United States v. Becton

Decision Date23 June 1980
Docket NumberCrim. No. G-80-3.
Citation498 F. Supp. 1013
PartiesUNITED STATES of America v. Edward M. BECTON et al.
CourtU.S. District Court — Southern District of Texas

George O. Jacobs, Houston, Tex. and Tom Beery, Asst. U. S. Attys., Brownsville, Tex., for the United States of America.

Daniel M. Marlowe, Oakland, Cal., for defendants Major Becton and Stanley Becton.

Edward A. Mallett, Houston, Tex., for defendant Vincent E. Damion.

Richard Thornton, Galveston, Tex., for defendant Robert Howard Pollak.

Gerald H. Goldstein, San Antonio, Tex., for defendant Barry Mirojnick.

Robert G. Turner, Houston, Tex., for defendant Robert Jones.

EXHIBIT A

ORDER

HUGH GIBSON, District Judge.

Before the Court are the motions of defendants MAJOR BECTON, STANLEY BECTON, ROBERT JONES, ROBERT POLLAK, VINCENT DAMION and BARRY MIROJNICK to dismiss for prior jeopardy, for judgment of acquittal and for stay of proceedings. The Court has considered the record, the briefs of the parties and heard oral argument on the motions, and is of the opinion that the motions should be denied.

The Court is further of the opinion that defendants' double jeopardy claim, which is predicated upon the insufficiency of the evidence, is frivolous in that there would be no reasonable chance or prospect of establishing a double jeopardy claim on appeal.

It is therefore ORDERED, ADJUDGED and DECREED that

(1) Defendants' motions for judgment of acquittal are DENIED;

(2) Defendants' motions to dismiss for prior jeopardy are DENIED;

(3) Defendants' double jeopardy claim, which is predicated on the insufficiency of the evidence, is frivolous in that there would be no reasonable chance or prospect of establishing a double jeopardy claim on appeal; and

(4) Defendants' motions for stay of proceedings are DENIED.

SUPPLEMENTAL MEMORANDUM

INTRODUCTION

HUGH GIBSON, District Judge.

This is a criminal case in which 37 people were indicted in a three-count indictment on charges of conspiracy to import marijuana in violation of 21 U.S.C. § 963 and 952(a), Count One; conspiracy to possess marijuana with the intent to distribute it in violation of 21 U.S.C. § 846 and 841(a)(1), Count Two; and possession of marijuana with the intent to distribute it in violation of 21 U.S.C. § 841(a)(1), Count Three. This Court ordered the case tried in six separate trials, and the fifth trial began May 12, 1980.

Three witnesses testified in the Government's case in chief, Drug Enforcement Agent John K. Marshall, Customs Patrol Officer Oswaldo Montalvo, and Pasadena Police Sergeant K. F. McCreight. These officers were participants in "Operation Mainstay," a task force of local, state and federal law enforcement agencies working to reduce marijuana smuggling on the Texas Gulf Coast.

Although only three days of testimony was presented, the Government did not rest until May 27 because of a number of delays. Defendants' motions for judgment of acquittal were heard on May 28, and the Court granted all defendants' motions as to Count One (conspiracy to import), and denied the motions as to Counts Two (conspiracy to possess) and Three (possession with intent to distribute). No further evidence was put on by the defense or the Government, and the case was submitted to the jury on June 2, 1980.

On June 5, 1980, after approximately 16 hours of deliberation, three notes indicating deadlock, and an Allen charge from the Court, a mistrial was declared, sua sponte, due to the inability of the jury to reach unanimous verdict. Renewed motions for judgments of acquittal were made after the jury was discharged. The Court denied the motions and ordered the case set for trial on June 17, 1980.

Within seven days of the jury's discharge, all of the defendants in the fifth trial moved for judgment of acquittal, to dismiss the indictment for former jeopardy and for stay of proceedings. The Court heard the argument of counsel, reviewed the record and the briefs submitted in support of the motions, and denied the motions. The Court further found that defendants' double jeopardy motion was frivolous. (Order of June 11, 1980 — Exhibit A).

Defendants have appealed this Court's denial of their double jeopardy motion and have obtained from the Fifth Circuit Court of Appeals a two-week stay of the trial scheduled for June 17. In its order staying the scheduled trial, the Court of Appeals provided that the stay was without prejudice to this Court's filing a supplemental memorandum in support of its order of June 11, 1980. This memorandum follows to enable the Court of Appeals to review as expeditiously as possible the defendants' appeal.

ISSUES

Essentially, the Court is presented with two issues. The first issue is whether a valid double jeopardy claim based upon the insufficiency of the evidence is presented when a mistrial has been declared due to a deadlocked jury. The second issue, which goes hand in hand with the first, is whether, assuming that a valid double jeopardy claim is presented, that claim is frivolous within the meaning of United States v. Dunbar, 611 F.2d 985 (5th Cir. 1980) (en banc).

FINDINGS OF FACT

"Operation Mainstay" focused on the Galveston-Freeport area after about December of 1978, and the Intercoastal Marina at Freeport was placed under investigation. The Marina is located on the Intercoastal Waterway and is accessible via the Casco Road and the Waterway. (See Gov. Exhs. Nos. 15 and 86).

Beginning in July 1979, Agent Marshall went to the Marina three or four times a week. He dressed in civilian clothes, hung around, drank beer, and helped fuel the boats — generally surveilling the area in an undercover capacity. He continued this activity until December 10, 1979. At all times between July of 1979 and December 19, 1979, Agent Marshall worked with Customs Patrol Officer Bobby Glenn Weaver and two of Weaver's confidential informants, Tommy Troutwine, the manager of the Marina, and Bob Brushingham, its owner.

During his surveillance, Agent Marshall noticed that the Marina housed about 35-40 boats and had heavy weekend and light weekday traffic. The boats in the Marina were primarily pleasure boats most often used on the weekends and when the weather was warm. At other times, the boats were repaired and the bulk of activity at the Marina centered around the workshed near the Marina entrance. There was very little activity in the fuel shed area except for the refueling of boats.

On December 19, 1979, the day of the raid at the Marina, Agent Marshall received a phone call in his Houston office from one of the law enforcement communication sectors that there was some activity at the Marina. Marshall left his office around 4:30 or 5:00 p. m. and went to the Freeport area. Upon arriving at Freeport, Marshall went south along Highway 332 until coming to the Surfside bridge. It was about 6:30-6:45 p. m. then, and Marshall drove back and forth across the bridge several times. From the bridge he could see a large boat docked at the Marina and two trucks backed up toward the boat and the dock. It was dark and he could not see any activity at the Marina.

He then went to the Beach, Bait and Tackle store, located one mile north of the Marina on Highway 332. While at the store, Agent Marshall saw Steven Kalish (Gov. Exh. 67). (Kalish was tried in the third trial and was convicted on all three counts of the indictment.) This was at approximately 7:00 to 7:30 p. m. Agent Marshall left the store, drove around and then went to the Coast Guard station where a command post had been set up.

At about 7:40 that evening Officer Montalvo received a call from Officer Weaver telling him to report to the Coast Guard station command post. Officer Montalvo arrived at the Coast Guard station about 7:50 p. m. He remained there approximately five minutes and left with Officer Richardson to go to "the rocks" to conduct surveillance. The rocks is a shore area about 75 yards across from and 100 yards west of the Intercoastal Waterway from the Marina. (See Gov. Exhs. 12 and 18). CPO Montalvo, equipped with night vision goggles, nightscope and 75 × 50 binoculars, arrived at the rocks at about 8:00 p. m.

From that position, he was able to see the vessel (later determined to be the MR. JAKE) and three 18-wheel trucks backed up toward the MR. JAKE. He counted ten people moving large bales along a platform from the MR. JAKE to the trucks but could not identify anyone because of the inherent limitations of the night vision and nightscope equipment. (Apparently, the goggles allow one to see objects but not their color—everything is portrayed in different shades of green.)

CPO Montalvo was at "the rocks" 25 to 30 minutes (until approximately 8:30 p. m.). His view of the scene was limited in that he was not able to see behind and to the right of MR. JAKE nor anyone outside of the immediate area of the JAKE. There were no lights on the boat; however, some lights were burning at the fuel docks next door.

After Montalvo reported that one of the trucks was close to being fully loaded, CPO Weaver instructed Montalvo and Richardson to move to Highway 332 and continue surveillance. The officers proceeded to the Beach, Bait and Tackle store, parked and continued surveillance with the night vision equipment. They stayed at the store for approximately 25 to 30 minutes where they had an unobstructed view of the entrance to the Marina.

They saw no traffic enter or depart the Marina during this time and until 9:00 p. m. At about 9:00, an unidentifiable van left the area. Shortly thereafter, one of the 18-wheel trucks left the Marina, proceeded east along Casco Road and then north on Highway 332. Officers Richardson and Montalvo in one car, and Officer Graham in another, followed the truck for approximately five miles — enough distance to assure that the truck was out of CB range — and stopped the truck.

A search of the truck revealed that the truck was packed with plastic bales of a substance field-tested to be...

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    ...L.Ed.2d 651 (1977); Wilkinson v. United States, 601 F.2d 791 (5th Cir. 1978); Gilmore v. United States, supra; United States v. Becton, 498 F.Supp. 1013, 1019-1025 (S.D.Tex.1980). A mistrial declaration postpones the possibility of conviction until a retrial, if indeed there will be one. Cf......
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