U.S. v. Mesa, 80-5575

• Decision Date: 12 November 1981
• Docket Number: No. 80-5575,80-5575
• Citation: U.S. v. Mesa, 660 F.2d 1070 (5th Cir. 1981)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan MESA, Antonio Oliva, Raymond Morales, Alfredo Vasquez, Florentino Cubria, Gillardo Miguel Torres, Alex Narcico Velazquez and Omar Triana, Defendants- Appellants. . Unit B *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1070

660 F.2d 1070

UNITED STATES of America, Plaintiff-Appellee, v.Juan MESA, Antonio Oliva, Raymond Morales, Alfredo VasquezFlorentino Cubria, Gillardo Miguel Torres, Alex Narcico Velazquez and Omar TrianaDefendants- Appellants.

No. 80-5575.

United States Court of Appeals, Fifth Circuit.

Unit B ^*

Nov. 12, 1981.

Humberto J. Aguilar, Asst. Public Defender, Miami, Fla. (Court-appointed), for Mesa.

Donald E. Mates, Miami Beach, Fla., for Torres and (Court-appointed), for Triana and Valazquez.

Alvin E. Entin, Ronald A. Dion, Miami, Fla., Clyde M. Taylor, Jr., Tallahassee, Fla., for E. Oliva, Vasquez, Cubria, A. Oliva, Morales and Lavendero.

Paul Lazarus, Linda Collins Hertz, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before HILL, Circuit Judge, SMITH^**, Judge, and HENDERSON, Circuit Judge.

HENDERSON, Circuit Judge:

The appellants were convicted by a jury in the Southern District of Florida of conspiracy to possess with intent to distribute, and possession with intent to distribute 10,000 pounds of marijuana.21 U.S.C. §§ 846,841(a)(1).The facts are rather complex but are summarized to facilitate a better understanding of the events surrounding this episode.

Pablo "Chico" Ruiz, a Florida Marine Patrol officer, was approached by Alfredo Vasquez, a Key West city policeman, and asked whether he would provide protection for a marijuana off-loading operation.Ruiz' task was to furnish security for the operation's activities on the water and protection from other marine patrol officers.In exchange, Ruiz was to receive $25,000.00.Vasquez assured Ruiz that other law enforcement officers were involved in the scheme.Ruiz purported to accept Vasquez' offer and immediately reported the conversation to the United States Custom's office.Subsequently, he participated in a series of meetings with the conspirators to prepare for the impending venture.All of the appellants, as well as several policemen not parties to this appeal, were implicated in the discussions of the details of the illegal plan.

It was contemplated that the off-loading would occur around 11:00 p.m. at piers owned by Ming's Seafood.The marijuana was to be transferred from the vessel "Goldstar" to a van and two campers.Various members of the Key West city police department and the Monroe County sheriff's office were to maintain surveillance by land.¹Morales was to serve as a "lookout" at a phone booth near Ming's.At the appointed time, Ruiz drove one of the campers to the site while Vasquez picked up appellants Torres, Mesa, Triana and Velazquez in the other camper.Upon his arrival at Ming's, Ruiz observed appellants Cubria and Oliva unloading marijuana.When the camper operated by Vasquez reached Ming's dock, he and Ruiz started to walk away from the off-loading site.They were passed by two carloads of law enforcement officers who were on the way to raid the loading party pursuant to the information previously received from Ruiz.The raiders apparently took the defendants by complete surprise.Antonio Oliva was observed unloading bales of marijuana.A shot was fired in the air as off-loaders jumped into the water.Cubria was arrested hiding behind some lobster traps near the "Goldstar."Triana was arrested while stepping into the camper with a bale of marijuana on his shoulder.Mesa and Velazquez were inside the camper amid some forty additional bales.The only defendants not arrested at the scene were Morales, who was acting as a "lookout," and Vasquez, who suddenly took up jogging when he saw the raiding officers move in.

Various groups of appellants raise a number of issues on appeal.Because we believe that all of the claims lack merit, we affirm.

The appellants mount a variety of attacks on the sufficiency of the evidence.Morales, Velazquez and Triana contend that there was insufficient evidence of their involvement in the conspiracy to permit hearsay statements of co-conspirators to be used against them and that the government failed to show their connection with the conspiracy by a preponderance of independent evidence.Triana and Velazquez claim that because of this deficiency, the trial court should have granted their motion for severance.Finally, Mesa, Velazquez, Morales and Triana join in asserting that the evidence as a whole is insufficient to support the convictions.It is settled law that there must be substantial independent evidence demonstrating the existence of a conspiracy and a defendant's participation in it before co-conspirators' statements may be admitted against him.At the close of the trial,

the court must determine as a factual matter whether the prosecution has shown by a preponderance of the evidence independent of the statement itself (1) that a conspiracy existed, (2) that the coconspirator and the defendant against whom the conspirator's statement is offered were members of the conspiracy, and (3) that the statement was made during the course and in furtherance of the conspiracy.

United States v. James, 590 F.2d 575, 582(5th Cir.)(en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283(1979);United States v. Horton, 646 F.2d 181(5th Cir.1981);United States v. Ricks, 639 F.2d 1305(5th Cir.1981);United States v. Grassi, 616 F.2d 1295(5th Cir.)cert. denied, --- U.S. ----, 101 S.Ct. 363, 66 L.Ed.2d 220(1980).If the co-conspirator's statements are admissible, the court may consider them in determining whether the evidence, when viewed in a light most favorable to the government, would permit a reasonable jury to find guilt beyond a reasonable doubt.E. g., United States v. Richards, 638 F.2d 765(5th Cir.1981).

Here, the evidence was sufficient to satisfy all three standards.Triana, Mesa and Velazquez were all arrested at the scene.Triana was observed carrying a bale of marijuana into the Winnebago camper, and Mesa and Velazquez were inside the vehicle surrounded by more bales.These three appellants claim that these facts show only "mere presence" and, hence, does not suffice to connect them with the conspiracy.SeeUnited States v. Soto, 591 F.2d 1091(5th Cir.), cert. denied, 442 U.S. 930, 99 S.Ct. 2862, 61 L.Ed.2d 298(1979).While they are correct in asserting that "mere presence" at the scene of a crime, standing alone, is insufficient to support an inference of participation in a conspiracy, it is also true that a conspiracy may be demonstrated by circumstantial evidence and it is for the jury to make or reject inferences supported by proof.E. g., United States v. Ayala, 643 F.2d 244(5th Cir.1981);United States v. Horton, 646 F.2d 181(5th Cir.1981);United States v. Fitzharris, 633 F.2d 416(5th Cir.1980)cert. denied, --- U.S. ----, 101 S.Ct. 2325, 68 L.Ed.2d 847(1981).The cases cited by the appellants are clearly distinguishable.In those cases, the presence at the scene stood alone and circumstances were such that a hypothesis of innocence was reasonable.E. g., United States v. Reyes, 595 F.2d 275(5th Cir.1979);United States v. Soto, supra;United States v. Littrell, 574 F.2d 828(5th Cir.1978);United States v. Zule, 581 F.2d 1218(5th Cir.1978).In the instant case, the appellants' presence among numerous bales of marijuana at a late night off-loading operation does not permit a reasonable inference of innocence.SeeUnited States v. Perez, 648 F.2d 219(5th Cir.1981).As in the classic example of a child who is caught with his hand in the cookie jar, their activity amounted to more than "mere presence."Proof of such a compromising position makes any hypothesis of innocence unreasonable and the conviction must stand.SeeUnited States v. Perez, supra;United States v. Soto, supra.Since this evidence alone was sufficient to convict Triana and Velazquez, the district court was correct in admitting co-conspirator's statements against them and denying their motion to sever.

Morales, who was not present at the pier, is in a different position with respect to co-conspirator's statements.Nevertheless, there is substantial circumstantial evidence to link him to the conspiracy.In the days preceding the crime, Morales engaged in a number of conversations at pre-arranged sites with various combinations of the conspiratorial group.He picked up Ruiz and rode with him to a restaurant where the conspirators met in final preparation for the transfer of the contraband.The van seized at the scene was registered to Morales' brother-in-law.In addition, when a member of the group assured Ruiz that the plan could be discussed in front of Morales because he was "one of usa brother," Morales smiled and shrugged his shoulders in agreement.This is more than enough evidence to justify the use of the statements of co-conspirators against him.SeeUnited States v. Horton, 646 F.2d 181(5th Cir.1981).The co-conspirators' statements thoroughly implicated Morales and the evidence clearly sustains his conviction.

Vasquez, Morales, Cubria and Oliva assign as error the trial judge's refusal to direct that Ruiz, the government's informant, reveal his home address without first conducting an in camera hearing.At a bench conference out of the jury's hearing, the prosecuting attorney stated that Ruiz had received threats and that a "contract" had been taken out on his life.The government also informed the court that Ruiz had complained that an unidentified person approached him during a recess and that the stranger made a threatening sign by drawing his index finger across his throat.The appellants do not claim that it was error to restrict their cross-examination if the government's representations were true, e. g., United States v. Hansen, 569 F.2d 406(5th Cir.1978);United States v. Avalos, 541 F.2d 1100(5th Cir.1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1656, 52 L.Ed.2d 363(1977), but rather assert that an in camera hearing was necessary before...