U.S. v. Rozen, 78-5238

• Decision Date: 08 August 1979
• Docket Number: No. 78-5238,78-5238
• Citation: 600 F.2d 494
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward ROZEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 494

600 F.2d 494

UNITED STATES of America, Plaintiff-Appellee, v. Edward ROZEN, Defendant-Appellant.

No. 78-5238.

United States Court of Appeals, Fifth Circuit.

Aug. 8, 1979.

Ronald A. Dion, Alvin E. Entin, North Miami Beach, Fla., for defendant-appellant.

Kathrine L. Henry, William H. McAbee, II, Asst. U.S. Attys., Savannah, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before THORNBERRY, GODBOLD and HILL, Circuit Judges:

GODBOLD, Circuit Judge:

Appellant, Edward Rozen, was convicted by a jury of conspiracy to possess marijuana with intent to distribute and possession with intent to distribute. Because there was insufficient evidence against appellant we hold that his motion for judgment of acquittal should have been granted and reverse with directions to enter a judgment of acquittal.

Law enforcement officers brought under surveillance several persons, several vehicles and a boat in a sizeable area of the Georgia coast. Much of the evidence was introduced to show that a conspiracy was in progress, but most of its need not be recited here. There was adequate evidence to show that a conspiracy was in progress, but the evidence failed to sufficiently connect appellant to it and failed to show possession by appellant.

Stated most favorably to the government, the following is all of the evidence that relates to appellant. Appellant's brothers Gerald and David were together in the Brunswick, Georgia area August 23-25, 1977, Gerald with a Ford pickup truck, David with a GMC pickup with camper body. On the evening of August 25, David, accompanied by a woman, left Brunswick in the GMC, which was registered to him, and drove to Savannah, where he arrived at a motel sometime before 10:00 p.m. and registered. Gerald, in the Ford and accompanied by his six or seven year old son, left Brunswick later than David, drove to the same motel in Savannah, and entered a room. Soon thereafter, around 10:30 to 10:45, either two or three men emerged from the motel; one surveilling officer said one man got in each truck, another said one got in the Ford and two in the GMC. The one who entered the Ford was identified as Gerald. The one, or two, who entered the GMC were not identified.

The two trucks left the motel together and were followed to the Red Bird Creek area, a wooded area to which there was access by boat and where there was a dock. There the trailing officers lost the trucks. Around 1:30 a.m. officers saw the Ford pull out of a dirt road in the wooded area at a high rate of speed. They stopped it, found it occupied by Gerald, and discovered bales of marijuana in the back (later established as approximately 1,460 pounds). About three tenths of a mile from where the Ford had emerged the officers found the GMC with no one in it but containing marijuana bales (some 1,720 pounds). Later officers found in the GMC a notebook with a list of numbers (inferentially the numbers and the weights of the marijuana bales in the trucks) similar to another list found in the wallet of a co-conspirator who had been aboard the surveilled boat.

Georgia prison officials were called, and a dog handler came with his bloodhound Clyde. Around 4:00 a.m. Clyde made a circle around the truck, and, according to the handler, picked up a scent and followed it without ever losing it. In the process officers had to swim two canals that were over their heads. Presumably Clyde picked up the scent on the other side each time. At some point, not described, the dog handler saw two sets of tracks (footprints) going along together. After some three to four hours, and three to four miles from where the GMC was found, Clyde and the officers found brother David and appellant asleep under a tree. They had with them one flashlight and two pair of gloves. When they were brought out of the woods the shirt of one of them was torn and both were wet and bore some scratches.

The dog handler was unable to testify, or give an opinion, whether Clyde was following the scent of one person found under the tree, or the other person, or both persons.

From reading the entire record this is all the evidence we can find relating to appellant. ¹

This is not enough to submit to the jury as tending to show that appellant joined in the conspiracy, or that he possessed marijuana. He was discovered in the woods with his brother, three to four miles from the truck owned by the brother, some five to six hours after the truck was discovered unmanned and loaded with marijuana. The truck had last been seen with an identified occupant in it some 12 hours earlier when Gerald drove it into the Savannah motel and registered. Some male drove it from the motel, and a jury could find that he was accompanied by a male passenger, but neither person was identified as Gerald or as appellant. Appellant's first, last and only appearance in the wide spectrum of activities was when he was found and arrested. Until that moment no one identified him as in the company of either of his brothers. No one saw him in either vehicle. No one saw him at the marina where the suspect boat came and went, or on or about the boat. None of his belongings were found at any place. The notebook found in the GMC was not connected to appellant nor the writing in it shown to be his. No fingerprints connected him to vehicles, boat, or to any location. He neither rented nor bought any boat, vehicle, or motel room. No marijuana was found on him, nor any visible evidence of burlap that might have come from coverings of the bales. He was not shown to have any relationship, familial or acquaintanceship, with any one in the conspiracy beyond his relationship with Gerald and David and his presence with David when found in the woods.

We do not speculate whether the motion for judgment of acquittal would have to be granted if there had been sufficient evidence tending to show that appellant had been in the GMC. ² The only evidence even tending to show appellant's presence in the truck was Clyde's pursuit of a scent from near the truck to the sleeping brothers. The only connecting factor is Clyde's nose, and no one can do any more than guess whether Clyde was following the scent of David, the scent of appellant, or the scent of both. In this respect the case is similar to U. S. v. Reyes, 595 F.2d 275 (CA5, 1979). There, four Spanish-speaking aliens were discovered aboard an airplane, piloted by another person, that landed at the St. Petersburg-Clearwater, Florida, airport. Circumstantial evidence tended to establish that the plane had flown in from Colombia with a load of marijuana, that the load had been ditched in the Gulf off St. Petersburg shortly before the plane landed, and that the interior of the plane had been freshly smeared with pineapple to mask the odor of marijuana. The government contended the aliens could be found to be participants in a conspiracy, and therefore guilty of possession, because one or more of them must have pushed the bales of marijuana out of the plane and smeared the plane with pineapple (while the pilot remained at the controls). We held:

Even if we assume the correctness of the government's premises, however, there was no direct testimony that any particular defendant either ejected or helped to eject the bales or did anything to mask the odor of the erstwhile cargo. No other active role in the alleged conspiracy or in the charged importation was even intimated during the government's case.

Reyes, p. 280.

The government would like us to hold that the jury might have...