U.S. v. Brantley

Decision Date23 May 1984
Docket NumberNo. 82-8270,82-8270
Parties15 Fed. R. Evid. Serv. 1353 UNITED STATES of America, Plaintiff-Appellee, v. Samuel BRANTLEY, a/k/a "Pee Wee", Clifford Washington, Richard David Blackston, Alfred R. Canas, a/k/a "Sonny", James Murray, Carroll Barrett Zeigler, Defendants-Appellants.
CourtU.S. Court of Appeals — Eleventh Circuit

Davis Cohen, Federal Public Defender, Savannah, Ga., for Brantley and Washington.

Joel D. Bailey, Beaufort, S.C., for Blackston.

James H. Moss, Beaufort, S.C., for Canas.

Clyde M. Taylor, Jr., Tallahassee, Fla., for Zeigler.

Martin S. Jackel, court appointed, Savannah, Ga., for James Murray.

Melissa S. Mundell, Asst. U.S. Atty., Savannah, Ga., Sara Criscitelli, Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Georgia.

Before ANDERSON and CLARK, Circuit Judges, and DUMBAULD *, District Judge.

R. LANIER ANDERSON, III, Circuit Judge:

Appellants Richard David Blackston, Samuel Brantley, Alfred Canas, James Murray, Clifford Washington, and Carroll Barrett Zeigler were indicted for various violations of the Comprehensive Drug Abuse Prevention and Control Act of 1970. 21 U.S.C.A. Sec. 801 et seq. (West 1981). 1 After a jury trial in the United States District Court for the Southern District of Georgia, Washington, Brantley, Murray, Zeigler, and Blackston were convicted of possession of marijuana with intent to distribute (Count V); Blackston and Zeigler were additionally convicted of conspiracy to possess marijuana with intent to distribute (Count III); Canas and Blackston were convicted of conspiracy to import marijuana (Count II); and Blackston was convicted of engaging in a continuing criminal enterprise (Count I). Appellants raise numerous contentions on appeal. After careful consideration of these arguments, we affirm the convictions of all appellants except Murray and Blackston. We conditionally affirm Murray's conviction, subject to the outcome of a hearing on remand. We affirm Blackston's convictions on Counts I and V, but vacate his convictions and sentences on Counts II and III.

I. FACTS

Between August 1980 and September 1981, appellant Richard David Blackston organized a series of ventures to smuggle marijuana into the United States. The activities generally originated in Savannah, Georgia, and the surrounding area, including the fishing community of Thunderbolt. Typically Blackston would arrange for shrimp boats to go to Colombia, South America, and take on multi-ton cargos of marijuana. The boats would then either rendezvous near the Bahamas with offloading boats destined for the United States, or return directly to the United States and be offloaded in a harbor in Frogmore, South Carolina.

In August 1980 Blackston arranged for co-indictee William Welch to take Welch's boat, the "Miss Mary," to Colombia to pick up marijuana and transport it to the Bahamas for offloading. Blackston enlisted appellant Alfred "Sonny" Canas to serve as base radio operator, in charge of communications with the boat. He also hired Frank Senior to serve as a crew member. 2 The "Miss Mary" sailed to Colombia in September 1980, took on 10 tons of marijuana, and then proceeded to the Bahamas to offload onto smaller boats that would transport the marijuana to the United States. While the "Miss Mary" awaited rendezvous with the smaller boats, however, the Coast Guard spotted the ship, and the crew dumped the marijuana overboard. The Coast Guard subsequently boarded the "Miss Mary," but found no evidence of marijuana.

In October 1980 Blackston arranged another trip to Colombia, this time on the "Lady Lynn," a shrimper owned by appellant Carroll Barrett Zeigler. Blackston paid Zeigler $4,000 for the use of the boat. Blackston hired Welch to captain the boat and Canas to serve again as base radio operator. The "Lady Lynn" took on 40,000 pounds of marijuana in Colombia and offloaded 96 bales onto smaller boats near the Bahamas, which then headed in the general direction of Florida. The crew of the "Lady Lynn" dumped the rest of the marijuana overboard and returned to the United States.

In May 1981 the shrimper "Lady Lynn" made a second trip to Colombia. Again Welch served as captain. Blackston provided money for the boat's supplies and served as base radio operator. After the "Lady Lynn" took on a load of marijuana in Colombia, it was stopped and boarded by the Coast Guard 50 miles off the coast of Colombia. The Coast Guard arrested the crew members and seized the ship. 3

During this period, Blackston was busy managing other drug smuggling ventures as well. In December 1980 Blackston supervised the unloading of an unidentified boat that brought a load of marijuana to Frogmore, South Carolina. The marijuana was stored in a stash house in Frogmore. Blackston wholesaled the marijuana from that location. In January 1981 Blackston arranged to move the marijuana to Chatham County, Georgia. Appellant Zeigler and Michael Feltovic, a co-indictee who pled guilty and testified at trial pursuant to a plea agreement, drove a truckload of 9,840 pounds of marijuana to a location near Zeigler's father's house in Chatham County. In February 1981 Blackston arranged to move this marijuana from Chatham County to Effingham County, Georgia. This move was less successful; during the course of it state undercover agents arrested several conspirators, including Zeigler. 4

Also in January 1981, Blackston arranged for the shrimp boat, the "Jeanette Murray," to bring a load of marijuana into the United States. Blackston gave appellant James Murray, owner of the boat, $50,000 to get the "Jeanette Murray" ready for the marijuana run. Murray hired an unindicted coconspirator to serve as crew member for $50,000 and gave him a $2,000 downpayment. Blackston hired appellant Clifford Washington to captain the boat, promising him $50,000. Appellant Samuel Brantley was the navigator, and Clarence Outler helped ready the boat for the run. 5

Washington guided the "Jeanette Murray" from Thunderbolt, Georgia, to a point near the Anguilla Banks, where they picked up 510 bales of marijuana from a fishing boat. The "Jeanette Murray" proceeded to Frogmore, South Carolina, where the marijuana was unloaded. Appellant Zeigler helped unload and then took one truckload of the marijuana to Savannah. Washington and Brantley returned the "Jeanette Murray" to Georgia, after completely ridding it of any marijuana residue. 6

II. VENUE

Appellants Washington and Brantley claim that the government failed to prove that the offense charged in Count V, possession of marijuana with intent to distribute, took place in the Southern District of Georgia.

Criminal defendants have a constitutional right to be tried in the state and district in which the crime was committed. United States v. Males, 715 F.2d 568, 596 (11th Cir.1983). In reviewing an improper venue claim, this court must determine "whether, viewing the evidence in the light most favorable to the government and making all reasonable inferences and credibility choices in favor of the jury verdict ... the Government proved by a preponderance of the evidence" that the offense took place within the trial district. United States v. White, 611 F.2d 531, 535 (5th Cir.), cert. denied, 446 U.S. 992, 100 S.Ct. 2978, 64 L.Ed.2d 849 (1980). 7 "[T]here need not be direct proof of venue where circumstantial evidence in the record as a whole supports the inference that the crime was committed in the district where venue was laid." United States v. Turner, 586 F.2d 395, 397 (5th Cir.1978), cert. denied, 440 U.S. 926, 99 S.Ct. 1258, 59 L.Ed.2d 480 (1979).

Count V was based on violations of 21 U.S.C.A. Sec. 841(a)(1) (West 1981), which prohibits possession of a controlled substance with intent to distribute, and 18 U.S.C.A. Sec. 2 (West 1969), which provides that "[w]hoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal." Sufficient evidence of either (a) actual or constructive possession or (b) the aiding and abetting of another's actual or constructive possession could therefore support a conviction under this count.

An aider or abettor may be tried in the district in which the principal committed the offense. United States v. Kibler, 667 F.2d 452, 455 (4th Cir.), cert. denied, 456 U.S. 961, 102 S.Ct. 2037, 72 L.Ed.2d 485 (1982); United States v. Buckhanon, 505 F.2d 1079, 1083 (8th Cir.1974); United States v. Jackson, 482 F.2d 1167, 1178-79 (10th Cir.1973), cert. denied, 414 U.S. 1159, 94 S.Ct. 918, 39 L.Ed.2d 111 (1974); United States v. Kilpatrick, 458 F.2d 864, 868 (7th Cir.1972); United States v. Bozza, 365 F.2d 206, 221 (2d Cir.1966). Therefore, as appellants concede, if there was adequate proof that Brantley and Washington aided and abetted another's actual or constructive possession in the Southern District of Georgia, venue was proper as to them under Count V.

An aiding and abetting offense occurs when a defendant "assist[s] the perpetrator of the crime while sharing in the requisite criminal intent." United States v. Martinez, 555 F.2d 1269, 1271 (5th Cir.1977). Aiding and abetting has two components: " '[a]n act on the part of a defendant which contributes to the execution of a crime and the intent to aid its commission.' " United States v. Smith, 546 F.2d 1275, 1284 (5th Cir.1977) (quoting United States v. Greer, 467 F.2d 1064, 1069 (7th Cir.1972), cert. denied, 410 U.S. 929, 93 S.Ct. 1364, 35 L.Ed.2d 590 (1973)). See United States v. Phillips, 664 F.2d 971, 1010 (5th Cir.1981) (Unit B), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982). "[I]n the context of a prosecution for aiding and abetting the possession of [marijuana] with intent to distribute, the government 'must introduce evidence connecting defendant with both aspects of the crime, possession and intent to...

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