U.S. v. Freeze, 82-2463

• Decision Date: 31 May 1983
• Docket Number: No. 82-2463,82-2463
• Citation: 707 F.2d 132
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald Stancil FREEZE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 132

707 F.2d 132

UNITED STATES of America, Plaintiff-Appellee, v. Ronald Stancil FREEZE, Defendant-Appellant.

No. 82-2463

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

May 31, 1983.

Michael Ramsey, Houston, Tex., for defendant-appellant.

James R. Gough, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before GEE, RANDALL and TATE, Circuit Judges.

RANDALL, Circuit Judge.

The defendant, Ronald Stancil Freeze, claims on appeal that his conviction of possession of marijuana with intent to distribute should be set aside: 1) because the evidence was insufficient to support his conviction; and 2) because he was denied effective assistance of counsel at trial. For the reasons set forth below, we affirm the defendant's conviction without prejudice to his right to pursue his ineffective assistance of counsel claim under 28 U.S.C. Sec. 2255.

I. FACTUAL AND PROCEDURAL BACKGROUND.

At approximately 9:00 a.m. on September 22, 1981, United States Air Customs reported that a Piper Aztec airplane, with the registration number N5905Y, had entered Mexican airspace. On September 23, 1981, Texas Department of Public Safety officials found the abandoned airplane in Bee County, Texas. The plane contained approximately 761 pounds of marijuana.

The officers tried unsuccessfully to take fingerprints from the inside of the plane, but they did obtain prints from two items found in the aircraft--an aeronautical map of the San Antonio area and a yellow sheet of paper that had navigational coordinates written on it. The navigational coordinates led investigators to a homemade airstrip on a ranch near the abandoned plane. The fingerprints turned out to be the defendant's. The defendant was subsequently indicted on one count of knowingly and intentionally possessing approximately 761 pounds of marijuana with intent to distribute it, in violation of 21 U.S.C. Sec. 841(a)(1).

The defendant explained at trial that he was an airplane broker. He testified that about three weeks before the plane was found abandoned, he had taken it to Nayak Aviation in San Antonio for repairs to the fuel injection system, propeller and door. The defendant claimed that the plane had been purchased more than a year before in California by the owner, "Mr. Andrews." A Nueces County Sheriff's department employee testified, however, that the defendant's and Mr. Andrews' signatures had been made by the same person.

The defendant testified that he had met Harold Butts at the plane at around 8:30 a.m. on September 22. Butts had purchased planes from the defendant in the past and the defendant claimed that Butts had informed him that Mr. Andrews wanted Butts to pick up the plane. The defendant apparently then permitted Butts to take the plane and went into the Nayak Aviation comptroller's office to pay the repair bills.

The defendant claimed that after he left the comptroller's office, he returned to Austin, where he had dinner with his daughter. The daughter corroborated his story, although she was vague about where she had been with her father and admitted that he had left her at various times during the day to take care of some errands.

The government called as witnesses two Nayak Aviation employees, who testified that the defendant had given them conflicting stories about the plane's destination. Snell, the service manager, stated that the defendant had telephoned him on September 21, 1981, to urge him to repair the plane quickly because the defendant needed it to take a man to Tulsa, Oklahoma. When Snell returned to work the next morning at approximately 8:00 a.m., the plane was still at the station. Nayak comptroller Hartwig recalled that the defendant had said that he was taking the plane to Houston or Dallas. ¹

The Nayak employees partially corroborated the defendant's testimony about his presence at Nayak Aviation on September 22. Snell had observed two men standing by the plane but had been unable to identify them. Hartwig remembered the defendant's visit but was unable to pinpoint the exact time of their conversation. He estimated that it was some time before 11:30 a.m. because he had taken the defendant's $900 cash payment to the bank at noon. No one at Nayak actually saw the plane take off.

Two government officials testified at the trial about conversations that they had had with the defendant. United States Customs Agent Deatrick had contacted the defendant in November, 1981, about the abandoned airplane. The defendant allegedly told him that he had left the plane at Nayak to be sold. The defendant testified, however, that he had told Deatrick that the plane had already been sold and left at Nayak. The Nayak employees stated that they had not sold airplanes on the premises for five years.

After the defendant had been indicted, he met with Officer Hatcher in the presence of the defendant's attorney. The defendant informed Hatcher that he had brought the plane to Texas to be looked at by prospective buyers. Hatcher testified that the defendant admitted that he had given the plane to Butts to fly and that he had had "an idea" that Butts was going to use the aircraft to transport marijuana. At trial, the defendant attempted to explain this last statement as an idea that had occurred to him in hindsight, after he was made aware that the plane was found with a substantial quantity of marijuana inside it.

Defense counsel did not make a motion for a judgment of acquittal at the close of all of the evidence. The judge instructed the jury that it could convict the defendant if it found him guilty of possession or of aiding and abetting. ² The defendant was found guilty and sentenced to five years in prison and a five-year special parole term. He filed a timely notice of appeal.

II. SUFFICIENCY OF THE EVIDENCE.

The defendant contends that the government did not produce sufficient evidence of possession of the marijuana to support his conviction. Because he did not move for a judgment of acquittal at the close of the evidence, his conviction is reviewed solely for "manifest miscarriage of justice." United States v. Mattox, 689 F.2d 531, 532 (5th Cir.1982); United States v. Doe, 664 F.2d 546, 548 (5th Cir.1981). In reviewing a challenge to the sufficiency of the evidence supporting a criminal conviction, we must consider the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), and we must affirm as long as "a reasonable trier of fact could [have found] that the evidence establishe[d] guilt beyond a reasonable doubt." United States v. Bell, 678 F.2d 547, 549 & n. 3 (5th Cir.) (en banc), cert. granted on other grounds, --- U.S. ----, 103 S.Ct. 444, 74 L.Ed.2d 600 (1982).

To convict someone of possession of contraband with intent to distribute it, in violation of 21 U.S.C. Sec. 841(a)(1), the government must prove beyond a reasonable doubt 1) the defendant's possession of the illegal substance, 2) knowledge, and 3) intent to distribute. The requisite intent may be inferred from the quantity of contraband involved, United States v. Vergara, 687 F.2d 57, 62 (5th Cir.1983), and possession may be actual or constructive. Id.; see also United States v. Dreyfus-de-Campos, 698 F.2d 227, 229 (5th Cir.1983). Constructive possession may be inferred from the ownership, or the exercise of dominion or control of the vehicle in which the contraband is concealed. Dreyfus-de-Campos, supra; United States v. Niver, 689 F.2d 520, 529 (5th Cir.1982).

There was evidence produced at trial from which the jury could have inferred that the defendant owned or exercised control over the airplane. The Nueces County Sheriff's department employee testified that, in his opinion, purported owner Andrews' and the defendant's signatures were made by the same person. If the jury believed the county employee's testimony, then it could have reasonably concluded that the defendant owned the airplane. The defendant himself admitted that he had exercised control over the plane in that he had flown it from California to Texas. See Niver, supra (pilot exercised control of aircraft).

Ownership or control without knowledge, however, will not support a conviction for possession of contraband. United States v. Gonzalez, 703 F.2d 807 (5th Cir.1983). In Gonzalez, we reversed the defendant's conspiracy and possession convictions where three hours had intervened between the defendant's presence in his empty van and its abandonment when it was loaded with drugs. We were convinced that "too many innocent scenarios jibe[d] with the sparse record facts connecting Gonzalez to the drug," to permit a jury properly to conclude that the defendant was guilty beyond a reasonable doubt. Id. at 808.

There is more evidence in this case connecting the defendant to the marijuana than there was in Gonzalez. The defendant's fingerprints were found on a sheet of paper that had coordinates written on it leading to a homemade airstrip near the abandoned plane. The coordinates were not published. While the defendant claimed that he had used the coordinates to test the plane's radio equipment during an earlier flight, a pilot, who testified for the government, effectively refuted the defendant's story. The pilot explained that specific coordinates are published for testing radio equipment and a test relying on unpublished coordinates would not have been useful. 4 Record at 45. The jury could reasonably have inferred that the defendant's use of these coordinates and their connection to the probable plane landing site for Butts' cargo was more than mere coincidence.

A number of witnesses also testified that the defendant gave conflicting stories about the plane's destination: he told Snell that he was planning to fly to Oklahoma, but he told Hartwig that he was bound for Houston or Dallas. If the defendant had merely intended to hand...