U.S. v. Watson
| Decision Date | 21 February 1989 |
| Docket Number | No. 87-3548,87-3548 |
| Citation | 866 F.2d 381 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Dillard Earl WATSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Clyde Taylor, Tallahassee, Fla., for defendant-appellant.
Michael T. Simpson, Asst. U.S. Atty., Tallahassee, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Florida.
Before VANCE and CLARK, Circuit Judges, and NESBITT *, District Judge.
Dillard Earl Watson appeals his conviction on a five count indictment. Count one charged Watson with importing marijuana into the United States from a place outside the United States, 21 U.S.C. Sec. 952; count two with possession with intent to distribute marijuana, 21 U.S.C. Sec. 841(a)(1); count three with possession of an unregistered machine gun, 26 U.S.C. Sec. 5861(d); count four with possession of firearms not identified by serial number, 26 U.S.C. Sec. 5861(i); and count five with possession of firearms by a convicted felon, 18 U.S.C. Sec. 922(g)(1). We affirm.
Watson owned a small upholstery business in a rural area of northern Florida. In August 1985 he bought a Cessna 210 airplane, tail number N2228R. He obtained a student pilot's license and kept the plane at a small airport in Cross City, Florida. Watson was an avid skydiver and on at least one occasion demonstrated his skydiving skills to observers at the Cross City airport.
On January 22, 1987, agents of the United States Customs Service ("Customs") applied for a warrant to install a transponder in Watson's airplane. A transponder is a device that emits an electronic signal that allows law enforcement agencies to track airplanes by radar. An affidavit supporting the warrant application stated that it was Customs' belief that Watson was using his airplane to smuggle marijuana into northern Florida from the Central American country of Belize. The affidavit stated that Customs' belief was based, to a large degree, on information received from a confidential source. According to this information, Watson would fly from Cross City to a clandestine airstrip in Belize, pick up a load of marijuana, fly back to northern Florida, then airdrop his cargo at various points along the countryside. The affidavit also stated that the confidential source had told Customs that Watson would be leaving on another smuggling trip within two weeks. On the basis of this affidavit and additional material submitted under seal the reviewing judge found probable cause and issued the warrant. On January 23, 1987, under cover of darkness, Customs installed a transponder on Watson's airplane. The agent who installed the transponder noticed that the interior of the airplane had been stripped and had all of the passenger seats removed. He also noticed that the doors had been modified to open upwards rather than sideways. 1
The incident leading to Watson's indictment on the two drug counts (counts one and two) occurred only seven days after the transponder was installed. During the morning of January 31, Watson took off in his airplane after telling the manager of the Cross City airport that he was going to either Alabama or Georgia to pick up a new airplane wing. The airport manager observed that Watson took his parachute with him. That night, at approximately 11:45 p.m., a United States Air Force radar station began receiving a transponder signal indicating that an aircraft was approaching the Florida coast from the general direction of Belize. A Customs agent who was monitoring the signal dispatched a Black Hawk helicopter and a Cessna Citation to intercept the target aircraft. The two Customs aircraft pursued the target aircraft over the Gulf of Mexico and northern Florida for more than six hours, tracking the target aircraft with the Citation's radar. At one point, the Black Hawk's pilot was able to shine a high-intensity beam of light on the target aircraft. He identified it as a Cessna 210 airplane, tail number N2228R. He also could tell that the airplane was heavily loaded with cargo and appeared to have only one person, the pilot, aboard.
When the light fell on the Cessna 210, the airplane began to engage in evasive, circular maneuvers. After it failed to avoid its pursuers, it began to drop its cargo at various locations throughout the countryside and over the ocean. The pilot of the Citation, seeing these drops through an infrared monitor, charted their location and notified his headquarters. Finally, at approximately 6:00 a.m. on February 1, the Citation's pilot, by radar, saw the Cessna 210 descend rapidly from 15,000 feet to 3000 feet and disappear. The airplane was directly over water when it disappeared from the radar screen. N2228R has not been seen since. 2
An officer of the Florida Marine Patrol was dispatched that same morning to the drop locations charted by the Citation's pilot and recovered three duffel bags filled with marijuana. The officer found various maps and navigational charts of Belize and northern Florida inside one of the bags. Watson's fingerprints were found on some of these documents.
Two days after this incident, on February 3, agents from Customs obtained a search warrant and searched Watson's upholstery shop. They seized several items that the government entered into evidence against Watson at his ensuing trial. A pair of night vision goggles, two hand-held walkie-talkies, and a police call radio directory were among the items seized.
The events leading to Watson's indictment on the weapons counts (counts three through five) began when Dennis Smith, a deputy-sheriff from Gilchrist County, Florida, was on patrol on February 13, 1987. He stopped a light blue van that he suspected was being driven by an intoxicated driver. As Smith approached the van, it sped off and a high speed chase began. The driver of the van opened fire on Smith with a machine gun and Smith returned fire. Neither Smith nor the driver of the van was hurt, but Smith's patrol car was disabled and the driver of the van escaped. Several bullets were removed from Smith's patrol car. The van subsequently was discovered abandoned and had Watson's fingerprints on it. At Watson's trial, Smith identified Watson as the driver of the van.
Watson ultimately was apprehended on February 26, 1987, after another high speed attempt to avoid capture by law enforcement officials. Watson had two unregistered weapons in his possession when he was apprehended, one of which was a machine gun. Expert ballistics testimony revealed that the bullets found lodged in deputy Smith's patrol car came from this same weapon.
Watson was charged on all five counts in one indictment. Prior to his trial, he moved to sever the drug counts from the weapons counts; this motion was denied. He also filed a motion to suppress all evidence seized as a result of the transponder being placed aboard his airplane. As grounds for this motion, he argued that the affidavit submitted in application for the transponder warrant did not support a finding of probable cause. The district court also denied this motion.
At trial, Watson chose to exercise his fifth amendment privilege not to testify. During closing argument, his counsel emphasized to the jury that the government had failed to disprove alternative explanations for where Watson may have gone in his airplane on January 31 and why his airplane had not been seen since. For example, his counsel argued, Watson might have gone skydiving that day and left his "airplane with someone else for repairs." The prosecutor, in response to these comments, advised the jury that Watson "has no duty to present evidence, has no duty to testify, you shouldn't hold that against him," but stated "[i]f [Watson] was skydiving with somebody else, he is the one who knows which witness to call to tell you about that." Watson objected to these comments by the prosecutor and moved for a mistrial. The objection was overruled and the motion for mistrial denied. Watson thereafter was convicted on all counts and sentenced accordingly.
On appeal, Watson first argues that the district court erred in failing to sever the drug counts from the weapons counts. Rule 8(a) of the Federal Rules of Criminal Procedure governs joinder of offenses for one trial:
Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
Fed.R.Crim.P. 8(a). Watson argues that the joinder of the drug counts with the weapons counts did not meet the requirements of Rule 8(a) because the incident from which the drug counts arose was not connected in time, location, or any other common thread with the incidents from which the weapons counts arose. He further argues that misjoinder under Rule 8 is inherently prejudicial and mandates mistrial, citing United States v. Marionneaux, 514 F.2d 1244 (5th Cir.1975), cert. denied sub nom. Partin v. United States, 434 U.S. 903, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977).
While Marionneaux indeed stands for the proposition that misjoinder under Rule 8 is inherently prejudicial, see id. 514 F.2d at 1248, the Supreme Court recently ruled squarely to the contrary in United States v. Lane, 474 U.S. 438, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986), holding that misjoinder under Rule 8 is subject to harmless error analysis. Although the holding in Lane specifically concerned misjoinder of parties under Rule 8(b), the language of the opinion leaves no doubt that the harmless error standard applies equally to misjoinder of offenses under Rule 8(a). 3
An error involving misjoinder under Rule 8 is harmless unless it " 'affects substantial rights' and ... results in...
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