US v. Silvers, Crim. No. Y-87-0144.

• Decision Date: 02 June 1995
• Docket Number: Crim. No. Y-87-0144.
• Parties: UNITED STATES of America v. Steven A. SILVERS.
• Court: U.S. District Court — District of Maryland

888 F. Supp. 1289

UNITED STATES of America v. Steven A. SILVERS.

Crim. No. Y-87-0144.

United States District Court, D. Maryland, Northern Division.

June 2, 1995.

COPYRIGHT MATERIAL OMITTED

Lynne A. Battaglia, U.S. Atty. Dist. of Md., Baltimore, MD, Andrew G.W. Norman, Asst. U.S. Atty., Baltimore, MD, for Government.

Gerald C. Ruter, Baltimore, MD, for defendant.

MEMORANDUM AND ORDER

HERBERT N. MALETZ, Senior District Judge, sitting by designation.

I. Introduction

On February 2, 1988, defendant, Steven A. Silvers, was found guilty by a jury of (1) conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846, (2) operating a continuing criminal enterprise ("CCE") in violation of 21 U.S.C. § 848, (3) three counts of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841, (4) two counts of interstate travel in aid of racketeering in violation of 18 U.S.C. § 1952, and (5) conspiracy to defraud the United States in violation of 18 U.S.C. § 371. On April 11, 1988, defendant was sentenced by the court to a prison term of 35 years on the CCE count, concurrent 15-year sentences on each of the possession with intent to distribute convictions, and concurrent five-year sentences on the remaining substantive charges and on the § 371 conspiracy. Defendant's conspiracy conviction, under 21 U.S.C. § 846, was vacated by the court as a lesser included offense of CCE.

Presently pending before the court is defendant's motion, pursuant to 28 U.S.C. § 2255, to have the verdicts against him set aside and for a new trial. Defendant's motion initially presented thirteen grounds for relief. By Memorandum and Order dated October 31, 1994, the court dismissed claims # 5, # 7, # 8, # 9, # 10 and # 12 of defendant's motion, finding them to be without merit as a matter of law.

Defendant's remaining claims each relate to the undisputed fact that a government witness, John Gerant, perjured himself at defendant's trial. That Gerant committed perjury has already been determined by this court. See United States v. Gerant, 775 F.Supp. 182 (D.Md.1991) (Harvey, J.). Defendant contends that in light of Gerant's perjury, his CCE conviction must be vacated and a new trial ordered.¹

On November 28, 1994, the court commenced a nine-day evidentiary hearing on defendant's motion. Having considered the testimony and exhibits from that hearing, as well as the parties' voluminous written submissions² and the entire record in this case, the court is prepared to rule. For the reasons explained below, defendant's CCE conviction will be vacated and a new trial ordered. His conspiracy conviction, however, will be reinstated, and defendant will be resentenced on that charge.³

II. Background

A. Defendant's Trial

The evidence produced by the government at trial primarily concerned (1) defendant's involvement in the early 1980's with what the government has termed the "Marshall Jones drug organization," and (2) defendant's participation in two massive importations of cocaine and marijuana from Colombia in the summer of 1985. As to these latter two transactions, which the parties have consistently referred to as "loads 1 and 2," the government's only witness was John Gerant.

1. Defendant's Involvement with Marshall Jones

Defendant became acquainted with Marshall Jones in the fall of 1980, through Alan Greenwald. Greenwald, in addition to being Jones' partner at that time in narcotics trafficking, was renting a house from defendant in Sunrise, Florida. Jones, who had recently moved to Florida so as to obtain narcotics at a cheaper price, had developed a thriving drug-dealing business in and around his home state of Maryland. Jones regularly supplied large quantities of cocaine to several dealers in Maryland, Virginia and Washington, D.C. These included Raymond Carnahan, Donald Watkins, Charles Hamilton and Tuck Koontz. Jones' source for the cocaine was Jorge Torres, who was employed as a clerk at the Nautilus Hotel in Miami Beach. Either Jones or a courier would drive the cocaine up to his customers, who would then dilute and resell it as each saw fit. After selling the cocaine, Jones' customers would then pay him their agreed upon price.

Jones testified that at their initial meeting, defendant offered to supply him and Greenwald with cocaine. Defendant advised that he was friendly with two pilots who were transporting large loads of cocaine into the Ft. Lauderdale Airport. (One of these pilots was John Gerant.) Jones, however, was unhappy with a sample of defendant's cocaine and decided not to buy any.

In late 1980, defendant, a fledgling entrepreneur in the Florida entertainment industry, approached Jones with a plan to launder his drug money. Defendant advised that for a ten percent commission, he would be willing to launder a salary of $25,000 a year through his talent agency, Silver Touch Talent. Jones readily agreed to this plan and Jones was thereafter paid a weekly "salary" of $500 as a phony employee of the talent agency. Jones also purchased a 25 percent share of the business for $58,000. In this manner, defendant also laundered drug money for Jones' regular customer, Donald Watkins and George Chaconas, another narcotics trafficker.

In the summer of 1981, defendant talked Jones into investing more of his drug money into another of defendant's ventures, a recording studio in which Jones' musically inclined brothers could record an album. Jones initially invested $90,000 toward the purchase of a building, and an additional $100,000 for musical equipment. In connection with this investment, additional businesses were created, one called J & W Productions, which stood for Jones and Watkins. This entity was ostensibly a production company producing musical acts at the recording studio. In point of fact, it became another vehicle through which bogus salaries could be paid out to both Jones and Watkins.

In April of 1981, defendant and Jones engaged in their first substantial narcotics transaction together, the importation of 400 pounds of marijuana from Jamaica. Defendant's role in this importation was to arrange for the transportation of the marijuana by Gerant. Jones and Greenwald picked out the marijuana that they wanted, purchased it for $150,000 and then took possession of it once it arrived in Florida. Defendant was paid $50,000 plus expenses which he shared in some manner with Gerant. Jones' testimony in this regard was corroborated by both Gerant and Watkins who also was involved in this importation.⁴

Defendant's involvement with Jones and his customers escalated significantly in April of 1982 when Jones was incarcerated on a marijuana trafficking conviction. In an effort to continue his profitable business while he was in prison, Jones introduced defendant to several of his other customers, Tuck Koontz, Ray Carnahan and Charles Hamilton. Jones advised each of them that from now on they could pick the cocaine up directly from Jorge Torres, and subsequently make payment to defendant. In return for collecting Jones' drug money, defendant was to receive a 50 percent cut of Jones' profits.⁵

Soon after Jones' incarceration in April 1982, defendant advised Jones' customers that, for a fee of $750 a kilo, he would be happy to deliver the cocaine directly to them, so that they would not have to travel to Florida to pick it up. Jones' customers accepted this offer and during the 11 months Jones was in prison, defendant and/or his brother Gary delivered kilo quantities of cocaine to them approximately seven to ten times.⁶ As had been the case with Marshall Jones, Jones' customers continued to freely dilute and sell the cocaine as they saw fit, including the setting of price, without any instructions or restrictions from defendant or Jones.⁷ Their one obligation to defendant was simply to make payment. In this regard, defendant often requested that payment be made by check to one of his business entities. Upon Jones' release from prison, defendant's involvement with Jones' customers came to an end.⁸

The evidence against defendant with respect to his participation in a narcotics conspiracy involving Jones and his customers was overwhelming. The government presented the mutually corroborative testimony of Jones, Watkins, Hamilton, Carnahan, and Todd Lovett, an associate of Hamilton's. In addition, the government introduced into evidence a July 1982 letter which the defendant sent to Marshall Jones in prison detailing, in a thinly veiled manner, the number of deliveries and the amount of cocaine that had been provided to each of Jones' customers and the amounts that they had paid and still owed. Finally, the government offered into evidence signed receipts for the cocaine that defendant obtained from Jones' customers.

2. John Gerant and "Loads # 1 and # 2"

John Gerant, a licensed pilot and former Miami police officer, testified pursuant to an oral plea agreement that he entered into with the government.⁹ Gerant testified that he first became involved in narcotics trafficking in 1979, flying large loads of cocoa paste into this country from Colombia. Like Marshall Jones, Gerant's initial business dealings with defendant involved the laundering of his narcotics earnings. In 1980, Gerant invested $25,000 in defendant's talent agency, in return for which he received a bogus weekly salary of $500.

Gerant testified that in late 1982, defendant and Marshall Jones invested $176,000 toward a large importation of cocaine from Colombia.¹⁰ Gerant stated that he had learned of the availability of this cocaine from a fellow pilot, David Butler. Gerant testified that the $176,000, and an additional $400,000 that Butler had raised, was provided to an unidentified Colombian male at Butler's home. The expected cocaine, however, never materialized.

As to the infamous loads # 1 and # 2, Gerant testified that in the spring of 1985, he transported load # 1, totalling 117 kilograms of cocaine and 250 kilograms of...