U.S. v. Michelena-Orovio

• Decision Date: 25 March 1983
• Docket Number: No. 81-3706,MICHELENA-OROVI,D,81-3706
• Citation: 702 F.2d 496
• Parties: 12 Fed. R. Evid. Serv. 1794 UNITED STATES of America, Plaintiff-Appellee, v. Levinoefendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 496

702 F.2d 496

12 Fed. R. Evid. Serv. 1794

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

No. 81-3706.

United States Court of Appeals, Fifth Circuit.

March 25, 1983.

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

Marilyn Gainey Barnes, Michael Schatzow, Asst. U.S. Attys., New Orleans, La., for plaintiff-appellee.

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

Before WISDOM, RANDALL, and TATE, Circuit Judges.

PER CURIAM:

The defendant, a member of the crew of a vessel intercepted on the high seas by the Coast Guard and found to have a cargo of marijuana, challenges his conviction of conspiracy to import marijuana and conspiracy to possess marijuana with intent to distribute it. He claims: (1) that the trial court erred in denying his motion to suppress the evidence; (2) that the court erred in refusing to allow the jury to smell the sample bale of marijuana; and (3) that there was insufficient evidence to support his conviction. For the reasons set forth below, we affirm in part and reverse in part.

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, and who subsequently hired them to provide ships to meet at sea with other ships transporting marijuana. The smugglers informed the agents that a mother ship had departed from Colombia. The agents described the ship to Coast Guard personnel 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. Forty or fifty miles south of the rendezvous point, at a point approximately 200 miles southeast of New Orleans, 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, Levino Michelena-Orovio, 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. Michelena-Orovio's pretrial motion to suppress the evidence was subsequently denied. On October 9, 1981, a jury convicted Michelena-Orovio on the two conspiracy counts. The court sentenced him 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 appealed.

II. THE MOTION TO SUPPRESS.

The district court denied the motion to suppress the marijuana, ruling that there was reasonable suspicion for the search of the ship's hold. Michelena-Orovio argues that there was not a reasonable suspicion that the ALEX LUZ was involved in a crime against the United States.

The evidence available to the Coast Guard did give it reasonable grounds for suspicion that such a crime was intended. Coast Guard personnel had been informed by undercover agents that a converted shrimp boat, closely resembling the ALEX LUZ, was traveling from Colombia to rendezvous with another vessel at a specific point and unload the marijuana for importation into the United States. The ALEX LUZ was sighted forty to fifty miles south of the rendezvous point heading north toward the site. Thereafter, the ALEX LUZ changed its course. Even when informed that the Venezuelan authorities had given their permission to search, the boat attempted to avoid a search. The combination of these facts was sufficient to create a reasonable suspicion that a crime against the United States was intended. ¹

Moreover, Michelena-Orovio probably does not have standing to assert the fourth amendment issue because it is questionable whether, as a mere crew member, he had a legitimate expectation of privacy in cargo stowed in the hold of the converted shrimping vessel. United States v. DeWeese, 5 Cir.1980, 632 F.2d 1267, 1270, cert. denied, 1981, 454 U.S. 878, 102 S.Ct. 358, 70 L.Ed.2d 188, and cases cited therein; United States v. Freeman, 5 Cir.1981, 660 F.2d 1030, 1034. We have held that crew members have no legitimate expectation of privacy in those areas of a commercial vessel which are subject to the common access of those legitimately aboard the vessel. DeWeese, supra.

III. THE REFUSAL TO ALLOW THE JURY TO SMELL THE BALE.

Michelena-Orovio next contends that the district court erred in refusing his request to permit the jury to smell one of the 363 bales of marijuana. He argues that the evidence was probative on the issue of whether marijuana could be smelled aboard the ALEX LUZ at the time of boarding.

The ruling was not in error. Rule 403 of the Federal Rules of Evidence provides in pertinent part that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. The district court properly excluded the evidence because the conditions of the proposed experiment differed substantially from those aboard the ALEX LUZ. The marijuana was then one year old and the courtroom experiment would have involved only one bale, not the 363 bales found on the vessel. The experiment was to take place in a courtroom rather than on a small vessel at sea. We have held that it is proper to refuse to allow such an experiment if the conditions of the proposed experiment differ substantially from those existing at the time the officer smelled the marijuana. See United States v. Cantu, 5 Cir.1977, 555 F.2d 1327; United States v. Torres, 5 Cir.1976, 537 F.2d 1299; United States v. Vallejo, 5 Cir.1976, 541 F.2d 1164.

IV. THE SUFFICIENCY OF THE EVIDENCE.

Finally, Michelena-Orovio contends that the evidence was insufficient to prove that he participated in conspiracies to import marijuana into the United States and to possess marijuana with intent to distribute it. The standard of review of the sufficiency of the evidence in a criminal case is whether a reasonably-minded jury must necessarily entertain a reasonable doubt as to defendant's guilt in light of the evidence produced at trial. 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, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; United States v. Freeman, 5 Cir.1981, 660 F.2d 1030. 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, 5 Cir., 585 F.2d 1234, 1245 (quoting United States v. White, 5 Cir.1978, 569 F.2d 263, 267), aff'd, 5 Cir.1978, 612 F.2d 906 (en banc), aff'd sub nom. Albernaz v. United States, 1981, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275. 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....