U.S. v. Alvarez

• Decision Date: 30 January 1980
• Docket Number: No. 78-5783,78-5783
• Citation: 610 F.2d 1250
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Manuel Juan ALVAREZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1250

610 F.2d 1250

UNITED STATES of America, Plaintiff-Appellee, v. Manuel Juan ALVAREZ, Defendant-Appellant.

No. 78-5783.

United States Court of Appeals Fifth Circuit.

Jan. 30, 1980.

Rehearing En Banc Granted March 14, 1980.

Carl H. Lida, Mark L. Krasnow, Miami, Fla., for defendant-appellant.

Ralph N. Person, Linda Collins Hertz, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before FAY, RUBIN and HATCHETT, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

Manuel Juan Alvarez was convicted of joining with three other persons in a conspiracy to import 110,000 pounds of marijuana from Colombia by air. The evidence against Alvarez, viewed in the light most favorable to the government, portrays him as an underling who loaded electrical appliances aboard a plane that was to fly from the United States to Colombia, and who had stated he would unload a cargo of marijuana upon its return. His attack on the sufficiency of the evidence to prove that a conspiracy existed or that he knowingly joined in it requires us to consider how much of the conspiratorial darkness must be illuminated to warrant a jury's determination that a specific defendant joined in a plot. We conclude that, while the evidence sufficed to show that Alvarez planned to assist others in one of the acts involved in consummating a criminal venture, it failed to show that he had joined in an agreement to violate the law, and we, therefore, reverse his conviction.

At the outset, we sum up the entirety of the evidence against Alvarez. The indictment named John Cifarelli, Genaro Mercia Cruz and Edward John Peterson as co-conspirators in a plan to import marijuana into the United States. Except for his joinder in the indictment, Alvarez is mentioned in only one other place in the indictment; it is charged as one of the overt acts that he together with Cifarelli and Cruz met two DEA agents at the Opa-Locka, Florida, airport. The indictment against Peterson was dismissed, Cifarelli pleaded guilty and Cruz was found guilty when tried jointly with Alvarez. There was ample evidence of a conspiracy between Cruz and Cifarelli to import marijuana into the United States.

Pursuant to arrangements with an undercover DEA agent, Cifarelli came to meet the agent at the Opa-Locka airport. Alvarez drove a pickup truck in which Cruz and Cifarelli were riding. The truck was loaded with some household appliances, including a washer and dryer; the DEA agent asked Cifarelli who Alvarez was and Cifarelli said Alvarez "would be at the off-loading side in the United States." The agent then spoke to Alvarez in Spanish and asked him if he planned to be at the unloading site. Alvarez nodded his head, signifying "yes," smiled, and asked the DEA agent if he was going on the plane. The agent said he was. After the conversation, Alvarez unloaded the household appliances from the truck. The agent then spoke with Cruz, and, after Cruz outlined his plans for arrival of the plane and its unloading, all were arrested.

I.

Society is not protected against miscreants if only those guilty of major roles in crime are prosecuted. Criminal ventures may be complex. The perpetrator of transgression may require help: before the crime to assist in planning it; during the course of his criminal activity to aid in executing it and in escaping from the scene; after the event is completed, to conceal him, or to assist him in avoiding detection or in concealing the loot or the evidence against him. Therefore, accessories to criminal acts were themselves considered criminals by the common law.

Federal statutes continue at least part of this pattern. Thus federal law makes it criminal to aid and abet another in a crime ¹ although there is no general federal statute against attempts, criminal solicitation or accessorial participation before the crime. ² Criminal responsibility for abetting a crime requires that a defendant " 'associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek By his action to make it succeed.' L. Hand, J., in United States v. Peoni, 2 Cir., 100 F.2d 401, 402." Nye & Nissen v. United States, 1949, 336 U.S. 613, 619, 69 S.Ct. 766, 770, 93 L.Ed. 919, 925 (emphasis supplied). United States v. Trevino, 5 Cir. 1977, 556 F.2d 1265. When an abettor is prosecuted, the threshold question is: how much does someone have to contribute to the crime of another in order to be accountable as an abettor?

Federal prosecutors have often sidestepped the necessity of seeking the answer to this question by charging defendants involved in crime with a different criminal offense, joinder in a conspiracy. The prosecution need not even charge any completed offense because the crime of conspiracy condemns the agreement itself, treating all participants equally. Conspiracy also "collapses the distinction between accessories and perpetrators" through the doctrine of conspiratorial complicity, which punishes conspirators as principals in any substantive offense committed in furtherance of the conspiracy, whether or not they directly participated in that offense. See G. Fletcher, Rethinking Criminal Law, § 8.8.1, at 674 (1978). See, e. g., Pinkerton v. United States, 1946, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489. Thus, if a conspiracy is charged, the prosecution need not analyze whether a defendant conspirator's actions would ordinarily be sufficient to create liability as an abettor of an offense; all that is necessary is proof that the defendant joined in an unlawful agreement.

By eliminating the distinction between perpetrators and accessories, criminalization of conspiracy eradicates common-law and theoretical methods of distinguishing the degree of liability of various participants in criminal enterprises. See G. Fletcher, Supra at §§ 8.5-8.8. Those who supply the means of committing an offense although those means may be available elsewhere become as liable for the offense as those who actually commit it if they are viewed as participants in the conspiracy. Thus, conspiracy can be a powerful weapon for prosecuting accessories to crime. ³

In the case before us the government has chosen the conspiracy indictment as the path to punishing Alvarez's planned complicity in an unconsummated criminal act. Under the facts shown, we decline to affirm that use of the federal proscription of conspiracy.

The use of conspiracy as a device for prosecuting minor actors in criminal dramas is limited by the fact that conspiracy itself is not primarily a means of assessing the culpability of criminal accessories; it is a separate substantive offense. ⁴ Its prohibition is directed not at its unlawful object, but at the process of agreeing to pursue that object. "Conspiracy is an inchoate offense, the essence of which is an agreement to commit an unlawful act." Iannelli v. United States, 1975, 420 U.S. 770, 777, 95 S.Ct. 1284, 1289, 43 L.Ed.2d 616; United States v. Conroy, 5 Cir. 1979, 589 F.2d 1258, 1269, Cert. denied, --- U.S. ----, 100 S.Ct. 60, 62 L.Ed.2d 40. ⁵ A defendant does not join a conspiracy merely by participating in a substantive offense, See Pinkerton v. United States, 1946, 328 U.S. 640, 643, 66 S.Ct. 1180, 1182, 90 L.Ed. 1489; United States v. Carlton, 5 Cir. 1973, 475 F.2d 104, 106, Cert. denied, 414 U.S. 842, 94 S.Ct. 100, 38 L.Ed.2d 80, or by associating with persons who are members of a conspiracy. Panci v. United States, 5 Cir. 1958, 256 F.2d 308, 312. It is hornbook law that the criminalization of conspiracy does not proscribe purely a mental state; the agreement itself is the criminal act, an act "in advancement of the intention which each of (the conspirators) has conceived in his mind." Lord Chelmford in Mulachy v. Regina, L.R. 3 Eng. & Ir.App. 306, 317 (1868) quoted in Harno, Intent in Criminal Conspiracy, 89 U.Pa.L.Rev. 625, 630 (1941). The conspirator must knowingly agree to join others in a concerted effort to bring about a common end. United States v. Perez, 5 Cir. 1973, 489 F.2d 51, 61, Cert. denied, 1974, 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664. These elements of the conspiratorial offense may of course be shown by circumstantial evidence.

In conspiracy, as in most criminal acts, intent is an element of the offense. Conspiracy is, however, more complex because it involves two elements of intent that shade into each other: each party must have intended to enter into the agreement and the schemers must have had a common intent to commit an unlawful act. See Harno, Supra, 89 U.Pa.L.Rev. at 631. There often may be no practical purpose in distinguishing these two intentions, but, for the crime to be proved, there must be evidence sufficient to warrant belief beyond reasonable doubt that the defendant intentionally entered into an agreement to do an illegal act with the intention of consummating that act. United States v. Suarez, 5 Cir. 1979, 608 F.2d 584.

It is not enough that a defendant may have wittingly aided a criminal act or that he may have intended to do so in the future; to convict a defendant of conspiracy the government must demonstrate that the defendant agreed with others that together they would accomplish the unlawful object of the conspiracy. The indictment against Alvarez identifies the agreement as a plan to import marijuana. The intent to do an illegal act is embraced in the charge to violate the law By importing marijuana, but both the knowing agreement and the intent to import marijuana must be proved. We turn our attention first to the alleged agreement.

What people do is logical, albeit, circumstantial, evidence of what lies in their mind. Extending this somewhat, courts have also considered that a person's acts might create an inference concerning what he has agreed to do. Therefore, whether or not an overt act is a component of the offense as defined by statute, an agreement to join a...