U.S. v. Perez, 80-5100

• Decision Date: 15 June 1981
• Docket Number: No. 80-5100,80-5100
• Citation: 648 F.2d 219
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mario PEREZ, Carlos Ruiz, Rigoberto Rojas and Armando Ortiz, Defendants-Appellants. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 219

648 F.2d 219

UNITED STATES of America, Plaintiff-Appellee, v. Mario PEREZ, Carlos Ruiz, Rigoberto Rojas and Armando Ortiz,

Defendants-Appellants.

No. 80-5100.

United States Court of Appeals, Fifth Circuit.

Unit B

June 15, 1981.

James J. Hogan, Joseph Mincberg, Peter C. Clemente, Miami, Fla., for perez.

Melvyn Kessler, L. Mark Dachs, Miami, Fla., for Ruiz, Rojas & Ortiz.

Karen L. Atkinson and Linda Collins Hertz, Asst. U.S. Attys., Miami, Fla. for U. S.

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

Before DYER, TJOFLAT and FAY, Circuit Judges.

DYER, Circuit Judge:

Defendants appeal their convictions of conspiracy to distribute marijuana, 21 U.S.C. § 846, and possession with intent to distribute marijuana, 21 U.S.C. § 841(a)(1). We vacate the special parole term imposed on Perez under count one of the indictment and in all other respects we affirm.

On February 11, 1979, agent Meyers of the Palm Beach Florida Sheriffs office was conducting surveillance at 11317 Avery Road in North Palm Beach. A vessel, The Magnificent, about sixty feet in length, was docked in a canal at the rear of the residence. She was riding low in the water.

About seven-thirty that evening Meyers and agent Osleber of the Drug Enforcement Administration returned to the residence and Osleber smelled marijuana. Both agents heard a whirring noise and proceeded through an adjacent yard where they could view the back yard of the Avery Road residence. With a full moon lighting the area the agents saw a conveyor system running from the window of the vessel to the house. It was equipped with rollers and indoor-outdoor carpeting. The agents saw Perez at the window of the vessel passing burlap bales of marijuana from the vessel to the conveyor system. Ortiz was standing next to the conveyor system pushing the bales to Rojas, who, in turn, pushed the bales to Ruiz, who pushed the bales inside the house. All three men were wearing identical dark blue, short sleeved jumpsuits.

After watching the offloading operation for a few minutes Osleber made a remark to Meyers which was overheard by Perez. Perez immediately indicated to the others to be quiet and the men started to crawl away from the conveyor system.

There was a large clothesline in the backyard with sheets draped over it which screened the conveyor system. The agents appeared and announced that they were law enforcement officers and that everyone was under arrest. Ortiz, who started to run away, was seized and arrested. Meyers held him in custody. Rojas was seen crawling along the sidewalk and was diving over bale of marijuana in the doorway of the house. Agent Osleber dragged Rojas back to agent Meyers who took custody of him. Osleber then saw Perez dive off the front of the vessel into the canal. As he was swimming away, Osleber pointed his rifle at Perez and ordered him back.

Agent Meyers saw Ruiz run into the house. It was dark except for a green chemical light that had been dropped on the floor. The agents heard noises coming from a bedroom, proceeded there, and announced their presence, but no one emerged. The agents saw Ruiz through a partially opened closet door, crouching and reaching toward the shelf above his head on which was a .30 caliber cut down carbine and a .357 magnum pistol, both loaded. Ruiz was wearing the same blue jumpsuit.

At the time of seizure sixteen bales of marijuana were on the conveyor system, one hundred and one bales were stacked in the living room, and three hundred and ten bales were still on the vessel. The total weight of all of the marijuana was 18,900 pounds.

All of the defendants concede on appeal that there was sufficient evidence to sustain their convictions under count two of the indictment, possession with intent to distribute marijuana, 21 U.S.C. § 841(a)(1). They collectively argue, however, that there was insufficient evidence to support a conviction for the conspiracy charged in count one, and further that it was error for the district court to submit a written copy of its charge to the jury. Perez contends that it was error for the court to exclude his expert witness because Perez' failure to abide by the standing discovery rules, and further that the parole term imposed upon him under count one is invalid. Ruiz asserts that it was error to admit in evidence the weapons found on the closet shelf under which he was hiding, and further that his motion for severance should have been granted.

At the outset we agree that Perez' special parole term imposed under count one must be vacated because he received consecutive sentences of two years special parole term on each count. In Bifulco v. United States, 447 U.S. 381, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980) the Court held that a special parole term may not be imposed for violations of 21 U.S.C. § 846. The concurrent sentence doctrine, United States v. Warren, 612 F.2d 887, 891-896, (5th Cir. 1980) (en banc) makes it unnecessary for us to consider the concurrent special parole term imposed on Ruiz, Rojas and Ortiz.

All of the defendants strongly argue that there was insufficient evidence to prove that they had the required intent to become a member of a conspiracy to distribute the marijuana. While they concede that they were in possession of it, they submit that there is no evidence of a plan to distribute it. We are unpersuaded. The defendants start with the sound premise that there must be proof beyond a reasonable doubt that a conspiracy existed, that they knew it, and with that knowledge voluntarily joined it. United States v. Rodriguez, 585 F.2d 1234 (5th Cir. 1978). They argue that on review we must find substantial evidence of the conspiracy as required by United States v. Malatesta, 590 F.2d 1379 (5th Cir. 1979). But they reach an unsound conclusion when they apply the facts to the premise.

Intentional participation in a criminal conspiracy need not be proved by direct evidence but may be inferred "from a development and a collocation of circumstances". United States v. Harbin, 601 F.2d 773 (5th Cir. 1979). Here we have the offloading of 18,900 pounds of marijuana from "The Magnificent" in a sophisticated operation utilizing a conveyor belt from the vessel to the house. Three of the defendants along the belt were dressed in the uniform of the day dark blue jumpsuits. When Perez gave the alarm that they were being watched the three defendants attempted to flee, while Perez jumped overboard into the canal. The evidence of complicity is overwhelming. The defendants could not, even if they were chain smokers, personally consume this quantity of marijuana in their lifetime. It would be sheer sophistry to say that the defendants had not agreed to distribute the marijuana. In a parallel case where the defendants were similarly charged with conspiracy to distribute, United States v. Mann, 615 F.2d 668 (5th Cir. 1980), the defendants were apprehended with over 22,500 pounds of marijuana in their possession "far too much for the personal consumption of four individuals. Having determined that defendants planned to import their cargo the jury was entitled to infer from the facts before it that some plan had been made for its disposition. As we have previously noted '(t)he very size of a cache can be sufficient to show intent to distribute ' United States v. Rodriguez, 585 F.2d 1234, 1236 (5th Cir. 1978) aff'd 612 F.2d 906 (5th Cir. 1980) (en banc); United States v. Perry, 480 F.2d 147 (5th Cir. 1973); United States v. Mather, 465 F.2d 1035 (5th Cir.), cert. denied, 409 U.S. 1085, 93 S.Ct. 685, 34 L.Ed.2d 672 (1972)." The factual picture painted here fits precisely into the frame of a conspiracy to distribute. Viewing the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), and accepting all reasonable inferences that support the jury verdict, United States v. Becker, 569 F.2d 951 (5th Cir. 1978), we find substantial evidence that sustains the jury's conclusion that the defendants entered into a conspiracy to distribute marijuana.

The defendants next argue that the district court, over their objections, submitted written instructions to the jury after having charged the jury to consider the charges as a whole. While we have condemned the practice, there is no showing that any prejudice resulted because of the submission of written instructions. United States v. Hooper, 575 F.2d 496 (5th Cir. 1978) is a full answer to the contention here made. There we said "The final ground of error put forth by defendant is that the district court incorrectly provided the jury with a written copy of the jury charges. In United States v. Schilleci, 545 F.2d 519 (5th Cir. 1977), this court expressed disapproval of the practice of furnishing the jury with written copies of the jury charge, but stated, however, that the practice was not error in itself'. Id. at 526. As none of the circumstances that created the risk of prejudice in Schilleci is present in this case we reject the defendants' contention." (footnote omitted).

Perez assigns error in the preclusion of his defense witness for a violation of a standing discovery order. ¹ He argues that the action taken by the court under Rule 16(d)(2) of the Federal Rules of Criminal Procedure collides with his Fifth Amendment right to due process and his Sixth Amendment right to compulsory attendance of witnesses.

Doctor Antonio Rivero-Setien examined Perez on December 19, 1979. Four days before the trial date, January 3, 1980, the doctor's report was shown to the government. When the doctor was called as a witness by Perez the government's objection to his testimony was sustained. The proferred testimony was that his examination of Perez disclosed that he suffered from "acute back syndrome" and as a result Perez was not able to lift a weight of thirty to fifty pounds. However, he equivocated by saying that sometimes Perez had no pain,...