*1 Lange present independent interpretations Leigh be- endorse distinction America, UNITED STATES telling jury
tween to consider character Plaintiff-Appellee, considering evidence after the other evi- char- telling jury dence and to consider Floyd CAPO, together Lisenby, Cody acter evidence with all the other F. Amos suggested Lisenby, Williams, evidence.” Both courts also Booker, Tim John troubling, the use of the word “excuse” was Defendants-Appellants. they but held that its inclusion was not No. 80-5903. reversible error.27 United Appeals, States Court of jury The instruction as to the character Eleventh Circuit. present properly evidence in the case fol Lange lows distinction established in 20, Dec. 1982. and Furr and described in Callahan. Rehearing 12, Denied Jan. 1983. trial court instructed that “the law allows Opinion on Granting of En Rehearing character, such evidence of you should Banc March 1983. along consider it with all the other evidence in this case since evidence of a defendant’s
good may give character rise to a reasona person
ble doubt that such a commit (em
a crime with charged.” which he is added).
phasis clearly This indicated to
jury that the character evidence should be
weighed with, “after,” along the other
evidence in Lange the case. And as in
Furr, we decline to upon hold consideration charge entirety in its that the mere
presence of the word negates “excuse”
clear meaning conveyed by the character
instruction as whole. As we said in Unit Ruppel, supra,
ed States v.
“[tjhere is, course, no ritualistic incanta
tion or magic judge formula that the must
recite charge on character evidence.” long jury given
So as the was not
impression that character should differently treated than the evi other
dence, the clearly instruction was not an
abuse of the trial court’s broad discretion.
Id. at 273-74.
AFFIRMED.
decided,
Shortly
Furr,
analysis,
Lange
an-
these cases were
did not mention
or
panel
only
Leigh.
other
In United States v. Calla-
Fifth Circuit United States
cited
han,
Harris,
(5th Cir.1976)
supra,
attempted to reconcile
PER CURIAM: appellants All of conspir- convicted possess marijuana acy with intent distribute and possession of intent to distribute violation 21 U.S.C. and 841(a)(1). §§ convictions of all appellants are affirmed. judges
All concur Parts I-V of the opinion Judge the court written Chief Judge VI, Hill Godbold. concurs in Part by Judge Fay. Judge written Chief God- VI, Part bold dissents from insofar as it *4 Lisenby; concerns Amos he has filed a dis- thereto, senting opinion and would reverse the conviction of Amos Lisenby. GODBOLD, Judge: Chief I. facts Carlisle, Government operative posing as a seafood organized broker with crime con- nections, met appellant Capo pre- under the a large text arranging seafood transac- tion. Capo Carlisle introduced to undercov- er agents who also supposedly organized crime Capo connections. in- an in drug smuggling. dicated interest A Judkins, Fla., Tallahassee, James P. for of meetings telephone series calls en- Capo. many to Capo, sued. Unbeknownst of these Fla., Kitchen, Tallahassee, E.C. Deeno for conversations were monitored and recorded. A. Lisenby. Capo agreed supply marijua- load Thomas, Jr., Leo Kahn, A. J. Charles Pen- Carlisle, na brought boat from sacola, Fla., for Lisenby. G. Colombia, South America and delivered to an off-loading supplied site by Carlisle near J. Dewrell, Blue, Jr., LaDon F. Lloyd Freeport, Capo Florida.1 wanted to keep a Beach, Fla., Fort Walton for T. Williams. profile operation low and told Car- Weed, Jr., John R. Conrad C. Bishop, lisle he would a man using send name Fla., Perry, for Booker. “Jake” handle arrangements. McGee, David L. Asst. Talla- Atty., “Jake”, at appellant identified trial as hassee, Fla., for plaintiff-appellee. Williams, Tim met with and an Carlisle
agent a few days later and discussed arrangements delivery. detail for the But out; plan the initial did work boat empty. Capo, Colombia returned in a GODBOLD, Before Judge, Chief HILL phone conversation, recorded told Carlisle FAY, Circuit Judges. not to worry because another load would Freeport is Waterway. located on the northwestern Flori- da coast off the Intercoastal crew transferred so. probably arrive in a week or A few Cody Li- he a load to the warehouse. days later “Jake” told Carlisle Stewart’s boat him, shortly the meet- senby new delivery for and the two made was arrested arrangements. supply ing Carlisle with Oblisk. with a be loaded with mari- “Jake” truck to conspiracies, or two II. One juana and returned to Carlisle his motel joinder severance tel- Springs, in DeFuniak Florida.2 Carlisle urge joinder Appellants Capo him that “Jake” had ephoned and told there were improper because two gotten Carlisle some deal conspiracies, an abortive for Colombian next replied, day “I know.” The Capo completed for Jamai marijuana and a deal was dispatched truck and returned that that, while can contend marijuana. approximately pounds night both “Jake” was involved in Williams as marijuana. This had been between, deals, agreement no there was brought in from Jamaica in boat owned remaining View Capo appellants. and the by Capo’s Danny son-in-law Stewart and light most favorable evidence in overnight stored in a warehouse near Pana- jury we find that government, City, (Williams), “Jake” ap- ma Florida.3 continuing concluded one have Booker pellant driving who was seen earlier Capo The link conspiracy existed. between truck, Oblisk, Vern and others were delivery and the does not necessar ultimate arrested at a delivery motel when the ily solely rest mere awareness of crimi Capo- the following made. was arrested simply nal nor association activity *5 day. This is engaged activity. those in criminal night delivery a marine On of acts differ planned not a where the case patrol conducting officer was surveillance completed. from acts substantially of the warehouse City Panama where was Capo promised marijuana; marijuana marijuana was ap- stored. The officer saw boat to by It was to come in delivered. get Amos out van pellant Lisenby of a Freeport. City, came boat to Panama It looking hot After sweaty. Amos left expected 35 miles away. Capo indicated an van, the approached officer and saw future; a delivery about week in the date appeared what be residue said days Capo six later arrived. bumper. The officer searched the van care of the his man “Jake” would take and found more residue inside. Amos was arrangements; coupled did. “Jake” When following arrested afternoon in knowledge change Capo’s
charged simple possession marijua- plans relationship with the and his familial na in violation of 21 U.S.C. 844. This § Ja person in the bringing charge dropped Lisenby later maica, to con jury, ample reason along appellants. indicted with the other single participated clude in a appellants A charged. single conspiracy conspiracy as Oblisk, a in the Capo/Wil- lookout simply personnel is not divisible because operation, began cooperating liams/Carlisle Pool, (5th 547, 660 changes, v. F.2d 562 U.S. government with the arrest. soon divi Cir.1981) B); it does not become (Unit calls telephone He recorded several he made changes plan by sible of the He because appellant Lisenby. then ar- Cody which, recorded, abort shipment after the Colombian ranged a also between meeting, ed, cargo a was substituted. Cody Lisenby. himself and Amos and Jamaican That know each participants all the did not along These recorded conversations of a implicated prevent trial other not the existence testimony Oblisk’s the Li- does Watson, v. F.2d senby part brothers the deal as 669 conspiracy. See U.S. seaport Springs City 3. in northwestern DeFuniak is inland about 25 miles Panama is Freeport. supra. north of See note 1 Florida.
1335 chan, 1246, 1374, Cir.1982). (5th It 563 (11th enough Cir.1977). 1379 is 1249 Moreover, conspiracy that each one knew of the judge immediately the district voluntarily in it. Id. at 1380. participated a curative instruction. gave See U.S. DeSimone, 532, (5th Cir.1981) 660 F.2d 543 Appellants they also contend denied, 1027, B), 455 (Unit cert. U.S. 102 prejudiced by being jointly because of tried 1732, (1981). 72 L.Ed.2d S.Ct. 149 prejudicial antagonistic defenses and overspill Appellants the evidence. fail prosecutor clos commented in show an irreconcilable conflict defenses argument that the alleged trial co- required as Herring, for reversal U.S. v. conspirator begin Deral Holman would 1220, (5th Cir.1979), 602 F.2d 1225 de cert. day, a fact that not next been intro nied, 1046, 734, 444 100 62 S.Ct. duced into remark was evidence. This (1980); antago L.Ed.2d 732 and we see no response argu to a jury made defense nism at all. All defenses centered implying ment that Holman was disassociating Capo from de completed In these state tried. circumstances the evidence, overspill As for livery. merely unfairly prejudice ment did not appellants. showing joint some trial prejudice from Henley, (5th Cir. See U.S. 502 F.2d Dohm, 535, enough. is not U.S. v. 597 F.2d 1974). denied, (5th Cir.1979), cert. 444 U.S. (1979). 62 L.Ed.2d Appel Appellants challenge S.Ct. various charac must compelling preju lants demonstrate terizations of themselves and their counsel dice. See id. have not. As in most prosecutor, principal made one' trials, joint participants some were shown being Capo description of “sinister.” to have more than participated extensively transcript prosecutor shows others. closing argument Capo referred as “sinis
ter.” The is a prosecutor maintains this transcription actually error and the word misconduct, III. Prosecutorial excessive reference, .used “sincere.” The wheth involvement “sincere,” Capo er “sinister” or was to how *6 Appellants long seek reversal based on a tape recordings jury sounded on the the purported by list bad govern- acts Capo object. heard. did not Characteriz in investigation prosecution ment and “sinister,” Capo it oc ing sounding if case. few A of these we issues all, at not error plain curred does amount to may disposed discuss. Others of sum- where the was based on characterization marily, some without comment. at trial the jury evidence adduced accuracy readily evaluate the charac ar closing rebuttal defendants’ In Webb, terization. v. See U.S. 463 F.2d gument, the prosecutor jury: said to the 1324, (5th Cir.1972). 1328 Other character you Capo “Did ever hear Mr. tell in anyone challenged izations were cured dis by the T only kidding’.” Capo here was contends judge’s or merit trict instructions do not this was an improper right comment on his any discussion. silent; to remain government contends Capo remark was reference what argument prosecution that vio- said and did in say tape-recorded not due act- appellants’ process rights by lated conversations in evidence. Since it cannot ing pursuing bad faith this case is be said that the prosecutor’s manifest inten totally meritless. Capo’s
tion was to comment failure to Capo contends that conduct of or testify, that remark was of such investigatory personnel was so excessive jury character that the would naturally and it He comment, deprived process. it him of necessarily take to be such a due required. physically coerced into reversal is not See v. Ro- maintains he was U.S. 1336 purchased product). and then ing, because along their wishes
playing
Capo’s
agents
or-
reveals that
secured
having
represented themselves as
they
parole
him
his
helping
asserts he
confidence
Capo
crime
ganized
connections.
confidence,
his
it
they
Once
problem.
subjected
veiled threats
was
Capo
suggested
was
who
to have “fixed”
they
claimed
agents
him the
provided
then
Agents
transaction.
argues
He
problem.4
parole
his
revocation
did
to commit
crime.
opportunity
the favor
expected
repay
him to
they then
so.
the means to do
provide
him
also
He
supplying
drugs.
them with
encourage Capo to believe
Agents did
economically
by the
he was
coerced
urges
purchase
large
amount
Carlisle
agents’
government
in reliance
because
legal
Capo
completely
from
in a
seafood
they wanted to make
representations that
agents’
if the
scope
transaction. Even
sub-
he invested
major
purchase
seafood
concerning
purchase
activities
seafood
money
bogus
of this
deal.
pursuit
stantial
activities
arguably improper,
these
in criminal
Government
involvement
Capo
do not warrant reversal.
It was
alone
“outrageous”
can
that it of-
schemes
be so
supplying
who first proposed
Carlisle
U.S.,
v.
process.
Hampton
fends due
See
proposal
made this
marijuana,
Capo
1646,
484,
ment that participated Williams in this deal judge scope district limited the because he the agents’ feared organized questions of Booker’s re-cross examina crime connections. totality Viewed tion of Oblisk. at questions Since circumstances this remark was not tempted would have exceeded the scope of unfairly prejudicial to appellants. See U.S. examination, direct find no abuse of we Henley, (5th Cir.1974). judge’s discretion in the district limitation. contention district V. Booker’s remaining contentions sentencing spe court erred in Booker to a Appellant Booker raises other issues that parole cial special term is frivolous. The disposed may briefly. parole term imposed under count II of the conviction. This count deals with the Agents seized Booker’s van possession substantive offense of of mari along seizing and ar juana with intent to distribute. 21 U.S.C. resting participants at motel. 841 specifically special parole § authorizes took the van the station and searched it. terms. No warrant was obtained. Photographs of equipment electronic found the search Booker’s assertions that at introduced Testimony trial. hearing James insufficient to show showed that Capo’s observed son-in- single conspiracy is meritless. See Part II van, driving accompanied law this supra.
the truck Carlisle provided the trek to argument The that Booker’s marijuana. post
obtain the Thus there was am ple improperly cause arrest statement to was agents to connect the van with the mari juana. Agents admitted is without This properly have merit. statement spot searched the van a without a was offered with the co-defendant warrant probable because cause existed assent of Booker’s counsel.
1338 words, incriminating agents which federal
FAY,
Judge:
Circuit
he
elicited from him after
deliberately
had
Lisenbys’
YI. The
conversations
and in the absence of
indicted
had been
Lisenby
and Cody
Both Amos
counsel.”
that
refusal
claim
the district court’s
293,
States,
v.
385
In Hoffa
United
U.S.
conversations made
suppress recorded
408,
(1966),
374
17 L.Ed.2d
87 S.Ct.
Massi
Oblisk
under
requires
Yern
reversal
sixth
rejected a claim that Hoffa’s
Court
States,
201,
377
ah v. United
84 S.Ct.
were violated because
rights
amendment
Hill
(1964). Judges
12
246
L.Ed.2d
relation-
alleged
upon
intrusion
Hoffa’s
no
Fay
agreement
and
are in
that
there is
connec-
attorneys
with his
occurred in
ship
merit to this contention.
a
charge
jury tampering
with
of
tion
government, Oblisk
Cooperating with the
Taft-
Hoffa’s trial on
during
had arisen
Cody Lisenby
made
several calls to
related
charges;
the “statements
Hartley
with the
meeting
were recorded and had a
quite
a
of-
to the commission
Lisenbys
taped
secretly
two
which was
and
Id. at
87 S.Ct.
fense.”
by agents.
meeting
watched
The
occurred
and
Massiah
conjunction
The
between
weeks
Amos Li-
approximately two
area,
gray
is a
which several Circuits
Hoffa
senby
possession
been arrested on the
In
attempted to chart.
United States
have
van.
charge related to the
in the
Missler,
(4th Cir.1969), a
v.
As to all words, agents which had federal deliberate- Both federal the conversations admissible. he in- from him after had been elicited ly the permit expressly and Florida statutes in of his counsel.” the absence dicted and the one of interception calls where phone given pri- to the communication has parties case, his Ob- arrest shortly In this 2511(2)(c); Fla. or consent. 18 U.S.C. § govern- with the agreed cooperate lisk (the consent 934.03(2)(c) prior Florida Stat. getting mission of He was given ment. is a person where only provision applies uncle, their Deral Lisenbys persuade Lisenby That government agent). al- Holman, money him pay to [Oblisk] his speaking telephone on a located within owing to Oblisk legedly of his voice home does not make seizure money and this over conspiracy to turn privacy intrusion on the an unreasonable fingerprinting. For agents for government his Lisenby knowingly projected the home. calls to made numerous this Oblisk purpose confines his home voice outside the meeting a between Ob- Lisenby, and Cody His inter using the voice was telephone. up. Ob- Lisenbys and the two set lisk at location. cepted recorded Oblisk’s agents were recorded secret- lisk’s calls protective Thus his reliance on the more After meeting. ly taped watched and provisions constitu privacy Florida meeting partial Holman made a pay- Sarmiento, meeting tion as articulated in State occurred approximate- ment. The conspiracy the indicted (Fla.1981) misplaced. ly 397 is two weeks after So.2d 643 arrested a been like defendants had been since Amos had arrested period appellants all AF- The convictions of are Cody charge. Neither Amos nor possession FIRMED. charge, conspiracy on the had been indicted meeting a before
but about week
had
to seek
government
decided
Oblisk
GODBOLD,
dissenting:
Judge,
Chief
time
Amos. At the
against
an indictment
U.S., 377
I would
that Massiah v.
hold
out
meeting Amos was
on bail on
1199, 1202, 12
201, 205, 84
L.Ed.2d
S.Ct.
coun-
He had retained
possession charge.
(1964),
to Amos
requires
246
reversal as
sel,
government knew it.
and the
a
Lisenby. Massiah was
con
indicted
meet-
weeks after the
Approximately two
narcotics
re
spiracy
possess
charge. He
indicted
Lisenbys
Oblisk both
on bail.
tained counsel and
released
possession charge
The
and arrested.
“to
cooperate
His co-defendant chose
whether before
dropped,
Amos was
against
agents
continuing
government
their
we do not know. The
or after indictment
investigation
activities”
of the narcotics
key
meeting
with Oblisk was
tape of
co-defendant,
Massiah,
others
against
government’s
case
allegedly
engaged.
at
had been
Id.
Lisenbys.
both
at
The
car was
S.Ct.
1200.
co-defendant’s
made
this case
Thus the statements
wired, and
and the co-defendant
Massiah
were,
Massiah,
incrimi-
as in
own
“[Amos’s]
car,
which an
had a conversation
had
nating
words.” Government
agent
listening agent
trial the
listened. At
him,
“deliberately
the words from
elicited”
incriminating
Massi-
testified
statements
and in the
after he had been arrested5
The
ah
made in the conversation.
Su
absence of
counsel.
Amend
preme Court held
Sixth
violated
contends Massiah does
guarantee
ment
of counsel was
taken
apply
because Amos
been
against
used
“when there was
[Massiah]
U.S.,
(5th Cir.1965).
pursu-
significant
is not
that the
See Clifton
It
arrest was
complaint
ant to
rather than an indictment.
into custody on
charge rather
present
dpes
case
not belong within
*11
than
conspiracy
the
charge that was
exception
under
the
to Massiah
established
investigation and for which
“separate
Amos was later
these
offense” cases. The factual
tried,
indicted and
and the majority accept
relationship between the conspiracy umbrel-
this argument. The majority rely on U.S.
la and the
specific
more
charge against
Missler,
414
(4th Cir.1969),
F.2d 1293
for
possession
Amos
simple
is apparent.
Meachum,
(1st
Grieco v.
533
713
Cir. Amos’s arrest arose out of events that oc-
1976)
Hoffa,
and U.S. v.
293,
87
U.S.
curred at
the
City
Panama
warehouse
408, 17
Missler,
S.Ct.
374 (1966).
L.Ed.2d
In
where the shipment marijuana
of
from Ja-
the defendant was indicted
a hijacking
on
maica was
overnight,
stored
and on the
charge. He made a contract with a trigger
night that
marijuana
the
was taken from
man to kill a co-defendant who defendant
the warehouse and delivered to Carlisle.
thought
given
police the details of the The arrest resulted from observations of a
hijacking. The trigger man
lice, and a
po
patrol
informed
marine
officer watching the ware-
was
meeting
arranged, with po
of
part
house
the investigation of the
lice listening, at which the contract was marijuana stored
A
there.
van pulled up
confirmed. Defendant was indicted and
and the officer saw
get
Amos
out of the
for
convicted
obstruction
justice
of
based
van looking hot and sweaty. The officer
upon the contract
transaction. The court
approached
van
the
and saw what appeared
held Massiah was
applicable
because the
to
marijuana
be
residue on
bumper,
the
justice
of
obstruction
van,
offense was distinct
searched the
and found more residue
separate
and committed after
hi
the
inside. Amos was arrested the following
jacking indictment.
afternoon.
Grieco,
was
prisoner
In
a
named Casseno
it
At least until
found itself
difficulty
in
ap-
A
inmate
in
charged
hearing
government
with murder.
fellow
a Massiah
the
con-
Glavin,
an
proached
possession
also
inmate
under
that
the
charge
tended
and the
sentence,
to
pay
charge
life
and offered to
Glavin
conspiracy
overlapping
were either
the murder for which Casseno
or congruent.
confess to
After
was
on
Amos
indicted
to
reported the offer
the
charged.
conspiracy charge
was
Glavin
he asked for a bill of
government agents and
with
the
cooperated
particulars,
government responded
along
pretend
go
told him to
with a copy
complaint
them.
of the
on
him-
on
plan
with the
and talk with Casseno
Amos
been arrested
the possession
so,
with
did
and talked
Casse-
charge.
pointed
self. Glavin
And as we have already
out,
on
the trial
Casseno
meeting
no
At
before the
oc-
three times.
Oblisk
curred,
testified to state-
charge
already
the
Glavin
the
seek-
government
murder
was
in these
against
ments made to him
Casseno
an indictment
con-
Amos
the
that confirmed
intermedi-
spiracy
conversations
the
charge.
Presumably
ary’s
testimony
offer.
the
was
as admissions
a defendant
admitted
show consciousness
tending
conduct
At trial the Massiah hearing was conduct-
held that
The First Circuit
past crimes.
ed
presence
outside the
of the jury. The
Casse-
applicable
Massiah was not
because
judge considered the
admissibility
both
in
“primarily uttered
no’s statements were
marijuana
the
found
the
van and the
of-
the commission of another substantive
tapes.
In support
position
of its
that
the
fense,
and were
perjury,
subornation
“van marijuana” was
admissible
incidentally
in his trial
only
admissible
government contended that
it was related
indictment.”
pending
conspiracy,
i.e.,
that
the residue’s
presence in
van
near
warehouse on
night
delivery
circumstantially
Hoffa,
linked
Similarly, in
the residue to
U.S.
within
(1966),
the warehouse. The judge pointed
absence of his counsel.
ON PETITION FOR REHEARING AND
PETITION FOR REHEARING
EN BANC GODBOLD, Before Judge, Chief RO-
NEY, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HENDERSON, HATCHETT, CLARK, ANDERSON and Judges. Circuit
BY THE COURT: *13 A member of this Court in active service having requested a poll on the application for rehearing en majority banc and a
judges active service having voted in granting favor of banc, en rehearing IT ORDERED that IS the cause shall be reheard this Court en banc oral argument on a date hereafter fixed. will specify Clerk briefing schedule
for filing of en banc briefs. America,
UNITED STATES of
Plaintiff-Appellee, RAFFONE, Pasquale
Geno
Defendant-Appellant. America,
UNITED STATES of
Plaintiff-Appellee, FARESE, Ralph
Thomas
Defendant-Appellant. 81-5163,
Nos. 81-5257. Appeals,
United States Court of
Eleventh Circuit.
Dec.