United States of America, Cross-Appellee v. Michael MacKo Cross-Appellant, Frank Van Ameringen

994 F.2d 1526, 1993 U.S. App. LEXIS 17041
CourtCourt of Appeals for the Eleventh Circuit
DecidedJuly 9, 1993
Docket90-5965
StatusPublished
Cited by21 cases

This text of 994 F.2d 1526 (United States of America, Cross-Appellee v. Michael MacKo Cross-Appellant, Frank Van Ameringen) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States of America, Cross-Appellee v. Michael MacKo Cross-Appellant, Frank Van Ameringen, 994 F.2d 1526, 1993 U.S. App. LEXIS 17041 (11th Cir. 1993).

Opinion

COX, Circuit Judge:

The Government appeals a district court order acquitting Michael Macko and Frank Van Ameringen of charges that they violated the U.S. trade embargo against Cuba. Specifically, Macko and Van Ameringen were accused of selling cigarette-packaging machinery and supplies to Cuba in violation of the Trading with the Enemy Act of 1917, 50 U.S.C.App. § 5 (1988), and the Cuban Assets Control Regulations, 31 C.F.R. §§ 515.101-.901 (1992). The district court’s order followed a trial at which a jury found the men guilty of the embargo violations and related charges. See United States v. Ortiz de Zevallos, *1528 748 F.Supp. 1569 (S.D.Fla.1990). The Government challenges the judgment of acquittal only with regal’d to the Cuban embargo violations. Macko cross-appeals the district court’s refusal to sever his trial from that of Van Ameringen and a third codefend-ant. We affirm the denial of Macko’s motions for a separate trial, reverse the judgment of acquittal on the Cuban embargo counts, reinstate the jury verdicts on those counts, and remand the case to the district court for sentencing.

I. BACKGROUND

A. Procedural History

A federal grand jury in the Southern District of Florida returned a six-count superseding indictment in December 1989 against Macko, Van Ameringen and Emilio Ortiz de Zevallos. The first count of the indictment charged the three men with violating the Trading with the Enemy Act (TWEA) and 'the Cuban Assets Control Regulations by selling a packaging machine to Cubans for use in a cigarette factory in Cuba. The second and third counts charged Macko and Ortiz de Zevallos with TWEA violations based on their additional shipments of machinery and supplies to Cuba. A fourth count charged all three with conspiring to export unlicensed items to Cuba in violation of the Export Administration Act (EAA), 50 U.S.C.App. § 2410(b) (1988). The final two counts charged Macko and Ortiz de Zevallos with making false statements on shipper’s export declarations in violation of 18 U.S.C. § 1001 (1988).

In a pretrial motion for severance, Macko argued that evidence about his eodefendants’ post-arrest statements would violate Macko’s rights under the Confrontation Clause of the Sixth Amendment. He contended that a severance was mandated under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The magistrate denied Macko’s motion with the understanding that the Government would omit any references to Macko in the codefendants’ statements. Macko renewed his motion for severance three times during the trial. The district court denied each of the renewed motions.

Macko, Van Ameringen and Ortiz de Zev-allos were tried together before a jury. The jury found Van Ameringen guilty of both charges against him, acquitted Macko and Ortiz de Zevallos on one false-statement count, and found Macko and Ortiz de Zeval-los guilty on the other five counts. The district court subsequently held that the evidence was insufficient to support the guilty verdicts against Macko and Van Ameringen. United States v. Ortiz de Zevallos, 748 F.Supp. 1569, 1575, 1580 (S.D.Fla.1990). As an alternative basis for its holding on the TWEA counts, the court concluded that the appellees’ conduct was not proscribed by the regulatory subsection under which they were charged. Id. at 1578-79. The court ordered the acquittal of Macko and Van Ameringen on all counts. Id. at 1581. Ortiz de Zevallos, however, fled the United States before the district court’s hearing on the motions for acquittal. Id. at 1571 n. 1. In light of his fugitive status, the court did not address his motion. Id. Ortiz de Zevallos is not a party to the present appeal. 1

B. Facts

Because the district court ordered a judgment of acquittal based on the sufficiency of the evidence, our summary of the relevant facts gives the Government the benefit of “[a]ll reasonable inferences which tend to support the Government’s case.” United States v. Burns, 597 F.2d 939, 941 (5th Cir.1979). 2 We resolve any conflicts in the evidence in the Government’s favor. Id. “The same test applies whether the evidence is direct or circumstantial.” Id.

Also, for purposes of our review it is significant that the district court deferred ruling on the defendants’ initial motions for a judgment of acquittal. The defendants made their motions when the Government rested *1529 its case-in-chief, but the district court did not rule until after the jury rendered its verdicts. Under the law of this circuit, the delay in ruling on the motions limits our review to the sufficiency of the evidence presented in the Government’s case-in-chief. See United States v. Rhodes, 631 F.2d 43, 44-45 (5th Cir.1980) (holding that a trial court should not defer ruling on a motion for acquittal made at the close of the Government’s case, but that “the error is harmless if the evidence presented in the Government’s case-in-chief is sufficient to support the verdict”). Accordingly, while we view the evidence in a light favorable to the Government, we do not consider the evidence presented after the Government rested its case-in-chief.

The evidence presented during the Government’s case-in-chief shows the following: Van Ameringen is a Florida attorney engaged in importing and exporting. During the spring or summer of 1988, Van Amerin-gen learned about a plan to manufacture counterfeit Winston cigarettes in Cuba for resale in European markets. He became involved in the project along with two Panamanian businessmen and Ortiz de Zevallos, a Peruvian national who was then operating a business out of Panama. Van Ameringen began looking for used packaging machines and someone with the technical expertise to install them. This search led him to Macko, a former engineer with R. J. Reynolds Tobacco Company (maker of Winston cigarettes).

Macko was then acquiring and exporting cigarette machinery through.his own company, Machine Systems, Inc., in Winston-Salem, North Carolina. Van Ameringen wrote to another participant in the Cuban cigarette operation that Macko was willing to provide and install the machines “anywhere” for $56,-000 and could “go south” immediately. (Gov’t Exh. 77a.) Macko later agreed to cut his price to $39,000 in exchange for a share of the profits. He was to receive a! quarter of the price up front plus his travel expenses. Macko, Van Ameringen and Ortiz de-Zevallos went to Cuba, by way of Panama, in October 1988 for talks with Cuban officials about the cigarette factory.

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Bluebook (online)
994 F.2d 1526, 1993 U.S. App. LEXIS 17041, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-of-america-cross-appellee-v-michael-macko-cross-appellant-ca11-1993.