US v. Hawes
| Decision Date | 29 August 1991 |
| Docket Number | 90-15-04-CR-7 to 90-15-08-CR-7.,No. 90-15-02-CR-7,90-15-02-CR-7 |
| Citation | 774 F. Supp. 965 |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | UNITED STATES of America, v. Thomas Jackson HAWES, Donald Berry Burns, Joseph L. Laforney, Winston W. Hall, Mario John Vallone, Timothy James Davies. |
J. Douglas McCullough, Asst. U.S. Atty. for U.S.
Daniel Aureli, Rochester, N.Y., Gerald Mesckkow, Miami, Fla., Wm. H. Dowdy, William R. Shell, Wilmington, N.C., for defendants.
This matter is before the court on defendants Thomas Jackson Hawes and Donald Berry Burns' motion to dismiss the second superseding indictment and on defendant Joseph L. Laforney's motions to dismiss the second superseding indictment, to sever his case from that of his codefendants, and to exclude certain evidence at trial. An evidentiary hearing was held on 30 July 1991. The court is now ready to rule.
The procedural history of this case is relevant to the instant motions and therefore will be briefly recounted here.
On 18 October 1988, the grand jury returned an 18-count indictment against defendant Hawes. The principal charges in that indictment were as follows:
The indictment also included two charges of interstate travel to facilitate the carrying on of an illegal activity ("ITAR"), three firearms charges, and nine charges of structuring financial transactions in violation of 31 U.S.C. § 5324.
On 27 October 1988, Hawes entered into a plea agreement with the government. Pursuant to the terms of the plea agreement, Hawes pled guilty to count three — RICO — and count thirteen — a financial transaction violation. The plea agreement provided:
The Government represents that it has contacted the District Attorney for the 5th District of North Carolina, and can represent to the Court that the State of North Carolina will not pursue any prosecution of this Defendant for any of the transactions involved in this investigation. Additionally, the United States Government will not prosecute the Defendant further for said transactions.
At sentencing, the remaining sixteen counts of the indictment were dismissed on Hawes' motion.
On 16 May 1989, a superseding indictment was entered against defendant Burns on the following criminal charges:
In August 1989, Burns was tried before the undersigned in a trial resulting in a hung jury. On 2 October 1989, Burns entered into a plea agreement through which he agreed to plead guilty to counts three and four of the indictment. The plea agreement stated:
3. The Government agrees as follows: (a) That it will not oppose Defendant's motion to dismiss Count(s) One and Two of the Superceding sic Indictment.
At sentencing, counts one and two — the conspiracy counts — were dismissed on Burns' motion.
On 17 April 1990, Hawes and Burns were indicted along with Robert Manton Kunhardt and Deborah Jean Kunhardt and were charged with a conspiracy to import cocaine, conspiracy to possess cocaine with intent to distribute, and conspiracy to smuggle marijuana and cocaine. On 12 June 1990, a superseding indictment was entered in which the named defendants were Hawes, Burns, Joseph L. Laforney and Winston W. Hall. That indictment charged Hawes and Burns with conspiracy to import cocaine into the United States between 1 January 1981 and 12 June 1990, conspiracy to possess with intent to distribute cocaine between 1 January 1981 and 12 June 1990, conspiracy to smuggle marijuana and cocaine into the United States between 1 January 1981 and 12 June 1990, and other substantive counts stemming from the alleged conspiracies.
Hawes and Burns moved to dismiss the superseding indictment as it pertained to them on the grounds of double jeopardy and the government's breach of their respective plea agreements. After an evidentiary hearing, the court denied their motions in all respects in an order dated 1 November 1990. Hawes and Burns then took an interlocutory appeal. On 12 March 1991, while their appeal was pending, a second superseding indictment was entered against Hawes and Burns. The United States Court of Appeals for the Fourth Circuit therefore dismissed their appeal as moot.
The named defendants in the second superseding indictment are Hawes, Burns, Laforney, Hall, Mario John Vallone, and Timothy James Davies. The counts pertaining to Hawes and Burns are as follows:
Hawes and Burns have now filed a joint motion to dismiss the second superseding indictment as it pertains to them on the grounds of double jeopardy, res judicata, collateral estoppel, and breach of their respective plea agreements.
Based on the evidence presented at the evidentiary hearing, the court makes the following findings of fact:
1. The government's initial, pre-indictment investigation into the possible criminal conduct of Thomas Jackson Hawes concerned his activities involving controlled substances in Pender County, North Carolina. The focus of the government's investigation was Hawes' involvement in the importation and distribution of marijuana. However, the government also investigated Hawes for possible involvement in cocaine importation and distribution. This fact is made apparent by an affidavit by Special Agent Henry L. Dupray of the United States Customs Service filed in a related civil forfeiture proceeding on or before 29 March 1988, which recites:
The following overview of the Hawes smuggling organization is supported with specific corroborating information. Hawes has personally told SA-123-WI an informant Agent Dupray describes as reliable that he frequently travels from North Carolina to unknown locations in Southern Florida and the Caribbean Sea Islands to arrange for the purchase of marijuana and cocaine. Hawes has personally told SA-123-WI that the drugs are then loaded aboard either an aircraft or vessel and transported into the CONUS Continental United States. The aircraft are usually small twin engine types and enter the CONUS airspace in a manner to avoid radar detection and reporting to Customs, and either air drop or land at remote airstrips in Southern Florida. The drugs are then trucked to the area in North Carolina previously described Pender County, North Carolina in small vans to avoid highway weight stations and Florida agricultural inspection stations. Smuggling by vessel is accomplished by a sailing vessel being loaded with marijuana and cocaine at an unknown Caribbean location. This vessel meets smaller high speed power boats off the Florida Coast and the marijuana and cocaine are offloaded to the high speed power boats. The smaller vessels enter the CONUS at different locations and are then offloaded at pre-arranged remote sites. The contraband is then transported by vehicle(s) to North Carolina for storage and/or distribution at the property previously described.... The Hawes organization has also taken large seagoing vessels directly to the North Carolina offload site ... on the Northeast Cape Fear River site, referred to as Shelter Creek, where the vessel is docked and the drugs are offloaded into their secret hiding locations on site. Customers then arrive at the offload site, or are met at nearby locations for the distribution of drugs. It is the opinion of your affiant that organizations of this type deal marijuana in lots of not less than one hundred (100) pounds, and cocaine in lots of not less than one (1) kilogram.
(Emphasis added.) Later in the affidavit Agent Dupray asserts that "the smuggling technique described by Hawes is one typically used for the smuggling of cocaine." That the investigation involved cocaine is also made apparent by an official Customs Service Report of Investigation signed by Agent Dupray which reads, in pertinent part:
(Emphasis added.)
2. At the time the original indictment was entered against Hawes, the government had not been able to substantiate the statements made by the confidential...
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U.S. v. Burns
...entered in connection with an indictment returned on May 16, 1989 in the Eastern District of North Carolina. See United States v. Hawes, 774 F.Supp. 965, 972-977 (E.D.N.C.1991). The 1989 indictment charged Burns with essentially the same offenses as its 1991 counterpart, 2 except that the d......
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State v. Hastey
...not invoke the double jeopardy clause because jeopardy cannot attach until a jury is sworn on such charges." United States v. Hawes , 774 F.Supp. 965, 969-70 (E.D.N.C. 1991) ; see also United States v. Vaughan, 715 F.2d 1373, 1376-77 (9th Cir. 1983).5 This appeal was commenced before Septem......
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U.S. v. Cooper
...States v. Mann, 517 F.2d 259 (5th Cir.1975) (same with respect to indictment), cert. denied, 423 U.S. 1087 (1976); United States v. Hawes, 774 F.Supp. 965, 969 (E.D.N.C.1991) (pre-trial dismissal of counts in initial indictments to which defendants did not plead guilty does not bar subseque......
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Com. v. Branch
...Support of Affirmance per Nix, J.), cert. denied, 445 U.S. 952, 100 S.Ct. 1602, 63 L.Ed.2d 787 (1980). See also: United States v. Hawes, 774 F.Supp. 965, 969 (E.D.N.C.1991) (jeopardy attaches only to those counts of indictment to which defendant pleads guilty); Commonwealth v. Potosnak, supra ...