United States v. Alberto Pintado
715 F.2d 1501
11th Cir.
1983
Check Treatment

*1 1501 ” Id.12 Further, of the search.... our re-

view of the record indicates the offi- in a

cers conducted their search reasonable

manner, cutting a small hole the deck of only

the vessel after less destructive meth- examining proved

ods to be interior

unsuccessful.13 judgment of the court is AF- district

FIRMED. America,

UNITED STATES of

Plaintiff-Appellee, PINTADO, Defendant-Appellant.

Alberto

No. 82-5503. of Appeals,

United States Court

Eleventh Circuit.

Sept. 26, 1983. Appellant (noting “longstanding” contends that different rules rule that officers applied already executing be boat had should because the a search must warrant “avoid unnec- placed essary damage premises”). been removed from the water on a When law argument right trailer. We decline to address enforcement officers have to conduct vessel, however, they the result the same because would be even if full-scale search of a can applied applicable necessary we rules vehicle take reasonable measures which are Ross, gain any searches. See United 798, U.S. access to areas of the vessel that might object S.Ct. L.Ed.2d 572 contain the their search. Cf. States, (1982) (holding proba- 238, 258, that when officers have Dalia v. United U.S. lawfully stopped vehicle, 1682, 1694, (1979) (noting ble to search a cause S.Ct. 60 L.Ed.2d they “every part executing search of the can vehicle and that “officers search warrants on oc- object may damage property per- its contents conceal casion must in order to search”). Otherwise, duty”). person form their preclude inspection simply a vessel’s interior by covering over Obviously, all entrances the interior so law officers must be enforcement damage that some to the vessel would be inevi- damaging personal property careful to avoid attempted See, table if officers e.g., conduct full- conducting when a search. W. LaFave, Seizure, scale search. 4.10, Search and at 161 § *2 to 841(a)(1) pos- and 846 of

§§ with intent to distribute marijuana sess I) (Count possession II). re- (Count juryA intent to distribute verdict on Count I and guilty turned a verdict as to to reach a unanimous unable appeals Pintado his conviction. II. Count support evidence insufficient to Finding the verdict, we reverse. January Beginning p.m. at 8:00 1982, agents of the U.S. Customs Service of a conducted a surveillance (“Customs”) Largo, Key district of house in a residential a canal lead- The house bordered Florida. racing-type A the Atlantic Ocean. ing to boat was docked behind “cigarette” along the lights the canal. Dock house in was detect- light illuminated. A canal were covering a curtain in the house behind ed window, picture security lights in the rear of the house were on. a.m., January 1:00 approximately

At flash light officers observed a Customs person, appearing across the canal. One house, female, proceeded exited the be a down. Around 1:40 the seawall and sat persons officers saw several a.m. Customs from the area running empty-handed boat, re- house down to the around the large bun- carrying from the boat turning them, “moving so fast in front of dles each passing to count were hard they [and] from the boat. coming going other revealed Record, Testimony Vol. 2 at 34. Levine, Entin, D. Dion, Spencer Ron A. were involved and persons six” that “about Schwartz, Broudy, Dion & North Angert, virtual- was conducted the entire Beach, Fla., defendant-appellant. for Miami silently. ly Marcus, Robert M. Atty., U.S. Stanley observations, a Customs after these Soon Schwartz, At- Asst. U.S. Barbara Lipman, up drove lights flashing vehicle with blue Miami, Fla., plaintiff-appellee. tys., an- agents the house and the front of al- English and

nounced “U.S. Customs” who officials legedly Spanish. also also the surveillance conducting had been the area. As officials approached Customs HEN- HILL, KRAVITCH Before approached, two of the who were DERSON, Judges. Circuit remained outside engaged offloading house The others ran and were arrested. PER CURIAM: entered the the house. Officials inside six males persons, seven A total of Pintado, along with house. Alberto Appellant female, were arrested. 21 U.S.C. and one others, under five was indicted Appellant person Pintado was the last stantial evidence to support it when the agents arrested. Two climbed the are stairs facts viewed in the light most favorable government.” the second floor of the house and were v. Da- vis, confronted with a pair locked doors. An F.2d doors, official one knocked on an- To establish to vio *3 English nounced in Customs” and “U.S. late the narcotics laws under 21 U.S.C. asked whoever was in room to come out. 846, the government prove § must there received, no response When was the door agreement was an two by or more persons wearing pair was forced a open. Appellant, to violate those laws and that the individual shirt,1 of pants a perhaps was found of defendant was one the parties to that hiding in the closet. agreement. Blasco, United States v. 702 Thereafter bales of twenty-nine damp 1315, (11th F.2d 1330 Cir.1983); United marijuana wrapped plastic in black were Tamargo, 887, States v. (11th 672 F.2d 889 discovered in and a Volkswagen around van cert, Cir.), denied,-U.S.-, 103 S.Ct. parked an inside enclosed The garage. door 141, (1982). 74 L.Ed.2d 119 The existence of the garage open. was The officers found conspiratorial of a agreement may be estab- clothing “number of sets of in the closet through lished direct and/or circumstantial area the first floor of the which [on house] evidence, Blasco, United v. States 702 F.2d wet dirty.” Record, were damp “ 1330, at including ‘inferences from the Vol. 2 at 80. There was testimony no as to participants conduct of the alleged or from the number sets of or the sizes of the cloth- ” Id., circumstantial evidence of a scheme.’

ing. quoting United States v. Spradlen, 662 F.2d 724, (11th Cir.1981). 727 guilty To be of a Appellant challenges sufficiency conspiracy a defendant need not have of the evidence to sustain his conviction. In knowledge every of detail of the conspiracy. determining sufficiency of the evidence: Knowledge the primary objective of of the It is not necessary that the evidence ex Id., citing will suffice. United clude every reasonable of in hypothesis Tamargo, supra, v. States 672 F.2d at 889. nocence or be wholly inconsistent with No of an showing overt act is required to every except pro conclusion that of guilt, prove a conspiracy under 21 U.S.C. 846. § vided a trier fact reasonable of could find 1330; Davis, Id. at United v. States that the guilt evidence establishes beyond 195, (5th F.2d 201 n. 9 Unit Cir. B jury reasonable doubt. A is free to Here, Blasco, as in United v. States among choose reasonable constructions of 1331, F.2d at we have no doubt but that the the evidence. government adequately proved the exist Bell, 547, (5th United States v. 678 F.2d ence of a conspiracy. issue before us is 1982) (en Cir. B banc),2 Unit aff’d other whether was totality evidence grounds,-U.S.-, 2398, 103 S.Ct. 76 sufficient, conjunction in with reasonable (1983). L.Ed.2d 638 therefrom, inferences that could be drawn “In applying this all standard reasonable jury for the to conclude that inferences credibility choices must be a member of that conspiracy. We answer in verdict, made favor of and that in negative. this question Cf. United be Blasco, verdict must sustained if is there sub- v. 702 F.2d States at 1331-32. Securities, Inc., Reynolds conflicting The evidence is as to how com- In Stein v. 667 F.2d pletely Looking 33, attired the defendant was. (11th Cir.1982), adopted this court as light evidence most favorable to the precedent B all decisions of Unit of the former government, purposes, as we must for these Fifth Circuit. infra, see 1503, text wearing a shirt. There is no evidence as to whether he wore shoes. cited DeSimone, 660 F.2d DeSimone and other cases v. In United States (5th 1981), the court 536-38 state the law that neither correctly above at trial was the evidence adduced held that scene in nor at the mere of jury verdict support insufficient fleeing or from of conjunction hiding In narcotics.3 possess guilt of a con support of the law alone will ficers the court stated: concluding so v. conviction. See United States spiracy consistently held that mere We 492 F.2d Cir. Lopez-Ortiz, involved in association with cases, 1974). Since the decisions in these is insufficient enterprise criminal however, court has a new stan adopted See, a conspiracy. prove participation sufficiency evi judging dard Horton, v. 646 F.2d e.g., set forth above. United States dence (5th Cir.1981); 181, 185 United States Bell, (a jury 678 F.2d at 549 verdict supra, Fitzharris, (5th Cir. 633 F.2d “a stand if reasonable trier guilt must *4 Barrera, v. 547 F.2d 1980); United States find that the evidence establishes fact could 1250, (5th Cir.1977). just We doubt”). beyond a reasonable guilt emphasized pres that mere strongly as is of not ence at the scene the crime Blasco, v. 702 F.2d at In United States conviction. enough conspiracy to sustain a 1332, Bell and held applied the standard we See, e.g., Reyes, v. 595 F.2d United States early morning hours on presence that in the (5th Cir.1979); Barrera, supra, at property of at which an piece a secluded is also by flight 1256. Presence followed conducted, an being off-load United States v. Lo inadequate proof. that could be that created noise enterprise 109, 115 Cir.1974). (5th 492 F.2d pez-Ortiz, yards pungent and a away over 200 heard case, the In we are confronted with this air, that the pervaded odor of combined circumstances of DeSimone’s presence and more than mere constituted at vari with his co-defendants association reasonably cautious could infer that “a days period ous times over a of several the circumstances” that both from these attempted flight in the middle and his attempting while defendants arrested which was night the from an automobile and those inside and hide from officials flee airport, a ditched near the Greensboro involved sitting outside the house were certainly remote area. This evidence possess intent to a with the conspiracy in prove but be suspicion, arouses does it marijuana. words, Id. In other yond a reasonable doubt that DeSimone distribute in the participation ihat import and distribute mari we held conspired to juana? pres- think not. from the reasonably We could be inferred conjunction the in with ence of defendants Soto, v. Id. at See also United States surrounding that the circumstances all of (5th Cir.1979); United States 591 F.2d Cir.1974).4 (5th presence. 496 F.2d 1354 Maspero, v. truck, appellant both near in a fuel In and several codefend- trailer and another DeSimone vicinity airplane apprehended plane, in the of an and oth- ants were arrested the DeSimone airport vicinity which had at a secluded in landed the rent- er in the one of defendants marijuana. early morning with hours laden which had been ditched on road ed cars identified as one who had The defendant was airport. leaving the presence of in the several other defend- been in While the evidence found insufficient preceding preceding afternoon. The ants the convict, clearly much DeSimone to there was rented two week some of the codefendants conspir- to the evidence to tie DeSimone more trailer, van, trucks, conveyors, a several skate a acy appellant there than Several of the defend- and two automobiles. in case. the in'stant registered group Quality in Inn had as a a ants motel; paid by cash one of the all rooms in rendered the former Fifth Circuit 4. Decisions of registered in name of a defendants binding prior this 1981 are to October company. development fictitious land Prichard, City 661 F.2d court. Bonner officers, police agents re- after Customs Cir.1981) banc). (11th (en ceiving tip, airplane a corralled the loaded marijuana, in a tractor- arrested codefendant

We a contrary reach conclusion here. that evidence introduced trial and all government no provided reasonable inferences evidentiary therefrom were insuf- ficient for “a other than in reasonable trier of fact appellant’s basis [to that house, evidence closet, from hiding which an conclude] established] guilt beyond reasonable doubt.” United participation inference of conspiratorial . Bell, States v. supra, 678 F.2d at 549. be drawn could we Hence REVERSE. though testimony Even showed that shirt, was clothed in pants and HILL, JAMES C. Circuit Judge, Concur- supra, see note 1 and from this the jury ring Specially. reasonably reject defense counsel’s ar- I Although perceive a tension between gument had sleeping been in case Blasco, and United States v. the bedroom the time the customs offi- (11th Cir.1983), F.2d 1315 it is clear we house, cials entered the by are DeSimone, bound house, asleep, more, awake or without does 660 F.2d Apply- not provide sufficient basis to infer par- ing the judgment court’s in DeSimone to agreement. or ticipation There are no ob- particular facts this case results in jective facts or circumstances from which my concurring in the result here. appellant’s knowledge opera- of the ongoing tion could be inferred. Cf. id. at 1332.

Government witnesses testified that

off-loading operation was conducted almost

silently, garage marijuana in which the

was found was not visible from within the discovered, appellant

house where ALMON, Plaintiff-Appellant, Eddie the government provided no connection be- tween the and the oth- clothed, er than his hidden JERNIGAN, Warden, Marvin Central damp, house.5 Several sets of dirty cloth- Institution, Correctional ing were found the house. The clothing Defendant-Appellee. way was in no to tied either No. 82-8571. through evidence that the number of sets of clothing coincided with the of ar- number United States Court of Appeals, or restees indictees or that size any Eleventh Circuit. clothing compatible set of appel- Sept. lant’s size. clothing government

Whether or not its case on proved poten- the basis of

tial evidence its disposal, we conclude government merely estimating relies on the combination of and was there were the facts that a six”; (2) Customs officer testified that importantly, “about more there was persons participat- six” “about were observed undisputed testimony appeared that “what ing operation in the off-load and a total of Record, female,” be a Vol. 2 was seen persons only were seven arrested but six indict- sitting approximately on the seawall at 1:00 apparently ed because officials believed that only a.m. There was one female discovered on operation the female was not involved in the or premises. Considering these two facts the conspiracy, argue that it was reasonable jury reasonably could not conclude only persons for the to infer that six were asleep during female was house en- involved those six were the ones government tire as the would have indicted. Such an inference is not reasonable attempt equate had them in an believe (1) due of two facts: the Cus- admittedly estimated number of off-loaders and affirmatively toms official stated that he could the number of indictees. four, five, six, not tell whether were there sev- en, persons present or some other number of