U.S. v. Wooten

• Decision Date: 02 November 1982
• Docket Number: Nos. 81-5266,s. 81-5266
• Parties: 11 Fed. R. Evid. Serv. 954 UNITED STATES of America, Appellee, v. Willard Raymond WOOTEN, Appellant, National Association of Criminal Defense Lawyers, Amicus Curiae. UNITED STATES of America, Appellee, v. Donald James HUNT, a/k/a Danny Hunt, Appellant. UNITED STATES of America, Appellee, v. Ralph JUSTIZ, Appellant. to 81-5268.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 941

688 F.2d 941

11 Fed. R. Evid. Serv. 954

UNITED STATES of America, Appellee, v. Willard Raymond WOOTEN, Appellant, National Association of Criminal Defense Lawyers, Amicus Curiae.

UNITED STATES of America, Appellee, v. Donald James HUNT, a/k/a Danny Hunt, Appellant.

UNITED STATES of America, Appellee, v. Ralph JUSTIZ, Appellant.

Nos. 81-5266 to 81-5268.

United States Court of Appeals Fourth Circuit.

Argued April 1, 1982.

Decided Sept. 3, 1982.

Rehearing and Rehearing En Banc Denied Nov. 2, 1982.

Alan E. Weinstein, Miami Beach, Fla. (Richard J. Preira, Miami Beach, Fla., on brief), for appellant Willard Raymond Wooten.

Robert W. Johnson, Wilmington, N. C., on brief, for appellant Donald James Hunt.

Donald James Hunt, pro se on brief.

Melvyn Kessler, Miami, Fla., on brief, for appellant Ralph Justiz.

Sara Criscitelli, Dept. of Justice, Washington, D. C. (Samuel T. Currin, U. S. Atty., Raleigh, N. C., on brief), for appellee.

Murray Janus, Richmond, Va., Alan Ellis, Philadelphia, Pa., and Joseph Beeler, Miami, Fla., on brief, for amicus curiae The Nat. Ass'n of Crim. Defense Lawyers, Inc.

Before RUSSELL, WIDENER and CHAPMAN, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

The defendants-appellants, Willard Raymond Wooten, Donald James Hunt, and Ralph Justiz, along with a number of others not involved in this appeal, ¹ were indicted for conspiracy to import, for importation of, and for possession with intent to distribute marijuana. ² After a trial, all three defendants were convicted of importation of marijuana, defendants Hunt and Justiz were additionally convicted of possession with intent to distribute, and the defendant Justiz was further convicted of conspiracy to import and distribute marijuana. Following sentencing, all appealed their convictions, charging a number of alleged errors. We affirm.

I

This prosecution arose out of a scheme to import a large amount of marijuana from Colombia, South America, into eastern United States for distribution. The primary promoters of the scheme appeared to have been the defendants Justiz and Rego, ³ both residents of Miami, Florida. Under the plan the marijuana was to be transported by a freighter from Colombia to a point off the coast of North Carolina, where it would be offloaded onto smaller boats for transportation ashore to a pier at Southport, North Carolina. Justiz and Rego undertook to survey by boat the coast off Southport and to locate a rendezvous area where the freighter which was bringing the marijuana from Colombia could meet the smaller boats which were to carry the marijuana ashore. While so engaged their boat became disabled and they were stranded about 40 miles off the coast. Lane and Perry, two operators of fishing boats based at Southport, were fishing and came upon Justiz and Rego in their disabled boat. They towed Justiz and Rego ashore and were paid $1,000 for such services. Justiz and Rego wished to return to Florida and engaged Lane and Perry to repair their boat and to return it to them in Florida.

When the boat was repaired Lane delivered it to Justiz and Rego in Florida. At that time, Justiz and Rego disclosed to Lane their scheme and solicited his assistance in North Carolina. Later Justiz flew to Wilmington, North Carolina, and met with Lane. Arrangements were then made for Lane's participation in the scheme. Lane received $10,000 at the time as a down payment on the $500,000 ultimately to be paid him as his share from the venture. Under the arrangement Lane was to provide the crews and have the responsibility for the operation of the crafts to be used in taking the marijuana from the freighter ashore. The crafts to be used by Lane and his crew were to be furnished by Rego. The crafts furnished by Rego, however, were found to be unsatisfactory and Lane enlisted the assistance of Perry and Todd, neither of whom was named in the indictment as defendants, but both of whom, along with Lane, were identified as co-conspirators. Perry was the owner of a fishing craft, the Ox, as well as the owner of the American Fish Company, which maintained a fish warehouse and dock at Southport. Todd was the captain of another boat, the Southern Pride. It was arranged that both the Southern Pride and the Ox would be used to bring the marijuana ashore, which would be stored temporarily in the fish warehouse of the American Fish Company until it could be trucked out for distribution.

By February 20 the freighter Jell II had reached the agreed rendezvous point with its cargo of marijuana and Justiz, Rego and Hunt, another defendant from Florida originally introduced to Lane only as "Danny" had arrived at Southport to supervise operations. The Southern Pride, with Todd and the defendant Hunt in charge was dispatched out to the Jell II and, after taking on board 80 bales of marijuana from the Jell II, returned to the shore. Hunt, Lane and Lane's friends and brothers, whom Lane had recruited for the purpose, unloaded the marijuana and stored it in the fish warehouse. Hunt left the scene for a short time and then returned with a truck which he had rented. The marijuana was loaded on the truck and Hunt drove the truck away.

Sometime between February 20 and February 24, a United States Customs Service plane, maintaining a surveillance of the coastal area for any suspicious activity at sea, had located the Jell II. The pilot of the plane circled the freighter and noted that, while it was moving about in an unusual way, it carefully stayed within the same general area. There was no reason why the crew on the Jell II should not have known of this surveillance but, if they did, they did not inform the conspirators on the shore of the fact.

On February 24 Lane, his brother Stephen Brock and another friend took the Southern Pride and the Ox out to the Jell II. The transfer of marijuana from the freighter to the two smaller crafts began. Marijuana was first loaded on the Southern Pride, which set off for shore with Lane's brother and the friend on board. Lane and Brock who were in control of the Ox, then turned to loading, with the assistance of the freighter's crew, the Ox. After the Ox was loaded, the person who had identified himself as the captain of the Jell II, the defendant Wooten, jumped aboard the Ox and rode back to Southport with Lane and Brock on the Ox. Wooten talked to Lane on this trip in. He first confided that he had "broken his ribs and he wanted to ride in with me (Lane)." He added that there was no water or food aboard the Jell II and asked for water. Later, he said he had sought to communicate with "Gene" (identified as the co-defendant Littrell, whose case, along with that of the defendant Rego, was severed for separate trial, but who is identified in the indictment as the conspirator who maintained radio contact with the freighter) "because he did not like the way whoever was handling this thing" was handling it and wanted "Gene" to "become involved with it." His dissatisfaction was apparently directed at his Cuban crew, whom he suspected of "trying to pull some kind of a rip-off or something." He sought to disassociate himself from the Cubans and told Lane "to chuck the pot overboard and go tell 'his people,' as he described it, what was going on, and they would give me my money that I was supposed to get paid." He told Lane that he (Wooten) was to be paid or had been "paid" $400,000 "for being the captain of the Jell II," in bringing the marijuana from South America. Brock also, had some conversation on the trip in with Wooten about the latter's involvement with the marijuana. Particularly, Brock inquired how Wooten got the marijuana from South America to the rendezvous area. Wooten replied that he "snuck it out of South America the same way you sneak it up here."

When the Ox arrived at the American Fish Company landing dock, several of the co-conspirators, including Justiz and Rego, were present at the dock. Immediately, Wooten jumped off the Ox and was observed talking to Rego. After a short conversation, Rego and Wooten got into a car and left. Lane and others began to unload the Ox. Hunt assisted. Hunt, however, did not remain for the complete unloading, commenting that he was going to his motel but would return as soon as the unloading was completed. When Lane and the others finished unloading the Ox and had stored the marijuana in the fish warehouse, they began to unload the Southern Pride. It was at this time that the Customs Patrol and the Drug Enforcement Administration (DEA) officers boarded the boats and made arrests of those present. The defendants were later apprehended, indicted, tried and convicted. They appeal their convictions.

II

The defendants have asserted many assignments of error. Some of them relate to the appeal of but one defendant, others are raised by all the appellants. The defendant Wooten raises the sufficiency of the evidence to convict him of the single charge of importation of marijuana. To some extent he would base this phase of his argument upon the failure of the jury to convict him of either conspiracy or of possession with intent to distribute. Inconsistency of verdicts, however, is not an appropriate basis for reversal of an otherwise valid jury verdict. Hamling v. United States, 418 U.S. 87, 101, 94 S.Ct. 2887, 2899, 41 L.Ed.2d 590 (1974); United States v. Scheper, 520 F.2d 1355, 1358 (4th Cir. 1975); United States v. McCloud, 427 F.2d 242, 243 (4th Cir.), cert. denied, 400 U.S. 910, 91 S.Ct. 155, 27 L.Ed.2d 150 (1970); United States v. Grow, 394 F.2d 182, 208 (4th Cir.), cert. denied, 393 U.S. 840, 89 S.Ct. 118, 21 L.Ed.2d 111 (1968). The evidence of Wooten's participation in the importation of the marijuana-the crime of which he was convicted-is overwhelming and the jury verdict convicting Wooten of importation was abundantly sustained by the evidence. Wooten himself admitted to Lane and Brock that he had captained the boat which had brought the marijuana from Colombia to the...