U.S. v. Bland, 80-3090

• Citation: 653 F.2d 989
• Decision Date: 17 August 1981
• Docket Number: No. 80-3090,80-3090
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert B. BLAND, Inocente Ruben-Morell, Florencio Agustin-Mayor, Augustin Viviano Castro, Alberto Mark and Lorenzo Aros, Defendants-Appellants. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 989

653 F.2d 989

UNITED STATES of America, Plaintiff-Appellee, v. Robert B. BLAND, Inocente Ruben-Morell, Florencio Agustin-Mayor, Augustin Viviano Castro, Alberto Mark and Lorenzo Aros, Defendants-Appellants.

No. 80-3090.

United States Court of Appeals, Fifth Circuit.

Unit A

Aug. 17, 1981.

John M. Lawrence, New Orleans, La., for Bland.

Michael J. Osman, Robert M. Duboff, Miami, Fla., for all other defendants-appellants.

John P. Volz, U.S. Atty., Michael Schatzow, Ronald A. Fonseca, Asst. U.S. Attys., New Orleans, La., for plaintiff-appellee.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before COLEMAN, GARZA and SAM D. JOHNSON, Circuit Judges.

COLEMAN, Circuit Judge.

Robert B. Bland, Inocente Ruben-Morell, Florencio Agustin-Mayor, Augustin Viviano Castro, Alberto Mark, and Lorenzo Aros were all convicted of conspiracy to possess with the intent to distribute 18.1 tons of marijuana in violation of 21 U.S.C., Section 841(a)(1) and 846 (1976). Each defendant received a sentence of five years imprisonment plus a special parole term of fifteen years.

On appeal, all defendants argue that the District Court erred (1) in denying their motions to suppress various pieces of evidence; (2) in denying their motions for judgments of acquittal because of insufficient evidence that they knowingly and intentionally participated in the conspiracy to possess and distribute; and (3) in adding a special parole term upon the sentence of each defendant. Bland also raises the refusal of the trial court to give certain requested jury instructions.

We affirm the convictions of Bland and Mayor, but for the insufficiency of the evidence we reverse the convictions of the other defendants. The government concedes, and we agree, that a special parole term for conspiracy is unauthorized. The District Court will strike the special parole term from the sentences imposed on Bland and Mayor.

I The Facts

In February, 1979, Leo Richardson, a New Orleans marine broker, was retained by Alberto Martin (of Overseas Marine Sales Limited, Inc., (OMSL), a Florida company, to assist in finding a tugboat and a barge of specific dimensions. Richardson found acceptable vessels and they were purchased. The name of the tug was the "Dixie Rover", later changed to the "Nautilus". Richardson assisted OMSL several other times that year. According to Richardson, he was not expecting any OMSL employee or representative to call him or come to see him in September, 1979, but he also said that it would not be unusual for clients to contact him unexpectedly for assistance, including assistance in repairing vessels. Richardson had not seen any of the defendants before the trial.

On July 12, 1979, defendant Robert Bland and one Bill Good signed a contract to purchase a house and a boathouse from Tatiana Farmer and her husband on Bayou Lacombe. The real purchase price was $255,000, named in the purchase agreement as $185,000. Mrs. Farmer received the extra $70,000 in cash on the day the agreement was signed. The actual transfer of the title was not to take place until October 15, but Mrs. Farmer was to vacate the premises by July 25. On the day she moved out Mrs. Farmer observed an 18-wheel tractor trailer rig parked near the workshop on the property with the words "Institutional Foods Gretna" lettered on the side. According to records of the Louisiana Secretary of State, Robert Bland was one of the incorporators of Southern Institutional Food Sales and Service, Inc.

Two or three days later, Mrs. Farmer was back on the property and observed that the trailer had been moved to a position near some magnolia trees which had been trimmed to a height of about 18 feet above the ground. A work crew of Latin-appearing males, with whom she conversed primarily in Spanish, was painting the house a bright yellow, painting the pool, and otherwise renovating the house. During the painting process, the roof was oversprayed, that is, the yellow paint extended about two feet up onto the roof shingles. Except for Bland, Mrs. Farmer had never seen any of the defendants before trial.

Sometime in August, 1979, Bland mentioned to a business acquaintance, Pedro Reynosa, that he needed someone to work on his boat. Earlier, a relative of Reynosa's, Mrs. Lorenzo Aros, had said that her husband needed a job. Reynosa passed Bland's telephone number along to Aros, and Aros contacted Bland. Aros then called Reynosa to tell him that if he was hired by Bland, he would visit Reynosa in New Orleans. The government introduced into evidence a registration card from the Fountain Bay Club Hotel in New Orleans signed by a Lorenzo Aros who listed his address as Miami. The arrival date was September 6, although no year was given, and the room assigned to him was number 659.

In late August, United States customs agents received information that a yacht, or yachts, including the "Summer Madness", would rendezvous with a "mother ship" in the Gulf of Mexico, off-load 55 tons of marijuana, and bring it back to a Bayou Lacombe, Louisiana shipyard. On September 2, 1979, customs agents began surveillance of the "Summer Madness" which was docked about 75 yards from Schubert's Marine Service on a canal leading to Lake Pontchartrain. On the morning of Saturday, September 8, the boat was brought to Schubert's, where it took on approximately 450 gallons of diesel fuel, 12 quarts of motor oil, 2 quarts of transmission fluid, and four bags of ice. Schubert's manager testified that the yacht had trouble docking; Bland told him that he was having clutch trouble, and the dock boy added some motor oil.

The mechanic who normally worked on the "Summer Madness" and who had been qualified as an expert on marine clutch assemblies, testified that, when checked in early August, the "Summer Madness" clutch assembly was leaking oil and, as a result, was dragging and refusing to go into gear; if enough oil was added, the engine would go back into gear. The mechanic told Bland that the clutch would last out the season if the oil level was carefully monitored.

According to Gary Lewis Baker, a friend of Bland's, who was purchasing agent for a hotel which bought 50-60% of its produce from Bland's company, Bland had invited him to go fishing that weekend. He arrived at Bland's boat Saturday and went with Bland to have it fueled at Schubert's. He testified that Bland had trouble with the clutch that day because the oil level was low; once oil was added, the clutch began functioning again. However, Baker did not go on the trip as planned and left the boat after an hour and half; he testified that he really couldn't remember why he didn't go but thought that it was because of a date with his girlfriend on Saturday night. He did not see Aros on the boat that morning, but another man, Mike Grendella, was on the boat.

That afternoon, the "Summer Madness" moved out toward the Gulf of Mexico. At this point, Bland began his voyage to federal prison. The vessel proceeded down the New Basin Canal, into Lake Pontchartrain, the Harbor Navigational Canal, and then into the Mississippi River Gulf Outlet (Gulf Outlet). The "Summer Madness" was being watched by customs agents, using both planes and boats. One customs pilot testified that the "Summer Madness" appeared to be traveling 20-22 knots in a southeasterly direction down the Gulf Outlet and then entered the Breton Sound area of the Gulf of Mexico. It met a tugboat and a barge (a barge-tow) heading in. The yacht swerved to the left in a 15 degree turn and approached the barge-tow. It then continued outbound into the Gulf. Around 7 P.M. that evening, the "Summer Madness", now at a point approximately 52 nautical miles due south of Gulfport, Mississippi, came upon the tug "Nautilus", which was on a heading 180 degrees away from New Orleans. The vessels came within 100 feet of each other. The "Summer Madness" then turned and began heading back toward New Orleans. The "Nautilus" changed course and likewise began heading northwesterly toward New Orleans, behind the "Summer Madness". No radio communications between the two vessels were intercepted, nor was any other activity or communication between the two vessels observed.

The vessels proceeded in the same formation back across the Gulf and into the Gulf Outlet. When darkness fell, the vessels displayed all proper running lights. They continued on up the Outlet until they reached the head of the Industrial Canal. The speed of the vessels varied from 5-10 knots; the distance between them varied from 1/4 to 1/2 mile. There was moderate traffic on the Canal.

Between 4 and 4:30 A.M. Sunday morning, both the "Summer Madness" and the "Nautilus" went dead in the water, with the yacht ahead of the tug. The tug was trying to switch from pulling its barge to pushing it before entering the narrow Industrial Canal. This was a difficult but not unusual procedure because it gives the tug more control of the barge in narrow passages. While dead in the water, the vessels were being watched by nine customs patrol officers in two custom boats. These officers decided to board and search both vessels at about 4:50 A.M. At all times prior to the boarding, no radio communication between the vessels had been intercepted nor was any other contact or activity observed on the vessels.

When the officers requested permission to board the "Summer Madness", Bland complied. Immediately prior to boarding, Bland and Aros were observed on the boat's flying deck, a position used for navigation and steering. Bland and Aros adequately identified themselves and produced the required documentation for the vessel. At trial, defense attorneys argued from the testimony concerning the yacht's clutch problems that the "Summer Madness" had simply stopped to add more oil.

At the same time, another group of customs patrol officers boarded the "Nautilus" barge. As they walked across it, none of them noticed any odor of marijuana....