation Appellants now assert a number of different grounds for reversal on appeal. After careful consideration of each allegation of trial error, we are convinced that reversal is not required. Consequently, we refuse to disturb the appellants' convictions and affirm the judgments of the district court.

                of 21 U.S.C. Sec. 848. 3   The three appellants were also acquitted on some of the counts charged against them. 4   Each appellant received substantial sentences. 5
                

I.

FACTUAL BACKGROUND

At the outset, it should be noted that the arrests of the appellants culminated an extensive investigation carried on over several months by federal and state agents in South Carolina, Georgia, and Florida. The facts of this case are very complex as they involve many separate incidents which together comprise the basis for the appellants' arrests and convictions. As a consequence, only the facts pertinent to this appeal will be summarized. For our purposes, the appellants' illegal activities may be separated into three broad categories: (1) the drug-related activities of 1980-1981, (2) the armed robberies and cocaine trafficking in 1982, and (3) the drug smuggling operations in 1982.

A. Drug-related activities of 1980-1981

Love and Youngblood's 1980-1981 drug-related activities constitute the earliest overt acts upon which their Count 1 RICO conspiracy convictions are based. These activities revolve around their relationship with two drug dealers, Elmer Charles Dalton and James Milton King. Dalton and King were involved in a number of profitable interstate cocaine and marijuana sales with Love between September 1980 and January 1981. Love sold Dalton and King large quantities of marijuana and cocaine for later resale and distribution on several different occasions during this period. Dalton and King had been introduced to Love by Youngblood who also was involved in at least one of these interstate drug transactions. Lee, however, was not implicated in any of these early drug activities.

B. Armed robberies and cocaine trafficking in 1982

Beginning some time prior to 1982, Youngblood and Love became engaged in a drug trafficking partnership in which Youngblood supplied Love with cocaine, which she transported to South Carolina from Florida. Love then sold this cocaine to dealers throughout the region. This partnership eventually blossomed into the drug smuggling operations of June-December, 1982. In addition, Wilbur Rutledge

"Rusty" Corvette and Ralph Bruce Bannister were hired by Love in 1982 to commit several robberies of competing drug dealers and other individuals who Love felt would be unlikely to report such crimes to the authorities. Corvette and Bannister usually sought Love's prior sanction of these robberies to insure that the victim was not a distributor of drugs supplied by Love. In most instances, Love furnished the weapons and vehicles used in the robberies and afterwards received jewelry or other proceeds of the crime. Youngblood was aware of these robberies and also received proceeds in at least one instance. ⁶ However, Lee was not involved in any of these robberies.

C. Drug Smuggling Activities of 1982

During the latter half of 1982, Youngblood and Love arranged several unsuccessful attempts to import marijuana and cocaine directly to South Carolina from Colombia. Their first smuggling venture was attempted in June of that year. At that time, Love told Corvette that he was planning to bring 1200 to 1500 pounds of marijuana to South Carolina from South America by plane. Together Love and Corvette went to Florida to meet Youngblood and discuss this operation. Soon after this meeting, they attempted the smuggling run and dispatched a plane to South America.

On June 15, 1982, Love, Corvette and Wayne Rodgers prepared to meet the marijuana-laden plane at a drag strip near Columbia on its return from South America. However, because of communications mishaps and lack of fuel, the plane did not land at the drag strip. Instead, the plane was abandoned at a small airport in Columbia, South Carolina. It was found the next day by law enforcement officials. Examination of the plane revealed that its long-range fuel tanks contained only 8-10 gallons of fuel. In addition, its seats had been removed, and there were 18 bales of marijuana weighing 541 pounds on board. The landing flaps had not been closed and the door to the cockpit had been left ajar. Fingerprints taken from the fuselage and from food wrappers and navigational charts found in the cockpit subsequently were identified as those of Timothy Roy Rivera. Millard Waites, a convicted drug smuggler, testified at trial that prior to the flight he had given Rivera's name and telephone number to Love after Love asked him for the name of a pilot. Love subsequently hired Rivera for the smuggling job.

Several weeks after this failed attempt, Love told Corvette that he had obtained another plane for a smuggling trip to South America. Once again Rivera was to be the pilot for the Love-Youngblood smuggling operation. Once again, however, this run was aborted when the plane crashed on the way to South America.

Afterwards, in August, 1982, Love, Waites, Kenneth Davidson, Youngblood, Rivera, Rivera's brother, and Corvette met at Love's apartment to plan their next smuggling venture. As a first step, Youngblood, Rivera, and Rivera's brother stole a Cessna 404 Titan airplane from Trager Aviation Company in Lima, Ohio. After redesigning the plane to transport drugs, Rivera again piloted the plane to South America. John Furmen Walker, alias "Double R", accompanied him on this trip. Success eluded them another time, however, when they ran low on fuel during the return trip, and were forced to land in Sarasota, Florida. Although the police discovered the plane before they could unload the marijuana, Rivera and Walker were able to escape. The police discovered 46 bales of marijuana weighing 1594 pounds on board the plane when they arrived.

A fourth attempted smuggling run was scheduled for November, 1982. For this next venture, Love sought a pilot who could fly a large cargo plane. Love requested that Joe Merolla, the owner of the airplane leasing company Southern Aero Traders, ask Frank Kelly, an Opa Locka, Florida airport employee, to evaluate Rivera and another Colombian pilot from Southern Aero Traders to see if they could Following this meeting, appellant Lee came to Opa Locka to be Kelly's co-pilot. The trip was postponed several times as Kelly repeatedly tried to avoid making the trip. Finally Kelly, Lee, "Vargas" (a Colombian dealer) and "Double R" took off for South America. Kelly deliberately closed the flaps on the plane which caused the engine to overheat and forced them to land at New Smyrna Beach, Florida. After making repairs, Double R and Vargas then continued on to South America.

fly a large cargo plane. Unknown to Love, Merolla and Kelly were DEA informants. Kelly evaluated the two pilots and concluded that they could not fly large cargo planes. Youngblood then offered Kelly $50,000 to fly the plane to South America himself. Kelly accepted and was paid $5000 by "Double R". Kelly later met with "Double R", Youngblood and Love to discuss the details of the smuggling run. He learned that the first plane load would contain 4500 pounds of marijuana. That was to be followed by a load of cocaine two days later. At this meeting, Love told Kelly that the two Colombians had lost three of his planes while one of his Howard 250 aircraft had already made six successful trips to South America.

Meanwhile, Love and Corvette readied themselves for the arrival of the plane back in Sumter County with a group of ten men bearing machine guns and hand grenades. Love told Corvette that the extra men were there to fight the police if the need arose. A couple of days later, Love and Corvette learned that the plane had blown up after taking off with the marijuana on board in Colombia. Despite this fourth setback, Love and Youngblood did not waste time in planning what was to be their...