U.S. v. Moreno

• Decision Date: 26 January 1979
• Docket Number: No. 77-5712,77-5712
• Citation: 588 F.2d 490
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pedro Luis MORENO, Felix Gonzalez Valdez, Sebastian Viera, Jose Luis Linares, Lorenzo Aday-Lorenzo and Mario Abascal, Jose A. Fernandez and Jose Aspuru, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 490

588 F.2d 490

UNITED STATES of America, Plaintiff-Appellee, v. Pedro Luis MORENO, Felix Gonzalez Valdez, Sebastian Viera Jose Luis Linares, Lorenzo Aday-Lorenzo and Mario Abascal, Jose A. Fernandez and Jose Aspuru, Defendants-Appellants.

No. 77-5712.

United States Court of Appeals Fifth Circuit.

Jan. 26, 1979.

Rehearings Denied March 2, 1979.

Pedro Luis Moreno, pro se, John M. Barkett, Miami, Fla. (Court-appointed), for Moreno.

Theodore J. Sakowitz, Federal Public Defender, Lurana Snow, Asst. Federal Public Defender, Miami, Fla., for Valdez.

Seymour London, North Miami, Fla., for Fernandez and Linares.

Alvin E. Entin, North Miami Beach, Fla., Ronald A. Dion, North Miami, Fla., for Aspuro, Viera and Aday-Lorenzo.

John H. Lipinski, Miami, Fla., for Abascal.

Jack V. Eskenazi, U. S. Atty., Michael Sullivan, Asst. U. S. Atty., Miami, Fla., for the U. S.

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

Before BROWN, Chief Judge, GODBOLD and FAY, Circuit Judges.

GODBOLD, Circuit Judge:

This is a marijuana smuggling case. All the appellants were convicted under Count I of conspiracy to possess marijuana with intent to distribute, and under Count II of possession of marijuana with intent to distribute. The convictions are affirmed.

There was ample evidence to permit the jury to find the following facts. Berckmans was an officer of a firm supplying security services for Turkey Point Nuclear Power Plant, a large installation on Biscayne Bay and near Miami, Florida. Berckmans was asked to arrange to plant an outsider in the security force at Turkey Point who would cooperate in the landing of a shipment of contraband described to him as lobster tails and coffee.

The initial approach to Berckmans was made by Navarro and Medina, unindicted co-conspirators. Berckmans began to cooperate with DEA agents. A few days later he was approached by Abascal, who gave him a bribe and discussed the proposed landing operation. Foley, an undercover agent, was planted as the guard. When word was passed that the shipment was arriving, the Turkey Point area was put under surveillance by numerous agents posted on land and water. They were briefed on the operation beforehand. Foley came to the scene at night, met Abascal, and opened a locked gate to admit a white van with "JG Nursery" signs on it. Soon thereafter, when Foley resumed his rounds as guard, he saw on a road near Turkey Point a blue truck with a white camper body on it sitting beside the road with its lights out and occupied by appellant Valdez. Also, about a mile further along on the same road, he saw another camper, green in color.

Surveilling agents saw two boats enter a canal in the Turkey Point area. The boats passed from view, and no one saw any actual unloading. Later The Last One, which was the smaller vessel, came out of the canal, went back in, then reemerged towing the Andrea, the larger boat, which had lost power. The boats were stopped and those aboard arrested. Minimal amounts of marijuana were found on the Andrea.

Later, on the same night and within a few miles of Turkey Point, the blue truck/camper and the JG Nursery van were stopped and found to contain marijuana.

The defendants fall into several groups: (1) Abascal, the contact man; (2) those aboard the larger boat, the Andrea ; (3) those aboard the smaller boat, The Last One ; and (4) the two men driving the van and the truck/camper.

I. Sufficiency of the evidence.

All defendants argue that the evidence was insufficient. ¹ We consider this first with respect to the conspiracy count. This contention by Abascal, the contact man, is almost frivolous. He paid bribes to Berckmans and Foley, promised new cars for all participants, and boasted of the national and international size and scope of his organization. He took Berckmans and Foley to the site to show them where the contraband was to be landed and told them the site had been used three or four times previously. He explained how the cargo boat would be guided in. On the night of the landing he met Foley at the locked gate and participated in admitting the JG Nursery van. Abascal insists that there was insufficient evidence to support an inference that he had actual knowledge that the cargo was marijuana, emphasizing his numerous references to lobster tails and coffee. The jury was, of course, entitled to infer from the evidence which we have set out, especially the elaborate and costly arrangements for the specific shipment, the mention of previous shipments, and the description of the organization involved, that Abascal knew what the contraband was. Berckmans was not so naive as to take the lobster and coffee talk at face value, the jury was not required to be that naive, nor are we.

The defendants attach significance to the lack of direct evidence that the marijuana in the van and the blue truck/camper came from either or both of the boats. There were other boats in the same area of Biscayne Bay, but there was no testimony that other boats entered the canal. No one actually saw marijuana offloaded from either boat or loaded into vehicles or even observed the boats and the vehicles at the same site. Nevertheless the circumstantial evidence is so strong that lack of observation at canalside makes little difference. As the operation developed it was consistent with Abascal's advance arrangements, and no one saw or even suggests the presence of lobster tails and coffee. Boats, trucks and people assembled at the remote designated place, on the seacoast, at nighttime. The van was summoned, the jury could find, by Abascal's walkie-talkie. It and the two campers took up positions on the only road that led along the canal up which the boats were seen by surveilling agents to disappear. The boats appeared on the bay, flashing lights on and off, briefly entered one canal and then entered and disappeared up a second canal. Engine noises were heard from sources other than the boats, and voices. The jury could infer these came from the vehicles that had been waiting inside the gate. These sounds stopped when the boat engines stopped. Engine noises resumed, and soon The Last One emerged, reentered the canal and reemerged towing the Andrea. The blue truck/camper and the van were seen to depart and were soon stopped, loaded with marijuana. Marijuana was found in the larger boat. All of this adequately supports inferences that the source of the marijuana in the blue truck/camper and van was one or both boats.

Viera and Aspuru were on the Andrea. A small quantity of marijuana was found on board. Clearly the evidence was sufficient as to them. Though no marijuana was found on The Last One, the evidence was sufficient as to those on it, Linares, Fernandez, and Aday-Lorenzo. Its activities, Abascal's statements describing the arrangement for a navigator (or, inferentially, a lead boat) to guide the cargo boat in, the movements of the two boats into and out of one canal and then into the second canal, the temporary departure of The Last One and its reentry and return towing the Andrea these adequately support jury submission on the conspiracy count with respect to those aboard The Last One.

We are required to review the sufficiency of evidence under the possession count with respect to only Abascal because all other defendants received concurrent sentences. ² There was no evidence that Abascal was ever in actual possession of any of the marijuana. Possibly his role as the person in charge of arrangements for the landing, his presence at the scene, and his activities at the time, were sufficient to support submission to the jury of constructive possession. But we do not need to rest on this basis. In Pinkerton v. U. S., 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), the Supreme Court set out the principle of vicarious liability in conspiracy cases. A conspirator can be found guilty of a substantive offense based upon acts of a co-conspirator done in furtherance of the conspiracy, unless the act "did not fall within the scope of the unlawful project, or was merely a part of the ramifications of the plan which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement." Id. at 647-48, 66 S.Ct. at 1184, 90 L.Ed. at 1497. Several of our judges have noted their concern that vicarious guilt may have due process limitations, Park v. Huff, 506 F.2d 849, 864 (CA5, 1975) (en banc) (Thornberry, J., dissenting). This concern need not trouble us here with respect to Abascal. The jury could infer actual possession by the defendants aboard the Andrea and the defendants who hauled marijuana away in the van and the blue truck/camper. Attributing the acts of these defendants to Abascal, the planner and expediter of the beachhead end and an active...