U.S. v. Maceo
| Decision Date | 16 October 1991 |
| Docket Number | No. 90-2507,90-2507 |
| Citation | 947 F.2d 1191 |
| Parties | 34 Fed. R. Evid. Serv. 60 UNITED STATES of America, Plaintiff-Appellee, v. Julio MACEO, Hiram Lee Bauman, John Cary and Pedro Talamas, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
John G. Garcia, Houston, Tex. (Court-appointed), for Maceo.
George McCall Secrest, Jr., Houston, Tex. (Court-appointed), for Bauman.
Ward Casey, Jeff Kearney, Ft. Worth, Tex., for Cary.
Frank A. Rubino, Coconut Grove, Fla., for Talamas.
Sean Connelly, U.S. Dept. of Justice, Washington, D.C., Paula C. Offenhauser, Asst. U.S. Atty., Ronald G. Woods, U.S. Atty., Houston, Tex., for U.S.
Appeals from the United States District Court for the Southern District of Texas.
Before WISDOM, JOLLY, and SMITH, Circuit Judges.
The jury convicted Pedro Talamas, Hiram Lee Bauman, and John Cary of two cocaine importation charges, conspiracy to import cocaine and conspiracy to possess cocaine with the intent to distribute it. Julio Maceo was convicted of conspiracy to possess cocaine with the intent to distribute it. The appellants argue that: (1) there is insufficient evidence to establish one single conspiracy; (2) there is insufficient evidence to support their convictions; (3) the jury should not have been given a deliberate ignorance instruction; and (4) the trial judge improperly admitted into evidence Bauman's personal use of cocaine and his receipt of cocaine as legal fees, and Cary's distribution of cocaine to Las Vegas casino operators. We find no error and affirm. 1
At trial, the principal witnesses were co-defendants who testified as government witnesses. These witnesses testified to the following course of events. In 1981, Idanael Martinez and Pedro Talamas met in Bogota, Columbia, to discuss the possibility of importing cocaine into the United States. Sometime later, Martinez secured a kilogram of cocaine and travelled to Miami, where he sold it to Talamas. About a month later, Martinez and Talamas arranged a second deal. Talamas's couriers met Martinez in Costa Rica, received two kilos of cocaine from him and delivered it to Talamas in Miami, who then sold it to Winston Vidiella-Lopez.
In January 1982, after assuring Martinez that he could distribute any cocaine Martinez could deliver, Talamas introduced Martinez to Vidiella-Lopez and other drug traffickers. Martinez told Talamas and Vidiella-Lopez that he could import larger quantities of cocaine and that he was "counting on their business going well."
Martinez later met Pedro Ortegon, a major Columbian supplier. In July 1982, Martinez set up residence in Miami. One month later, Martinez received 45 kilos of cocaine sent by Ortegon. Martinez sold two kilograms to Talamas and sold the rest to Vidiella-Lopez and others. Between August 1982 and May 1983, Ortegon shipped hundreds of kilos of cocaine to Martinez. Martinez resold approximately twenty-one kilos to Talamas and far greater amounts to Vidiella-Lopez.
There was testimony that Martinez and Vidiella-Lopez were acting as partners. In October 1982, Vidiella-Lopez arranged for the safekeeping of over 100 kilograms of cocaine that Martinez had been storing in his home. They discussed setting up their own transportation network to import drugs directly from Columbia.
In pursuit of that idea, Martinez and other co-conspirators bought three airplanes from John Cary. In December 1982, John Cary sold Martinez and Robert Watkins a Baron 58 airplane in exchange for two kilograms of cocaine. In early 1983, Cary sold Martinez a Piper Navajo with extra fuel tank capacity, in return for six kilograms of cocaine. Martinez arranged for payment by calling Vidiella-Lopez, who sent Julio Maceo to New Orleans with the cocaine for Cary. After the second plane was seized by custom officials, Martinez arranged to buy another Piper Navajo from Cary. This time, however, Cary did not accept merchandise as payment, but instead received 10,000 ounces of silver, because the owner of the plane needed money. This third plane was the one used in Martinez's first successful importation into the Savannah area. Martinez intended to purchase a larger plane and began paying installments of cocaine to Cary. Martinez had Edward Tejeiros drive from Florida to Fort Worth to deliver a van and cocaine to Cary. Later that summer, Mario Ginoris made a similar trip. All total, Martinez sent Cary twenty-three kilos of cocaine in anticipation of purchasing a fourth plane.
Hiram Lee Bauman, a Florida attorney, performed a number of services in connection with Martinez's and Vidiella-Lopez's drug dealings. Vidiella-Lopez testified that Bauman was his "trust lawyer," providing him advice about the illegal things he did and how to avoid detection. After the second plane Martinez had bought from Cary was seized by the government, Bauman unsuccessfully attempted to get it back for Martinez. Bauman claimed the plane was owned by I.C.E., Inc., an aviation company that had purchased the plane in January 1983. Martinez testified, however, that this corporation was not formed by Bauman until after the plane was seized. Martinez also paid Bauman to secure the release of a different plane owned by David Ledford. Bauman was successful and the plane was used by Martinez in February 1984 to import a large shipment of cocaine into Louisiana.
Bauman assisted Martinez and Vidiella-Lopez in purchasing the third airplane from Cary in return for the silver. Vidiella-Lopez told Bauman he wanted to have the plane registered in a phony name in case there was trouble later. Bauman also convinced Martinez to bail Watkins out of jail because otherwise Watkins might talk to the police about Martinez and Vidiella-Lopez. Bauman changed smaller currency into larger currency for Martinez and Vidiella-Lopez so that it could be shipped back to suppliers more easily and so that Martinez and Vidiella-Lopez would not be identified on transaction reports. Bauman represented Mario Ginoris, one of Vidiella-Lopez's drug operatives, on two separate occasions and received cocaine as legal fees. Bauman also restored Mario Ginoris's driver's license, enabling him to drive imported cocaine from Georgia to Miami.
After Vidiella-Lopez's arrest in 1984, Bauman helped him secure his release on bond and then remained in contact with him while he was a fugitive. Bauman assisted Martinez in purchasing a house for $270,000 cash. The house was to be purchased in a corporation's name in order to hide the true identity of the owner, but because the corporation was not qualified to do business in Florida, Bauman purchased the house as trustee for the unidentified corporation.
Martinez continued to import drugs into the United States. In spring 1983, Martinez imported 374 kilos of cocaine from Columbia to the Savannah, Georgia area. Paul Cotton, the pilot, used the third plane sold by Cary. Vidiella-Lopez's men transported the cocaine from Georgia to Miami, where it was stored in Maceo's rental home. Maceo called Martinez to let him know the importation was successful. Vidiella-Lopez, his men, and Bauman had a celebration party in Vidiella-Lopez's Miami home. From Miami, Martinez distributed the cocaine to persons designated by Ortegon and to his own customers, including Talamas.
After Vidiella-Lopez and Paul Cotton were arrested, Talamas introduced a new pilot, David Ledford, to Martinez. In February 1984, Martinez employed Ledford to run a large shipment of cocaine into the United States, this time through Louisiana. Martinez experienced a shortfall when making his deliveries and Talamas helped Martinez out by selling him two kilograms of cocaine.
The third direct importation occurred in August 1984. Ledford picked up the cocaine in Columbia and transported it to a place near Galveston, Texas, where it was loaded onto a van. By then, Ledford was cooperating with the federal authorities; one of the offloading men was a DEA agent. The drugs were seized and Martinez sent a newspaper article about the incident to Ortegon to prove the drugs had been seized.
In October 1984, Martinez attempted the fourth direct importation. Ledford picked up the cocaine in Columbia from Ortegon and flew it back to Houston, Texas. Martinez planned to travel from Houston to Miami once the drugs were delivered in order to arrange for distribution. Martinez was arrested at the Intercontinental Airport in Houston.
On April 15, 1987, the defendants were indicted by a federal grand jury. On September 2, 1987, a superseding indictment was filed charging Bauman, Cary and Talamas in four counts and charging Maceo in one count. After a jury trial in the United States District Court for the Southern District of Texas, the defendants were convicted of all counts charged in the indictment. Defendants Bauman, Cary, and Talamas were convicted of conspiracy to import cocaine into the United States under 21 U.S.C. § 963, conspiracy to possess cocaine with intent to distribute it under 21 U.S.C. §§ 841 and 846, and two substantive counts of cocaine importation under 21 U.S.C. § 952 and § 960, one importation into Galveston, Texas and one into Houston, Texas. Defendant Maceo was convicted of conspiracy to possess cocaine with intent to distribute it under 21 U.S.C. § 846.
Bauman received a fifteen year prison sentence, while Talamas, Cary and Maceo were sentenced to twelve year prison terms. The prison terms of Talamas, Cary and Bauman are to be followed by three year special parole terms, and Talamas was additionally sentenced to a five-year term of supervised probation requiring payment of a $10,000 fine.
Maceo, Talamas, Bauman and Cary all filed motions for judgment of acquittal, which were denied. The defendants have timely appealed their convictions.
The four appellants raise numerous points on appeal, the majority of which clearly lack merit. Bauman argues that: (1) the evidence is insufficient to support his conviction on...
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