United States v. Squella-Avendano

• Decision Date: 01 June 1973
• Docket Number: No. 72-1798.,72-1798.
• Citation: 478 F.2d 433
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Oscar SQUELLA-AVENDANO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

478 F.2d 433 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Oscar SQUELLA-AVENDANO, Defendant-Appellant.

No. 72-1798.

United States Court of Appeals, Fifth Circuit.

April 13, 1973.

Rehearing Denied June 1, 1973.

Donald I. Bierman, Miami, Fla., for defendant-appellant.

Robert W. Rust, U. S. Atty., Bruce E. Wagner, Asst. U. S. Atty., Miami, Fla., Mervyn Hamburg, Appellate Sec., Crim. Div., Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and MOORE^* and RONEY, Circuit Judges.

RONEY, Circuit Judge:

Oscar Squella-Avendano, a Chilean national and owner of a small cargo airplane, was convicted by a jury of the unlawful possession and importation of 202 pounds of cocaine. 21 U.S.C.A. §§ 173, 174 (repealed October 27, 1970); 26 U. S.C.A. §§ 4704(a), 4705(a), 7237. Defendant challenges the sufficiency of the evidence and certain procedural and evidentiary rulings, which he claims cumulate to the level of reversible error. We affirm.

I. Sufficiency of the Evidence

In July, 1970, Government agents learned of a proposed shipment of cocaine from Chile and commenced a continuous surveillance in the Coral Gables, Florida, area of suspected individuals and an apartment used by co-defendant Rodolfo Quintanilla. On July 26th, a 1970 Ford bearing a rental license plate was placed under surveillance. The following morning, Quintanilla, accompanied by another co-defendant, drove the Ford to Miami International Airport and left it at a nearby parking lot. Several hours later, defendant Squella drove this vehicle into the cargo area of the airport. The Government agents then espied him unloading certain cartons from his airplane, which he had flown to the United States from Chile five days before, and placing them in the trunk of the automobile. The agents' recollections differed as to whether defendant looked into any of the boxes.

Within a few hours, Squella returned the rented car to the same parking lot; and two hours later, the vehicle was picked up by Quintanilla, who was then lost by the agents for a period of some five to twelve minutes. When found, Quintanilla was observed unloading an unidentified box from the car's trunk to his apartment, the subject of the surveillance and the site of the arrest. Within a few minutes, the agents searched the apartment and found cocaine and wine bottles in suitcases and in cartons marked "Plinella," a Chilean brand of wine.¹

Before this incident, Squella's name had never been brought to the Government's attention, and throughout the investigation he had never before been observed in association with the co-defendants. His broad defense is that he had taken a spontaneous trip to the Dominican Republic with a load of baby chickens and, upon his return, he thought he was unloading cartons of wine and a box of trash.

Defendant challenges the adequacy of the evidence to support the jury's conclusion that the cocaine found in Quintanilla's apartment came from defendant's plane, that the narcotics had been in the boxes which defendant unloaded from his plane, and that he was aware of their contents.

Although undisputed direct evidence shows that defendant unloaded boxes from the plane, only circumstantial evidence is available to prove that those boxes were the objects subsequently found in the apartment and that he was aware of their contraband contents. Government agents testified that, although they observed him inspect the cartons which he unloaded, they could neither view their contents nor identify markings on the boxes. Sixty yards away, an agent using field glasses faintly recognized some writing—"Planters," "Plants," or "peanuts," it was thought. There were neither fingerprints, clear markings, nor other direct evidence to show conclusively that the boxes unloaded by Squella were those found in the apartment or that he had knowledge of their contents.

As a reviewing court, we must decide whether reasonable jurors could conclude beyond a reasonable doubt that Squella knowingly unloaded from the plane the cocaine found in the apartment.

Two basic rules guide our consideration of the sufficiency of the evidence: the evidence must be viewed 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 we must make all reasonable inferences and credibility choices as will support the jury's verdict of guilty. See Gordon v. United States, 438 F.2d 858 (5th Cir. 1971).

Having done this, however, we are at once confronted with the fact that certain events could have occurred which would be consistent with all of the evidence presented to the jury and which would prove the defendant innocent of the crime charged.

Among these hypotheses of innocence, for example, are the following scenarios:

(1) Squella, thinking the boxes he was unloading from the plane contained wine and trash, did not know that their actual contents were cocaine; (2) the cartons did not contain wine and trash when unloaded into the trunk of Quintanilla's automobile, but during the lapse in the Government's surveillance, the original cartons were replaced by similar ones containing cocaine, or their contents were simply changed; or (3) the cocaine found in the apartment came from someplace other than the trunk of Quintanilla's car and was either in boxes other than those Quintanilla unloaded or had been placed in those boxes upon their delivery to the apartment and before arrival of the agents.

The question for our determination is whether the jury verdict must be set aside because the Government's evidence did not entirely refute such hypotheses of innocence.

Some early cases held that circumstantial evidence must be inconsistent with every hypothesis of innocence. See, e. g., Barnes v. United States, 341 F.2d 189 (5th Cir. 1965). Under that rule, reversal of Squella's conviction would be required. Other cases held that the evidence must be inconsistent merely with every reasonable hypothesis of innocence. See, e. g., Cohen v. United States, 363 F.2d 321 (5th Cir. 1966), cert. denied, 385 U.S. 957, 87 S.Ct. 395, 17 L.Ed.2d 682; Newsom v. United States, 311 F.2d 74 (5th Cir. 1962). Observance of that rule, though, would cast this Court in the role of the jury. If one hypothesis of innocence were to satisfy this Court's sense of reasonableness, we would then have to reverse the verdict.

We have since settled on a standard which requires reversal of a guilty verdict unless the trier of fact "could reasonably find that the evidence excludes every reasonable hypothesis, except that of guilt." United States v. Sidan-Azzam, 457 F.2d 1309, 1310 (5th Cir. 1972); United States v. Garza, 426 F.2d 949 (5th Cir. 1970); Henderson v. United States, 425 F.2d 134 (5th Cir. 1970); Harper v. United States, 405 F.2d 185 (5th Cir. 1969); Roberts v. United States, 416 F.2d 1216 (5th Cir. 1969); Riggs v. United States, 280 F.2d 949 (5th Cir. 1960).

There is some suggestion that the above statement of the rule presents a standard which is different from or stricter than that set forth in United States v. Warner, 441 F.2d 821 (5th Cir. 1971). The Warner opinion dealt with Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954), a case concerning requested jury instructions. Holland involved the net worth theory of proving income tax evasion. Contending that the Government's evidence did not disprove that nontaxable sources might be responsible for the increase in his net worth, the taxpayer argued that the trial judge should have instructed the jury that, where the Government's evidence is circumstantial, it must exclude every reasonable hypothesis other than that of guilt. Mr. Justice Clark, speaking for the Court, refused to follow such a rule:

"Circumstantial evidence in this respect is intrinsically no different from testimonial direct evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more."

348 U.S. at 140, 75 S.Ct. at 137. In Warner, Judge Wisdom concluded from Holland that "The same test, therefore, for judging the sufficiency of the evidence should apply whether the evidence is direct or circumstantial." 441 F.2d at 825.

Reconciling the holding in Holland with some earlier Fifth Circuit cases which suggested a special rule for reviewing the sufficiency of circumstantial evidence, Judge Wisdom rephrased the substantial evidence test:

"In criminal cases based on circumstantial evidence our task is to determine whether reasonable minds could conclude that the evidence is inconsistent with the hypothesis of the accused\'s innocence. United States v. Andrews, 5 Cir. 1970, 427 F.2d 539, 540; Surrett v. United States, 5 Cir. 1970, 421 F.2d 403, 405. Notwithstanding these differences, which some might term verbalistic, we are in agreement with our brothers in other circuits that where the evidence be direct or circumstantial, the matter of the defendant\'s guilt is for the jury to decide unless the court concludes that the jury must necessarily have had a reasonable doubt."

441 F.2d at 825. See United States v. Sutherland, 463 F.2d 641 (5th Cir. 1972); 3 L. Orfield, Criminal Procedure Under the Federal Rules, § 26:446, at 778; 2 C. Wright, Federal Practice & Procedure § 467, at 259.

In the case at bar, we are concerned with the approach a reviewing court, either on motion at the trial level or on appeal, should take to the consideration of the sufficiency of the evidence to support a jury's guilty verdict. We are not considering questions regarding special jury...