Cuthbert v. United States

• Decision Date: 10 May 1960
• Docket Number: No. 18025.,18025.
• Citation: 278 F.2d 220
• Parties: James M. CUTHBERT and Warren F. Busby, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

278 F.2d 220 (1960)

James M. CUTHBERT and Warren F. Busby, Appellants, v. UNITED STATES of America, Appellee.

No. 18025.

United States Court of Appeals Fifth Circuit.

May 10, 1960.

Patrick C. O'Donoghue, Washington, D. C., John E. Fitzgibbon, William C. Wright, Laredo, Tex., Donald J. Capuano, Washington, D. C., for appellants.

Brian S. Odem, Asst. U. S. Atty., Brownsville, Tex., William B. Butler, U. S. Atty., Houston, Tex., for appellee.

Before RIVES, Chief Judge, and HUTCHESON and BROWN, Circuit Judge.

HUTCHESON, Circuit Judge.

Defendants-appellants were charged with one Birch in a four count indictment. Count One charged conspiracy to violate the marihuana laws of the United States, specifically 21 U.S.C. § 176a; 26 U.S.C. § 4744(a) (2) and 26 U.S.C. § 4742(a). The three other counts charged substantive offenses in violation of those laws.

Birch pleaded guilty, and the appellants, tried by the court on jury waiver, were found guilty on each count and sentenced on each to serve ten years in the penitentiary, the sentences to run concurrently.

Appealing from the conviction and sentence, the appellants are here urging upon us that under the authoritative holdings of this court governing review of a criminal case tried below before the court without a jury the evidence was insufficient, as matter of law, to justify the trial judge's conclusion that defendants' guilt was established beyond a reasonable doubt.

No useful purpose will be served by setting out the evidence in detail. This is its substance, as testified to substantially without dispute. Appellant Busby, in the company of the defendants, Cuthbert and Birch, left Washington, D. C. on or about August 4, 1959, for a combined vacation and employment seeking trip to Texas. Busby supplied the car, and Cuthbert and Birch pooled for expenses approximately $125.00 each. Busby and Cuthbert were professional musicians and Birch was a music student of Cuthbert. Busby had previously worked in the southwest area as a musician with the El Paso Symphony, and was desirous of obtaining employment and settling in the Laredo, Texas area because he liked it and because the climate was favorable to his asthmatic condition. Birch, a confessed narcotic addict, went along on the trip with the intention, not disclosed to the others, of trying to obtain marihuana in Mexico and bring it back to Washington.

They arrived in Laredo on Friday, August 7, 1959, registered at the El Cortez Motel, and slept most of the day. Between August 7, and August 9, 1959, the three defendants went across the border to Nuevo Laredo on various occasions, sometimes together, sometimes in pairs, and sometimes alone, to eat Mexican food and partake of the social life there. They did not have much money so they tried to eat many of their meals in Mexico where the food was cheaper.

Busby and Cuthbert, though required to register as prior narcotic violators, on their trips across the bridge, through ignorance at first failed to do so, but, informed of the requirement, they both registered. Defendants were then placed under surveillance, and government agents took a motel room across from the room in which the defendants were staying.

Birch testified that on the evening of August 9th, he had the first opportunity to make a marihuana connection, but, since he was with the other two most of the time and he knew they would not have any part of his plan, he did not make the connection until after Busby had gone back to the hotel, and Busby knew nothing about it. He paid part of the price as a down payment and was to get delivery in Laredo the following morning when he was to pay the balance. The following morning, Birch, having previously obtained permission from the other defendants to allow him to withdraw enough money from the pooled funds to fly home because of illness in his family, left the motel to get an airplane ticket to Washington.

On the morning of August 10th, Busby and Cuthbert did various errands and drove around looking at the sights before returning to the motel, so they could check out by noon to move into a cheaper hotel, since their funds were low after loaning Birch plane fare.

In the meantime, Birch had returned to the motel and kept going outside and looking up and down the street. Finally he went outside and met a red pickup truck, handed the driver the remaining payment on, and received, the five pounds of marihuana which is the basis of the conviction in this case. He then returned to the motel, called a cab and went to the airport, where he was arrested and the five pounds of marihuana recovered from his baggage. The other two defendants were not at the motel when Birch received the marihuana. There is no proof that any of the defendants ever saw or took possession of any of the marihuana while they were in, or after they returned from, Mexico. When Busby and Cuthbert returned to the motel to check out, they were arrested. They were searched and in the suitcase in which Cuthbert was carrying his soiled laundry, the agents found some marihuana sweepings in two shirts owned by Cuthbert. There is no evidence that Busby ever wore these two shirts.

The three defendants were taken into custody and questioned separately. They all told substantially the same story about their trip to Laredo from Washington. During questioning by the government agent, Busby and Cuthbert denied having any knowledge of Birch's marihuana transaction, and Birch confirmed these denials, specifically taking the full guilt upon himself. At the trial each of the defendants testified and each told substantially the same story that he told Agent Rody, who testified for the government.

Busby and Cuthbert maintained their innocence from the time of their arrest and through all the proceedings. Birch readily admitted his guilt, when arrested, during the trial, and even after he was sentenced to ten years imprisonment by the trial court, and it was made clear by implication if he wanted to change his story the judge would consider reducing his sentence.

At the close of the government's case, the district judge said to the government's counsel: "There are a number of suspicious circumstances here, and I think they are probably guilty, but I don't believe beyond a reasonable doubt you have established it."

At the conclusion of the case there ensued an extended personal discussion by the judge of the case, in the course of which it clearly appeared that he was greatly torn between doubt and apprehension, doubt that the government had sustained the burden of proof and apprehension that the defendants might be imposing upon him. Stating: "I said at the conclusion of the government's testimony, without understanding all of the evidence that was in, that I did not think the evidence was sufficient, until I was apprised as to two details * * *." he went on to say: "After having some of the evidence straightened out in my mind, I felt that it was sufficient circumstantially to show the conspiracy and the substantive offenses."

In rationalizing his way to this conclusion, the judge said: "The pattern seems to be that since two of them had records — one of them had just concluded his parole in June, the other had completed his probation some time ago — here is one who had no record and they all three came down here together." Going on to analyze the evidence, none of which in any direct way connected Cuthbert and Busby with the transaction, he concluded: "Now I am going to give any defendant the benefit of any reasonable doubt that there is in any trial, but I am not going to go for stories as inconsistent as these are. Some people are a little too smooth."

Then turning his attention to the defendant Birch, who had without wavering taken the...