585 F.2d 1234 (5th Cir. 1978), 77-5339, United States v. Rodriguez

Docket Nº:77-5339.
Citation:585 F.2d 1234
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Edward RODRIGUEZ, a/k/a Rick, Thomas J. Albernaz, Peter Smigowski, and William John Martins, Defendants-Appellants.
Case Date:November 14, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1234

585 F.2d 1234 (5th Cir. 1978)

UNITED STATES of America, Plaintiff-Appellee,

v.

Edward RODRIGUEZ, a/k/a Rick, Thomas J. Albernaz, Peter

Smigowski, and William John Martins, Defendants-Appellants.

No. 77-5339.

United States Court of Appeals, Fifth Circuit

November 14, 1978

Rehearing En Banc Granted Nov. 20, 1978.

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Raymond E. LaPorte, Tampa, Fla., for Rodriguez.

Martin G. Weinberg, Boston, Mass., for Albernaz.

James W. Lawson, Joseph S. Oteri, Boston, Mass., for Smigowski.

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Joel R. Magazine, Diane R. Tolbert, Coconut Grove, Fla., Jeanne Baker, Cambridge, Mass., for Martins.

Jack V. Eskenazi, U. S. Atty., Michael P. Sullivan, Asst. U. S. Atty., Miami, Fla., Mervyn Hamburg, Atty., U. S. Dept. of Justice, Washington, D. C., for United States.

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

Before SKELTON [*], Senior Judge, and FAY and RUBIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

The appellants challenge their convictions on both counts of a two count indictment charging conspiracy to import marijuana in violation of 21 U.S.C. § 952, and a conspiracy to distribute marijuana in violation of 21 U.S.C. § 841, 1 alleging that some twenty different errors were committed below. Their cavalcade of contentions marches against a background of dramatic events narrated by the government witnesses. A full panorama would be fitting material for a novelist but redundant to this opinion so we recount only so much as appears essential for decision.

I.

During a lengthy intrigue conducted with various of the defendants, a special agent of the Drug Enforcement Administration ("DEA"), Theodore Weed, represented himself as being able to obtain a boat that could unload marijuana from a vessel at sea and transport it to Florida. He was to be paid $200,000 or ten percent of the value of the cargo, which was eventually represented to be 40,000 pounds. He was first approached by the defendant Albernaz. During the course of negotiations that ensued, he was introduced to defendants Rodriguez and Smigowski, as Albernaz's principals.

There were many meetings, complicated plans, and many conversations with Albernza and Rodriguez, some of which were tape recorded. Eventually, a place to unload the cargo was located on a Florida key south of Marathon. 2 Plans were made to meet the freighter that would bring the cargo, and Captain Jones, the captain of the Catchalot II, was enlisted. Captain Jones was secretly assisting the government.

Albernaz gave DEA agent McCutcheon and Captain Jones the final instructions, including the coordinates for a rendezvous with the freighter, and codes to be used when communicating with it. Albernaz stated that they were to unload 1,100 bales containing about 50 pounds each, and that there was an option for 300 more bales which could be obtained if a particular message were given the captain of the freighter. The Catchalot II left West Palm Beach the evening of January 27, with a crew secretly composed of DEA agents, Customs agents, and civilians. Albernaz and Rodriguez continued their efforts to arrange for delivery of the valuable cargo.

Two days later, the co-defendant William Martins chartered a Piper Navajo aircraft. Martins, Rodriguez and Albernaz, together with three pilots, flew on the plane from Fort Lauderdale to the Bahamas. Martins told one pilot, Jerry Harvey, that they were searching for a fishing boat which was in trouble. Due to darkness, the rendezvous of the vessels could not be completed, so the plane carrying Martins, Albernaz and Rodriguez returned to Fort Lauderdale. Harvey was paid $900 for the trip.

The next day, Martins again chartered Harvey's aircraft. Harvey flew Martins, Albernaz and Rodriguez over the freighter and the Catchalot II; messages were dropped to each indicating the location of the other vessel. The Catchalot II established itself as the pickup boat via the use

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of the code disclosed by Albernaz. Captain Jones informed the captain of the freighter that he wanted "to offload" immediately. The captain of the freighter replied that he wanted to wait for dark, but eventually agreed to unload after asserting that he had never "offloaded" in daytime before. The Catchalot II tied up alongside the freighter and 150 bales of marijuana were unloaded pursuant to a careful count by the captain of the freighter and Captain Jones.

Ostensibly to stow the marijuana bales below deck, the Catchalot II moved away from the freighter, and then covertly called the Coast Guard. During the next few hours the Catchalot II maintained a distance from the freighter. The Coast Guard vessel Dauntless appeared on the scene at approximately 7:00 p. m.

Using both Spanish and English, the Coast Guard vessel ordered the freighter to stop. It did not respond and, after approximately 30 minutes, the Coast Guard fired three short bursts of a machine gun across its bow. It then fired three rounds from a canon. This caused the freighter to stop. Thirteen Colombian seamen aboard the freighter were arrested, and, although separately tried, were charged as co-conspirators with the appellants herein. The appeal from their convictions is separately reported. United States v. Cadena, 5 Cir. 1978, 585 F.2d 1252.

About the time these events were occurring, defendants Martins and Rodriguez were arrested in a Miami hotel room, and Miranda 3 warnings were given to them. Smigowski and Albernaz were arrested an hour later at the same hotel.

At DEA headquarters, Agent Fernandez discovered that Martins was only 18 and asked him how he got into trouble. In an emotional state, Martins replied that he would give his story but "he had to make a telephone call prior to talking . . .." Martins' parents had recently died so he called a family friend, Captain Bob Frost of the Hialeah Police Department, and asked his friend whether or not he should cooperate with the federal agents. Captain Frost asked Martins about the circumstances of the arrest; the young defendant indicated that he had gotten into a marijuana deal and that someone had given him $20,000. Captain Frost then advised Martins to cooperate with the agents. Martins became very upset; he said to Captain Frost that, if he did cooperate, he would be killed. After Frost advised Martins, Agent Fernandez got on the phone and promised Frost that, if Martins cooperated, the DEA would provide the Hialeah Police Department with helpful information. Martins then gave a statement that incriminated himself and some of the other defendants.

The defendants were each convicted of a conspiracy to import marijuana, 21 U.S.C. § 952 (Count I) and a conspiracy to distribute marijuana, 21 U.S.C. § 841, (Count II). 4 There was no distinction whatsoever between the allegations in the Count I conspiracy and the Count II conspiracy except that each count cited a different statutory section and a different objective. The overt acts charged and all the other recitals of the indictment in each count were identical. Appellants raise eleven common challenges to their convictions; Martins raises nine additional grounds, and Smigowski separately challenges the sufficiency of the evidence.

II.

Appellants raise an ingenious defense which they call jurisdictional entrapment.

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They note that, had they conspired to import marijuana from a freighter located in international waters into some country other than the United States, they would not have committed a crime against the United States or be subject to its jurisdiction. They contend that the government induced them to conspire to import the marijuana into, and distribute it within, the United States rather than another country. In addition, appellants raise the related issue that importation into the United States was suggested by the government; therefore, they were enmeshed in a crime fomented by the state. This misconduct, they urge, required their acquittal. See United States v. Oquendo, 5 Cir. 1974, 490 F.2d 161, where the court approved submitting to the jury both the traditional entrapment defense and the different but related entrapment defense discussed in United States v. Bueno, 5 Cir. 1971, 447 F.2d 903, Cert. denied, 1973, 411 U.S. 949, 93 S.Ct. 1931, 36 L.Ed.2d 411. 5

We need not consider and endorse or disclaim the legal bases on which these contentions are postulated because the factual hypotheses on which they were also based were not established. The trial judge submitted each contention to the jury under an adequate charge, 6 and there was a sufficient evidentiary basis for the jury to conclude, beyond a reasonable doubt, that the defendants were predisposed to import marijuana into the United States, and were neither entrapped into doing so nor enmeshed in crime by federal agents.

Appellants also contend that the charge failed adequately to allocate the burden of proof with respect to the standard entrapment defense. The government has the "ultimate burden (of) proving beyond reasonable doubt that predisposition and not inducement was the cause of the crime." United States v. Tate, 5 Cir. 1977, 554 F.2d 1341, 1344; United States v. Groessel, 5 Cir. 1971, 440 F.2d 602, 606, Cert. denied, 1971, 403 U.S. 933, 91 S.Ct. 2263, 29 L.Ed.2d 713. At the point where the court discussed entrapment, it did not specifically describe the allocation of proof. However, it properly indicated that a reasonable doubt as to inducement required acquittal. 7 The jury was instructed that the general burden of proof beyond reasonable doubt was on the government, and it was evident from the charge as a whole that this allocation governed...

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