U.S. v. Rogers, 83-1072
| Citation | 719 F.2d 767 |
| Decision Date | 31 October 1983 |
| Docket Number | No. 83-1072,83-1072 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Burnie ROGERS and Johnny Albert Callahan, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Evelina Ortega, Asst. Federal Public Defender, El Paso, Tex., for rogers.
Roddy Harrison, Pecos, Tex., for Johnny Callahan.
Sidney Powell and Michael McDonald, Asst. U.S. Attys., San Antonio, Tex., for plaintiff-appellee.
Appeals from the United States District Court for the Western District of Texas.
Before CLARK, Chief Judge, GEE and POLITZ, Circuit Judges:
The issue of serious consequence in this case is whether sufficient evidence supports the convictions of the defendant Rogers for conspiracy and possession of marihuana with intent to distribute it. Others merit only brief discussion; some none. Viewing the evidence most favorably to the verdicts of conviction, the facts are as follows.
In August 1982, Rogers, his thirteen-year-old son Craig and co-defendant Callahan drove the long road from South Carolina to Midland, Texas, in Rogers' silver-grey Lincoln automobile, making at most one stop. 1 The cost of gasoline and of a motel room where the three spent the night in Midland was borne by Rogers. In Midland, Rogers rented another automobile, a Ford sedan, for Callahan and they proceeded south to Marfa. There they spent the night in a motel room rented, again, by Rogers. The day of August 19 found them at Presidio, Texas, on the Mexican border. From it, they crossed into Mexico, returning in the afternoon. Though at trial counsel for Rogers represented the long trip as a sightseeing vacation, they visited few if any of the meager number of tourist attractions in the remote and desolate area of West Texas through which they passed--not the Big Bend National Park, not the Permian Basin Petroleum Museum in Midland, not Pinto Canyon, and only possibly the old graveyard in the ghost town of Shafter through which they passed.
Near midnight on August 19, 1982, Wayne Winn, a supervisor for the United States Customs Patrol, was patrolling Highway 170 about three miles upriver and northwest of Presidio when he noticed a pickup truck traveling at high speed downriver, but on the Mexican side of the levee close to the Rio Grande River. 2 A few minutes later he noticed a Ford sedan with Texas license plates traveling in the same direction, approaching him at moderate speed on Highway 170. Winn considered it rare to see cars traveling that remote and sparsely settled area at such a late hour--cars which did not belong to any resident of the area, all of whose vehicles he knew well. He therefore called the Border Patrol headquarters in Marfa to determine whether a sensor device located on the road 20 miles upriver from Presidio had been triggered. It had not. As a result, he suspected that the sedan had reached the road from somewhere within Mexico.
Winn pursued the sedan, but it had apparently speeded up and he was unable to catch it. He therefore called ahead to a Customs Patrol Officer stationed further up the road, who stopped the car at Presidio. Arriving on the scene, Agent Winn determined that Callahan was the driver of the car and that Rogers' young son was a passenger. Plastic bags, which appeared to contain contraband, were seen in the back seat. Callahan voluntarily consented to the search of the car. Two hundred pounds of marihuana were found inside the bags. After seeing Callahan and young Rogers, Winn recalled that earlier in the day he had seen Callahan, Rogers and his son entering from Mexico in the Lincoln and had later seen the Lincoln, an expensive and distinctive vehicle, parked in Presidio.
After seizing the drug, the officers searched the car, finding documents showing that it had been rented by defendant Rogers, as well as clothes belonging to Rogers' son. That same evening or early the next morning Rogers was located in Presidio by another customs agent; he had been searching for his son. No contraband was found in Rogers' car.
The evidence supporting Rogers' convictions is entirely circumstantial; little or nothing connects him directly to the drug load with which Callahan was apprehended. At present we apply the same test of sufficiency to all types of evidence, reversing only if on the record we conclude that a reasonably minded jury must necessarily have entertained a reasonable doubt of the defendant's guilt. 3
Viewing the evidence we have recited, the jury was clearly entitled to disbelieve that the defendant's long August journey to the hottest and one of the most desolate spots on the border had sightseeing as its motive. Since the claimed purpose was a subterfuge, it might well reason, the true one must be one that would not bear disclosure: just such a one as was revealed on the part of Callahan by his apprehension. Nor was it unreasonable for the jury to believe that the purpose of Rogers, who bankrolled the excursion and--inexplicably--near their destination rented a second vehicle for Callahan, shared Callahan's motive in making the long trek and had done so from the outset. The conclusion that their motives were the same and neither some other dubious one raised by no evidence nor some individual initiative by Callahan is supported by the evidence of the Ford's rental receipt. This required the Ford to be returned to Midland by which time, if the smuggling was his private frolic, Callahan would have to have either disposed of the drug for little incremental value in the border environs or be prepared to explain to Rogers what it was with which he proposed to fill up the trunk of Rogers' Lincoln automobile.
A more disturbing feature of the case is the involvement of the child, Craig Rogers. According to Craig's testimony, Callahan was brought on the trip because "he knew his way around and we didn't." On the evening of Callahan's apprehension, the boy testified, the three of them were at an ice cream parlor in Marfa, over an hour's drive from Presidio, when Callahan told Rogers that he was going to see a friend. Tired of staying with his father, Craig begged to be allowed to go with Callahan, and Rogers at last consented.
Callahan drove to Presidio, which they had left not long before, and from it down some road for five or ten miles, Craig testified. At that point, they "turned off" and waited "for about an hour or two" in the dark. Then he heard somebody whistle and "call Johnny." 4 Callahan told him to stay in the car, but he was too frightened to stay alone and followed Callahan. They met someone who handed them bags. When he asked Callahan what the bags contained, Callahan at first refused to tell him but later told him the truth, cautioning him to tell neither his father, his mother nor anyone else of it. The car loaded with Craig's participation, they departed and were later apprehended. On cross-examination, Craig testified that their excursion to Mexico earlier in the day was for two or three hours, that all three remained together and that neither Rogers nor Callahan met or talked to anyone while there. Leaving Mexico, they returned to Marfa.
Since it is obvious, if the child's account be believed, that the night meeting was...
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