U.S. v. Duckett

• Decision Date: 14 April 1977
• Docket Number: No. 76-2017,76-2017
• Citation: 550 F.2d 1027
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph DUCKETT, a/k/a Feton Sutton, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1027

550 F.2d 1027

UNITED STATES of America, Plaintiff-Appellee, v. Joseph DUCKETT, a/k/a Feton Sutton, Defendant-Appellant.

No. 76-2017.

United States Court of Appeals, Fifth Circuit.

April 14, 1977.

Victor Sherman, Beverly Hills, Cal., Joel Hirschhorn, Miami, Fla., for defendant-appellant.

Robert W. Rust, U. S. Atty., Barbara D. Schwartz, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before TUTTLE, CLARK and RONEY, Circuit Judges.

RONEY, Circuit Judge:

On the ground that there was insufficient evidence by which the jury could find guilt beyond a reasonable doubt, we reverse the conviction of Joseph Duckett for conspiring to import heroin from the Bahamas to the United States. Charged with both conspiracy to import, 21 U.S.C.A. § 963, and importation, 21 U.S.C.A. §§ 952(a), 960(a)(1) and 18 U.S.C.A. § 2, the defendant was found not guilty by the jury of the substantive charge of importation, but convicted of conspiracy. Reversal being required on the insufficiency of the evidence, it is not necessary to decide the other three issues argued on appeal: admission of irrelevant and prejudicial testimony; the failure of the trial court to give an instruction on circumstantial evidence at the request of the defendant; and alleged misconduct of the Assistant U. S. Attorney at the trial.

To clearly illustrate the precise role which the defendant played in the events which form the basis of the charge against him, we will first set out the facts without any reference to his participation, and then separately detail his activities.

On August 25, 1975, Charles Gray, Barbara Gaston and Brad Colebrook entered Bahamas Airport. They were carrying several pieces of luggage, including one red suitcase. Colebrook, a former Bahamian customs official, summoned a porter, named DeMeritte, to take all of the group's luggage, except the red suitcase, to the check-in line. Gray and Gaston proceeded to check-in for Bahamas Air Flight 44 to Miami. Colebrook then resummoned the porter, who at his request took the red suitcase and put it on a trolley that was going out to Flight 44. For this service the porter was given the unusually high tip of $20. As a result of this maneuver the suitcase would have avoided inspection by U. S. Customs officials working in the Bahamas. The porter testified that he agreed to assist Colebrook in circumventing an inspection only because he knew that Colebrook was with Bahamian customs.

A short time later, another porter approached U. S. Customs Agent Boeman with the red suitcase. The porter had noticed that this bag lacked both the U. S. Customs stamp, and a baggage tag for Miami. Since the suitcase was locked the agent took it to a back room and opened it with a special set of keys. It contained 16 bags of white powder, later determined to be 131/2 pounds of heroin. The agent resealed the suitcase, had it placed on Flight 44, and called Miami to notify agents there of his discovery and to request surveillance.

In response to this call, Customs Supervisor Arango in Miami arranged surveillance. After the flight landed, the red suitcase was picked up by Gray, and placed alongside several other black suitcases. Gray then found a porter, who took all the bags but the red one and left the area with the porter to hail a taxi. Shortly thereafter Barbara Gaston came over to the red suitcase, picked it up and began to leave the area. At this point she was detained, taken to the customs office, the suitcase was opened, and she was placed under arrest. She identified herself to the officers at that time with an alias.

Gray was also apprehended as he attempted to locate a cab and taken to the customs office. When he emptied his pockets, an airport locker key was discovered. The locker contained a briefcase with passports for Gray and Gaston, and $10,000 cash.

Duckett's connection with this sequence of events was as follows: he was at the front door of the Bahamas Airport with Colebrook and two other persons, and shortly thereafter was standing next to Colebrook when DeMeritte was given $20 to take the red suitcase around the customs barrier. He then proceeded to a customs line different from the one to which Gray and Gaston had gone. While waiting in line he went over to Gray and Gaston, and asked them for a key, an incident which was seen by the agent who was inspecting Gray and Gaston. He then returned to his line to be inspected by Agent Boeman. When asked to produce proof of American citizenship, Duckett presented a birth certificate in the name of Feton Sutton, an alias. Boeman noticed, however, that there was also a U. S. passport in Duckett's hand luggage. Boeman examined this passport, which was in Duckett's own name. To explain the discrepancy, Duckett told Boeman that the passport and luggage belonged to a friend who had asked him to take these items to Miami.

Boeman then examined the contents of the suitcase which Duckett was carrying and discovered marijuana traces in the pockets of a white suit. Based on this discovery, the suitcases were thoroughly searched and Duckett himself was strip searched. Duckett was detained for some time during this procedure, but no further contraband was found, and Duckett was permitted to depart. As he was leaving, he requested assurances that he would not be searched again upon landing in Miami. He was told that no such guarantee could be given. There is no further evidence as to Duckett's movements, and he was never seen disembarking from Flight 44 after it landed in Miami. When Ms. Gaston was being questioned, however, she produced a voter registration card bearing the name Feton Sutton, the alias used by Duckett in the Bahamas. She also had a wallet with personal papers belonging to Duckett and an address book with the initials J.D.

At trial, testimony was introduced that sometime prior to 1975 Duckett had been in Gray's house when heroin was present. Defendant objected to the admission of this testimony as prejudicial. No further testimony was elicited as to whether Duckett was aware of the presence of the heroin.

In evaluating the claim on appeal that the evidence was insufficient to support the guilty verdict, we must consider the evidence 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). To affirm, this Court need only find that reasonable minds could have found the evidence to be inconsistent with the hypothesis of the accused's innocence. United States v. Ragano,520 F.2d 1191, 1203 n.16 (5th Cir. 1975), cert. denied, 427 U.S. 905, 96 S.Ct. 3192, 49 L.Ed.2d 1199 (1976). In the conspiracy context, "the proof may be circumstantial or direct or both, but it must convince beyond a reasonable doubt that a conspiracy existed, that the defendant knew it, and with that knowledge intentionally did some act or thing to further or carry on that conspiracy." Causey v. United States, 352 F.2d 203, 207 (5th Cir. 1965).

On the facts before this Court we must conclude that a reasonable juror could not have been able to reasonably exclude the hypothesis of the accused's innocence. Although Duckett was present with the conspirators at the airport, it is well settled that mere presence is insufficient, without more, to sustain a conviction for conspiracy. United States v. Di Re, 332 U.S. 581, 593, 68 S.Ct. 222, 92 L.Ed. 210 (1948). There is no evidence that Duckett ever touched the red suitcase, much less that he was aware of its contents. The joint presence of the defendant and the conspirators at the airport and the preexisting relationship between the parties is insufficient alone to prove beyond a reasonable doubt that defendant had a part in the conspiracy. Cf. United States v. Duke, 423 F.2d 387 (5th Cir. 1970). Thus the fact that Duckett approached Gray and Gaston for a key, and that Gaston possessed papers with both Duckett's true name and alias do not provide a legitimate basis for inferring his participation in a conspiracy to import heroin. Cf. United States v. Cantu, 504 F.2d 387 (5th Cir. 1974).

The fact that Duckett was using an alias is suspicious, but it is, without more, equally consistent with a variety of explanations. The subsequent discovery of marijuana in his suitcase suggests one such alternative explanation. Of course the possession of marijuana traces does not inculpate Duckett in the heroin smuggling activities of Gray, Gaston and Colebrook. Similarly, Duckett's request that he be given assurances he would not be searched in Miami may have been due either to a concern that the authorities there would have found marijuana traces a sufficient basis for arrest, or to a desire on his part to avoid the undoubtedly unpleasant experience of a full customs strip search for the second time that day. The fact that he was not seen arriving in Miami is as consistent with the theory that Duckett wished to avoid another strip search as it is with any participation in the conspiracy. Finally, the testimony that he had been in Gray's home when heroin was present can only be considered as showing a longstanding acquaintanceship with Gray, since there was no testimony that Duckett had seen or been aware of the heroin at the time.

From this review of the evidence concerning Duckett's activities on the day in question, it is clear that the jurors should have entertained a reasonable doubt about his guilt. While his course of conduct is odd, and perhaps difficult to explain, the links between Duckett and the conspiracy are so tenuous that, making all "reasonable inferences and credibility choices as will support" the guilty verdict, United States v. Wayman, 510 F.2d 1020, 1026 (5th Cir.), cert. denied, 423 U.S. 846, 96 S.Ct. 84, 46 L.Ed.2d 67 (1975), we conclude that no reasonable mind could find guilt beyond a reasonable doubt.

The prosecutor argues that only "slight evidence" is...