U.S. v. Cruz-Valdez

• Decision Date: 18 October 1985
• Docket Number: No. 82-5310,R,CRUZ-VALDE,82-5310
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pedroeuben Martin-Gonzalez and Manuel Fortunado Ariza-Fuentes, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1541

773 F.2d 1541

UNITED STATES of America, Plaintiff-Appellee, v. Pedro CRUZ-VALDEZ, Reuben Martin-Gonzalez and Manuel

Fortunado Ariza-Fuentes, Defendants-Appellants.

No. 82-5310.

United States Court of Appeals, Eleventh Circuit.

Oct. 18, 1985.

McMaster & Forman, P.A., James D. McMaster (court appointed), Miami, Fla., for Cruz-Valdez.

Linda L. Carroll (court appointed), Miami, Fla., for Martin-Gonzalez.

Margaret E. Retter, Asst. Federal Public Defender, Robyn J. Hermann, Deputy Federal Public Defender, Miami, Fla., for Ariza-Fuentes.

Robert J. Bondi, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee.

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

Before GODBOLD, Chief Judge, and RONEY, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HENDERSON, HATCHETT, ANDERSON and CLARK, Circuit Judges.

VANCE, Circuit Judge:

We accepted this appeal for en banc consideration in order to clarify the standards determining sufficiency of the evidence in cases where the primary evidence supporting a defendant's conviction is his presence aboard a vessel containing large quantities of marijuana.

I

On October 23, 1981, a Coast Guard vessel was patrolling the waters approximately ten miles northwest of Key West, Florida, in search of vessels transporting marijuana, when it spotted a 68-foot long shrimp trawler anchored but not fishing. On closer inspection, the Coast Guardsmen noted that the name "Miss Tia" was displayed on a quarter-inch plywood board tacked to the stern of the boat. The placement of the name in this manner is a Coast Guard violation. The shrimp trawler was flying no flag. On boarding the vessel the Coast Guardsmen found the three appellants, Pedro Cruz-Valdez, Reuben Martin-Gonzalez, and Manuel Fortunado Ariza-Fuentes, and a fourth man who identified himself as the captain but could not produce any documents. ¹ The Coast Guardsmen then commenced inspecting the vessel. They found that it was equipped with fishing gear but that the gear was rusted and could not be used. The winches on each side of the vessel that are used to drop nets in the water were inoperable. Both were rusty and one was severely damaged. The vessel did not appear to be engaged in shrimping. It had no ice, fish or shrimp in the hold. The Coast Guardsmen opened an unlocked hatch and found 220 bales of marijuana in the hold. One bale weighed 43 pounds. All of the appellants were in the one main cabin of the vessel where the living quarters and galley were located. When the marijuana was discovered the persons aboard were arrested and the vessel was taken into port.

An immigration inspector then interviewed the appellants to ascertain their admissibility to the United States. During Ariza-Fuentes' interview, he informed the inspector that his permanent address was in Colombia, that he had joined the vessel about ten days previously in Colombia as a crewman, that this was his first time as a crewman, and that his normal job was as a taxi driver. Ariza-Fuentes stated further that he found out what the cargo was about three or four days after they left Colombia. He said that he did not know when it had been loaded, that they had not visited any ports along the way, and that he did not know the destination of the vessel.

The appellants were convicted in district court of conspiracy to possess with intent to distribute in excess of 1,000 pounds of marijuana in violation of 21 U.S.C. Sec. 846 and possession with intent to distribute in excess of 1,000 pounds of marijuana in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. A panel of this court, 743 F.2d 1547, affirmed the convictions of Cruz-Valdez and Martin-Gonzalez but, with one judge dissenting, reversed the conviction of Ariza-Fuentes on the ground that the evidence against him was insufficient. This court granted the government's suggestion for en banc reconsideration of the panel's reversal of Ariza-Fuentes' conviction.

II

Ariza-Fuentes' argument before this court is that his "mere presence" aboard the vessel was insufficient to sustain his conviction. Citing United States v. Bulman, 667 F.2d 1374 (11th Cir.1982); United States v. Hernandez, 668 F.2d 824 (5th Cir. Unit B 1982); United States v. MacPherson, 664 F.2d 69 (5th Cir.1981); United States v. Willis, 646 F.2d 189 (5th Cir.1981); and United States v. Rojas, 537 F.2d 216 (5th Cir.1976), cert. denied, 429 U.S. 1061, 97 S.Ct. 785, 50 L.Ed.2d 777 (1977), he points out that this court has frequently affirmed that the mere presence of a defendant at a place where contraband is discovered is not sufficient to establish guilt.

Our consideration of his claim begins with the basic principles. We view the evidence in the light most favorable to the government, with all reasonable inferences drawn in favor of the jury's verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). For Ariza-Fuentes to be convicted of the conspiracy charged, the government was required to prove beyond a reasonable doubt the existence of a conspiracy, his knowing participation in it and his criminal intent. United States v. Malatesta, 590 F.2d 1379, 1381 (5th Cir.) (en banc), cert. denied, 444 U.S. 846, 100 S.Ct. 91, 62 L.Ed.2d 59 (1979). As for the substantive count, the government's burden was to prove beyond a reasonable doubt that he knowingly possessed the marijuana, either actually or constructively, and that he intended to distribute it. United States v. Littrell, 574 F.2d 828, 835 (5th Cir.1978). Because the presence of the large quantity of marijuana was clear and uncontested, the proof required to establish the existence of a conspiracy and Ariza-Fuentes' participation in it would also suffice to prove his possession of the marijuana. Ariza-Fuentes does not claim that there was no conspiracy. Rather, he claims that the evidence was legally insufficient to support the jury's conclusion that he was a knowing participant.

We reject his sufficiency claim for two reasons. First, in relying on cases that predate United States v. Bell, 678 F.2d 547 (5th Cir. Unit B 1982), aff'd on other grounds, 462 U.S. 356, 103 S.Ct 2398, 76 L.Ed.2d 638 (1983), it rests on a misconstruction of the proper standard of review for sufficiency of the evidence. Prior to Bell, the test for sufficiency of the evidence was "whether reasonable jurors could find the evidence inconsistent with every hypothesis of innocence." Rojas, 537 F.2d at 220. See Bell, 678 F.2d at 549 n. 3. In Bell we specifically held, however, that "[i]t is not necessary that the evidence exclude every reasonable hypothesis of innocence.... A jury is free to choose among reasonable constructions of the evidence." Id. at 549. Since the mere presence contention must now be considered in light of the modified standard, the analysis supplied by pre-Bell cases is not controlling. See United States v. Pintado, 715 F.2d 1501 (11th Cir.1983); United States v. Blasco, 702 F.2d 1315 (11th Cir.1983). Arguments setting forth a reasonable hypothesis of innocence are properly presented to the jury, but the existence of such a hypothesis no longer compels an acquittal. Here, the evidence was such that a reasonable trier of fact could find that it established guilt beyond a reasonable doubt.

Second, the facts of this case are such that under any standard applied by this court the evidence was sufficient to support a conviction. "[P]articipation in a conspiracy need not be proved by direct evidence; a common purpose and plan may be inferred from a 'development and collocation of circumstances.' " Malatesta, 590 F.2d at 1381 (citing Glasser, 315 U.S. at 80, 62 S.Ct. at 469). The totality of the evidence in true "mere presence" cases is much less substantial than the evidence in cases such as the one now before the court. Occasionally, as in Willis, the prosecution through either oversight or lack of its availability produces no evidence against a given defendant except that he was present when contraband was discovered. In most cases including this one, however, the evidence establishes not mere presence but presence under a particular set of circumstances. In such a case the task of determining the sufficiency of the evidence is not aided by the ritualistic invocation of the "mere presence" rubric. Rather, it requires an examination of all of the proved circumstances, including presence, to determine whether from them a reasonable jury could infer and find beyond a reasonable doubt knowing and intentional participation.

Recognizing this reality, cases in this circuit have established some guidelines for evaluating the sufficiency of the evidence in cases reflecting the fact pattern before us. Those most frequently relied on are United States v. Alfrey, 620 F.2d 551 (5th Cir.), cert. denied, 449 U.S. 938, 101 S.Ct. 337, 66 L.Ed.2d 160 (1980); and United States v DeWeese, 632 F.2d 1267 (5th Cir.1980), cert. denied, 454 U.S. 878, 102 S.Ct. 358, 70 L.Ed.2d 188 (1981). In considering one appellant's "mere presence" argument the Alfrey panel recognized at the outset that a crew member on a small marijuana laden vessel on a long voyage was in a very different position from a passenger in a marijuana bearing automobile on land. It identified some of the factors on which the inference of guilt could rest:

In this case the probable length of the voyage, inferable from the proximity of the border and the documentary evidence, the large quantity of marijuana on board, which made it indisputable that Alfrey and Haight had knowledge of the marijuana, and the necessarily close relationship between the captain of the trawler and his two man crew were factors from which the jury could reasonably find guilt beyond a reasonable doubt.

Alfrey, 620 F.2d at 556. The three identical factors were found in DeWeese to support a finding of guilt beyond a reasonable doubt. Id., 632 F.2d at 1272. Later cases have clarified the test supplied in Alfrey...