U.S. v. Walker

• Decision Date: 12 December 1983
• Docket Number: No. 82-7277,82-7277
• Citation: 720 F.2d 1527
• Parties: 14 Fed. R. Evid. Serv. 1267 UNITED STATES of America, Plaintiff-Appellee, v. Willard Eugene WALKER, James Joseph Gustin, Jr., Thomas Gerald Durden, Jerry Lee Lowe, Kenneth Lightbourne, John D. Dukes, and James L. Boyington, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1527

720 F.2d 1527

14 Fed. R. Evid. Serv. 1267

UNITED STATES of America, Plaintiff-Appellee, v. Willard Eugene WALKER, James Joseph Gustin, Jr., Thomas Gerald Durden, Jerry Lee Lowe, Kenneth Lightbourne, John D. Dukes, and James L Boyington, Defendants-Appellants.

No. 82-7277.

United States Court of Appeals, Eleventh Circuit.

Dec. 12, 1983.

M.A. Marsal, George L. Simons, Mobile, Ala., for Walker.

John D. Whetstone, court-appointed, Gulf Shores, Ala., for Gustin.

Al Pennington, court-appointed, Mobile, Ala., for Lowe.

Tom Taul, III, court-appointed, Mobile, Ala., for Durden.

John R. Weed, court-appointed, Perry, Fla., for Dukes, Lightbourne, and Boyington.

William R. Favre, Jr., Asst. U.S. Atty., Mobile, Ala., for plaintiff-appellee.

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

Before VANCE and CLARK, Circuit Judges, and SWYGERT ^*, Senior Circuit Judge.

VANCE, Circuit Judge:

Appellants, Willard Walker, James Gustin, Jr., Thomas Durden, Kenneth Lightbourne, Jerry Lowe, James Lemar Boyington, and David Dukes, Jr., were convicted in the United States District Court for the Southern District of Alabama on charges of distributing and possessing marijuana with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) and conspiracy to distribute marijuana in violation of 21 U.S.C. Sec. 846. The individual appellants challenge their convictions on a number of grounds, but we find no merit to any of their contentions and therefore affirm.

I. FACTUAL BACKGROUND ¹

In early November 1981 the sheriff's department in Baldwin County, Alabama hired John Carlisle, a Pensacola restaurant owner and a long-time paid informant for various law enforcement agencies, as an undercover operative to investigate illegal drug traffic in Baldwin County. Using the alias of Vito Lombardio, Carlisle contacted Michael Miceli, a restaurant owner in Gulf Shores, Alabama, representing that he was interested in purchasing some local businesses on behalf of a group of out-of-town businessmen. Carlisle and Miceli had a meeting at the Convention Center in Gulf Shores to discuss the possible sale of Miceli's restaurant, and Carlisle asked Miceli if he knew of any other local businessmen who might be in financial difficulty and interested in selling out to his backers. Miceli suggested that Carlisle contact James Gustin, who owned the Blue Jay Restaurant and Lounge in Gulf Shores and another restaurant in Pensacola. Carlisle subsequently asked Miceli to arrange a meeting with Gustin, and the three men met at the Bear Point Marina on December 4, 1981. This preliminary meeting was followed by another the next afternoon at Gustin's restaurant, where Gustin and Carlisle continued their discussion about the possibility of a sale. The two men also talked about gambling, police corruption, and drug sales in the area, and Carlisle testified that Gustin complained of his inability to find an Alabama buyer for seven thousand pounds of marijuana a few months earlier. Carlisle informed Gustin that he had contacts up north that had the capability to move large amounts of marijuana and then promised to get back in touch with Gustin to discuss price and quantity. Carlisle stated that Gustin used a number of code words common in the drug trade during their conversation, such as "lettuce" (a synonym for marijuana), "acreage" (indicating a pound of marijuana), and "swamp land" (referring to low-grade marijuana).

At the end of the meeting Carlisle told Gustin that he needed to talk things over with his backers, but the two men exchanged phone numbers and remained in close contact over the next several days. On December 11, Carlisle and Gustin met again at the Flying K Truck Stop in Baldwin County. Carlisle was accompanied by Robert Lasseter, a special agent with the Drug Enforcement Administration who was posing as one of the "money men" behind Carlisle. Agent Lasseter testified that the conversation dealt with a proposed sale of approximately two thousand pounds of marijuana for a price of between $250 and $325 a pound. Lasseter also stated that he and Carlisle rejected Gustin's demand for an advance of fifty thousand dollars. Although no deal was concluded on this occasion, Carlisle and Gustin had frequent conversations over the next several days. Gustin had by this time enlisted the assistance of two friends, Willard Walker and Jerry Lowe, and the three men met with Carlisle to discuss the transaction at the Cutty Sark Liquor Store in Florida a few days after the first meeting at the Blue Jay. They had further meetings on December 15 at the Rodeway Inn outside of Pensacola and again on at least one other occasion at the Flying K.

By December 28 the deal was ready to be closed. Gustin and Lowe informed Carlisle that they wanted to see the money before setting the transaction in motion, so Carlisle arranged to meet them in the parking lot of the International Trade Center Building in Mobile at 3:30 that afternoon. Carlisle was joined there by FBI special agent Thomas Kirspel, who was introduced to Lowe and Gustin as one of the drivers who would take the marijuana back north after the transfer was made. Lowe and Kirspel went over to the American National Bank, where Kirspel showed him a safety deposit box containing $275,000 in cash. They rejoined the other two men and made some final arrangements. Lowe told Carlisle that he and Kirspel should obtain a rental truck and bring it to him in Gulf Shores. Lowe would then arrange to have the truck pick up the marijuana and bring it to a rendezvous point where it would be transferred to Kirspel. When the transfer was complete and Kirspel had examined the marijuana to his satisfaction, he would place a phone call to Carlisle at another location, instructing him to turn over the money to Gustin and Walker. It was also agreed that Walker and Lowe would receive five dollars for every pound of marijuana delivered, with the remainder of the money apparently going to Gustin and the suppliers in Florida.

This plan was set into motion on December 29. Carlisle and Kirspel delivered a rental truck to Lowe in Gulf Shores that afternoon, and Lowe then drove it down to Pensacola, accompanied by Walker. At some point Lowe had made contact with Lemar Boyington, who agreed to supply him with three or four hundred pounds of marijuana. Lowe and Boyington met each other in Pensacola, where Lowe gave him the keys to the truck before returning to Gulf Shores. In a series of tape-recorded conversations over the course of the evening, Lowe and Gustin reported to Carlisle that they had encountered various problems with their Florida suppliers and therefore would be able to deliver substantially less marijuana than they had originally anticipated.

At 11:00 that night, Lowe, Gustin, and Walker met Carlisle, Kirspel, and Lasseter at a Shell service station in Spanish Fort, Alabama. Lowe and Kirspel drove off together to rendezvous with the rental truck and a car that was bringing the marijuana from Pensacola, while the other three settled down to wait at a local shopping center for the telephone call that would confirm that the marijuana had been delivered. Lowe and Kirspel met the rental truck and car along Interstate 10 near Malbis and pulled off the highway in a secluded area, where the defendants Lemar Boyington, Lightbourne, Durden, and Dukes began transferring bales of marijuana from the car to the rental truck. Agent Kirspel examined the bales and then alerted law enforcement officials who were waiting in the area to arrest Lowe and the other four men. Walker, Gustin, and Earl Boyington were taken into custody at the shopping center where they were waiting with Carlisle and Lasseter.

The defendants all pleaded not guilty and were tried before a jury beginning on March 29, 1982. The trial court declared a mistrial after the jury announced that it was unable to reach a verdict, and a second trial was commenced on June 16. The jury found all of the defendants guilty on both counts except for Earl Boyington, who was acquitted. We turn now to a consideration of the alleged errors raised by the defendants on appeal.

II. DISCUSSION OF ISSUES

A. Severance

James Gustin and the four Florida defendants--Lemar Boyington, Kenneth Lightbourne, Thomas Durden, and David Dukes--all contend that the trial judge erred by refusing to grant their requests for a severance. The four Florida defendants assert that the sheer volume of the government's evidence against Gustin, Lowe, and Walker, as well as the entrapment defenses offered by these three defendants and the evidence of predisposition submitted by the government in rebuttal, served to confuse the jury and prejudice their cases through evidentiary overspill. Gustin argues that his case should have been tried separately from those of Lowe and Walker because, although all three men presented an entrapment defense, his desperate financial circumstances made his claim significantly more plausible than that of his codefendants. As a result of the joint trial, Gustin contends, this distinction was lost on the jury and they failed to give the facts of his case independent consideration. Gustin also asserts that the rebuttal evidence on the issue of predisposition that the government presented against Walker further prejudiced his defense.

A motion requesting severance of either offenses or parties under F.R.Crim.P. 14 is a matter for the sound discretion of the trial judge. United States v. Berkowitz, 662 F.2d 1127, 1132 (5th Cir. Unit B 1981). The general rule is that defendants who are jointly indicted should be tried together, and this rule applies with particular force to conspiracy cases. United States v. Howell, 664 F.2d 101, 106 (5th Cir. Unit B 1981), cert. denied, 455 U.S. 1005, 102 S.Ct. 1641, 71 L.Ed.2d 873 (1982). When assessing the merits of a severance motion, the trial court must balance the possibility of prejudice to the...