U.S. v. Macko, 90-5965

• Decision Date: 09 July 1993
• Docket Number: No. 90-5965,90-5965
• Citation: 994 F.2d 1526
• Parties: UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee, v. Michael MACKO, Defendant-Appellee, Cross-Appellant, Frank Van Ameringen, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1526

994 F.2d 1526

UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee, v. Michael MACKO, Defendant-Appellee, Cross-Appellant Frank Van Ameringen, Defendant-Appellee.

No. 90-5965.

United States Court of Appeals Eleventh Circuit.

July 9, 1993.

Roberto Martinez, U.S. Atty., Paul E. Pelletier, Linda Collins Hertz, Lynne Lamprecht, Asst. U.S. Attys., Miami, FL, for appellant.

Kenneth Swartz, Richard C. Klugh, Asst. Federal Public Defenders, Miami, FL, for Frank Van Ameringen.

William A. Hough, Laws and Hough, Winston-Salem, NC, for Michael Macko.

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

Before COX, Circuit Judge, JOHNSON, Senior Circuit Judge, and KEHOE ^*, Senior District Judge.

COX, Circuit Judge:

The Government appeals a district court order acquitting Michael Macko and Frank Van Ameringen of charges that they violated the U.S. trade embargo against Cuba. Specifically, Macko and Van Ameringen were accused of selling cigarette-packaging machinery and supplies to Cuba in violation of the Trading with the Enemy Act of 1917, 50 U.S.C.App. § 5 (1988), and the Cuban Assets Control Regulations, 31 C.F.R. §§ 515.101-.901 (1992). The district court's order followed a trial at which a jury found the men guilty of the embargo violations and related charges. See United States v. Ortiz de Zevallos- , 748 F.Supp. 1569 (S.D.Fla.1990). The Government challenges the judgment of acquittal only with regard to the Cuban embargo violations. Macko cross-appeals the district court's refusal to sever his trial from that of Van Ameringen and a third codefendant. We affirm the denial of Macko's motions for a separate trial, reverse the judgment of acquittal on the Cuban embargo counts, reinstate the jury verdicts on those counts, and remand the case to the district court for sentencing.

I. BACKGROUND

A. Procedural History

A federal grand jury in the Southern District of Florida returned a six-count superseding indictment in December 1989 against Macko, Van Ameringen and Emilio Ortiz de Zevallos. The first count of the indictment charged the three men with violating the Trading with the Enemy Act (TWEA) and the Cuban Assets Control Regulations by selling a packaging machine to Cubans for use in a cigarette factory in Cuba. The second and third counts charged Macko and Ortiz de Zevallos with TWEA violations based on their additional shipments of machinery and supplies to Cuba. A fourth count charged all three with conspiring to export unlicensed items to Cuba in violation of the Export Administration Act (EAA), 50 U.S.C.App. § 2410(b) (1988). The final two counts charged Macko and Ortiz de Zevallos with making false statements on shipper's export declarations in violation of 18 U.S.C. § 1001 (1988).

In a pretrial motion for severance, Macko argued that evidence about his codefendants' post-arrest statements would violate Macko's rights under the Confrontation Clause of the Sixth Amendment. He contended that a severance was mandated under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The magistrate denied Macko's motion with the understanding that the Government would omit any references to Macko in the codefendants' statements. Macko renewed his motion for severance three times during the trial. The district court denied each of the renewed motions.

Macko, Van Ameringen and Ortiz de Zevallos were tried together before a jury. The jury found Van Ameringen guilty of both charges against him, acquitted Macko and Ortiz de Zevallos on one false-statement count, and found Macko and Ortiz de Zevallos guilty on the other five counts. The district court subsequently held that the evidence was insufficient to support the guilty verdicts against Macko and Van Ameringen. United States v. Ortiz de Zevallos, 748 F.Supp. 1569, 1575, 1580 (S.D.Fla.1990). As an alternative basis for its holding on the TWEA counts, the court concluded that the appellees' conduct was not proscribed by the regulatory subsection under which they were charged. Id. at 1578-79. The court ordered the acquittal of Macko and Van Ameringen on all counts. Id. at 1581. Ortiz de Zevallos, however, fled the United States before the district court's hearing on the motions for acquittal. Id. at 1571 n. 1. In light of his fugitive status, the court did not address his motion. Id. Ortiz de Zevallos is not a party to the present appeal. ¹

B. Facts

Because the district court ordered a judgment of acquittal based on the sufficiency of the evidence, our summary of the relevant facts gives the Government the benefit of "[a]ll reasonable inferences which tend to support the Government's case." United States v. Burns, 597 F.2d 939, 941 (5th Cir.1979). ² We resolve any conflicts in the evidence in the Government's favor. Id. "The same test applies whether the evidence is direct or circumstantial." Id.

Also, for purposes of our review it is significant that the district court deferred ruling on the defendants' initial motions for a judgment of acquittal. The defendants made their motions when the Government rested its case-in-chief, but the district court did not rule until after the jury rendered its verdicts. Under the law of this circuit, the delay in ruling on the motions limits our review to the sufficiency of the evidence presented in the Government's case-in-chief. See United States v. Rhodes, 631 F.2d 43, 44-45 (5th Cir.1980) (holding that a trial court should not defer ruling on a motion for acquittal made at the close of the Government's case, but that "the error is harmless if the evidence presented in the Government's case-in-chief is sufficient to support the verdict"). Accordingly, while we view the evidence in a light favorable to the Government, we do not consider the evidence presented after the Government rested its case-in-chief.

The evidence presented during the Government's case-in-chief shows the following: Van Ameringen is a Florida attorney engaged in importing and exporting. During the spring or summer of 1988, Van Ameringen learned about a plan to manufacture counterfeit Winston cigarettes in Cuba for resale in European markets. He became involved in the project along with two Panamanian businessmen and Ortiz de Zevallos, a Peruvian national who was then operating a business out of Panama. Van Ameringen began looking for used packaging machines and someone with the technical expertise to install them. This search led him to Macko, a former engineer with R.J. Reynolds Tobacco Company (maker of Winston cigarettes).

Macko was then acquiring and exporting cigarette machinery through his own company, Machine Systems, Inc., in Winston-Salem, North Carolina. Van Ameringen wrote to another participant in the Cuban cigarette operation that Macko was willing to provide and install the machines "anywhere" for $56,000 and could "go south" immediately. (Gov't Exh. 77a.) Macko later agreed to cut his price to $39,000 in exchange for a share of the profits. He was to receive a quarter of the price up front plus his travel expenses. Macko, Van Ameringen and Ortiz de Zevallos went to Cuba, by way of Panama, in October 1988 for talks with Cuban officials about the cigarette factory.

Over the next several months Macko acquired the needed packaging machines and supplies. The supplies included "Winston Red" and "Winston Gold" printing ink, two colors specially blended to match the tints on Winston cigarette packaging. The machines and supplies went to Ortiz de Zevallos in Panama, and Ortiz de Zevallos forwarded them to Cuba. Macko returned to Cuba in March and May of 1989--again, by way of Panama. Ortiz de Zevallos wrote checks to Macko for $55,000, $42,000, $21,000, and $2,218. Macko wrote one $5,000 check to Van Ameringen, but the check was returned because of insufficient funds. One invoice under the letterhead of Macko's Machine Systems, Inc., itemized charges for $133,756 worth of equipment and supplies and was addressed to the attention of a Cuban government official at the Cuban embassy in Panama. The invoice, in an envelope bearing the logo of the Cuban Ministry of Interior, was found in Ortiz de Zevallos's briefcase when he was arrested at Miami International Airport.

The defendants took pains to conceal the true location of the cigarette factory. In his extensive correspondence with other participants in the plan, Van Ameringen avoided mentioning Cuba by name and instead referred to the country with such non-identifying terms as "the Island" or "that Sovereign Nation." (Gov't Exhs. 84, 101.) Macko told people who sold him machinery and supplies that the goods were going to Uruguay or to "some undeveloped country in South America." (R. 4 at 271; R. 5 at 367.) Macko and Ortiz de Zevallos instructed a freight forwarder with American Overseas Transport Corporation to send a shipment of goods to Panama "en transito." (R. 4 at 239-42.) When the freight forwarder asked about the goods' ultimate destination, she "never got ... a direct answer." (R. 4 at 241.) Instead, Macko and Ortiz de Zevallos told her to list Panama as the ultimate destination on the shipping documents. Macko and Van Ameringen also were circumspect in their travel to Cuba, stopping first in Panama. Before their October 28 trip to Cuba, Van Ameringen sent his and Macko's passport numbers to Ortiz de Zevallos for advance clearance by the Cuban embassy in Panama. Stamped travel information in the passports shows the defendants' arrivals and departures in the United States and Panama, but not Cuba.

Van Ameringen was excluded from the Cuban project sometime in late 1988 or early 1989. At first he suspected that Ortiz de Zevallos may have pocketed the Cubans' money and abandoned the project. In January 1989, Van Ameringen sent letters to Cuban officials complaining about Ortiz de Zevallos and emphasizing Van Ameringen's desire to go ahead with the cigarette plan.

Macko gave false or misleading statements when...