U.S. v. Smith

Decision Date14 December 1990
Docket NumberNo. 89-8195,89-8195
Parties31 Fed. R. Evid. Serv. 1140 UNITED STATES of America, Plaintiff-Appellee, v. Oscar SMITH, Regina Smith and Gary King, Defendants-Appellants, Julia Thom, Defendant.
CourtU.S. Court of Appeals — Eleventh Circuit

Frank K. Martin, Columbus, Ga., for O. Smith.

Kenneth W. Musgrove, Albany, Ga. (Court-appointed), for R. Smith.

Michael Kennedy McIntyre, Atlanta, Ga., for G. King.

Deborah A. Griffin, Asst. U.S. Atty., Charles Calhoun, Macon, Ga., for U.S.

Appeal from the United States District Court for the Middle District of Georgia.

Before EDMONDSON and BIRCH, Circuit Judges, and Re *, Chief Judge.

BIRCH, Circuit Judge:

This case involves a large-scale conspiracy to import and distribute cocaine from Panama within the United States. The principal evidence against defendants-appellants at trial was the testimony of a former coconspirator who became a government informant. Defendants-appellants challenge their convictions on numerous grounds. After reviewing the record, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The individuals involved in this cocaine importation conspiracy included Jackie Lee Bigelow, who became a government informant. Bigelow served in the United States Army at Fort Kobbe, Panama, from December 12, 1981, until April 9, 1986, when he was discharged. Prior to his discharge, Bigelow met codefendant Ricardo Brown, leader and organizer of a cocaine importation operation. Brown and Bigelow plotted the details of their cocaine importation scheme.

Their original plan entailed Bigelow's traveling to Panama to obtain an unspecified amount of cocaine, and leaving through the Military Airlift Command (MAC) terminal. To accomplish the departure from Panama via the MAC terminal, Bigelow was to impersonate military personnel, requiring a uniform, military leave pass, and identification card. Brown directed Bigelow to duplicate his military identification card before returning to his home in Doerun, Georgia, to await further instructions.

Shortly after his army discharge, Bigelow returned to Panama to meet with Brown. Brown provided Bigelow with a military leave pass, which, together with a uniform and his identification card, enabled Bigelow to depart from Panama through the MAC terminal. Brown also gave Bigelow $500 and a duffle bag containing cocaine, with instructions to deliver the contents to an address in Brooklyn, New York. When he arrived at the MAC terminal, Bigelow was joined by two men who were transporting similar duffle bags to the same Brooklyn address.

The three men flew from Panama to Fort Meade, Maryland, to New York, where they delivered the duffle bags to codefendant-appellant Oscar Smith. After receiving the cocaine, Smith paid each courier $25,000 in cash. The next day, Bigelow returned to Doerun, Georgia, and awaited additional instructions.

In June, 1987, Brown contacted Bigelow regarding another trip to Panama to import cocaine. On this trip, Bigelow was accompanied by his friend, codefendant-appellant Gary King. The two men flew to Panama to meet Brown, who provided them with leave passes, duffle bags containing cocaine, and $500 each. Bigelow and King left Panama through the MAC terminal. After stopping briefly at Kelly Air Force Base in Texas, the two men flew to New York, where they delivered the cocaine to Oscar Smith and his wife, codefendant-appellant Regina Smith. 1 Oscar Smith paid each courier $25,000.

Bigelow testified at trial that the same procedure for obtaining cocaine from Panama and delivering it to the United States was followed in August, 1987, November, 1987, January, 1988, and April, 1988. He stated that he was accompanied by King and John Turner on the November, 1987 trip, and that the cocaine was delivered to codefendant Tino Lee, who also received the cocaine from the January, 1988 trip.

While Bigelow was in Panama for the April, 1988 trip, he and Brown decided to vary the procedure for smuggling cocaine out of the country. Bigelow suggested that the cocaine be mailed from Panama to an address in Doerun, Georgia. Brown and Bigelow packaged nine kilograms of cocaine and mailed it to the address of codefendant Maxine Williams in Doerun, Georgia. When the package arrived, Bigelow took it to Brooklyn, New York, and delivered it to Oscar Smith, who paid him $13,000 for the delivery.

In May, 1988, Bigelow received a package containing eight kilograms of cocaine mailed from Panama to Doerun, Georgia. Bigelow placed the package in his suitcase and was en route to the airport on May 24, 1988, when he was stopped for driving with a suspended license in Colquitt County, Georgia. Thinking that the officer might search the vehicle, Bigelow volunteered that he had eight kilograms of cocaine in the car. Bigelow was arrested and subsequently agreed to cooperate with the authorities. He detailed his role as a drug courier in a major scheme to import cocaine into the United States from Panama.

As part of his agreement with the government, Bigelow consented to make several recorded telephone calls to Oscar Smith. Pursuant to one of these conversations, Oscar Smith wired $1,000 to Bigelow, who had requested the money because he was in custody for driving with a suspended license. In another conversation, Bigelow informed Oscar Smith that he had received another cocaine package, but that he was concerned about delivering the cocaine because he believed that the authorities were watching him. After additional calls, Bigelow asked Oscar Smith to send someone, wearing a gold chain owned by Oscar Smith, to Georgia to obtain the cocaine.

Codefendant-appellant Regina Smith and codefendant Julia Thom subsequently flew from New York to Georgia to procure the cocaine and deliver it to Oscar Smith in New York. Wearing the identifying gold chain, Regina Smith and Thom met Bigelow in a Moultrie, Georgia hotel room to discuss delivery of the cocaine. Regina Smith and Thom were arrested there.

Bigelow and Oscar Smith also used John Turner, a government informant who pled guilty to conspiracy to possess with intent to distribute cocaine, as a courier in their operation. At trial, Turner testified that he was employed by the United States Army, stationed in Ecuador, South America. While in Ecuador, Turner met Brown, who explained that Turner easily could make $25,000 by delivering cocaine from Panama to the United States.

While on leave in Panama in September, 1987, Turner contacted Brown, who took Turner and Herberto Lynton to the Salvoy Hotel. During his stay at the Salvoy Hotel, Turner was introduced to Bigelow. Brown, Bigelow and Turner discussed a cocaine importation trip from Panama to the United States, and Bigelow explained to Turner the procedure for passing through security at the MAC terminal.

Bigelow, Brown, Lynton and Turner arrived at the MAC terminal, where codefendant Alex Smith met them and provided duffle bags containing cocaine. Alex Smith supplied each man with $300 for travel expenses and explained that the cocaine was wrapped so that it could not be detected by dogs. Lynton, Turner and Bigelow successfully flew from Panama to Dobbins Air Force Base in Marietta, Georgia, where they obtained a commercial flight to New York.

In New York, Bigelow contacted Oscar Smith. The three men delivered the cocaine to Oscar Smith. The men were taken to meet "Tino," codefendant Faustino Lee, who paid them for their courier services. Turner received $25,000 in cash.

In November, 1987, Turner returned to Panama, where Brown asked him to undertake a second cocaine importation trip. On this trip, Turner was accompanied by Bigelow and King, who initially was introduced to Turner as "Wayne Williams." 2 Turner described this trip as essentially identical to the previous one: the men flew from Panama to Texas and New York, where they delivered the cocaine and were paid for their services.

Defendants-appellants Oscar Smith, Regina Smith, Gary King, and other members of the cocaine importation conspiracy were charged in a twenty-seven count indictment in the Middle District of Georgia with various drug offenses, including conspiracy to import, possess and distribute 162 kilograms of cocaine, and the use of the telephone, interstate transportation and the mail to facilitate a drug felony. Defendants Jackie Bigelow, Ricardo Brown, Maxine Williams and Brenda McGee pled guilty. Defendants Fersdon (Alex) Smith and Faustino (Tino) Lee remain fugitives. Defendants Oscar Smith, Regina Smith, Gary King and Julia Thom proceeded to trial and were convicted. 3 Oscar Smith was convicted on counts involving conspiracy to import, possess and distribute 162 kilograms of cocaine, and the use of the telephone, interstate transportation and the mail to facilitate a drug felony; he was sentenced to serve 292 months in prison. Regina Smith was convicted on counts involving conspiracy to possess and interstate transportation of cocaine; she was sentenced to serve 151 months in prison. Gary King was convicted on counts involving conspiracy to import and distribute 162 kilograms of cocaine, and the use of interstate transportation to facilitate a drug felony; he was sentenced to serve 188 months in prison. The respective sentences were imposed on defendants-appellants under the Sentencing Guidelines; they presently remain incarcerated.

II. DISCUSSION

Defendants-appellants individually have raised numerous claims on appeal. Most of these contentions are either frivolous or procedurally defaulted. Only certain arguments for each defendant-appellant warrant discussion, and we will confine our analysis to those issues.

A. Oscar Smith

Defendant-appellant Oscar Smith contends that the district court should have granted his motion for change of venue from the Middle District of Georgia to the Southern District of New York. A transfer of venue is completely within the discretion of the trial court and the decision to deny a change of venue...

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