United States v. Robert Meinster A/K/A Robbie, United States of America v. Robert Platshorn (A/k/a Bob Auction, A/K/A Bob Knapp, A/K/A Bob Elliott)

619 F.2d 1041, 1980 U.S. App. LEXIS 18495

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 18, 1980
• Docket: 79-5025, 79-5026
• Status: Published

Opinions

K. K. HALL, Circuit Judge:

Robert Platshorn and Robert Meinster appeal from convictions under 21 U.S.A. § 952(a), 960(a)(1) and 18 U.S.C. § 2 for aiding and abetting the importation of marijuana. They present numerous claims of error; only two need discussion: (1) Whether appellants are entitled to a new trial because the government allowed its key witness to give false testimony regarding offers of leniency, and (2) Whether the evidence presented was sufficient to sustain a conviction on charges of aiding and abetting. Finding no error in the district court’s rulings, we affirm.

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 August 24. The following day, the three, having leased a helicopter, selected an offloading site on the Brunswick River. Thereafter, Platshorn’s yacht, “Nature’s Way,” was brought to the site to test the depth of the water. Platshorn provided three pickup trucks and twenty thousand dollars in cash for the purchase of other equipment necessary for the operation.

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. Mein-ster 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 Pur-vis, 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 Memorandum of Decision of December 22, 1978, the court found:

[The Florida] investigation was separate and apart from the investigation surrounding the seizure of marijuana in the Eastern District of North Carolina. Pur-vis 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 for falsification, the jury’s perception of the witness’ testimony is likely to be affected. Cases such as Giglio, Napue and Boone illustrate situations where the prospect of immunity or favorable treatment awaited the witness at the conclusion of trial if his performance on the stand was favorable to the government. We think it obvious that promises of immunity or leniency premised on cooperation in a particular case may provide a strong inducement to falsify in that case.

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 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.

Other aspects of the December operation show that it was a continuation of the Labor Day plan. Rendezvous with the mothership took place at the identical location selected for the Labor Day operation, and the offloading occurred at the site hand-picked by Platshorn, Purvis and Phillips in August. Finally, Platshorn’s own activities and statements¹³ following the raid, though not conclusive, support the conclusion that the post-Labor Day events were part of the same criminal plan which he acted to bring about and with which he associated himself throughout.

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.

1 . Meanwhile, the marijuana on the “Presidential” was seized, and Meinster called Purvis to tell him to call off the salvage attempt.

2 . See also United States v, Sutton, 542 F.2d 1239 (4th Cir. 1976); Mooney v. Hollohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935).

3 . Herman Gaskins, the United States Attorney for the Eastern District of North Carolina had prepared a memorandum six months before which reads in part:

“On this date I received a call from Chuck Jaffee in connection with a telex previously received. He indicated that no promises have been made to George Purvis in Florida except that any cooperation with the Drug Enforcement Administration there would be brought to the attention of the judge in North Carolina. His lawyers had recommended to him that he not engage in any covert activities for DEA but that he felt that such activity would help him with the judge in North Carolina.”

The district court concluded that Gaskins did not recall either the conversation or the memorandum, which was in the file in another, related case, and was innocent of any intent to mislead the defense or the jury.

4 . There is also a question as to whether Purvis’ statements in the jury’s presence were perjured at all. Concededly, the following exchange took place in a pretrial hearing before the court:

Q (By Mr. Cogan) In fact, that is the arrangement that, in fact, has remained static since that time. No one has made any promises or assurances or any deals with you at all; isn’t that right?

A No one has made any deals with me at all.

Q That includes not only the people in North Carolina, but the people in Florida as well; isn’t that right?

A That is correct.

Q Mr. Jaffee and all of his people down there, no one has made any promises to you at all; isn’t that right?

A That is correct.

In his testimony before the jury, however, Purvis did not specifically deny the Florida deal:

Q (By Mr. Cogan) As I understand your testimony, Mr. Gaskins and the people in his office here and the people in Florida in the U.S. Attorney’s office, and Mr. Vopat and all of the other agents that you may have had dealings with: no one has told you that they will be in a position to do anything for you as a result of your testimony that you have offered; isn’t that right?

A They told me that they could make no promise to me whatsoever because what took place was in Mr. Gaskins’ jurisdiction, and that Mr. Gaskins has made me no promises or anything else.

Q The answer to my question is that no one has, in fact, made you any promises; is that right?

A That is correct. (T. 421-22)

The district court noted that the “distinct thrust of Purvis’ denial was directed to the fact that he was offered nothing in exchange for testimony given in North Carolina." (Emphasis in original)

5 . Similarly, the decision not to prosecute in Florida, which was not the subject of a promise in any event, was independently made by Florida officials because of Purvis’ cooperation in the Florida investigation.

6 . Smith had already been convicted and sentenced.

7 . The district court noted: “In view of Mr. Gaskins’ excusable lapse of memory it thus appears at the time of the Meinster and Plats-hom trial counsel for defendants were more knowledgeable concerning Purvis’ deal in Florida than he was.”

8 . The authorities upon which appellants rely are premised on the defense’s ignorance of the undisclosed deal. In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the Supreme Court described these cases in a three-pronged analysis under “the rule of Brady v. Maryland [373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215].”

The rule of Brady v. Maryland ... arguably applies in three different situations. Each involves the discovery after trial of information which had been known to the prosecution but unknown to the defense.

427 U.S. at 103, 96 S.Ct. at 2397. Brown v. United States, 556 F.2d 224 (3d Cir. 1977).

9 . Appellants also assert that the government knowingly allowed Wade Bailey to offload some ten bales of marijuana onto a small boat — presumably for his own gain — just prior to reaching the Brunswick River site. The government’s condonation of this “skimming,” they contend, is conduct so outrageous that it should bar prosecution. See 411 U.S. at 431-32, 93 S.Ct. at 1642-43; Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1962). The government admits that the offloading occurred, but without its knowledge or approval. Because appellants make only conclusory allegations of the government’s knowledge and approval of Bailey’s illegal actions, we need not consider the issue.

10 . Lee Smith testified that he sold the trucks supplied by Platshorn in order to buy a shrimping vessel, “Two Bears,” for use in the operation. The “Two Bears” went to sea on December 8 with Purvis and Jimmy Brown aboard to make sure that Wade Bailey connected with the mothership “Don Elias.”

11 . Meinster’s participation in the Labor Day events was established by testimony that it was Meinster who called Purvis and told him to abandon the attempt to salvage the “Presidential’s” cargo.

12 . Purvis testified:

Q (By Mr. Gaskins) Well, did you have any conversations with Mr. Platshorn regarding why he was not here in November or December?

A Yes, because the PRESIDENTIAL when it went aground in the Bahamas, it had attracted a lot of attention on himself. Mr. Phillips was supposed to be there also and they both felt that by their staying in Florida with everyone watching them, it would be less chance of people up here watching us.

¹³

“Well, [Platshorn] was upset with the fact that we were caught and made comments to the effect that if he had in fact been here himself it would not have happened — that we would not have been caught.”