United States v. Avila, 27842.
| Citation | 443 F.2d 792 |
| Decision Date | 08 June 1971 |
| Docket Number | No. 27842.,27842. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Orlando Bosch AVILA, a/k/a Ernesto, et al., Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Melvyn Greenspahn, Ser, Greenspahn, Keyfetz & Gallagher, Daniel Neal Heller, Miami, Fla., for defendants-appellants.
William A. Meadows, Jr., U. S. Atty., Donald I. Bierman, Theodore Klein, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.
Before JOHN R. BROWN, Chief Judge, and COLEMAN and CLARK, Circuit Judges.
Orlando Bosch Avila, Andres Jorge Gonzalez, Barbaro Balan Garcia, Marco Rodriguez Ramos, Jesus Dominguez Benitez, Jose Diaz Morejon, Jorge Luis Gutierrez Ulla, Paulina Gutierrez, and Aimee Miranda Cruz were charged in a five count indictment. Count I charged Bosch and the other eight defendants violated 18 U.S.C.A. § 371 (1966) by unlawfully and knowingly conspiring with each other to violate 18 U.S.C.A. § 2275 (1970), which precludes knowingly and wilfully causing damage by placing bombs upon or firing at a vessel of foreign registry within the jurisdiction of the United States. Count II charged Bosch, Balan, and Morejon with actually injuring a vessel of foreign registry by firing a recoilless rifle at the SS POLANCIA in violation of Section 2275. Counts III, IV, and V charged only Bosch with conveying threats by telegram to damage the ships and planes of Mexico, Spain and England in violation of 18 U.S.C.A. § 837(d) (1966), which precludes conveying threats by telegram to damage real and personal property. Although the defendants entered pleas of not guilty, the jury returned verdicts of guilty as to all defendants on all counts charged. Since we find that no reversible error has been committed in the trial court, we affirm all convictions of all defendants.
The following factual distillate is sufficient to frame the issues presented to this court for review. The instant case grew out of activity in the area of Miami, Florida by certain free Cuban officials who were opposed to the regime of Fidel Castro in that country. A government informer, Morales, testified that in April 1968 he first met and became involved with a group known as Cuban Power and its leader, Bosch, who used the pseudonym, Ernesto. Morales met with and assisted this group over a period of several months, during which time Morales was under supervision and surveillance by the Federal Bureau of Investigation. In the course of his dealings, Morales supplied the Cuban Power organization, at their request, with dynamite which had secretly been prepared to be inert and had been specially marked so that it might later be identified. The defendants admit receiving some of these deliveries, but they contend that they were to be sent to Cuba. Morales testified that the defendants were, during this time, blowing up ships of foreign registry in the United States.
On another occasion, Morales testified he was called upon to help assemble a 57 millimeter recoilless rifle, which was to be used against the SS POLANCIA. Morales further testified that Balan and Morejon actually fired the rifle as he and Bosch watched.
Subsequent to these incidents, there were several meetings during which the bombings and the firing of the rifle, together with future plans, were discussed. Morales, equipped with electronic eavesdropping equipment, secretly recorded these conversations on four occasions. These recordings, having been translated from Spanish to English, were later introduced in evidence against the defendants at their trial.
In addition to the testimony of Morales and the tape recordings, the Government introduced other highly incriminating evidence. This included a bomb, recovered from the underside of a foreign vessel. This bomb was constructed with the dummy dynamite delivered to the Bosch group. It also contained sponge rubber, the edges of which perfectly matched the edges of a piece of the same material recovered from Bosch's car. Additionally, the newspaper found inside the bomb bore the palm print of two of the defendants.
There was additional testimony identifying Bosch as the sender of a number of telegrams, all signed "Ernesto, General Delegate, Cuban Power." These telegrams were sent to the heads of state of Mexico, Spain, and England and threatened harm to the planes and ships of these countries for engaging in trade with the Castro government of Cuba.
Among the defendant's pretrial motions was a motion for recusal directed at the presiding judge. This motion was made on the grounds that the judge had evinced a personal bias and prejudice toward each of the defendants and their counsel. At oral argument before this court, the parties stipulated that the trial judge entered no written order refusing to recuse himself, but announced from the bench that he had determined he was not disqualified and that it was his duty to continue.
During the trial, the defense made motions to suppress the testimony of the informer, Morales. Additionally, an objection was lodged to the introduction of the tape recordings and translations into evidence. All of the motions and the objections were overrruled.
The defendants set forth three appellate contentions, which assertedly warrant the reversal of the trial court. Reduced to fundamentals, these specifications are that:
A close examination of the record reveals that the defendants' attack, which alleges bias and prejudice on the part of the trial judge, is simply not supported by any specific manifestations of such bias or prejudice. In fact, the defendants themselves cite only an order denying an appeal bond, entered long after the jury entered its verdict. The defendants also assert that the trial judge rushed the case to a trial five weeks after the defendants' arrest. From this interval alone they may desire this court to infer some prejudice or bias against their causes; however, neither this period per se nor the record as a whole will support such an inference. The defendants themselves requested a speedy trial and did not request a continuance. In the face of their own action, they will not now be heard to complain of insufficient time in which to prepare their case.
The defendants have wholly failed to carry the burden of demonstrating how any improper attitude of the trial judge manifested itself in judicial action which harmed their defense or prejudiced their rights.
The defendants candidly admit in a supplemental brief that a decision rendered subsequent...
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U.S. v. Aisenberg
...there are no "unintelligible portions [that] are so substantial as to render the recording[s] as a whole untrustworthy." U.S. v. Avila, 443 F.2d 792, 795 (5th Cir.1971); see U.S. v. Pope, 132 F.3d 684, 688 (11th Cir.1998); U.S. v. Lively, 803 F.2d 1124, 1129 (11th Cir.1986). The government'......
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U.S. v. Juarez
...objection to the admission of the tapes is that they were inaudible and unintelligible and therefore unreliable. In United States v. Avila, 5 Cir., 443 F.2d 792, 795-96, cert. denied, 404 U.S. 944, 92 S.Ct. 295, 30 L.Ed.2d 258 (1971), a panel of this Court stated with respect to a similar a......
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Revis v. State Of Ala.
...the inaudible portions were 'so substantial as to render the recording as a whole untrustworthy.' Id. at 307 (quoting United States v. Avila, 443 F. 2d 792, 795 (5th Cir.), cert, denied, 404 U.S. 944, 92 S.Ct. 295, 30 L.Ed. 2d 258 (1971)). Here DEA agent Smith testified that no one had tamp......
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Com. v. Hashem
...unless the inaudible portions or omissions are so substantial as to render the recording as a whole untrustworthy. United States v. Avila, 443 F.2d 792, 795 (5th Cir.), cert. denied, 404 U.S. 944, 92 S.Ct. 295, 30 L.Ed.2d 258 (1971); State v. Dye, 60 N.J. 518, 531, 291 A.2d 825, 831, cert. ......