U.S. v. Merida

• Decision Date: 27 June 1985
• Docket Number: No. 84-1066,84-1066
• Citation: 765 F.2d 1205
• Parties: 18 Fed. R. Evid. Serv. 643 UNITED STATES of America, Plaintiff-Appellee, v. Dempsey Buford MERIDA, David Lee Merida, William Benjamin King, Tim Walker and Billy Ray Lilley, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1205

765 F.2d 1205

18 Fed. R. Evid. Serv. 643

UNITED STATES of America, Plaintiff-Appellee, v. Dempsey Buford MERIDA, David Lee Merida, William Benjamin King, Tim Walker and Billy Ray Lilley Defendants-Appellants.

No. 84-1066.

United States Court of Appeals, Fifth Circuit.

June 27, 1985.

Rehearing Denied July 31, 1985.

Brock Huffman, Michael J. Black, San Antonio, Tex. (court-appointed), for King.

Kent A. Schaffer, Houston, Tex., for Walker.

Robert O. Dawson, Austin, Tex., for David Merida.

Don Ervin, Houston, Tex., for Lilley.

Hugh Lowe, Austin, Tex., for Dempsey Buford Merida.

Edward C. Prado, U.S. Atty., John E. Murphy, Ms. Sidney Powell, Asst. U.S. Attys., San Antonio, Tex., for U.S.

Appeals from the United States District Court for the Western District of Texas.

Before GEE, POLITZ and WILLIAMS, Circuit Judges.

POLITZ, Circuit Judge:

Following an eight-week trial, the jury returned verdicts of guilty on multiple counts of violations of the drug laws by Dempsey Buford Merida, David Lee Merida, William Benjamin King, Tim Walker, and Billy Ray Lilley. Defendants appeal, claiming various trial court errors. Finding no merit in any assignment of error, we affirm all convictions.

FACTUAL BACKGROUND

This case is the culmination of an extensive investigation into a criminal operation cognomened the Dempsey Merida Organization. The organization developed and operated a criminal enterprise engaged in the manufacture, importation and distribution of controlled substances notably including heroin, cocaine, marihuana, amphetamines and methamphetamines. According to the scenario unveiled by the evidence, the organization, in support of its drug operations, engaged in vehicle and heavy equipment theft and numerous other crimes, perhaps even homicides. Headquartered in the Houston area, the organization's tentacles reached across state lines from Florida to Nevada and across international borders to points in Mexico and Belize. Dempsey Buford Merida headed the organization, assisted by William "Red" Follis, his chief lieutenant, and Charles "Chuck" Newlin, his attorney. The other defendants, Dempsey's son David, King, Walker, and Lilley, all served in lower echelon By 1975 the organization was dealing in large quantities of cocaine. From 1975 to 1978, Don Abbajay, who eventually became an informant for the Drug Enforcement Administration, regularly delivered cocaine in five-kilo shipments, from Lee Chagra in El Paso to the Merida Organization. Chagra was murdered in 1978 and Abbajay moved to Houston, using Conserve Electric Company as a front for his drug trafficking activities. The Conserve Electric warehouse became the organization's storage facility, pending distribution, for large quantities of controlled substances.

positions in the organization's heirarchy.

The organization grew during the decade of the seventies and by 1980 it had amphetamine and methamphetamine laboratories in several states. Robert Carpenter joined the Houston activities as a procurer of precurser chemicals, supplies, and equipment. Carpenter was introduced to the organization's operation when he fell behind in rental payments due on a warehouse he leased from Dempsey Merida. Carpenter first stored chemicals and glassware which originally were described as oil field explosives. David Merida later leased a truck to transport the stored items to a laboratory in a barn on a ranch owned by Ronald Dale Dunn near Johnson City, Texas. When Dempsey Merida told Carpenter to buy more chemicals Carpenter demurred, telling the elder Merida that he now knew the chemicals were being used to make "dope" and that he wanted out. Carpenter testified ¹ that when Dempsey Merida threatened his life and that of his family, he continued to acquire chemicals and equipment for the Dunn laboratory until that laboratory was made the subject of a search warrant and he and Dunn were arrested. ²

Following the arrest of Carpenter and Dunn, Dempsey Merida dispatched Newlin to represent them with instructions to make certain that they did not implicate any member of the Merida clan. Their silence was assured by both the carrot and the stick. If they maintained silence their families would be taken care of during their absence. If they broke silence, they were told that their families would be taken care of, but not in the paternalistic manner proposed in the first option. Dempsey Merida personally confirmed both the advice and the threats.

Upon the heels of the closure of the laboratory at Dunn's ranch, the organization arranged for an alternate site in Louisiana. Dunn, Newlin, Follis, James Edwards, and another of Dempsey Merida's sons, John, planned and set up another clandestine laboratory which produced more than 400 pounds of amphetamine in the period May-July 1981. During that period Dempsey Merida acquired 4,000 pounds of marihuana from a source in Arizona. His sons and Grady Patton distributed 400 pounds. The quality was poor and the balance was returned. At the same time, Newlin, Edwards, Walker, another lieutenant, D.C. McCauley, and Lon Robbins, a DEA informant, attempted to set up an amphetamine lab in Atlanta, Georgia. Their efforts were unsuccessful because arrangements could not be consummated with a local pharmacist who was to aid in the illicit activity.

In the spring of 1981 the organization expanded its operation into the importation of heroin and the theft of heavy equipment because the latter proved to be an effective means of attracting and paying Mexican suppliers. Oscar Valera of Reynosa, Mexico agreed to furnish the organization with an unlimited supply of heroin in exchange King remained active in the cocaine trafficking. In January of 1982 he and Lilley purchased amphetamines from Abbajay. Later when Abbajay ran out of drugs, Lilley had King deliver to Abbajay a "care package" containing heroin, cocaine, and amphetamines.

for cash and heavy equipment. Follis, Carpenter and Mac Montgomery stole targeted equipment and transported it to the Valley in South Texas where it was exchanged for multi-kilo quantities of heroin. Several such shipments were made in late 1981. In October the organization received five kilos of heroin, giving in payment $50,000 in equipment and $200,000 in cash. This shipment was divided in Houston between King (one kilo), Montgomery (one kilo), Hayes Jackson (two kilos), and Gary Mickelson (one pound). Shortly thereafter another five-kilo shipment was received. King put up $140,000 from the sale of his earlier kilo and received a kilo and a pound. Mickelson tendered $100,000 from monies received from sale of his earlier allotment and received a kilo. Follis received a pound. The cash payment was augmented by stolen tractors with backhoe attachments fancied by the Mexican source.

During late 1981 and early 1982 the organization took steps to import marihuana and cocaine paste from Belize. Their efforts met with limited success. The first load of contraband was dumped somewhere near Nuevo Progresso, Mexico when the airplane ran out of fuel. Bad fuel caused an abort of the second attempt when that aircraft crash-landed in Mexico while Dempsey and David Merida, accompanied by several others, awaited its cargo which was to be air-dropped to a secluded pasture on a ranch near El Campo, Texas. The third attempt was successful. Dempsey Merida, Follis, and Montgomery arranged for the smuggling of 500 pounds of marihuana from Belize to Tennessee. Arrests foiled the fourth attempt when the pilot and 400 pounds of marihuana were taken into custodia legis in Mississippi, and the fifth attempt when Anthony Stonedale and Ormand Mayer were arrested shortly after receiving 750 pounds of marihuana at a clandestine grass strip near Houston.

More factual detail is set forth in the introductory paragraphs to discussions of various assignments of error, infra.

On April 6, 1983 the grand jury indicted Dempsey, David and John Merida, Follis, Newlin, ³ Dunn, McCauley, Edwards, ⁴ Montgomery, Mickelson, Jackson, King, Mayer, Walker, Stonedale and 16 other members of the Merida Organization. ⁵

Dempsey and David Merida, King, Walker, and Lilley were jointly tried. Dempsey Merida was found guilty of 16 counts: continuing criminal enterprise; conspiracy to manufacture methamphetamine and amphetamine; conspiracy to distribute and to possess with intent to distribute amphetamine and methamphetamine; conspiracy to import amphetamine and methamphetamine; conspiracy to possess with intent to distribute cocaine; conspiracy to import cocaine; conspiracy to possess with intent to distribute heroin; conspiracy to import heroin; conspiracy to possess with intent to distribute marihuana; conspiracy to import marihuana; aiding and abetting possession with intent to distribute amphetamine; two counts of aiding and abetting possession with intent to distribute heroin; aiding and abetting possession with intent to distribute cocaine; aiding and abetting importation of cocaine; and possession with intent to distribute cocaine. 21 U.S.C. Secs. 841(a)(1), 846, 848, 952(a), 960, and 963 and 18 U.S.C. Sec. 2. David Merida was convicted on four counts: conspiracy to manufacture methamphetamine and amphetamine; conspiracy to distribute and to possess with intent to distribute amphetamine

and methamphetamine; conspiracy to possess with intent to distribute marihuana; and conspiracy to import marihuana. He was acquitted of conspiracy to import amphetamine and methamphetamine. 21 U.S.C. Secs. 841(a)(1), 846, 952(a) and 963. King was convicted of conspiracy to possess with intent to distribute cocaine and conspiracy to possess with intent to distribute heroin. King was acquitted of the charges of conspiracy to import cocaine and conspiracy to import heroin. 21 U.S.C. Secs. 841(a)(1) and 846. Walker was convicted of conspiracy to manufacture methamphetamine and amphetamine and conspiracy to distribute and to possess with intent to distribute...