U.S. v. Pintado, 82-5503

• Decision Date: 26 September 1983
• Docket Number: No. 82-5503,82-5503
• Citation: 715 F.2d 1501
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alberto PINTADO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1501

715 F.2d 1501

UNITED STATES of America, Plaintiff-Appellee, v. Alberto PINTADO, Defendant-Appellant.

No. 82-5503.

United States Court of Appeals Eleventh Circuit.

Sept. 26, 1983.

Ron A. Dion, Spencer D. Levine, Entin, Schwartz, Angert, Dion & Broudy, North Miami Beach, Fla., for defendant-appellant.

Stanley Marcus, U.S. Atty., Robert M. Lipman, Barbara Schwartz, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before HILL, KRAVITCH and HENDERSON, Circuit Judges.

PER CURIAM:

Appellant Alberto Pintado, along with five others, was indicted under 21 U.S.C. §§ 841(a)(1) and 846 of conspiracy to possess marijuana with intent to distribute (Count I) and possession of marijuana with intent to distribute (Count II). A jury returned a guilty verdict on Count I and was unable to reach a unanimous verdict as to Count II. Pintado appeals his conviction. Finding the evidence insufficient to support the verdict, we reverse.

Beginning at 8:00 p.m. on January 3, 1982, agents of the U.S. Customs Service ("Customs") conducted a surveillance of a house in a residential district of Key Largo, Florida. The house bordered a canal leading to the Atlantic Ocean. A racing-type "cigarette" boat was docked behind the house in the canal. Dock lights along the canal were illuminated. A light was detected in the house behind a curtain covering a picture window, and security lights in the rear of the house were on.

At approximately 1:00 a.m., January 4, Customs officers observed a light flash across the canal. One person, appearing to be a female, exited the house, proceeded to the seawall and sat down. Around 1:40 a.m. Customs officers saw several persons running empty-handed from the area around the house down to the boat, returning from the boat carrying large bundles in front of them, "moving so fast that they were hard to count [and] passing each other going and coming from the boat. Record, Vol. 2 at 34. Testimony revealed that "about six" persons were involved and the entire operation was conducted virtually silently.

Soon after these observations, a Customs vehicle with blue lights flashing drove up to the front of the house and agents announced "U.S. Customs" in English and allegedly also in Spanish. The officials who had been conducting the surveillance also approached the area. As Customs officials approached, two of the persons who were engaged in the offloading remained outside the house and were arrested. The others ran inside the house. Officials entered the house. A total of seven persons, six males and one female, were arrested.

Appellant Pintado was the last person arrested. Two agents climbed the stairs to the second floor of the house and were confronted with a pair of locked doors. An official knocked on one of the doors, announced in English "U.S. Customs" and asked whoever was in the room to come out. When no response was received, the door was forced open. Appellant, wearing a pair of pants and perhaps a shirt, ¹ was found hiding in the closet.

Thereafter twenty-nine bales of damp marijuana wrapped in black plastic were discovered in and around a Volkswagen van parked inside an enclosed garage. The door of the garage was open. The officers found a "number of sets of clothing in the closet area [on the first floor of the house] which were wet and damp and dirty." Record, Vol. 2 at 80. There was no testimony as to the number of sets or the sizes of the clothing.

Appellant challenges the sufficiency of the evidence to sustain his conviction. In determining the sufficiency of the evidence:

It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt. A jury is free to choose among reasonable constructions of the evidence.

United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc), ² aff'd on other grounds, --- U.S. ----, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983).

"In applying this standard all reasonable inferences and credibility choices must be made in favor of the jury verdict, and that verdict must be sustained if there is substantial evidence to support it when the facts are viewed in the light most favorable to the government." United States v. Davis, 666 F.2d 195, 201 (5th Cir. Unit B 1982).

To establish a conspiracy to violate the narcotics laws under 21 U.S.C. § 846, the government must prove there was an agreement by two or more persons to violate those laws and that the individual defendant was one of the parties to that agreement. United States v. Blasco, 702 F.2d 1315, 1330 (11th Cir.1983); United States v. Tamargo, 672 F.2d 887, 889 (11th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 141, 74 L.Ed.2d 119 (1982). The existence of a conspiratorial agreement may be established through direct and/or circumstantial evidence, United States v. Blasco, 702 F.2d at 1330, including " 'inferences from the conduct of the alleged participants or from circumstantial evidence of a scheme.' " Id., quoting United States v. Spradlen, 662 F.2d 724, 727 (11th Cir.1981). To be guilty of a conspiracy a defendant need not have knowledge of every detail of the conspiracy. Knowledge of the primary objective of the conspiracy will suffice. Id., citing United States v. Tamargo, supra, 672 F.2d at 889. No showing of an overt act is required to prove a conspiracy under 21 U.S.C. § 846. Id. at 1330; United States v. Davis, 666 F.2d 195, 201 n. 9 (5th Cir. Unit B 1982).

Here, as in United States v. Blasco, 702 F.2d at 1331, we have no doubt but that the government adequately proved the existence of a conspiracy. The issue before us is whether the totality of the evidence was sufficient, in conjunction with reasonable inferences that could be drawn therefrom, for the jury to conclude that appellant was a member of that conspiracy. We answer this question in the negative. Cf. United States v. Blasco, 702 F.2d at 1331-32.

In United States v. DeSimone, 660 F.2d 532, 536-38 (5th Cir. Unit B 1981), the court held that the evidence adduced at trial was insufficient to support a jury verdict of guilt of conspiracy to possess narcotics. ³ In so concluding the court stated:

We have consistently held that mere association with persons involved in a criminal enterprise is insufficient to prove participation in a conspiracy. See, e.g., United States v. Horton, 646 F.2d 181, 185 (5th Cir.1981); United States v. Fitzharris, 633 F.2d 416, 423 (5th Cir.1980); United States v. Barrera, 547 F.2d 1250, 1257 (5th Cir.1977). We have just as strongly emphasized that mere presence at the scene of the crime is not enough to sustain a conspiracy conviction. See, e.g., United States v. Reyes, 595 F.2d 275, 280 (5th Cir.1979); Barrera, supra, at 1256. Presence followed by flight is also inadequate proof. United States v. Lopez-Ortiz, 492 F.2d 109, 115 (5th Cir.1974). In this case, we are confronted with the combined circumstances of DeSimone's association with his co-defendants at various times over a period of several days and his attempted flight in the middle of the night from an automobile which was ditched near the Greensboro airport, a remote area. This evidence certainly arouses suspicion, but does it prove beyond a reasonable doubt that DeSimone conspired to import and distribute marijuana? We think not.

Id. at 537. See also United States v. Soto, 591 F.2d 1091 (5th Cir.1979); United States v. Maspero, 496 F.2d 1354 (5th Cir.1974). ⁴

DeSimone and the other cases cited above correctly state the law that neither mere presence nor presence at the scene in conjunction with fleeing or hiding from officers of the law alone will support a conspiracy conviction. See United States v. Lopez-Ortiz, 492 F.2d 109, 115 (5th Cir.1974). Since the decisions in these cases, however, this court has adopted a new standard for judging the sufficiency of the evidence set forth above. United States v. Bell, supra, 678 F.2d at 549 (a jury verdict of guilt must stand if "a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt").

In United States v. Blasco, 702 F.2d at 1332, we applied the Bell standard and held that presence in the early morning hours on a secluded piece of property at which an off-load operation was being conducted, an enterprise that created noise that could be heard over 200 yards away and a pungent odor of marijuana that pervaded the air, constituted more than mere presence and that "a reasonably cautious jury could infer from these circumstances" that both the defendants arrested while attempting to flee and hide from officials and those inside and sitting outside the house were involved in a conspiracy to possess with the intent to distribute marijuana. Id. In...