Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Udell Shirley Stevens, A/k/a Sonny, Defendant-appellant.united States of America, Plaintiff-appellee, v. Eladio Valdez, A/k/a Alfred, Defendant-appellant.united States of America, Plaintiff-appellee, v. Richard Joseph Vandesteeg, Defendant-appellant, 823 F.2d 549 (4th Cir. 1987)

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US Court of Appeals for the Fourth Circuit - 823 F.2d 549 (4th Cir. 1987) Argued May 6, 1987. Decided July 6, 1987

Jack Benjamin Crawley, Jr.; Joseph Thomas Knott, III (McNamar Pipkin & Knott, on brief), Lewis Alston Thompson, III (Banze Banzet & Thompson; Robert Ellis Zaytoun; Kirby, Wallace, Creech et al., on brief), for appellants.

Joseph Charles Wyderko, Department of Justice (Samuel T. Currin, United States Attorney; John Stuart Bruce, Assistant United States Attorney, on brief), for appellee.

Before RUSSELL and WILKINS, Circuit Judges and VAN GRAAFEILAN, Circuit Judge for the Second Circuit, sitting by designation.

PER CURIAM:


The appellants Vandesteeg, Stevens and Valdez are appealing their convictions in the district court for conspiring and attempting to import into the United States 40,000 pounds of marijuana in violation of 21 U.S.C. §§ 960 and 963, and for traveling in interstate commerce to promote and carry out an unlawful activity in violation of 18 U.S.C. § 1952.1  The appellants' convictions stem from their participation in two smuggling ventures, neither ultimately successful, whereby marijuana was to be transported to the coastal waters of the United States by Colombian ships and then offloaded onto smaller American vessels which would stealthily carry the illicit cargo to the shores of North Carolina from which point it would be distributed. The appellants, who were residents of Florida, were not the organizers of these schemes but were implicated as participants.

The government's evidence showed that the appellants participated in an operation in the summer of 1983 in which a fishing vessel named the Atlantic Star was purchased in Florida and outfitted in North Carolina for a rendezvous with the Columbian ship Julia. Although the appellants were not the organizers of the operation Stevens was present when a co-conspirator purchased the boat and he later helped to prepare the boat for use. Stevens traveled back and forth between Florida and North Carolina several times and on one occasion Vandesteeg accompanied him from Florida to North Carolina. Once the boat was prepared and the organizers received word that the mothership was on its way from Colombia other co-conspirators arrived at the beach house to participate in the operation, including Valdez who arrived from Miami with a group of co-conspirators. The Atlantic Star set out to sea on or about March 8, 1984 to meet the mothership Julia. Aboard the Atlantic Star were the appellants, Captain Andrews, Fonseca, Coiner and Alfonzo. On March 8 the crew of the Julia threw the marijuana overboard after spying an approaching Coast Guard vessel. The Coast Guard boarded the Julia that day and, based on their inspection, seized the ship for transporting marijuana. When the Julia failed to rendezvous as scheduled the Atlantic Star returned to port without incident and the conspirators dispersed to await another opportunity.

Approximately three months later the appellants and others participated in a similar scheme in North Carolina, again using the Atlantic Star, which was painted and renamed the Lady Susan. Stevens and Vandesteeg assisted in repainting the boat. On May 2, the three appellants were aboard the Lady Susan when she rendezvoused with the mothership Carolina Sea. 755 bales of marijuana were transferred to the Lady Susan and she, under the pall of night, returned to her isolated port at about 9:00 P.M. The operation was again foiled by authorities, however, when special agents of the North Carolina State Bureau of Investigation arrived on the scene. Valdez, who by then was on shore, was arrested along with others. Stevens and Vandesteeg, who were still on the Lady Susan, managed to elude authorities until the next day. The appellants and others were convicted in the North Carolina State Court for participating in the Lady Susan operation and were each sentenced to 14 years' confinement. The Federal authorities only prosecuted the appellants and their co-conspirators for the Atlantic Star operation.

The appellants were identified at their joint trial by Harrelson, Spratt and Captain Andrews, organizers of the operations, as crewmen on the Atlantic Star. The jury found the appellants guilty of attempting and conspiring to import marijuana into the United States and of interstate travel in furtherance of a crime. The court sentenced them each to five years' imprisonment, to run consecutively with the state terms of confinement. The appellants have raised numerous claims on appeal, all of which we find to be without merit. Hence, we affirm.

The appellants first claim is that they were unfairly prejudiced because they were tried jointly with six other defendants so that their defense suffered from the spill-over effect of the evidence presented against their co-defendants. We do not agree. Prior to trial the appellants and five co-defendants moved to sever their trial from the joint trial of nineteen (19) other co-defendants. The court granted a severance and ordered that the appellants and five others be tried separately from the remaining nineteen (19) co-defendants. The appellants and five co-defendants tried with them were charged with the same Atlantic Star conspiracy and with similar Travel Act violations; therefore, the court determined that they would not be unduly prejudiced by the spill-over effect. The appellants did not object to the court's decision and made no further requests for a severance.

It is accepted practice that persons jointly indicted as co-conspirators are tried together. See United States v. Spitler, 800 F.2d 1267, 1271 (4th Cir. 1986); United States v. Parodi, 703 F.2d 768, 779 (4th Cir. 1983). 'The gravamen of conspiracy is that each conspirator is fully liable for the acts of all coconspirators in furtherance of the conspiracy. Thus, joinder is highly favored in conspiracy cases, over and above the general disposition towards joinder for reasons of efficiency and judicial economy.' United States v. Tedder, 801 F.2d 1437, 1450 (4th Cir. 1986), cert. denied, 107 S. Ct. 1585 (1987). The decision to deny a Rule 14 motion for severance is within the sound discretion of the district judge and 'will not be overturned unless the defendant affirmatively demonstrates a clear abuse of discretion through having been deprived a fair trial and having suffered a miscarriage of justice.' Spitler, 800 F.2d at 1271-72, citing United States v. Becker, 585 F.2d 703, 706-07 (4th Cir. 1978), cert. denied, 439 U.S. 1080 (1979).

We do not believe that the district judge abused his discretion or that the appellants were unfairly prejudiced by the joint trial. The court cautioned the jury not to infer the guilt of one defendant from evidence presented against another. That the court's carefully crafted instructions adequately reduced any risk of transference of guilt is evidenced by the jury's acquittal of one of the co-defendants, Roberto Martinez. Accordingly, we find this claim to be without merit.

The appellants also claim that they were unduly prejudiced by the amount of Rule 404(b) evidence concerning the Lady Susan operation used by the prosecution in its case against the appellants. Initially, we note that the appellants failed to object to the 404(b) evidence below; therefore, the appellants have effectively waived this issue and we will not disturb the district court's admission of the evidence in the absence of plain error. United States v. Mendez-Ortiz, 810 F.2d 76, 78 (6th Cir. 1986), cert. denied, 107 S. Ct. 1384 (1987). The plain error rule is to be used sparingly and only to correct 'particularly egregious errors' that affect 'substantial rights.' See United States v. Young, 470 U.S. 1, 15 (1985); Fed. R. Crim. P. 52(b). Though the evidence was prejudicial to the appellants, it was also highly probative on matters properly considered by the jury under 404(b), including the appellants' knowledge and intent, the identity of the appellants and the absence of mistake or accident. Accordingly, we cannot, under our limited power of review, adjudge the district court's admission of the Lady Susan evidence to be improper.

Additionally, the appellants claim that they were unduly prejudiced because despite the court's sequestration order the government confined witnesses Andrews and Fonseca together, or in neighboring cells, and transported them to and from the trial together so that they were able to and did discuss their testimony in the case. The appellants contend that Andrews and Fonseca were able to collaborate on their testimony which was an integral part of the government's case.

Andrews and Fonseca were co-conspirators in the aborted Atlantic Star operation and the Lady Susan operation. Both persons testified that the appellants were participants in the Atlantic Star operation. The defense counsel, during cross-examination, elicited testimony from Andrews and Fonseca that they were confined together at times and transported to and from the trial together. The appellants did not object to this alleged violation of the sequestration order at trial but raised the issue for the first time on appeal. Normally, when a witness violates a sequestration order and defense counsel timely objects to his testimony, the district court has the discretion to either admit or exclude the evidence, United States v. Buchanan, 787 F.2d 477, 485 (10th Cir. 1986), or to declare a mistrial, United States v. Covelli, 738 F.2d 847 (7th Cir. 1984), cert. denied, 469 U.S. 867 (1984), and we would review for abuse of that discretion. Since the appellants have waived the issue by their failure to timely object we are restrained from reviewing the question unless the appellants demonstrate plain error affecting their substantial rights. United States v. Beard, 775 F.2d 1577, 1580 (11th Cir. 1985), cert. denied, 106 S. Ct. 1235 (1986); Fed. R. Crim. P. 52(b).

The record reflects that though the court did issue a sequestration order at the defendants' request, the court did not expressly instruct the witnesses to refrain from discussing the case. Nevertheless, we agree that the witnesses' communication violated the order, albeit inadvertently. See United States v. Buchanan, 787 F.2d 447, 485 (10th Cir. 1986); United States v. Johnston, 578 F.2d 1352, 1355 (10th Cir. 1978), cert. denied, 439 U.S. 931 (1978). The violation does not rise to the level of plain error, however, because the improper communications did not affect the substantial rights of the appellants. The legitimate concern behind a sequestration order is the problem of collusion among witnesses. That concern is minimal here because Andrews' and Fonseca's testimony was consistent with their prior statements and with the testimony of other witnesses and because Andrews and Fonseca were effectively cross-examined by defense counsel on the matter of collaboration. See United States v. Buchanan, 787 F.2d 477, 485 (10th Cir. 1986). Since the appellants have failed to show plain error affecting their substantial rights, we find that their claim lacks merit.

The appellants have raised several other claims which we find to be without merit. Accordingly, the judgments of convictions are

AFFIRMED.

 1

Elias Silvino Rivero also filed an appeal of his similar conviction, but he voluntarily dismissed his appeal on April 3, 1987 so we need only consider the claims raised by Vandesteeg, Stevens and Valdez