U.S. v. Loyd

• Decision Date: 16 October 1984
• Docket Number: No. 82-6093,82-6093
• Parties: 17 Fed. R. Evid. Serv. 182 UNITED STATES of America, Plaintiff-Appellee, v. David LOYD, Mark Soukenik, William Hood, Jake Loyd, Robert C. Kilpatrick, and Sidney Bedgood, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1555

743 F.2d 1555

17 Fed. R. Evid. Serv. 182

UNITED STATES of America, Plaintiff-Appellee, v. David LOYD, Mark Soukenik, William Hood, Jake Loyd, Robert C. Kilpatrick, and Sidney Bedgood, Defendants-Appellants.

No. 82-6093.

United States Court of Appeals Eleventh Circuit.

Oct. 16, 1984.

Neil H. Jaffee, Fort Lauderdale, Fla., for D. Loyd.

John Lazarus, Miami, Fla., for Soukenik.

Denis Dean, Dean & Hartman, P.A., Miami, Fla., for Hood.

Gersten & Vitale, Anthony Vitale, Miami, Fla., for J. Loyd.

Laurel White, Marc-Charles, Fort Lauderdale, Fla., for Kilpatrick.

Scott Jay, Miami Beach, Fla. (Court-appointed), for Bedgood.

Richard K. Harris, Asst. U.S. Atty., Stanley Marcus, U.S. Atty., Linda C. Hertz, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee USA.

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

Before GODBOLD, Chief Judge, TJOFLAT and HENDERSON, Circuit Judges.

GODBOLD, Chief Judge:

In this appeal we review the convictions of the six appellants on various drug charges. We find that two of the defendants were improperly subjected to double jeopardy on one count and reverse their convictions on that count. We also conclude that the district court followed an incorrect rule of law in evaluating material claimed to come within the Jencks Act, 18 U.S.C. Sec. 3500 (1976), and remand for further consideration under the appropriate legal standard. We reject all other contentions by the appellants.

I. Facts and procedural history

Simpkin, Lyons, and Zeigler ran an extensive marijuana smuggling ring with boats going to the Bahamas, picking up marijuana from a shuttle or "mother" boat, and returning to Southern Florida where crew members would off-load the marijuana into stash houses located behind private residences. While this smuggling ring engaged in a number of operations, only the four relevant to this appeal will be detailed. The facts are largely derived from the testimony of three co-conspirators who became government witnesses, Merrill, Archie Arnold (Archie), and Joe Arnold (Joe).

Around May 1, 1979, Merrill and Thone, two members of the conspiracy, used the NINA NU to pick up approximately 3500 pounds of marijuana in the Bimini islands. The boat returned to Florida and docked behind a house at Rivo Alto. Merrill left the house but Thone remained. Also present at the house were Simpkin, Zeigler, and Hood. The police came on the scene and arrested Thone, Zeigler, and Hood. Simpkin escaped by swimming away. ¹

Approximately a year later, in May 1980, Merrill and Archie went to Honeymoon Harbor in the Bahamas on a boat supplied with fuel and provisions by either David Loyd (David) or Jake Loyd (Jake). At Honeymoon Harbor Merrill and Archie met several other boats, including the JEZEBEL with David aboard and the YELLOWBIRD with Soukenik on board. The boats met a freighter loaded with marijuana, which was transferred to the smaller boats. Archie's boat received 15-20 marijuana bales; the other boats also received marijuana, although the amount is uncertain. After the boats returned to Florida, Archie and Jake went to Zeigler's house to be paid. ²

In September 1980 Archie attended a briefing session at Simpkin's warehouse, after which he and Jake rode a boat to Gun Cay. There they joined other boats, including the YELLOWBIRD with Soukenik aboard and the XAVIER with Roth on board. The boats met a shuttle boat from which they received marijuana. Archie's boat took on 15-20 bales of marijuana; the other boats received an undetermined amount of marijuana.

After the boats returned to Florida, the XAVIER was offloaded. Archie, Soukenik, and David helped to offload 100 to 125 bales of marijuana. After the offload, Zeigler took Archie, David, and Jake to Archie's car. ³

Approximately one month later, in October 1980, Archie went to another briefing session at Simpkin's warehouse which Soukenik and Bedgood also attended. After the briefing, Archie and David went to Gun Cay on a scarab boat. There they met several boats with co-conspirators aboard, the EXCALIBER with Jake, the JEZEBEL with Kilpatrick and Joe, the USA # 1 with Soukenik, and the BOTH BRASS with Bedgood. The boats received marijuana from a shuttle boat and returned to Florida separately.

When Archie and David returned to the marina, they left their boat and joined Jake and Hood on the DOCK'S BABY. The boat then went out to meet the JEZEBEL, which was being followed by a Customs boat. When the DOCK'S BABY diverted the Customs boat, Kilpatrick ran the JEZEBEL aground and he and Joe escaped. Customs agents subsequent found 7000 pounds of marijuana on the JEZEBEL. ⁴

Based on the testimony of Merrill, Archie, Joe and others, the grand jury indicted 24 people for various violations of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. Sec. 801 et seq. (1976). Prior to trial Simpkin, Lyons, Thone, Roth, and two other indictees pled guilty. At the time of trial Zeigler remained at large. Consequently only 17 defendants went to trial. The jury acquitted seven defendants and was unable to reach a verdict as to three. It convicted David, Jake, Hood, Bedgood, Soukenik, and Kilpatrick of conspiracy to import marijuana (Count IV) and conspiracy to possess marijuana with intent to distribute (Count V). It also convicted all six of importation of marijuana and possession of marijuana with intent to distribute, although on different counts. A seventh defendant, not a party to this appeal, was also convicted. The six appealed their convictions.

Appellants raise numerous claims: (1) whether there was sufficient evidence to convict David of Counts XI and XII (the Honeymoon Harbor trip), Soukenik of Counts XI and XII (the Honeymoon Harbor trip) and XIII (XAVIER offload), Bedgood of Counts IV and V (conspiracy to import marijuana and conspiracy to possess marijuana with intent to distribute) and XXI and XXII (the JEZEBEL run), and Hood of Counts IV and V (conspiracy to import marijuana and conspiracy to possess marijuana with intent to distribute), Count VIII (the Rivo Alto incident), and XXI and XXII (the JEZEBEL run); (2) whether David was improperly placed in double jeopardy on Counts IV and V (conspiracy to import marijuana and conspiracy to possess marijuana with intent to distribute) and whether David and Hood were improperly placed in double jeopardy on Count V (conspiracy to possess marijuana with intent to distribute; (3) whether the district court abused its discretion in not granting Bedgood a severance; (4) whether the district court abused its discretion in lifting the sequestration rule as to Joe so that the government could interview him in the middle of his testimony; (5) whether the district court abused its discretion in admitting into evidence a statement by a declarant that implicated Joe in the marijuana conspiracy; (6) whether the district court committed error in the procedure it followed to determine whether material came within the Jencks Act, 18 U.S.C. Sec. 3500 (1976); and (7) whether the district court abused its discretion in allowing the direct, cross, and redirect examination of three government witnesses to be read to the jury during its deliberations.

II. Sufficiency of the evidence

We reject all the claims of insufficient evidence.

On appeal the evidence and all reasonable inferences must be viewed in the light most favorable to the government. See Glasser v. U.S., 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). Furthermore, "[i]t is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt." U.S. v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (Unit B) (en banc) (footnote omitted), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983).

To prove a drug conspiracy the government must show, by direct or circumstantial evidence, an agreement by two or more persons to violate federal narcotics laws. U.S. v. Badolato, 701 F.2d 915, 919-20 (11th Cir.1983).

[T]he Government must demonstrate ... that a conspiracy existed, that the defendant had knowledge of it, and that he or she voluntarily became part of it.... Moreover, the requirement of knowledge of the conspiracy agreement refers simply to knowledge of the essential objective of the conspiracy.... To be found guilty, a defendant need not have knowledge of all the details of the conspiracy, and may play only a minor role in the total operation....

Id. at 920 (citations omitted).

David challenges the sufficiency of evidence on Counts XI and XII, importation of marijuana and possession of marijuana with intent to distribute. These counts concern the Honeymoon Harbor trip. David does not challenge his conviction on the conspiracy counts. Consequently, he is liable for any act done by a co-conspirator in furtherance of the conspiracy. Pinkerton v. U.S., 328 U.S. 640, 647-48, 66 S.Ct. 1180, 1184, 90 L.Ed. 1489 (1946); see also U.S. v. Raffone, 693 F.2d 1343, 1346 (11th Cir.1982).

Archie testified that either David or Jake supplied the provisions for the Honeymoon Harbor trip. 9 Rec. at 409. He also stated that when his boat arrived at Honeymoon Harbor, he saw several other boats, including the JEZEBEL with David aboard. Id. at 417. Archie's boat received approximately 15-20 bales of marijuana; he saw the other boats being loaded, but was uncertain how much marijuana they received. Id. at 419. Archie testified that the boats left at 30-minute intervals to return to Florida. Id. at 423.

Archie's trip to Honeymoon Harbor and back provided sufficient evidence against David, a co-conspirator, on these two counts. Furthermore, from Archie's testimony the jury could reasonably infer that David's boat received marijuana and returned to Florida with it.

Soukenik contests the...