U.S. v. Maskeny

• Decision Date: 04 January 1980
• Docket Number: No. 78-5596,78-5596
• Citation: 609 F.2d 183
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald George MASKENY, Lee Durwood Harvey, Mark Timothy Perkins, Joseph Charles Blackburn, Sr., Charles Michael Crocker, Kenneth Murchison, Sidney Larry Pernell, Barry Wayne Toombs, Tony Darwin and Julian Thomas Pernell, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 183

609 F.2d 183

UNITED STATES of America, Plaintiff-Appellee, v. Donald George MASKENY, Lee Durwood Harvey, Mark Timothy Perkins, Joseph Charles Blackburn, Sr., Charles Michael Crocker, Kenneth Murchison, Sidney Larry Pernell, Barry Wayne Toombs, Tony Darwin and Julian Thomas Pernell Defendants-Appellants.

No. 78-5596.

United States Court of Appeals Fifth Circuit.

Jan. 4, 1980.

Rehearing and Rehearing En Banc Denied Feb. 14, 1980.

William H. McAbee, II, Katherine L. Henry, David Roberson, Asst. U.S. Attys., Savannah, Ga., for plaintiff-appellee.

Mellissa S. Mundell, Asst. U.S. Atty., Savannah, Ga. (on jury selection issues) for plaintiff-appellee.

Carleton L. Weidemeyer, Clearwater, Fla., for Maskeny.

J. Flowers Mark, Alexandria, Va., for Harvey.

John Kenneth Zwerling, Jonathan Shapiro, Alexandria, Va., for Perkins.

Frank A. Mika, Arthur S. Meisnere, Washington, D.C., for Blackburn, Crocker, Murchison, Pernell & Toombs & Pernell.

Donald G. Doddington, Roger V. Rigau, Tampa, Fla., for Darwin.

Appeal from the United States District Court for the Southern District of Georgia.

Before COLEMAN, Chief Judge, TJOFLAT and HILL, Circuit Judges.

COLEMAN, Circuit Judge.

Somewhere around 10 o'clock, P. M., March 6, 1978, Pilots (appellants) Darwin and Maskeny, accompanied by defendant Perkins, landed a twin engined airplane at the Sylvania, Georgia public airport, loaded with 3,623 pounds of marijuana. They were met with an entirely unexpected welcome from United States Customs Agents and Georgia state officers who had been awaiting their arrival.

The other defendants (appellants), also expecting the arrival, had stationed themselves and their trucks in the adjacent woods. They rushed to the plane and quickly transferred the cargo, after which they set out for Washington, D.C., only to be intercepted by other officers who had been waiting down the road. No ambush was ever more successfully laid or executed.

This happened because from the outset some of the participants unwittingly had been dealing with an undercover government agent who had been kept informed of everything that went on. Indeed, these conspirators were so gullible that an agent had no difficulty in leading them to believe that He was the owner of the publicly owned Sylvania airfield. While most everybody has heard of wooden nutmegs and of the Brooklyn Bridge, two of the conspirators actually paid the agent $2,000, cash in advance, for the privilege of landing their clandestine cargo on "his" airfield.

The defendant who had initiated the scheme with the government agent, and who handed over the $2,000 supplied by one of the others, quickly saw that he was irretrievably caught in the jaws of the lion, so he pleaded guilty. He testified for the prosecution, corroborated everything that the agent had sworn to, and wobbled only as to whether it was in November or December that he had received his first contact from one of the other conspirators, an immaterial matter in light of the evidence in the case. Defendant Kraince also pleaded guilty. The proof was annihilating but the remaining ten men stood trial to a jury. They were represented by skilled and tenacious trial counsel, who generated towering columns of smoke despite the absence of useful combustibles. Whatever else may be said of this case, the defendants did not suffer for the lack of counsel who were both competent and energetic.

The presence of so many defendants and so many lawyers generated a bloated trial record. After oral argument and an exploration of that record we are altogether convinced that the judgment of the District Court must be affirmed.

Darwin, Maskeny, Meycher, Perkins, Julian Thomas Pernell, Sidney Larry Pernell, and Barry Wayne Toombs were indicted for conspiracy to import 3,623 pounds of marijuana from outside the United States. The indictment further charged that when the contraband arrived, Blackburn, Crocker, Harvey, Kraince, Meycher, Murchison, the two Pernells, Toombs, Darwin, and Maskeny participated in unloading the marijuana from the aircraft.

Count 2 charged Darwin, Maskeny, Meycher, Perkins, the two Pernells, and Toombs with importation and causing importation.

Count 3 charged all defendants with conspiring to possess with intent to distribute, while Count 4 charged all named defendants with actual possession with intent to distribute.

The relevant statutes are: 21 U.S.C., Sections 841(a)(1), 846, 952(a), 960, and 963; 18 U.S.C., Section 2.

All defendants were found guilty on all charges. ¹

On January 7, 1978, William A. Wallace, Jr., an employee of the United States Customs Service, met at the Savannah airport with Jesus Manuel Meycher (who later pleaded guilty), Barry Wayne Toombs, Julian Pernell, and Frank Landry. Landry, an airplane pilot and locator from Florida, had informed Wallace that some people were interested in finding a clandestine air landing strip in Georgia, that these people would be in Savannah on January 7, and wondered if Wallace could get together with them and show them such an airfield. Wallace pretended to be the owner, in full control, of the Sylvania airport. The boundary lights could be turned on and off; "we knew the area including backroads". GBI Agent Claude Clardy went with Wallace and the others on the exploratory trip to the Sylvania airfield, about a ninety minute drive from Savannah. Meycher, Toombs, Pernell, and Landry pronounced the field satisfactory after a ten minute observation. They returned to Savannah.

Meycher asked Wallace if he could come down to Miami the next day to pick up the $2,000 "good faith" money, giving him $200 with which to purchase the airline ticket. Wallace went to Miami, where he met with Meycher, Julian Pernell, and Larry Pernell, and got the $2,000. At the first meeting, the parties informed Wallace that the aircraft Would be coming from Colombia. It would be a large four engine type airplane, probably a DC-6, and would be transporting approximately 20,000 pounds of marijuana. They needed nothing from Wallace but the clandestine airstrip. Julian Pernell said that they had their own trucks, that they would be using two twenty foot sealed vans. They would have drivers in uniforms and bills of lading in case they hit a roadblock.

At Meycher's invitation, Wallace was back in Miami on March 3, where he met Meycher at the Marriott Hotel in a meeting that was surveilled by two DEA Agents. Meycher said that the 20,000 pound airplane deal had fallen through but a smaller airplane would be coming in, wishing to know if Wallace had any objections to that. Of course, Wallace had none. He gave Meycher a previously requested aviation chart for the Sylvania airfield and Meycher asked him to call him later. No other defendant was present at this meeting.

Wallace talked to Meycher by telephone on March 4. Meycher said that "the deal was set" and that they wanted to go ahead with it on Monday or Tuesday. At approximately midnight on March 5 Wallace was again in touch with Meycher at Howard Johnson's in Savannah, who asked Wallace to meet him the next morning, saying that everybody was in town.

That next morning, Wallace and GBI Agent Clardy met with Meycher at the Howard Johnson, where Meycher again said that everybody was in town, that the deal was set to go that night. After breakfast, Meycher, Wallace, and Clardy went across the street to the Ramada Inn and met Julian Pernell and Barry Toombs. All five men got in a rental car and drove around "to further discuss the deal". Julian Pernell at that time stated that the DC-6 deal was off, that they had a smaller twin engine aircraft that would be coming into the field. Julian Pernell said that they had four pickup trucks at various motels "so they would not draw heat", that they were of the four wheel drive type which would be used to transport the load from the airfield. Toombs said that the load was going to Washington. As the parties drove back in at the Ramada, Julian Pernell pointed out one of the vehicles.

During the ride there was some discussion that the aircraft would be in between 9 and 10 o'clock that night.

At that point Toombs, Pernell and Meycher were dropped off.

At 5 o'clock that afternoon Meycher, Julian Pernell, and Toombs met with Wallace As the marijuana laden aircraft approached the airport it announced its approach on the UNICOM located inside the "terminal". Those present at the hangar area were Clardy, defendant Harvey, defendant Meycher, and defendant Larry Pernell. The trucks were brought in and "everybody except Darwin and Maskeny were loading the vehicles". Perkins and Harvey passed the bales out. The aircraft was unloaded. Perkins and Harvey vacuum cleaned the interior, during which time Customs Agent Wallace heard Perkins say "I just made a long trip from Colombia and I want to get out of here". (Vol. 1, p. 252)

and Clardy at the Ramada Inn restaurant. At 6 o'clock the parties left for the Sylvania airfield. Barry Tombs went to Sylvania with Customs Agent Wallace in an undercover GBI truck, followed by Julian Pernell, driving another truck. Upon arrival at Sylvania another truck was already present, in the woods about a half mile from the runway. There were four 4 wheel drive pickup trucks at the scene, equipped with camper shells and CB radios.

While the others started off in the trucks Darwin, Maskeny, Harvey, and Perkins remained with the aircraft, after which they were arrested and taken inside the terminal.

The defendant, Jesus Meycher, who had been conducting the arrangements with Agent Wallace and who later pleaded guilty was thirty-two years old, an American citizen, resident of Tuscon, Arizona, a high school graduate, with a year of school in Mexico.

The government agreed to recommend probation in return for his testimony. He pleaded guilty to two counts

According to Meycher, in December, 1977, in Tucson, he was contacted by the defendant Barry Toombs, who needed an airplane to smuggle...