U.S. v. Sims
| Decision Date | 27 May 1988 |
| Docket Number | No. 87-8216,87-8216 |
| Citation | 845 F.2d 1564 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Harvey Kelly SIMS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Richard Sherman, Santa Monica, Cal., for defendant-appellant.
William H. McAbee, II, Asst. U.S. Atty., Savannah, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Georgia.
Before JOHNSON and HATCHETT, Circuit Judges, and ESCHBACH *, Senior Circuit Judge.
In this major drug importation conspiracy case, we affirm the district court's rulings on motions for recusal, dismissal of the indictment, and suppression of evidence.
Harvey Kelly Sims, the appellant, operated an elaborate drug smuggling enterprise in south Georgia. The Sims organization successfully imported three aircraft loads of cocaine from Colombia, South America. Sims, a licensed pilot, personally flew the aircraft and imported approximately 2,000 pounds of cocaine. The testimony of the government's key witnesses, Rick Jarriel and Mark Olsen, established that Sims hired ground personnel to assist in preparing aircraft landing strips and in transporting and storing cocaine at designated locations. The organization had a corporate-like command hierarchy. Sims commissioned Wayne Strange, a co-defendant, to secure crews for off loading the narcotics. "Dummy" corporations existed in Georgia, Florida, Panama, and Delaware and were used to purchase aircraft and vehicles to assist in the off loading process. State of the art electronic equipment such as sophisticated navigational equipment, landing lights, and night vision goggles were commonplace to this operation. The organization purchased an eighty-acre tract of land in an unpopulated area of Tattnall County, Georgia, for use as a landing strip and purchased property in Candler County, Georgia, to store cocaine prior to distribution.
The organization amassed substantial funds during this enterprise. Wayne Strange testified that he received payments in excess of $140,000 for his assistance in the operation. Rick Jarriel testified to finding $175,000 wrapped in a plastic bag in a pig pen at Wayne Strange's house which the pigs had apparently uprooted. Also, Sims made a cash deposit of $170,000 in a Panamanian bank just prior to his arrest.
A federal grand jury in the Southern District of Georgia indicted Sims, along with others, on a ten-count indictment for violation of federal narcotics laws, pursuant to 21 U.S.C. Sec. 848. The indictment charged: (1) four counts of possession with intent to distribute cocaine; (2) four counts of importation of cocaine; (3) one count of conspiracy to import cocaine; and (4) one count of conspiracy to distribute cocaine. The grand jury also named Sims in a forfeiture count, pursuant to 21 U.S.C. Sec. 853. Sims filed pretrial motions to suppress evidence, to dismiss the indictment, and for recusal of the district court judge. The district court denied the motions. The district court also ordered the lawyers in the case to answer interrogatories regarding payment of attorney's fees. After objecting, Sims's lawyer responded to the interrogatories. Sims then renewed his motions for recusal of the district court judge and dismissal of the indictment. Again, the district court denied the motions.
On January 28, 1987, a jury found Sims guilty on all ten counts of the indictment. On Count I, the district court sentenced Sims to a term of life imprisonment, without parole, under the continuing criminal enterprise statute and fined him $100,000. On Counts II-IX, the district court sentenced Sims to concurrent 40-year terms consecutive to the life term. The district court also imposed a $500,000 fine and held Sims's property forfeited to the government.
The issues before this court are: (1) whether the district court erred in failing to dismiss the indictment; (2) whether the district court erred in denying Sims's motion for recusal; and (3) whether the affidavit filed in support of the search warrant is sufficient.
In order to understand Sims's arguments concerning alleged governmental misconduct, we must analyze the relationship between the government's key witness, Mark Olsen, agents of the Drug Enforcement Administration (DEA), and other co-conspirators. This requires examination of two prior cases involving several of the co-conspirators in this case.
A grand jury in the Middle District of Georgia charged Mark Olsen, an informant, with importation of cocaine from Colombia, South America. The grand jury also charged co-defendants Andrade, Rua, Hurtado, and DePablos-Soto in this venture. Ed Garland and John Nuckolls, lawyers, represented these defendants in the Middle District of Georgia case and represented them in this case.
On February 2, 1986, Mark Olsen pleaded guilty in the Middle District of Georgia case and received a sentence of twelve years imprisonment. Richard Hagler, a lawyer, represented Olsen in that case. After Olsen's conviction, the government granted Olsen immunity and served upon him a compulsion order to give testimony before a grand jury in Macon, Georgia, concerning this case. Olsen refused to comply, and the district court in the Middle District of Georgia found him in contempt.
On April 17, 1986, a federal grand jury in the Southern District of Georgia indicted Olsen on a seven-count indictment charging possession of false identification and illegal use of a communication facility. The indictment charged that Olsen used false birth certificates and false aircraft pilot's licenses during his participation in offenses charged in this case. As in the Middle District of Georgia case, Richard Hagler represented Olsen.
Olsen's involvement in drug importation enterprises prompted a meeting in the United States Attorney's Office in Macon, Georgia, on May 14, 1986. Hagler represented Olsen and discussed conditions under which Olsen would become a cooperating informant and supply information concerning cocaine importation into middle and southern Georgia. The parties were unable to reach an agreement.
Drug enforcement agents Keller and Frye transported Olsen from Savannah to the Macon meeting. In route to Macon, the agents detoured, taking Olsen to locations in Southern Georgia where the agents believed the organization had cocaine storage sites prior to Olsen's arrest in August, 1985. The agents' intent was to show Olsen the locations in order to convince him of how much the agents knew of the operation so that Olsen would cooperate with their investigations. At this point, a dispute exists as to whether the agents offered to Olsen a recommendation that the court impose a sentence of six years. Olsen contends that the agents stated they would recommend such a sentence. The agents denied making the promise.
On July 16, 1986, Olsen entered a guilty plea to the false identification charge in the Southern District of Georgia. While awaiting sentencing, Olsen wrote numerous letters to federal agencies, including the Drug Enforcement Administration, indicating that he wanted to cooperate with the government. Olsen had become disillusioned with his lawyer (Hagler) because of the lawyer's failure to reach an agreement with the government. As a result of the letter Olsen sent to their agency, drug enforcement agents Frye and Keller visited Olsen on two occasions without his lawyer's knowledge. At these meetings, the agents told Olsen that his lawyer was not working in his best interest, and Olsen stated his concern about his lawyer's real intent.
When asked about the basis for his concern, Olsen stated that after his arrest in the Middle District of Georgia, Lance Smith, a lawyer, told him that Sims would provide a lawyer for him. Smith also advised Olsen that Sims would take care of all attorney's fees and assist in any way possible. Smith informed Olsen that he had arranged for Hagler to represent him, and that Sims paid substantial sums of money to Hagler, in addition to what Olsen's parents were paying for his representation. Smith assured Olsen that Sims would provide financial support if he were sentenced to a term of imprisonment. Smith also advised Olsen about the case status of Gary Scott and the Mock brothers. Although Sims was not indicted in the Scott case, all of the government's discovery materials given to Scott's lawyer were seized at Sims's Miami residence. Moreover, evidence seized at Wayne Strange's house, a co-defendant in this case, revealed that a series of payments had been made for all lawyers in the Middle District of Georgia case, totaling $300,000. The lawyers listed as receiving payments were Hagler, Smith, Brogdon, and Garland. These lawyers had been associated with co-defendants in Sims's present case as well as the Middle District of Georgia case.
As stated earlier, Olsen told the DEA agents that he wished to negotiate with the government directly and without assistance from his lawyer, Hagler. To accomplish this, the government agents brought Olsen before the district court for an in camera proceeding without the knowledge of Hagler. The purpose of the hearing was to advise Olsen regarding his right to counsel and to obtain the court's approval for Olsen to personally negotiate with the government. Olsen confirmed his concern to the district court that Hagler was not adequately representing him. After the meeting, the government agents advised Olsen not to discuss the in camera meeting with Hagler.
On August 21, 1986, Olsen entered into a cooperation agreement with the government. As part of the agreement, the government asked Olsen to investigate the lawyers in the Columbus case (M.D.Ga.) regarding a possible obstruction of justice scheme. This information became a matter of common knowledge to all of the...
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