United States v. Edward Rodriguez, A/K/A Rick, Thomas J. Albernaz, Peter Smigowski, and William John Martins

instructions, final Captain Jones the *, Judge, and Before SKELTON Senior coordinates for a rendezvous including the RUBIN, Judges. FAY and Circuit used freighter, with the and codes to be communicating with it. Albernaz when RUBIN, Judge: ALVIN B. Circuit 1,100bales they were to unload stated that challenge their appellants convictions each, pounds and that containing about on of a two count indictment both counts bales option an for 300 more there was import marijuana charging conspiracy to mes- particular which could be obtained if a conspir- and a violation of U.S.C. § freight- sage given captain were the of the acy marijuana in violation of to distribute er. The II left West Palm Beach Catchalot 841,1alleging that some twenty U.S.C. § evening January the of with a crew were below. different errors committed secretly composed agents, of DEA Customs Their of contentions marches cavalcade agents, civilians. Albernaz and Rodri- and background a of dramatic events guez arrange continued their efforts to for government narrated witnesses. A delivery cargo. of valuable panorama fitting full would be material for later, days a to Two the co-defendant William opinion novelist but redundant so Piper Navajo we Martins a aircraft. appears recount so much as essen- chartered Martins, Albernaz, Rodriguez together and tial for decision. pilots, plane

with three flew on the from Fort Lauderdale to the Bahamas. Martins I. pilot, Jerry Harvey, told one were During lengthy intrigue a conducted with was in searching fishing for a boat which defendants, special a agent various of darkness, trouble. Due to the rendezvous the Drug Enforcement Administration completed, so the of the vessels could not Weed, (“DEA”), represented Theodore him- Martins, carrying plane Albernaz and Rod- being self as able to obtain a boat that riguez returned to Fort Lauderdale. Har- marijuana from a could unload vessel at sea trip. for the vey paid was $900 Florida. transport and it to He was to be paid $200,000 percent again chartered day, or ten of the value of The next Martins Martins, Harvey flew cargo, eventually represent- which was aircraft. Harvey’s 40,000 Rodriguez freighter ed He Albernaz and over the pounds. ap- to be was first II; proached by messages the defendant Albernaz. Dur- and the Catchalot were ing ensued, negotiations dropped indicating the course of to each the location of he was introduced to defendants the other vessel. The Catchalot II estab- Smigowski, principals. and pickup Albernaz’s lished itself as the boat via the use * marijuana Judge Senior of the United States 2. The was transferred 30 miles east Court of Claims, sitting by designation. Cay, outside of Abaco Island in the of Elbow Bahamas, 200 225 miles east of the United Conspiracy punishable 1. to violate 952 is un- § States. Conspiracy der 21 to violate U.S.C. § punishable § 841 is § under U.S.C. make a story but “he had to his give would Captain Albernaz. the code disclosed . ..” talking . prior to freighter telephone call captain of the informed Jones so he recently died immediately. parents had Martins’ “to offload” he wanted friend, that he Bob Frost freighter replied Captain family captain called dark, eventually but Department, and asked to wait Police wanted the Hialeah asserting that he after cooper- to unload he should agreed or not whether his friend daytime before. never “offloaded” Captain had Frost agents. the federal ate with up alongside II tied The Catchalot the circumstances Martins about asked marijuana were 150 bales freighter and indicated arrest; defendant young by the to a careful count pursuant unloaded marijuana deal into a gotten that he had Captain Jones. freighter captain of $20,000. given him had and that someone coop- Martins to advised marijuana bales Frost then Captain to stow the Ostensibly away Martins became deck, II moved agents. the Catchalot erate with the below that, covertly called if Captain and then Frost freighter, very upset; from he said few During the next killed. After the Coast Guard. he would be cooperate, he did II maintained dis- the Catchalot Martins, hours Agent Fernandez Frost advised The Coast Guard freighter. that, tance from Frost promised got phone on the on the scene appeared Dauntless vessel pro- DEA would cooperated, if Martins p. 7:00 m. approximately Department Police vide the Hialeah gave then Martins information. helpful English, Using Spanish both himself incriminated statement freighter vessel ordered Coast Guard defendants. some of the other and, approxi- after respond stop. It did minutes, fired the Coast Guard mately 30 each convicted The defendants gun across of a machine three short bursts marijuana, conspiracy import 21 U.S.C. from a It then fired three rounds its bow. (Count I) and a § freighter stop. This caused the canon. marijuana, distribute 21 U.S.C. § aboard the seamen Thirteen Colombian (Count II).4 There no distinction arrested, and, although sepa- freighter were allegations whatsoever the between tried, co-conspira- charged as rately were Count I and the II Count appeal herein. The appellants with the tors conspiracy except that each count cited a report- separately from their convictions statutory different section and different Cadena, 5 Cir. ed. United States objective. charged The overt acts and all 1252. the other recitals of the indictment in each events were occur- About the time these count were Appellants identical. elev- raise Rodriguez Martins and ring, defendants convictions; challenges en their common to room, and arrested in a Miami hotel were nine grounds, Martins raises additional warnings given were to them. Miranda3 Smigowski challenges separately the suffi- were arrested an and Albernaz ciency of the evidence. the same hotel. hour later at headquarters, Agent Fernandez At DEA II. Martins was 18 and discovered that defense ingenious raise an Appellants In an got asked him how he into trouble. entrapment. jurisdictional state, they which call replied Martins that he emotional counts, years to be Arizona, 1966, both three on sentences 3. Miranda v. consecutively. sentenced Martins was 16 L.Ed.2d 694. served S.Ct. count, years the sentences on each to three imprisonment was sentenced concurrently. was sentenced Each be served counts, years for four and one-half on both years each special parole on of two term to a consecutively. Alber- sentences to be served Rodriguez, consecutively by count, to be served imprisonment for three naz sentenced to was by concurrently Smigowski, and Albernaz count, months) years (42 each on and one-half Martins. consecutively. Smi- to be served the sentences imprisonment gowski sentenced to was that, predisposed import mar- They they conspired note had to im defendants were port marijuana freighter ijuana States, from a located into the United and were country entrapped international waters into some oth neither doing into so nor en- they er than the agents. would meshed in crime federal have a crime committed Appellants also contend that subject jurisdiction. to its States or be adequately allocate the charge failed government They contend that induced respect to the stan proof burden of import marijuana conspire them to government entrapment defense. The dard into, within, distribute it be proving has the “ultimate burden [of] country. States rather than another In ad predisposition yond reasonable doubt dition, appellants raise the related issue and not inducement was the cause of the into the United importation Tate, crime.” United therefore, suggested by government; United States v. were in a crime enmeshed fomented Groessel, cert. misconduct, they urge, the state. This re denied, 1971, quired acquittal. their See United States v. point L.Ed.2d 713. At the where the court Oquendo, 5 where entrapment, specifically discussed it did not approved submitting the court jury to the However, proof. describe the allocation of both the entrapment traditional defense properly it indicated that a reasonable and the different but entrapment related required acquittal.7 doubt as to inducement defense discussed in United States v. Bue jury general was instructed that no, denied, proof beyond burden of reasonable doubt 36 L.Ed.2d government, was on the and was evident 411.5 from charge as a whole that this alloca governed entrapment tion defense. We need not consider and endorse or approved This court has similar instruc disclaim legal bases on which these con Banks, tions. United postulated tentions are because the factual see also United States hypotheses on which were also based Groessel, supra, 440 F.2d at 607. judge not established. The trial sub jury mitted each contention to the under an III. adequate charge,6 and there was a suffi cient evidentiary jury basis for the charge con The trial court also included in the clude, doubt, beyond a reasonable jury following statement with Bueno, entrapment this court held that is 7. The read: established as a matter of law whenever you, jury, beyond If should find a reason- question supplied contraband in is to the de- able doubt from the evidence in the case that government agent, fendant even where the anything respecting before at all occurred predisposed. defendant is Bueno was effec- alleged case, offense involved in this the de- tively by Hampton States, overruled v. United ready willing fendants were to commit 1976, 484, 1646, 425 U.S. 96 S.Ct. 48 L.Ed.2d crimes, charged such as the indict- ment, opportunity whenever was afford- and that ed the Government officer or their Appellants complain the court did not agent opportunity, did no more than offer the jurisdictional entrapment instruct could jury then the should find that defendants are predisposition occur if had a to commit entrapment. not victims of only against crimes other countries. Even if hand, the other On if the evidence should predisposition contemplate particular must you leave doubt as to wheth- reasonable jurisdiction, adequately explained this was previous er the defendants had the intent or charge provided part: which in relevant purpose any offense of the charac- commit In the event the evidence establishes] charged ter and did because so government induced the defendant im- persuaded by were induced or some officer port marijuana and/or distribute the into the Government, agent your or of the then it is States, opposed jur- as to some other duty acquit them. country, isdiction or then the en- defense of trapment will lie.

1241 doubt doubt with substantial of reasonable doubt general reasonable occasions, and, although it on a number of standard: formulation, disapproved expressly a doubt that is A reasonable doubt means error. United yet found reversible has not and common sense. based on reason 1976, 625, F.2d Crouch, 528 7 Cir. v. States rather must be substantial Such doubt 900, 97 denied, 1976, 429 631, U.S. 630, cert. speculative. than 184; v. 267, L.Ed.2d United States 50 S.Ct. 1972, Alvero, 5 Cir. In United v. States 1021, 1023 Shaffner, 1975, n. 524 F.2d 7 Cir. 982-983, 981, court reversed a 470 F.2d 920, denied, 1976, 96 2, S.Ct. cert. U.S. charged: the court conviction because 327; v. 1126, 47 L.Ed.2d United States doubt, any but speculative “It is not a 440, Lawson, 1974, 433, cert. 507 F.2d 7 Cir. doubt, common, substantial reasonable 1446, denied, 1975, 1004, 95 S.Ct. U.S. ... ordinary horsesense doubt Compare United L.Ed.2d 762. States doubt, put let me it that very substantial 179, 185-186, 1974, Bridges, 7 499 F.2d way, guilt defendant.” 1010, denied, 1974, 419 95 S.Ct. cert. U.S. added.) (Emphasis 330, recently 284. Most 42 L.Ed.2d Turk, However, in United 5 Cir. States definition, noted, Supreme “this Court 669, denied, 1976, 1976, 654, 526 F.2d cert. reversible though not in itself er perhaps 74, 84, 823, 50 L.Ed.2d 97 S.Ct. U.S. ror, confusing.” often has been criticized Muckenstrum, 5 in United 478, 488, 1978, Kentucky, Taylor v. U.S. 570, denied, 1975, 1975, 568, 515 F.2d cert. 1930, 1936, 56 L.Ed.2d 468. Addi 98 S.Ct. 1032, 564, 406, 46 L.Ed.2d 96 S.Ct. appeals have con tionally, other courts of despite express our we sustained a verdict equations and decided sidered similar stating: charge disapproval particular case that a new context of each must be substantial rather doubt Such required. trial was is, a defendant is speculative, than 1976, 431, 437, 2 Cir. Magnano, suspicion be convicted on mere never to 1977, 1091, denied, cert. S.Ct. conjecture. or 536; 1101, v. Fall 51 L.Ed.2d certainly It would have been better 177; en, 8 Cir. given to be in other terms. for the Christy, 6 Cir. LaBuy, Jury But cf. Instructions in Federal denied, cert. 404 U.S. 450— Criminal Cases 6.01—3. There is no want § United States v. S.Ct. 30 L.Ed.2d of jurisprudence to how the 294, 299, Aiken, reasonable doubt standard be ex denied, 1967, 389 U.S. plained. Winship, discussions in In re See v. Grat also United States L.Ed.2d 93. See 25 L.Ed.2d S.Ct. ton, Holland v. United Atkins, 516, 522-523, aff’d, the courts found simi where 99 L.Ed. 150. Little new plain error were not lar instructions can, should, years be added after 200 ob Fed.R.Crim.Proc. absence of a Rule judicial use of same term. But objection was made here. timely jection. A charge given sufficiently akin to the ones Muckenstrum, permitted in Turk and where doubt” reviewing “reasonable employed to substantial doubt was contrast whole instruction charges, we look to the speculation, to warrant affirmation. Un any particular sentence. rather than isolate Alvero, like the it does not direct Patman, 1977, 557 equate “very ly reasonable doubt sub 1181; Steinkoenig, 5 stantial doubt” or even with a “substantial 225; 1973, v. United Cir. Russell by introductory phrase doubt” use of an 1970, Baker v. States, as, put way.” such “let me it th[is] 1069, States, 1969, United denied, 1970, cert. 396 U.S. S.Ct. We note that Circuit Court Seventh Tillery v. United equation has with the 24 L.Ed.2d Appeals wrestled be considered 45 L.Ed.2d the factors to States, 790. When explained: were in this determination contextually, the reference does not viewed However, we error. constitute reversible warnings important are an The Miranda misstating this gravity underscore the determining whether factor ... elementary’ princi “bedrock ‘axiomatic by exploitation obtained the confession is ple whose ‘enforcement lies at the founda illegal arrest. But are not the of an tion of the administration of our criminal only tempo- The factor be considered. ” law,’ Winship, In re 397 U.S. proximity ral of the arrest and the con- 1068, 1072, 363, 90 25 L.Ed.2d S.Ct. fession, intervening cir- presence States, 1895, citing Coffin v. cumstances, and, particularly, . . . 432, 453, 15 U.S. S.Ct. 39 L.Ed. purpose flagrancy of the official join admonishing Circuit in Seventh . . . misconduct are all relevant giving “that a district court a reasonable course, rests, on the burden . . . containing challenged doubt instruction prosecution. equation notwithstanding a Rule 30 chal (Footnotes omitted.) See also United lenge can reasonably expect a reversal. We Ceccolini, would assume further that district courts in S.Ct. 55 L.Ed.2d 268. expressed view of the dissatisfaction by warnings given Miranda Muckenstrum, Turk, court Alvero and [in although sign Martins he refused to a form language now with the would sua here] affirming Hop this. See United States sponte phrase eliminate the from their set kins, denied, of standard instructions even in the absence objection.” of a Rule 30 L.Ed.2d 550. The confession did not actual

Wright, 7 Cir. ly occur until transported Martins was IV. DEA offices and after he had the benefit of Frost; intervening Captain advice of Because significance of its with respect to attorney, while Frost is not an Martins was follow, discussions that we turn aside to meaningful able to obtain counsel from consider the issues appellant raised as, as, him. Frost was consulted and acted concerning Martins the admissibility of his friend, official. not as a law enforcement confession. It is contended that this should helpful The offer of information Frost be suppressed as the fruit of an illegal exchange cooperation for Martins’s came Wong arrest. See Sun after Frost’s advice and did not affect it. 9 L.Ed.2d knowing The record indicates that Martins ly rights his to si voluntarily waived arrest, At the time of Martins’s by insisting lence of counsel and assistance agents knowledge had no that he was con Finally, story. that he wanted to tell his nected with the conspiracy although they government’s flagrant conduct was not passenger had seen his name on the mani Therefore, reprehensible. the court be were, fest of the chartered aircraft and low did err in denying motion course, aware that he was in room suppress. night They arrest. did probable not have cause to arrest him. other error raised Mar Hence, we must consider whether tins alone that warrants comment is the confession that followed his arrest was sentencing explicitly failure of the court “come at by exploitation of illegality find that would not benefit from Martins [the] or instead by sufficiently means distin- sentencing pursuant Federal Youth guishable purged Act, to be of the primary seq. et Corrections U.S.C. § Sun, taint.” Wong supra, 371 At sentencing, attorney expressly Martins’ Illinois, 1975, 83 sentencing S.Ct. at 417. In Brown v. the Act after dis waived under 590, 603-04, 2254, 2261-62, 422 cussing U.S. 95 S.Ct. the benefits of it with the court.

1243 throughout, marijuana would be distributed that, although the convincing The record is it would be in, England or that or New phrases, any recite talismanic court did not transported there. fully whether the defendant did consider it under the sentencing from would benefit 5) those defend- “The evidence States, Bustillo v. United 5 Cir. Act. overwhelming . .” is just ants I think v. United 368; Mitchell 5 F.2d reach . “I think you have to will and 875; v. United States Cir. guilty of conclusion, they are only one 207; Brown, United added). (emphasis two . .” counts . Gamboa-Cano, States v. guilty 6) you if [serious “But Dorszynski also v. United See F.2d not some you are . . . crime] States, or something criminal kind of hardened L.Ed.2d 855. . . And . you . would confess Martins did.” I Willie think is what V. ex for counsel to improper “It is complain alleged misstate- Appellants of state facts personal opinion or to press his prosecutor jury of ments facts evidence, not knowledge, his of own personal opinion expression his of and of presented,” be part the evidence to not guilt. defendants’ States, 5 Cir. Dunn v. United argument occupying lengthy course of a v. Berger also United 885-886. See transcript, prosecutor pages States, 55 S.Ct. challenged following statements: made Morris, 1314; United States v. 5 Cir. L.Ed. “Banello,” 1) had charac- One who been v. 1978, 568 396, 400-02; F.2d organized as an testimony terized 1186; Pariente, 5 Cir. figure, in the room with crime was found 1386; Corona, F.2d Rodriguez at time Martins and Warren, 1977, 550 United States basis evidentiary There was no arrest. Resp., DR of Prof. Code this statement. ABA (3), (4), (7); Stan 106(C)(1), 7— meeting, Function, 2) Smigowski key was at a con- dards, 5.8 and §§ The Prosecution prose as to who attended trary testimony duty on imposes rule 5.9. This argument and meeting. in his scrupulous cutor be conviction to obtain a all efforts to avoid comment 3) “Smigowski made some jury evidence before going beyond the suggested lights about the one unloaded [at of his office sanction by putting the or he about spot], because was also concerned But it of witnesses. testimony behind the light night that it having too much every errone require mistrial for does not really try smug- would be clever opinion. expression ous statement light. operation you if are bathed in gling course, And, he it wanted dark.” per expression prosecutor’s A was, “Smigowski testimony relevant it is if based may be tolerated sonal belief brightness lights, asked about the and the and the introduced solely the evidence on lights.”8 other evi not led to believe jury is them, justified the dence, 4) marijuana] arrived in unavailable “Once [the Morris, supra; it then be trucked to belief. Florida would South Dawson, the indict- United States why England and New 1330-1331; counts F.2d ment is the form of two different Martinez, One, imported, and it .. would denied, throughout New then be distributed would cf. evidence that the L.Ed.2d was no England.” There else, testified, just Agent anything than about “no more Weed if said asked 8. When lights.” conceded, regard, prosecution the itself Diharce-Estrada, 5 Cir. 526 F.2d against the evidence Martins agree, we that 641-642. others; than the was “somewhat different” Hence, state, may “I believe he confession, is doubtful that it absent his it the that the evidence has shown defend motion for a would have withstood a direct- not, guilt,” ant’s but “I the believe acquittal. With Martins’s con- ed verdict of United States v. Mor guilty.” defendant is however, evidence, the case fession in ris, The expressions 568 F.2d at 402. supra, against participation respect him with expressly referred to personal of belief here import overwhelming. was conclusions to be drawn evidence or to whole, Considering the we case as conjec prosecutor’s from it. Nor did the prej conclude that these statements did not Martins ámount to a regarding ture state rights udice the substantial of Martins with personal guilt. ment of belief in his Indeed I; respect against to Count the evidence partially was least favorable insofar as him verdict strong was so the same it cast this defendant as remorseful and not would have resulted had not been a hardened criminal. v. Cf. United States 1386; Corona, delay made. We of the evi consideration F.2d United 229; against dence Martins with Warren, supra, v. 550 F.2d at States Likewise, Dunn, postpone Count II. we considera supra; Gradsky United v. States v. with States, sufficiency tion of of the evidence United 5 Cir. 710. so to both counts respect to Further, gave the court an instruc the various impact the cumulative of tion disregard any personal opinion may be assessed complains errors he prosecutor. haveWe stated: the evidence sufficiency In every involving case improper argu- against him. counsel, ment of we are confronted with Obviously Albernaz and relativity degree and the to which such either respect to prejudiced not may conduct have affected the substan- specifi was count. None of the statements rights tial of the defendant and the case at either of them cally directed bell”; unring one “cannot “after likewise against these two defendants thrust say of the saber it is difficult overwhelming. wound”; forget finally, you “if box, throw a skunk into the jury you VI. jury

can’t instruct not to smell it”. States, reviewing Dunn v. the suf supra, United The standard for F.2d at 886. cases The court’s in criminal jury instruction the evidence ficiency of by this court: considered as a factor in stated assessing repeatedly the de- been has gree prejudice. United States v. Mar- is satisfied appellate court the trial or [I]f tinez, supra; see also United States reasonably con- jury could Crane, 520. to exclude evidence fails clude that but that hypothesis every reasonable assessing In prejudicial impact court, appeal, on trial guilt then the assertions, of such we must also consider jury must that “the hold this Court must strength of the evidence each doubt a reasonable necessarily have had might defendant who have prejudiced. been inconsistency.” as to Berger v. supra, 295 U.S. at Caro, S.Ct. at States v. War United States ren, supra, 550 F.2d at 411, 416, 229. quoting close from United cases “[I]n improper remarks prosecuting attor Haggins, 5 Cir. Pinner,

ney may carry ‘much weight against See also United accused when properly should carry ” Diharce-Estrada, none.’ Nazien, denied, 1975,

1245 Weed, Rodriguez organization of his pals viewed must be evidence 443. The L.Ed.2d Smigowski meeting at which arranged a govern- to the most favorable light 1942, present.9 315 was v. United ment. Glasser 457, L.Ed. 680. 60, 86 other association “[M]ere a proof beyond must be “[T]here enterprise in criminal involved persons existed, conspiracy that a reasonable doubt a con participation prove to insufficient and, with that it accused knew Barrera, supra, v. States spiracy.” United joined it.” United voluntarily knowledge, cited therein. and cases at 547 F.2d White, 569 F.2d v. 5 Cir. States pres actual or even Proximity to the crime Caro, United supra; v. 267; United States is not suffi the crime scene of ence at the Gutierrez, F.2d v. 559 States Cir. 1256, and cases cited Id., at 547 F.2d cient. Bright, v. 1280; States 5 Cir. United Gutierrez, supra, 559 F.2d also See therein. 240; see also United States 418; 1280-1281; Caro, supra, F.2d at Barrera, F.2d 1250. v. Duckett, 5 Cir. v. United States under U.S.C. conspiracy In a knowledge, acquies F.2d 1027. “[M]ere to there is no need or 21 U.S.C. § § or cooperation without approval cence or v. United States prove overt acts. allege enough to is not cooperate agreement 266; Unit White, 5 Cir. conspiracy.” part one constitute Thomas, F.2d v. ed States Mendez, 5 Cir. United States Palacios, States 128, 130. 1359, 1364 Although n. importation to the respect With an emphasized, “[p]roof of this court has I), jury could conclude (Count scheme is not conspiracy into a agreement to enter Smigowski doubt that a reasonable beyond inferred,” lightly to be It sympathetic spectator. more than a was White, quoting Unit supra, 569 F.2d at present the facts to infer from was entitled Johnson, ed quiet but active Smigowski was a ed that denied, 885, 888, knowledge His conspiracy. member of the there was suffi 30 L.Ed.2d guilt not a basis of presence agreement which an cient evidence from but, with his themselves, together taken inferred. reasonably be distribute could than the statements, provide more they presence at respect Smigowski’s With him with to connect “slight required basis” relies meetings, government various to exist. conspiracy shown made: that he upon the three statements Co., Supply Overall v. Cadillac to use 1) conspirators planned When the Bolts, the Catchalot as a site to unload marina cases there, and, as a II, lights he asked about the Smigowski’s With cited therein. result, spot; they moved to a darker I, errors various conviction on Count ar- agreed to 2) group Weed’s had After harmless. clearly in Part V reviewed a ton keep would whereby they rangements summing prosecutor, At the worst was he commented marijuana, one erroneously at placed up, therefore, would $500,000 and, worth indisputable evi there was meeting; key an may have been money, which not lose prose The others. he attended dence that and, agents; attempt to reassure the respect to distribu statements cutor’s ' expres to Count II. asked, related Weed, tion when 3) Agent He told weight of the to the opinion as at sea sion of Albernaz were out Rodriguez and his therefore, an endorsement and, was not evidence rendezvous coordinating the prosecution. Additionally, case to do it. Weed did not have Morris, supra. princi- introduced when asked to be proof independent spirator exception without hearsay Although might constitute objected trial. conspiracy, to at it was not through the co-con- admissible would not be evidence, at least as to some of the defend-

There is little direct evidence with ants, concerning to a to distribute the what knew about the marijuana imported. after it was There disposition smuggled destination and Winnebagos was mention of the use of cargo. marijuana, transport in given, govern- Before the group dicated that his was short on “front thought ment stated for the record that it money” might from which it be inferred charge confuse distribution with did subsequent that there would be a sale. The the court smuggling; agreed counsel and load consisted of 1100 approximately fifty- changed that the would be substi- bales, pound than the appellants far more tuting “while within the United States” for could personally consume in the course of “into,” court, apparently inadvert- but the many very lifetimes of furious effort. The ently, neglected to make actual correc- size of a can be narcotics cache sufficient to Indeed, parts tion. of the instruc- other show intent to distribute under Section 841. tion, correctly stated the the court law: 1973, United Perry, States v. 5 Cir. 480 F.2d II, In Count the defendants accused (188 hashish); 147 pounds of conspiring to distribute a controlled Mather, 1972, 1035, 5 Cir. cert. in the substance United while States denied, 1972, 1085, 685, 409 U.S. 93 34 S.Ct. within the United States. (197.75 cocaine); L.Ed.2d 672 grams of And: Rodriguez, S.D.Tex.1974, United States v. II alleges during Count the same 589, aff’d, F.Supp. 375 5 Cir. period, the defendants alleged and other (376 pounds 172 marijuana). Cf. cases conspirators knowingly willfully con-

finding amount too small to infer intent to spired marijuana to distribute 30 tons of distribute: States, 1970, Turner v. United in the United States while within the 398, 423, 396 U.S. 90 655-56, S.Ct. 24 United States. (less L.Ed.2d 610 than one gram cocaine); Olvera, United States v. 5 Cir. 523 determining whether this and (two F.2d 1252 grams cocaine). reversal, require other errors we must de might termine whether these errors have Although there was no direct reached, contributed to the verdict that was evidence that Albernaz and Rodriguez Arias-Diaz, United 5 States Cir. planned to marijuana distribute the in the denied, 1975, F.2d cert. States, might inference reason 761; 95 S.Ct. 43 L.Ed.2d Addison v. ably be drawn plan from the import it States, Cir. F.2d and from the additional evidence concern denied, 1964, cert. 376 U.S. 84 S.Ct. ing them to which just we have referred. 605, considering weight L.Ed.2d If its were, ultimate destination for exam pointing the evidence to conviction. United ple, Canada, it is imagine why hard to Kilrain, 979; 5 Cir. appellants would risk bringing it into Chapman v. United Cir. American regard, borders. In this we must 1240, 1250, denied, 1977, cert. consider the respect instruction with 393; 97 S.Ct. 52 L.Ed.2d definition of distribution: Demchak, means, Distribution any 1029; Wainwright, Null v. article, transferring into the United denied, 1975, States some or all of that article to anoth- 459; Beto, L.Ed.2d Loftis v. er individual while in the United States. Lewis v. United (Emphasis supplied.) As italicized word States, 375 F.2d 772. emphasizes, erroneous; this instruction was while the error have resulted from a The distribution instruction was slip tongue inadvertence, of the or from unduly prejudicial Rodriguez, acquires Albernaz; significance light of the the evidence them was nature of the indirect, two counts and the poverty overwhelming albeit and the im- States, 1943, 1265, 87 pact of the mistake was lessened Becker, United States v. subsequent correct definition law. L.Ed. Wilkinson, But there is no evi- See United 569 F.2d 951. that, 460 F.2d 725. at the time of Mar- whatever dence contribution Smigowski’s tins’s However, there literally no evi scheme, they knew that a con- importation dence with to the involvement of been formed. Al- had spiracy to distribute Martins and in a distribution though charged with knowl- they may be scheme except might what be inferred from likely edge scheme would that such a their participation in an agreement to im arrived, haul this is not port formed once the it. The direct and circumstantial evi exclude, beyond reasonable dence sufficient were peripheral partici doubt, hypothesis not then pants importation did scheme does not refute, doubt, join a in it or even know of it. beyond either reasonable the hy pothesis that knowledge had no Although the inference to be conspiracy to distribute once reached Smigowski drawn either or Martins these shores. one, both proof is a reasonable of Albernaz, Unlike and per- who guilt as to each of them with to force arrangements had to make some to II Count was insufficient to meet the rea dispose treasure, of their Smigowski and Hence, sonable doubt standard. their re Martins could each receive his reward and on precluded by trial that count is the dou be done with the scheme. Unlike Rodri- jeopardy ble clause. Burks v. United guez Albernaz, who, and according to the States, 1978, 437 U.S. 98 S.Ct. evidence, had contacts outside the Miami Accordingly, 57 L.Ed.2d 1. we find suffi area, needed front money, planned and to cient evidence warrant Smigowski’s to and use Winnebagos, Smigowski or Martins but Martins’s convictions on Count I must were not shown to have been connected dismiss Count II indictment with with the arrangements importa- actual for respect to each of them. tion. There Smigowski was evidence that and VII. parties Martins were importation scheme, Finally, appellants but there is no that all contend that evidence would in beyond conspiracy charged establish two counts of reasonable doubt that they offense,” would in likely possession come of indictment were but “one the haul arrived, that, once it therefore, share in proceeds imposition its of consecu- there- after, or other evidence jeopardy from which it tive sentences could violates double in turn be inferred were privy to clause. plans to distribute the contraband. We This the issue whether court considered have already noted that possession of a violations of 21 U.S.C. 846 and § § large a supply prohibited of substance may constitute but one offense in United States

justify the inference that possessor in- Houltin, v. Cir. it, tended to distribute but there was no that, only decided even if there “was one evidence that and Martins had conspiracy Congress . . . choose sufficient dominion over or interest punish two of aspects that behavior with marijuana to warrant the inference. contradicting Jeopardy out Double

It is well established one Clause.” 950. That decision who vacated, knows of a conspiracy and intentional sub nom. Croucher ly it, acts in culpable States, 1977, furtherance of as a S.Ct. conspirator. Direct Sales Co. we L.Ed.2d 745.11 Were free to consider supra. compelling See note 1 federal interest would be served convictions, accepted both this court Supreme 11. After the government’s Court vacated Houltin decision to withdraw the for conspiracy II), reconsideration with possess (Count whether a of and its foreign commerce to travel agreement an conclude, anew, con- we would problem but one activity were Houltin, unlawful promote that the conclusion trary to the imposed be punish- must prohibits sentence conspiracy clause jeopardy double by more than single one count. ment on However, reasoning of penalty. one Braver rely upon all These conclusions panels two adopted by has been Houltin States, 1942, man United Dyar, court. United this 23, in which the court 87 L.Ed. S.Ct. made, that, agreement is single held when Although Smith, 574 F.2d 308. taken agreement one cannot be “[t]he respect to this issue in the statements con agreements and hence several several distinguished may be as of these cases both violation envisages because it spiracies dictum,12 they express the views obiter Id., rather than one.” of several statutes court.13 Under members number This is true at 102. 317 U.S. at circumstances, we we believe that these objects.” Frohwerk v. its “however diverse binding, these required to treat decisions disagreement forth the reasons our set peti- them, permit parties 561. The court L.Ed. en rehearing for a bane. tion this court Honneus, Congress recognized supra, overlapping power such has the to enact Adcock, could simulta defendants statutes and that 637, Honneus, and United States v. and under neously be convicted prosecuted 566, denied, 1974, 1975, cert. each, impossible might for it be difficult or 1677, 101, 421 95 L.Ed.2d U.S. grand jury definitely the to determine for courts the very conspiracy considered conspiracy in advance which set laws the here, charged statutes 846 and §§ U.S.C. if, however, if the defend proved; violated that, and although concluded each con both, could they were convicted of be ants illegal objectives, cerns different where a only one. sentenced under agreement statutes, single violates both engaged only defendants have in one con opposite The result was reached spiracy may punished only be and once. Marotta, in United States v. Mori, also United See these statutes. 240, 241-245, denied, But, jurisprudence, in surveying 404 U.S. 92 S.Ct. 30 L.Ed.2d that, facts, where this failed to take note of the court held under the Ninth Circuit agreement import may an a a con- drug single narcotic essential act and distinction: Organization Corrupt and Racketeer Influenced decision not to withdraw the re- Act, spect import I) seq., conspiracy (Count et and one for was § not U.S.C. Houltin, conspiracy marijuana, challenged. to distribute 21 U.S.C. stated, (Houltin II). specifically “A curso- stated 846. The court § F.2d 991 We in II, respects ry Houltin “In all other this Court’s of the offenses involved here examination judgment same,” and that of the court district are are not the and that reveals that only separate But because reaffirmed.” there was one 574 F.2d at each involved elements. remaining, conviction could not Dyar, court be In concurrent sentences were im- 310. reaffirming portion I that Houltin ad- posed, necessary it was not to consider hence jeopardy dressed the double A issue. vacated issue. judgment binding. not is See IB Moore’s Fed- (1974). eral § Practice 0.416[2] Although per opinion, 13. Smith was a curiam We note that counsel also in United court reveal authored records was Herrera-Vinagas, Fay. Judge concurring As a member of this jeopardy raised the double issue with Fay panel, Judge has authorized me to state statutes, these same but did not ad- the court that, reflection, opinion upon he is of the unpublished per dress issue in its curiam preferable adopted is a one. the view here affirmance. Smith, separate conspiracies two charged proved: one violation byor law two if it 21 U.S.C. one such as stitute offenses violates two sub- §§ statutes, but, 88,14 a in Brav- single stantive even if former 18 considered § U.S.C. agreement erman, has more than one unlawful proscribed objectives by ob- which ref- jective, it may truly constitute two con- Developments to other statutes. Cf. erence spiracies. agreement It illegal is the that is Conspiracy, in 72 Harv.L.Rev. Law— a conspiracy; in if there agree- is one (1959); Scott, 964-966 LaFave & Crim- ment, there is one though but offense its Law, (1972). For, at inal 479-480 as § objectives multiple. However, are single court said Braverman: one “[t]he single act cause more than a conse- agreement be cannot taken to be several therefore, quence; one act may prose- agreements hence conspiracies several punished cuted and as more than a single envisages is because violation of several offense. See Gore v. United Id., than statutes rather one.” U.S. 78 S.Ct. 2 L.Ed.2d 53, 63 S.Ct. at 102. which involved violation of several substan- recognized problem care- tive statutes one act of sale. But cf. Houltin, opinion supra, ful court Simpson States, 1978, v. United distinguished situation where it 98 S.Ct. L.Ed.2d This distinction charged agreement that one violates the is drawn in Braverman where the court general conspiracy specific statute distinguished (a the case before it single (as Mori, charged statute su- conspiracy that appeared to sep- violate two pra) and the case where there are two statutory provisions) arate from the case of specific conspiracy statutes. We cannot ac- single “a act statutes,” which violates two cept this valid as a It distinction. would as evidenced by its citation of Blockburger permit Congress penalize single States, 1932, v. United 52 S.Ct. agreement by separate a multitude of con- 180, 76 L.Ed. 306 and Albrecht v. United spiracy long specific. so statutes States, 1927, L.Ed. 505. found, This court has in other con texts, single conspiracy that a exists but single A agreement bank, to rob a kill the agreement even though the that constitutes guard, steal a car and flee contemplates the it objectives has several aims at the and possible commission of a number of crimes. several commission of offenses. United if only But there agreement, is one it is the Elliott, 1978, 880, States v. agreement offense; that is the the agree- Bolts, supra, v. United States ment itself rather than imagined objec- its at 325. for that the It is this reason tives is only the concrete harm that has prove conspir a government only need that By contrast, occurred. a person who fires agreed many objectives ator to one of the one bullet and kills two persons different charged the to him liable for other wrought has hold two distinct harms, social objectives agreement, society United States may punish both. Bolts, v. v. supra. See also United States Unlike the present case, Braverman in- Decker, 5 cert. Cir. volved one conspiracy statute which made it denied, 431 U.S. 52 S.Ct. illegal to conspire to violate a number of L.Ed.2d 390. substantive laws. Here presented we are with two conspiracy different conspiracy only Our that one statutes conclusion each of which illegal finding makes it suffi- conspire to existed is with our consistent a particular end. But this Smigowski is not cient and Martins adequate an evidence that basis for reaching a importation, different agreed only objective, result from one the one determined in Braverman. objective conspiracy, multiple Here the facts showed that there was but one more than imply does not there was conspiracy regardless objectives whether its one agreement, merely one more than ob- proscribed two by discrete laws such as jective. stated in United States v. As we

14. Now 18 U.S.C. § 371. agreement have another may seller precise at “the Elliott, supra, 571 F.2d exists, distribute, conspiracy yet one conspiracy must and extent nature for each seller are liable exporter and agree- reference to be determined agreed never acts, although they ob- its other’s and defines which embraces ment States v. objectives. United object single the same upon jects. Whether 921, 922, rev’d Bruno, 2 many one or Cir. to commit agreement case, agreement grounds, crimes, is, on other it in either v. see United States which the conspiracy 84 L.Ed. constitutes S.Ct. which 820-821, 1976, 533 F.2d Quoting Braverman v. Papa, punishes.” statute 1976, 429 97 S.Ct. denied, at States, supra, also L.Ed.2d 329. See 126, cert. Morrow, many have may conspiracy one Because denied, necessarily will involve objectives, it illegal L.Ed.2d 806. to commit sub-agreements number of objectives. Some specified of these each scheme suc distribution Had some concur members could be ceeded, and Martins for all objectives, they are liable many yet it for because was liable vicariously held scheme, enter- one one because there is but conspiracy. of the one objective a related conspiratorial one web. See prise, awere com to distribute conspiracy If Becker, F.2d conspir separate offense from pletely 960-61; Baldarrama, then, conspiracy even had the import, acy to 565-66; successful, Smigowski been to distribute Bolts, in that web supra. If each stitch par not be convicted could and Martins infi- separate conspiracy, were as a treated joinder in virtue in it ticipation confected,, liability nite bases could be for circum import. In some agreement Papa, see United joinder an however, very stances, and cases cited therein. (it objective an illicit reach agreement Here, might example, conspirator for each larger to reach conspiracy part of the self charged separate conspiracies renders objective) encompassing but import or distribute each of he did not objectives conspirator liable conspirators; conspiracies other over 200 Bruno, in. United States concur himself Hence, be charged. could the conspiracy Here, progeny. supra, broadly must be defined as as the reach of succeed; Martins Smigowski and did liability.15 vicarious making an merely with charged aborted. in fact was example, For in a conspiracy, agreement chain the sufficient Therefore, exporter distributor was may and have one the evidence conspir- alleged agreement on the import, jury to and the a case distributor to make longer their parties united According are no and the to one commentator: undertaking when a common adherence to multiple Whether several offenses the are grouping to, agreed old the the is objects second single agreement separate the or dissolved, and society dangerous has been to objects agreements of distinct is of consider- one . . agreement new creates a importance the new purposes multiple able for of agreed object to be- is punishment the second jeopardy, gen- But when and double since first, it seems erally only of conspiracy fore the attainment can be there one con- disregarded agreement be agree- should viction when there has this new been one by it. . Assuming, however, grouping prosecu- is created ment. no new that the since separately punish separate agreements is does not tion able to show the law to [S]ince single agree- objects, multiple objects of a each does not seem that for liability conspiracies agreements ment, punishment in for several must neces- for both upon sarily place premium When follow. two men who a have case tends this agreed rape agree a commit later foresight com- in crime. burglary, object Conspiracy, a mit there is new dimen- Developments in the Law — strictly speaking agree- and sion hence a new (1959). Harv.L.Rev. completed, ment. If the first crime has been Smith, appellants supra, to conclude acy to two conspiracies distribute. The agreement; their may twice separate jeopar- punished were not crimes for double appel- dy the conviction purposes because embraced but one hence we affirm commission, goal. ultimate overall The or lants and Albernaz commission, even attempted previ- of several stated to both counts. For reasons crimes, offenses appellants constitutes several but one ously, Smigow- convictions agreement number of violate a laws re- II reversed ski and are and Martin on Count charged mains but one crime if it is merely is that count of the ordered dis- indictment as a conspiracy and not a substantive missed with to them.

offense. VIII, course, may

Of there also 'be two or agreements given more in a case and each in separate opinion United States v. identical, different, violate conspir Cadena, we Note, acy generally statutes. Resolu See whether the question consider the evidence Conspiracies tion of Multiple Via Issue freighter search during seized Enterprise” Analysis: “Nature of the properly was and ad- illegally obtained Resurrection Agreement, Brooklyn decision However, does not mitted. this (1975). Distinguishing L.Rev. 243 between there. As- turn on reached the conclusion one separate overall several evidence suming arguendo that all obtained conspiracies frustrating challeng is “a have freighter sup- aboard the should been ing Perez, task.” marijuana bales of there were 150 pressed, denied, II, aboard the Catchalot and other over- 41 L.Ed.2d 664. But whelming each evidence of the de- there ample jurisprudence to assist in This makes fendants. conclusion it unnec- See, that task. e. g., United States v. Beck essary for us to whether ap- determine er, supra; Baldarrama, pellants challenge have standing supra; Morrow, supra; freighter. search of the Perez, supra. essence, States v. “In record, Having carefully reviewed we the question is what is nature of the persuaded appellants’ additional agreement. If there is one overall agree According- contentions are merit. without among ment parties perform various ly, the in judgment part, is AFFIRMED different carry functions in order to out the REVERSED, part, and REMANDED for objectives of the then conspiracy, it is one opinion. proceedings consistent conspiracy.” Perez, supra, 489 F.2d at 62. part, part Affirmed reversed remanded. conspirators

Here some may have

agreed only importation and others to importation distribution, but all PETITION FOR REHEARING ON part of a common scheme aimed at EN BANC. moving marijuana from the fields of Colombia BROWN, Judge, Before Chief THORN- to its consumers. It is no defense to the BERRY, COLEMAN; GOLDBERG, AINS- one conspiracy that some conspira theory WORTH, GODBOLD, CLARK, RONEY, tors were precise unaware role GEE, TJOFLAT, FAY, HILL, RUBIN and played by Becker, others. United States v. VANCE, Judges. Circuit supra; States, 1947, Blumenthal v. United L.Ed. 154. As BY THE COURT: we outset, noted at the Counts I and II are identical except to the alleged majority Judges A active ser- objective vice, agreement motion, and the statute on the having Court’s own charged to However, have been violated. to have case determined reheard en we banc, by Dyar, supra, constrained that this cause shall ORDERED

IT IS en banc with oral by the

reheard Court hereafter be fixed. on date

argument briefing schedule specify will

The Clerk filing supplemental briefs.

for the America,

UNITED STATES of

Plaintiff-Appellee, CADENA, Rinsi A.

Nino Pedro Ballesteros

Esquebel, Yepes Borjas, Gilberto Cesar Rosa, Cadena,

Dela Narciso Barba Dan Gomez,

iel Garcia Efrain Carreazo Car

dales, Arrieta, Jorge Lopez Pedro Ruiz

Wagner, Diaz, Alajandro Nicanor Rivera Mantaress, Ortega,

Valle Andres Gomez Bruno,

and Francisco M. Ceba Defend

ants-Appellants. 77-5395.

No. Appeals, States Court

Fifth Circuit.

Nov. 16, 1979.

Rehearing Denied Jan. F.2d 100.

See 588

Case Details

Case Name: United States v. Edward Rodriguez, A/K/A Rick, Thomas J. Albernaz, Peter Smigowski, and William John Martins

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Nov 20, 1978

Citation: 585 F.2d 1234

Docket Number: 77-5339

Court Abbreviation: 5th Cir.