United States v. Juby Deon Battle and Donald Shannon Bullard

COX, Before CLARK and Circuit HENDERSON, Judges, Senior Judge. Circuit PER CURIAM: each of the defen- After the found Don- dants-appellees Juby Deon Battle and guilty drug-re- of four ald Shannon District charges, the States lated United Florida, District of for the Southern Court to be insufficient to believing the evidence acquittal convict, judgment entered govern- notwithstanding the verdict. meticulously exam- Having appeals. ment record, find the evidence to be we ined the reverse. sufficient and grand a federal On of Florida District jury in the Southern charging Bullard an indictment returned conspiracy possess and Battle with Rodney, through the air- dog, kilograms to “run” at least five intent to distribute 846 plane. in violation of 21 U.S.C. § (Count I); to distrib- possession with intent and met Mrs. Marrero entered cocaine, in kilograms of ute least five great perceived that she was Rolle. He 841(a)(1) and 18 21 violation of U.S.C. § proce- pain took the unusual and as a result II); import (Count conspiracy to 2 U.S.C. § a conducting a canine search with dure of kilo- at least five into the United States passenger on the aircraft. R.5-37. grams in violation of U.S.C. dog quickly alerted at the front (Count III); at importation and § presence of plane, indicating possible the kilograms of cocaine into the least five then re- R.5-37. Marrero contraband. States, of 21 U.S.C. violation United quested Battle and Bullard remove 960(a)(1), 952(a) and and 18 U.S.C. § §§ R.5-38; plane. Mrs. Rolle from the R.8- (Count IV). Rolle, removing Mrs. Bullard 665. After trial, following At the the heard the Battle, apparently and unaware at Sunday, evidence. On point dog airplane, the had been on the Queen twin-engine Air 80 1969 Beechcraft brought baggage then the into the Cus- bearing tail landed aircraft number N151S building completed required and the toms Air at the Fort Lauderdale Internátional R.7-548; paperwork. R.8-665. Facility. plane, port, Aviation General building, inspector toys, Inside the Customs luggage which was loaded with and R.5-34, eight persons. carried At the con Harold Hartford noticed that Battle and His friend and suspiciously, display- trols was Battle. business acting Bullard were Bullard, owner, airplane’s sat associate the ing “rapid eye R.6-128. movement.” To rear, co-pilot’s in the seat. In the the six Hartford, appeared “very to be two occupied the three remaining passengers inspector nervous.” R.6-129. The ob- Riding in pilot. seats R.7-413. behind trembling. hand was served Battle’s Viola, mother, Bullard’s his back were they R.6-133. Both defendants denied that Lopez Donavaughn, infant brothers R.7-551; a manner. R.8- behaved such Darmigo acquaintances son Birdie 674. Battle, mother, her Emma. Rolle and request, At Marrero’s Hartford was inspection knowing that a routine customs during canine search of present a second mandatory,1 taxied the aircraft to the before, Rodney aircraft. As Bullard’s building. United States Customs pilot floor area on which the alerted to the Upon leaving plane, and Bat- carpet, lifted the places his feet. Hartford tle encountered Customs Officer Edwin revealing “inspection plate” an attached to who, Marrero, Sundays, dog handler (a the floor with five screws number of at conducted canine searches of aircraft missing). Using R.7-144. screws were Ordinarily, there Fort Lauderdale. were screwdriver, inspector removed the days dog during no searches the week plate, discovering and raised the screws facility. Marrero had seen R.5-30. completely packages. small filled with in, and for “some odd rea- taxi tightly Although packages were not suspicious. him appearance son” its made packed space, the well would not into When asked Marrero Battle whether one. R.7-147. accommodate another Emma Rolle could remain on board because performed A test on the contents of field problem, of her the officer’s serious back intensified, the nine indicated the curiosity and he resolved two of initial compartments" inspects all an intermediate search, "accessible 1. The United States Customs Service arriving private opening Lauderdale. aircraft at Fort of unsecured which entails of the Customs in- rigorous R.5-41. At the discretion spector requires tools. A more hatches and no duty, intensity may of a search search, inspector, "panel in which the removal" "routine,” inspection, range from a visual tools, opens panels, may using attached also baggage compartments are checked to which conducted. R.5-100-01. board, nothing ensure that has been left on Ferro, government’s expert, cocaine Thomas Because the cocaine.2 presence of well, testified, put “you probably could some- inspection in the had been secreted the odor plate carpeting, thing without inter- a metal under well] [the by persons plane] not be detected fering operation cocaine could too with [the plane. however, While both Marrero much,” you jammed had it “[i]f opinion that expressed the Hartford pilot] notice tight enough, it.” [the suggested that it was “fresh” cocaine witness, if According to this time, only a short had been on into packages were crammed R.6-175, R.5-56, 63; this observation well, something” would “feel instantly alert dog upon way based pedals, depressing when smell, Kath and DEA chemist ed push them “all would not be able the of co stated that odor erine Churchill way.” R.6-224-25. by age, necessarily affected is not caine contrast, Ferro, the uncle of Richard of the pressed, none R.5-76. When Ferro, testifying on behalf of Thomas the the really knew government’s witnesses pilot that the would “not stated on the cocaine had been length of time that necessarily” friction from the controls feel the aircraft. board inspec- rubbing against the cocaine in the contra Following discovery of the the “proba- and that Battle compartment, tion band, and and Battle were arrested know” of the bly wouldn’t even a warnings.3 made given Battle Miranda plane. the R.6-289. contraband on How- statement, declaring, among post-arrest ever, if Richard Ferro conceded that times a things, that he flew several other placed material enough foreign were the week, night, and never be mostly at that well, the rods would not move rudder used at Fort Lauderdale fore had Customs immediately pilot would notice the plane. R.5-87-88. to search dog maneuverability. plane’s lack R.6-305. knowledge of the denied defendants Both Littleton, Finally, William defen- airplane. of the cocaine existence expert, dants’ other aircraft ventured the and the defendants Both he “wouldn’t think” opinion that there testify mechanics to about aircraft called any type restric- “necessarily be would Queen of the Beechcraft configuration pedals pilot to those rudder tion on not in this evidence Air Much of kilograms of that nine know cocaine] [the inspec- example, because the For conflict. Because resistance were there. R.6-325. parts, in- moving several tion houses well pressing a rud- always when is encountered rods, actuator rudder cluding the rudder imagine pedal, “wouldn’t der Littleton hoses, three of and brake all trim cables anything out of the ordi- pilot would feel placing agreed experts the aircraft something outright jammed a nary unless inspection cre- foreign objects in the well However, the witness pedal.” R.6-326. situation, be- extremely dangerous ated an im- if the hoses were think brake did objects great potential of cause of the well, by objects peded extraneous crucial operation of impede the these to Although it. R.6-348. feel would definitely the air- This rendered controls. pilot such as agreed that a skilled Littleton experts “unairworthy.” But craft pay close attention to differ- Battle would on the equivocated quarreled, qualified oper- way controls changes in ences or effect, packages nine any, if R.6-354, Battle ate, concluded that per- plane’s had on the would have cocaine plane and not aware been have flown the formance, was not a consensus presence. the cocaine’s reached. approximately Later, one million dol- been worth Drug have Administration Enforcement lars. R.6-246. (DEA) analysis de- which conducted a chemical about contained termined Arizona, hydrochlo- 384 U.S. 86 S.Ct. pure kilograms 3. Miranda of 84% nine (1966). 1602, 16 would L.Ed.2d the street the cocaine ride. R.5-69. On Bimini, (Tamiami returning to ed the route disagreed as to the effect experts If the Lauderdale), way Fort handling, they plane’s to Tamiami

of the cocaine passen- gain number and that to access identification generally concurred aircraft fairly compli- airport Bimini required Because the inspection gers’ names. cated, consuming procedure. tower, R.6- flight plan time a control lacks plate 219-305, 336. Before Bul- Nassau. Other than forwarded lifted, must either pilot’s chair can be told no one family, the defendants lard’s removed, depending on the moved or be They plans. their boarded Bimini about doing Accord- person the work. size of 3:00 2:30 and Bullard’s Beechcraft between Ferro, layman ing to Richard thirty-minute P.M. embarked seat, although pilots how to move the know or 3:20 flight, landing in Bimini around 3:00 certainly possess airplane mechanics in the afternoon. Next, knowledge. R.6-305-06. such day. airport The Bimini was crowded glued is either or fastened carpeting, which quickly realized that their The defendants screws, sheet metal must to the floor with airport, not at the passengers were holding up. Finally, the screws pulled be unattended, leaving plane unlocked and must removed. On the down the cover dock, hoping greet they headed for the Air, normally attached Queen the cover is they Bullard’s relatives there as soon as screws, on Bullard’s with ten to fifteen but ferry from north Bimini. arrived on the plane plate just had five screws reunited, Shortly family Bullard was Hartford, place, inspector who had said baggage inadvertently had been left but 3, January R.6- opened the hatch on 1988. behind, and the defendants remained at the 144. Richard Ferro testified that would suitcases, dock to retrieve while open minutes to need about fifteen airport. proceeded others About well, R.6-305, that he and Littleton related later, forty-five thirty to minutes Bullard min- spent some ten or fifteen himself had Battle, together who remained the en- entering inspection compartment utes Bimini, they tire time were in returned to Bullard’s, Queen R.6- on a Air similar to airport luggage. Mrs. Bullard with acknowledged that a less skilled 324. Both if there was room for the asked her son gain to access individual would be unable plane, agreed and Bullard to Rolles on 335-36, R.6-305, quickly, and Littleton transport ailing daugh- woman and her layman might up take to indicated that a The defendants had not an- ter to Miami. complete process, forty-five minutes to passengers. Af- ticipated these additional R.6-336. loaded, luggage group ter the was de- witnesses, including both A number States, taking parted for the United off at leading up the events described 4:30 or 5:00 P.M. Bullard’s had been arrest at Fort Lauder- to the defendants’ ninety no more than minutes left alone for request At the of Bullard’s mother dale. air, that afternoon in Bimini. Once 1, 1988, January planned the defendants plan flight Battle activated the return Bimini, appar- trip flight to for the a round impending of their arriv- notified Customs transporting Bullard’s moth- purpose ent al. family other members to Miami er and holidays. following the Because of bad Bullard, citizen, primarily Bahamian trip, originally scheduled for weather the father, for his a businessman who worked postponed Saturday, January was services, “water taxi” and bus fer- owned morning Sunday. until On the rying people from north to south Bimini. 3,1988, called his mother and made Bullard supplement pilot his income as a boat To family arrangements to meet the at the driver, occasionally Bullard and bus afternoon, airport Bimini around 2:00 airplanes in for worked on the Bahamas P.M. Ferro, airplane operates Richard who an Aviation, station, repair FAMCO flight plan At P.M. Battle filed a 1:30 Service, airport. Starting an air charter Flight Tamiami Miami located at the idea, a ve- plan accurately was Bullard’s father’s airport. Tamiami The list- service opens or removes an inte- Customs up in When setting his son business. for hide replace it. inspection plate, it does not rior pilot. On and a plan required Rather, pilot is issued a written warn- 1987, the elder November states, part: ing which Air, Queen putting bought the Beechcraft Compartments panels that were in the name of to the aircraft title open removed have been left defendant, opened choice Bullard. Their Donald S. you be aware of the extent so that will younger Bullard’s best pilot was Battle, search. time, our friend, At the Juby Battle. FAMCO, flying about

employed by may airworthy was as a Your aircraft not be week, flights per charter and we recom- three five result of food, tractor clothing, inspected by truck and an FAA carrying mend that it be engine from south Florida aircraft and mechanic be- parts passengers licensed citizen, Battle being An American fore flown. the islands. license, cargo American applied for an No.1(a). Exhibit Customs Government’s filed for a Bahamian the Bullards

while pilots of left this notice with the officials money in Battle invested no cargo license. panel searching it airplane Bullard’s after airplane. 21 and December on December warning signature appears on the Battle’s in- annual Beechcraft underwent an December 1987. Bullard admit- dated 7, to lasted from November spection which “[paid] that he attention to all notices. ted proce- An exhaustive December Yes, at them. I read them.” I lookfed] every dure, plate opened, every access then checked. The inspection area Jones, airplane me- James FAMCO, where it was brought Battle, chanic, worked at FAMCO like “pretty Security at FAMCO housed. flights the islands. flew charter to Jones but, R.6-314, breaking into good,” plane paying passen- and a took Bullard's R.6-214, hard,” airplanes is “not that 23, 1987, filling ger to Bimini on December navigation equipment of radios and thefts Battle, was ill. Mechanical diffi- who reported. were often as well as vandalism grounded in Bimini that culties November, January, 1986 and Between day, and Jones returned to Tamiami on 1987, augmented Ferro FAMCO’s Thomas flight. picking up After another charter security patrol by sleeping at regular necessary airplane parts, trav- Jones pit his bulls. facility company of Bimini, repaired Bullard’s eled back according to Thomas During period, that home, arriving at Fort plane and flew Ferro, R.6- no crime occurred at FAMCO. had around 7:30 P.M. Jones Lauderdale 214. for about left the Beechcraft unattended in Decem separate occasions seven On airstrip. Bimini eight hours at the seven ber, 1987, passed Bullard’s Beechcraft government’s Refusing to honor the sub- Lauderdale, and at Fort through Customs appear testify at poena, failed to Jones inspected each time. Of Customs Both sides wanted Jones’ testi- the trial. piloted Battle four.4 flights, the seven district court reviewed Jones’ mony. The Cus flew the remainder.5 James J. Jones grand jury testimony to determine whether De secondary search on toms conducted material and con- exculpatory contained it De 18, 1987, inspections on routine cember would suf- that available witnesses cluded 1987, 23, 27, intru 20, 24 cember points by addressed Jones. fice to cover 24, 21 and on December panel searches sive defense, Taking the stand in his own inspection was the Not searched 1987. knowledge the in- Bullard disclaimed the cocaine where discovered area Customs the cocaine was secret- 1988, dog spection well where used nor was Indeed, although acknowledged he ed. any of those occasions. (morn- December 1987 December 23 and 5. 4. December afternoon). ing and Bimini, it didn’t make having some electrical work on I flew the aircraft to once done Beeehcraft, any Bullard confessed to under R.8-688. difference.” airplane layo little and its stand about Battle claimed to have been on the Nonetheless, Bullard admitted know ut.6 performed only once when Customs more ing inspection plates located there are than a routine search of the Beeehcraft. aircraft, throughout and he claimed to Acknowledging that he had re R.8-726.7 locating inspection area capable warning Decem ceived the Customs issued difficulty. much here without involved 21, 1987, advising panels had been ber don’t have to be R.7-573-74. “[Y]ou [a that, opened, contrary Battle asserted plate],” great to find the deck mechanic notice, inspectors “did not written you dig up have to do is said. “All panels opened.” leave the R.8-724. He something.” you aircraft until find R.7- added, any I I “All can tell is didn’t find opened I panels and was issued this warn behalf, Battle, testifying pro- in his own ing.” dog R.8-724-25. Asked about nothing next to about “in- fessed to know searches, Battle stated none of general”: spection plates on aircraft planes he had flown into Fort Lauderdale I “I’m not a mechanic. don’t deal search, subject had of a been canine addition, area.” R.8-720. he denied although experience he had had that at the being the location of the in- familiar with Opa-Locka airport. R.8-727-28. spection pilot’s underneath the seat in Where, here, jury guilty verdicts of plane. despite This Bullard’s R.8-721. by are set aside the district court enter- fact that Bullard had flown about 1200 ing judgment acquittal based on insuf- hours, including 700-900 in mul- total hours evidence, ficiency the district court’s these, ti-engine airplanes. And of he had decision “is entitled to no deference.” Airs, Queen hours in Beeehcraft some 25 Greer, United States including approximately flight ten hours of (11th Cir.1988). Under our standard time in N151S. Battle conceded that he review, “if could find the areas [he] to_” necessary is not the evidence [i]t wanted every hypothesis exclude reasonable Battle declared that he would not have wholly innocence or be inconsistent with had he of the flown the aircraft been aware every except guilt, pro- conclusion that of inspection compartment, contraband vided a reasonable trier of fact could find stressing danger inherent obstruct- guilt that the evidence establishes be- ing primary controls —“a crash and burn yond a reasonable A is free doubt. emphasized he situation.” R.8-677. But among to choose reasonable construc- plane’s respond controls did not tions of the evidence. issue, differently day in any Bell, 547, United States v. normal, except slight slug- for a 678 F.2d 549 felt 1982) (en banc) (footnote (5th B handling Cir. Unit gishness in the due to the number omitted), on other grounds, cargo. passengers and amount of 462 U.S. aff'd 356, 2398, (1983).8 “If there when 103 S.Ct. short: those were 76 L.Ed.2d 638 fact, perform repairs pilot 6.When asked whether he could 7. In when Battle was the of the “No, Beeehcraft, responded, searches, a I am Customs conducted two intrusive ac- am not familiar with the Beech- not aware—I cording to the record. Government’s Exhibit Answering question, craft.” R.7-525. No. In addition to the December co-pi- was on floor "[W]hat lot seat?” Bullard said: text, panel inspection discussed in the only thing "The I know given secondary inspection a on December carpet carpet, met- is ... under the sheet [a]nd 18, explained specific al.” R.7-528. He his lack of by pointing knowledge about the Beeehcraft out Securities, Inc., Reynolds F.2d 8. In Stein v. 667 differ, that all and models and that as a makes 33, Cir.1982), (11th the Eleventh Circuit 34 newly experi- mechanic with limited licensed precedent adopted as all decisions of Unit B of expected could not be to have such ence he the former Fifth Circuit. familiarity any particular aircraft. intimate R.7-424-28.

999 disputed was not Bullard’s aircraft light board evidence examine the We resolving sufficient to convict defen- all evidence government, favorable to possess conspiracy to with intent drawing all reason dants credibility choices and also would suffice to convict jury’s to distribute support inferences able Greer, 1450; United possession charge. them on E.g., 850 F.2d verdict. Cruz-Valdez, 628, (11th Mosquera, v. 779 F.2d States 773 F.2d 630 v. United States Cruz-Valdez, Cir.1986); 773 denied sub Cir.1985), F.2d at 1544. cert. 1541, (11th 1544 States, nom., v. United 475 Ariza-Fuentes proscribing the The statute substantive 1272, L.Ed.2d 580 106 S.Ct. U.S. 952(a) importation, offense of U.S.C. § (1986). im provides: “It shall be unlawful ... to port any place from into United States repeated The often elements thereof, any outside controlled substance regretta drug charged in this case crimes subchapter I or II of I of this Schedule familiar: bly are all too chapter....”9 purposes proving For conspiracy, prove To the offense section, importation any point under this that an government must demonstrate airspace limit of outside twelve-mile or more agreement existed between two representing the extent of cus and waters crime, the ac- people to commit territory “place constitutes a outside” toms knowledge at least the es- cused had the United States. United States agreement, and objectives of that sential Lueck, 678 F.2d (11th Cir.1982).10 knowledge, he vol- that armed with precise need not show a il- participated in the untarily joined or origin foreign prove to point of soil if did legal Even a defendant venture. 952(a). Rather, violation of fact of § “[t]he join conspiracy until after its crossing boundary of the United States only played if he inception, and even suffices to im with contraband establish scheme, may minor role in the whole However, if the evidence Id. portation.” from the Inferences still be convicted. prove the defen were sufficient alleged participants conduct of knowingly joined conspiracy im dants circumstantial evidence of a from other port then no additional evidence for may provide the basis estab- scheme necessary support their convic would be conspiratorial agreement lishing that a count, it tions on the substantive existed. occurred charges them with an event which Likewise, controlled possession of a actively participated in the al while both may with intent to distribute substance leged conspiracy. United States v. John proved by circumstantial as well be son, (5th Cir.1978), 1366-67 may Intent to distribute direct evidence. denied, cert. 99 S.Ct. 1213- 440 U.S. inferred from the amount of contra- (1979).11 14, 59 L.Ed.2d 454 may be either actual band. Possession constructive; if exercised the accused or acquittal of the judgment In its written dominion or control view, ‘some measure of what, in its district court described contraband,’ exclusively either over the government’s in the were the deficiencies others, in with he construc- or association case: it. tively possessed case, there could have been no In this stored Pantoja-Soto, 739 that cocaine was States v. reasonable doubt United denied, by the 1520, (11th Cir.1984), plane which was flown cert. 470 the 1525 1369, Bimini in the Bahama 1008, defendants from 84 L.Ed.2d U.S. S.Ct. Lauderdale, Florida the (citations omitted). the Islands to Fort (1985) Because However, was the record United States. large quantity of a of cocaine presence 1206, Prichard, City 661 F.2d subchapter v. Cir.1981), of I 11.In Bonner is listed in Schedule II 9. Cocaine 812(c). (11th chapter Circuit § See 21 U.S.C. the Eleventh of Title 13. adopted precedent decisions of the Fifth as Bimini, the Commonwealth of an island in prior to October Circuit rendered Bahamas, clearly customs is outside the the territory States. of the United observes, defendants, This, government gave them that the of evidence devoid them, directing placed map,” the contraband them to a in effect a “road or either of conspired opened. or to do so. likely to be aboard container not record failed to show Also the Finally, government stresses that placed the air- aboard contraband hiding stranger of a cocaine val- possibility knowledge, consent or with the on a at close to one million dollars ued defendants, or either complicity of no con- which he could exercise plane over Moreover, infer- any reasonable them. re- unlikely properly trol was so from the evi- that could be drawn ence as unreasonable. jected beyond a presented does not show dence urges rational trier of government that a doubt the contraband reasonable prudent fact is entitled to conclude placed aboard with individ- drug dealers do not enlist untainted knowledge, complicity consent smuggling operations. uals to assist defendants, them. Accord- or either of has ingly, reasonable doubt standard characterize this as an The defendants case, not been met. archetypal presence” “mere remind- ing frequently us that “this court has af- a defen- firmed that the mere that the cir- government contends place dant at a where is discov- contraband cumstances, totality, support the in their guilt.” ered is not sufficient to establish have jury’s that no one could conclusion Cruz-Valdez, (collecting 773 F.2d at 1544 inspection placed in the area of the cocaine cases). govern- The defendants attack the the defendants’ Bullard’s aircraft without premise ment’s Noting that on collaboration. tightly squeezed inspection into the were so for at the aircraft was unattended compartment probably that Battle minutes, ninety theo- party According noticed some resistance. rizes that an unrelated third would have time to locate the not have had sufficient to the the evidence showed well, it, inspection open conceal the loosely packed that the cocaine was and did inspection plate, carpeting replace They fur- not interfere with controls. seat, precise- placing pieces back emphasize betrayed ther that no odor ly positions so as not to arouse the same plane, presence of the cocaine on the Further, no pilot’s suspicion. evidence linked it to the defen- no scientific Bimini, family, one in other than Bullard’s Despite availability dants. of scientific of the defendants’ trav- had been informed facilities, testing no such tests were con- planned stranger could not have plans, el ducted. the defendants unwit- in advance to make As an additional “reasonable doubt couriers. ting cocaine factor,” point the defendants out that sev- Moreover, according government, to the members, family including eral Bullard’s stranger planted the cocaine on Bul- had son, plane, his infant were aboard the have airplane, lard's the defendants would suggest they knowingly would not could reason- found it. Because subjected pas- have either these innocent ably concluded that the contraband have sengers danger or themselves inspection completely filled the flying foreign objects opera- therefore caused resistance well. controls, addi- tion of the aircraft’s Accusing government “rampant inferred, reasonably, tionally have theorizing,” the defendants and baseless Battle, experienced pilot, would an likely cul- name James Jones as something have felt unusual investi- he, They explain anyone, prit. Also, government pos- gated cause. its De- could have hidden the contraband on uniquely posi- the defendants were its that day Jones left the cember as a tioned to select the parts in Bimini to retrieve plane unattended place, they had hiding been repair. through many prior searches. for its Customs cases, visibly instructive was not altered nor parties The cite some point. In though supplies, none is on United States stocked with such as extra fuel Cir.1987), Rutkowski, (11th cans, F.2d 594 indicating lengthy journey. v. a Most by government, this court upon relied important, is the though, fact that Rut- physical proof of the defendant’s held that kowski, concealed, barely the cocaine was private presence aircraft con on board while here the controlled substance was kilograms coupled taining 130 Nevertheless, well hidden. the case under- evidence, was with other circumstantial proposition scores the “the evi- that where defendant, convict the Rut- sufficient to presence dence establishes not mere but kowski, conspiracies charges of cocaine presence particular under a set of circum- case, In that and substantive offenses. stances ... an examination of all of the airplane’s pilot suspicion by had aroused circumstances, proved presence, including using plane’s transponder, a radio required] determine whether from [is flight. necessary for instrument beacon them a could infer and reasonable find Also, flight plan, he had not filed a and the beyond knowing a reasonable doubt operating. plane’s lights were not Id. Cruz-Valdez, participation.” intentional Summarizing the other circumstantial Rutkowski, 773 F.2d at 1545. the totali- evidence, the wrote: court ty pattern of the circumstances created a relatively large amount of There was guilt support jury’s sufficient (130 kilograms) contained in a That, says government conclusion. is space. passen- rear relatively small precisely the situation here. from the ger seats had been removed point The defendants United States airplane, the cocaine in un- (11th Vidal-Hungria, 794 F.2d 1503 Cir. easily locked containers accessible to 1986), in which court held that anyone sitting co-pilot’s in the seat. Ac- marijuana of 23 tons of stored in trial, cording to evidence introduced at tightly compartments sealed on a 156-foot mechanic, FAA Rutkowski is an certified freighter coastal was of itself insufficient log indicates that he took an fuel conspiracy pos to convict the crew part flight active as a member session of contraband with intent to distrib Furthermore, the air crew. trial testimo- However, compelled ute it. this result was fueling ny jugs established that from by against the total lack of evidence by log the manner indicated the fuel is members, crew id. at and “the fact difficult, extremely impossible if not marijuana was so well sealed that help. jurors Reasonable can without be- ordinarily a crew member would not have drug lieve that dealers do not invite un- it,” Indeed, seen it or smelled id. at 1514. persons operating tainted to assist in the Coast Guard officers who searched the carrying vessel millions of dollars worth would, likelihood, vessel in all have over of contraband. fortuity marijuana looked the but for the Id. at 599-600. happened to stand for that one tall officer conceding While the cocaine was more than an hour near the sealed vent Rutkowski, readily more accessible in leading compartment, hidden en one, that case to this likens negligible abling him to detect the odor Bullard, Rutkowski, noting like is an by emitted the contraband. Id. effec FAA certified mechanic who took an active marijuana neutral tive concealment of the part flight. But the Rutkowski deci- “large quantity factor” ized the so-called readily distinguishable in several sion is identified this court Cruz-Valdez.12 First, respects. Battle filed—and adhered to resemble This case could be said Vi- flight plan, transponder to—a obtained the cocaine secreted appearances, dal-Hungria because number to all outward Also, marijuana plane, like the nothing did unusual while in the air. on Bullard’s Cruz-Valdez, jury which a can infer In 773 F.2d at the court circumstance from large must have explained quantity persons on board the vessel that the existence of a the significant presence. of its of contraband on a small vessel is a known proof freighter, completely Despite showing was so hidden the lack of direct reasonably jury that a could not infer that that the defendants or an unnamed cocon- persons airplane all on the knew of the spirator plane, hid the cocaine on Bullard’s presence. cocaine’s A crucial fact distin- evidence, we hold that viewed guishes present Vidal-Hungria from the government, light most favorable to the case, Vidal-Hungria the con- however. jury facts from which the established could ship’s captain victions of the were af- reasonably infer that Battle and Bullard Indeed, captain firmed. did not chal- knowingly voluntarily participated lenge sufficiency sup- of the evidence charged. the crimes The circumstantial ev porting n. his convictions. Id. at 1515 simply squared idence here cannot “be noted, “large quantity As the court hypotheses endless of innocence.” Panto significant factor” was “much more ja-Soto, 739 F.2d at 1527. The alternative government’s against” case the vessel’s defendants, though scenario offered captain, captain’s responsibili- because the properly presented jury, to the did not re “knowing ties necessitated the existence of quire jurors to entertain a reasonable large weight cargo below deck.” Id. guilt, doubt about the defendants’ for a Here, analogous cap Battle is number of reasons. tain in Vidal-Hungria, and the status of Bullard, passengers, excluding the other First, is jury was entitled to find more akin to that regular of the crew. The put the cocaine was in fact small, private plane of a is unlike a plane January 3, in Bimini on 1988. The large, ocean-going hired hand aboard a theory planted defendants’ that Jones freighter. The facts of this case—a sizea (the cocaine on day December quantity packed ble into a problem Bimini), the mechanical while cramped compartment containing crucial remotely possible, compelling is not so perhaps lending controls—while them finding. to mandate such a Plainly the persons selves to an inference that all on jury, using its general common sense or airplane knew of the of the knowledge about commerce in controlled contraband, see certainly id. do substances, Cruz-Valdez, 773 F.2d at support a reasonable pi inference that the reject as incredible the notion that a foreign lot felt the material prudent drug smuggler would allow mer pilot’s responsibility investigate chandise valued at one million dollars to sit any plane’s irregularity performance, airplane nearly on board someone else’s the additional inference that he of the knew weeks, two risking discovery all the while cargo. nature the clandestine And Bul goods by FAMCO lard, unlike the crew members Vidal employees Customs, or movement of Hungria, owner of the aircraft. airplane location, to an unknown see id. passive He was not a investor but rather Jones, The idea that culprit, if the participant overseeing an active the use of allow the cocaine to remain on the is plane. Although actually fly he did not implausible by further rendered the fact Beechcraft, did, Bullard knew who 24, 1987, that on December Customs con taken, where it was and when. See R.7- panel airplane ducted a search of Bullard’s Furthermore, 3, 1988, January 531-34: pilot. jury might while Jones was the spent day Bullard the entire in Battle’s reasonably have inferred that if Jones were Thus, presence. could infer that smuggler he would not have waited to Battle could not have sneaked the cocaine watching remove the cocaine after Cus onto Bullard’s alerting without Bul apart airplane toms officers tear facts, together lard. These with the evi day. suspicious dence of the defendants’ conduct Once the came to the reasonable building, support while inside the Customs conclusion that the reasonable inference that both cocaine was concealed and Battle knew of the cocaine’s existence the circumstantial evi- and whereabouts. culpability dence of the defendants’ became Vidal-Hungria, United States was strong. Because (11th Cir.1986). 1503, 1513 min- ninety for at in Bimini ground to find that utes, jury permitted (See was Record, further 2 at 85. also Vol. defendants, acting in Order, or someone only Judge Ma- quotations from Paine’s them, 999-1000.) have committed fingerprints with could The jority op., concert And, there was testi- of the packages crime. because the cocaine were not those packed agents handled the cocaine was defendants nor of the who mony that packages. government so as to affect the The failed to compartment the defendants to the cocaine ex- controls, infer that Battle connect jury could cept by inference. that the were necessarily knew argu- accept the defendants’ well. To that he did not “feel” the Battle testified point would contrary on ment to the any obstructions that inter light evidence require us to view the piloting plane. fered with the of the The an effort defendants, most favorable packages of experts testified that the soft to undertake. is not authorized compartment might might this court or through impact upon passing the cables not jury reasonably could Finally, the Nevertheless, the ma compartment.1 argument the defendants’ rejected have the cocaine jority concludes because expose friends and they not plane when it reached Ft. found on the associated with family to the risk of death “supports] a reasonable infer Lauderdale aircraft drugs important crowding around foreign ence that the felt the material again consulting jurors, mechanisms. pilot’s responsibility to trade, drug knowledge of the general their investigate any irregularity plane’s drug smugglers that these could conclude performance, the additional inference that the welfare less concerned about were of the nature of the clandestine knew prospect per by the than excited others Majority op., at cargo” may be drawn. short, jury could sonal enrichment. unsupported conclu majority’s 1002. The believed the re the defendants find that sion the cocaine affected [that controls] guilt. risk. pyramids to be commensurate into inferences of ward then assumption that the cocaine With the being totality circumstances suffi- put on the guilt beyond a reasonable to establish cient ground in Bimini that the was on jurors, in the minds of reasonable doubt minutes, majority concludes only 90 acquittal must be reversed judgment of only permitted to find that jury “the sentencing. the case remanded acting in someone con- and REMANDED. REVERSED them, could have committed cert with have agree jury I that the “could” crime.” CLARK, Judge, dissenting: Circuit conclusion, I not but do reached such so agree they could have done “be- I have read respectfully I dissent. Judge Paine yond a reasonable doubt.” Judge was correct transcript. Paine trial might acknowledged that the defendants failed to ruling correct in guilty, but he was have been beyond a reasonable doubt: prove its case to which rea- concluding there were doubts If the evidence is so scant could be attributed. sons conjecture as to a only speculate or judg- affirm the district court’s I would guilty will guilt, verdicts defendant’s acquittal. ment of guilty. If the support judgments of concludes, on the evidence court trial

submitted, reasonably minded as to a a reasonable doubt

must have had judg- guilt, the motions for

defendant’s granted. acquittal must be See

ment Majority opinion. page 995 of the

1. See

Case Details

Case Name: United States v. Juby Deon Battle and Donald Shannon Bullard

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jan 8, 1990

Citation: 892 F.2d 992

Docket Number: 88-5423

Court Abbreviation: 11th Cir.