United States v. Eric Arias, Earl Lavell Faircloth, Gerald E. Michael, Idael Manuel Jimenez-Mora, Laten Gene Reaves, and Roger Suggs
678 F.2d 1202
4th Cir.
1982
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*2 MAN, Circuit Judges.

WIDENER, Judge: Circuit Arias, Faircloth, Eric Earl Gerald Mi- chael, Jimenez-Mora, Idael Laten Reaves Roger and Suggs were convicted in the District Court for the East- ern District on the of North Carolina three counts for which were tried. The conspiracy import three counts were turned and direction. The officers opposite metha- with intent to distribute possess They fuel truck. continued followed the marijuana, in vio- qualone (quaaludes) Campbell Deputy until a 952(a), the truck 841(a), follow of 21 U.S.C. lation §§ 2; take over. Pearson requested to im- was 960(a)(1) and U.S.C. § who had Joyner, returned to assist aiding and Russell methaqualone porting van. thereof, the white in viola- abetting *3 960(a)(1), 952(a) and tion of 21 U.S.C. §§ where the road turned onto Campbell 2; the mari- importing and 18 and U.S.C. § A the truck. had last seen fuel Pearson importa- the juana aiding abetting and and road, he came across up half the mile and a thereof, in violation of U.S.C. tion truck, Buick, car the and another the fuel 960(a)(1),and 18 952(a) and U.S.C. § §§ and fuel truck in the road. The count We but reverse on one part, affirm three co-defendants occupied by Buick of the convictions. appeal. us on are not before whose cases and Buick told of the fuel truck April The owner early morning In the hours the called to 3,310 that he had been Campbell plane a Lodestar loaded which had airplane, to refuel an pounds airport and 867 pounds of permis- Campbell given was never arrived. airport landed at an near South- quaaludes and the Buick. search the fuel truck (called variously sion to port, North Carolina containing nine or bag a canvas Long Airport). Beach A He found Southport and were still lights, white some of which airport just woman had before ten living by the that she had on. police say called local trouble land- plane having

seen and heard a the oc- Campbell questioning While ing. vehicles, two spotted he cupants of the that he call, circling. He advised Pearson response planes Officer Pearson (Pearson) airport, and go should Southport and Cadet Officer Russell of the himself. The officers investigate. later went there Department Police were sent runway on the They plane the air- found the Lodestar they approached testified that and, running. no one was port engine at a because of with one Since high speed rate of that, entrance, entered it in the one of the officers past plane, were forced to drive engine. spotted plastic- He They turn around come back. stated to turn off and boxes that bales of and they airport wrapped saw three vehicles at the tablets. The officers they passed, entrance as but the vehicles seemed to contain Enforcement Ad- Drug The vehi- then contacted gone they got when back. officers. van, (D.E.A.) and customs Dodge green cles were a white a and ministration white fuel truck a Buick light-colored Meanwhile, nearby Gates of Officer proceeded Electra 225. The officers to look Department was dis- Isle Police Ocean they in the for the three vehicles vicinity airport, Isle after an patched to the Ocean seen, spotted taillights had in the dis- that he had reported air traffic controller belonged tance and them. They followed direction. Offi- plane flying seen a in that Dodge the white van. Pearson radioed to small, a cer himself had observed Gates Deputy Joyner County of the Brunswick take off from Ocean single-engine plane Department pursuit Sheriffs to take over two hours an hour and airport Isle between of the Joyner eventually stopped van. as it plane had watched the earlier. He van. occupants ap- Its were identified as the two larger plane, a intercepted Arias, Michael, pellants Jimenez-Mora and Southport. together toward planes flew Suggs. yielded A consent search of the van a airport, at Isle arrived Ocean When Gates nothing. landing. Appellants plane small

Meanwhile, got plane out of turned Reaves and Faircloth Pearson and Russell engaged their car. Gates airport back toward the in search of the and walked to back-up officer other in conversation until They two vehicles. came across the them officer, Police Gur- Chief of traveling Buick and the fuel truck in the arrived. This Procedure, etc., Ed., ganeous, asked to see pilot’s p. Faircloth’s 121. We plane license registration. Because rule impose per decline se reversal was unable remove regis- Faircloth contended for defendants. the plane, Gurganeous tration from looked Reaves Suggs claim in to record the information contained prejudiced represented trial by being at therein. He one four observed that attorney joint repre the same because such set frequency radios was at a of 122.5. The link together sentation served to them plane radio in the Lodestar that had landed in this eyes conspiracy case. at Long airport Beach was set at same merit, obviously This contention is without frequency, though nor- frequency is not being in the nothing there record to mally used in the planes vicinity of guilt by it. The same claim of association is Ocean Isle and Long Beach. remaining appellants, made The first issue appeal raised likewise for the reason. without merit *4 rights Suggs claim that the Reaves of The only prejudice claim of worth were represent- violated because were joint representa mention on account of the by ed at trial the attorney. Their respect testimony tion is with to the of a principal in regard claim this is that since conversation of Reaves had with one the 44(c) requires F.R.Cr.P. the court “in- government agents. While the claim itself quire respect joint to such representa- attenuated, may be somewhat we do not tion and ... advise each personally defend- necessary pass upon find it its validity right ant of his to effective assistance of brought because the was matter never counsel, including separate representation,” the attention of the district court. The the mere failure of the district court to objec conversation was admitted without inquire advise as set out in the rule tion, and no was strike motion made to it necessary makes a of reversal the convic- out. No difficulty occasioned that testi tions. Admittedly, Reaves and Suggs mony was mentioned to the court. district represented at trial the same retained very joint representation, matter of and, attorney, admittedly, no was inquiry before, we have related men was never made by the court. Reaves and Suggs to the at tioned district court. Even sen arraigned September 1980. F.R.Cr.P. tencing, when had a different attor Suggs 44(c) 1, 1980, became effective December ney from the one who had him represented February 23, the trial in the was case trial, at the matter was not to the brought Nothing 1981. was said to the court district district court’s attention. We will not ordi 44(c) about Rule at time the any before notice unless narily error the matter has trial, during trial, the or even after the brought been to the attention of district the trial. The first 44(c) time Rule men- was water, 429 court. McGowan v. Gillen F.2d tioned in this proceeding was in the brief (4th case, in 1970). Cir. this which appeal. the mere violation of the rule is reversi not We are of opinion that the mere error, ble when the matter has not been failure the of district court to inquire and brought to the attention of district the advise in 44(c) accordance with F.R.Cr.P. court, and when it is mentioned for the first does not make necessary reversal. “The appeal, plain time on we think it is not failure a particular in case to conduct a error, and decline to reverse the case or to 44(c) not, Rule inquiry standing would inquire further the such into matter under alone, necessitate the reversal of a convic 52(b).1 circumstances. See F.R.Cr.P. tion jointly of a represented defendant.” Rules, Notes of Advisory Committee on re Appellants contend the van also printed West’s Michael, Arias, in Rules Federal of Criminal in which and Jime- Suggs opinion appears This should not be a re- considered trict court. The matter an after- to be attorneys thought. flection on of the trial not for objecting joint representation in the dis- was obtained sample control port that the riding illegally was

nez-Mora testimony not make his no was in does evidence Colombia and searched. Because to be inadmissible; rather, it a factor into evidence as a re- or introduced seized van, assessing not we do sult of the search considered stopped illegal- van was whether the it is not testimony, decide for weight of his the identity claim that Appellants pill came ly. sample not the fact of whether or never have been occupants issue, the van’s would issue is is at from Colombia stopped. had the van not been discovered sample Franzosa could use whether Dr. true, identity be may While its use opinion. We think pill forming an suppressible defendants not under F.R.E. 703. permissible under exclusionary Supreme has rule. Court is not prevented held that the the evidence issue is whether Also at bringing merely to trial from a defendant the convictions sufficient identified as result of a because was by this applied The standard importation. arrest, false we think that case controls sufficiency of assessing the court in Crews, here. United v. 445 U.S. “whether, viewing the evi after evidence is 63 L.Ed.2d 537 S.Ct. light most favorable dence in the fact could any rational trier of prosecution, assigned admitting Error is have the essential elements found testimony of wit prosecution’s expert Jackson a reasonable doubt.” beyond crime Franzosa, ness. Dr. a forensic chemist and 319, 99 S.Ct. Virginia, 443 U.S. D.E.A., expert ballistics employed *5 2789, (1979); United States 61 compared quaaludes testified that he 236, 1981). Shaver, (4th v. F.2d Cir. plane seized from the with a importation of that The essential elements sample quaalude pill that he had received a rea government prove beyond had agent In opinion, an in Colombia. his from im drugs are that the sonable doubt quaaludes by the seized had been made Colombia, ported from outside United States machine tablet from as the drugs or imported have been the defendants by could not made legitimate importation. of the illicit laboratories aided in their or in and abetted United States from which the had D.E.A. of- The which the evidence The samples. samples D.E.A. had from all convictions tending fers as in legitimate country. Ap laboratories testimony includes of for pellants protest that this should testimony concerning origin of the Dr. Franzosa not have been govern admitted because the in Up” the words “This quaaludes; Side ment failed to establish a chain custody of quaa- in Spanish on the boxes which sample for the sent from Colombia. found; Span- ludes batteries with two effect, they Dr. Franzosa’s say, testimony origin, no of writing, ish but indication on hearsay origin was based as to plane; in flashlight found in a the Lodestar sample tablet. F.R.E. Under Rule calls made telephone and two to Colombia however, an base expert may testimony his days from billed to Arias several phone upon type of hearsay normally would April of before the events rely upon in the course of his work. of hun airport possession The 3:30 a. m. pill sample by was sent to Dr. Franzosa as quaaludes, dreds of pounds of Colombian agent D.E.A. in a in Columbia sealed heat flashlight bat Spanish-labeled well as the container diplomatic pouch with the teries, in be an unusual occurrence must agent’s thereupon. identification D.E.A. is entitled North Carolina and agents Southport, forensic rely upon scientists in the given pos courts weight more than have field to and to samples submit establish items the Mexican session of similar near authenticity their is shown the fact Miller, 589 pill that the border. United States v. question catalogued See denied, Cir.), Thus, (1st kept for F.2d cert. sample use D.E.A. 59 L.Ed.2d agent’s Dr. Franzosa’s reliance on the re- U.S. 99 S.Ct. distinguished The court in Miller part which was a charge in Count I Circuits, cases from the Fifth and Ninth and the essence of the charge in Count III. Maslanka, including United States 501 The sentences of the defendants consist (5th 1970), counts; F.2d 208 Cir. United States v. variously of consecutive terms on all Carrion, (9th 1972), 457 F.2d 200 Cir. and consecutive and concurrent terms on differ- (9th counts; sentence; v. Meyer, 432 F.2d 1000 ent a consolidated fines 1970), some; partially sentences; Cir. on the infrequency 4205(b)(2) of spe- § possession of Colombian in cial parole terms for some. For these rea- compared possession sons, Maine with foreign that, we although believe the convic- items common in the Southwest. Id. tions of all of the I defendants on Counts affirmed, and II are their sentences We think the supports record an infer- Counts I and II must be vacated and that ence that appellants imported either they ought to be resentenced the district quaaludes or aided and abetted in their court. importation. remand, On the district court will vacate hand, On the other the convictions for the convictions of the defendants on Count importation marijuana must be reversed III and resentence the defendants on for lack of evidence that the Counts I II. imported. There is insufficient evidence in the record to connect the marijuana to a We have examined the other assignments place outside the United States. presented error and are opinion they are without merit. indictment,

Count I of the the con count, spiracy PART; actually consists AFFIRMED IN of four REVERSED IN items, PART; conspiring import quaaludes, con and REMANDED WITH IN- spiring to import marijuana, conspiring to STRUCTIONS.

possess quaaludes distribute, with intent to HALL, Judge, concurring part Circuit and conspiring possess marijuana and dissenting in part: intent to distribute. guilt of the de may fendants be established by any proof While I concur with most of the majority of one of the four just items mentioned. opinion, I dissent from the reversal of the *6 Turner States, 398, v. United 420, 396 U.S. convictions for importation marijuana. 642, S.Ct. (1970). L.Ed.2d 610 In determining sufficiency of the evi Three of the four items proved: have been dence convictions, we must conspiring to import quaaludes, conspiring allow the the benefit of all to possess quaaludes with intent to distrib reasonable inferences from the prov facts ute, and conspiring possess marijuana en. Virginia, Jackson v. 443 U.S. with intent to distribute. Conspiring to (1979); S.Ct. 61 L.Ed.2d 560 import marijuana has not been established. Grow, (4th Cir.) States v. 394 F.2d 182 cert. Count indictment, II of the importing the denied, U.S. S.Ct. quaaludes and aiding and abetting the im- portation thereof, has been established case, was found on the evidence. board the Lodestar together with boxes of Count III indictment, importing quaaludes. outlined, As Judge Widener has the marijuana and aiding and abetting the the evidence indicated that the quaaludes importation thereof, has not been estab- imported from Colombia. From this lished by the evidence. evidence, could have inferred be-

Accordingly, we affirm the convictions of yond a reasonable doubt that the rest of the the defendants on Counts I and II. Their Lodestar’s cargo, including marijuana, convictions on Count III must be vacated. was similarly imported. part

Some guilt of the defendants Accordingly, I would affirm the convic- may be laid importation tions marijuana.