U.S. v. Ross

• Decision Date: 11 October 1994
• Docket Number: No. 92-2788,92-2788
• Citation: 33 F.3d 1507
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Allan ROSS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1507

33 F.3d 1507

UNITED STATES of America, Plaintiff-Appellee, v. Allan ROSS, Defendant-Appellant.

No. 92-2788.

United States Court of Appeals,

Eleventh Circuit.

Oct. 11, 1994.

Robert L. Sheketoff, Kimberly Homan, Sheketoff & Homan, James W. Lawson, Oteri, Weinberg & Lawson, Boston, MA, for appellant.

Alan Burrow, David L. McGee, Asst. U.S. Attys., Tallahassee, FL, for appellee.

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

Before EDMONDSON and BLACK, Circuit Judges, and JOHNSON, Senior Circuit Judge.

JOHNSON, Senior Circuit Judge:

Allan Ross ("Appellant") appeals his convictions arising out of a vast, multi-party, international conspiracy to distribute cocaine. Upon review, we affirm the convictions.

I. STATEMENT OF THE CASE

A. Factual Background

This case concerns an international marijuana and cocaine conspiracy spanning from 1976 to 1990, involving two major international drug organizations, the "West End Gang" headed by Appellant and a Colombian drug organization headed by Angel Sanchez. The West End Gang, headquartered in Montreal, Canada, was led by Dooney Ryan until his murder on November 14, 1984. Shortly after the murder, Appellant, having observed police at the motel where Ryan was staying and, being unaware of Ryan's demise, had his attorney, Sidney Leithman, call the Montreal Police Department to determine if Ryan and his companion that evening, Paul April, had been arrested. April became a suspect in Ryan's murder as Leithman's phone call alerted the police to April's presence with Ryan. On November 25, 1984, April was killed by a bomb in Montreal. Appellant thereafter indicated to two associates, Gaeton Lafond, Jr., and John Quitoni, that he had ordered April's murder in retaliation for the murder of Ryan. Appellant succeeded Ryan as the leader of the West End Gang.

At the time of Ryan's murder, he and Quitoni had been negotiating a cocaine deal, which Appellant subsequently consummated. Through Quitoni and James Allardyce, the West End Gang completed several deliveries of cocaine from South Florida to Canada. In May 1985, at the Marriott Harbor Beach Hotel in Ft. Lauderdale, Florida, Allardyce met with Appellant, Elaine Cohen (Appellant's wife), David Singer, and Jean Guy Trepanier. ¹

Quitoni testified that within a week after this meeting, Trepanier asked him to come to the Windjammer Resort in Lauderdale-by-the-Sea to supply him a pistol. Quitoni gave the pistol to Trepanier and Raymond DesFosse, who was also present. Early the next morning, in an agitated state, Trepanier called Quitoni and asked him to come to the Windjammer to assist him. There, Trepanier and DesFosse told Quitoni that they had killed "the rat," David Singer, on behalf of Appellant because Singer was a potential witness against Appellant on drug and murder charges. They further admitted shooting a police officer the previous night, whereupon Quitoni drove Trepanier and DesFosse to an airport. Appellant later thanked Quitoni for aiding the escape of Trepanier and DesFosse. ²

Shortly after midnight on May 10, 1985, Trooper Michael Foti of the Florida Highway Patrol stopped a maroon Toyota. As Foti approached the driver's side door, the driver fired a shot, wounding Foti in his right leg. Later that morning, a K-9 officer with the Ft. Lauderdale Police Department tracked two individuals who had fled from a maroon Toyota to the area where a witness had been assaulted shortly after the shooting of Foti. That witness identified Trepanier as the man who aimed a pistol at him while running down the street with another man; the police found the revolver used to kill Singer in the maroon Toyota. Singer's body was found the next day, and the medical examiner determined that Singer's death had occurred on May 10. An associate of Singer testified that shortly before Singer's death, he overheard Singer's side of a telephone conversation in which Singer was upset because Leithman was claiming that Singer was a police informant.

Meanwhile, Angel Sanchez ran a large drug operation in Colombia. Although initially the organization only smuggled marijuana into the United States, in late 1981, Angel Sanchez, Pompo Sanchez, William Blackledge, Mark Klein, Robert Lazara, and Robert Moore met to discuss Sanchez's first load of cocaine. Sanchez's organization flew in its first cocaine load in February 1982. Roberto and Raul Aspuru stored the imported cocaine in Florida prior to its distribution.

David Sabio, who was highly involved in the importations, testified that he arranged a 1986 meeting between Blackledge and Appellant to enable Sanchez to supply cocaine to Appellant. Blackledge thereafter introduced Moore to Appellant. According to Moore, Appellant agreed to make huge, biweekly purchases of cocaine. Roberto Aspuru testified that the Sanchez organization supplied Appellant approximately 300-400 kilograms of cocaine during this time. In 1987, Appellant met with Sanchez to discuss the delivery of a large cocaine shipment to Canada.

In the Spring of 1987, the Sanchez organization recruited Bertram Gordon to arrange a deal with Appellant. Gordon met with Appellant at Blackledge's home several times in 1987, and eventually they agreed that Appellant would import three loads of cocaine from Colombia to Canada, through the United States. The loads, each consisting of approximately 600 kilograms of cocaine, were flown from Colombia to Appellant's employees in Nashville, Tennessee. In July 1987, Gordon left the United States for Canada, where he served as a middleman in certain of Appellant's drug transactions.

That summer, Angel Sanchez sent two boats to Europe, the "Finesse" containing 146 kilograms of cocaine and the "Big John" containing 600 kilograms of cocaine. Working for Appellant, Trepanier was to off-load the "Finesse" cocaine and distribute it in Europe. Of the "Big John" load, although some was targeted for the Sicilian Mafia, the majority was scheduled for distribution in Spain by Appellant. Appellant sent other employees to assist Trepanier; however Portuguese and Spanish authorities made arrests and seized the "Finesse" cocaine. ³

Contemporaneous with the ships' sailing, the Spanish National Police were observing Appellant's agents, Sabio and Francois LeBoeuf. The Spanish National Police wiretapped various telephones in accordance with Spanish law and observed Trepanier meeting with Appellant at the Malaga, Spain airport in late January 1988. The Spanish police then, again pursuant to Spanish law, wiretapped Appellant's hotel telephone. Transcripts of these various wiretaps were presented at trial, showing incriminating conversations between Sabio, LeBoeuf, Appellant, Blackledge, and Angel Sanchez and his associates. Simultaneously, the Spanish police in Madrid observed meetings between Angel Sanchez and members of Appellant's organization, including LeBoeuf and Sabio.

At trial, the government presented evidence of Appellant's attempts to intervene in the police investigation of the drug conspiracy. Specifically, John Flanders, a law clerk to Ft. Lauderdale attorney Kenneth DeLegal, testified that he flew to Montreal in late 1990 to consult with Leithman about the possible representation of Gordon. Although Leithman never told Flanders who was paying for this assistance, Flanders did see Appellant in Leithman's office. At Leithman's request, Flanders flew to Holland in January 1991 to offer Gordon representation, although DeLegal had no prior contact with Gordon. Gordon testified that (1) Flanders claimed to be an attorney retained by "his friends" to represent him, (2) Flanders advised him not to talk to any law enforcement authorities, and (3) Flanders claimed Appellant would provide him money.

Detective Chris Dale of the Broward County Sheriff's Department arrested Appellant on October 7, 1991 in Ft. Lauderdale. En route to jail, Appellant offered Dale a bribe, stating, as paraphrased by Dale: "Not that I would, but it sure would be nice if I could give you $200,000 or so and you would let me go." Dale ignored the comment.

B. Procedural History

On February 14, 1990, a grand jury sitting in the Northern District of Florida returned a three-count superseding indictment against Appellant, charging him, along with two others in Count I, with engaging in a continuing criminal enterprise, in violation of 21 U.S.C.A. Sec. 848 (West Supp.1994), and, along with fourteen others in Counts II and III, with conspiracy to import, to distribute, and to possess with intent to distribute marijuana and cocaine, in violation of 21 U.S.C.A. Secs. 841, 846, 952 & 963 (West 1981 & 1994 Supp.). Upon the government's pretrial motion, the district court disqualified Appellant's chosen counsel from representing him at trial. The court also denied Appellant's motions to exclude certain government evidence concerning (1) the bombing in Montreal, the murder of Singer, and the shooting of the Florida state trooper, (2) foreign business records, and (3) transcripts of conversations intercepted in Spain by the Spanish National Police. The court granted, over Appellant's objection, the government's motion to empanel an anonymous jury, which was selected on April 7, 1992. The court held a jury trial from April 9, 1992 through May 13, 1992, when the jury returned a verdict of guilty on all three counts. In July 1992, the court sentenced Appellant to three concurrent life sentences, to pay a fine of ten million dollars, and to pay the cost of confinement and supervision.

Appellant, who is currently incarcerated, filed a timely notice of appeal on August 13, 1992. Appellant raises the following issues on appeal: (1) whether the court erred in admitting into evidence transcripts of tape recordings of telephone conversations intercepted by the Spanish National Police; (2) whether 18 U.S.C.A. Sec. 3505 (West 1985) is constitutional; (3) whether the court abused its discretion by limiting Appellant's...