U.S. v. Mehtala, 77-1308

• Citation: 578 F.2d 6
• Decision Date: 26 June 1978
• Docket Number: No. 77-1308,77-1308
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joanne MEHTALA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 6

578 F.2d 6

UNITED STATES of America, Plaintiff-Appellee, v. Joanne MEHTALA, Defendant-Appellant.

No. 77-1308.

United States Court of Appeals First Circuit.

Argued Feb. 13, 1978.

Decided June 26, 1978.

Charles A. Cordero, Santurce, P. R., by appointment of the court, for defendant-appellant.

Jose A. Quiles, Asst. U. S. Atty., with whom Julio Morales Sanchez, U. S. Atty., San Juan, P. R., was on brief, for plaintiff-appellee.

Before COFFIN, Chief Judge, CAMPBELL and MOORE, ^* Circuit Judges.

MOORE, Circuit Judge:

Joanne Mehtala appeals from a conviction by a jury verdict, upon an indictment, charging her and six others with violation of 21 U.S.C. § 963, charging that on or about July 22, 1975, in the District of Puerto Rico and elsewhere, defendants aiding and abetting each other, knowingly and intentionally did attempt to import into the United States from a place outside thereof approximately fifty pounds of marijuana, a Schedule I controlled substance. ¹ The other individuals indicted also were convicted, but the convictions of four crew members of the involved vessel, were reversed by this court for insufficiency of evidence. United States v. Francomano, 554 F.2d 483 (1st Cir. 1977). ² The district court found that Mehtala was a young adult offender under 18 U.S.C. § 4216, and as provided under 18 U.S.C. § 5010(a), suspended the imposition of sentence and placed her on probation for a period of three years.

Miss Mehtala's trial had been severed from the others due to the illness of her counsel. At the close of the Government's case she moved for acquittal; the motion was denied. The appellant then rested without presenting evidence, and again moved for acquittal and an arrest of judgment, both of which were denied. After the verdict of guilty by the jury, appellant moved for a judgment notwithstanding the verdict, for a new trial, and for an arrest of judgment. The district court, on May 21, 1977 (after the decision in Francomano, entered on May 3, 1977), denied the motions for acquittal and for arrest of judgment, the motion for a new trial having been withdrawn. Appellant seeks reversal on the grounds that the evidence was insufficient to prove the government's case-in-chief and that appellant's notebook was erroneously admitted into evidence. For reasons hereinafter stated, we hold that the court erred in denying the motions for acquittal, reverse the judgment of conviction and remand with an order to dismiss the indictment. ³

On July 22, 1975, the United States Coast Guard cutter Diligence was patrolling the Mona Passage area, an international waterway. The cutter was engaged in a Multi-Unit Law Enforcement Patrol ("MULEPAT"), and in addition to its regular Coast Guard crew, carried Felix Jimenez, a Drug Enforcement Administration agent and Harold Johnson, an United States Customs Patrol officer. The Diligence's radar detected, at about 2:45 in the afternoon, a ship approximately ten miles away. The cutter dispatched its helicopter to investigate the ship. As the helicopter approached the ship, the Double Eagle, ⁴ the pilot noticed some objects in the water 25 to 50 yards directly astern of the ship. At the same time the pilot noted Mehtala, in a two-piece bathing suit, lounging at the rear of the Double Eagle. On that pass the pilot noticed that six people, including Mehtala, were on the deck. The other people were standing, scattered around the afterdeck of the ship. The helicopter landed in the water and retrieved six floating packages. Five of the packages were wrapped in small plastic bags and weighed approximately two pounds each, while the sixth was wrapped in a burlap bag and weighed approximately 40 pounds. A field examination determined the contents of the packages to be marijuana. ⁵ The helicopter reported its findings to the cutter. Thereafter, at approximately 3:50 P.M., a search party boarded the Double Eagle for a "safety inspection and documentation". ⁶ No marijuana was found on board, but 2250 pounds of coffee in burlap bags and 2000 pounds of sugar were discovered. ⁷

The Double Eagle was seized and the seven occupants arrested for conspiracy to import a controlled substance into the United States. They were immediately transferred to the Diligence and subsequently transported to Puerto Rico.

After the arrest at approximately 5:12 P.M., the two federal agents participated in a search of the ship. Jimenez seized a chart lying open and several maps from the steering compartment. The chart showed marks which, the Government contended, indicated that the Double Eagle was headed for Puerto Rico. Also at trial, evidence was presented which established that the Double Eagle was the only ship in the area. For purposes of this appeal we will assume that there is adequate evidentiary support for a finding that the marijuana retrieved by the helicopter came from the Double Eagle and that the Double Eagle was headed for Puerto Rico.

During the search of the Double Eagle by the agents, Jimenez also discovered a notebook in a drawer containing female clothes, located in the Captain's cabin. This was admitted into evidence after a motion to suppress the notebook was denied. The crucial issues to be decided in this appeal are whether the notebook was properly admitted into evidence and whether the Government presented sufficient evidence to support a jury finding that appellant knowingly and intentionally either acted as a principal, or aided and abetted principals, in attempting to import marijuana into the United States.

I.

Appellant contends that the notebook was inadmissible into evidence because it was irrelevant, and if relevant, its prejudicial effect outweighed its relevancy. The Government argued at trial that the importance of the notebook was twofold: (1) it showed guilty knowledge on the part of Mehtala; and (2) it was like a logbook and showed the itinerary of the Double Eagle.

The notebook is in the form of a diary, containing short phrases describing the activities of Mehtala and her companions. As the district court stated, "It seems to me rather than anything else like a diary written by a schoolgirl in which phrases are used which have a lot of meaning to the person who wrote it, it brings back memories, but whoever reads it it (sic) means nothing." Extract of Trial 200. The probative value of the notebook, as to Mehtala's knowledge, is cast in doubt by an examination of its contents and by the comments of the district court:

"(I)t couldn't be more innocent as to the things that it says, the fact that they had a few drinks in one place, the fact that someone had a fight with someone else, that they had visitors aboard the vessel, that they danced, what's wrong with that? I don't see anything wrong with that." Id.

The Government bases its relevancy argument on a single cryptic passage from the notebook. On July 10, 1975, the following was entered:

"I swim to shore and go to the river. Walking thru the villages in my bikini. Washer women. Mr. Jeffries apologizes. Head for Santo Domingo at 1600. Bad winds. Not talking to Hugh. Coast Guard at our stern. Goodbye to my dreams."

The Government contends that this passage indicates Mehtala's participation in the venture the presence of the Coast Guard near the Double Eagle sunk Mehtala's dreams of success in the illicit venture. However, the relevancy of this phrase is reduced by its ambiguity. For example, the phrase could also be interpreted as Mehtala simply noting the presence of the Coast Guard, ⁸ and, in the last sentence, referring to some completely unassociated thoughts.

A second purpose of the notebook was to prove the itinerary of the Double Eagle. The itinerary was to indicate that the ship visited Colombia, a possible place to purchase marijuana, prior to being seized. But appellant offered to stipulate the route.

The diary contains passages which could have some negative effect on the jury. This prejudicial effect must be balanced against the diary's relevancy. The diary makes a reference to frivolous conduct by the appellant which could be looked upon negatively by jurors with particular sensitivities. The diary also contains a disparaging remark about Latin Americans, referring to them as "Horny Latin American Pigs".

The admissibility of the diary was thus an extremely close question for the trial court. Both relevance and prejudice were possibilities in uncertain measures. District court judges have broad discretion in determining the admissibility of evidence. United States v. Fosher, 568 F.2d 207, 213 (1st Cir. 1978); United States v. Eatherton, 519 F.2d 603, 611 (1st Cir.), cert. denied, 423 U.S. 987, 96 S.Ct. 396, 46 L.Ed.2d 304 (1975). Here the district court did not abuse its discretion in determining that the notebook was relevant. Likewise, the court did not abuse its discretion in determining that the prejudicial effect of the notebook did not outweigh its probative value.

II.

The evidence, or lack thereof, offered by the Government, failed to prove any one of the three elements necessary for conviction of aiding and abetting, much less facts sufficient to prove appellant was a principal. To be convicted of aiding and abetting, more than "mere presence" at the scene is required. United States v. Mariani, 539 F.2d 915, 919 (2d Cir. 1976). As the Supreme Court stated in ...