U.S. v. Walker, s. 81-5201 and 81-5220

• Decision Date: 03 January 1983
• Docket Number: Nos. 81-5201 and 81-5220,s. 81-5201 and 81-5220
• Parties: 12 Fed. R. Evid. Serv. 144 UNITED STATES of America, Appellee, v. John Furman WALKER, Appellant. UNITED STATES of America, Appellee, v. Ellis Arnold PHILLIPS, Appellant. UNITED STATES of America, Appellee, v. George Cecil MIXON, Jr., Appellant. UNITED STATES of America, Appellee, v. Billy BASHLOR, Appellant. to 81-5222.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 277

696 F.2d 277

12 Fed. R. Evid. Serv. 144

UNITED STATES of America, Appellee, v. John Furman WALKER, Appellant.

UNITED STATES of America, Appellee, v. Ellis Arnold PHILLIPS, Appellant.

UNITED STATES of America, Appellee, v. George Cecil MIXON, Jr., Appellant.

UNITED STATES of America, Appellee, v. Billy BASHLOR, Appellant.

Nos. 81-5201 and 81-5220 to 81-5222.

United States Court of Appeals, Fourth Circuit.

Argued June 10, 1982.

Decided Nov. 24, 1982.

Rehearing Denied Jan. 3, 1983.

Ronald A. Dion, Miami, Fla. (Entin, Schwartz, Angert, Dion & Broudy, P.A., Miami, Fla., on brief), and Randolph Murdaugh, III, Ridgeland, S.C., and David Roberson, Savannah, Ga., for appellants.

Lionel S. Lofton, Asst. U.S.Atty., Charleston, S.C. (Henry Dargan McMaster, U.S. Atty., Columbia, S.C., on brief), for appellee.

Before HAYNSWORTH, Senior Circuit Judge, and SPROUSE and CHAPMAN, Circuit Judges.

HAYNSWORTH, Senior Circuit Judge:

Again we are met with the question of admissibility of the grand jury testimony of an unavailable witness under Federal Rule of Evidence 804(b)(5). We conclude that the evidence was properly admitted in this case. All four of the defendants were convicted upon all counts of an indictment charging them with conspiracy to import marijuana, conspiracy to possess it, importation of marijuana and possession with intent to distribute it in violation of 21 U.S.C. Secs. 952(a) and 960, 841(a)(1) and 18 U.S.C. Sec. 2.

I.

A shrimp trawler proceeded out of St. Catherine's Sound, Georgia, to a point some 180 miles out at sea where there was a rendezvous with a ship, apparently from Latin America. The trawler took on a cargo of more than 28,000 pounds of marijuana and returned to St. Catherine's Sound. The primary land site was in waters off that Sound, but the trawler, after disembarking three members of its crew in speed boats, diverted to St. Helena Sound in South Carolina.

The next day a Coast Guard cutter found it at anchor some 7.5 nautical miles off Fripp Island, South Carolina. A Coast Guard inspection party went aboard. During a routine inspection, the party noticed the odor of marijuana, and bales of it were seen stacked in the engine room. The trawler had a crew of only two men, "Jimbo" Ward and Willie Parker. They were arrested. Parker was transferred to the cutter, but Ward was held on board with the boarding party, later augmented by Customs and other officials.

In the pilot house of the trawler there was a VHF radio and a citizens band radio tuned to channel 1. Late that afternoon a message was received on CB channel 1 addressed to "Jimbo" and instructing him to "come on in." Anchor was weighed, and the trawler proceeded to and up St. Helena Sound. There was radio communication with a man who identified himself as "Gator Man" or "Gator Boy," to which Ward responded under the direction of the Chief Petty Officer. Later, there was radio communication, still on CB channel 1, with a small speed boat, which had been sent to meet the trawler and to lead it in. A beam of light was flashed from the small boat permitting the trawler to locate it and come alongside. The two men in the small boat were arrested. Thereafter, radio communication with "Gator Man" was handled by one of the Coast Guardsmen from the small boat's CB radio, because they did not wish the two former occupants of the small boat to overhear what was being said. The Coast Guardsman attempted to imitate Ward's drawl and accent.

An effort was made to get Gator Man to instruct them about where to go, but his response was that the man in the boat would lead them in.

Many months before, Walker, a fisherman and the owner of a farm near Walterboro, South Carolina, contacted the manager of a large plantation on the Combahee River, David Craven, and offered him $50,000 to $100,000 if, on a given night, he would stay at home and not look to see what was occurring on the plantation or any of its several river landings. A little over two months before the events described above, and again only a few days before, there were further conversations between Walker and Craven about the matter. Craven, however, was a special deputy sheriff, and he had reported these contacts to law enforcement officials.

There was testimony by witnesses Thompson and Graves that on the afternoon of August 1, Walker dispatched them in a speed boat, owned by Graves, to meet the trawler and lead it in. They were the two in the small boat that met the trawler at Buoy # 4. They had previously been tried with Ward and Parker but had been acquitted, apparently because the jury was not convinced beyond a reasonable doubt that they knew the nature of the cargo. At the trial of these defendants Graves continued to insist that he did not know of the marijuana, but Thompson readily admitted his participation from the beginning.

Thompson, a resident of Richmond Hill, Georgia, testified that he had been recruited by Phillips, another resident of that community, to go on the trawler's voyage to take on the marijuana. Others on board were Ward, Parker, Mixon and Bashlor. After the trawler's return to Georgia waters, Thompson disembarked in a small boat. The next day, however, pursuant to instructions given to him earlier by Phillips, he proceeded to Walker's farm near Walterboro, South Carolina. They were met by Graves, a commercial fisherman of Beaufort, South Carolina. Thompson and Graves drove to Beaufort in Graves' truck, and then in Graves' small boat proceeded to Buoy # 4 in St. Helena Sound.

In the first hour of August 2, some fifteen to twenty minutes after midnight, a customs agent discovered Walker in a camper truck equipped with a CB radio set on channel 1 at Fieldspoint Landing. He also had two walkie-talkie instruments, each of which was set on channel A, which the agent testified was the same as CB channel 1. Fieldspoint Landing is a public landing on the plantation managed by Craven. It is equipped with a ramp and restrooms, but there is no dock. It is closer to the mouth of the Combahee River than other landings on that plantation.

Radio transmission to the trawler ceased at approximately 12:15 a.m., about the time of Walker's arrest.

Later, federal and state law enforcement officials came to Craven's house. He, with the county sheriff and a state law enforcement division agent, proceeded to investigate Whiskey Landing, a private landing on the plantation upstream from Fieldspoint. Entry to the private road leading directly to Whiskey Landing was customarily barred by a chain secured by a padlock. When Craven attempted to unlock it, he discovered that the padlock had been changed and they were required to proceed by circuitous means before arriving ultimately at Whiskey Landing. There they discovered three motor homes, a van and several men. Mixon who, according to Thompson's testimony, had been a member of the crew of the trawler on its sea voyage, was arrested, but the six or seven others escaped.

After he and Ward had been tried and convicted, Parker testified before the grand jury. He also lived in Richmond Hill, Georgia, and had been recruited for the venture by Phillips, as had Thompson. The other members of the trawler's crew on the sea voyage were Ward, Mixon, Thompson and Bashlor. On their return to Georgia waters there was contact with two speed boats, one of which was operated by Walker, and Thompson, Mixon and Bashlor were sent ashore. He and Ward, alone in the trawler, then proceeded to the point of their anchorage off Fripp Island where they were arrested.

Before the trial of these four defendants, Parker wrote a letter to the United States Attorney. He stated that he had testified to things before the grand jury that he did not remember and that he had been "scared to death." He stated that he would have said anything to stay out of prison. Though he had been granted immunity for his testimony, however, no one had promised him lighter punishment for it.

At the trial of these defendants, Parker entered a claim of the Fifth Amendment protection against self-incrimination. He stated that he was in fear of prosecution for perjury. The court sustained the claim and declared that Parker was unavailable as a witness. He then admitted so much of Parker's grand jury testimony as tracked Thompson's live testimony. Parker's testimony that he had been recruited by Phillips was left in, but no testimony about anything that transpired after the trawler's contact with two small boats in Georgia was permitted to go before the jury, not even his identification of...