UNITED STATES of America, Appellee, v. Robert MEINSTER a/k/a Robbie, Appellant. UNITED STATES of America, Appellee, v. Robert PLATSHORN (a/k/a Bob Auction, a/k/a Bob Knapp, a/k/a Bob Elliott), Appellant.
Nos. 79-5025, 79-5026.
United States Court of Appeals, Fourth Circuit.
Decided April 18, 1980.
619 F.2d 1041
Argued Nov. 7, 1979.
III.
There is no merit to the railroads’ challenge to the reasonableness of that part of the Commission‘s order which continued the spending condition.
GRANTED IN PART; DENIED IN PART.6
Mark E. Kogan, Philadelphia, Pa., (Dennis J. Cogan, Gilbert B. Abramson, Philadelphia, Pa., Frederick D. Anderson, Wilmington, N. C., on brief), for appellants.
Herman E. Gaskins, Jr., Sp. Asst. U. S. Atty., Raleigh, N. C., (George M. Anderson, U. S. Atty., Raleigh, N. C., on brief), for appellee.
Before HALL and MURNAGHAN, Circuit Judges, and PERRY,* District Judge.
Robert Platshorn and Robert Meinster appeal from convictions under
The marijuana importing operation was conceived in July, 1977, when Platshorn met at his Florida home with Mark Phillips and George Purvis, Jr., a Fayetteville, North Carolina, automobile dealer who had come to Florida at Phillips’ request. The three discussed plans to bring a boat load of marijuana into North Carolina over Labor Day weekend, and Purvis returned to North Carolina to find a suitable offloading site.
Purvis selected six potential sites and contacted Platshorn, through Phillips. Platshorn arrived in North Carolina on Au
The Labor Day weekend scheme aborted. The mothership “Presidential,” carrying a cargo of marijuana ran aground near the Bahamas. Phillips and a friend, Lee Smith, set out for the Bahamas on the “Nature‘s Way” in an attempt to salvage the cargo, but the yacht broke down on the way south and was towed to port by the coast guard.1 Phillips reassured Purvis that another boat would be on the way in a few weeks.
In late September, Purvis returned to Florida and met with Phillips and Robert Meinster, Platshorn‘s partner in the South Florida Auto Auction, to arrange for the importation of another shipment. Because they believed “Nature‘s Way” to be under suspicion, they sought out Wade Bailey, owner-captain of the “Osprey,” to rendezvous with the mothership in early October. Bailey was a government agent.
After several delays and some additional planning, the scheme finally crystallized in early December. Accompanied by Smith and Purvis, Meinster took a room at the Hilton hotel in Wilmington, North Carolina, on November 30. Richard “Chip” Grant, who had followed the mothership “Don Elias” up the coast in a truck equipped with radio scanners, arrived the next day. Radio equipment was also set up in Meinster‘s room so that he and Grant could monitor law enforcement communications. Meinster then left town, while Purvis and Grant located and leased storage space for the shipment. All returned to the hotel room on December 7 for final arrangements.
The next day Wade Bailey and his crew took the “Osprey” to its rendezvous with the “Don Elias,” and eleven tons of marijuana were transferred to the “Osprey.” Bailey brought his cargo back up the Cape Fear River to its final destination on the Brunswick River. The cargo was partially unloaded when customs officials arrived to seize the shipment and arrest Lee Smith, who was leaving the site in a rental truck full of marijuana.
Grant and Meinster immediately returned to Florida. Later, Meinster met with Purvis, Phillips and Platshorn in Florida to discuss what had happened in North Carolina. Both Platshorn and Meinster provided funds for Smith‘s defense and expenses. Purvis remained in Florida, living with Platshorn and working at the South Florida Auto Auction until early February, 1978, when he surrendered to North Carolina authorities. Afterwards, he returned to Florida where he was approached by the Drug Enforcement Administration.
I. ALLEGATIONS OF PERJURY
Appellants’ principal claim is that the prosecution knowingly allowed its chief witness, George Purvis, Jr., to testify falsely that he had received no offer of leniency in exchange for his cooperation. They contend there was a two-fold “deal” struck in a related investigation in the Southern District of Florida, and Purvis’ emphatic denial of this arrangement at trial, supported by the prosecutor‘s arguments and continued refusal to acknowledge it, deprived appellants of a fair trial under principles set forth in Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and Boone v. Paderick, 541 F.2d 447 (4th Cir. 1976).2
The district judge heard testimony on this issue from the Justice Department attorney in charge of the Florida investigation, the Assistant United States Attorney who handled the North Carolina prosecution, and defendants’ counsel. In its Memo
[The Florida] investigation was separate and apart from the investigation surrounding the seizure of marijuana in the Eastern District of North Carolina. Purvis cooperated by providing valuable information to the DEA agents in Florida and performed in an exemplary fashion while working undercover for the DEA. In return for Purvis’ cooperation the United States Attorney‘s office in Florida decided not to prosecute Purvis, although Purvis was never told of that decision. However, the DEA officials and the United States Attorney‘s office in Florida did promise to make Purvis’ cooperation with them known to this court in North Carolina at the time of his sentencing following his guilty plea to the charges brought against him in this state. This was in exchange for Purvis’ cooperation regarding the Florida investigations, and was not conditioned on Purvis’ cooperation with the authorities in North Carolina.
We find no basis for disputing these findings, and find them dispositive of appellants’ claim.
Assuming the North Carolina prosecutor had constructive, if not actual knowledge of these facts,3 we are nevertheless unable to conclude that a new trial was required under Napue, Giglio and Boone. The intent of those holdings is not to punish the prosecutor; rather the primary concern is that the jury not be misled by the prosecution‘s knowing use of perjured testimony.4 The critical question is whether the undisclosed promise was material, i. e., whether the purported false testimony “could . . . in any reasonable likelihood have affected the judgment of the jury.” Boone, supra, at 451, quoting Giglio v. United States, 405 U.S. at 104, 92 S.Ct. at 766.
When the terms of a “deal” between the government and a witness create a motive
This is a very different situation. Nothing was promised in exchange for Purvis’ testimony in this case. Herman Gaskins, the Assistant United States Attorney in North Carolina, repeatedly refused to promise anything in exchange for Purvis’ testimony, nor did he hint that his aid might be forthcoming depending on the outcome. Although government officials in Florida promised to bring Purvis’ cooperation there to the attention of the sentencing judge in North Carolina in exchange for his cooperation in Florida, this promise was not conditioned on cooperation in this case.5
We do not think the circumstances of Purvis’ cooperation in Florida created a substantial motive for falsification in this case.
Whatever impact the Florida “deal” might have had on the jury is further diminished when the government‘s evidence is viewed in its entirety. Although Purvis was undoubtedly a key witness, other testimony provided independent proof of guilt.
Co-conspirator Lee Smith6 testified at length about his participation in the operation, beginning with the unsuccessful attempt to rescue the “Presidential‘s” cargo. He personally assisted Meinster in setting up radio monitoring equipment in the Wilmington Hilton and participated, along with Meinster and others, in various monitoring, planning and support activities on the final day of the operation. And it was Smith who was arrested during the offloading and after his arrest received financial assistance from Platshorn and Meinster.
Smith provided substantial independent proof of appellants’ guilt. In addition, the government offered extensive documentary evidence to corroborate the testimony of both Purvis and Smith. We think this evidence was more than sufficient to offset any conceivable impeachment value inherent in Purvis’ arrangement with the government authorities in Florida.
Finally, we think appellants’ prior knowledge of the Florida “deal” precludes our granting the relief they seek. On or before the first day of trial, defense counsel spoke to Walt Schroeder of the Department of Justice in Miami and was informed there was a deal in Florida. Counsel then asked U. S. Attorney Gaskins if there were any deals, and he again insisted there were none. Defense counsel took no further action on the matter, and made no attempt to obtain as a witness any of the Florida officials or take the matter to the trial judge. Thus, defendants had information from the very office that made the “deal” with Purvis, yet were content to accept—until after trial—the denials of the North Carolina prosecutor.7 We think appellants waived their objection to Purvis’ testimony by waiting until after trial to bring the question to the attention of the trial judge.8
United States v. Harris, 498 F.2d 1164 (3d Cir.), cert. den., 419 U.S. 1069, 95 S.Ct. 655, 42 L.Ed.2d 665 (1974); United States ex rel. Regina v. LaVallee, 504 F.2d 580 (2d Cir. 1974), cert. den. 420 U.S. 947, 95 S.Ct. 1330, 43 L.Ed.2d 425 (1975); see also Brown v. United States, 556 F.2d 224 (3d Cir. 1977).
II. AIDING AND ABETTING—SUFFICIENCY OF THE EVIDENCE
Appellants contend that the absence of a guilty principal precludes their conviction on aiding and abetting charges. They insist that importation by government agent Wade Bailey was not illegal, and therefore they cannot be guilty of aiding and abetting him in the commission of a crime. We find this argument without merit.
In order to sustain a conviction on charges of aiding and abetting “[i]t need only be established that the act constituting the offense was in fact committed by someone.” United States v. Snow, 537 F.2d 1166, 1169 (4th Cir. 1976) quoting Meredith v. United States, 238 F.2d 535, 542 (4th Cir. 1956). We have no difficulty concluding that the government proved illegal importation. Active participation by a government agent, even in the critical act of transporting a controlled substance into the country, does not absolve other participants of the offense. United States v. Gould, 419 F.2d 825 (9th Cir. 1969); Haynes v. United States, 319 F.2d 620 (5th Cir.), cert. den. 375 U.S. 885, 84 S.Ct. 161, 11 L.Ed.2d 115 (1963); see also United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973).9
We also reject Platshorn‘s assertion that the evidence is insufficient to support his conviction because his participation in any drug smuggling operation ceased with the abortive Labor Day shipment. He claims the record is devoid of any evidence directly linking him to subsequent activities.
The evidence taken in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62, 82 S.Ct. 457, 86 L.Ed. 680 (1942), shows that Platshorn launched a plan designed to culminate in the illegal importation of a boat load of marijuana to a site on the Brunswick River. To this end he provided funds, counselling and equipment.10
The failure of the Labor Day importation attempt did not dissipate the plan. After the breakdown of the “Nature‘s Way,” Phillips told Purvis to “keep everything together” because “he felt sure he would be able to put something else together” in a few weeks. The events that ensued also involved Phillips, Purvis and Meinster.11
According to Purvis’ testimony, Platshorn was to take a more passive role because he was under suspicion after the Labor Day events.12 By remaining in Florida he would divert the attention of the authorities.
We think this evidence is sufficient to support Platshorn‘s conviction under the rule set forth in Nye & Nissen v. United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919 (1949):
In order to aid and abet another to commit a crime it is necessary that a defendant “in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.” L. Hand, J. in United States v. Peoni, 100 F.2d 401, 402.
336 U.S. at 619, 69 S.Ct. at 769-770.
We find no merit in appellants’ other contentions. Accordingly, the convictions are affirmed.
AFFIRMED.
MURNAGHAN, Circuit Judge, dissenting:
With the conclusion that the evidence sufficed to sustain the convictions on charges of importing marijuana as aiders and abettors, I am in full accord. Regrettably, however, in my judgment, the conduct of the government did not satisfy the high standards which must be maintained if due process is to be assured and as a consequence, appellants were denied the fair trial to which they were entitled.
Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); and Mooney v. Hollohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935), together mandate a two-step inquiry in the determination whether the prosecutor‘s acquiescence in the giving of false testimony by a government witness requires a new trial. See Campbell v. Reed, 594 F.2d 4, 8 (4th Cir. 1979); United States v. Ramos Algarin, 584 F.2d 562, 564 (1st Cir. 1978). The first inquiry looks to whether the challenged evidence is indeed sufficiently misleading under the circumstances to justify its characterization as false. Cf. Boone v. Paderick, 541 F.2d 447, 450 (4th Cir. 1976); United States v. Barham, 595 F.2d 231, 241 (5th Cir. 1979). The second inquiry, and most often that which is dispositive, is whether “the false testimony could . . . in any reasonable likelihood have affected the judgment of the jury . . .” Giglio, supra, 405 U.S. at 154, 92 S.Ct. at 766, quoting Napue, supra, 360 U.S. at 271, 79 S.Ct. at 1178. Each should be answered in this case in a manner favorable to the appellants.
I.
I do not share the majority‘s skepticism regarding the misleading character of Purvis’ testimony before the jury. In addition to the testimony received by the jury which is set forth at fn. 4 of the majority opinion, Purvis also testified as follows on cross-examination:
BY MR. COGAN:
Q. I take it that the reason that you are testifying—since nobody has promised you that they are going to do any
A. I don‘t know if you would phrase it as a sense of civic responsibility. My reason for testifying is the fact that I was out of this country for a period of time, and when I came back from being out of the country, it made me realize exactly what the flag behind the Judge means. And that is the reason that I am testifying because I think I am paying back some past debts that I owe, that as a citizen—
Q. (Interposing) You feel that you owe a debt to the community? You owe the debt to the flag and to the community to testify; isn‘t that right?
A. That is correct.
Q. You feel you did an evil thing by being involved in importing marijuana; isn‘t that right?
A. That is correct.
Q. And your testimony before this jury is not because you feel that it may help you get more a [sic] lenient sentence, and you are not pointing the finger of guilt at anyone merely because you feel you are going to be helped—but because you feel you owe the community; isn‘t that right?
A. That is—
Q. (Interposing) Is that right? Yes or no?.
A. Yes.
Q. Okay, now, incidentally, there was no other factor involved in your decision to plead guilty and testify other than that; isn‘t that right? Your sense of obligation to the flag; is that right?
A. That is exactly right, and to pay back some debts that I owe.1
No doubt the promise of the prosecutor in Florida was limited to Purvis’ cooperation in Florida. Nevertheless, the government has a clear duty to protect criminal defendants’ due process right to a fair trial and a hypertechnical “accuracy” in the testimony of Purvis will not excuse it if its essential nature is false, devious and misleading. “The issue, of course, was whether [Purvis] figured to gain any personal benefits by [cooperating with] the Government.” United States v. Barham, supra, 595 F.2d at 241. The “terms of the deal“, Maj. op., supra, at 1044-1045, in Purvis’ contemplation may or may not have encompassed testimony in North Carolina in addition to “cooperation” in Florida. The majority decides that question in favor of the government and in conformity with the findings of the district court. However, the fact of the matter is, Purvis had not been sentenced at the time of his testimony in this case.3 It strains credulity to suggest that Purvis, who did not testify at the post-trial hearing, at the time he testified could have honestly believed that he had fully executed his half of the deal when apparently he was no longer useful to government agents in Florida. In Boone v. Paderick, supra, 541 F.2d at 449, there had been a “promise of favorable treatment in return for cooperation with the prosecution.” There, we noted that “a promise to recommend leniency (without assurance of it) may be interpreted by the promisee as contingent upon the quality of the evidence produced—the more uncertain the agreement, the greater the incentive to make the testimony pleasing to the promisor.” Id. at 451. Accord, Campbell v. Reed, supra, 594 F.2d at 7. I am unwilling to indulge the presumption that Purvis held an honest belief that his noncooperation in
In any event, I accept as correct the finding that, in the contemplation of the agent making it, the promise of a favorable representation to the judge was made in return strictly for cooperation in Florida and not for cooperation in testifying for the prosecution in North Carolina. Nevertheless, it is unrealistic to think that either the witness himself or the jury necessarily would have compartmentalized matters in that way. Rather, it is much more likely that both would have perceived a distinct possibility that, if testimony of the witness in the North Carolina case constituted an unpleasant surprise for the prosecutor, the likelihood of the favorable recommendation at sentencing time would have materially diminished. In short, the testimony relating to Purvis’ motivation for testifying was sufficiently misleading under the circumstances that it was false under Giglio.
Nor is there in this case a serious question that the North Carolina prosecutor knew or should have known of the Florida deal. I find unacceptable the excuses for the conduct of the United States Attorney for the Eastern District of North Carolina, who had been informed by the federal authorities in Florida of the promise made to the witness of a favorable recommendation
The fact that the North Carolina prosecutor was found by the district judge merely to have forgotten and not to have intentionally suppressed the information relates solely to the question of whether his activity was negligent or malicious. What we are concerned with are the consequences on the defendants, and they are exactly the same regardless of the North Carolina prosecutor‘s state of mind when he withheld the information. The Supreme Court stated in Giglio, supra, 405 U.S. at 154, 92 S.Ct. at 766, “whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor.”4 Moreover, as the government conceded below, the fact that the promise was made by federal officials in Florida rather than by federal officials in North Carolina is not dispositive. Cf. Boone v. Paderick, supra, 541 F.2d at 450-51 (state police detective‘s promise imputed to state prosecutor); United States v. Antone, 603 F.2d 566, 570 (5th Cir. 1979) (knowledge of state investigators imputed to federal prosecutor). In United States v. Barham, supra, the federal prosecutor in Alabama who was prosecuting the case had been informed by an Assistant United States Attorney for the Middle District of Tennessee, who had been engaged in an overlapping investigation, that the witness had been promised that she would not be prosecuted in Tennessee if she gave truthful testimony.5
In my view, it is no sufficient answer that defense counsel were assiduous enough to turn up, by inquiry to a Department of Justice official in Florida, contradictory indications on the question of whether a promise had been made. Presented with a direct conflict between statements of the Florida-based official and the North Carolina prosecutor, defense counsel had quite enough to attend to in the way of addressing the evidence to be introduced on the issues themselves rather than having to divert their attention to proving that the government official responsible for the prosecution, the one with whom they had most directly to deal in the case, was in error. His representation was the one on which they were entitled to rely, and the detriment to their clients from their doing so was the consequence.
It is true that several cases have limited the prosecutor‘s duty under Napue and Giglio to situations where defense counsel had absolutely no inkling before or during the trial of the truth of the existence of a deal between the prosecutor and the government‘s key witness. See, e. g., United States v. Harris, 498 F.2d 1164, 1170 (3d Cir. 1974). The question has been characterized as “troubling“. See United States v. Bynum, 567 F.2d 1167, 1169 and fn. 1 (1st Cir. 1978) (per curiam). United States v. Barham, supra, 595 F.2d at 243 fn. 17, establishes that the prosecutor does not automat-
In effect, whatever knowledge defense counsel had garnered from other sources, the primacy of the prosecutor actually engaged in the case as a source was so great that his flat and reiterated denial left the defendants and their counsel “without an inkling” of the deal between Purvis and the federal authorities in Florida.
II.
Accordingly, Giglio and Napue principles apply to this case. The dispositive issue is whether the false testimony “could . . . in any reasonable likelihood have affected the judgment of the jury.” This standard of review has been described as a “low threshold“. Barham, supra, 595 F.2d at 242. The standard is:
[A] brother, if not a twin, of the standard (“harmless beyond a reasonable doubt“) for determining whether constitutional error can be held harmless. See Chapman v. California, 1967, 386 U.S. 18, 23-24, 87 S.Ct. 824, 17 L.Ed.2d 705. A strict standard is appropriate because, as the Supreme Court has explained, false testimony cases involve not only “prosecutorial misconduct“, but also “a corruption of the truth-seeking function of the trial process“, United States v. Agurs, supra, 427 U.S. at 104, 96 S.Ct. at 2397.
Id. The inquiry into “reasonable likelihood” is “not an easy one“. Boone v. Paderick, supra, 541 F.2d at 453. However, it is certain that appellants need not show on appeal that disclosure “would have created a reasonable doubt that did not otherwise exist. . . .” See United States v. Sutton, 542 F.2d 1239, 1242 and fn. 3 (4th Cir. 1976). In Campbell v. Reed, 594 F.2d 4, 8 (4th Cir. 1979), the defendant had confessed to committing the crime charged although he denied at trial that the confession was voluntarily given. Despite the confession and independent testimony apparently corroborative of the noncoercive circumstances surrounding its procurement, absent the prosecutor‘s disclosure of a plea agreement favorable to the key witness for the state, the court declined to hold that the jury‘s judgment surely would have been unaffected.
Here, Purvis’ testimony was immeasurably crucial to the government‘s case against appellants. It must be recalled that appellants were charged solely as aiders and abettors; the case was tried as a conspiracy prosecution although the conspiracy count in the indictment was dismissed prior to trial. It was the government‘s theory that appellants were the “money men” behind a large-scale conspiracy to import marijuana into North Carolina. Purvis’ testimony initially and directly tied each of the appellants to the conspiracy as its moving force. Under the government‘s theory of the case, Purvis was the North Carolina lieutenant who alone among the witnesses at trial maintained direct and continuing contact with appellants. Essentially, the government‘s case rested upon its showing that certain trips to North Carolina by each of the appellants, together with Purvis’ inculpatory narrative, constituted evidence of appellants’ respective involvement in the conspiracy. Appellants did not dispute the fact of those trips to North Carolina but, rather, asserted, through the live testimony of others and in argument, that the trips were made in pursuit of legitimate business interests.
Lee Smith‘s testimony corroborating some of the testimony of Purvis related to a period of time later in the course of the conspiracy. It is doubtful that Smith‘s testimony could, in the manner in which the government put on its case, stand on its own. Nor is the assertion lightly to be disregarded that the relationship between Purvis and Smith, who were good friends, the latter having been recruited for service in the venture by the former, might well have led to the jury‘s discounting of Smith‘s testimony. In a similar vein, the documentary evidence adduced at trial, consisting primarily of telephone toll records, hotel folios and airline flight records, all rely for their probativeness upon jury acceptance of the testimony of Purvis and of Smith.
In summary, the prosecution put on a compelling case against appellants; however, particularly in view of other issues in the case, it was the credibility of Purvis upon which the strength of the entire case
Reversal here would comply with the spirit of Giglio:
There is no doubt that the evidence in this case was sufficient to support a verdict of guilty. But the fact that we would sustain a conviction untainted by the false evidence is not the question. After all, we are not the body which, under the Constitution, is given the responsibility of deciding guilt or innocence. The jury is that body, and, again under the Constitution, the defendant[s] [are] entitled to a jury that is not laboring under a Government-sanctioned false impression of material evidence when it decides the question of guilt or innocence with all its ramifications.
United States v. Barham, 595 F.2d at 242. Accordingly, I dissent.
UNITED STATES of America, Plaintiff-Appellee, v. Frank SANTORA, Defendant-Appellant.
No. 79-5382.
United States Court of Appeals, Fifth Circuit.
June 23, 1980. Rehearing Denied Aug. 4, 1980.