U.S. v. Seeright

• Decision Date: 21 October 1992
• Docket Number: No. 91-5325,91-5325
• Citation: 978 F.2d 842
• Parties: 36 Fed. R. Evid. Serv. 1399 UNITED STATES of America, Plaintiff-Appellee, v. David SEERIGHT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 842

978 F.2d 842

36 Fed. R. Evid. Serv. 1399

UNITED STATES of America, Plaintiff-Appellee, v. David SEERIGHT, Defendant-Appellant.

No. 91-5325.

United States Court of Appeals Fourth Circuit.

Argued June 4, 1992.

Decided Oct. 21, 1992.

Gerald Chester Ruter, Towson, Md., argued, for defendant-appellant.

Andrew G.W. Norman, Asst. U.S. Atty., Baltimore, Md., argued (Richard D. Bennett, U.S. Atty., on brief), for plaintiff-appellee.

Before WILKINSON and NIEMEYER, Circuit Judges, and STAMP, United States District Judge for the Northern District of West Virginia, sitting by designation.

OPINION

STAMP, District Judge:

David Seeright was convicted on one count of conspiracy to distribute and to possess with intent to distribute cocaine and marijuana in violation of 21 U.S.C. § 846 and on three counts of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). The district court sentenced Seeright to ten years in prison on each of the four counts, each ten year period to run concurrently.

Seeright assigns as error in his appeal the district court's refusal to suppress certain statements from a proffer session, its questioning of him during the trial, its refusal to permit him to call certain witnesses in support of his Fed.R.Crim.P. 12.3 defense, and the district court's denial of several motions for mistrial. Finding no error, we affirm.

I.

In November 1989, a special grand jury for the District of Maryland indicted David Seeright along with seven others in a multi-count indictment alleging the commission of numerous narcotics crimes. In May 1990, a superseding indictment was returned adding one count against one of Seeright's co-defendants. Seeright was charged with conspiracy to distribute and to possess with intent to distribute cocaine and marijuana. The indictment charged that the conspiracy lasted from January 1983 until June 1986. Seeright was also charged with three counts of possession with intent to distribute cocaine on three different occasions in September and November 1989.

As a result of several ongoing investigations concerning drug trafficking in the District of Maryland, the government decided to interview Seeright. On October 6, 1988, at a previously appointed time and place, Special Agent Alexander Smith of the Drug Enforcement Agency and Assistant United States Attorney Andrew G.W. Norman interviewed Seeright at a Ft. Lauderdale, Florida hotel. Smith and Norman had become aware that Seeright was probably involved in a drug trafficking conspiracy to import large shipments, several hundred kilograms of cocaine each, into the United States. The distribution network included a cartel comprising South American cocaine suppliers and American narcotics distributors. An individual named John Gerald Gerant was believed by the government to have made all arrangements for transportation of the narcotics from Columbia through the Caribbean, usually the Bahamas, to the United States. Gerant was a former Miami policeman turned drug smuggler and pilot. Seeright was one of Gerant's associates and as a Federal Aviation Administration-licensed mechanic provided maintenance on Gerant's fleet of smuggling aircraft. Evidence at trial demonstrated that Seeright was primarily involved in the import of approximately 395 kilograms of cocaine on two occasions, although another 200 kilograms may have been involved and abandoned in the Bahamas.

The government became aware of Seeright's involvement through the testimony of Gerant, who was cooperating with federal officials, at several of the trials that preceded Seeright's and Gerant's trials. Seeright appeared at the October 6, 1988, meeting without counsel, although he had attempted to retain counsel and that lawyer had spoken with Norman. Norman and Smith explained to Seeright that the government could not grant him immunity but was offering him a deal including a plea of guilty to two of the alleged felonies and a maximum term of imprisonment of ten years. Because Seeright was without counsel, Norman explained the government's offer of the cooperation agreement. Seeright acknowledged that he wanted to proceed with the proffer and, accordingly, signed the letter.

After the meeting, at which Norman took notes, Smith informed Seeright that they thought he was lying and giving false and misleading information. Once Seeright was indicted, Norman informed Seeright that the government intended to use his statements from the proffer session against him at trial. The district court in denying Seeright's motion to suppress the statements found "by clear and convincing evidence" that Seeright had materially breached the proffer agreement by not disclosing his knowledge of the involvement of his friend, a co-defendant named John Kay, in the international drug smuggling operation.

At trial Seeright maintained his intention, which he had previously disclosed to the government, to raise the defense of public authority under Rule 12.3 of the Federal Rules of Criminal Procedure. Seeright's Rule 12.3 defense was based on his assertion that he was helping Gerant, who he knew to be an informant for the Federal Bureau of Investigation. Seeright explained that Gerant had informed him that he was "working" for the FBI. Seeright claimed that he helped Gerant equip planes with long-range fuel tanks for the trips between Florida and Columbia. Seeright asserts that since he was helping Gerant, who was working for the FBI, he, Seeright, was also working for the FBI and not violating any laws.

The government called numerous witnesses who testified that Seeright had never been an informant of any kind for the FBI and that, absent some sort of record of the event, it would have been impossible for Seeright to have been working for that agency. When Seeright testified, the district court cross-examined him concerning his motives for cooperating. Seeright filed a motion for mistrial alleging that the district court had called into question Seeright's truthfulness and that therefore a fair trial was no longer possible. The court denied the motion and instructed the jury that it alone was to determine the credibility of witnesses.

Next, Seeright attempted to call two additional witnesses in support of his Fed.R.Crim.P. 12.3 defense. Since these witnesses, Walter Henderson and Thomas Godbold, had not been disclosed earlier, and in essence were surprise witnesses, the district court granted the government's motion to preclude their testimony.

After nearly twelve weeks of trial, the jury began its deliberations on March 26, 1991. On April 1, 1991, the jury foreman advised the court that one juror had, based upon evidence admitted and developed at trial, conducted her own independent investigation to track down a phone number purported to be registered to the FBI in South Florida. After conducting extensive voir dire, the district court dismissed that juror and concluded that the remaining eleven jurors had not been tainted by the extraneous material presented to them by the investigative juror through her improper phone calls. Accordingly, the court denied Seeright's motion for mistrial. The court also denied Seeright's motions for a mistrial when Seeright objected to the court's giving of an Allen charge ^* on two occasions when the deadlocked jury sought further instruction from the court.

II.

Seeright appeals on four different grounds. He cites as error and appeals from the district court's refusal to suppress his statements from the proffer session. He also assigns error in the court's questioning of him during his trial testimony. He further asserts the court erred in failing to permit him to call certain witnesses in support of his public authority defense pursuant to Fed.R.Crim.P. 12.3. Finally, he assigns as error the court's denial of his various motions for mistrial made during jury deliberations. Seeright specifically notes the court's denial of his mistrial motions when the court dismissed a juror and gave two Allen charges to the jury.

III.

Seeright first asserts that the district court erred when it admitted certain statements Seeright made during the proffer session with AUSA Norman and Special Agent Smith. In particular, Seeright contends that no consideration was given to him in return for his cooperation and statement and, even if he breached the proffer agreement, the breach was not material and did not, therefore, render the agreement void.

Seeright appeared at the proffer meeting without counsel. The only record of the event is the proffer letter which Seeright signed and the notes taken by Norman. Seeright contends that no consideration existed since the letter does not reflect a grant of immunity from prosecution or a reduction in the charges and potential exposure which he faced. Seeright further contends that since no consideration exists, and therefore no valid contract remains between the parties, that his Fifth Amendment privilege against self-incrimination was violated by the government's use, and the court's allowance thereof, of his statements from the proffer meeting.

As the government counters, Seeright was informed by Smith and Norman that he was being given an opportunity, by virtue of the proffer meeting, to meet with the government and reduce his potential exposure to incarceration. The government readily concedes that Seeright was never offered complete immunity. However, the government maintains that its offer to Seeright that he plead guilty to two felony charges with a maximum exposure of ten years incarceration was substantial consideration in light of the various conspiracy and drug charges which Seeright faced. We agree. A review of the record as well as the testimony of Smith and Norman, reveals that the government offered Seeright substantial consideration in return for a valid and truthful proffer. In fact, the conspiracy charge with which Seeright was charged, and for which he was ultimately convicted...