U.S. v. Zabaneh

• Decision Date: 09 February 1988
• Docket Number: No. 87-1112,87-1112
• Citation: 837 F.2d 1249
• Parties: 24 Fed. R. Evid. Serv. 1075 UNITED STATES of America, Plaintiff-Appellee, v. Angel John ZABANEH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1249

837 F.2d 1249

24 Fed. R. Evid. Serv. 1075

UNITED STATES of America, Plaintiff-Appellee, v. Angel John ZABANEH, Defendant-Appellant.

No. 87-1112.

United States Court of Appeals Fifth Circuit.

Feb. 9, 1988.

John E. Ackerman, Houston, Tex., Gerald H. Goldstein, San Antonio, Tex., for defendant-appellant.

James T. Jacks, Asst. U.S. Atty., Dallas, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GOLDBERG, WILLIAMS and HIGGINBOTHAM, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Appellant, Angel John Zabaneh, was convicted on seven counts relating to possession and distribution of marihuana in violation of 18 U.S.C. Secs. 2 and 3237(a), 21 U.S.C. Secs. 841(a)(1) and (b)(6), and 21 U.S.C. Secs. 951 et seq. He was sentenced to a total of 25 years in prison. All counts related to a single shipment of marihuana from the country of Belize to Texas on December 8, 1981. Appellant raises ten issues on appeal, some of which merit careful attention. We hold that the district court erred in sustaining appellant's conviction under count five, and in failing to make the required Beechum-Robinson ¹ findings before admitting extrinsic offense testimony by three of the Government's witnesses. We affirm the district court's holdings on the remaining points of error on appeal.

I. Facts

Texas Narcotics Division agents arrested three persons near Longview, Texas on December 9, 1981, as they attempted to smuggle a quantity ² of marihuana into the United States from Belize. One of those arrested, Fred Tonjes, agreed as part of a plea agreement to provide information concerning his involvement in drug trafficking. He told agents in December, 1985, that appellant Zabaneh had been one of his suppliers in Belize, and that appellant had supplied the marihuana seized at the time he, Tonjes, was arrested. Based on this and other information, a complaint was filed in the Northern District of Texas charging appellant with conspiracy to distribute marihuana. ³

Appellant, a citizen of Belize, operated citrus and banana farms there. Along with two others from Belize, he flew to Guatemala City on November 10, 1985. According to the magistrate's findings of fact, the three were stopped between immigration and customs by a person wearing a "Miami Vice" cap who identified himself as a United States narcotics agent. Appellant and the others were taken to a small room at the airport where they were strip-searched and detained until the next morning, when a United States DEA agent flew with appellant in his custody to Houston, Texas.

On arrival in Houston, appellant was formally arrested on an indictment then pending in the Eastern District of Louisiana. During the following month and a half, appellant was detained on a series of indictments lodged in the Eastern District of Louisiana, the Southern District of Mississippi, and the Northern District of Texas. All but the last were dismissed, and eventually appellant was taken to the Northern District of Texas for trial.

Trial, conviction, sentencing.

The case was tried to a jury in the Northern District. Appellant was found guilty on seven counts which can be summarized as follows:

Count 1: conspiracy to import marihuana, in violation of 21 U.S.C. Secs. 952(a), 959, and 963;

Count 2: possession of approximately 1,160 pounds of marihuana with intent to import, in violation of 18 U.S.C. Secs. 2 and 3237(a), and 21 U.S.C. Secs. 955a(d)(1) and 960(b)(1);

Count 3: distribution of approximately 1,160 pounds of marihuana with intent to import, in violation of 18 U.S.C. Secs. 2 and 3237(a), and 21 U.S.C. Secs. 959(a)(1) and 960(a)(3);

Count 5: aiding and abetting the importation of approximately 1,160 pounds of marihuana, in violation of 18 U.S.C. Sec. 2, and 21 U.S.C. Secs. 952(a) and 960(a)(1);

Count 6: aiding and abetting the importation of approximately 1,160 pounds of marihuana without proper registration, in violation of 18 U.S.C. Sec. 2, and 21 U.S.C. Secs. 957(a)(1) and 960(a)(1);

Count 7: aiding and abetting the possession of approximately 1,160 pounds of marihuana aboard an aircraft although not listed in its manifest as cargo or part of supplies of aircraft, in violation of 18 U.S.C. Sec. 2 and 21 U.S.C. Secs. 955 and 960(a)(2); and

Count 8: aiding and abetting the possession of approximately 1,160 pounds of marihuana with intent to distribute, in violation of 18 U.S.C. Sec. 2, and 21 U.S.C. Secs. 841(a)(1) and (b)(6).

Appellant was sentenced to five years' imprisonment on each of counts 1, 2, 3, 5, and 6, the terms to run consecutively, five years on counts 7 and 8 to run concurrently with the sentence on count 1, and a special parole term of not less than 2 years on each of counts 2, 3, 5, 6, 7, and 8, to run concurrently.

II. Issues on Appeal

Appellant presents a number of issues, several of which are of substantial significance. We dispose of three lesser issues first.

A. Is Sec. 955a(d)(1) limited to activities on vessels? (Count 2)

Appellant urges that his conviction on count 2 must be reversed because, although 21 U.S.C. Sec. 955a refers in its title to possession of controlled substances on board vessels, the Government offered no evidence that he possessed such substance aboard a vessel. This contention lacks merit. The plain language of Sec. 955a(d)(1), under which appellant was charged in count 2, made no mention of vessels. Appellant correctly notes that the Supreme Court has held that, absent a "clearly expressed legislative intent to the contrary," the language of a criminal statute "must ordinarily be regarded as conclusive." Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 1141, 67 L.Ed.2d 275 (1981). The fact that Congress in 1986 redesignated Secs. 955a to 955c as the "Maritime Drug Law Enforcement Act," 46 U.S.C. Secs. 1901-1903, does not manifest such contrary intent as to the applicability of Sec. 955a in 1980 when the offense occurred. The intended scope of Sec. 955a was clearly indicated: "This section is intended to reach acts of possession, manufacture or distribution committed outside the territorial jurisdiction of the United States." 21 U.S.C. Sec. 955a(h). Neither Sec. 955a(d) nor Sec. 955a(h) at that time contained any reference to vessels.

B. Does Sec. 955 apply only to importation on common carriers? (Count 7)

Appellant contends that 21 U.S.C. Sec. 955 applies only to common carriers, and that his conviction on count 7 therefore should be reversed, since the airplane used in the December 8, 1981, conveyance of marihuana was a private craft. This contention is frivolous. The statutory language plainly is not limited to possession or transportation on commercial or common carriers. On the contrary, it reads: "It shall be unlawful for any person to bring or possess on board any vessel or aircraft, or on board any vehicle of a carrier ..." (emphasis added). Section 955 has previously been utilized in the prosecution of persons who imported controlled substances into the United States via private aircraft. United States v. Tussell, 441 F.Supp. 1092 (M.D.Pa.1977). It is applicable here.

C. Was Sec. 955 intended to reach consummated importations? (Count 7)

Appellant also contends that he should be acquitted on count 7 on the theory that Sec. 955 was intended to reach only aiding and abetting unconsummated importations, while the evidence showed aiding and abetting a consummated importation. He relies upon United States v. Valot, 481 F.2d 22, 27 (2d Cir.1973) in making this claim. This contention also is without merit. The importation in question clearly was unconsummated before it was consummated.

A more significant question, at which appellant only hints, is whether, since he was convicted on count 5 for consummated importation under Sec. 952, the offenses of attempted and completed importation should merge so as to preclude a separate conviction under Sec. 955 on count 7 for the former offense. In Valot, the Second Circuit held that the defendant had been improperly sentenced to consecutive terms for convictions under Secs. 955 and 952. 481 F.2d at 27. Here, appellant's sentence under count 7 is to run concurrently with his sentences under counts 1 and 8.

We have previously held that the offense of possession with intent to distribute merged with the completed offense of distribution where both charged offenses [under 21 U.S.C. Sec. 841(a) ] were based upon a single transaction. United States v. Merlino, 595 F.2d 1016, 1020 (5th Cir.1979); United States v. Hernandez, 591 F.2d 1019 (5th Cir.1979). There we held that consecutive sentences constituted double punishment and remanded for resentencing. See also United States v. Phillips, 664 F.2d 971, 1039 (5th Cir.1981). Since then, the Supreme Court has held in a different factual context that because of potential adverse collateral consequences, separate convictions may not be allowed where separate sentences are impermissible under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 1671-74, 84 L.Ed.2d 740 (1985). Both counts 5 and 7 are based upon the same conduct on the part of appellant: his assisting in loading the airplane that transported the marihuana from Belize to Texas on December 8, 1981. Because we vacate appellant's conviction under count 5 on other grounds, infra, part II, G, we need not determine whether the offenses under counts 5 and 7 merge, or whether Hernandez or Blockburger and Ball apply here. We hold that appellant was properly convicted under count 7.

D. Did mid-trial publicity taint jury deliberations?

We now move to appellant's more substantial contentions. He claims that the jury may have seen what he characterizes as a highly prejudicial news article about him prior to or in the course of its deliberations, and the district court erred by failing to caution the jury adequately to disregard press...