U.S. v. Nazien, 74-1154

• Decision Date: 18 November 1974
• Docket Number: No. 74-1154,74-1154
• Citation: 504 F.2d 394
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lamartine NAZIEN, Lelio Saintil and Reynald Morelus, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 394

504 F.2d 394

UNITED STATES of America, Plaintiff-Appellee, v. Lamartine NAZIEN, Lelio Saintil and Reynald Morelus,

Defendants-Appellants.

No. 74-1154.

United States Court of Appeals, Fifth Circuit.

Nov. 18, 1974, Certiorari Denied March 3, 1975, See 95 S.Ct.

1358.

Jack H. Cohen, Miami, Fla. (Court-appointed), for Nazien, Saintil, and Morelus.

Robert W. Rust, U.S. Atty., Robert C. Byrne, Charles O. Farrar, Jr., Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Before WISDOM and BELL, Circuit Judges, and BREWSTER, District Judge.

BELL, Circuit Judge:

The sole assignment of error in this marijuana possession with intent to distribute case, 21 U.S.C.A. 841(a)(1), is that the evidence was insufficient to warrant the convictions.

Appellants rely on the case of Vick v. United States, 5 Cir., 1954,216 F.2d 228. There we held that the presence near an illegal distillery of one who could have been a hunter (in possession of a shotgun), coupled with flight, without more, was insufficient to warrant conviction. We stated that to sustain conviction in a circumstantial evidence case, the inferences reasonably to be drawn from the evidence must not only be consistent with the guilt of the accused but inconsistent with every reasonable hypothesis of innocence.

In Surrett v. United States, 5 Cir., 1970, 421 F.2d 403, we reconciled Vick and its progeny with Holland v. United States, 1954, 348 U.S. 121, 139, 75 S.Ct. 127, 99 L.Ed. 150, and held that 'the test is not whether the evidence is inconsistent with the hypothesis of innocence but rather whether reasonable minds could so conclude', citing Wright, 2 Federal Practice and Procedure, P467, pp. 258-59 (1969). Then in United States v. Black, 5 Cir., 1974, 497 F.2d 1039, 1041, we added that whether the evidence be direct or circumstantial, the matter of the defendant's guilt is for the jury unless the court concludes that the jury must necessarily have had a reasonable doubt as to the inconsistency. See also United States v. Hill, 5 Cir., 1973, 481 F.2d 929, 931; United States v. Stephenson, 5 Cir., 1973, 474 F.2d 1353, 1355. We do not so conclude in this case.

Customs officers on patrol in an automobile approached a ship at a dock on the Miami River at approximately 1:00 A.M. By driving without lights until the moment they reached the dock, they were able to surprise four men standing together three or four feet in front of a Chevrolet automobile parked 10 to 15 feet from the ship. The Chevrolet was headed toward the ship.

One of the men was holding a burlap bag which he dropped and simultaneously dove into the water between the ship and the dock. This man was never apprehended. The other three men, the appellants here, started to run and were apprehended in the vicinity. One of the three, Morelus, broke away shortly after they were apprehended and was later found in an automobile owned by appellant Saintil, some 150 yards away from the ship. Another automobile owned by appellant Nazien was parked approximately 50 yards from the ship. These two vehicles plus the Chevrolet were...