U.S. v. Michelena-Orovio

• Decision Date: 31 October 1983
• Docket Number: MICHELENA-OROVI,D,No. 81-3706,81-3706
• Citation: 719 F.2d 738
• Parties: 14 Fed. R. Evid. Serv. 123 UNITED STATES of America, Plaintiff-Appellee, v. Levinoefendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 738

719 F.2d 738

14 Fed. R. Evid. Serv. 123

UNITED STATES of America, Plaintiff-Appellee, v. Levino MICHELENA-OROVIO, Defendant-Appellant.

No. 81-3706.

United States Court of Appeals Fifth Circuit.

Oct. 31, 1983.

Dymond, Crull & Castaing, Edward J. Castaing, Jr., New Orleans, La., for defendant-appellant.

Marilyn Barnes, Michael Schatzow, Asst. U.S. Attys., New Orleans, La., Mervyn Hamburg, Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before CLARK, Chief Judge, BROWN, WISDOM, GEE, RUBIN, REAVLEY, POLITZ, RANDALL, TATE, JOHNSON, WILLIAMS, GARWOOD, JOLLY and HIGGINBOTHAM, Circuit Judges.

RANDALL, Circuit Judge:

The defendant, Levino Michelena-Orovio, was convicted of conspiracy to import marijuana in violation of 21 U.S.C. Sec. 963 (1976), ¹ and conspiracy to possess marijuana with intent to distribute it in violation of 21 U.S.C. Sec. 846 (1976). ² We agreed to rehear this case en banc, 706 F.2d 502, in order to resolve a conflict in the decisions of this court with respect to whether the evidence that a crewmember on board a foreign vessel intercepted on the high seas has conspired to import a large quantity of marijuana into the United States is also sufficient to support that crewmember's conviction of conspiracy to possess the marijuana with intent to distribute it. We now hold that the government's evidence was sufficient to support the defendant's convictions of both conspiracy to import marijuana and conspiracy to possess it with intent to distribute it. Therefore, the defendant's conviction on both counts is affirmed.

The panel opinion fully states the conclusions of this court with respect to the other issues raised by the defendant in his appeal: (1) whether the district court erred in denying the defendant's motion to suppress the evidence, and (2) whether the district court erred in refusing to allow the jury to smell the sample bale of marijuana. Accordingly we reinstate parts II and III of the panel opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND.

An undercover agent joined other law enforcement agents in Louisiana in pretending to be unloaders and truckers of marijuana who were seeking employment. They met with persons who represented themselves to be engaged in smuggling marijuana from Colombia. These smugglers hired the agents to provide ships to meet at sea with other ships transporting marijuana and to aid in unloading the cargo from the additional vessels and in the storing of the cargo on shore in Louisiana.

The smugglers informed the undercover agents that a mother ship had departed from Colombia. The agents passed their information on to Coast Guard personnel. They described the ship to the Coast Guard as a converted shrimp boat, approximately seventy-five feet long, with a white hull, its booms removed, and a cargo of marijuana. They informed the Coast Guard that the ship was traveling from Colombia to rendezvous with another vessel at a specific point on the high seas and to unload the marijuana for importation into the United States. The agents' information proved to be correct. Forty or fifty miles south of the rendezvous point, personnel aboard the Coast Guard vessel, VALIANT, sighted a boat that met the agents' description. The boat was heading north toward the rendezvous site.

As the VALIANT neared the vessel, the VALIANT crew was able to identify the vessel as the ALEX LUZ. The lights on the vessel had been reversed so that it appeared to be moving in the direction opposite to its actual course. The ALEX LUZ, presumably after it sighted the VALIANT, changed its course radically from due north to due south. After the VALIANT unsuccessfully attempted to communicate with the ALEX LUZ by radio, it came alongside the vessel and requested permission to board, which was denied.

Since the ALEX LUZ was flying the Venezuelan flag, the personnel on the VALIANT obtained permission to board from the Venezuelan government, as well as permission to search the vessel and detain it if marijuana or contraband were found. The VALIANT then attempted to communicate by radio with the ALEX LUZ, but received no response. Finally, the VALIANT crew told the ALEX LUZ to stop because the Coast Guard had permission to board the vessel.

When the ALEX LUZ did not stop, the VALIANT crew made several attempts to force a halt, including firing shots into the air and throwing lines into the propeller. After the Coast Guard hosed the vessel, sending water into its smokestack, the boat finally came to a stop. Eight Colombians, including the defendant, came out of the cabin with their bags packed and sat on the stern of the vessel.

There was apparently no marijuana on the deck of the ALEX LUZ, but Lieutenant Shuck testified at trial that he could smell marijuana when he boarded the vessel. When Lieutenant Shuck asked for the captain of the ALEX LUZ, Oscar Romero, one of the persons aboard who had previously spoken with the Coast Guard crew, responded that there was no captain and that the boat had no official papers. The Coast Guard found 363 bales of marijuana in the hold of the vessel. Government witnesses valued the marijuana at approximately four to six million dollars.

On September 25, 1981, Michelena-Orovio and others were charged in a three-count superseding indictment with conspiracy to import marijuana into the United States, attempting to import marijuana into the United States and conspiracy to possess marijuana with intent to distribute it, in violation of 21 U.S.C. Secs. 963, and 846 (1976), respectively. At trial, Michelena-Orovio contended that the government had not proven his knowledge or participation in either conspiracy. He argued to the jury and to the court that the government's evidence showed nothing more than his presence on board a vessel loaded with a large quantity of marijuana. The jury apparently rejected this argument since it convicted him on both counts. The court then sentenced the defendant to a four-year term of imprisonment on the first conspiracy count and a five-year term on the second. Imposition of sentence on the latter count was suspended and the defendant was placed on inactive probation for five years, to commence upon his release from custody. The government's subsequent motion to dismiss the substantive count of the indictment was granted. Michelena-Orovio timely appealed.

The panel that originally heard Michelena-Orovio's appeal was unanimous in its view that the government's evidence was "more than sufficient" to establish his guilt of conspiracy to import marijuana into the United States, in violation of 21 U.S.C. Sec. 963. United States v. Michelena-Orovio, 702 F.2d 496, 500 (5th Cir.1983). The panel found itself confronted with two distinct lines of precedent, however, with respect to whether the evidence was also sufficient to support Michelena-Orovio's conviction of conspiracy to possess marijuana with intent to distribute it, in violation of 21 U.S.C. Sec. 846. One line of cases held that once the jury had determined that the defendant was involved in the conspiracy to import contraband, it was entitled to conclude that the defendant was also a participant in the conspiracy to distribute on the basis of the quantity of marijuana imported. See, e.g., United States v. Mazyak, 650 F.2d 788 (5th Cir.1981), cert. denied, 455 U.S. 922, 102 S.Ct. 1281, 71 L.Ed.2d 464 (1982); United States v. Mann, 615 F.2d 668 (5th Cir.1980), cert. denied, 450 U.S. 994, 101 S.Ct. 1694, 68 L.Ed.2d 193 (1981). Two other cases had held that participation in the conspiracy to distribute could not be inferred solely from participation in the conspiracy to import a large quantity of marijuana. United States v. Cadena, 585 F.2d 1252 (5th Cir.1978); United States v. Rodriguez, 585 F.2d 1234 (5th Cir.), aff'd, 612 F.2d 906 (en banc), aff'd sub nom. Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). The panel majority chose to resolve this conflict by following Cadena, while the dissent found the other line of cases more persuasive.

II. THE SUFFICIENCY OF THE EVIDENCE.

The standard of review of the sufficiency of the evidence in a criminal case is whether 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 (5th Cir.1982) (en banc), aff'd, --- U.S. ----, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). ³ In evaluating a claim of insufficient evidence according to this standard, we must consider the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Freeman, 660 F.2d 1030, 1034 (5th Cir.1981), cert. denied, --- U.S. ----, 103 S.Ct. 54, 74 L.Ed.2d 59 (1982). In a conspiracy case, the government must prove beyond a reasonable doubt "that a conspiracy existed, that the accused knew about it and, with that knowledge, voluntarily joined it." United States v. Rodriguez, 585 F.2d 1234, 1245 (5th Cir.) (quoting United States v. White, 569 F.2d 263, 267 (5th Cir.1978)), aff'd, 612 F.2d 906 (5th Cir.1978) (en banc), aff'd sub nom. Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). In a conspiracy prosecution under 21 U.S.C. Sec. 963 or 21 U.S.C. Sec. 846, there is no need to allege or prove overt acts, Rodriguez, 585 F.2d at 1245, aff'd, 612 F.2d at 919 n. 37, or to produce direct evidence of the conspiracy. Glasser, supra. Further, the government is "not required to prove ... knowledge of all the details of the conspiracy or each of its members, provided that [the] prosecution established his knowledge of the essential[s] of the conspiracy." United States v. Alvarez, 625 F.2d 1196, 1198 (5th Cir.1980) (en banc), cert. denied, 451 U.S. 938, 101 S.Ct. 2017, 68 L.Ed.2d 324 (1981) (citation omitted).

A. Conspiracy to Import.

Relying...