U.S. v. Mitchell

• Decision Date: 26 November 1985
• Docket Number: No. 83-2717,83-2717
• Citation: U.S. v. Mitchell, 777 F.2d 248 (5th Cir. 1985)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Brydie MITCHELL, Jose Carlos Prado, Reinaldo Rabeiro, Robert Webster Cary, III, and John Doyle, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 248

777 F.2d 248

UNITED STATES of America, Plaintiff-Appellee, v. David Brydie MITCHELL, Jose Carlos Prado, Reinaldo Rabeiro Robert Webster Cary, III, and John Doyle Defendants-Appellants.

No. 83-2717.

United States Court of Appeals Fifth Circuit.

Nov. 26, 1985.

Rehearing Denied Jan. 2, 1986.

Jerry Coyle, Beaumont, Tex. (Court Appointed), for D. Mitchell.

Jimmy Phillips, Jr., Angleton, Tex., for Prado.

Kazen & Ray, Abraham Kazen, III, Bennie E. Ray, Austin, Tex., for R. Cary and R. Rabeiro.

Michael A. Pedicone, Michael R. Abramovic, Chicago, Ill., for J. Doyle.

Bob Wortham, U.S. Atty., Beaumont, Tex., Robert J. Erickson, Louis M. Fischer, Attys., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

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

Before REAVLEY and JOLLY, Circuit Judges, and MAHON ^*, District judge.

E. GRADY JOLLY, Circuit Judge.

In this case, charging numerous violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) and federal narcotics laws occurring between December 1978 and November 1980, many defendants were involved, and many issues are now raised. Some of the defendants pleaded guilty, some were dismissed, some were acquitted, and of the nine whose cases finally went to the jury, five were convicted. The district court imposed fines upon four and sentenced all to prison terms. All now appeal.

I

The evidence showed that the defendants were engaged in a conspiracy to import large quantities of marijuana from South America to Texas and Louisiana between December 1978 and November 1980. The defendants filled four basic roles in the conspiracy. (1) Suppliers were those who procured the marijuana in South America, and transported it to the Gulf of Mexico in a mother ship. (2) Smugglers took the marijuana from the mother ship to the shore line and then to a point inland. (3) Brokers arranged the transactions between the suppliers, smugglers and the major wholesale buyers. (4) Wholesale buyers, in turn, distributed the marijuana to smaller buyers for sale on the streets.

With two exceptions, the suppliers were either Dario and Enrique Cotes (the Cotes brothers), or Jesus Carnet, none of whom are parties to this appeal. In addition to being a supplier, Carnet also occasionally functioned as a smuggler. Jose Fernandez, who also is not a party to this appeal, played the key role in the scheme by serving as the broker on all shipments. The defendant Reinaldo Rabeiro was Carnet's employee and thus primarily associated with the smuggling operation and, to a lesser extent, the supplier operation. The defendants John Doyle and David Mitchell were major buyers. The defendant Robert Cary captained a vessel used in transporting the marijuana from a mother ship to the Texas shore and was thus associated with the smuggling operation. One of the government's primary witnesses, Diego Morales, helped Fernandez in the smuggling and broker operations by unloading marijuana from trucks, weighing the marijuana and collecting money from the wholesale buyers. The defendant Carlos Prado was also associated with Fernandez and served in the same role as Morales. Fernandez, Prado and Morales will sometimes be referred to collectively as the Fernandez group.

The facts leading up to the defendants' arrest are lengthy and complex. They are contained in a forty-five-volume record and concern events and parties not relevant to this appeal. For simplicity, we will briefly summarize only the material facts surrounding the eleven shipments and each defendant's involvement.

The Abita Springs Shipment

The first known activity in this case occurred in December 1978, when the Fernandez group travelled from Miami, Florida, to a farm in Abita Springs, Louisiana, owned by Carnet. There Fernandez sold a marijuana shipment, supplied by Carnet, to Robert Govern, a major wholesale buyer. Morales and Prado participated in the weighing and loading of that marijuana. The Fernandez group later returned to their home base in Miami where Morales and Prado collected the balance of the money owed by Govern. Morales, in turn, delivered some of the money to Rabeiro for delivery to Carnet.

The Kountze Farm Shipment

In February 1979, Carnet purchased a farm near Kountze, Texas, to be used as a place in which to conceal the marijuana during the distribution process (known as a "stash" site). Later that month, the Fernandez group travelled to Beaumont, Texas, to await the arrival of one of Carnet's shipments. When the marijuana arrived, the Fernandez group met Carnet, Rabeiro and others at the Kountze farm. This load was sold to Govern. The Fernandez group later returned to Miami, where Prado and Morales collected payment from Govern and passed some of that payment to Rabeiro for Carnet.

The Rice Silo Farm Shipment

After the Kountze Farm transaction, Fernandez decided to become a smuggler as well as a broker. To that end Fernandez formed a partnership with Armando Lopez of Houston, Texas, who had represented that he could transport the marijuana from the mother ship to shore and then to a point inland. The Fernandez group travelled to Houston to meet Lopez and Cary to discuss the proposed smuggling operation.

While those discussions were taking place, Carnet informed Fernandez of the expected arrival of another shipment. In preparation, the Fernandez group, along with Lopez, travelled to Beaumont to select a suitable stash site. Unable to find a site, the Fernandez group and Lopez returned to Houston to consult with Doyle, a major buyer. After the meeting Morales accompanied Doyle to inspect a prospective stash site, a farm in LaBelle, Texas, known as the Rice Silo Farm. About a week later, in late April or early May 1979, Carnet notified Fernandez of the precise arrival time of the new shipment. The Fernandez group, Doyle and Mitchell, another major buyer, then travelled from Houston to the Rice Silo Farm. Carnet and Rabeiro arrived to meet the others at the farm shortly after the arrival of the trucks carrying the marijuana. Because of a disagreement among some of the defendants, however, the marijuana was reloaded and driven to Abita Springs, Louisiana. There the Fernandez group, along with Rabeiro, weighed the marijuana and left it to be divided between Mitchell and Doyle.

The JANICE Shipments

In the meantime, another marijuana shipment had reached the Gulf of Mexico. Fernandez and Lopez functioned both as smugglers and brokers on this shipment. Anticipating the shipment's arrival, the Fernandez group travelled from Miami to Houston where they waited at Lopez's house until Lopez's crew unloaded the marijuana from the M/V JANICE to trucks on shore. The marijuana was delivered to a stash house on Highway 45, north of Houston in late May 1979. Lopez and the Fernandez group split the first delivery between the buyers Govern and Mitchell. Approximately two nights later, Lopez's offloaders transferred the remaining marijuana from the mother ship to the M/V JANICE. The JANICE and marijuana, however, were seized in the early morning hours of May 29, after the vessel ran aground just offshore.

The Jasper Farm Shipments

In August 1979, an associate of Govern purchased a farm near Jasper, Texas, to use as a stash site. At the beginning of September of that same year the Fernandez group inspected the Jasper farm, and, with the assistance of others, moved trucks, cars, scales, and communications equipment onto the farm. At this point, Prado had been replaced in the Fernandez group by Ruben Perez. In preparation for the next shipment, the Fernandez group established headquarters in a house in Houston, and set up radio communications on a farm on the outskirts of town. The next marijuana shipment, furnished by the Cotes brothers, arrived on or about December 4, 1979. Fernandez and Lopez functioned both as brokers and smugglers on this load. About 8,000 pounds of marijuana was delivered to the Jasper farm on the first night, and the rest of the shipment was successfully offloaded and delivered the following night. Morales and Perez assisted in weighing and distributing the 48,000-pound load. Govern was the major buyer. After the load was distributed, the Fernandez group returned to Houston where Govern paid them between $2 million to $2.5 million.

On December 19, 1979, Carnet imported about ten tons of marijuana and transported it to the Jasper farm. The Fernandez group and Lopez received word that the shipment had arrived and went to the Jasper farm where they met Carnet, Rabeiro and others. The load was weighed and distributed to Mitchell. Following the transaction, the Fernandez group travelled to Miami. In Miami, Morales and Perez collected cash payments from Govern, Doyle and Mitchell. By January 1980, Perez had collected $2 to $2.5 million from Mitchell, about one-half Mitchell's debt for the December 19 load. Perez later made two payments of about $600,000 each to Rabeiro for Carnet.

On or about January 14, 1980, Perez, Morales, and Lopez travelled from Miami to Houston. A shipment from the Cotes brothers arrived on January 15 or 16. On the first two nights, however, those on shore lost contact with the boats. In the early morning hours of January 22, the third night of the operation, a local sheriff arrested Lopez and some of the others. Lopez was later released.

After that failed attempt, Perez and Morales went back to Miami where they collected payment for previous shipments from Govern and Mitchell. Between December 1979, and early February 1980, Perez's collection for prior shipments totalled $15 million to $20 million in cash. On two occasions thereafter, Perez delivered money to Rabeiro for Carnet.

In early February 1980, Perez and Morales met some of Carnet's associates in Houston to discuss the arrival of a new shipment from Carnet. The shipment was delivered, and Perez, Morales, and Rabeiro weighed and distributed this marijuana shipment at the...