Lead Opinion
Defendants Kent Moeckly, Joseph “Casey” Ramirez, and William Coulombe appeal separately their convictions for conspiracy to import cocaine, 21 U.S.C. § 963, and conspiracy to possess cocaine with intent to distribute it, 21 U.S.C. § 846. The indictment charged these conspiracies were in existence from early 1981 through April of 1983 and were carried out in Minnesota, Florida, and elsewhere. Appellant Moeckly also was convicted of two counts of perjury before a grand jury investigating defendants’ smuggling activities, 18 U.S.C. § 1623. Following their convictions upon jury verdicts, they received the following penalties: Moeckly was sentenced to serve seven years of imprisonment and received a $10,000 fine. Coulombe received a total penalty of ten years of confinement and a $10,000 fine. Ramirez received a total sentence of twenty years of confinement and a $50,000 fine. Defendants filed timely appeals to this court. We affirm the convictions.
I
This prosecution arose when a small airplane belonging to defendant Ramirez was abandoned in the Bahamas with twelve duffel bags of cocaine after being pursued by United States customs planes. Ramirez operated a fixed-base operation at the Princeton, Minnesota airport, a business
On April 20, 1983 Ramirez placed a telephone call from Florida to Gregory Schmidt in Minnesota, requesting him to fly one of Ramirez’ planes, a Cessna 210, No. 6544 Yankee, from Princeton to Florida. Schmidt was the prosecution’s chief witness; he testified under a promise of immunity from prosecution for smuggling charges. The next day, Schmidt flew the plane to Fort Lauderdale and was met at the airport by Ramirez and Moeckly. The three went to a townhouse owned by Ramirez and later returned to the airport. They installed four or five extra fifteen gallon fuel tanks into another of Ramirez’ planes, a Cessna 210, No. 6608 Charlie, and had it fueled. Ramirez gave a $100.00 tip to the person who fueled the plane. The three then returned to Ramirez’ townhouse.
Schmidt testified that Coulombe came by the townhouse sometime that evening. Ramirez decided that it would be Coulombe, and not Schmidt, who would fly 6608 Charlie on a smuggling mission from South America and be paid $50,000. Later that night, Schmidt and Moeckly prepared a large lunch for Coulombe’s flight. The following morning, Friday, April 22, 1983, Ramirez, Schmidt, and Moeckly loaded the lunch, a life raft, and other gear onto 6608 Charlie, and connected auxiliary fuel pumps. The co-pilot’s seat had been taken out of the plane. Coulombe checked out of his hotel at 6:20 a.m., met the others at the airport, and took off with a single male passenger. That afternoon, Ramirez’ girlfriend, Pamela Jackson, arrived to vacation with him.
On Saturday afternoon, Ramirez asked Schmidt and Moeckly to fly his planes in a “cover” operation to determine whether Coulombe was being pursued by customs aircraft upon his return. Ramirez was to fly another of his planes. They operated on a particular radio frequency and were to use prearranged codes. Moeckly was to fly “touch and goes” at the Opa Locka West airport, a remote and unoccupied airport where, according to Schmidt, Ramirez and Moeckly had landed on a previous occasion, and Moeckly had criticized Ramirez for using his name on the radio frequency.
Schmidt heard Ramirez and Coulombe converse and Ramirez gave a signal to indicate trouble. Ramirez gave instructions to evade two customs planes that were in pursuit. Schmidt and Moeckly landed their planes at Boca Raton airport after Ramirez and Coulombe had dеcided to abandon Florida airspace. Moeckly told Schmidt that Coulombe and Ramirez probably flew to the Bahamas and that they should stay away from Ramirez’ townhouse. Pamela Jackson later relayed a message to Schmidt to fly to the Bahamas.
A customs pilot testified he observed evasive maneuvers by 6608 Charlie and that it finally headed toward the Grand Bahamas while continuing its evasive maneuvers. It made two approaches to a field, passed over Freeport airport, and landed on a dirt road between 5:00 and 5:15 p.m. The pilot observed green duffel bags in the plane. Ramirez landed at the Free-port airport at 5:20 p.m. in 5296 Yankee according to customs documents. At 7:00 p.m., Bahamian police located 6608 Charlie and removed five blue plastic gas cans and twelve duffle bags of cocaine. Schmidt landed at Freeport airport around 10:30 p.m. and was met by Ramirez who informed him that Coulombe had landed on the island. After a search, they found Coulombe and brought him to a hotel. Ramirez criticized Coulombe for not burning the plane. Coulombe was angry over the loss of the 400 pound cargo of cocaine.
In a secondary search of 6608 Charlie, sixteen international aeronautical maps were recovered. Eight of these bore 44 fingerprint impressions and seven palm-print impressions of Coulombe concentrated along the path to South America. One had multiplication figures apparently reflecting the pounds of cocaine loaded on the plane. Four of Ramirez’ fingerprint impressions were identified on one of the maps. The canvas bags were found to
On Sunday, April 24, 1983, Ramirez instructed Schmidt and Coulombe to ditch a seat from 6608 Charlie in the ocean. Upon their return that day to the United States in 5296 Yankee, Schmidt filed a customs report listing himself as pilot and Coulombe as a passenger. They returned to Ramirez’ townhouse where Moeckly and Jackson were waiting. Ramirez flew back separately and went to the townhouse where he argued with Coulombe about his refusal to pay Coulombe for the mission. Schmidt and Moeckly then flew to Minnesota in 6544 Yankee.
Schmidt had flown from Minnesota to Florida to assist Ramirez in preparing 6608 Charlie for similar flights and had flown cover on other occasions in 1982. Schmidt had been acquitted of perjury in a trial in May 1984. He offered to testify in return for immunity from smuggling charges. The district court held a hearing to evaluate inconsistencies between statements he made and previous testimony he had given and to determine whether he had received immunity from perjury charges for his trial testimony. Schmidt previously had denied knowing how Coulombe got to the Bahamas and denied having searched for him with Ramirez. Schmidt admitted being threatened with prosecution if he refused to testify against Ramirez. He admitted to smuggling activity and cover operations that he had denied previously. At trial, Schmidt described previous operations with Ramirez that used common plans or schemes, including cover flights, use of radio frequencies and codes, use of auxiliary fuel containers, use of the same plane, 6608 Charlie, and operations smuggling guns or drugs from South America. He testified that Moeckly also had flown cover for Ramirez on another occasion.
Apart from Schmidt’s testimony, the Government introduced other evidence of Ramirez’ past activity. Stephen Lett testified, over objection by Coulombe’s counsel, that Ramirez made four trips to the Bahamas with him, two of which involved attempts to purchase marijuana. Jack Devoe testified under a plea agreement conditioning the Government’s sentencing recommendation on the quality and quantity of his trial testimony. He had pleaded guilty to federal smuggling charges and faced between thirty and ninety years of imprisonment. The sentencing recommendation would affect this sentence as well as parole eligibility and further immunity. Devoe testified he was aware that how he testified would affect his sentence. His testimony was allowed by the court despite objections that he had an incentive to perjure himself. Devoe testified that he had made several smuggling trips with Ramirez between 1980 and 1981, and helped Ramirez set up his own operation. He testified Ramirez admitted smuggling cocaine in Cessna 210 airplanes such as 6608 Charlie. Devoe had given testimony previously in other trials. The district court ordered the Government to supply this pri- or testimony to the defense, and it supplied Devoe’s testimony from a federal trial in West Palm Beach and before a grand jury in Minneapolis. The Government was not able to supply his testimony before a Bahamian commission, testimony before a state grand jury in Miami, or testimony in a federal trial in Miami.
Marvin Osheroff, a Hialeah dry cleaner, testified over objection that Ramirez brought a green duffel bag to his establishment early in 1981. He stated that the bag was full of over $1 million in cash that Ramirez transferred to some suitcases. Osheroff produced the bag and it was found to contain traces of cocaine. The bag was similar to those used to transport cocaine.
Over objection, Donald Perbix testified to large cash deposits Ramirez made at the Community State Bank of Princeton. Again over objection, Joyce Edmonds from the Princeton Credit Union testified to large cash transactions by Ramirez. Ramirez brought more than $850,000.00 in cash to the credit union over the years. The credit union would use the cash for
William Morris testified, over objection, that he discussed smuggling operations with Ramirez in the fall of 1981. Ramirez told him Moeckly was his co-pilot on some of the trips he had made and “that it was okay for [him] to speak freely about anything in front of him.” Moeckly was not present at a later conversation between Ramirez and Morris in February of 1982 when Ramirez proposed that Morris fly decoy or cover operations for him. Morris also testified that he delivered auxiliary fuel containers to Ramirez and Moeckly for a mission Ramirez eventually called оff.
Witness Gail Vail testified she ferried Ramirez’ planes from Princeton to Florida on several occasions between November 1981 and January 1982. The planes included 6608 Charlie. On one occasion, she was met by Ramirez and Moeckly. Dennis Wolak testified that he ferried planes for Ramirez, including Cessna 210s, between Princeton and Florida in 1982.
During the grand jury investigation of Ramirez’ activities, beginning in April 1982 Moeckly, an attorney, asserted his fifth amendment right against self incrimination in response to questions about Ramirez or ownership of aircraft. The assistant United States attorney asked Moeckly whether he had contacted particular attorneys, who were well known criminal defense lawyers, in connection with the investigation. Moeckly denied that he had kept a pilot log after 1978 and claimed he did not recall being in Florida during 1983. There was other grand jury testimony, however, that Moeckly had been in Florida, and had stayed with Ramirez and studied Spanish there. There was also testimony by his flight instructor, Gail Vail, that she recorded a flight instruction in Moeckly’s log book and that he kept his records in pencil. Moeckly was convicted for perjury based on his denial of being in Florida or maintaining a log book. He was acquitted of perjury for his statement that he had never owned an aircraft. The district court denied defendants’ motion to sever Moeckly’s perjury charges from other charges.
Ramirez moved to dismiss the indictment prior to trial, asserting improper venue in Minnesota. Coulombe joined in this motion and anothеr at the close of the evidence. The Government opposed the motion, contending that it would establish venue during trial. Immediately prior to closing arguments, Ramirez requested a venue instruction and submitted a proposed instruction. Although not in the record, Ramirez’ counsel states he handed the court a note requesting a ruling on the venue instruction and the court sent a note indicating it was not going to instruct on this issue. The court denied a new trial after the jury rendered its verdict. The court held that applicable cases did not require a venue instruction because venue was not “in issue.”
II
Ramirez argues that the district court erred by refusing to instruct the jury that venue must be proved in the district of Minnesota. The Government argues that defendants’ failure to object to the jury instructions before the jury retired as required by Fed.R.Crim.P. Rule 30 operates as a waiver of objections. When a claim of error is not preserved, it may be reviewed only for plain error. See United States v. Bear Ribs,
Here Ramirez and Coulombe moved to dismiss for lack of venue prior to trial and again brought the matter to the court’s attention at the close of the proof. Ramirez tendered a proposed instruction on venue and formally requested the instruction. He again raised the matter in a motion for a new trial. Ramirez and Coulombe have not waived their objections; the trial court clearly had an opportunity to correct any errors it may have made. See United States v. Netz,
Proper venue is required by Article III, § 2 of the United States Constitution and by the sixth amendment, as well as Rule 18 of the Federal Rules of Criminal Procedure. Venue questions in criminal cases “raise deep issues of public policy” and “are not merely matters of formal legal procedure.” United States v. Johnson,
the boundary of a State, when a material fact in the determination of the extent of the jurisdiction of a court, is not a simple question of law. The description of a boundary may be a matter of construction, which belongs to the court; but the application of the evidence in the ascertainment of it as thus described and interpreted, with a view to its location and settlement, belongs to the jury. All the testimony bearing upon this question, whether of maps, surveys, practical location, and the like, should be submitted to them under proper instructions to find the fact.
Id. at 487-88. The Court remanded for a new trial because the verdict did not furnish a basis for the Court to determine whether the offense occurred within the state.
In United States v. Black Cloud,
In the present case, the indictment charged six of twenty overt acts that concerned or occurred in Minnesota, including storage of the smuggling and “cover” planes, shuttling of the planes between Florida and Minnesota, contact between parties in those two states, and other preparations. The Government bears the burden to prove venue by a preponderance of the evidence. United States v. Netz,
This case, unlike Jackalow and Black Cloud, does not involve an unresolved question of where the offenses occurred. The issue here is whether venue was proven where there was no finding by the jury that at least one overt act or the conspiratorial agreement occurred in Minnesota. The trial court held that an instruction on venue was not required because proof of the Minnesota acts was “overwhelming and uncontroverted” and venue therefore was not “in issue.” Some finding by the jury on this issue should have been required. Venue is not “in issue” only when there is a question where a criminal act occurred, but also in cases such as this when defendants can be convicted of the offenses charged without an implicit finding that the acts used to establish venue have been proven.
Nevertheless, courts have recognized that proof of venue may be so clear in some cases that the failure to instruct on the issue is not reversible error. In United States v. Netz,
In United States v. Massa,
Although these cases are helpful to our analysis, they do not apply directly to this
It is clear, however, that evidence of the acts committed in Minnesota, including storage and shuttling of planes, was uncontroverted and substantial. The planes that flew the cover operations and the smuggling mission proven to the jury were stored and shuttled from Princeton to Florida. Where evidence is this clear on the issue of proper venue, any error from denial of jury instructions on the issue is harmless. In United States v. Jenkins,
Defendants have not contradicted the evidence of activities in Minnesota to further the smuggling conspiracy. All were residents of Minnesota. The profits from smuggling activity were deposited there. In view of the overwhelming evidence of the acts that took place there, denial of the venue instruction was not prejudicial error. Moreover, the Constitution assures proper venue to еnsure against “the unfairness and hardship to which trial in an environment alien to the accused exposes him.” United States v. Johnson,
Ill
Appellants make numerous other assignments of error. Coulombe and Moeckly challenge the sufficiency of the evidence to support their conspiracy convictions. The facts as recited above provide sufficient evidence to uphold their convictions. They argue that Schmidt’s testimony was unreliable because he testified pursuant to a plea bargain and feared prosecution. This was not a basis for excluding the testimony, but was a proper subject for impeachment on cross examination. See United States v. Evans,
Defendants also argue they were denied due process because Jack Devoe testified against them pursuant to a plea bargain conditioning sentencing recommendаtions on the quality and quantity of his testimony. They maintain the Government’s discretion to make sentencing and parole eligibility decisions based on Devoe’s testimony created a risk of perjury. Defendants rely on United States v. Waterman,
Ramirez argues that Devoe’s testimony should be stricken because the Government did not supply some of his previous testimony in compliance with the Jencks Act, 18 U.S.C. § 3500. This Act required the Government to turn over statements in its possession that relate to the subject matter of the witness’ testimony at trial. 18 U.S.C. § 3500(a). The Act applies to written statements of the witness and contemporaneous recordings or transcripts, including stenographic notes of testimony or statements. The district court ordered the Government to supply all Jencks material but the Government did not produce Devoe’s testimony before a Royal Bahamian Commission, testimony in a Florida state grand jury proceeding, or a federal trial in Miami. Ramirez argues that this material may have concerned Devoe’s plea agreement and should have been produced. The district court reviewed affidavits by officials of the Drug Enforcement Administration swearing that they did not have and had not seen transcripts of Devoe’s testimony before the Bahamian Commission or the Florida state grand jury. The Jencks act does not apply to statements made to stаte officials when there is no joint investigation or cooperation with federal authorities. United States v. Silva,
The efforts by the Government to produce the materials and the availability of other testimony by Devoe, who was not a major witness, support the conclusion that the admission of his testimony was not reversible error. Where there is no indication of bad faith on the part of the Government and no indication of prejudice to the defendant, courts have been reluctant to overturn convictions for noncompliance with the Jencks Act. E.g., United States v. Izzi,
Coulombe argues it was error to allow evidence of past crimes committed by Ramirez. He maintains that evidence of Ramirez’ deep involvement in smuggling made it appear that those who worked closely with him also were involved. Coulombe objected that evidence of attempts by Ramirez to purchase marijuana in 1977 and 1978, his possession of a duffel bag full of cash with traces of cocaine in early 1981, and his attempts to help a smuggler, Morris, obtain funds from the estate of another smuggler were not admissible under Rule 404(b) of the Federal Rules of Evidence to show a common plan or scheme. The indictment charged the conspiracies began in the spring of 1981. The district court allowed the evidence of the 1977 and 1978 trips to show motive, knowledge, intent, and the development of a course of conduct. The evidence was admitted to rebut Ramirez’ various defenses that he was flying intelligence missions for the CIA, that he was smuggling aliens оr microfilm, and that he was involved in guerilla warfare in Central America. The evidence was not so far removed in time to make it inadmissible. See United States v. Engleman,
Coulombe and Moeckly challenge the district court’s denial of their severance motions. Moeckly moved for severance before trial, renewed his motion during trial as evidence was admitted to which he objected, and the court made a midtrial rule denying the motion for severance. He renewed his motion after conviction. Moeckly therefore has preserved this assignment of errоr. Rule 8(a) of the Federal Rules of Criminal Procedure permits
Moeckly argues that his perjury conviction must be vacated because questions asked before the grand jury were not material to the investigation and his answers arguably were true. Perjury is defined in 18 U.S.C. § 1623 as knowingly making “any false material declarations before or ancillary to any court or grand jury” while under oath. Moeckly argues his statements were not material to the investigation because they did not tend to “influence, misleаd, or hamper” the investigation. See United States v. Lasater,
Moeckly asserts that he was denied due process by prosecutorial misconduct before the grand jury. When Moeckly asserted fifth amendment rights in response to inquiries, the prosecutor stated that the grand jury had the inherent authority to request the Government to investigate whether he asserted these rights frivously. Appellant notes that it is the presiding judge who determines whether the assertion is valid and can order the witness to respond or face contempt. Moeckly maintains that this statement, the prosecutor’s insistence on yes or no answers to his questions, and questions about his income and legal practice, harassed and discredited him and engendered hostility by the grand jury. Moeckly’s responses had been evasive to the point of asserting his fifth amendment privilege when asked whether he had been served with a subpoena. The prosecutor’s insistence on direct answers and inquiries into his income were entirely permissible. The misstatement on fifth amendment rights was not unduly prejudicial. The Government informed Moeckly that he had the right not to incriminate himself and to consult with counsel outside the presence of the grand jury. Moeckly was provided with a recess to allow consultation with his attorney. Moeckly also challenges the prosecutor’s inquiry whether he had spoken to particular well-known criminal defense attorneys in connection with his subpoena to testify. Such questioning is prejudicial, irrelevant, and improper. See generally United States v. Gold,
Concurrence Opinion
concurring.
I join the Court’s opinion, but desire to add a few words of explanation with respect to the issue of venue.
Venue in a criminal case is a constitutional right. It is also a question of fact which should be submitted to the jury. United, States v. Jackalow,
It is nevertheless true, as the Court points out, that the evidence of activities in Minnesota was overwhelming and uncontradicted. As a practical matter, the chance that this jury could have disbelieved the evidence that one or more overt acts were committed in Minnesota, while still returning a guilty verdict, approaches zero. In this situation, I believe that United States v. Netz,
We are bound by this Court’s panel decision in Netz. I therefore join the Court’s opinion and judgment.