U.S. v. Nickerson, 80-5885

• Citation: 669 F.2d 1016
• Decision Date: 11 March 1982
• Docket Number: No. 80-5885,80-5885
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph A. NICKERSON and Danny Joe Hawkins, Defendants-Appellants. . Unit B *
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1016

669 F.2d 1016

UNITED STATES of America, Plaintiff-Appellee, v. Joseph A. NICKERSON and Danny Joe Hawkins, Defendants-Appellants.

No. 80-5885.

United States Court of Appeals, Fifth Circuit.

Unit B ^*

March 11, 1982.

Raymond W. Russell, Richard M. Saccocio, Fort Lauderdale, Fla., for nickerson.

Edward McHale, Coral Gables, Fla., for Hawkins.

Atlee W. Wampler, III, U. S. Atty., Michael P. Sullivan, Asst. U. S. Atty., Miami, Fla., William C. Bryson, Gloria C. Phares, Washington, D. C., for the U. S.

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

Before FAY, FRANK M. JOHNSON, Jr., and THOMAS A. CLARK, Circuit Judges.

THOMAS A. CLARK, Circuit Judge:

This appeal arises out of the convictions of Joseph A. Nickerson and Danny Joe Hawkins for their activities regarding plots to smuggle marijuana into the United States. Specifically, Nickerson was convicted of conspiring to import marijuana in violation of 21 U.S.C. § 952 and of conspiring to possess marijuana in violation of 21 U.S.C. § 846. Hawkins was convicted on both conspiracy counts as well as for possession of marijuana with intent to distribute it in violation of 21 U.S.C. § 841(a)(1). The appellants claim that the district court made several errors which require the reversal of their convictions. We reject these contentions and affirm their convictions.

The appellants were both associated with a large marijuana importation ring directed by Edward Savage, one of the individuals indicted below. The appellants, together with the other co-defendants, were charged with a total of twenty-one drug offenses occurring between October 1976 and July 1977.

During October 1976, an incident occurred which ultimately established a link between Hawkins and the marijuana importation ring. A Dade County detective, acting in an undercover capacity, met with Edward Savage in order to purchase four tons of marijuana. Although this particular deal fell through, arrangements were later made for the delivery of two and one-half tons of marijuana from Colombia for $295 per pound. This load of marijuana was to land at Homestead General Airport on the night of January 19, 1977. This plane, however, crashed in the Bahamas and in place of the lost cargo, Savage offered the undercover agent one thousand pounds of marijuana. It was arranged that this marijuana would be delivered to a furniture store parking lot in North Dade, Florida. Savage promised to be in a white Cadillac at 7 p. m. When the undercover agent arrived, he saw Savage next to the store and the appellant Hawkins and another man inside the automobile. Arrangements were then made as to the details of the transaction next to the Cadillac, while Hawkins waited inside with the window open. When the undercover officer refused to go elsewhere to inspect the marijuana, it was agreed that the transaction would be completed in the parking lot. Hawkins and the other man then drove off. They soon returned, and shortly thereafter a truck filled with marijuana showed up.

The undercover agent inspected the marijuana. He explained that he had to take a sample to his organization and would return with the money. Thereafter, all on the scene were arrested.

Undaunted by this setback, the intrepid band of drug smugglers were soon on the street again and back in business. The next incident was to tie Nickerson into the ring. The next month, Savage bribed Deputy Jimmy Cypress of the Hendry County, Florida, Sheriff's Department. Cypress, one of the leaders of the Seminole tribe, patrolled the Seminole Indian Reservation, ¹ and it was arranged that drug-laden planes would land at a remote location there.

Nickerson and Hawkins met with Cypress on various occasions during the next several months. They brought a pickup truck to Cypress, which afterwards was used by the drug ring to transport marijuana off-loaded from the planes. Once, while Nickerson was using the truck, Cypress testified that he told him a planeload of marijuana was to be landed shortly. On other occasions, both Nickerson and Hawkins delivered payments from Savage to Cypress.

During this time, a number of short trips to Freeport, in the Bahamas, were made by a pilot in the pay of Savage. This pilot, Herman Hernandez, testified that he would fly to Freeport, pick up a load of marijuana, and then fly to the Seminole Reservation. He stated that Nickerson flew with him to Freeport on two occasions to meet contacts and to arrange flight signals. He also testified that after landing in the reservation, Nickerson would be waiting to help unload the marijuana. Although usually he was met by Nickerson alone, at least on one occasion he was also met by Hawkins. Hernandez also testified that on several occasions he saw Nickerson and Hawkins at Savage's house, where they had gathered to discuss future flights. The drug ring was afterwards broken up.

The appellants claim that the trial court committed error when it denied their motion for a mistrial after the prosecution had elicited statements from Hernandez, the government's chief witness, indicating that at previous trials his testimony had resulted in convictions. During cross-examination, it had come out that, in return for cooperating with the government, Hernandez received immunity for thirteen counts of importation of marijuana, thirteen counts of conspiracy, thirteen counts of possession of marijuana, and one count of bail jumping. It was also revealed that through the intervention of the Federal government, Hernandez's pilot license had been reinstated. Further, it was established that Hernandez's family had received funds from the government while Hernandez was acting on its behalf as an informant. During the course of the cross-examination, defense counsel elicited that Hernandez had testified in the other cases in which he had been granted immunity. There were also some minor inconsistencies between Hernandez's testimony and that of other government witnesses.

In the course of redirect examination, the prosecution sought to buttress Hernandez's credibility. The following exchange then took place:

Q (Mr. Sullivan, prosecutor): How many times have you testified as a federal witness?

MR. RUSSELL (attorney for Nickerson): Asked and answered, your honor.

THE COURT: Objection overruled. I think it has been covered.

A (Hernandez): South Carolina, the two bribe cases, that is three; and this one is four.

Q (prosecutor): And those other three, did the defendants, and every one of them get convicted upon your testimony?

A (Hernandez): Every one.

MR. McHALE (attorney for Hawkins): Objection, your Honor.

MR. RUSSELL: Move for mistrial.

Record, vol. 6 at 281. Thereafter, the court consulted with counsel on the motion for mistrial and requested assistance in drafting a cautionary instruction. The district judge then decided to deny the motion for mistrial and gave the following cautionary instruction:

THE COURT: Ladies and gentlemen, you are instructed that the Court has stricken the question to the witness Hernandez as a result in other cases that he has testified at the instance of the Government.

The Court has also stricken the answer to that question. The question and answer is, by this ruling, excluded from your consideration.

In that connection, ladies and gentlemen, you are instructed that each case is different from any other case. The evidence on which cases are decided is never really identical in any two cases.

You are of course to consider the issues in this case on the evidence admitted by this Court in this case, and only on that evidence. The outcome of any other case is not to be considered by you in deciding guilt or innocence of any of the Defendants here. You must be guided only by the evidence admitted here coupled with the law that the Government has the burden of proving its case beyond a reasonable doubt. No other jury decision in a case, the facts of which we cannot and should not know, will have any influence on your verdict in this case.

Record, vol. 6 at 293-94.

Both sides are agreed that the prosecutor's question was improper. The only question at issue is whether the cautionary instruction cured the improper question.

In support of their position, the appellants cite United States v. Miranda, 593 F.2d 590 (5th Cir. 1979). There, the prosecutor suggested to the jury that another jury had found a co-conspirator guilty of the same offense on less evidence. There existed a clear implication that the jury should therefore convict the defendant. This court held that this argument caused such prejudice to the defendant that no curative instruction could have repaired the damage.

The appellants also urge United States v. Smith, 565 F.2d 292 (4th Cir. 1977), and Kaminski v. State, 63 So.2d 339 (Fla.1953), upon us as persuasive authority. In Smith, a prosecution witness was questioned by the prosecutor about taking a lie detector test. The trial judge struck the evidence and gave a curative instruction to the jury to ignore the question and answer. The Fourth Circuit affirmed the conviction but remarked that it was doing so in part because the witness in question was not a crucial witness. The appellants claim that it also cited Kaminski with approval.

The Florida Supreme Court in Kaminski reversed a trial court ruling. A prosecution witness was asked on redirect examination whether he had taken a lie detector test and he responded affirmatively. The trial judge did not give a curative instruction. The result, the Florida Supreme Court concluded, was egregious error that required reversal.

Hawkins would further urge upon us cases which stand for the proposition that the prosecutor may not express his opinion on the credibility of a witness (see, e.g., United States v. Morris, 568 F.2d 396 (5th Cir. 1978); United States v. Velasquez, 496 F.2d 1009 (5th Cir. 1974); United States v. Martinez, 466 F.2d 679 (5th Cir.), cert. denied, 414 U.S. 1065,...