U.S. v. Martin

• Decision Date: 24 August 1984
• Docket Number: 83-5688,Nos. 83-5684,s. 83-5684
• Citation: 740 F.2d 1352
• Parties: 16 Fed. R. Evid. Serv. 1067 UNITED STATES of America, Plaintiff-Appellee, v. Donald L. MARTIN and Judy S. Weems, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1352

740 F.2d 1352

16 Fed. R. Evid. Serv. 1067

UNITED STATES of America, Plaintiff-Appellee, v. Donald L. MARTIN and Judy S. Weems, Defendants-Appellants.

Nos. 83-5684, 83-5688.

United States Court of Appeals Sixth Circuit.

Argued May 9, 1984.

Decided July 17, 1984.

Rehearing and Rehearing En Banc Denied Aug. 24, 1984.

Thomas Woody Smith, argued, Greeneville, Tenn., Carl R. Ogle, Jr., argued, Jefferson City, Tenn., Charles E. Fraley, Rutledge, Tenn., for defendants-appellants in 83-5684.

John W. Gill, Jr., U.S. Atty., Guy Blackwell, argued, Asst. U.S. Atty., Greeneville, Tenn., for U.S. in both cases.

Gene P. Gaby, argued, Thomas L. Kilday, Milligan, Coleman, Fletcher, Gaby & Kilday, Greeneville, Tenn., for defendants-appellants in 83-5688.

Before KENNEDY and JONES, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

CORNELIA G. KENNEDY, Circuit Judge.

Appellants in this case, Donald L. Martin and Judy S. Weems, were convicted of conspiracy to import and distribute marijuana in violation of 21 U.S.C. Secs. 841(a), 846, 963. Appellants raise a number of issues in arguing for a reversal of their convictions. We find only one of these claims to have merit, and remand the case with respect to appellant Donald L. Martin for an evidentiary hearing. We affirm the conviction of appellant Judy S. Weems.

I.

This case presents a bizarre and disturbing set of facts in which respected citizens of Greeneville, Tennessee, including a former assistant district attorney in the 20th Judicial District of Tennessee, his wife, two deputy sheriffs and a banker, conspired with others to import 1500 pounds of marijuana into the United States from Colombia, South America. The scheme was hatched by Larry Weems, a former assistant district attorney and husband of appellant, Judy Weems, who is also an attorney and a former juvenile judge. Larry Weems, who pleaded guilty, testified that he got the idea in 1982 from discussions with appellant Donald Martin, a client of Weems who was at the time an inmate in the Greene County, Tennessee jail, charged with offenses in Tennessee and North Carolina. Martin was an airplane pilot and had connections among drug traffickers in Florida and in Colombia. Weems secured Martin's release from jail, ostensibly to secure medical treatment, with the assistance of campaign contributions to the county sheriff, and embarked on a plan to import marijuana with Martin's help.

Martin arranged a number of meetings, in both Tennessee and Florida, with Weems and Martin's connections, at which they planned the deal. Weems and Martin planned to buy an airplane, which would be flown to Colombia to bring back a load of marijuana. Weems needed financing for this scheme, both money to buy the plane, and also front money to purchase the marijuana. So he approached a number of investors in Greeneville, including two deputy sheriffs and a local banker, all of whom participated in the plan. The banker arranged financing by making fraudulent loans to participants in the plan and to other parties. Many of the loans were secured with fictitious capital. Judy Weems signed her mother's name to one of the loans which was used to finance the plan.

In June 1982, Weems and Martin and others went to Miami and arranged to purchase a Beech A65 aircraft. Weems discovered upon his arrival in Florida that he needed additional money in order to purchase the plane. At his direction Judy Weems obtained $5000 from the banker which she wired from truck stops in Tennessee. The purchase was completed and the plane registered in Martin's name. Following the purchase Judy Weems arranged to have another $2000 wired to her husband in Florida. Martin, accompanied by other participants in the plan, flew the plane to Tennessee for repairs.

About a week later Martin and a friend of his named Lawrence Davis, also a pilot, flew the Beech aircraft to Miami, and left Miami a day later for Colombia. The plan was for Martin and Davis to land at an airstrip in Colombia where the load of marijuana would be waiting. They were to load the plane, fly back north, and drop the load in international waters off the coast of Florida. Larry Weems had arranged to have a high-speed motorboat waiting at the appointed drop site to retrieve the cargo and bring it into the United States.

But things did not go as planned. Instead of landing at the Colombian airstrip where the marijuana was waiting, Martin, flying in a storm, landed the plane at a military airbase in Barranquilla, Colombia, where he and Davis were immediately arrested and jailed. Meanwhile, the motorboat waiting for the drop was discovered by Bahamian naval officials who chased the boat and opened fire, but were unable to catch the conspirators.

Larry Weems, who was in Florida at this time, called Judy Weems in Tennessee with the bad news. She relayed the story to co-conspirators in Greeneville.

After this fiasco Larry Weems' efforts turned to securing the return of Martin and Davis and the Beech aircraft. To effect the release of the aircraft Judy Weems did a title search on the plane, which she and Larry Weems delivered to the Colombian consulate in Miami. Larry Weems also made a trip to Barranquilla in an attempt to procure the release of Martin and Davis.

Martin was released and returned to Miami in August 1982. On arrival he turned himself in to immigration officials for the crimes he was charged with in North Carolina and Tennessee. Davis returned to the United States in December 1982. The aircraft was eventually brought back to the United States and was seized by customs officials in Florida.

Some of the conspirators persisted for a time in a plan to bring back a load of marijuana in order to cover the loans, but by January 1983, Larry and Judy Weems had concluded that the whole deal was "washed up." The conspiracy came to the attention of law enforcement officials when the banker, concerned about the over-extension of credit and having no way to repay the loans, confessed his involvement and implicated the others. Soon afterwards Martin was interrogated and admitted his involvement in the plan, implicated others, and supplied taped conversations with Larry and Judy Weems and another co-conspirator.

Fourteen defendants were charged in a two-count indictment with conspiracy to import and distribute marijuana. Ten of the defendants, including Larry Weems and Lawrence Davis, pleaded guilty; one defendant was never identified or arrested. The remaining three defendants, Manuel Pacin, who was to have been the eventual purchaser of the marijuana, and the two appellants here, went to trial on pleas of not guilty. Pacin pleaded guilty on the second day of trial.

Appellant Martin maintains first that he was not guilty of conspiracy because although he had pretended to join in the undertaking and had assisted it, he had never intended that the plan be carried out, and indeed purposefully landed the aircraft at the wrong airstrip in Colombia to thwart the enterprise; and secondly, that he participated in the scheme only under Larry Weems' coercion. Martin had a heart condition and testified that Weems had threatened him with additional prison time on the two state charges if Martin did not cooperate, and Martin was afraid that he would die in prison if he did not go along with Weems. Judy Weems maintained that she was ignorant of the plan to import marijuana until after the aircraft had been seized in Colombia, and then participated only to retrieve the aircraft, and not to import drugs. She claimed that to the extent that she did participate in the scheme, she did so in order to save her marriage to Larry Weems. The jury returned a guilty verdict on both counts against appellants.

We deal first with the issues raised by both appellants, and then those raised by Weems or Martin alone.

II.

A.

Appellants argue that they were incurably prejudiced by a remark which the trial judge made at a bench conference. The prosecutor was seeking to recall a defense witness, Martin's girlfriend, for additional cross-examination. Defense counsel objected and the judge sustained the objection. Counsel then approached the bench for the purpose of discussing the matter further out of the hearing of the jury, which, however, remained in the jury box. At the bench conference the following conversation took place:

Prosecutor: Your Honor, if the court please, if she is allowed to testify, she would testify that she had numerous conversations during this time with Mr. Martin. Mr. Martin told her that he knew [one of the defendants from Miami] and Manuel Pacin, that they were, both men, involved in the drug trafficking down in Florida.

The Court: I don't think that is necessary, under Martin's testimony, under Martin's testimony, he is guilty, but I am going to submit it to the jury, and his defense that he was threatened and so forth, that is no defense at all. (Emphasis added.)

Defense counsel failed to object to the judge's statement, "he is guilty," at that time, nor did they call to the judge's attention that he might have been overheard by the jury. Only after the jury had rendered a guilty verdict, did defense counsel file affidavits stating that they believed that the remark was audible to the jury. The government filed no affidavits in response. Defense counsel moved for permission to question the jury, and moved for a new trial. Both motions were denied.

The judge's remark constitutes an inadvertent comment--in that it was not directed to nor intended to be heard by the jury--on the evidence. A federal judge may comment on the evidence, but he or she must do so with great care and may not unduly prejudice the jury. United States v. Murdock, 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381 (1933); Quercia v. United States, 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321 (1933). Some comments may so usurp the jury's role as factfinder as to be incurable and to constitute reversible error. Murdock; United States...