U.S. v. Lopez-Llerena, LOPEZ-LLEREN
| Decision Date | 16 December 1983 |
| Docket Number | No. 82-5916,LOPEZ-LLEREN,F,82-5916 |
| Citation | 721 F.2d 311 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Albertoelix Parra, Jose Borges, Jose Delfin Mule Vasquez, Lazaro Curuz, Jr., Hector Theodore Valdes, Fausto Manuel Sanchez, Raul Pinera, Carlos Oliver-Chirino, and Jose Luis Marino, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Appeals from the United States District Court for the Southern District of Florida.
ON PETITIONS FOR REHEARING
(Opinion August 30, 1983, 11th Cir., 1983, 721 F.2d 311).
Before FAY and KRAVITCH, Circuit Judges, and ATKINS *, District Judge.
A panel of this court affirmed the appellants' convictions pursuant to Circuit Rule 25, United States v. Blasco, 702 F.2d 1315 (11th Cir.1983). The appellants have filed a petition for rehearing and a suggestion for rehearing en banc, contending that the affirmance of their convictions is in conflict with this court's subsequent decision in United States v. Pintado, 715 F.2d 1501 (11th Cir.1983). We disagree and deny the petition for rehearing.
Like the appellants in this appeal, the defendants in Blasco and Pintado challenged the sufficiency of the evidence for their convictions under 21 U.S.C. Sec. 846 of conspiracy to possess marijuana with intent to distribute. Both Blasco and Pintado were decided on the principle that although presence and flight alone are insufficient to establish that the defendant was a member of the drug conspiracy, a reviewing court must consider the totality of the circumstances, including the facts of presence and flight, to determine "if there is substantial evidence to support [the jury verdict] when the facts are viewed in the light most favorable to the government." United States v. Blasco, 702 F.2d at 1331-32 (quoting United States v. Davis, 666 F.2d 195, 201 (5th Cir. Unit B 1982)) 1; United States v. Pintado, 750 F.2d at 1503. This standard of review complies with our holding in United States v. Bell, 678 F.2d 547 (5th Cir. Unit B 1982) (en banc), aff'd on other grounds, --- U.S. ----, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983):
It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt. A jury is free to choose among reasonable constructions of the evidence. 678 F.2d at 549.
In Blasco, we found that the totality of the circumstances would have allowed a reasonably cautious jury to conclude that the appellants were involved in a drug conspiracy. The off-loading operation had taken place early in the morning at a secluded setting, and the agents had testified to the noise of the operation and the heavy smell of marijuana. The panel found that "it strains the imagination that these appellants were not aware of the off-loading taking place on the dock outside the house," 702 F.2d at 1332, and concluded that a jury could have found beyond a reasonable doubt that the defendants were guilty. Id. Blasco thus did not overrule our prior cases in this area, but simply brought them into accord with the Bell decision. 2
In Pintado, a review of the totality of the circumstances led to a reversal of the defendant's conviction. Agents testified that at 1:40 a.m. "about six" persons were seen quickly and silently unloading large bundles from a boat docked behind the house. Customs officials approached in a car with lights flashing and announced "U.S. Customs." Two individuals were apprehended outside; the rest fled into the house. Three males and a female were arrested downstairs. Pintado was discovered hiding in a closet after officers forced open a locked bedroom door upstairs. A total of seven persons were arrested. Although at trial Pintado claimed that he had been sleeping during the off-loading operation and was unaware of the events outside, he was wearing a pair of pants and a shirt when found.
This court found that the jury could have reasonably rejected the defendant's claim that he was sleeping, but that there was no other evidence besides his presence and hiding to infer that he was a member of the conspiracy. The operation had been carried out silently and the marijuana had been placed in a garage that was not visible from the room where the appellant was discovered. Several sets of damp and dirty clothing were found downstairs; the government, however, did not show the number or sizes of the clothing or in any way connect the clothes with Pintado. Furthermore, the government was unable to correlate the number of individuals arrested and indicted with the Customs official's observations of the number of people involved in the unloading process. The official estimated that "about six" persons were involved, but admitted that he could not tell whether four, five, six, seven or some other number of individuals were actually present. 3
Unlike Pintado, a review of the totality of the circumstances in this case demonstrates that the jury could have found beyond a reasonable doubt that the appellants were involved in the drug conspiracy. Two agents, one using a star scope, observed from one hundred feet away the separate unloadings of the SUNSHINE and the ODETTE, each time counting eleven individuals forming a line to pass the bales from the boat up to the house. 4 Around 2 a.m., law enforcement officers moved in for the arrest with sirens and lights flashing, and the eleven individuals scattered. A DEA helicopter appeared minutes later, hovering overhead with its landing lights on.
The officers observed the various individuals as they fled to several areas. The first four arrested were found hiding in a cluster of sea grapes. The officer with the star scope had watched them jump a fence and take cover....
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