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January 2018




  

From The Pages of
"The Last Gentleman Smuggler":
A Book By Steven M. Kalish and Nikki Palomino


Everyone has a story. Everyone dreams. If I'm gonna tell a real story, I'm gonna start with my name. Steven Kalish...

"We really did know better. I knew better. But Tony Jimenez’s cartel would be a link to Colombia. It was no secret South America’s reputation was growing within the drug world with Pablo Escobar and the Ochoa Brothers, the Medellin and Cali Cartels and the rising cocaine business, the Peruvian contribution of cocaine paste and Castro’s drug trafficking pipeline. I still focused on what I saw as harmless importation of pot and began to understand the cog in the wheel cocaine disturbed. But the profits kept growing inconceivably without a drop in the demand. The Wild, Wild West seemed unstoppable, FBI, DEA, US Customs, Border Patrol all small potatoes with barely the shirts on their backs for resources. The anti-drug propaganda made great politics, and if money was seized during a bust, the agency was able to pocket for their use. Everyone was winning in the embryonic phase of capital. No one wanted the fortune to end. I certainly didn’t so much so I ran with the Cubans knowing their juju meant trouble. But Don and I could handle those fucking blow-heads. Where we failed was ignoring the man in the gut like a hard rock of indigestion telling us what should be done. Seems silly and so easy. An infant cries when his tummy is empty. He even knows what comes with the tit. Two grown men like Don and me thought we could outsmart the infant. That’s what happens with age. We thought wisdom replaced the primal need for the nipple we now sucked on for pleasure."

New York Times:

WASHINGTON, March 12— Federal grand juries in Florida, Louisiana and Georgia indicted 155 persons today on drug-smuggling charges as Federal agents concluded a two-year undercover investigation of the multimillion-dollar enterprises that ship marijuana from Colombia to the United States.

Peter B. Bensinger, head of the Federal Drug Enforcement Administration, said that he expected the indictments to immobilize 14 organizations responsible for 30 to 40 percent of all the marijuana smuggled into the country.

Mr. Bensinger said that Federal agents had seized 1.2 million pounds of marijuana, 3 million tablets of methaqualone, which is a sedative sold under various brand names including Quaaludes, 30 boats and ships, two airplanes and approximately $1 million in cash.

By midafternoon, Federal officials said that 122 of the suspects had been arrested. The 155 defendants include 45 men described by the drug agency as ''Class I violators,'' capable of supplying ''multiton quantities'' of marijuana to the United States. All the defendants are United States citizens, Mr. Bensinger said.

Project Called Operation Grouper

The marijuana seized in the investigation represents 5 to 7 percent of the amount officially estimated to have come into the United States in 1979.

The code name for the project, Operation Grouper, was taken from the name of a fish found in Florida waters. Bales of marijuana that float ashore are known in the local slang as ''square grouper.''

The indictments were announced at news conferences here and in Miami. Attorney General William French Smith said that the operation ''would have a major impact'' on the marijuana trade.

Vernon D. Meyer, regional director of the drug agency in Miami, said, ''This was one of the most successful long-term deep undercover probes the D.E.A. has ever engaged in.'' Drugs Valued at $1 Billion

Mr. Bensinger estimated the value of the drugs seized at more than $1 billion. He said that the 14 drug rings had been responsible for retail drug sales and resales of more than $22 billion.

He reported that bail for one of the alleged ringleaders, Jose Antonio Fernandez, had been set at $21 million, while two others, Paul Edward Hindelang Jr. and Reuben Perez, were each being held in $20 million bail. Prosecutors assert that bail must be set extremely high in such cases because drug-smuggling organizations have vast financial resouces.

In the investigation, undercover Federal agents helped unload vast cargoes of marijuana from big ''mother ships'' at various spots in the Caribbean. The agents provided logistical support and communications equipment, offering to help the smugglers elude Coast Guard vessels patrolling the area.

There were nine undercover agents involved in the investigation, including four who penetrated the inner circle of the drug-smuggling rings, Mr. Bensinger said. The 14 organizations had some members in common, but ''were not part of a pyramid and did not operate in concert,'' Mr. Bensinger said.

Atlee W. Wampler 3d, the United States Attorney in Miami, described the drug rings as ''vertically integrated international cartels.'' He said that they grew, harvested and transported their own marijuana, from the Guajira peninsula of Colombia to Florida and other Gulf Coast states, from which it was distributed throughout the United States. Meetings Were Videotaped

Since May 1979, the undercover agents have held more than 400 meetings with suspected drug dealers in Maine, New York, Georgia, Florida, Louisiana, Texas and the Bahamas. Justice Department lawyers said that a majority of the meetings had been videotaped.

In their remarks today, Mr. Smith, Mr. Bensinger, Mr. Wampler and other officials emphasized two themes that the Reagan Administration has revived at the Justice Department: the need to combat violent crime and the importance of cooperating with state and local officials. Mr. Wampler said there was ''no greater contributor to violent crime in the country and in south Florida than the narcotics trade.''

Most of the defendants were charged with one or more counts of conspiracy, possession of a controlled substance with intent to distribute it or participating in a continuing criminal enterprise. For the first two offenses, the maximum penalty is 15 years in prison and a $25,000 fine. The penalty for the last offense ranges from a minimum of 10 years in prison to a maximum of life in prison.

United States v. Kalish:

In December 1979 law enforcement authorities seized two small marijuana-laden vessels, the EL COBRE, a shrimp boat, and the MR. JAKE, an offshore oil platform supply boat, in Texas coastal waters. The former was seized on December 10, the latter on December 19. In connection with the seizure of the EL COBRE, Steven Kalish was charged with and tried in March 1980 for conspiracy to import marijuana in violation of 21 U.S.C. § 963 and for conspiracy to possess marijuana with an intent to distribute in violation of 21 U.S.C. § 846. Kalish was acquitted.

The next month (April 1980) Kalish was tried on the same charges, but these stemmed from the seizure of the MR. JAKE. In addition, Kalish was charged with and tried for the substantive offense of possession of marijuana with an intent to distribute in violation of 21 U.S.C. § 841(a)(1). This time Kalish was found guilty on all three charges.

Kalish appealed, and we reversed his conviction on the two conspiracy charges from the MR. JAKE trial because these constituted double jeopardy in light of the earlier EL COBRE trial on identical charges. His conviction of the substantive offense was, however, expressly affirmed. United States v. Kalish, 690 F.2d 1144 (5th Cir.1982).

In June 1983, Kalish was indicted with several others for a smuggling transaction involving some 48,000 pounds of marijuana alleged to have taken place on December 3-4, 1979 near Jasper, Texas (the Jasper Farm episode). Count 5 of the indictment charged Kalish with possessing marijuana with an intent to distribute and with aiding and abetting such possession in violation of 21 U.S.C. § 841(a)(1) and (b)(6) and 18 U.S.C. § 2, while Count 10 charged him with the importation of marijuana and with aiding and abetting such importation in violation of 21 U.S.C. §§ 952 and 960(a)(1) and 18 U.S.C. § 2. Kalish was also indicted on other charges, but those counts were dismissed in a plea bargain agreement.

As part of the plea bargain, Kalish pled guilty to Counts 5 and 10 of the indictment but reserved his right to appeal on double jeopardy and collateral estoppel grounds. That appeal is presently before us, as is Kalish's collateral attack via 28 U.S.C. § 2255 on his substantive conviction from the MR. JAKE trial.

I. The Substantive Conviction From The MR. JAKE Trial

After we affirmed his substantive offense conviction from the MR. JAKE trial, Kalish attacked the judgment collaterally in the district court by way of 28 U.S.C. § 2255, the federal habeas statute. The district court denied relief because the subject of his petition had been raised and

[780 F.2d 508]

disposed of in the original direct appeal to this Court.

Kalish argued in his § 2255 petition, and argues here, that his MR. JAKE substantive offense conviction was based upon a fact issue — his participation in a conspiracy — which the government was collaterally estopped from relitigating. In both the EL COBRE and MR. JAKE trials the government's principal witness was a Mr. Troutwein. Kalish argues that since the EL COBRE trial necessarily resolved the issue of Troutwein's credibility in his favor, the district court erred in the MR. JAKE trial in permitting Troutwein to link Kalish to the MR. JAKE episode with virtually the same testimony that Troutwein had given in the EL COBRE trial.

The question, though, was resolved in our original appeal. We declared:

In criminal cases, the government is barred from relitigating a fact issue only if the jury could not rationally have based its verdict on an issue other than the one the defendant seeks to foreclose ... when a `fact is not necessarily determined in a former trial, the possibility that it may have been does not prevent re-examination of that issue.' United States v. Lee, 622 F.2d 787, 790 (5th Cir.1980)....

... The EL COBRE jury did not necessarily find that Troutwein's every statement concerning his dealings with Kalish was untrue. Indeed, the jury could have believed everything except Troutwein's testimony connecting Kalish to the EL COBRE and this testimony was excluded from the MR. JAKE trial. 690 F.2d at 1155 (emphasis supplied).

It is settled in this Circuit that issues raised and disposed of in a previous appeal from an original judgment of conviction are not considered in § 2255 Motions. United States v. Jones, 614 F.2d 80, 82 (5th Cir.1980). The district court, then, did not err in refusing to entertain Kalish's § 2255 petition.

II. The Jasper Farm Guilty Plea and Conviction

Kalish challenges his conviction for the offenses of importing, possessing with an intent to distribute, and aiding and abetting the importing and possession of the 48,000 pounds of marijuana in the Jasper Farm episode. Kalish argues that the doctrine of collateral estoppel precluded this indictment and prosecution, since the EL COBRE jury had already acquitted him of charges of membership in a "larger conspiracy." The crux of Kalish's argument is that the government did not prove that he actually imported and possessed marijuana, but rather only attempted to prove that he aided and abetted the importation and possession of marijuana, and that the only proof offered of his aiding and abetting was evidence of his participation in the same conspiracy that the EL COBRE jury rejected.

Collateral estoppel is part of the constitutional guarantee against double jeopardy. It means that "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970). Collateral estoppel precludes a later prosecution only if the jury could not rationally have based its verdict on an issue other than the one the defendant seeks to foreclose. United States v. Lee, 622 F.2d 787, 790 (5th Cir.1980). "When a `fact is not necessarily determined in a former trial, the possibility that it may have been does not prevent re-examination of that issue.'" Id, quoting Adams v. United States, 287 F.2d 701, 705 (5th Cir.1961).

Collateral estoppel may operate in two distinct ways. It may completely bar a subsequent prosecution where one of the facts necessarily determined in the former trial is an essential element to the conviction the government later seeks. Second, although the later prosecution may proceed, collateral estoppel operates to bar the introduction or argumentation of certain

[780 F.2d 509]

facts necessarily established in a prior proceeding. Lee, supra, at 790. The burden is on the defendant to show that the judgment in the original trial necessarily decided a crucial issue in the second trial. United States v. Giarratano, 622 F.2d 153, 156 n. 4 (5th Cir.1980).

Kalish has failed to carry his burden of showing that the EL COBRE jury necessarily decided a crucial issue in the later Jasper Farm prosecution. In the latter, the government showed — through stipulated evidence — that Kalish imported and possessed marijuana, actually as well as constructively, in violation of 21 U.S.C. § 841(a)(1) and (b)(6); and 21 U.S.C. §§ 952 and 960(a)(1). The EL COBRE jury necessarily determined that Kalish was not a member of the conspiracy charged in that indictment. Kalish, however, has not shown that the EL COBRE jury must have resolved in his favor any of the facts — essential or otherwise — stipulated to in the Jasper Farm case. Indeed, we conclude, he could not, since the government did not even attempt to use the facts stipulated in the Jasper Farm guilty plea to prove its EL COBRE case. Hence, Kalish's collateral estoppel argument is meritless.

III. Conclusion

We hold that the district court did not err in dismissing Kalish's § 2255 petition attacking his MR. JAKE conviction, and likewise hold that Kalish's Jasper Farm prosecution and conviction were not barred by collateral estoppel. The MR. JAKE and Jasper Farm convictions are accordingly

AFFIRMED.

"The Last Gentleman Smuggler" By Steven Kalish & Nikki Palomino is about the largest smuggling operation in U.S. history. Coming 2018-2019 Print and TV series.

PBS brings 6 episodes on Dictators currently in production with Toronto, Canada's Cream Productions known for its documentaries and television. At the end of November, Cream shot Steven M. Kalish in Washington D.C., journalist John Dinges, "Our Man in Panama" and interviewed Steven in late 80s, but at the time and still incarcerated, Steven didn't reveal much. The reason Noriega was chosen to feature for one PBS episode was his connection with the U.S., having been on the CIA payroll since 1976. Director Mark Stevenson was compelled by Steven Kalish's story and how a white boy from Texas could rise to Manuel Noriega's right-hand man. Steven talked about "The Last Gentleman Smuggler" by Steven M. Kalish and Nikki Palomino. Cream Productions PBS series will air in Spring/Summer 2018. Also coming in 2018, The Paramount Network will feature a 6 episode series called WACO about David Koresh, cult leader of the Branch Davidians Sect during the 51 day stand-off where Steven Kalish's Criminal Defense Attorney Dick DeGuerin represented Koresh against the U.S. Government, FBI, ATF for possession of weapons and running a methamphetamine lab.

You never really understand a person until you consider things from his point of view—until you climb into his skin and walk around in it.

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Still Dazed. Through a Grunge Rockers Eyes. Nikki Palomino