Five Acquitted in Drug Conspiracy Case

By Gayle Pollard
Herald Staff Writer

As written in the Miami Herald

Acquitted

A federal jury Friday night acquitted five men alleged by government prosecutors to have conspired to import tons of marijuana for profit, and declared by defense lawyers to be merely soldiers in a holy war by Richard Nixon to obliterate drug smugglers.

"The government tried to frame us all," exulted John Nardi, "but the jury didn't buy it." He beamed, raised two fingers in a victory salute as he left the courthouse and hugged and kissed his attorneys.

Lawyer Leonard Yelski, Left, With Defendants Bell, WerBell III, Franklin and Nardi

Lawyer Leonard Yelski, left, with defendants Bell, WerBell III, Franklin and Nardi. Defendants were acquitted of conspiracy charges to import and distribute marijuana.

After taking more than 10 hours to deliberate, the seven-woman, five-man jury returned innocent verdicts for Mitchell WerBell III, 56, an international arms dealer from Powder Springs, GA.; Nardi, 61, a Cleveland Teamsters union official; Morton Franklin, 49, a Cleveland insurance man; and Gerald Cunningham, 35, a Deerfield Beach weapons designer and manufacturer.

WerBell, son of a cavalry colonel in the Russian Imperial Army, long has been known as a colorful purveyor of guns to anti-communist forces throughout the Caribbean and other foreign ports.

"He would never get involved in a conspiracy to import marijuana," said WerBell's lawyer, Edwin Marger. "Guns, revolutions, maybe even assassinations, but he's not being tried on that..."

The prosecution had called 12 witnesses, mostly Drug Enforcement Administration agents, who said that they had posed as drug smugglers and negotiated a 1975 Colombia-to-South Florida marijuana deal in which the defendants hoped to make $100,000 profit each.

The defense had contended that the five were part of a drug-fighting crusade so secret that it bypassed lower levels of government agencies and reported through highly placed agents to the Nixon White House.

To buttress their case, defense lawyers moved to subpoena a "chain of command" that included Nixon and top aides John Ehrlichmann and Egil Krogh. Only Krogh came, and he denied any knowledge of the operation.

The prosecution argued strongly that the five were not part of any government operation. "There's not one scintilla of evidence, " said Assistant U.S. Attorney Karen Atkinson, "that Mitchell WerBell or any of these men were working for the U.S. government."

"If they were working for the government," she went on, "why were they prosecuted. Goodness knows the government can use all the help we can get in these cases."

A Justice Department spokesman admitted the prosecution case was seriously weakened by the death of "key witness" Kenneth Burnstine, who, acting as an informant, introduced the defendants to DEA agents posing as smugglers.

The prosecution said Burnstine, about to be sentenced after an unrelated cocaine-smuggling conviction, voluntarily approached DEA agents and offered to identify his drug-dealing contacts.

Burnstine, a convicted kingpin of South Florida drug smuggling, died in a June 16th plane crash in the Mohave Desert.

The jury was permitted to hear a few tape-recorded conversations among Burnstine, other government agents and defendants Cunningham and Nardi, in a prosecution attempt to show "the flavor" of the marijuana negotiations. The judge ruled that most of Burnstine's conversations ere irrelevant.

Prosecution and defense agreed that the five defendants had conversations with the men who turned out to be government agents concerning marijuana importing. They also agreed that, in the operation, WerBell recruited Bell, who recruited Cunningham, who recruited Franklin, who recruited Nardi.

"They didn't have to know each other to be "partners in crime" and part of a conspiracy, " Miss Atkinson said in an opening statement.

Prosecutors went on to play tapes showing the defendants in conversations, not with each other, but with undercover government agents.

And that appeared crucial when, during their deliberation, the jurors came back to ask the judge: "Do the defendants have to conspire with each other, or can they be linked together by undercover DEA agents?"

The Judge replied that "a government agent cannot be a member of a conspiracy."

The defense had contended that while WerBell was not a salaried CIA employee, he worked together with a high-level DEA intelligence official, former CIA agent Lucien Conien, "putting together assassination devices for the DEA" to use against drug smugglers, Marger said.

Marger said Conien was the link between WerBell and Krogh. Krogh denied that and Conien, although in the court hallway, was not called to testify because defense lawyers said they did not need him.

Also central to the defense was the bench-pounding, country-preacher closing argument by defense attorney Roland Braswell, who argued that the government had "gotten its signals crossed" and decided to prosecute the five, even though they were working for the government, in order to "silence WerBell."

His voice rising and falling emotionally, Braswell told the jury, "There comes a time when we got to start talking about getting down on our knees and pray to the man upstairs, because somebody's got to pray."

The defense attacked the government contention that the five were trying to smuggle marijuana for money.

"Where is the money for the deal" demanded defense attorney Barry Halpern. "There wasn't going to be any money because there wasn't going to be any deal."

Nixon had fought the subpoena, sending a private attorney from Washing, D.C., twice to ask U.S. District Judge Peter Fay to quash the subpoena because Nixon's testimony would be "immaterial."

But after Krogh's inconclusive appearance, the defense asked the judge to release Nixon and the others subpoenaed.

"We won't be needing him," said Halpern.