U.S. v. Cruz-Valdez, CRUZ-VALDE

• Decision Date: 16 October 1984
• Docket Number: CRUZ-VALDE,No. 82-5310,R,82-5310
• Citation: 743 F.2d 1547
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pedrouben Martin-Gonzalez and Manuel Fortunado Ariza-Fuentes, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1547

743 F.2d 1547

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

Fortunado Ariza-Fuentes, Defendants-Appellants.

No. 82-5310.

United States Court of Appeals, Eleventh Circuit.

Oct. 16, 1984.

Rehearing En Banc Granted Jan. 30, 1985. ^*

McMaster & Forman, P.A., James D. McMaster, Miami, Fla., for Cruz-valdez.

Linda L. Carroll, Miami, Fla., for Martin-Gonzalez.

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

Stanley Marcus, U.S. Atty., 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 TJOFLAT and CLARK, Circuit Judges, and GOLDBERG ^*, Senior Circuit Judge.

CLARK, Circuit Judge:

Appellants Pedro Cruz-Valdez, Ruben Martin-Gonzalez and Manuel Ariza-Fuentes were charged in a two-count indictment with conspiracy to possess with intent to distribute in excess of 1,000 pounds of marijuana in violation of 21 U.S.C. Sec. 846 (Count I) and possession with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2 (Count II). They were arrested when the U.S. Coast Guard boarded their vessel on October 23, 1981 and discovered its cargo of marijuana. All defendants were subsequently convicted on both counts. Four issues have been raised on appeal. All appellants contend that there was insufficient evidence to support their convictions and that there was an error in the jury instructions regarding reasonable doubt. In addition, Martin-Gonzalez and Cruz-Valdez argue that the government failed to prove jurisdiction and venue and that since their vessel was seized outside territorial waters they were improperly indicted and convicted under 21 U.S.C. Secs. 841 and 846. ¹

The appellants were arrested when Coast Guard officers boarded their vessel anchored nine to ten miles west-northwest of Key West. The Coast Guard officers had been patrolling in the Smith Shoals area and noticed the shrimping vessel anchored but not fishing. The officers noted that a name "Miss Tia" was affixed to the stern of the board on a piece of plywood and that it did not display a flag. Petty Officer Politis boarded the vessel to insure compliance with all federal regulations. Once on board, he discovered the appellants and the captain of the boat. ² When the captain failed to produce the proper documents, Officer Politis searched for the vessel's main beam number and upon opening the cargo hatch discovered the marijuana. Officer Politis noted that the fishing gear of the boat was rusted and appeared unusable. No signs that the vessel had been shrimping were found aboard.

After the appellants were transported to Key West, they were separately interviewed by Mary Martin, an immigration inspector. Martin asked each of the appellants a series of questions including ones about the circumstances of their voyage. Aside from the testimony of the Coast Guard boarding officer and that of a DEA agent who supervised the removal of the marijuana from the boat, the government's case rested upon Martin's testimony about the answers give by the appellants to her question.

Sufficiency of the Evidence

In challenging the sufficiency of the evidence, the defendants argue that the government only established their presence aboard the 68-foot vessel with marijuana in its cargo hold. Each appellant contends that his admissions regarding his role in the voyage, without further evidence by the government, fails to prove conspiracy or possession with intent to distribute.

In assessing these claims, this court must view the evidence in the light most favorable to the government, taking all inferences in its favor. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704 (1942). Our review is limited to determining whether a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt. United States v. Bell, 678 F.2d 547, 548 (5th Cir. Unit B 1982) (en banc).

United States v. Alfrey, 620 F.2d 551, 556 (5th Cir.1980), established that a permissible inference of guilt regarding conspiracy with intent to distribute and possession of marijuana could be inferred from the length of the voyage, the large quantity of marijuana aboard the ship and the necessarily close relationship between the captain and the crew. Presence aboard a ship during a long voyage would imply that crewmembers knew how the marijuana was taken on and where it was to be delivered. United States v. Munoz, 692 F.2d 116, 118 (11th Cir.1982). If there was a large quantity of marijuana, the sheer bulk of the drug and its smell would normally make it impossible for crewmen to be unaware of the ship's cargo. United States v. Ceballos, 706 F.2d 1198, 1202 (11th Cir.1983); United States v. Stuart-Caballero, 686 F.2d 890, 893 (11th Cir.1982). Evidence revealing a close relationship between the captain and the crew, often inferable from the length of the voyage and the size of the ship, would make it highly unlikely that the crew was unaware of the purpose behind the voyage. The presence of all three factors would indicate that the individuals found aboard a vessel had knowledge of the cargo and the criminal nature of the voyage.

To support the inference of guilt, courts have found additional facts to confirm that the defendant had knowledge of and participated in drug smuggling. Statements made by the individual himself, United States v. DeWeese, 632 F.2d 1267 (5th Cir.1980), proof that the person was a member of the crew rather than a mere passenger, United States v. Munoz, 692 F.2d at 118, and suspicious activity by those aboard the vessel when approached by the Coast Guard, United States v. Alfrey, 620 F.2d at 553-56, have added support for the drawing of the inference.

Applying the Alfrey criteria and searching for additional supporting facts here leads us to conclude that there was sufficient evidence to convict Cruz-Valdez and Martin-Gonzalez. Both men admitted to joining the "Miss Tia" in Florida for the trip to Colombia and having been at sea for fifty days. They described themselves as crewmembers. Although both denied participating in the loading of marijuana, they did tell Inspector Martin that they knew what the cargo was. Cruz-Valdez also informed Martin that he knew that the ultimate destination of the boat was Key West. Martin-Gonzalez and Cruz-Valdez had been at sea for a long time, they knew about the large quantity of marijuana stored in the cargo hold and they necessarily had a close relationship with the captain. What makes the case against them is that they confessed, through their discussion with Inspector Martin, to most of the details that established guilt of the two offenses.

The case against Ariza-Fuentes, however, stands in a different posture. Ariza-Fuentes made several statements to Inspector Martin which were exculpatory in nature. Although he described himself as a crewman, Ariza-Fuentes also told the immigration inspector that his normal job was that of a taxi driver and this voyage was his first. Ariza-Fuentes also said that he did not discover what the cargo of the vessel was until they had been at sea for three or four days. He told Martin that he boarded the ship in Los Muchiquitos, Colombia and that he did not know when or where the cargo was loaded.

The government argues that these are false exculpatory statements. The government primarily argues that the condition of the fishing equipment and the fact that there was no evidence of fishing activity would have made it impossible for the appellant to be unaware of the true nature of the ship's voyage. The question of when Ariza-Fuentes knew about the cargo was simply a jury question. The fact that the jury found Ariza-Fuentes guilty indicates that they found his story about being a crewman, while not knowing of the cargo or the destination of the ship, unbelievable. In response, appellant argues that it is just as likely that he joined the ship to go to America as it is that he joined in a drug smuggling conspiracy.

In order to prove a criminal conspiracy, the government must present direct or circumstantial evidence of an agreement among the conspirators to commit the offense. There must be proof beyond a reasonable doubt that the conspiracy existed, that the accused knew of it, and that he intended to join or associate himself with it. United States v. Malatesta, 590 F.2d 1379, 1381 (5th Cir.1979) (en banc). Ariza-Fuentes joined the ship late in its voyage and told the immigration inspector that the ship left Columbia from the point where he boarded the ship. There was no evidence, therefore, that he knew from the ship's previous course the purpose of the voyage.

The government never offered any evidence to show that Ariza-Fuentes must have known the purpose of the voyage and that the hold contained marijuana. There was no evidence that the presence of the large quantity of marijuana would have been apparent to someone boarding the vessel. Instead, the evidence before the jury was that the hatch to the hold was closed and that there was no odor of marijuana. The government also introduced no evidence about where the cargo was loaded in Colombia which might have indicated that Ariza-Fuentes knew about the marijuana before the ship was well out to sea. The paucity of evidence relating to whether Ariza-Fuentes was on a long voyage and knew about the ship's cargo weakens the case against him. This in turn made it hard for the government to offer evidence concerning the third Alfrey factor. The close relationship between the captain and crew can normally be inferred from the length of the voyage and the quantity of marijuana, but Ariza-Fuentes stands apart from the other appellants on precisely these issues. It is also difficult to find additional facts which would show guilt....