U.S. v. Jones, 84-5016

• Citation: 765 F.2d 996
• Decision Date: 15 July 1985
• Docket Number: No. 84-5016,84-5016
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Calvin JONES, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 996

765 F.2d 996

UNITED STATES of America, Plaintiff-Appellee, v. Calvin JONES, Defendant-Appellant.

No. 84-5016.

United States Court of Appeals, Eleventh Circuit.

July 15, 1985.

David Walbert, Walbert & Hermann, Atlanta, Ga., for C. Jones.

William Norris, Linda Collins-Hertz, Nancy L. Worthington, Lee Stapleton, Asst. U.S. Attys., David O. Leiwant, Miami, Fla., for plaintiff-appellee.

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

Before TJOFLAT and HENDERSON, Circuit Judges, and NICHOLS ^*, Senior Circuit Judge.

NICHOLS, Senior Circuit Judge:

This case is before the court on appellant Calvin Jones' appeal from a judgment and sentence in the United States District Court for the Southern District of Florida. Jones and two other persons had been indicted on two counts:

1. Combining, conspiring and confederating to commit an offense against the United States under 21 U.S.C. Sec. 952(a) and 960(a)(1), the purpose and object of the conspiracy being to use helicopters to import into the United States a quantity of marijuana in violation of 21 U.S.C. Sec. 963.

2. Combining, conspiring, and confederating to commit an offense against the United States under 21 U.S.C. Sec. 841(a)(1) to use helicopters with intent to distribute a quantity of marijuana in violation of 21 U.S.C. Sec. 846.

Both sections 846 and 963 are sections making it criminal to conspire to commit the offenses denounced in the other sections cited by the grand jury, and these are the illegal importation and distribution of a contraband substance, marijuana.

Besides Jones, the persons indicted were Robert M. Brown, Kevin O'Brien, and persons unknown to the grand jury. Before trial by jury, it was stipulated there were no unindicted co-conspirators. Brown was convicted, but abandoned his appeal. O'Brien was acquitted. Jones is therefore the only appellant before us.

The legal question to be decided is whether an "agreement" can be found sufficient to constitute a criminal conspiracy, when alleged co-conspirators present mere proposals to an undercover narcotics agent posing as a drug importer and dealer, requiring acceptance by the agent before activation, when the required acceptance was never forthcoming and the proposals were never put in effect. In the specific fact setting of this case, at least, our conclusion is that there was no "agreement" and therefore no criminal conspiracy. In view of this, the conviction was based on insufficient evidence and cannot be sustained.

Facts

The testimony was all on behalf of the prosecution and was all by government agents, but unsupported by tapes or documents. The agents testified in a forthright manner and we assume the jury could properly have believed everything they said. William J. Segarra, of the United States Drug Enforcement Agency (DEA) and first prosecution witness, departed from his normal duty station in east Florida to conduct an undercover investigation in west Florida, posing as Willie Santos, a marijuana smuggler, but we will identify him hereinafter as Segarra, not as Santos. Through an informant intermediary, he met a west Florida smuggler, Brown, whose special metier was providing other smugglers with what in a legitimate business might be called stevedoring or lightering, i.e., to bring the contraband ashore from hovering vessels in small boats or aircraft and deliver it by truck to "stash" houses where it might be safe pending distribution by the customer of the services. Segarra had discussed with Brown making use of these services in connection with his vessel, a shrimper, which was carrying 40,000 pounds of marijuana from South America. On April 1, 1982, the two men met again in a cocktail lounge in Naples, Florida. Segarra told Brown he would not be using Brown's services after all, because the shrimper had been seized by the "sharks," i.e., United States Coast Guard, in the Yucatan passage.

This passage or channel is a strait under 100 miles wide, about 1,000 miles north of the source of supply of the marijuana in Colombia, and 500 miles, approximately, southwest of west Florida. It passes between the west end of Cuba and the east or northeast end of Yucatan. Yucatan is a province of Mexico and is a broad flat peninsula extending northeast from the mainland mass of Central America. The passage is somewhat of a hole in the wall which a vessel bound from Colombia to west Florida must transit, and the United States Coast Guard was in the period covered by the indictment, April 1--July 28, 1982, blocking the passage so a contraband cargo could not be carried through, or so the figures in this case believed. The jury had the benefit of a map so it could understand the geography, which is very relevant.

The seized vessel, of course, was fictitious, as Segarra was not a smuggler and owned no interest in any vessel or cargo.

Brown commiserated and gave accounts of his own experiences and loss of business caused by the Coast Guard. He then said that he and others had "discussed and thoroughly figured out a way" to avoid the Coast Guard which was by having a Yucatan-based helicopter meet the vessel coming up from the south, lift up the marijuana beneath the helicopter in a sling, carry it over the passage or the adjacent land, and load it into a large vessel (presumably another large vessel) waiting to the northward of the passage, and bring the vessel to the west coast of Florida. Brown said the person or persons, unnamed at this conversation, had two helicopters good for a load of about 1,200 pounds each, and one person, being knowledgeable with explosives, could provide means to destroy vessels and cargoes when necessary to destroy evidence.

At another meeting on April 15, Segarra tried unsuccessfully to interest Brown in a project to smuggle methaqualone powder from the Grand Bahamas, to the west coast, which sounds like a pretty circuitous voyage. Brown reverted to his helicopter project saying his "sources" were considering establishing a lumber business in Yucatan which "would be a front" for smuggling marijuana into the United States. Segarra said his "sources" (using the same word but by the context different parties) were hesitating about another 40,000-pound cargo but "we were so hot in that area that we really don't know if we want to do it at this time;" "that area" apparently meaning the Yucatan passage. Both Segarra and Brown, in speaking of themselves and "sources," meant evidently to leave an ambiguity as to how much they were interested as principals and how much as agents for undisclosed principals.

The 28th of April, Segarra, accompanied by agent Barbara Barclay, who posed as his wife, met with Brown again in Naples. Brown rejected the methaqualone project again by quoting an impossibly high price, but reverted to the project to use helicopters in Yucatan of his own initiative. He had worked out the project which he said they now had "well planned." He wanted Segarra and Barclay to meet him the next day for lunch.

They did, and Brown said he would be joined by the "gentleman" he had referred to. He would leave and return to his job (boat builders across the street from the restaurant). His interest was the "off loading and everything else." The other would "do the helicopter with the boats and everything else." There is nothing in the record to show that "everything else" meant more than everything else connected with these tasks.

Jones now came on the scene and Brown introduced him as Cal Jones. Brown left, but his wife remained at the table with Barclay. Jones said at once, "[w]e discussed this thoroughly and we really believe we can do it. Do you wish to come in on it? Like to have you." "We can establish a lumber business on the Yucatan Peninsula in the Mexico Area." "Myself and Paul Gomez, we have contacts there in Mexico so we know how we will set up the business and we will set up the helicopters we will bring. Paul Gomez has the sources in South America, he will go over there, make the contacts, arrange that the boats are loaded up, bring it toward the West Coast." Then he described the intended use of the helicopters much as Brown already had. He said, however, though he already owned two, he would get two others of 5,000-pound capacity, which would cost not over $140,000 each. He further said " * * * initially, the start of our business was going to be expensive * * * we will invest so much money in the beginning * * * but considering all we are going to make the helicopters are expendable." Segarra further explained to the jury that the price of marijuana in South America was $9 or $10 a pound, whereas selling it after arrival in the United States would fetch $230 to $280 a pound.

Note the care with which the witness used pronouns. What Gomez will do "he" will do because Gomez is not a co-conspirator. What the member of the conspiracy will do "we" will do; however, Jones said "I" will get the helicopters. That was to be his part of the joint enterprise in the sense that he would be in charge of it. Presumably all the conspirators would share in providing the shrimpers, another item in the necessary capital, but costs of them are not discussed because Jones and Brown must have believed Segarra, in his pose as Santos, already had at least one shrimper ready to use. Segarra clearly was to provide not just money, but also the boats, in the same sense that Jones provided the helicopters. The government's argument that Segarra was to provide only money is therefore incorrect as Segarra's testimony cannot be so construed. While Gomez could get the marijuana, this was just a backup plan as Segarra had already said he had marijuana, or access to it, in the 40,000-pound quantity required, and was awaiting things getting less hot in the Yucatan passage before bringing it in. Barclay was quite clear, when she came to testify, that Segarra was to provide the marijuana (Tr. 257).

Jones now brought in his...