U.S. v. Morrison

• Decision Date: 02 December 1991
• Docket Number: 89-3011,89-3130 and 91-1164,89-2329,Nos. 89-2284,s. 89-2284
• Citation: 946 F.2d 484
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert M. MORRISON, Michael Anderson, James D. Walton, Sean Foley, and Jose Andrini-Varga, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 484

946 F.2d 484

UNITED STATES of America, Plaintiff-Appellee, v. Robert M. MORRISON, Michael Anderson, James D. Walton, Sean Foley, and Jose Andrini-Varga, Defendants-Appellants.

Nos. 89-2284, 89-2329, 89-3011, 89-3130 and 91-1164.

United States Court of Appeals Seventh Circuit.

Argued June 10, 1991.

Decided Oct. 10, 1991.

As Amended Dec. 2, 1991.

Patricia J. Gorence, Paul Kanter (argued), Asst. U.S. Attys., Office of the U.S. Atty., Milwaukee, Wis., for U.S.

Kenneth L. Cunniff (argued), Chicago, Ill., for Robert M. Morrison.

Thomas L. Shriner, Jr., Foley & Lardner, Milwaukee, Wis., Robert E. Shumaker (argued), Ross & Stevens, Madison, Wis., for James D. Walton.

Ronald L. Walters (argued), Chicago, Ill., for Michael Anderson.

Robert A. Adman (argued), Appleton, Wis., for Sean Foley.

Jeffrey B. Steinback, Geena D. Cohen, Leonard Goodman (argued), Genson, Steinback & Gillespie, Chicago, Ill., for Jose Andrini-Varga.

Before CUDAHY, COFFEY and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

Defendants were convicted of a variety of controlled substance offenses stemming from their involvement in a drug ring that imported and distributed cocaine and marijuana. They appeal their convictions and sentences on a variety of grounds. We affirm their convictions, but vacate the sentences of three of the defendants--Anderson, Foley, and Walton--and remand for resentencing.

The drug smuggling operation in which the defendants participated was run out of Gonzi Marine, a marina in San Juan, Puerto Rico. In its early years of business, between 1983 and 1985, the drug ring imported and distributed cocaine. Between 1986 and 1988, marijuana became its product of choice. During both periods, the group's method of operation remained the same. Members of the drug ring would travel to the country of supply--Panama for cocaine, Jamaica for marijuana--purchase their product, fly it by small plane to the coast of Puerto Rico, and drop it into the water near the deserted beaches of small islands off the coast. Other members of the ring would pick up the shipment by boat and transport it to Gonzi Marine and other points in Puerto Rico, where it was packaged and shipped in sealed coffee cans to Chicago, Milwaukee, and points north.

A total of 37 defendants were indicted in connection with this operation. The indictment charged the defendants with importing cocaine and marijuana and conspiring both to import and distribute cocaine and marijuana. Many of those accused pled guilty; those who did not were tried in three separate trials, including the prosecution giving rise to this appeal. A jury convicted defendant Morrison of both conspiracy to import cocaine and conspiracy to import marijuana as well as three counts of importing marijuana and one count of importing cocaine. Defendant Walton was convicted of conspiring to import marijuana, and defendant Anderson was convicted of conspiring to distribute cocaine and to import marijuana. Defendant Foley was convicted of conspiring to distribute and to import marijuana, as well as three counts of importing marijuana. Finally, Andrini-Varga was convicted of conspiring to import marijuana and three counts of importing marijuana. As necessary, we will discuss below the details of the smuggling operations and the defendants' participation therein. Defendants raise a host of challenges to their convictions and sentences. We address the bulk of them in our discussion; the remainder are palpably without merit.

I. ANDRINI-VARGA

A.

Andrini-Varga raises a number of claims relating to the venue of his trial. Though the majority of the group's activities took place in Puerto Rico, the defendants were tried in Milwaukee. This prompted Andrini-Varga to file a motion pursuant to Federal Rule of Criminal Procedure 21(b) requesting that his trial be transferred to Puerto Rico. The district court denied the motion and Andrini-Varga contests that decision on appeal. Rule 21(b) states that a district court may effect transfer of venue (as to particular defendants or as to particular counts of an indictment) "[f]or the convenience of the parties and witnesses, and in the interest of justice." We defer to the district court's resolution of Rule 21(b) motions, and will reverse its decision only if it amounts to an abuse of discretion. United States v. Zylstra, 713 F.2d 1332, 1336 (7th Cir.1983). "The facts must compel and not merely support venue transfer before an abuse of discretion will be found by an appellate court." United States v. Hunter, 672 F.2d 815, 816 (10th Cir.1982). Andrini-Varga asserts that the balance of relevant factors, which were set out in Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240, 243-44, 84 S.Ct. 769, 771, 11 L.Ed.2d 674 (1964), ¹ militate in favor of his request for a change of venue: he makes his home in Puerto Rico, all of his witnesses resided in Puerto Rico, and his participation in the drug ring's import operations occurred solely in Puerto Rico. Weighed against these factors, however, was the fact that Andrini-Varga was charged with conspiring to violate the drug laws and tried with five co-defendants. Because of the number of defendants involved, to have transferred Andrini-Varga's trial--essentially granting him a severance--would have given rise to a "multiplication of litigation" resulting in great inconvenience to the witnesses involved as well as considerable expense to the government. Zylstra, 713 F.2d at 1336. We recognize that the proper venue for criminal actions is normally "in [the] district in which the offense was committed," see Fed.R.Crim.P. 18, and that the majority of the conspiracy's activities took place in Puerto Rico. Nevertheless, given the countervailing considerations we have discussed above, and the fact that the drug ring did indeed distribute some of the drugs it imported in Milwaukee, we cannot say that the facts "compelled" the transfer of Andrini-Varga's trial. The district court did not abuse its discretion in denying his Rule 21(b) motion.

B.

Andrini-Varga also argues that the district court erred in denying his motion requesting that his Wisconsin attorney be allowed to travel to Puerto Rico at government expense to interview potential witnesses, take their depositions, and investigate the scene of the drug ring's alleged operations. Under Rule 15 of the Federal Rules of Criminal Procedure, an indigent defendant may petition the court for the payment of the cost of deposing witnesses (including attorney travel costs) when "exceptional circumstances" warrant the preservation of the testimony of prospective witnesses for use at trial. And under 18 U.S.C. § 3006A(e)(1), "counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for an adequate defense may request them in an ex parte application." Upon a finding that the requested services are "necessary" and that the defendant is indigent, § 3006A(e)(1) directs courts to authorize such expenditures. At least one court has read this subsection to apply not only to requests by counsel for investigators, but to the travel reimbursement requests of attorneys embarking on their own investigations on behalf of their clients. See United States v. Mateos-Sanchez, 864 F.2d 232, 239 (1st Cir.1988).

Under § 3006A(e)(1), investigative expenditures on behalf of indigent defendants are authorized to the extent they are "necessary for an adequate defense." The decision to grant or deny such requests is committed to the discretion of the trial court and will be overturned only for abuse of discretion. United States v. Goodwin, 770 F.2d 631, 635 (7th Cir.1985); United States v. Alden, 767 F.2d 314, 319 (7th Cir.1984). Andrini-Varga contends that the district court erred in refusing to authorize his attorney to travel to Puerto Rico "to interview potential witnesses." We are perplexed by this argument. While the district court denied Andrini-Varga's request for attorney travel expense reimbursement, it did indeed authorize the expenditure of $3,000 for investigative services to be used in the preparation of his defense. Andrini-Varga makes no mention of this fact in his brief on appeal. In light of the fact that Andrini-Varga was granted a $3,000 investigation budget, and in the absence of any argument on his part that the authorized sums were insufficient to mount an adequate defense, we cannot say that the district court abused its discretion in not authorizing additional investigative expenditures beyond that sum.

With respect to that portion of his motion implicating Rule 15, Andrini-Varga was required to demonstrate the existence of "exceptional circumstances" warranting the preservation of the testimony of prospective witnesses for use at trial. He failed to do so. His motion stated only that "it is possible that a number of depositions will need to be taken in regard to the preparation of this defendant's defense." This is not the stuff of "exceptional circumstances"; a showing of exceptional circumstances must be considerably more concrete and particularized than mere speculation about the possible need for depositions in the future. Faced only with Andrini-Varga's single sentence request, the district court (through Magistrate Bittner) did not err in denying the motion to the extent that it rested on Rule 15. We recognize that the ambiguous nature of Andrini-Varga's request may have been due to the fact that, at the time of the motion, his attorney was in the early stages of preparing a defense. We note that Andrini-Varga's Rule 15 motion was denied without prejudice and could have been renewed at a later date when he had collected more information relevant to his defense and the witnesses upon whom he wished to rely.

C.

Andrini-Varga also faults the district court for denying his request pursuant to Rule 17 of the Federal Rules of Criminal Procedure to subpoena--at the government's expense--sixty witnesses to appear to...