U.S. v. Zylstra

• Decision Date: 09 August 1983
• Docket Number: No. 81-1896,81-1896
• Citation: 713 F.2d 1332
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marvin J. ZYLSTRA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1332

713 F.2d 1332

UNITED STATES of America, Plaintiff-Appellee, v. Marvin J. ZYLSTRA, Defendant-Appellant.

No. 81-1896.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 5, 1983.

Decided Aug. 9, 1983.

Bradley E. Prendergast, Chicago, Ill., for defendant-appellant.

Janis H. Kockritz, Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Before ESCHBACH and COFFEY, Circuit Judges, and NEAHER, Senior District Judge. ^*

COFFEY, Circuit Judge.

Marvin J. Zylstra appeals from his conviction in the United States District Court for the Southern District of Illinois for offenses arising out of a drug smuggling operation. The defendant claims that: (1) the trial court improperly denied his motion for a change of venue; (2) the increase in the defendant's bond during trial deprived him of effective assistance of counsel and thus violated his Eighth Amendment rights; (3) he received ineffective assistance of counsel; (4) the prosecutor's closing argument was improper and prejudicial; and (5) the trial court improperly punished the defendant for exercising his right to trial by imposing an excessive sentence. We find Zylstra's claims to be without merit and affirm the district court.

I. FACTS

The defendant, Marvin J. Zylstra, is a pilot and the owner of a Fort Lauderdale, Florida aircraft sales business known as Custom Air, Ltd. In 1977 Zylstra became acquainted with one Richard Dial Thorp who in 1975 had organized a number of people to help in importing large quantities of marijuana from South America for distribution and sale in the United States. Thorp with his associates (collectively known as the "Company"), prior to meeting Zylstra, had smuggled marijuana into the United States via boat. However, after their introduction, Thorp consulted with the defendant Zylstra regarding the use of airplanes in the illicit drug smuggling operation and inquired about the respective load capacities of certain planes, their various fuel ranges, as well as the types of runways required. Later Thorp purchased planes from Custom Air. Manuel Viana, a part-time employee of Zylstra's aircraft business and a pilot, contacted his wife's relatives living in Columbia and arranged for supplies of marijuana to be picked up by "Company" aircraft in the jungles of Columbia. From 1976 through 1979, the "Company" smuggled over 200,000 pounds of marijuana (approximately 35 plane loads) into small airports in Missouri, Georgia, South Carolina and Alabama for distribution in Missouri and Illinois. It should be pointed out, however, that not all of the "Company's" clandestine missions were successful as numerous planes (including at least 3 registered to Zylstra's Custom Air, Ltd.) and their cargo were seized by United States and Columbian government officials.

Because the governments' repeated seizures of "Company" planes uncovered the widespread nature of the "Company's" drug smuggling enterprise, the Drug Enforcement Administration (DEA) in 1979 set up a task force to infiltrate the "Company." DEA Agent Hubert R. "Rick" Coleman, posing as an aircraft buyer interested in smuggling marijuana, made contact with the defendant Zylstra and after gaining his confidence, developed a closer relationship that allowed him to learn the intricacies of the expansive "Company" operations as well as Zylstra's role as procurer and caretaker of the syndicate's aircraft. During the month of May in 1979, the defendant, Agent Coleman and DEA supervisor Richard Waber (posing as Coleman's "boss" in the bogus smuggling operation) were introduced to the "Company's" main source of Columbian marijuana, the Vianas. A short time thereafter, the "Company" members seemed to become suspicious of Agents Coleman and Waber, and Coleman noticed a marked change in Zylstra's attitude toward him and believed that the defendant was, in all probability, aware of his true identity.

In November of 1980, the Department of Justice decided to terminate their investigation of the "Company" and initiated proceedings before a Grand Jury in the Southern District of Illinois. After hearing approximately 200 witnesses and reviewing thousands of documents the Grand Jury issued an indictment against the defendant and ten other individuals (including Thorp and the Vianas). Pursuant to the Grand Jury indictment, the defendant was arrested in Florida on November 21, 1980 and bail was set at $1,000,000.00. After the completion of Florida removal proceedings, Zylstra's case was transferred to the Southern District of Illinois. The indictment charged the defendant with one count of participation in a racketeer influenced and corrupt organization in violation of 18 U.S.C. §§ 1961, 1962(d) and 1963; one count of participation in a continuing criminal enterprise in violation of 21 U.S.C. § 848; twelve counts of possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1); and 26 counts of interstate travel in aid of racketeering in violation of 18 U.S.C. § 1952(a).

The defendant Zylstra, without benefit of counsel, filed a motion in early January of 1981 for a change of venue from the Southern District of Illinois to the Southern District of Florida contending that Florida was the proper site for trial as 27 of the prospective witnesses, several defendants and their attorneys all resided in Florida. At the motion hearing, the defendant, now with retained counsel, argued that the case should be transferred back to Florida as most of the events allegedly linking Zylstra to the conspiracy took place in Florida. The court denied the motion noting that since all of the defendants charged in the indictment had failed to join in the request for the change of venue, a granting of the motion could very conceivably result in numerous severances necessitating multiple trials in different locales. The court also noted that the Southern District of Illinois was just as accessible to a substantial number of Zylstra's proposed witnesses and that the government would bear the cost of bringing his witnesses to the trial.

On the date of trial, April 13, 1981, Zylstra remained as the lone defendant, as the other codefendants charged and apprehended had entered pleas of guilty and agreed to testify against him at trial. After trial, the jury found the defendant Zylstra guilty of 39 of the 40 counts charged. His post-trial motions were denied and he was sentenced to 210 years of incarceration.

II. ISSUES PRESENTED

A. Did the district court err in denying Zylstra's motion for a change of venue?

B. Did the trial court improperly reinstate the defendant's initial cash bond during trial?

C. Did the defendant receive ineffective assistance of counsel?

D. Was the prosecution's closing argument improper and prejudicial?

E. Did the district court abuse its discretion when sentencing Zylstra?

A. VENUE

The defendant contends that the district judge improperly denied his motions for a change of venue, claiming that he was seriously inconvenienced by being separated from his Florida witnesses and was thus unable to adequately prepare his defense. ¹ Zylstra argued to the trial court that his family and business were in Florida and potential witnesses as well as other defendants and their attorneys resided in Florida, or were more accessible in Florida, and that he lacked resources sufficient to bring his witnesses to Illinois for trial. The government responded that venue was proper in the Southern District of Illinois because there were 11 defendants charged in the indictment and only Zylstra and Ligia Viana out of the 11 defendants requested a change of venue which would have resulted in great inconvenience and expense for numerous witnesses, as well as separate trials, had the motions been granted. The government also argued that Richard Thorp (who directed the operations of the "Company") resided in the Southern District of Illinois and further that the imported marijuana was transported into the Southern District of Illinois prior to distribution in the Chicago area and further that 38 of the 40 offenses charged in the indictment occurred in the Southern District of Illinois. Additionally, the vast majority of the witnesses the government intended to call and the documentary evidence upon which it relied were located in the district of proper venue, the Southern District of Illinois.

We recognize that the question of transfer of venue under Rule 21(b), " '(f)or the convenience of parties and witnesses and in the interest of justice,' is one involving [a] realistic approach, fair consideration and judgment of sound discretion on the part of the district court." United States v. Phillips, 433 F.2d 1364, 1368 (8th Cir.1970), cert. denied, 401 U.S. 917, 91 S.Ct. 900, 27 L.Ed.2d 819 (1971). "Change of venue in a criminal case is discretionary, and a trial judge's decision on the matter is entitled to deference." United States v. Hunter, 672 F.2d 815, 816 (10th Cir.1982). It is clear that the trial court properly exercised its discretion and considered all of the facts and circumstances, including the alleged inconveniences to the defendant and the government, in denying the defendant's change of venue motion. See United States v. Calabrese, 645 F.2d 1379, 1384 (10th Cir.), cert. denied, 451 U.S. 1018, 101 S.Ct. 3008, 69 L.Ed.2d 390, 454 U.S. 831, 102 S.Ct. 127, 70 L.Ed.2d 108 (1981).

If the court had granted the defendant's initial motion for change of venue it would in all probability have resulted in the severance of several trials into multiple trials in various districts throughout the country involving the other codefendants. Such a multiplication of litigation would have resulted in great inconvenience to all the witnesses (repeated appearances in various and sundry judicial districts) as well as greater expense. Courts must be mindful of these difficulties as well as the actual expense and waste of court time in our severely burdened and overtaxed federal judicial...