United States v. Blackston, Crim. No. CR 482-13.

CourtUnited States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
Citation547 F. Supp. 1200
Docket NumberCrim. No. CR 482-13.
PartiesUNITED STATES of America v. Richard David BLACKSTON, Samuel Brantley, Alfred R. Canas, James Murray, Clarence Outler, Clifford Washington, Carroll Barrett Zeigler.
Decision Date13 September 1982

547 F. Supp. 1200

Richard David BLACKSTON, Samuel Brantley, Alfred R. Canas, James Murray, Clarence Outler, Clifford Washington, Carroll Barrett Zeigler.

Crim. No. CR 482-13.

United States District Court, S. D. Georgia, Savannah Division.

September 13, 1982.

547 F. Supp. 1201
547 F. Supp. 1202
547 F. Supp. 1203
547 F. Supp. 1204
Asst. U. S. Attys. William H. McAbee, II and W. Leon Barfield, Savannah, Ga., for plaintiff

Joel Bailey, Beaufort, S. C., for Blackston.

Public Defender Davis Cohen, Savannah, Ga., for Brantley.

James H. Moss, Beaufort, S. C., for Canas.

John R. Calhoun, Savannah, Ga., for Murray.

Robert E. Robinson, Savannah, Ga., for Outler.

Asst. Public Defender Martin C. Puetz, Augusta, Ga., for Washington.

Clyde M. Taylor, Jr., Tallahassee, Fla., for Zeigler.



On February 19, 1982, the above-named defendants were indicted, along with twelve others, for various violations of the Comprehensive Drug Abuse Prevention and Control Act of 1970.1 21 U.S.C. § 801 et seq. Prior to trial, numerous defendants pleaded guilty and they provided severely damaging testimony against their former compatriots. Nine defendants went to trial, which commenced on the morning of April 19, 1982. The jury was sequestered throughout the trial. The trial lasted for five days and the jury began its deliberations during the afternoon of April 24. The jury deliberated for one and a half days, finally arriving at a verdict during the evening of April 25. The above-named defendants were found guilty of all crimes for which they were charged. Two defendants, Jerry Zeigler and James Thomas Sullivan, Jr., were found not guilty.2

As is common in multiple-defendant drug trials in which the evidence of guilt is strong, defense counsel vigorously made motions, prior to and during trial, on matters such as the propriety of joinder, the admissibility of various items of evidence and the form of the jury instructions. The Court denied most of these motions. Defendants Blackston, Canas, Brantley, Washington and Zeigler have now renewed many of their earlier objections and have moved, pursuant to Fed.R.Crim.P. 29(c) and 33, for judgment of acquittal or a new trial. New grounds, all of which relate to matters occurring in the courtroom, have also been raised. Oral argument on the sufficiency of all these grounds was held by the Court on June 8, 1982. Having given careful consideration to each ground, the Court DENIES the defendants' motions for the reasons expressed below.3

These same defendants have also challenged the propriety of the jury's verdict. They allege that the sanctity of the deliberative process was violated by several coercive or otherwise prejudicial influences reaching the jury. Two in camera hearings were conducted by the Court to ascertain the extent of any jury breach. The Court concludes that there was some impropriety disclosed by a conversation between a Deputy United States Marshal and one of the

547 F. Supp. 1205
jurors. However, after a thorough review of the case law in this area, and with due regard for the important policy considerations underlying the rules on a juror's competency to impeach a verdict, the Court objectively determines that the extrinsic communication did not create the possibility for prejudice that would require a new trial and, thereby, DENIES the motion on this ground


A. Sufficiency of the Evidence

Defendant Alfred Canas has challenged his conviction for conspiring to import marijuana on the grounds of insufficient evidence. The Court, however, thinks there was substantial evidence to convict Canas, and DENIES the motion.

Whether a case is based on direct or circumstantial evidence, the standard to apply in deciding a motion for judgment of acquittal is whether reasonable minds can conclude that the evidence is inconsistent with any hypothesis of the accused's innocence. U. S. v. Moschetta, 673 F.2d 96, 99 (5th Cir. 1982); U. S. v. MacPherson, 664 F.2d 69, 73 (5th Cir. 1981); U. S. v. Wieschenberg, 604 F.2d 326, 330 (5th Cir. 1979). The evidence must be reviewed in the light most favorable to the Government, U. S. v. Whitmire, 595 F.2d 1303 (5th Cir. 1979), and if there is substantial evidence to support the jury's verdict, that verdict must be sustained. Glasser v. U. S., 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Finally, it should be noted that to prove a 21 U.S.C. § 963 violation, this Circuit only requires proof of a knowing agreement to commit the substantive drug-related offense; proof of an overt act is unnecessary. U. S. v. Anderson, 651 F.2d 375, 379 (5th Cir. 1981).4

The Government produced two witnesses who conclusively implicated Canas in drug-smuggling schemes. Frank Senior, III, testified that in early September of 1980 he went down to Canas' Key West, Florida, home to plan and prepare for a drug-smuggling venture to Colombia aboard the shrimp boat "Miss Mary." He was present during a conversation with co-conspirator Chester Sudal and Canas, wherein the three discussed code signals to be used during the radio communications between the "Miss Mary" and a radio base-station in Key West. During the conversation, Senior learned that Canas was to install a short-wave radio on the boat and man the base-station. Senior also testified that, although the "Miss Mary's" radio malfunctioned four days into the voyage, prior to the breakdown he did hear Canas' voice during twice-daily conversations with the mainland.

Senior's testimony was supported by the testimony of coconspirator William W. Welch, Jr. Welch indicated that he was also at the Canas home during August and September, 1980, and discussed with Canas preparations for the smuggling venture. He detailed the intricacy of the code system Canas had worked out: a code which included euphemisms for such acts as loading a ship with marijuana — "a party." The details of the code demonstrate Canas was not an unwitting partner in the "Miss Mary" operation but knew precisely the object of the voyage. Welch also testified to a similar role played by Canas in a drug-smuggling operation with the shrimp boat "Lady Lynn" in November, 1980. Welch and Canas discussed radio communication details for that venture in a Cape Canaveral hotel room.

Canas, however, contends that there was no legal evidence to show that the conspirators in each venture intended the marijuana to arrive in America; rather, he claims they intended only to dispose of the drugs in the Bahamas, without any knowledge about its further destination. The evidence indicates that the drugs stored on the "Miss Mary" were jettisoned off the coast of the Bahamas, after the ship was spotted by a Coast Guard reconnaissance plane; and the drugs transported by the "Lady Lynn" on her November, 1980, mission were transferred

547 F. Supp. 1206
to pleasure boats off the Bahamas' coast. Yet, Frank Senior testified that coconspirator Chester Sudal told him during the existence of the conspiracy that the "Miss Mary" was to rendezvous with pleasure yachts off the coast of the Bahamas, where the drugs were to be transported for eventual distribution in Florida. This statement was made by a coconspirator in furtherance of the conspiracy and clearly shows, at least regarding the "Miss Mary" load, the conspirators' intent to import into the United States. Fed.R.Evid. 801(d)(2)(E); see U. S. v. James, 590 F.2d 575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979). Welch also testified that he had been told by the men who unloaded the "Lady Lynn" load that the drugs were destined for Florida. Moreover, the evidence indicates that the small craft which picked up the drugs were American vessels, inferring that the drugs were headed for the United States

The above-recited evidence clearly shows Canas' knowing participation in at least one conspiracy to import marijuana into the United States, and his motion is DENIED.

B. Venue

Defendants Blackston, Zeigler, Brantley and Washington seek reversal of their convictions for possession of marijuana with intent to distribute (Count V) on the ground of improper venue. They claim that the evidence adduced at trial showed that the facts and circumstances surrounding Count V occurred solely within Frogmore, South Carolina, and since the marijuana at issue was never proved to have been located within the Southern District of Georgia, the crime could not have been committed here. Thus, venue was improper.

The defendants are in error, however, in concentrating on the location of the marijuana in determining the proper venue for a 21 U.S.C. § 841 violation. The crime of possession of illegal narcotics with intent to distribute is a continuing offense, and may be tried in any district where the defendants were even temporarily located, as long as the Government proves, by a preponderance of the evidence, that the defendants had knowing possession of the narcotics and the intent to distribute them while there. U. S. v. Davis, 666 F.2d 195, 199 (5th Cir. 1982). Possession need not be actual, but may be constructive. A defendant is in constructive possession of contraband if he has dominion or control over it or over the instrument which contains it. U. S. v. Salinas-Salinas, 555 F.2d 470, 473 (5th Cir. 1977). Most importantly, this Court can find no case holding that constructive possession is abrogated by jurisdictional boundaries. A party may have constructive possession of an object, even though it lies across jurisdictional lines. See U. S. v. Williams, 503 F.2d 50, 51-53 (6th Cir. 1974).

In the instant case, the Government showed that the defendants had joint control over the marijuana in Frogmore, even when they were in Chatham County, and their ultimate objective in gaining that control was eventual...

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  • U.S. v. Brantley, 82-8270
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • May 23, 1984
    ...Frogmore, for as the district court noted, a party may constructively possess an object across state lines. United States v. Blackston, 547 F.Supp. 1200, 1206 (S.D.Ga.1982). See United States v. Williams, 503 F.2d 50, 52-53 (6th Cir.1974) (defendant in Cleveland constructively possessed sui......
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    ...to commit an offense in New Jersey even though the actor is outside this State's boundaries. See also United States v. Blackston, 547 F.Supp. 1200, 1206 (S.D.Ga.1982) (a party may have constructive possession of object across jurisdictional boundaries); cf. N.J.S.A. 2C:5-2a (definition of 3......
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    ...meets constitutional standards of due process.' Byrd v. Wainwright, 428 F.2d 1017, 1021 (5th Cir.1970)." United States v. Blackston, 547 F.Supp. 1200, 1207 (S.D.Ga.1982). While the trial court could properly consider countervailing[200 Conn. 321] factors such as the right to control its own......
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