U.S. v. Miller

• Decision Date: 27 September 1984
• Docket Number: Nos. 83-3185,83-3319,s. 83-3185
• Citation: 742 F.2d 1279
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Laurie MILLER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1279

742 F.2d 1279

UNITED STATES of America, Plaintiff-Appellee, v. Laurie MILLER, Defendant-Appellant.

Nos. 83-3185, 83-3319.

United States Court of Appeals Eleventh Circuit.

Sept. 27, 1984.

Rehearing and Rehearing En Banc Denied Nov. 6, 1984.

Rick B. Levinson, Tampa, Fla., for defendant-appellant in both cases.

Karla R. Spaulding, Asst. U.S. Atty., Tampa, Fla., for plaintiff-appellee in both cases.

Stevan T. Northcutt, Tampa, Fla., for defendant-appellant in No. 83-3319.

Lee W. Atkinson, Asst. U.S. Atty., Tampa, Fla., for plaintiff-appellee in No. 83-3319.

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

Before GODBOLD, Chief Judge, TJOFLAT and HENDERSON, Circuit Judges.

TJOFLAT, Circuit Judge:

Appellant Laurie Miller and August Carl Benz (and others who have skipped bail and are fugitives) were indicted, in two counts, in the Middle District of Florida for conspiring to import over 1,000 pounds of marijuana into the United States and to possess that marijuana with intent to distribute (count one) ¹ and for submitting a false document to the U.S. Customs Service in connection with Benz' attempt to recover from Customs the sailing vessel used to carry out the conspiracy (count two). ² Miller and Benz were tried together before a jury. In her defense, Miller attempted to call Benz' trial attorney as a witness for the announced limited purpose of showing that she had not knowingly submitted to Customs the false document described in count two of the indictment. The court, sustaining Benz' objection, refused to allow the attorney to testify, and Miller moved for a mistrial. The court granted her motion. ³ After the court scheduled her case for retrial, Miller moved to dismiss the indictment with prejudice, claiming former jeopardy. ⁴ Miller's motion was denied, her case proceeded to trial, and she was convicted on both counts. In these consolidated appeals, ⁵ Miller presents alternative claims: that her retrial was barred by the double jeopardy clause of the fifth amendment and that the evidence was insufficient to support her convictions. We affirm.

I.

The facts established by the prosecution in this case have been set out in United States v. Benz, 740 F.2d 903 at 906, (11th Cir.1984). We restate them here, in the light most favorable to the government, ⁶ giving emphasis to those facts relevant to Miller's convictions.

In September 1981, Laurie Miller, a former employee of the U.S. Customs Service, and her boyfriend, Ed Cowart, were living together in a house in St. Petersburg, Florida. They knew most of the people who ran a certain marina in St. Petersburg and did business there. One day, Cowart and August Carl Benz, who chartered boats at the marina, approached John Hunt, a sailmaker who had done work for Benz, about the possibility of smuggling a load of marijuana into the United States aboard Benz' forty-eight foot sailboat, the Carpe Diem. Hunt was interested, and shortly thereafter the three men, joined by Miller and Steve Maros (the boyfriend of Benz' secretary, Debra Engh), met at the Miller-Cowart residence and arrived at a plan. Hunt, as captain, and Douglas Lee, as crew member, would sail the Carpe Diem to the Cayman Islands; there Cowart would give them their final instructions and, with Maros aboard, they would sail to Aruba, in the Lesser Antilles, to pick up the marijuana and return to Florida. To minimize the possibility that Customs agents might foil the operation, Miller briefed Hunt on their modus operandi and showed him photographs of several agents stationed along the Florida Gulf coast whom he might encounter.

The smuggling operation began in late September. Hunt and Lee, with the aid of Miller and Cowart who helped them outfit the Carpe Diem for the voyage, sailed the vessel to the Cayman Islands and there rendezvoused with Cowart and Maros, as planned. (Cowart, traveling under a false passport, had flown to the Islands.) Cowart instructed Hunt on how to proceed to Aruba and contact the marijuana source, a trawler off the Aruba coast. Hunt, following his instructions, took on Maros as an additional crew member and sailed the Carpe Diem to Aruba. He located the trawler, picked up 8,000 to 10,000 pounds of baled marijuana, and returned to a predesignated point off the Florida coast where he rendezvoused with Cowart, who was aboard a power boat, the Suzi Q. Hunt and Cowart then took the two vessels to Cedar Key, on the Florida Gulf Coast, where they and their crews offloaded the marijuana. Thereafter, Hunt and Maros sailed the Carpe Diem to a point off Hernando Beach, Florida and abandoned her. Cowart meanwhile abandoned the Suzi Q. Hunt and Maros then called Miller at her home in St. Petersburg and asked her to pick them up. She did so, and enroute to St. Petersburg they briefed her on what had transpired.

Customs officers subsequently found the Carpe Diem and the Suzi Q lying at anchor off the Florida coast and covered with marijuana residue. They seized the boats. ⁷ Benz, in an effort to set aside the forfeiture of his vessel, the Carpe Diem, presented, through his attorney, Anthony Gonzalez, a Petition in Remission or Mitigation of Forfeiture to Customs. Benz attached to his petition a charter agreement purporting to show that he had had the boat under charter to an Edgar Picado since September 1981. The charter agreement bore the signature "Edgar Picado," which Miller had signed.

Customs managed to learn that Hunt had captained the Carpe Diem in a marijuana smuggling venture, arrested him, and persuaded him to testify against his confederates. On September 16, 1982, the grand jury returned a two-count indictment charging Miller, Benz, and the others, as we have indicated in the margin. See supra notes 1 and 2. Only Miller and Benz made themselves available for trial; their coindictees became fugitives. Prior to trial, Miller moved for a severance of parties on the ground that she would need to call Benz' attorney, Anthony Gonzalez, as a material witness; she represented that Gonzalez would testify that she had no knowledge that Benz would present to Customs the charter agreement she had signed as Edgar Picado. The court denied her motion.

At trial, the government called Hunt, who testified to the above events. Crew member Douglas Lee confirmed his story. The Customs agents testified to their discovery of the Carpe Diem and the Suzi Q and introduced the marijuana residue they had scraped off the two boats. Finally, the government established a fact that Miller does not contest, that she had written the signature "Edgar Picado" on the charter agreement Benz had submitted to Customs.

Miller's response to the government's case was to deny any knowledge of the smuggling conspiracy and of the illegal use Benz made of her Edgar Picado signature. Taking the witness stand, Miller admitted that Cowart had been her boyfriend and that she had known all of the conspirators socially; she insisted, however, that this was the extent of her relationship with them. She admitted signing Picado's name on the charter agreement, but stated that she had done so merely to accommodate Debra Engh, Benz' secretary. Debra Engh told her that the original of the document had been in a briefcase stolen from Engh's car and asked her as a favor to sign Picado's name on a replacement copy. Miller said that she signed Picado's name and saw no harm in doing it, because she actually thought, from some statements Cowart had made to her, that Picado had the boat. She had no idea, she said, that anyone would present the document to Customs.

To buttress this point, Miller endeavored to call to the stand Benz' attorney, Anthony Gonzalez, who was acting as Benz' lead trial counsel. Benz objected, and the court precluded counsel from testifying. Miller then moved for a severance. The court advised her that it would only abort her trial if she formally waived any right she might have to claim later that a retrial would subject her to double jeopardy. Miller signed a waiver form, purportedly relinquishing such a right, on advice of counsel, so that on retrial she could have the benefit of Gonzalez' testimony. Thereupon, the court declared a mistrial of Miller's case.

After the district court scheduled her case for retrial, Miller moved to dismiss the indictment, claiming that a retrial would constitute double jeopardy. The court denied her motion, and she immediately took an interlocutory appeal. ⁸

On retrial, the government presented essentially the same evidence as at the earlier trial. Miller's defense did not change; she testified again that she had not known of any wrongdoing and had signed the name Edgar Picado merely to accommodate Debra Engh. Miller called Benz' attorney, Gonzalez, to bolster her claim that she did not know that the document would be presented to Customs as part of Benz' Petition for Remission or Mitigation of Forfeiture. He testified that he had prepared the petition and that the charter agreement, annexed to the petition, had previously been signed out of his presence, presumably by Edgar Picado. The jury found Miller guilty as charged on both counts, and, following the imposition of sentence, she appealed.

In these consolidated appeals, Miller presents alternative claims, each of which, if valid, would require us to acquit her on both counts. She challenges the trial court's denial of her double jeopardy motion and the sufficiency of the evidence to support her convictions.

II.

A.

In determining whether Miller's retrial was barred by the double jeopardy clause, we face two issues: whether Miller was placed in jeopardy twice within the meaning of the double jeopardy clause and, if so, whether, by executing the purported written waiver as a condition precedent to the court's termination of her first trial, she somehow relinquished her double jeopardy claim. Since we resolve the first issue against Miller, we need not decide the legal...