591 F.2d 1091 (5th Cir. 1979), 78-5065, United States v. Soto

Docket Nº:78-5065.
Citation:591 F.2d 1091
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jose Antonio SOTO, William Villalba, Eddy Lievano, Pastor Alvarez, Rafael Rivero, Alberto Bruno Avila, Francisco Quintana, Gilberto Acosta, Roman Pardon-Gonzalez, Jesus Aniero, Rolando Sosa, Prudencio Martinez, Juan Pedrosa, Carlos Botano and Alberto Cortes, Defendants-Appellants.
Case Date:March 22, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1091

591 F.2d 1091 (5th Cir. 1979)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jose Antonio SOTO, William Villalba, Eddy Lievano, Pastor

Alvarez, Rafael Rivero, Alberto Bruno Avila, Francisco

Quintana, Gilberto Acosta, Roman Pardon-Gonzalez, Jesus

Aniero, Rolando Sosa, Prudencio Martinez, Juan Pedrosa,

Carlos Botano and Alberto Cortes, Defendants-Appellants.

No. 78-5065.

United States Court of Appeals, Fifth Circuit

March 22, 1979

Rehearings Denied April 17, 1979.

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[Copyrighted Material Omitted]

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Gerald Kogan, Geoffrey C. Fleck, Miami, Fla., for Soto, Villalba, Lievano, Alvarez, Rivero, Avila and Quintana.

Robert L. Moore, Miami, Fla., Richard A. Moore, Miami, Fla., for Acosta.

Donald F. Spain, Miami, Fla., John H. Lipinski, Miami, Fla., for Pardon, Gonzalez, Sosa, Cortes, Botano, Pedrosa, Martinez and Aniero.

Jack V. Eskenazi, U. S. Atty., Joel C. Fanning, Linda C. Hertz, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

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

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Before THORNBERRY, GODBOLD and HILL, Circuit Judges.

JAMES C. HILL, Circuit Judge:

This appeal is from judgments of conviction entered against the appellants after a jury trial. Each of the fifteen appellants was accused and convicted of conspiring to import marijuana into the United States in violation of 21 U.S.C. § 963 (Count I); conspiring to possess marijuana with intent to distribute in violation of 21 U.S.C. § 846 (Count II); actual possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count III); and actual importation of marijuana in violation of 21 U.S.C. §§ 952(a) and 960(a)(1) and 18 U.S.C. § 2 (Count IV). Appellant Quintana was sentenced to imprisonment for concurrent terms of four years and received concurrent special parole terms of two years on each count. The other fourteen appellants were each sentenced to imprisonment for concurrent terms of three years and received concurrent special parole terms of two years on each count.

The issues on appeal are: (1) whether the District Court properly denied Sosa's and Villalba's motions to suppress evidence of the marijuana found in the vans they were driving; (2) whether samples of marijuana, taken from bales which were randomly selected from the total amount confiscated, were properly admitted into evidence; (3) whether there was prejudicial variance between the crime charged in the indictment and the proof adduced at trial; (4) whether the District Court properly denied the motions for mistrial made by thirteen of the appellants when counsel for Alvarez and Alvila made certain statements in his closing argument; and (5) whether the convictions are supported by sufficient evidence. We find no merit in the appellants' first four arguments, but we find the claim that there was insufficient evidence meritorious with regard to all four counts in the cases against Quintana and Rivero and with regard to the two importation counts in the cases against the thirteen other appellants. Hence, we reverse the convictions on all four counts against Quintana and Rivero, reverse the convictions on the two importation counts against the thirteen other appellants, but affirm the convictions on the two possession counts against those same thirteen.

I. The Facts

The facts, considered 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), reveal the following pattern of events. The raid during which the appellants were apprehended was the result of two weeks of surveillance conducted by Customs Patrol Officers, with the assistance of Lee and Collier County officers, on two beach houses in Bonita Springs, Florida. On the night of the arrests, July 11, 1977, four groups of officers were participating in the surveillance. Two officers were stationed two to three miles south of the beach houses in a Winnebago, referred to as the command post, which was equipped with marine radar; they were monitoring the Gulf of Mexico in order to detect boats headed north to the area off the shore of the beach houses. Three officers were stationed approximately one hundred and fifty yards north of the two beach houses and were positioned at the edge of the beach so that they could observe activity in the beach area behind the houses; they were in radio contact with two more officers in a backup assistance vehicle one block up the street. The third group consisted of some five officers who were in two boats in the Gulf of Mexico in the area near Bonita Springs; they were assigned to monitor visually any suspect boats picked up on the marine radar. The final group was composed of about five officers who were in the general area of the beach houses or on the roads leading to and from that area; they were observing general activity in the area, including motor vehicle traffic.

Upon arriving at the Winnebago command post at approximately 10:00 p. m. on July 11, 1977, Officer Martinez noticed on the horizon in the Gulf of Mexico lights of what appeared to be a large vessel heading

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north. After turning on the radar, he located a solitary "blip" on the radar screen which corresponded with the position of the lighted target that he could observe with his naked eye. The object was approximately three miles out to sea and moving in a northerly direction. The object continued to move north for some thirty minutes, during which time its lights were extinguished, and then it remained stationary for about one hour at a position approximately two miles off the coast where the beach houses were located. At this point, about 11:30 p. m., Martinez notified the beach house surveillance group of the target's sustained position near them and also advised the group in the two boats of his observations and directed them to the area of the target. He and Officer Kranz then left the command post and drove in separate vehicles toward the beach houses.

In the meantime, one of the officers in the vicinity of the beach houses had also made an observation of traffic attributable to the beach houses. Officer Tomlinson had observed, sometime between 10:00 p. m. and midnight, a red van turn onto Bonita Beach Road, the road which leads to the two beach houses, and proceed west toward the beach and the area of the houses. He had also observed a light colored van, described as beige or light yellow, parked at one of the two beach houses where he had been informed a large marijuana drop would be made.

As Officers Martinez and Kranz drove west down Bonita Beach Road toward the two surveilled beach houses at about 12:15 a. m. on July 12, 1977, they saw two vans, one behind the other, coming from the direction of the beach houses and heading east. Officer Kranz noticed that one was red and the other was tan and that they appeared to be carrying heavy loads. Since the vans were spotted on the only road leaving the area where the marijuana drop was thought to be occurring, he concluded that the vans could well be involved and issued a "BOLO" ("be on the lookout") request that the two vans be stopped for investigation. Martinez and Kranz then positioned themselves down the street from the beach houses and waited to hear from the surveillance group on the beach.

The officers on the beach had arrived at their station, one hundred and fifty yards north of the beach houses, at about 9:30 or 10:00 p. m. on the evening of July 11, 1977. They had immediately observed a man at the edge of the water about fifty yards north of them. He was holding a fishing rig known as a Cuban Yo-yo and a hand-held radio, but the officers saw no other fishing equipment or fish. The "fisherman" was talking into the radio, looking up and down the beach, and, periodically during the evening, walking back and forth between the woods behind the beach and the water. 1 At approximately 12:45 a. m. in the early morning of July 12, 1977, the officers heard boats offshore. Two minutes later, Officer Sutton crawled out to the beach with a nightscope and saw six to eight people on the beach south of him carrying large objects from a boat at the water's edge to the area of the two houses. At 1:00 a. m., after notifying the other officers who were on stand-by in the area of the beach houses, Officer Sutton and his two fellow beach surveillers moved toward the people on the beach; they identified themselves as customs officials in English and Spanish. The men immediately scattered in various directions, and Appellants Pedroso and Soto ran, in the darkness and confusion, directly towards the officers. They were then apprehended, although all of the other people on the beach escaped. The officers discovered that the large objects they had observed the men carrying were bales of what they identified, by virtue of previous experience with its appearance and odor, to be marijuana. Four bales were found on the beach and four in the small boat at the water's edge.

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Five to ten minutes after the officers surveilling the beach made their raid, the officers at sea on the two government boats approached and boarded the "Captain Salty," a sixty-three foot long shrimp boat anchored about two miles off the coast of Bonita Beach. They had been directed to the area of the "Captain Salty" more than an hour earlier by Officer Martinez, who had been tracking the shrimp boat on radar since about 10:00 in the evening. The officers had maintained a distance initially of three-quarters of a mile and later of two hundred feet from the "Captain Salty" until the time that they approached and boarded the boat. During their wait, the officers had used nightscopes to watch the darkened shrimp boat. They had been...

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