U.S. v. Weaver

• Decision Date: 13 July 1990
• Docket Number: No. 88-6032,88-6032
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John WEAVER, Thomas D. Sikes, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1466

905 F.2d 1466

UNITED STATES of America, Plaintiff-Appellee, v. John WEAVER, Thomas D. Sikes, Defendants-Appellants.

No. 88-6032.

United States Court of Appeals Eleventh Circuit.

July 13, 1990.

Michael Hursey, P.A., Ft. Lauderdale, Fla., for John Weaver.

Alvin E. Entin, Entin, Schwartz, Margules & Schwartz, Miami, Fla., for Thomas D. Sikes.

Dexter W. Lehtinen, U.S. Atty., Eileen M. O'Connor, Dawn Bowen, Asst. U.S. Attys., for plaintiff-appellee.

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

Before KRAVITCH and JOHNSON, Circuit Judges, and KAUFMAN ^*, Senior District Judge.

FRANK A. KAUFMAN, Senior District Judge:

Thomas Sikes and John Weaver appeal from their convictions in the United States District Court for the Southern District of Florida and the sentences imposed upon them for conspiracy to import cocaine in violation of 21 U.S.C. Sec. 963 and conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. Sec. 846. We affirm.

On September 23, 1987, twenty-one defendants, including the two appellants, were indicted upon twenty-nine counts for various cocaine and marijuana offenses. The indictment contained twenty-one counts charging substantive cocaine-related offenses (Counts 1-3; 12-29). All twenty-one defendants were charged with one or more cocaine related offenses. Count One charged Sikes with conducting a criminal enterprise in violation of 21 U.S.C. Sec. 848. ¹ Count Two charged Sikes and Weaver and seventeen other defendants with conspiracy to import at least one kilogram of cocaine, in violation of 21 U.S.C. Sec. 963. Count Three charged all defendants with conspiracy to possess with intent to distribute at least one kilogram of cocaine in violation of 21 U.S.C. Sec. 846. ² In addition to the cocaine counts, the indictment included eight counts charging eleven defendants, but not Sikes or Weaver, with substantive marijuana-related offenses (Counts 4-11). After certain defendants entered pleas of guilty, the case proceeded to trial against nine defendants, ³ only two of whom, Robert Bradley and Norman Speck, were charged in any of the marijuana counts. After four and one-half days of trial, the court severed the marijuana charges and continued the trial as to the nine defendants solely with respect to the cocaine charges. At the conclusion of the trial, Sikes and Weaver were found guilty under Counts Two and Three. As to the other counts in which Sikes and Weaver were charged, the jury failed to reach verdicts. ⁴

Weaver was sentenced to concurrent six-year terms of incarceration in connection with his convictions upon Counts Two and Three. Sikes was sentenced to two concurrent thirty-six year terms of imprisonment in connection with his convictions upon Counts Two and Three, those terms to run consecutively with a sentence imposed in a prior case. In addition, Sikes was fined $1,000,000.

In this appeal, the following questions are presented: (1) whether Sikes was properly prosecuted for offenses he committed during 1986; (2) whether the district court properly admitted evidence at trial relating to Sikes' 1985 offenses; (3) whether the joinder of the marijuana and cocaine offenses was proper; (4) whether there was sufficient evidence to support Weaver's convictions; (5) whether the testimony regarding certain threats constituted undue prejudice; and (6) whether Sikes' enhanced sentence was proper.

I. EVIDENCE AT TRIAL ⁵

From 1983 until May 1985, certain persons, several of whom subsequently cooperated with the government and are alleged to be unindicted co-conspirators in the aforementioned marijuana and cocaine conspiracies, smuggled marijuana by boat and plane from the Bahamas, Jamaica, and Belize into the United States. In May 1985, Sikes conspired with some of those persons to import cocaine from Columbia into the United States and became a leading figure--if not the leading figure--in that effort. That conspiracy involved, inter alia, arrangements for the use of Florida-based airplanes to fly cocaine on four occasions from Columbia to safe landing areas in Louisiana and Florida, and then to transport that cocaine by automobile to safe locations in Florida. Weaver was one of the persons hired and paid by Sikes to offload the planes and transport the cocaine to Florida on two of the four occasions.

II. EVIDENCE IN THE PRETRIAL HEARING REGARDING THE PLEA AGREEMENT

In January, 1983, Sikes was convicted in the court below in an earlier case for drug-related offenses committed between 1978 and 1981. That conviction was affirmed in United States v. Van Horn, 789 F.2d 1492 (11th Cir.), cert. denied, 479 U.S. 886, 107 S.Ct. 279, 93 L.Ed.2d 255 (1986). Sikes, who was at liberty on an appeal bond in connection with certain matters in that case after the Supreme Court's said denial of a writ of certiorari, contacted, through an attorney, Alvin Entin, Special Agent Devlin of the Drug Enforcement Administration (DEA). On April 10, 1987, at a meeting with DEA Agents Devlin and Benisek, and with Sikes present, Entin stated that Sikes wanted to work with the DEA in exchange for immunity for Sikes from prosecution for three cocaine smuggling ventures in which Sikes had participated with individuals named "Carlos" and "Sammy," later further identified as Carlos Betancourt and Serviano Manga. During that meeting, the specifics of those offenses were not discussed, but there was some discussion about the years in which the offenses were committed. According to Entin, he represented that Sikes engaged in criminal activity with "Carlos" and "Sammy" in 1984 and 1985, and may have engaged in criminal conduct in 1986. According to Devlin and Benisek, the general time frame under discussion was 1981 through 1985, and the three smuggling ventures were represented to have occurred in 1984 and 1985. The latter representation was memorialized by Agent Benisek in a DEA-6 report of the meeting. Sikes stated that if the government agreed not to prosecute him for the offenses mentioned by Sikes during that April 10, 1987 meeting, he would assist the DEA in the interdiction of an importation of cocaine from Columbia which "Carlos" and "Sammy" were planning. Devlin informed Entin and Sikes that he was amenable to such an agreement subject to two conditions: 1) verification that Sikes was not currently under investigation; and 2) approval of the agreement by an Assistant United States Attorney.

Benisek checked the government's NADDIS ⁶ information system to determine whether Sikes was under investigation and received a negative response. ⁷ Devlin discussed Sikes' proposal with Assistant United States Attorney Neil Karadbil, who had prosecuted Sikes in 1982-83, and told Karadbil that Sikes wanted immunity from prosecution for three smuggling offenses committed between 1981 and 1985 in exchange for Sikes' full cooperation with the DEA.

Subsequently, Entin drafted a proposed written agreement dated April 20, 1987, which he sent to Karadbil. The letter stated, in pertinent part:

In return for [Sikes'] assistance, the Government has agreed that Mr. Sikes has disclosed participation in approximately three cocaine operations which took place from 1981 to 1985. With regard to these approximately three operations, the Government has agreed not to prosecute Mr. Sikes for his participation in same in any Federal Court. As each of these matters involved in some way the Southern District of Florida, your office may appropriately act in this matter.

Karadbil signed the agreement and returned it to Entin.

Between April 10 and May 13, 1987, Sikes introduced an undercover DEA agent to "Carlos" and "Sammy" in Miami. Plans were made for an airplane to fly to Columbia to pick up the cocaine on May 15th and return to Florida.

Unbeknownst to Devlin, Benisek and Karadbil, DEA Agent Mangiamele and Assistant United States Attorney Eileen O'Connor were at that time investigating Sikes' drug trafficking activities occurring after 1982. On approximately May 12, 1987, Mangiamele became aware of the agreement between Sikes and the government, and notified O'Connor and Karadbil of the situation.

On May 13th or 14th, Sikes told Entin that some people in Miami knew that he was cooperating with the authorities and accused Entin of leaking the information. According to Entin, Sikes also stated that Sikes did not believe that the agreement accurately reflected the time period to be encompassed by the non-prosecution portion of the agreement. On May 14th, Entin sent Karadbil a letter stating that the original agreement contained a typographical error in that Sikes was to receive immunity from prosecution for offenses committed between 1981 and 1986, rather than 1981 through 1985.

On May 15th, the planned cocaine importation was aborted when the pilots were unable to locate the airstrip in Colombia. That same day, Sikes, who had stated that he would be readily available to assist the DEA, left Miami and the agents were unable to locate him. Sikes later claimed that he left because of a family emergency.

On May 20th, Benisek and Devlin, together with another DEA agent, Shea, confronted Sikes concerning his disappearance on May 15th. The agents did not find Sikes' explanation plausible and informed him that he was "back to square one" in terms of fulfilling his cooperation requirement pursuant to the agreement. Sikes offered to introduce the agents to a cocaine dealer named "Manny." Sikes then placed a telephone call to "Manny" and, later that day, met "Manny" alone while under surveillance by DEA agents.

On May 21st, O'Connor, Mangiamele and Mangiamele's supervisor met with Benisek and Devlin and their supervisors. O'Connor instructed the latter two agents to "debrief" Sikes as to the specifics of the three smuggling ventures Sikes had referred to on April 10th. ⁸ O'Connor further instructed the agents to terminate Sikes as an informant following that interview.

Benisek...