U.S. v. Battle

Decision Date08 January 1990
Docket NumberNo. 88-5423,88-5423
Citation892 F.2d 992
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Juby Deon BATTLE and Donald Shannon Bullard, Defendants-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

David F. Axelrod, Linda Collins Hertz, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellant.

Mark King Leban, Miami, Fla., for defendants-appellees.

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

Before CLARK and COX, Circuit Judges, and HENDERSON, Senior Circuit Judge.

PER CURIAM:

After the jury found each of the defendants-appellees Juby Deon Battle and Donald Shannon Bullard guilty of four drug-related charges, the United States District Court for the Southern District of Florida, believing the evidence to be insufficient to convict, entered a judgment of acquittal notwithstanding the verdict. The government appeals. Having meticulously examined the record, we find the evidence to be sufficient and reverse.

On January 12, 1988, a federal grand jury in the Southern District of Florida returned an indictment charging Bullard and Battle with conspiracy to possess with intent to distribute at least five kilograms of cocaine, in violation of 21 U.S.C. § 846 (Count I); possession with intent to distribute at least five kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count II); conspiracy to import into the United States at least five kilograms of cocaine, in violation of 21 U.S.C. § 963 (Count III); and importation of at least five kilograms of cocaine into the United States, in violation of 21 U.S.C. §§ 952(a) and 960(a)(1), and 18 U.S.C. § 2 (Count IV).

At the trial, the jury heard the following evidence. On Sunday, January 3, 1988, a 1969 Beechcraft Queen Air 80 twin-engine aircraft bearing tail number N151S landed at the Fort Lauderdale International Airport, General Aviation Facility. The plane, which was loaded with luggage and toys, R.5-34, carried eight persons. At the controls was Battle. His friend and business associate Bullard, the airplane's owner, sat in the co-pilot's seat. In the rear, the six remaining passengers occupied the three seats behind the pilot. R.7-413. Riding in the back were Bullard's mother, Viola, his brothers Lopez and Donavaughn, his infant son Darmigo and acquaintances Birdie Rolle and her mother, Emma. Battle, knowing that a routine customs inspection was mandatory, 1 taxied the aircraft to the United States Customs building.

Upon leaving the plane, Bullard and Battle encountered Customs Officer Edwin Marrero, a dog handler who, on Sundays, conducted canine searches of aircraft at Fort Lauderdale. Ordinarily, there were no dog searches during the week days at that facility. R.5-30. Marrero had seen the plane taxi in, and for "some odd reason" its appearance made him suspicious. When Battle asked Marrero whether Emma Rolle could remain on board because of her serious back problem, the officer's initial curiosity intensified, and he resolved to "run" his dog, Rodney, through the airplane. R.5-35.

Marrero entered the plane and met Mrs. Rolle. He perceived that she was in great pain and as a result took the unusual procedure of conducting a canine search with a passenger on the aircraft. R.5-37. The dog quickly alerted at the front of the plane, indicating the possible presence of contraband. R.5-37. Marrero then requested that Battle and Bullard remove Mrs. Rolle from the plane. R.5-38; R.8-665. After removing Mrs. Rolle, Bullard and Battle, apparently unaware at this point that the dog had been on the airplane, then brought the baggage into the Customs building and completed the required paperwork. R.7-548; R.8-665.

Inside the Customs building, inspector Harold Hartford noticed that Battle and Bullard were acting suspiciously, displaying "rapid eye movement." R.6-128. To Hartford, the two appeared to be "very nervous." R.6-129. The inspector observed that Battle's hand was trembling. R.6-133. Both defendants denied that they behaved in such a manner. R.7-551; R.8-674.

At Marrero's request, Hartford was present during a second canine search of Bullard's aircraft. As before, Rodney alerted to the floor area on which the pilot places his feet. Hartford lifted the carpet, revealing an "inspection plate" attached to the floor with five screws (a number of screws were missing). R.7-144. Using a screwdriver, the inspector removed the screws and raised the plate, discovering a small well completely filled with packages. Although the packages were not tightly packed into the space, the well would not accommodate another one. R.7-147.

A field test performed on the contents of two of the nine packages indicated the presence of cocaine. 2 Because the cocaine had been secreted in the inspection well, under a metal plate and carpeting, the odor of cocaine could not be detected by persons in the plane. While both Marrero and Hartford expressed the opinion that the cocaine was "fresh" and suggested that it had been on the plane only a short time, R.5-56, 63; R.6-175, this observation was based upon the way the dog instantly alerted to the smell, and DEA chemist Katherine Churchill stated that the odor of cocaine is not necessarily affected by age, R.5-76. When pressed, none of the government's witnesses really knew the length of time that the cocaine had been on board the aircraft.

Following the discovery of the contraband, Bullard and Battle were arrested and given Miranda warnings. 3 Battle made a post-arrest statement, declaring, among other things, that he flew several times a week, mostly at night, and that never before had Customs at Fort Lauderdale used a dog to search his plane. R.5-87-88. Both defendants denied knowledge of the existence of the cocaine on the airplane.

Both the government and the defendants called aircraft mechanics to testify about the configuration of the Beechcraft Queen Air 80. Much of this evidence was not in conflict. For example, because the inspection well houses several moving parts, including the rudder actuator rods, rudder trim cables and brake hoses, all three of the aircraft experts agreed that placing foreign objects in the inspection well created an extremely dangerous situation, because of the great potential of the objects to impede the operation of these crucial controls. This definitely rendered the aircraft "unairworthy." But the experts quarreled, qualified and equivocated on the effect, if any, that the nine packages of cocaine would have had on the plane's performance, and a consensus was not reached.

Thomas Ferro, the government's expert, testified, "you probably could put something in [the inspection well] without interfering with [the operation of the plane] too much," however, "[i]f you had it jammed tight enough, [the pilot] would notice it." R.6-224. According to this witness, if the cocaine packages were crammed into the well, the pilot would "feel something" when depressing the pedals, because he would not be able to push them "all the way." R.6-224-25.

In contrast, Richard Ferro, the uncle of Thomas Ferro, testifying on behalf of the defendants, stated that the pilot would "not necessarily" feel friction from the controls rubbing against the cocaine in the inspection compartment, and that Battle "probably wouldn't even know" of the presence of contraband on the plane. R.6-289. However, Richard Ferro conceded that if enough foreign material were placed in the well, the rudder rods would not move and the pilot immediately would notice the plane's lack of maneuverability. R.6-305.

Finally, William Littleton, the defendants' other aircraft expert, ventured the opinion that he "wouldn't think" there would "necessarily be any type of restriction on those rudder pedals for a pilot to know that [the nine kilograms of cocaine] were there. R.6-325. Because resistance is always encountered when pressing a rudder pedal, Littleton "wouldn't imagine the pilot would feel anything out of the ordinary unless something outright jammed a pedal." R.6-326. However, the witness did think that if the brake hoses were impeded by extraneous objects in the well, the pilot would feel it. R.6-348. Although Littleton agreed that a skilled pilot such as Battle would pay close attention to differences or changes in the way controls operate, R.6-354, he concluded that Battle could have flown the plane and not been aware of the cocaine's presence. R.6-359.

If the experts disagreed as to the effect of the cocaine on the plane's handling, they generally concurred that to gain access to the inspection well required a fairly complicated, time consuming procedure. R.6-219-305, 336. Before the inspection plate can be lifted, the pilot's chair must either be moved or removed, depending on the size of the person doing the work. According to Richard Ferro, a layman would not know how to move the seat, although pilots and airplane mechanics certainly possess such knowledge. R.6-305-06. Next, the carpeting, which is either glued or fastened to the floor with sheet metal screws, must be pulled up. Finally, the screws holding down the cover must be removed. On the Queen Air, the cover normally is attached with ten to fifteen screws, but on Bullard's plane the plate had just five screws in place, said inspector Hartford, who had opened the hatch on January 3, 1988. R.6-144. Richard Ferro testified that he would need about fifteen minutes to open the well, R.6-305, and Littleton related that he himself had spent some ten or fifteen minutes entering the inspection compartment on a Queen Air similar to Bullard's, R.6-324. Both acknowledged that a less skilled individual would be unable to gain access as quickly, R.6-305, 335-36, and Littleton indicated that a layman might take up to forty-five minutes to complete the process, R.6-336.

A number of witnesses, including both defendants, described the events leading up to the defendants' arrest at Fort Lauderdale. At the request...

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