U.S. v. Mills

• Decision Date: 20 May 1985
• Docket Number: No. 83-3662,83-3662
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Silbert MILLS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1116

760 F.2d 1116

UNITED STATES of America, Plaintiff-Appellee, v. Silbert MILLS, Defendant-Appellant.

No. 83-3662.

United States Court of Appeals, Eleventh Circuit.

May 20, 1985.

William W. Montjoy, Tallahassee, Fla., for defendant-appellant.

Lyndia P. Kent, Asst. U.S. Atty., W. Thomas Dillard, Tallahassee, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before RONEY and CLARK, Circuit Judges, and SIMPSON, Senior Circuit Judge.

SIMPSON, Senior Circuit Judge:

Silbert Mills, a Bahamian customs officer stationed at Marsh Harbour, Great Abaco Island, in the Bahamas, was indicted and tried in the Northern District of Florida for his aid to smugglers transporting marijuana from Jamaica to Gainesville, Florida. A jury convicted him of conspiracy to import marijuana, 21 U.S.C. Secs. 952(a), 963; conspiracy to possess marijuana with intent to distribute it, 21 U.S.C. Secs. 841, 846; and possession of marijuana with the intent to distribute it, 21 U.S.C. Sec. 841, 18 U.S.C. Sec. 2. ¹

The court set a sentencing hearing two months and two days from the date of the verdict. Neither of Mills' two attorneys appeared. Consequently, the court appointed new counsel and rescheduled the hearing. Mills then filed a motion for new trial, Fed.R.Crim.P. 33, which alleged that the two trial attorneys John V. Russell and Charles Rich, had rendered ineffective assistance before and at trial. After an evidentiary hearing, on the ineffective assistance issue, the district judge denied the motion for new trial and imposed sentences which included imprisonment, fines and a special parole term authorized by 18 U.S.C. Sec. 4205(b)(2).

Mills appeals his conviction arguing that the district court committed reversible error in refusing to allow him to depose an unarrested Bahamian co-defendant and again arguing that he received ineffective assistance. For reasons stated below, we remand these issues for further action by the district court. We must adjudicate a third argument challenging the sufficiency of the evidence to support the verdict in order to assure that our order of remand does not violate the double jeopardy prohibition of the Fifth Amendment. United States v. Palzer, 745 F.2d 1350, 1352 (11th Cir.1984).

In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the government and make all reasonable inferences and credibility choices in favor of the verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Gold, 743 F.2d 800, 824 (11th Cir.1984). If a reasonable jury could find that the evidence, viewed by this standard, proved the defendant's guilt beyond a reasonable doubt, we must sustain the verdict. United States v. Payne, 750 F.2d 844, 855-56 (11th Cir.1985).

The government's case against Mills hinged upon the testimony of three convicted drug smugglers who regularly imported marijuana from Jamaica to Gainesville. Raymond Ross, Jr., the head of the operation, testified that he met "Sali" Mills while going through a customs check at the Marsh Harbour airport. The time of this meeting does not appear in the record. He had regularly traveled through that entry point and had shown the officials there a voter's registration card as proof of his United States citizenship. Shortly thereafter, Ross told Mills that he was a smuggler who was looking for refueling stops in the Bahamas. Mills replied that arrangements could be made but Ross would have to pay to "play on his turf." Ross then gave Mills a thousand dollar gratuity "to be used to come in and out without any hassel." In November, 1981, Ross returned to Marsh Harbour and inquired about using the airport for unloading and refueling. Mills told Ross that Cay Russell ² would show him an abandoned airstrip which was well surfaced and unmanned by government agents and which had been used safely in the past by other smugglers. When Ross and Cay were unable to locate the airstrip, Mills, who was a pilot, took them for a flight and identified the location from the air. Ross then advised Mills that he would use the airstrip a few days later. Within a week, an airplane loaded with three hundred and eighteen pounds of high grade marijuana landed at the airstrip. The marijuana was unloaded by Ross, Dale Turner and others and transported by Cay Russell to a house which Ross had paid Cay Russell to rent. Sometime later, the airplane was refueled, reloaded and flown by Dale Turner to Gainesville. There, the marijuana was unloaded at the direction of Joseph Brunke and distributed to wholesale purchasers.

Dale Turner testified that in late November, 1981, he flew an airplane from Fort Lauderdale, Florida to Marsh Harbour. There, "Sali" Mills, in his capacity as a customs officer, asked him some routine questions. When Turner mentioned Cay Russell and Raymond Ross, Mills responded by showing him a piece of paper with Ross's name and other information written on it. The two men left the customs office and discussed the load of marijuana Turner intended to transport. Mills gave Turner directions for receiving landing instructions by radio from Ross and informed him that as long as he was paid for the use of his facilities there would be no problem. Cay Russell transported Ross and Turner to a house where they rested and examined the marijuana. Sometime later, Turner flew the reloaded airplane to Gainesville.

Joseph Michael Brunke testified that Ross hired him on a commission basis, to unload marijuana and find buyers for it. In November of 1981, an airplane loaded with marijuana and flown by Turner landed in Gainesville. Shortly after Brunke and his crew unloaded the marijuana, "people arrived to take it away."

The government's fourth witness, Drug Enforcement Administration agent Gerald Carr, investigated the case after Ross had been arrested and agreed to cooperate. Carr testified that he, Ross and an undercover Bahamian police officer flew to Marsh Harbour and attempted to buy some marijuana from Cay Russell. Mills was on duty when they landed. Ross informed Mills that the airplane had no passenger seats and inquired whether its suspicious appearance would pose any problems. Mills expressed no concern and discussed the location and quantity of the marijuana with Cay Russell and the prospective purchasers. Cay Russell took the agents to a nearby house and showed them the marijuana, however, they were unable to complete a sale. Carr later checked telephone toll records and confirmed that certain telephone calls in which Ross and Cay Russell had arranged the marijuana purchase had been received at the customs office where Mills worked.

Mills admits that the evidence supports a finding that he knowingly conspired with United States citizens and residents to violate the laws of the Bahamas by ignoring illegal activities in Marsh Harbour. He argues, however, that his convictions for violating the laws of the United States must fall because there is no proof that he knew that the United States, specifically the Northern District of Florida, was the target of the conspiracy and no proof that he had possession of any marijuana. We disagree.

To establish the existence of a drug conspiracy, the government must prove an agreement by two or more persons to violate the narcotics laws.... The existence of a conspiratorial agreement may be established through circumstantial evidence, such as inferences from the conduct of the alleged participants or from circumstantial evidence of a scheme.... Proof is not required that the defendant had knowledge of all the details of the conspiracy; the defendant need only have knowledge of the essential objective of the conspiracy.

United States v. Elledge, 723 F.2d 864, 865-66 (11th Cir.1984) (citations and quotation marks omitted).

The circumstantial evidence presented below is sufficient to establish that Mills knew that Ross, Turner and their cohorts intended to import marijuana into the United States and possess and distribute it there. As a customs agent, Mills knew that the smugglers were United States citizens and residents from his examination of their voter's registration cards. He had made arrests of smugglers in the Bahamas out islands, an area that Ross testified was a haven for smugglers seeking entry from Jamaica into the United States. It may be inferred, therefore, that he had some knowledge of the patterns of drug traffic. As a pilot, Mills was familiar with aircraft. He was aware of the proximity of the United States and was informed that Ross desired to refuel his small, marijuana-laden aircraft on a return flight from Jamaica. A reasonable jury could infer from this evidence, beyond a reasonable doubt, that Mills knew that the marijuana would be flown into the United States. Further, both venue and the substantive crime of possession may be proved and were proven by his co-conspirator's overt acts of possession which were committed in the Northern District of Florida in furtherance of the conspiracy. United States v. Loyd, 743 F.2d 1555, 1561 (11th Cir.1984); United States v. Barnes 681 F.2d 717, 722 (11th Cir.1982). Accordingly, we find the evidence sufficient to support his conviction on all counts. ³

Mills' arguments addressing the fairness of the process by which he was convicted gives us more concern. The first is that the court erred in refusing to allow him to obtain, and introduce at trial, the videotaped deposition of the exculpatory testimony of Cay Russell. The pertinent parts of the court's order reveal that Mills' motion was denied solely because Cay Russell was a fugitive defendant: ⁴

Defendant ... desires to depose Cai Russell, an indicted co-conspirator, who currently resides in the Bahamas and has to date, avoided prosecution. The defendant offered to the court and the Government a videotaped interview with Cai Russell which the...