U.S. v. Luis-Gonzalez, LUIS-GONZALE

• Decision Date: 21 November 1983
• Docket Number: LUIS-GONZALE,L,No. 82-5613,82-5613
• Citation: 719 F.2d 1539
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rauleonardo Espinosa, Oswaldo Carbonell, Marcelian Torres-Gomez, Jr., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1539

719 F.2d 1539

UNITED STATES of America, Plaintiff-Appellee, v. Raul LUIS-GONZALEZ, Leonardo Espinosa, Oswaldo Carbonell Marcelian Torres-Gomez, Jr., Defendants-Appellants.

No. 82-5613.

United States Court of Appeals Eleventh Circuit.

Nov. 21, 1983.

Mark A. Pizzo, Asst. Federal Public Defender, Tampa, Fla., for carbonell.

Robert A. Herce, Herce & Martinez, Tampa, Fla., for Gomez.

Geoffrey C. Fleck, Rodney W. Morgan, Sp. Asst. U.S. Atty., Tampa, Fla., for Luis-Gonzalez and Espinosa.

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

Before TJOFLAT and HILL, Circuit Judges, and SIMPSON, Senior Circuit Judge.

JAMES C. HILL, Circuit Judge:

Raul-Luis Gonzalez, Leonardo Espinosa, Marcelian Torres-Gomez, Jr., and Oswaldo Carbonell were charged in a five count indictment as a result of their arrest in the Gulf of Mexico aboard a vessel laden with 15,000 pounds of marijuana. Counts One through Four of the indictment charged the defendants with violations of 21 U.S.C. Sec. 955a(a)-(d) and Count Five charged a violation of 21 U.S.C. Sec. 846. The defendants were found guilty on all counts and appeal their convictions. For the reasons set forth below, we affirm.

FACTS

On December 14, 1981, a Coast Guard cutter, while on routine patrol in the Gulf of Mexico west of Fort Myers Beach, Florida, spotted on radar and subsequently approached the OCEAN QUEEN, a 65 foot shrimp trawler. At the time, the OCEAN QUEEN was anchored and located 11.5 nautical miles from the shore of the United States. A Coast Guard officer noticed the shrimp trawler was in an obvious state of disrepair, the pumps which were hanging over its side were continuously pumping water, the doors used to lower nets for shrimping were missing, one out-rigger was bent, and the vessel's water line was not straight. Two individuals, later identified as the master, James Henry Wilson, and Orlando Russill-Ponce, were on the stern of the OCEAN QUEEN when the Coast Guard cutter approached. ¹ Wilson, in response to questioning by the Coast Guard, responded that the vessel was not in any danger, that there were two other individuals on board besides himself, and that the vessel's last port of call was Key West, Florida. Wilson also explained that the shrimp doors had been caught on a wreck and lost and that The Coast Guard decided to conduct a safety boarding and directed the Master to muster his crew on the afterdeck. Wilson obeyed, producing in addition to Ponce, defendant Oswaldo Carbonell. Thereupon, the OCEAN QUEEN was boarded and the vessel's documents were requested. As a Coast Guard officer followed Wilson to the wheelhouse to retrieve the documents, the officer noticed other figures moving around the cabin and drew his weapon. The officer ordered the figures in the cabin to come out, whereupon defendants Raul Luis-Gonzalez and Leonardo Espinosa exited from the cabin. One other person remained in the cabin. Eventually the remaining individual, defendant Marcelian Torres-Gomez, exited when a rifle was pointed into the cabin.

replacements were expected within a day or two.

While the Coast Guard was attempting to round up the crew, another Coast Guardsman opened the cargo hold to check the main-beam identification number. In the hold he observed marijuana wrapped in black plastic bags. After each of the crew members was handcuffed, frisked, and searched, a safety inspection was conducted of the OCEAN QUEEN to determine its seaworthiness for transit to the Coast Guard station at Fort Myers Beach. Numerous bundles of marijuana wrapped in black plastic were found in the hold. The total amount of marijuana on board the vessel was later determined to be 15,391 pounds.

During a search of the OCEAN QUEEN, the Coast Guard found a VHF radio, a loran navigational device, a citizen's band radio, and five navigational charts. One chart was a loran-c navigational chart of the west coast of Florida from Tampa Bay to Dry Tortugas which contained handwritten navigational markings, loran numbers, and the name "Tony." Another loran-c chart depicted the Gulf of Mexico and the Caribbean Sea, including the West Indies, and contained a handmade navigational tract from South America to the Coast of Florida. Additionally, various long-range radio equipment was discovered in the Captain's quarters. There existed no indication that the OCEAN QUEEN had been recently used in shrimping or fishing as its fishing equipment was in disrepair and the vessel carried little or no ice with which to store a catch.

After the crew of the OCEAN QUEEN was taken ashore, defendant Gomez was advised of his constitutional rights and questioned by government agents. Gomez stated that he had been on board the vessel approximately one month and that when he joined the vessel as crew, the captain and two other people were on board. He said he helped load the boat with marijuana and was going to be paid 50,000 Colombian pesos to work on the boat from Colombia to the United States. Gomez also admitted that he understood it was against the law to bring marijuana to the United States.

At trial, the government offered the testimony of Wilson, the master of the OCEAN QUEEN. Wilson explained that in early June of 1981 he had been approached by a Cuban-American named Thomas who offered Wilson $10,000 to transport the OCEAN QUEEN from Key West to Aruba. Wilson agreed and was taken to the docks where he inspected the boat and received nautical charts from a man named Tony. Wilson and Thomas then went to a Holiday Inn in Key West where they met defendants Espinosa and Gonzalez and a man named Alexis. Wilson, Espinosa, Gonzalez, and Alexis returned to the boat and began to proceed toward the Yucatan but the seas were too high for the vessel so they returned to the dock. Espinosa, Gonzalez, and Alexis telephoned Thomas to inform him of the problem. The boat was repaired and strengthened and the four men set out again, arriving in Aruba eight days later.

While in Aruba, the vessel was docked for repairs. During this time, Tony and his wife joined the crew. Tony left after two or three days and defendant Gomez joined the crew as a "second captain" bringing with him a black attache case containing a chart and stencil for navigation. After the vessel was repaired and a stronger radio was installed, Wilson, Gomez, Espinosa, and Gonzalez went to Cartagena, Colombia, and The OCEAN QUEEN, loaded with marijuana, departed for the United States with Wilson, Espinosa, Gonzalez, Gomez, Carbonell, and Ponce as crew. When the OCEAN QUEEN began to leak, Espinosa and Gonzalez used the radio to contact Tony in Florida and an airplane was dispatched to drop pumps to the vessel. During the course of the voyage, Ponce removed some marijuana from the hold. While the hold was open, the odor of marijuana could be smelled aboard the vessel.

                eventually to Turbo, Colombia.  In Turbo, the OCEAN QUEEN ran aground and was apprehended by the police who said they would hold the boat until they were paid $20,000.  Espinosa and Gonzalez used the boat radios to speak to someone in Miami about the situation. 2   While in Turbo, a man named Montenello brought three small packages of marijuana, which he gave to Gonzalez and Espinosa, and indicated that the marijuana was samples of what Montenello intended to bring out of the mountains and load on the boat.  The OCEAN QUEEN was ultimately loaded with black plastic packages of marijuana which sometimes broke and were repaired by Espinosa and Gonzalez.  Espinosa, Gonzalez, Gomez, and various Colombians, including Ponce and defendant Carbonell, helped load the vessel
                

As the OCEAN QUEEN approached the United States, Gonzalez gave Wilson a chart and a piece of paper noting three landing sites off the coast of Florida where the marijuana was to be unloaded. By radio, Tony directed that the OCEAN QUEEN go to one site where it was met by an airplane. After the plane left, Tony arrived in a boat from Key West. From the boat on which Tony arrived, the OCEAN QUEEN obtained a new anchor, line, fuel, and groceries. At Tony's direction, Espinosa and Gonzalez obtained a sample of marijuana from the hold and gave it to Tony. Tony, in turn, gave the sample to two other people on his boat. ³ Thereupon, Tony instructed Espinosa that the OCEAN QUEEN should be brought to an island near Sanibel Island, Florida. According to Wilson, Tony told the crew that "they" had bought an island near Sanibel and that members of the Sheriff's Department would come out by boat, get the marijuana, and "take it in." Espinosa told Wilson that the OCEAN QUEEN was to be met by a pick-up boat named the LADY JO.

Later, instructions were received from Tony to bring the OCEAN QUEEN on a Sunday afternoon to rendezvous with the LADY JO. When the LADY JO could not be found, Tony radioed instructions to Espinosa to drop the OCEAN QUEEN's anchor. It was shortly thereafter that the Coast Guard cutter approached and boarded the OCEAN QUEEN.

I SUFFICIENCY OF THE EVIDENCE

Defendants/appellants challenge the sufficiency of the evidence to support their convictions for conspiracy to possess marijuana with intent to distribute it within the United States. Appellants maintain that the evidence, while it may show a conspiracy to import marijuana into the United States, does not support a conviction for conspiracy to possess with intent to distribute in the United States. They assert that the government merely proved an intent to import a large quantity of marijuana. Relying on United States v. Rodriguez, 585 F.2d 1234 (5th Cir.1978), aff'd, 612 F.2d 906 (1980) (en banc), aff'd on other grounds sub nom. Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981), and United States v. Cadena, 585 F.2d 1252 (5th Cir.1978), appellants contend that participation in a conspiracy to distribute cannot be inferred solely from participation in a conspiracy to import a large quantity of marijuana....