U.S. v. Saintil

• Decision Date: 22 February 1985
• Docket Number: Nos. 83-5811,83-5828,s. 83-5811
• Citation: 753 F.2d 984
• Parties: 17 Fed. R. Evid. Serv. 707 UNITED STATES of America, Plaintiff-Appellant, v. Belony SAINTIL and Kersazan Tacius, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellee, v. Kersazan TACIUS and Belony Saintil, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 984

753 F.2d 984

17 Fed. R. Evid. Serv. 707

UNITED STATES of America, Plaintiff-Appellant, v. Belony SAINTIL and Kersazan Tacius, Defendants-Appellees.

UNITED STATES of America, Plaintiff-Appellee, v. Kersazan TACIUS and Belony Saintil, Defendants-Appellants.

Nos. 83-5811, 83-5828.

United States Court of Appeals Eleventh Circuit.

Feb. 22, 1985.

James G. McAdams, III, Michael Burnbaum, Asst. U.S. Attys., Miami, Fla., for U.S. in No. 83-5811.

Hugh Behan, Miguel Caridad, Asst. Federal Public Defenders, Thomas Almon, Miami, Fla., for Kersazan Tacius in No. 83-5811.

Hugh J. Behan, Miguel Caridad, Asst. Federal Public Defenders, Miami, Fla., for Kersazan Tacius in No. 83-5828.

Thomas Almon, Miami, Fla., for Belony Saintil in No. 83-5828.

Stanley Marcus, U.S. Atty., Michael Burnbam, James G. McAdams, Linda Collins-Hertz, Asst. U.S. Attys., Miami, Fla., for U.S. in No. 83-5828.

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

Before HILL, KRAVITCH and SMITH ^*, Circuit Judges.

JAMES C. HILL, Circuit Judge:

Appellants Kersazan Tacius and Belony Saintil were convicted of one count of conspiracy and five counts of attempted smuggling of illegal aliens into the United States, in violation of 8 U.S.C. Sec. 1324(a)(1). ¹ Appellants raise three issues on appeal: (1) whether the district court erred in denying appellants' motion to dismiss the charges based upon the unavailability of certain witnesses; (2) whether the district court erred in admitting into evidence testimony that the appellants murdered, battered, starved, and otherwise mistreated passengers on the boat which they were captaining; and (3) whether the district judge erred in considering certain evidence at the appellants' sentencing hearing. The government raises one issue on cross-appeal, contending that the district judge improperly dismissed four counts of a superseding indictment on the basis of prosecutorial vindictiveness. We affirm the convictions, and choose not to decide the issue raised by the government.

FACTS

On July 25, 1981, the United States Coast Guard discovered a 33 foot wooden sailing vessel, the JESULA, aground in the vicinity of Key West, Florida. Aboard the vessel were approximately 165 undocumented Haitian nationals, including appellants. At trial, nine of these passengers testified for the government to the following events.

The JESULA had left Haiti about two weeks earlier, carrying approximately 215 Haitians who were to be illegally transported to the United States. Prior to their departure, many of these Haitians paid for their passage to a man known as Fito, the apparent owner of the vessel. One passenger testified that he paid his money directly to the appellants. Prior to the JESULA's departure, Fito turned the vessel over to the appellants, and told them to call him after their arrival in the United States. Once at sea, the appellants announced to the passengers that they were the captains of the vessel.

The voyage soon became terrifying to the passengers, who were subject to horrifying abuses at the hands of the appellants. The government witnesses testified that appellants controlled the food and water on board the ship, and refused to distribute it to many passengers who could not pay for it. Beatings were administered to some of those who asked for food and refreshment to quench their hunger and thirst. Appellants approached some of the women passengers, demanding sexual favors and threatening that the women might be denied food or thrown overboard if they refused. Anyone who disobeyed or disagreed with commands given by the appellants was beaten or threatened with such harm. Beatings were administered with fists, a board, a rock, and a machete; and some directly resulted in the deaths of passengers. Another passenger, Andre LaPointe, was murdered and thrown overboard by the appellants for threatening to tell American authorities about the atrocities committed during the voyage. ² The remaining passengers were warned about mentioning anything that happened aboard the ship to Immigration authorities; and Saintil told the passengers that his brother was an Immigration agent, and that they both would seek out and harm anyone who "talked."

When the vessel finally landed in the United States, authorities from the Immigration and Naturalization Service (INS) took custody of the aliens. INS agent Anglade, who was in charge at the scene, testified that she overheard Saintil instruct the other passengers not to discuss the voyage with anyone, and that if they did, "their tongues will get as big as a cow's tongue." She also observed that the appellants appeared to be more healthy than the other passengers.

The appellants were originally charged in a six-count indictment. Subsequently, the district court granted the appellants' motion to dismiss the indictment based on a violation of the Speedy Trial Act. The government appealed, and the Eleventh Circuit reversed and reinstated the original indictment. United States v. Saintil, 705 F.2d 415 (11th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 171, 78 L.Ed.2d 155 (1983). The government then filed a ten-count superseding indictment containing one charge of conspiracy and nine counts of attempted smuggling of aliens. The defendants filed a motion to dismiss four of the counts on the ground of prosecutorial vindictiveness. The district court granted the motion, but allowed all counts to go to the jury. The jury convicted both appellants on all counts. Each appellant was subsequently sentenced to thirty years imprisonment. This appeal followed.

DISCUSSION

A. Missing Witnesses.

Shortly after arraignment, at the request of defense counsel, the government was ordered to provide the names and whereabouts of each of the passengers who had been aboard the JESULA. The majority of the passengers were in detention centers in the United States or Puerto Rico, but approximately 15 of them had returned to Haiti. At trial, both appellants testified that they were not in charge of the ship; that two other individuals, Lineus Joseph and Virsius Silius, were in control. Joseph was one of the persons who had returned to Haiti, and Silius could not be located in INS records. Appellants claim that the testimony of these two unavailable witnesses was essential to their defense, and that the government, having deported these witnesses, violated their fifth amendment right to due process and their sixth amendment right to compulsory process.

To prove a violation of a defendant's constitutional rights resulting from the government's deportation of a witness, a defendant "must show some reasonable basis to believe that the deported witness would testify to material and favorable facts." United States v. Schaefer, 709 F.2d 1383, 1386 (11th Cir.1983); see United States v. Valenzuela-Bernal, 458 U.S. 858, 867-72, 102 S.Ct. 3440, 3446-49, 73 L.Ed.2d 1193 (1982). The appellants have not satisfied this burden. First, the record does not show that the government actually deported or sent away the witnesses claimed to be material. ³ Second, there has not been the slightest indication that the testimony of Joseph and Silius would be either material or favorable to the appellants. Testimony indicated that Joseph and Silius had steered the vessel, but only pursuant to appellants' orders. It is true that the appellants sought to charge the missing witnesses with the commission of the crime, but there is nothing to indicate that these witnesses would, as if in a "Perry Mason" rerun, confess on the witness stand that they were, indeed, the criminals. It is highly likely that the testimony of these witnesses would merely be repetitive with the other testimony in the case indicating that the appellants were in control of the vessel. We find no error in the district court's refusal to dismiss the charges against appellants due to the unavailability of these witnesses.

B. Admission of Testimony as to Atrocities Committed on the

Ship.

The nine Haitian passengers called by the government were permitted to testify, to a limited degree, that the appellants murdered, battered, starved, and otherwise mistreated the vessel's passengers. Appellants claim that this evidence was irrelevant to the charge of alien smuggling, unnecessary to the government's proof of its case, and prejudiced them beyond any cure of a limiting instruction, thus denying them a fair trial. They claim that this evidence should have been excluded under Rule 403 or Rule 404(b) of the Federal Rules of Evidence. ⁴

Rule 404(b) applies only to evidence of crimes and acts extrinsic to the charged offense. "Evidence of criminal activity other than the charged offense is not considered extrinsic within the proscription of Rule 404(b) ... if it is an uncharged offense which arose out of the same transaction or series of transactions as the charged offense." United States v. Weeks, 716 F.2d 830, 832 (11th Cir.1983); United States v. Kloock, 652 F.2d 492, 494 (5th Cir. Unit B 1981). In the present case, the atrocities committed by the appellants occurred during and arose out of the attempted smuggling of the Haitians into the United States, which was the charged offense. Therefore, the evidence of these acts is not extrinsic to the charged offense, and Rule 404(b) is not applicable.

However, we must still balance the probative value of the evidence against the danger of unfair prejudice pursuant to Rule 403. On this point, the present case is largely governed by United States v. Reme, 738 F.2d 1156 (11th Cir.1984), a very similar Haitian smuggling case. In Reme, a similar wooden sailboat left Haiti for the United States with approximately 89 Haitian nationals on board. In describing the defendant captains' control over the boat, the government's Haitain witnesses were permitted to testify as to how the defendants "made the passengers sing voodoo songs ... and submit to searches for valuables and black magic,...