U.S. v. Sullivan, 83-5493
| Decision Date | 21 June 1985 |
| Docket Number | No. 83-5493,83-5493 |
| Citation | 763 F.2d 1215 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Fred SULLIVAN, Nick Panaccione, Lazarro Louis Martos, Antonio Nilo Maldonado, Severo Pascual Martinez, Orlando Maldonado, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Craig R. Wilson, Ruffolo & Wilson, West Palm Beach, Fla., for defendants-appellants.
Michael J. Doddo, Plantation, Fla., for Panaccione.
Marco De La Cal, Miami, Fla., for Martos.
Stanley Marcus, U.S. Atty., Linda Collins-Hertz, Jon May, Asst. U.S. Attys., for plaintiff-appellee.
Steven Kollin, Coconut Grove, Fla., for Maldonado.
Emilio De La Cal, Miami, Fla., for Martinez.
Mitchell Denker, Michael S. Gilbert, Key West, Fla., Ronald Dion, N. Miami Beach, Fla., for Orlando Maldonado.
Appeals from the United States District Court for the Southern District of Florida.
Before HENDERSON and CLARK, Circuit Judges, and TUTTLE, Senior Circuit Judge.
Appellants appeal from their convictions on various drug and weapons charges. The specific offenses of which appellants were found guilty are as follows:
Count I: Conspiracy to import marijuana: Sullivan, Orlando Maldonado.
Count 2: Conspiracy to possess with intent to distribute in excess of 1,000 pounds of marijuana: Panaccione, Orlando Maldonado, Martinez, Antonio Maldonado, Martos.
Count 3: Carrying a firearm during the commission of a felony: Orlando Maldonado.
Count 4: Carrying a firearm during the commission of a felony: Martinez.
In addition to the appellants, Harry Abernathy was found guilty on counts 1 and 2, but his appeal has been dismissed. Roberto Perez was convicted of count 2, but his appeal has also been dismissed. Thomas Ruzzano was indicted with appellants but tried separately, and found guilty on counts 1 and 2. He has not appealed his conviction. Dalton Whaley was also indicted with appellants. He pled guilty to count 1, and the government subsequently dismissed counts 2 and 3 as to Whaley. Whaley testified for the government in this case.
The evidence at trial would warrant the jury's finding of the following facts:
In late 1982 or early 1983, Abernathy told Whaley that he needed a plane and pilot to pick up a load of marijuana in Colombia and fly it to the United States. Abernathy offered Whaley half of the $40,000 to $45,000 he was to receive for arranging the deal. Whaley agreed to look around for someone who could provide the needed plane and pilot.
Whaley got in touch with Sullivan who agreed to approach someone named Clark who could provide these items. Sullivan then called Clark Thompson, a government informant, and asked him to provide a plane and pilot to transport 5,000 pounds of marijuana from Colombia. Thompson responded that he would get back in touch at a later time.
A few days later, Sullivan told Whaley that Clark could provide the plane and pilot. Whaley agreed to meet Sullivan and Clark in a lounge in Boca Raton, Florida. At that meeting, both Sullivan and Whaley emphasized to Thompson that time was of the essence in providing a plane.
In a subsequent meeting in the lounge, Thompson introduced DEA agent Ernest Batista to Sullivan and Whaley as the man who could provide the equipment for transporting the marijuana. Abernathy then joined the meeting and Batista was introduced to him as someone who could provide airplanes. Abernathy stated that he needed a plane to transport 5,000 pounds of marijuana from Colombia to Texas and offered to pay Batista $135,000 for the job.
Agent Batista next met with Abernathy on January 17, 1983, at a restaurant. With Batista was Agent Charles Overstreet who was posing as a pilot. During the meeting, there was extended discussion of the venture to import marijuana. Over the next two weeks Batista, sometimes accompanied by Overstreet, had numerous meetings and recorded telephone conversations with Abernathy and Ruzzano. These discussions resulted in the undercover agents flying Abernathy and Ruzzano on January 28, 1983, to observe a remote airstrip in central Florida where the marijuana would allegedly be offloaded. During the flight, Ruzzano informed the agents that a man named Orlando would accompany Overstreet to Colombia. It was agreed that the flight would occur on January 31 or February 1. Abernathy gave the agents $3,000 in expense money.
At a final meeting on January 31, Abernathy and Ruzzano told the agents that Orlando would meet them the following morning at Ft. Lauderdale International Airport. According to Ruzzano, persons whom he identified as "Orlando's drivers" would wait for the marijuana at a hotel near the landing strip. These drivers would be responsible for delivering the vans containing the marijuana offloaded from the airplane to various points. Other persons would be responsible for meeting the airplane and offloading the marijuana into the vans.
The following day Batista drove to Ft. Lauderdale Airport. Soon after, Overstreet landed in a twin engine aircraft. Abernathy, Ruzzano, Whaley, and Orlando Maldonado arrived, the latter being introduced as the money men who would accompany Overstreet to Colombia. Panaccione drove up a few minutes later and delivered an envelope to Ruzzano. This envelope contained part of the money which Ruzzano and Abernathy had agreed to pay Batista for the use of his pilot and aircraft.
Shortly thereafter, Orlando Maldonado boarded the aircraft with Overstreet. They took off and flew to Opa Locka Airport, purportedly to transfer to a larger aircraft. Upon landing, however, Maldonado was arrested. He was carrying Baretta pistols.
Meanwhile, Panaccione and Whaley left the airport to rent some vans for use during the offload. Batista left with Abernathy and Ruzzano and, after Abernathy obtained some additional cash for Batista at a bank, they drove to West Palm Beach. There, Abernathy, Ruzzano, Whaley, Panaccione, and Batista all gathered at the Ramada Inn. Batista introduced them to agent Gutierrez, who was posing as the manager of the ranch where the offload was to occur. Gutierrez had rented a room where the group could wait pending contact with Orlando Maldonado's drivers and departure for the offload site.
Abernathy, Ruzzano, Whaley, Panaccione, and the two agents proceeded to the motel room. There, Ruzzano stated that Orlando Maldonado's drivers would arrive that afternoon and would stay at a nearby hotel. They would be supplying several vans which Ruzzano and the group would use to offload the airplane. Ruzzano stated that he would be in charge of counting, weighing, and marking the bales, and the others in that group would help offload the plane and drive the vans. The loaded vans would then be returned to Orlando's drivers. Abernathy would be responsible for paying Batista after the first van was delivered.
Ruzzano then made some phone calls trying to locate Orlando's drivers. Finally, he spoke to someone whom he called Tony and learned that the other drivers would be at a nearby Sheraton Hotel. The four co-conspirators and the undercover agents then departed in Abernathy's car to go meet the other drivers.
Meanwhile, agents stationed at the Sheraton saw Martinez arrive in a blue van, walk over and talk to Martos who was standing by a red van. Martinez and Martos then walked over to Perez and Antonio Maldonado. All four then walked around the lot for approximately five minutes. Perez and Antonio Maldonado then got in the car and left. When the four alleged co-conspirators and the two agents arrived at the Sheraton, Ruzzano left the car and walked up to Perez and Antonio Maldonado. Abernathy saw Maldonado and said, "There's Tony."
Shortly thereafter, the agents observed Martos and Martinez walking through the parking lot. The two men looked in Abernathy's car, 1 and then walked over to the blue van. One of them opened the van, retrieved a small handbag, 2 and then walked inside the hotel.
A few minutes later, Ruzzano returned to the car carrying two decks of playing cards on one of which was written the numbers of the rooms rented by Perez, and two sets of keys. Ruzzano gave one set of keys to Whaley who tried them and found that they worked on the red van. Ruzzano then directed Panaccione to the blue van.
At this point, appellants were arrested. Martos and Martinez were arrested in the hotel. Martinez was carrying a small handbag similar to the one Martinez or Martos had earlier removed from the van. The bag contained a Colt .45 automatic. Martinez also had a receipt for the purchase of a Colt .45 on his person.
When an agent approached Perez and asked his business at the hotel, he answered that he had been traveling from New Jersey to Miami and stopped at the hotel. A traffic ticket found in the Perez's car reflected that it had been issued on the previous day to Orlando Maldonado driving that same car in Miami.
Following the arrest,...
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