U.S. v. Doe

• Decision Date: 03 August 1990
• Docket Number: No. 88-1864,88-1864
• Citation: 921 F.2d 340
• Parties: UNITED STATES of America, Appellee, v. John DOE, a/k/a, James Singleton, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 340

921 F.2d 340

UNITED STATES of America, Appellee, v. John DOE, a/k/a, James Singleton, Defendant, Appellant.

No. 88-1864.

United States Court of Appeals First Circuit.

Heard Aug. 3, 1990.

Decided Dec. 13, 1990.

Barbara A.H. Smith, by Appointment of the Court, with whom Quinlan, Dee & Smith, Boston, Mass., was on brief, for appellant.

Jose A. Quiles, Asst. U.S. Atty., with whom Carlos A. Perez, Asst. U.S. Atty., and Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., were on brief, for appellee.

Before SELYA and CYR, Circuit, and RE, ^* Judge.

RE, Chief Judge.

Appellant, John Doe, a/k/a James Singleton (Singleton), appeals from a judgment of conviction following a jury trial in the United States District Court for the District of Puerto Rico. Singleton was convicted of aiding and abetting in the possession with the intent to distribute marijuana in violation of 18 U.S.C. Sec. 2 and 46 U.S.C. App. Secs. 1903(a), (c), and (f).

Singleton contends that the district court erred in denying his Rule 29 motion for acquittal because it applied an improper standard to test the sufficiency of the evidence, and, therefore, found sufficient evidence for the case to go to the jury. Singleton further contends that the district court's imposition of a 360-month sentence pursuant to the Sentencing Guidelines was fundamentally unfair.

We hold that the district court applied a correct standard of sufficiency, and that the evidence presented was sufficient to support the jury's verdict of guilty beyond a reasonable doubt. Furthermore, since the court complied with the Sentencing Guidelines, the 360-month sentence is not appealable. Hence, the judgment of the district court is affirmed.

BACKGROUND

In April 1988, an indictment was returned by a federal grand jury in Puerto Rico against Singleton and five others who were arrested while on a ship. They were charged with aiding and abetting each other in the knowing, willful, and intentional possession with the intent to distribute approximately 3,500 pounds of marijuana in violation of 18 U.S.C. Sec. 2, and 46 U.S.C. App. Secs. 1903(a), (c), and (f). Singleton and the five other defendants were tried together before a jury. The jury found three guilty and three not guilty. Only Singleton's appeal is before us.

The testimony at trial revealed that on January 5, 1988, the United States Coast Guard Cutter Dauntless approached a vessel on the high seas off the coast of Cuba. Since the vessel was coming from the direction of Haiti, Ensign Pulver and other officers aboard the Dauntless discussed whether a boarding of the vessel was warranted because of possible immigration law violations. After having sighted the vessel, the Dauntless attempted to establish radio communication on two channels and in three languages. The Dauntless received no reply, and no electronic communication was established. On drawing closer to the vessel, Ensign Pulver saw on the vessel the name Marilyn E and some letters, but he could not see a home port designation or flag.

Ensign Pulver and the boarding party boarded a smaller Coast Guard vessel, and drew closer to the Marilyn E. At a distance of about thirty yards, voice contact was established, and someone on the vessel identified it as being from Jamaica.

Ensign Pulver requested and was given permission to board the Marilyn E. He was told by someone on the Marilyn E that there were seven people on board. This proved to be correct as all seven were arrested, although only six were indicted.

Upon boarding the vessel, Ensign Pulver asked for the certificate of documentation. In response to his request, he was given a bill of sale, which was an improper documentation. The "sweep team" searched the vessel, and Ensign Pulver asked what was in the hold. Willey Gordon, the master of the vessel, replied that there was ice in the hold. Ensign Pulver then requested and was given permission to open the hold. During this time, Singleton's only statement was that he was from the United States.

Upon opening the hold, Ensign Pulver discovered bales up to the top of the hold, and stated that he could tell by the smell that the bales contained marijuana. That the bales contained marijuana was later confirmed by a field test. At trial, other members of the Coast Guard testified that there were 102 bales of marijuana, weighing approximately forty pounds each. Ensign Pulver requested authority from the Commander of the Dauntless to arrest the persons on board the Marilyn E. Since the Coast Guard required the permission of the country of origin to arrest the persons on board the Marilyn E, they were asked if there were flags on board to show a registry. Willey Gordon replied that there were no flags. Singleton stated that he thought that there were flags in the forward section. Two flags were found in the forward section, one yellow and the other a United States flag.

Since the vessel was originally identified by someone on board as being from Jamaica, the Coast Guard requested that Jamaica grant permission for the arrests. While waiting for a reply, the persons on board the vessel slept. After several hours, the Coast Guard received permission from the Jamaican government and the commandant of the Coast Guard to make the arrests. The defendants were thereafter transferred to the Dauntless. The Marilyn E was attached to the Dauntless by a towline, and both vessels proceeded toward Puerto Rico.

The testimony also revealed that the Marilyn E was in disrepair and ill equipped for fishing, or any other kind of long term travel. No fishing gear, refrigeration, ice, or back-up equipment was found on board. The vessel leaked and, indeed, during the trip to Puerto Rico, the Marilyn E sank.

At the close of the government's case, Singleton's motion for dismissal under Rule 29 was denied.

Although Singleton presented no evidence on his own behalf, his attorney examined his co-defendant, Willey Gordon. Gordon testified that Singleton asked him for a ride to the Bahamas because Singleton's girlfriend had destroyed his papers. Gordon told Singleton that he was not going to the Bahamas, but that he was going to "Cape Sol Bank." Gordon also told Singleton that the owner of the boat would have to give permission for Singleton to make the voyage. The owner, according to Gordon, gave permission for Singleton to be on the boat.

At the close of all evidence, Singleton renewed his Rule 29 motion, and the motion was again denied. The jury returned a verdict of guilty for Singleton and two others, and not guilty for the other three defendants.

On appeal, Singleton contends that the district court erred in denying his Rule 29 motion to dismiss for lack of sufficient evidence, and in imposing a 360-month sentence. Since we hold that the district court correctly denied Singleton's motion to dismiss, and that the imposition of the 360-month sentence is not appealable, the decision of the district court is affirmed.

DISCUSSION

1. The Rule 29 Motion for Judgment of Acquittal

Rule 29(a) of the Federal Rules of Criminal Procedure provides that, on motion of a defendant, the court "shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses."

Since Singleton made his Rule 29 motion to dismiss at the close of the government's case-in-chief, and since he renewed the motion at the close of all evidence, we will review all the evidence presented at trial to determine whether it was sufficient to support the jury's verdict of guilty beyond a reasonable doubt. See United States v. Fearn, 589 F.2d 1316, 1321 (7th Cir.1978).

Singleton is charged with aiding and abetting in the possession with the intent to distribute marijuana. In Nye & Nissen v. United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919 (1949), the Supreme Court stated that "[i]n order to aid and abet another to commit a crime it is necessary that a defendant 'in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.' " Id. at 619, 69 S.Ct. at 770 (quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir.1938).

Although the evidence against Singleton is largely circumstantial, the standard to be applied is nonetheless "whether the total evidence, including reasonable inferences, when put together is sufficient to warrant a jury to conclude that defendant is guilty beyond a reasonable doubt." Dirring v. United States, 328 F.2d 512, 515 (1st Cir.), cert. denied, 377 U.S. 1003, 84 S.Ct. 1939, 12 L.Ed.2d 1052 (1964). Indeed, we have specifically stated that "in the context of review of a motion for acquittal, 'no legal distinction exists between circumstantial and direct evidence.' " United States v. Clotida, 892 F.2d 1098, 1104 (1st Cir.1989) (quoting United States v. Sutton, 801 F.2d 1346, 1358 (D.C.Cir.1986)). Furthermore, it is unquestioned that direct evidence need not be presented. Judicial authority teaches that "the government can use circumstantial evidence as long as the evidence, viewed as a whole, is sufficient to warrant a reasonable jury to conclude that the defendant is guilty beyond a reasonable doubt." United States v. Machor, 879 F.2d 945, 948 (1st Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1167, 107 L.Ed.2d 1070 (1990). See also United States v. Glover, 814 F.2d 15, 16 (1st Cir.1987). Finally, "[o]nce a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). See also United States v. Williams, 858 F.2d...