United States v. Levino Michelena-Orovio

running. еngine from the tractor with presented no other Although the Johnsons America, UNITED STATES of adequacy concerning Plaintiff-Appellee, infer from John- could warnings, warning provided testimony that

son’s MICHELENA-OROVIO, Levino was insufficient. Defendant-Appellant. Or. Corp., 282 Aircraft Piper In Wilson No. 81-3706. rehearing, on P.2d aff’d Supreme (1978), P.2d Or. Appeals, Court of defective Oregon ruled Court Fifth Circuit. uncomplicated prod- involving cases design March 1983. features, question simple design ucts or proposed design of a practicability 18, 1983. Rehearing May Granted on the basis weighed change could be knowledge of inference and common reasoning. with this agree We

jury. case, proposed alterna- present all rela- by Chris were designs suggested

tive using a jury, which simple

tively ideas knowledge, everyday sense and

common sig- would not changes

could infer that engineering

nificantly affect the overall expensive. unduly

the tractor

Therefore, reviewing the carefully after record, the Johnsons did

entire we find upon which sufficient evidence

produce unrea- produced IH

jury could find that safer and that a

sonably dangerous product feasible, design technologically

tractor practi- was more costly produce

less design opera- overall

cable in terms of

tion.

III. issues raised find the other

We merit. Accord- without appeal

IH on are the dis- judgment

ingly, we affirm court.

trict

AFFIRMED. Banc, En Rehearing 5th

Opinion Cir.,

Randall, Judge, separate Circuit filed opinion concurring dissenting part.

Coast personnel Guard converted boat, seventy-five shrimp approximately hull, long, feet with a white its booms re- moved, cargo marijuana. They and a ship Guard informed Coast Dymond, Crull & Castaing, Edward J. traveling from Colombia to rendezvous Castaing, Orleans, La., New for defendant- specific point another at a on the vessel appellant. marijuana high seas and to unload the for Forty into the United States. Marilyn Gainey Barnes, Michael Schat fifty point, miles south of the rendezvous zow, Asst. Attys., Orleans, La., New point approximately at a 200 miles south- for plaintiff-appellee. Orleans, aboard the personnel east of New vessel, VALIANT, sighted

Coast Guard a agents’ description. boat that met the The heading boat was north the rendez- toward vous site. vessel, As the VALIANT the the neared RANDALL, WISDOM, and Before identify VALIANT crew was able to the

TATE, Judges. Circuit lights the ALEX on vessel as LUZ. the appeared vessel had been reversed so that it PER CURIAM: moving opposite to be in the direction to its LUZ, presuma- actual course. The ALEX defendant, of the crew of member VALIANT, bly sighted changed after it the intercepted high by seas a vessel its course from due north to due radically a cargo Coast Guard and found to have unsuccessfully south. After the VALIANT marijuana, challenges his conviction of con- attempted to with the ALEX communicate marijuana spiracy radio, by alongside LUZ it came the vessel marijuana intent to distrib- board, requested permission which (1) the trial ute it. He claims: court was denied. denying suppress erred in his motion to flying Since the ALEX LUZ was evidence; (2) that the court erred in re- flag, Venezuelan on the VAL- personnel sample fusing to allow to smell IANT to board permission obtained from (3) there marijuana; bale of was government, the Venezuelan as well per- insufficient evidence to his convic- mission to search the vessel and detain it if below, tion. For the reasons set forth we marijuana or contraband were found. The reverse in part. affirm in attempted VALIANT then to communicate LUZ, by radio with the ALEX but received response. no Finally, the VALIANT crew I. FACTUAL AND PROCEDURAL told the ALEX stop LUZ because BACKGROUND. permission Coast Guard had to board the An vessel. agent joined undercover other law enforcement agents in Louisiana in pre- When stop, the ALEX LUZ did tending to be unloaders and truckers of attempts VALIANT crew made several marijuana who were seeking employment. halt, including firing force a shots into the They met with persons represented who throwing propeller. air and lines into the themselves to be engaged in smuggling vessel, After Guard hosed the Coast marijuana Colombia, (cid:127) who subse- smokestack, sending water into its the boat quently hired provide them to ships to meet Colombians, finally stop. Eight came to a at sea with other ships transporting mari- defendant, including the Levino Michelena-

juana. The smugglers informed the agents Orovio, came out of the cabin with their that a ship mother departed had from Co- bags packed and sat on the stern agents lombia. The described ship vessel. marijuana was apparently

There no the ALEX LUZ was involved LUZ, against the deck of the ALEX Lieutenant crime the United States. Shuck testified at trial that he could smell The evidence to the available Coast

marijuana when he the vessel. boarded did give grounds Guard it reasonable cap- When Lieutenant asked for the Shuck suspicion such crime was intended. LUZ, Romero, tain of ALEX Oscar one personnel Coast Guard been had informed persons previously aboard who had agents undercover that a converted crew, spoken with the respond- Coast Guard boat, closely resembling shrimp the ALEX ed captain was no and that the LUZ, traveling from Colombia to ren boat no papers. official The Coast specific dezvous another vessel marijuana Guard found 363 bales of point and unload for impor hold of vessel. Government witnesses into tation the United States. The ALEX valued at approximately four sighted forty fifty LUZ was miles south to six million dollars. point heading of the rendezvous to north Thereafter, September 25,1981, ward the site. the ALEX LUZ

On Michelena-Orovio changed its course. Even when informed charged and others were in a three-count that superseding given Venezuelan authorities had indictment with search, permission their the boat at States, import marijuana into the United a tempted to avoid search. The combina attempting to import marijuanа into the tion these was facts sufficient to create a United States reasonable crime suspicion against a marijuana it, with intent was United States intended.1 violation of 21 (1976), 963 and 846 U.S.C. §§ respectively. pretrial Michelena-Orovio’s Moreover, probably Michelena-Orovio suppress motion to the evidence was subse- standing does not have assert fourth quently 9, 1981, denied. jury On October questionable amendment issue because it convicted Michelena-Orovio on the two con- whether, member, crew mere he had a spiracy counts. court The sentenced him to legitimate expectation privacy cargo a four-year imprisonment term of on the shrimp stowed of the hold converted first conspiracy count and a five-year term DeWeese, ing vessel. United States v. 5 on Imposition the second. of sentence on Cir.1980, 1267, 1270, 632 F.2d the latter count was suspended and the 878,102 70 L.Ed.2d placed defendant was on probation inactive therein; and cases cited United States years, five upon commence his release Freeman, Cir.1981, v. 5 660 F.2d 1034. custody. government’s The subse- We have held crew no members have quent motion to dismiss the substantive legitimate expectation privacy in those count of the indictment was granted. Mi- areas of commercial vessel which are sub chelena-Orovio appealed. ject common access of those legiti mately DeWeese, aboard the vessel. supra. II. THE MOTION TO SUPPRESS. III. THE REFUSAL TO ALLOW THE The district court denied the motion to JURY TO SMELL THE BALE. suppress the marijuana, ruling there was reasonable suspicion for the search of Michelena-Orovio next contends that the ship’s hold. argues Michelena-Orovio refusing district court erred in re his there was suspicion not reasonable quest permit to smell one of the Although 1. the defendant has not raised the seas if have reason to believe that those issue, requi- we also note the existence aboard are involved statutory authority site for the Coast Guard to contraband into the United States. seize and search the ALEX LUZ. United authority if Even existed under Williams, Cir.1980, 5 617 F.2d 89(a), the Coast Guard’s § actions would have (en banc). statute, 1074 A federal 14 U.S.C. been authorized Venezuela’s consent. Wil- 89(a) (1976), § authorizes the Coast Guard to liams, 617 F.2d stop foreign high and search a vessel it existed, the accused knew about marijuana. argues acy He that the

363 bales of and, knowledge, voluntarily with that issue of probative evidence was Rodriguez, v. joined it.” United States aboard whether could be smelled (quoting Cir., 585 F.2d boarding. the time of the ALEX LUZ at White, Cir.1978, 569 F.2d not in error. Rule 403 of ruling aff’d, Cir.1978, (en 267), provides of Evidence the Federal Rules Albernaz v. United banc), aff’d sub nom. that relevant evidence pertinent States, 1981,450 333,101 is sub- probative be excluded if its value conspiracy prosecution In a L.Ed.2d 275. stantially outweighed by danger of un- 963 or 21 § U.S.C. under U.S.C. § issues, or prejudice, confusion of the fair prove overt allege is no need to district court misleading jury. 1245, aff’d, acts, Rodriguez, 585 F.2d at because the properly excluded produce or to direct F.2d at 919 n. experiment dif- proposed conditions of the Glasser, supra. conspiracy. evidence of the aboard the substantially fered from those Further, required “not government ALEX LUZ. The was then one the details of ... of all prove year experiment old and the courtroom members, pro- or each of its bale, only would have involved one not the prosecution established vided [the] The experi- 363 bales found on the vessel. conspir- knowledge of essentials] place takе in a courtroom ment was to Alvarez, Cir.1980, acy.” sea. We rather than on a small vessel at 1196,1198 (en banc) (citation omit- proper have it is to refuse to allow held that ted.) of the experiment such an if the conditions conspiracy to have held that a We proposed experiment substantially differ proven by a import marijuana may be existing from those at the time the officer infer of showing sufficient to United States See marijuana. smelled the The cargo. the illegal the existence of Cantu, Cir.1977, 1327; v. United 5 555 F.2d voyage, quantity of the the probable length 1299; Torres, Cir.1976, v. States 5 537 F.2d board, relationship the marijuana on of Cir.1976, Vallejo, v. United States 5 541 his crew are all captain between F.2d infer jury factors from which can v. knowledge. United States requisite IV. THE THE EVI- SUFFICIENCY OF Freeman, Mazyak, v. supra; United States DENCE. denied, 1982, 788, 5 cert. Cir.1981, 650 F.2d contends Finally, Michelena-Orovio 464; 1281, 922,102 71 L.Ed.2d 455 U.S. S.Ct. prove that the evidence was insufficient to Cir., 551, Alfrey, v. 5 United States to im participated conspiracies that he denied, 1980, 938, 101 S.Ct. marijuana into port the United States 337, 66 L.Ed.2d 160. marijuana with to distrib possess intent of the suffi ute it. The standard of review Conspiracy Import. A. The ciency of the evidence in criminal case is is more in this case The evidence must reasonably-minded jury whether a Michelena-Oro than sufficient to establish a reasonable doubt as necessarily entertain The import. guilt vio’s of guilt light to defendant’s at least five of the ALEX LUZ was voyage of evaluating at trial. a claim produced discovered The Coast Guard days long. this stan according insufficient evidence marijuana of aboard over twelve tons dard, we must consider the evidence in jury could seventy-five foot boat. government. to the light most favorable voyage and size length fer from the of States, Glasser v. United 315 U.S. relationship between the vessel a close of v. 680; 62 86 L.Ed. S.Ct. crew. and the captain Freeman, Cir.1981, 660 F.2d 1030. In a 5 may be con crew member case, While a government prove must marijuana victed of conspir- reasonable doubt “that a beyond a

501 merely presence ship agreed basis on a all that captain there was no aboard contraband, with a large loaded amount of the vessel. The infer could that Bland, Cir., United F.2d group acted in concert to conceal the identi- cert, denied, 1981, 454 ty captain. 592; 602, 70 L.Ed.2d v. Wil States B. The Conspiracy to Possess In- lis, Cir.1981, F.2d the govern tent to Distribute.

ment has established more than mere pres this ence in case. There was evidence that The final contention of Michelena- of marijuana permeated odor the small Orovio that there was not sufficient evi vessel. In both Bland and Willis the hold dence to him conspiring convict to pos containing the illegal cargo was sealed shut sess with intent it distribute and there was no ei testimony at trial in in the United States. The contention poses ther case the odor of could dilemma, for this Court two developed has Further, be detected. there were other sus distinct lines of precedent as the evidence picious concerning facts the ALEX LUZ. is sufficient to warrant conviction for When spotted the Coast Guard first the offense when the is a accused member vessel, lights it had its so it reversed of the crew a ship apprehended appeared to be going the direction oppo high contraband on the One seas. line logical site to its actual expla course. cases, starting with United States Cade nation for this lighting practice unusual na, Cir.1978, has held that was attempting boat was to escape government cannot rely only on the size suspicion detection. This was confirmed prove the cache to elements of when changed the boat direction as soon contraband with in its crew became aware the Coast Guard’s tent it in the United States. presence. cases, The other line starting with Unit Mann, Cir.1980, ed The situation on board hardly likely denied, 1981, dispel suspicions aroused by the 193, held, 68 L.Ed.2d boat’s without discuss appearance. outward Besides the Cadena,2 ing infer, the jury may fact apparently boat reeked cache, there the size of the to fishing was no intent distribute equipment contraband, aboard no cargo knowledge conspir and other than the contra- Consequently, acy, agreement band. it and to join conspiracy. could be inferred Michelena-Orovio, member, that We by crew choose to resolve this conflict follow was to the marijuana, only ing hired handle ‍‌​​‌​‌​​​‌‌​‌​​‌​‌‌​‌​​‌​​‌‌​‌​​​​​​‌​​​‌‌​​‌​​​‍Cadena because it is the first of our cargo addition, on board. eight per- us, In all problem cases to consider the before has LUZ, sons aboard the ALEX including overruled, specifically never been and inis defendant, concert, acted they when our view Mann its better-reasoned than and came deck bags with their packed. They progeny.3 discussing

2. The most case recent Cadena is na was 200 miles offshore that was and there Chaparro-Almeida, Cir.1982, supporting no evidence of an intention to deliv- Chaparro-AI- 679 F.2d 423. The defendants in er the to contraband the United States. brought were meida Columbian who F.2d 430. nationals marijuana-laden a vessel to within seven miles the Louisiana coast. The Coast recognize Guard 3. We that stopped waiting the vessel while it was to de- panel Court, a of this we are without [a]s liver the to two Americans who had power pan- to a overrule decision another arrange delivery left the boat to for the solely That el. task falls to the full court contraband to the United States. The Court sitting States, en banc. Ford v. United conflicting did not discuss the case law in the (5th Cir.1980). F.2d Neither one can circuit, but affirmed the convictions for con- panel ‘disregard precedent by prior set a spiracy import to and to panel, though even it conceives error in the marijuana with intent to distribute init precedent. overriding Supreme an Absent Court, however, United States. distin- statutory change decision a in the Court guished Cadena, noting that the vessel in Cade- law, only sitting en do banc can Court However, literally no evidence there was Cadena, we the conviction reversed the involvement of Mar- a respect transferred captain ship a sea whose had in a distribution Smigowski tins and marijuana to a smaller large quantity of be inferred except might what south of the scheme point craft at a 200 miles agreement an Court, speaking participation from their Florida coast. Cadena circumstan- it. The direct and Rubin, unwilling import through Judge Alvin peripheral were they tial evidence that in a to infer of and importation scheme participants intent possess marijuana with conspiracy to refute, a reasonable beyond of the cache does not to distribute based on the size doubt, they that had no hypothesis knowing agree- greater proof without of a a knowledge of join conspiracy: ment to these shores. once it reached Cadena, ..., was no evidence As to Albernaz, per- who Rodriguez that he knew of a distribution scheme Unlike marijua- arrangements make some conspired imрort he force had to when treasure, Smigowski presented by their dispose na. Unlike situation reward and had no inter- each receive his ongoing enterprise, Cadena Martins could any, if Unlike Rodri- plans, est in or awareness of what done with the scheme. Albernaz, who, according of the mari- to the dispose guez had been reached to the Miami evidence, shores. Al- contacts outside juana once he reached these area, money, planned facilitates front though needed distribute, cannot or Martins Winnebagos, Smigowski one use [join] whether conduct or to have been connected conspiracy, were not shown accord, arrangements impor- verbal one knows that it unless with the actual has in fact been concocted.... tation. [F]rom apparent it was not perspective, Cadena’s Smigowski There was evidence reached, any yet accord had been parties Martins were tacitly either or otherwise. scheme, evidence that there is no beyond reasonable doubt would establish F.2d at possession they likely come Cir., Rodriguez, arrived, in its it share of the haul once 1234,1245, aff’d, 1978, (en 612 F.2d 906 thereafter, or other proceeds banc), v. United aff’d sub. nom. Albernaz be inferred which it could in turn States, 1981, 333,101 to distrib- privy plans were companion was a case to Cade- L.Ed.2d already ute We have the contraband. Rodriguez prosecution na. involved the large supply of a possession noted four who were to receive the mari- persons may justify substance prohibited juana Although we af- on Cadena’s boat. intended to possessor inference that firmed the convictions of two defendants it, but there was no evidence distribute with intent to possess for to had suffi- Smigоwski and Martins distribute, we reversed the convictions of over or interest in the cient dominion men not made specifically two who had the inference. marijuana to warrant arrangements participate to in the distribu- (affirmed pertinent at 1247 marijuana. Again speaking tion of the 585 F.2d 3).4 Rubin, at 908-09 n. In both Judge part, we said: 612 F.2d through 437, Estelle, panel properly in- the evidence 529 441 The found this.’ Davis v. F.2d 1976). involvement of Smi- to show the sufficient Cir. involving Watkins, Cir.1981, gowski Washington in a 5 655 F.2d and Martins v. actually 1346, Washington, once it of the 1354 n. 10. As in we cannot distribution precedent Their conviction the United States. “one line without disre- reached follow other, properly authority garding therefore reversed. the to II was the and we lack Count “perforce expense.” Rodriguez had to and Albernaz Id But overrule one line at the other’s dispose arrangements to of their make some Judge stated: treasure,” 1247, 4. Brown for the Court en banc two actu- F.2d and those 585 spiracy distribute, the was un- to intent Rodriguez, possess Cadena and Court with to willing agree- to infer that there was an for there would be no without distribution marijuana marijuana ment to distribute to The government based distribute. gulf the import existence of and on overlooks the between the in- rational the size of the cache without more evidence ference that someone would the distribute imported marijuana of the defendants’ distri- the in- involvement the irrational ordinary bution scheme. ference that an member the knowingly joined crew and intentionally subsequent opinions Several are inconsist scheme marijuana. to distribute the Rodriguez. ent with Cadena and In United Cir.1980, Mann, 668, government The partially relies on Unit denied, 1981, 994, cert. 450 U.S. S.Ct. Bruno, Cir.1939,105 921, ed States v. F.2d 1694, L.Ed.2d Court held that grounds, rev’d on other 308 U.S. defendants, were who American citi to argue L.Ed. zens, properly were convicted of conspiracy conspiracies distribute should narcotics possess marijuana with intent to distrib analyzed chains or interconnected ute it in the United when were States conspiracies participant in which links — caught at sea on an American vessel loaded part conspiracy may be convicted of 22,500 pounds with of marijuana. The Bruno, In participation whole. Court reasoned that the mere size of the were of a conspiracy defendants convicted presence cache sell, to import, possess narcotics. The import marijuana jury allowed the argued separate conspira defendants infer intent distribute and cies smugr were involved—one between the between, in a conspiracy to distribute. In a number glers and the middlemen and one Mann, of cases after Court this has followed the group middlemen each of retailers. See, Mann to reach this same result. rejected argument The Court rec this example, Mazyak, Cir. ognized interdependence participants denied, 1982, 455 in a drug distribution scheme: 464; 71 L.Ed.2d The cooper- evidence did not disclose any Shelnut, Cir.1980, ation or communication between the denied, 1981, 983,101 retailers, smugglers group and either 1520, 67 L.Ed.2d groups between the two of retailers themselves; however, government smugglers contends that Mann and its are progeny better-reasoned and more knew that sell to middlemen must consistent with retailers, law than Cadena and the retailers knew that the government and Rodriguez. argues buy importers middlemen must of one agreement that an marijuana sort the conspirators or another. Thus at intent distribute be inferred one end the chain knew that the un- not, the quantity imported. not, lawful business would and could cаse, In this twelve tons of stop their buyers; and those more than a mere mortal crew of eight begun other knew it had end consume; therefore, could ever true, the mem- with their sellers. being That bers of crew join intended to have might found all ac- scheme to venture, distribute the upon contraband. cused were embarked of a legal dispose absence market all parts participant, of which each as a contraband, no reason to and an abettor in the sense that the suc- unless is a plan distribution. Fi- cess of which he im- was nally, government argues the the concerned, dependent upon act mediately n importation is in furtherance the con- the success whole. ally arranged (without properly the involvement of suffi- therefore found the evidence Smigowski Martins) transport, by respect or cient with counts the con- to both Winnebagos, Rodriguez

means of and distribute the victions of and Albernaz. Rodriguez, panel once it reached shore. The F.2d n. 3. 612 at 909 504 v. argues Employment Opportunity Commission government

105 F.2d at 922. The Lines, Inc., Cir.1980, the support that Bruno and other cases5 3 635 F.2d Greyhound holding suppliers 194; of narcotics such as Industries, 188, National Inc. v. see par- be convicted for may Michelena-Orovio Co., 9 Life Insurance Cir. Republic National ticipation in the entire distribution scheme. 1258,1267; Fenner v. Gener 677 F.2d question-begging argument. This is a Cir.1981, Corp., 5 al Motors denied, 1982, could The issue is whether 653; L.Ed.2d Wilson v. Win reasonably infer that a crew member of a E.D.Tenn.1978, high knowingly stead, F.Supp. vessel on the seas and vol 268.6 untarily joined conspiracy to distribute logic experience, and common Based on required had intent to distribute caught that a crew member was and his based on size of the cache high conspiracy seas in a participation import. in the the inference marijuana does not warrant deduction, by “An inference is a warranted agreed to voluntarily that he knew of or trier experience, human reason and that the to distribute join may of fact make on the of estab basis the cache the United The size of States. process reasoning lished facts —a that someone at may allow an inference premise to conclusion without the directive plans unknown location some law, force of a rule of which characterizes a pyr- it does not warrant Louisell, presumption.” Construing Rule an inference that a mere crew amiding Instructing Presumptions 301: on Jury it re- person member was such a nor does Proceedings, Civil Actions and 63 Va.L. hypoth- fute a reasonable doubt the beyond (1977). Rev. 281 “In the case of an infer or join esis that he did not in the ence, the existence of B may be deduced there is no evidence even know of it. When from A by ordinary rules of reason and stake in the that a crew member logic.” Berger, 1 J. Weinstein & M. Wein interest in the venture or awareness or stein’s Evidence The effect of § 300[01]. contraband, logical distribution of inference, any, upon logic if “is based joined in inference is that the crew member Gausewitz, experience, upon law”. import marijuana point to a World, Presumptions in a One-Rule 5 Vand. of, without high any on seas L.Rev. legitimate To be or in, joinder permissible, an inference must be deduced is especially to distribute. This inference logical consequence of facts presented evidence, respect rational with to Michelena-Orovio logical and there must be a lacked contacts with the any rational connection between the because he facts evidence and the fact to be inferred. at all. This case is even Equal United States government predicate appears, though also relies on United States 5. The fact even the cor- Martino, Cir.1981, 860, 876, predicate relation between the fact and denied, and perfect. to be inferred is less than element Elam, Cir.1982, 1234, 1246, juries permit Permissive inferences thus argument suppliers are aware assessing myriad avoid facts which make they participating are in a collective ven Supreme specific unique. Analysis, cases ture. demonstrate, opinions is drawn to like- Court any pursued The thesis here is that lihoods. argued 6. One influential commentator has cases to a structure which reduces criminal permissive the use of in- inferences even might simplified of what be assessment fact-finding process terfere with the in criminal fundamentally guilt” called “chances of cases: doubt, concept at odds with the of reasonable key problem permissive inferenc- discouraged as a mode of and hence to single es is that isolate and abstract a determining question guilt or ultimate complex circumstance from the of circum- innocence. case, and, presented any given stances Nesson, Permissive In- Reasonable Doubt and proof fact, of that isolated authorize an infer- Complexity, 92 Harv.L. ferences: The Value of beyond ence of some other fact reasonable omitted). (1979) (footnote Rev. per- doubt. Conviction is authorized missive inference in all cases in which the stronger par- large than Cadena because here the that the manufacturer must have stipulated defendant, ties that unlike known that distributing the doctor was Cadena, captain was not the them illеgally.7 the vessel. The court held that: It is stronger Rodriguez than because the When the evidence discloses such a sys- acquitted defendants to tem, in working prolonged cooperation distribute in that case were Americans who with a physician’s unlawful purpose to were more actively involved than Michele- him in supply with stock trade for his na-Orovio in the conspiracy import. to enterprise, illicit there no legal is obstacle to finding supplier that not only We conclude the reasoning that of Cade acquiesces, and joins knows both logical na is and does not require an attenu mind and hand with him to make its ated chain of inferences justify to its result. accomplishment possible. step from This result comports with this ad Court’s “ knowledge agreement may to intent and monition that ‘proof agreement of an be taken. There is suspicion, more than enter a conspiracy is not be lightly in ” more than knowledge, acquiescence, care- White, ferred.’ United States v. Cir. lessness, indifference, lack of concern. 1978, 263, 267 (quoting United is There informed coopera- and interested Johnson, Cir., 885, 888, tion, stimulation, instigation, and there is denied, 1971,404 880,92 U.S. which, also a “stake in venture” even 161), 30 L.Ed.2d reversing a un conviction essential, if may it be not irrelevant der 21 for conspiracy pos U.S.C. § question of conspiracy. sess heroin with intent to distribute because of insufficient evidence of the existence of 63 S.Ct. at 87 L.Ed. at conspiracy. (footnote omitted and emphasis sup- plied). The rationale of also Cadena is consistent general

with the law of There was no in conspiracy. pro- In evidence Cadena of Direct States, longed Sales Co. v. cooperation United or of the defendant’s 87 L.Ed. a stake in the venture.8 Cadena had no con- drug manufacturer sup- and wholesaler had cern as to what was to become of the con- plied large amounts morphine sulphate traband, and his involvement would have a doctor for several years. government come an when end the narcotics were charged the manufacturer with high delivered on the seas. The Court in to distribute narcotics unlawfully Sales, Cadena, because Direct like Court rec- the amounts of morphine supplied ognized were so every “not instance sale of previ- 7. The goods Court Direct Sales illegally discussed a the doctor use decision, Falcone, 1940, ous further, pro- the distributor intended to 85 L.Ed. 128. In cooperate illegal enterprise. mote and Falcone, suppliers sugar yeast illegal Falcone, however, stresses more a than charged distillers were to dis- knowledge goods supplied disinterested spirits till violation the revenue laws. The put required to an unlawful use is Direct Sales court summarized the Falcone participating a defendant of convict a con- holding rejecting theory: this spiracy to distribute. merely [The decision comes down Falcone] distinguishable 8. Bruno is this, party that one does not become a to a from Cadena and Michelena-Orovio this conspiracy by aiding it, abetting through Bruno, ground. ongoing In scheme to im- supplies otherwise, sales of unless he port and distribute narcotics was shown. Be- conspiracy; knows of the and the inference arrangement long cause the extended over knowledge merely such cannot be drawn period suppliers and because the must have buyer will use the known the unlawful conduct would not goods illegally. them, stop question no that the 709; 319 U.S. at 63 S.Ct. at 87 L.Ed. at arrangements for distribution had been mаde. addition, continuing relationship between opinion distinguished The Direct Sales supplier gives group retailer each “stake” supplying supply act of narcotics from the sugar the successful endeavors the other. The yeast involved in Falcone. Because government’s Bruno, therefore, heavily reliance on regulated, the narcotics were there was misplaced. greater inference that knew distributor it which once was United States. goods restricted ... in the seller goes, record it was more them un- As far as the buyer knows the intends to use Michelena-Orovio, not that lawfully, charge conspir- probable will a than family with his in Sales, who lives Colombia10 at acy”. Direct U.S. S.Ct. to serve as a speaks English, agreed only no 87 L.Ed. at 1682. Cadena’s involve- mari- ment, Michelena-Orovio, delivering crew member on a vessel and that of is more 150-200 miles off the coast juana point like the to a conduct discussed Direct Sales and to return home which was found to be insufficient to con- of United States of this case do not stitute a thereafter. The facts conspiracy: the inference that Michelena-Oro- warrant true, instance, single may This be for conspiracy a to distribute part vio was transactions, amounting or casual not with this inference. but are at war See business, regular, a course of sustained Fenner, 651. Whether his con- 657 F.2d at involving nothing prolonged, itself, was, (a violation of the illegal duct more on the than indiffer- seller’s import) is irrele- against conspiracy law buyer’s illegal ence to the purpose respect vant to his state of mind passive acquiescence pur- his desire to (the later violation of the law another crime chase, for whatever end. A considerable distribute). most, At agаinst conspiracy degree coupled of carelessness with casu- any the defendant was indifferent as to al is transactions tolerable outside His involvement be- distribution scheme. boundary conspiracy. There also gan ship and ended on a two hundred miles immunity be a broad latitude of for fairly We conclude that from the United States. sales, a more continuous course of made juror could not ration- reasonably-minded either with strong suspicion buy- of the ally knowing voluntary agree- find a wrongful knowledge, er’s use or but join possess ment to mari- without active stimulation or incitement it juana with intent to distribute within the purchase. from the fact that a merely n.8, n.8, at 1269-70 at 712 is a crew member of a Columbian national supports 87 L.Ed. at 1682 n.8. Direct Sales delivering large load of foreign vessel the conclusion of Cadena that a disinterest- point high seas. ed knowledge goods supplied may Conclusion put to an unlawful use is insufficient supplier convict a in a con- Court analysis, Supreme In final spiracy to distribute.9 it, put process has criminal substantive due Cadena, ex- “protects against the accused conviction Under conviction of Michele- marijua- cept beyond a reasonable doubt upon proof na-Orovio for to constitute the every necessary na with intent to distribute must be re- fact Cadena, charged”. versed lack he is In re of evidence. Like crime with which 358, 364, 90 single this case involves a transaction and Winship, 1068, 1073, 375. This con- prolonged cooperation with a distribu- 25 L.Ed.2d necessarily tor. broad for ceptual There is no evidence that Michelena- framework applied every it to be crimi- proceeds meaningfully Orovio had a stake any application distribution or had involvement in or nal case. to a its requirement of charge of the scheme to distribute the a certain minimum know wheth- government did not that the defendant 9. The that it is not neces- ment is contends had been formed sary ongoing a not. Even to have an venture in order to er knew of the plan if Michelena-Orovio establish involvement in a for distribution. there must conspiracy, Sales large Direct be. under In the context of the of a cooperation” rather quantity quired supplied by disposed argument interested it re- “informed and contends that the carelessness, acquiescence, “knowledge, than interest in the distribution scheme indifference, he is to find of concern” cargo lack the fact that the cannot be joining guilty it. This unless such a scheme exists. and Mi- misconstrues both Cadena (opening Transcript state- 10. See Trial argument defense. The is not chelena-Orovio’s attorney Castaing, for Miche- ment of Edward lena-Orovio). knew of the that the defendant Instead, joined argu- it. claims not to have necessary mens rea is a “fact to constitute tribute on the basis of the mari quantity of is juana imported. crime which e.g., See United v. States [the defendant] 1073, charged”. Id. at 90 at 25 Cir.1981), S.Ct. (5th 650 F.2d 788 Mazyak, cert. Here, 375. based denied, L.Ed.2d at on amount 102 71 S.Ct. seized, it marijuana was for the rational (1982); Mann, L.Ed.2d 464 United States v. jury a conspiracy import to infer to denied, (5th Cir.1980), 615 F.2d 668 450 in marijuana, scheme which Michelena- 68 193 L.Ed.2d knowingly participated Orovio as a seaman (1981). Two other cases have held that it was vessel. But irrational for the participation the conspiracy in jury beyond to infer reasonable doubt cannot be inferred from solely non-English that lowly, this speaking sea- to conspiracy import large quantity plan man knew about the to distribute the marijuana. Cadena, United v. States 585 marijuаna in the United or States (5th Cir.1978); F.2d 1252 United v. States of joining intention in such any plans. Rodriguez, (5th Cir.), aff’d, F.2d 1234 585 (en banc), 612 F.2d 906 affd 450 U.S. We affirm Michelena-Orovio’s conviction 67 275 L.Ed.2d for to conspiracy import marijuana into the majority has chosen to resolve this conflict United States reverse his conviction for Cadena, by following “because it is the first possess marijuana to with conspiracy intent problem of our cases to consider the before to distribute it in the United States. We us, overruled, has been specifically never emphasize particular that the facts of cases in and is view majority’s] are better-rea extremely important in determining the [the than soned Mann and its sufficiency prove progeny.” the evidence to a con- conclu opposite I reach spiracy. Our is conspiracy concern sion. convictions not be based an inference B

that is not logically by experience linked predicate

with A. I. THE MORE BINDING PRECEDENT. PART, AFFIRMED IN IN REVERSED The majority claims that Cadena was the PART, AND REMANDED. precedent earliest to deal with the problem before us. only Cadena was first case RANDALL, Judge, Circuit concurring to the extent it dealt the convic dissenting part: foreign tion of a crew member found on I, II, I concur in Parts III and IV.A of the a marijuana-laden board outside Unit boat majority opinion. I respectfully dissent ed before Long States territorial waters. decision, panel’s in Part IV.B of decided, per Cadena was we had held that the majority opinion, to reverse Michelena- sons could be convicted of to conspiracy Orovio’s conviction for to possess possess with intent to distribute on ba marijuana with intent to distribute it in the See, e.g., sis of size of cache. Unit United States. Cortez, (5th ed v. States Cir. recognizes 1975) The majority (affirming conviction on one count of Michelena- challenge Orovio’s import possess conviction of con- possess marijuana spiracy to with intent intent distribute of owner of automobile dilemma, distribute it “poses for was present carrying this who at arrival of boat developed Court has two stating distinct lines pounds of precedent as to the evidence that suffi- distribution was established the fact that cient to warrant-conviction “virtually impossible of- it was for two mere [this] ” marijua fense .... 702 F.2d at 501. One line pounds mortals to consume 300 na, span cases holds that once the has deter- within personally, a reasonable Maslanka, time”); mined defendant was involved v. United States import contraband, (5th Cir.1974), ‍‌​​‌​‌​​​‌‌​‌​​‌​‌‌​‌​​‌​​‌‌​‌​​​​​​‌​​​‌‌​​‌​​​‍it F.2d 208 entitled conclude that the defendant was 43 L.Ed.2d also a participant (1975) (affirming to dis- convictions of victions of those defendants not shown to pos with intent to distribute and persons cargo);

session of observed on a beach have 18,000 pounds where Escobar, (5th v. 674 F.2d 469 Cir. States of con floating, reversing convictions 1982) crew—-and (affirming convictions of spiracy because boat, captain shrimp where the boat —on there was not sufficient evidence foreign port had left a with at least four source); foreign contraband came from a Mississippi tons of and docked Perry, see also United Hernandez, it); without Cir.1973) (affirming conviction of (5th Cir.1982) (affirming 668 F.2d 824 con with in possession substantive offense of got who off of a boat that person viction of holding tent that the size to distribute and marijuana contained thirteen bales of of the cache could the inference tablets, where methaqualone five boxes of solely per that the contraband was not for keys he had to the cabin where the contra Mather, use); sonal United 465 wagon on kept band was and had a station denied, (5th Cir.), F.2d 1035 cert. 409 U.S. boat); to Maz waiting transport land (1972) 93 34 L.Ed.2d 672 S.Ct. yak, supra (affirming captain convictions of (same). only Cadena is the “first case” to forty-two and crew found on foot trawler the extent that case be considered any may 14,611 pounds marijuana; laden with unique the first based on its set of facts. days Miami nineteen be trawler had left precludes The doctrine of stare decisis such stopped seventy fore it was miles south understanding a broad of “first case.” Cuba); Shelnut, v. United States majority While the notes that Cadena denied, (5th Cir.1980), 59 450 U.S. Rodriguez have specifically never been (1981) (citing 101 67 L.Ed.2d 818 abandoned, over they appear to have been Love, (5th v. 599 F.2d 107 silentio, ruled sub since there has been no denied, Cir.), cert. 444 case that has either for precedent followed (1979)) (affirming con 62 L.Ed.2d 312 proposition that the amount of contra victions of defendants who were found on a imported band cannot be the sole basis for Texas, shrimping vessel headed toward connecting existing a defendant to an con shrimping where the contained no boat spiracy to distribute. The cases have either equipment shrimp, or but did contain fif Cadena, attempted distinguish to see Unit have marijuana). teen tons of Other cases ed v. 679 Chaparro-Almeida, F.2d cited Rodriguez contrary proposi for (5th Cir.1982) (convictions affirmed tion, i.e., conspir marijuana-laden stopped where vessel was acy possess to with intent to distribute within seven miles of the Louisiana coast be inferred from the size of the cache. while waiting marijua boat was to deliver Mann, supra, we held: na Americans), ignored to two it com apprehended The defendants were Borchardt, pletely. See United States 22,500 their pounds marijuana over (5th Cir.1983) 698 F.2d 697 (affirming con possession, personal far too muсh for conspiracies victions of import Having consumption of four individuals. distribute, possess with intent and sub planned that defendants determined offenses, stantive of person arranged who import cargo, their was entitled pounds marijuana of 481 to infer from the before it facts Scott, Mexico);1 United States v. plan disposi- some had been made for its (5th Cir.1982) (affirming F.2d 606 convic previously tion. we have noted As tions of conspiracy possess and to “[t]he very size of a ... cache can be sufficient persons with intent to distribute of some ” to show intent to distribute.. .. Unit- pleasure found boat that contained pounds marijuana, Rodriguez, reversing con- ed States Tate, Judge majority who is a member of the that affirmed Borchardt’s conviction. case, panel in this was also a member of the aff’d, (5th Cir.1978), 612 F.2d 906 that the ALEX carry- LUZ was Cir.1980) (5th (en banc). ing cargo of contraband for distribution States. The im- American (other omitted); 615 F.2d at 670 citations porters gave the agents detailed informa- Perez, see also United States v. tion the boat and the Cir.), planned about site for boat; the rendezvous with a (1981) (citing second L.Ed.2d Rodriguez Mann's boat affirming supposed citation second bring mar- possess convictions ijuana into the United States. distribute, intent agents where watched Michelena-Orovio himself was arrested on 18,900 pounds defendants unload of mari vessel, LUZ, a small board ALEX juana a conveyor onto belt behind a Florida just completed relatively lengthy voy- house). beach Rodriguez Thus Cadena and age from Colombia. The boat was laden stand alone de proposition that a with twelve tons of and reeked fendant cannot be of conspiracy convicted cargo. Although its illicit the boat was a with intent to distribute on vessel, shrimping fishing was no large basis of the quantity of contraband equipment aboard and no cargo other than imported. he has the contraband. The was found Finally, the majority maintains ship’s in cargo cargo the hold. The hatch Cadena is precedent. better-reasoned neither fastened, locked nor and there majority The heavily emphasizes well- was open cargo access to the from hold settled rule that legitimate per be “[t]o engine room of the vessel. missible, an inference must be deduced crew, ship’s including The Michelena-Oro- logical consequence presented of facts in vio, engaged in a concerted endeavor to evidence, and there be a logical must and capture protect elude and each other. rational connection between the in facts When the Coast Guard first spotted the evidence fact inferred.” at vessel, it had its lights reversed so that it with the agree I majority that 504. Since appeared to be in the going oppo- direction an inference must logically flow from the course, site its apparently actual in the facts, I set them forth at outset of this hopes that it escape detection. The dissent. One more principle well-settled changed boat direction as soon as its crew kept mind, must be however: a became aware of the Coast pres- Guard’s verdict should not be overturned lightly. board, ence. When agents came on all The test sufficiency eight crew members were on waiting deck this circuit is whether “a reasonable trier bags packed, with their eight all insist- fact could the evidence [have found] captain ed that there was no aboard the guilt beyond a reasonable established] vessel. Bell, doubt.” United States v. Cir.) (en banc), granted on majority agrees The that this “collocation grounds,-U.S.-, other 103 S.Ct. circumstances,” States, Glasser v. United (1982). L.Ed.2d 600 60, 80, 457, 469, 315 U.S. 62 S.Ct. 86 L.Ed. (1942); There is no was sufficient Mi- support doubt in this case about existence of a chelena-Orovio’s conviction conspiracy distribute marijuana found on import marijuana. board the The ALEX LUZ. issue is whether agents circumstances, customs were able to those same apprehend particular the the vessel and her crew because covert a large the Flori- quantity of importers da-based had informed undercov- were sufficient er agents, posing persons who were in- conviction of with in- terested aiding in the distribution of marijuana.2 tent to distribute the I con- 2. The fact jeopardy defendant be convicted clause of the United Constitu- violating both States, statutes virtue tion. Albernaz v. United 450 U.S. single of act (1980); does not violate the double 101 S.Ct. 67 L.Ed.2d 275 see also were, elude that and that the line of one conspiracy, i.e. that there was no rim to permitting cases participa inference of connect spokes, but it maintained that tion in the par distribution the defendants had not suffered substantial ticipation in the conspiracy prejudice from being single convicted of a large quantity general conspiracy. is the more The Supreme Court general consistent with the law developed thought otherwise reversed convic- concerning this and other circuits drug tions. conspiracies. Further, the allowance of this contrast, the Supreme Court affirmed infringe inference does not the require participants convictions of in a chain or government ment prove its case conspiracy. rimmed wheel Blumenthal v. beyond a reasonable doubt. See In re Win States, ship, 25 L.Ed.2d L.Ed. 154 con- dеfendants were (1970).. victed of a whiskey sell at prices above the set ceiling by government II. CONSPIRACY LAW: SPOKES AND regulations. In distinguishing the factual CHAINS. Kotteakos, situation in the Court noted that Conspiracy is an area of the law filled Blumenthal and colleagues were all in- with figurative analogies, including chains volved in one whiskey scheme —to sell un- parts. Note, wheel generally See “Sin- lawfully agreements that “the several —and gle Multiple” vs. Conspiracies: Criminal A were essential integral steps” in a sin- Uniform Method of Inquiry for Due Process gle conspiracy. 332 68 S.Ct. at and Double Jeopardy Purposes, 65 Minn.L. 257. (1980); Rev. 295 Developments Conspiracies to distribute narcotics have Law—Criminal Conspiracy, 72 Harv.L.Rev. generally been prime considered to be ex (1959); Scott, W. LaFave & A. Criminal chain, amples interconnected, of or conspir 362, (1978). Law at question 480-82 The § acies, participant segment in which a in a of type of the of conspiracy gener- involved is the conspiracy may partici be of convicted ally claim, raised in a defendant’s similar to in the pation example, whole. For in Unit Michelena-Orovio’s, that the government Bruno, ed (2nd 105 F.2d 921 Cir. proven has not one but several conspiracies 1939), 287, grounds, rev’d on other 308 U.S. and that the defendant cannot be convicted 198, (1939), 60 S.Ct. 84 L.Ed. 257 the de conspiracies of the in which he did not fendants were indicted for and convicted of participate.3 a conspiracy import, sell and possess nar States, Kotteakos v. United 328 They argued U.S. cotics. that there were at 750, 1239, 66 S.Ct. (1946), L.Ed. 1557 the least separate conspiracies- three be —one Supreme Court was confronted smugglers with the tween the and the middlemen spoke classic conspiracy involving fraudu- and one between the middlemen and eaсh lent loan schemes that revolved group around one of retailers. The Appeals Court of man, Brown. To use the analogy, Brown for the rejected Second Circuit the defend wheel, was the hub of the while the other ants’ argument, specifically recognizing the defendants were the spokes. govern- The interdependence participants drug of in a ment conceded that there was more than distribution scheme: -(cid:127) Hunter, -, Missouri conspiracies. v. U.S. See Rodri- 103 S.Ct. conviction of both (1983). guez, supra, J., In United States v. (Rubin, L.Ed.2d 535 612 F.2d at 925 dissent- Borchardt, (5th Cir.1983), 698 F.2d 697 at 702 ing). interpreted jeopardy

we the defendant’s double argument challenge sufficiency to the cases, 3. In most of these the claim defendants supporting the evidence conviction. One government’s that the variance between the suspects majority’s holding that the that proof prejudi- at trial and the indictment was support evidence is insufficient Michelena- cial and that the convictions must be reversed. Orovio’s conviction of See, States, e.g., Kotteakos v. United 328 U.S. with intent to distribute reflects think- wishful 66 S.Ct. 90 L.Ed. 1557 ing jeopardy implications about the double any cooper- overlapping The did not nature the various roles disclose of a participants, single existence ation communication between the will be inferred. retailers, smugglers group either or between the two of retailers groups Elam, United v. States themselves; however, smugglers omitted) (emphasis Cir.1982) (citations knew that middlemen must sell to Jabara, added). United See also States retailers, retailers (9th Cir.), knew F.2d 1319 importers must of one buy middlemen 64 L.Ed.2d 845 100 S.Ct. conspirators (1980). Thus, sort or Thus is a line in precedent another. circuits, own, our including one end of the the un- number of chain knew not, holding suppliers may that the of narcotics not, lawful and could business participation be in the entire convicted for their stop buyers; and those at the distribution scheme. begun other end knew that it had not true, being with their sellers. That majority “question-beg- describes as have jury might found that all the ac- ging” argument “Bruno and other venture, cused were embarked upon holding suppliers cases parts all which a participant, each was may narcotics such as Michelena-Orovio and an that the abettor the sense suc- participation convicted for in the entire dis- cess of that he was im- tribution which scheme.” at 504. major- As the concerned, ity mediately dependent upon explains, the issue in this case wheth- infer, er the reasonably could success whole. basis of Michelena-Orovio’s F.2d at twelve tons of Circuit the Bru- Second has followed he knowingly and vol- no rationale more recent narcotics cases untarily joined under the present statute: Relying it. on Direct v. United Sales Co. As we long recognized, many have States, 319 87 L.Ed. narcotics distribution networks ulti- Falcone, (1943), may mate retailers not know the identi- 85 L.Ed. 128 wholesaler, ties of who supply those their (1940), majority maintains that there is and the retailers’ identities be un- no had the evidence that Michelena-Orovio suppliers; known to those all are well requisite “stake”4 distribution aware participating are in a scheme him the to connect collective venture. emphasizes distribute. It the absence of Martino, 876 prolonged sup- in this case in cooperation (2d Cir.1981), -, cert. denied,-U.S. port of its the defendant conclusion S.Ct. L.Ed.2d 1373 In was at most “indifferent” to the contra- our own circuit we have stated: band’s destination. ultimate Where the aspect activities of one however, admits, that Di- majority

the schemе are or necessary advanta- rect recognized strength Sales the geous to the success aspect of another illicit inference of or to scheme the overall success of goods on the sale of to the based venture, where are there several nature conspirators dependent on the parts inherent in a common larger plan, goods sold. Because the narcotics or where character the property heavily regulated, Direct were Sales activity involved or nature of the is was a greater inference that the distributor such knowledge on the of one buyer goods knew would use concerning member the existence and illegally and that the distributor intended function of other of the further, members same in the promote cooperate and buyer’s scheme is necessarily implied commodity: due to the misuse of vitality £,aw, Developments supra, 4. The continued See in the at 931- of Falcone’s “stake requirement open question. the venture” 32. cans, sugar, sold were yeast specifi- commodities the Court [in Falcone] cans, commerce, free sugar, cally quantum proof articles of stated that re- They quired knowledge etc. were not restricted as to sale the buyer to show form, by registration, commodity unlawfully order or other re- will use the is de- quirements. they pendent commodity: When left the seller’s on the nature of the passed hands, stock and purchaser’s to the cans, The difference between sugar, they were not in themselves restricted trade, and other articles of normal commodities, incapable legal of further hand, drugs, one and narcotic machine except by compliance use with rigid regu- commodities, guns and such restricted lations, apply morphine such as sul- other, arising from the latters’ inher- phate. The difference is like that be- ent capacity very for harm and from the tween toy pistols hunting-rifles restricted, ‍‌​​‌​‌​​​‌‌​‌​​‌​‌‌​‌​​‌​​‌‌​‌​​​​​​‌​​​‌‌​​‌​​​‍fact are makes differ- guns. machine All articles of commerce quantity proof ence in the required to put illegal ends. But all do not knowledge buyer show that the will uti- inherently have the same susceptibility to lize the unlawfully. article Additional Nor, harmful illegal use. by facts, sales, quantity such as high-pres- token, same do all embody the same ca- methods, sure sales abnormal increases pacity, nature, from their very giving etc., buyer’s purchases, the size of the the seller notice the buyer will use them wholly which would be innocuous or not unlawfully. Gangsters, not hunters or ground more than for suspicion in rela- small boys, comprise the private normal tion goods, may to unrestricted furnish market for guns. machine drug So ad- evidence, in respect conclusive to restrict- dicts furnish the normal outlet for mor- articles, buy- ed that the seller knows the phine gets which outside the restricted er illegal object enterprise. has an legitimate channels of trade. Knowledge, equivocal and uncertain as to one, becomes sure as to the other. far 710-11, at So U.S. at 1269. The intent, knowledge is foundation of explained Court that the difference in com- thereby the latter also modities becomes more important in terms of both the secure. seller’s buyer’s intended use, and the seller’s intent promote 711-12, at at 1269 (empha- cooperate illegal action: added). sis This important difference is for two Falcone and Direct Sales must be viewed purposes. One is for making certain that along a continuum of transactions. At one the seller buyer’s knows the intended ille- Falcone, end of the continuum is which did gal use. The other is to show that by the not involve an inherently illegal transaction further, sale he intends to promote and all, at goods rather the sale of “in

cooperate in it. themselves innocent.” 311 Id. In recognition of the obvious difference below, S.Ct. at 205 (quoting opinion between the sale morphine (2d and the sale Cir.1940)).5 The sale of subsequently sales; The Second making illegal Circuit has limited themselves for their Falcone to its facts: proper sales were not on the basis of the pursuant The defendants forms or invoke our in written orders of the decision Unit Falcone, Cir., type required by 2591(a) ed States v. for U.S.C. for mar- § proposition supplier, illegal the that a mere even ihuana transfers. As these sales were illegal purpose clandestine, them, one who supplier, through knows of the of his each purchaser, co-conspira cannot be held became himself of the for resale; tor. We have limited that case to its strict their intended this added element of supplier goods, personal law-breaking facts —the case of a selling inno and clandestine themselves, nothing cent in required who does but sell furnished the “stake in the success goods who, purchaser sup those to a to the of the venture” that the Falcone case de- plier’s knowledge, intends to and does use manded. illegal them in conspir Tramaglino, the furtherance of an United States v. 930- acy. suppliers just (2d Cir.), The here did more than 344 U.S. 73 S.Ct. They Thus, sell. aided and abetted the 97 L.Ed. 670 the Second morphine Direct somewhere mon to the in Sales fell in sense leads conclusion that an continuum, the middle it much importer marijuana of that knows involved sale of a commodity. the restricted well, fact, perfectly and indeed relies on the Thus, every “not instance of sale of restrict- there is a for the plan distribution of goods” charge ed would of con- States, cargo. his Turner v. See spiracy. U.S. at 63 S.Ct. 398, 417, 24 L.Ed.2d But the commodity restricted nature of the (1970) (“Common sense ... tells us that meant there were limitations on the those inevitably who traffic heroin will possible expansion of the market:- legal they become the product aware that deal in for opiates may market be [T]he [not] smuggled, they practice unless studied as developed any other market.... ignorance they entitled.”); to which are not advertising Mass and bargain-counter dis- States, 837, 845, Barnes v. United counts not appropriate are commodi- 2357, 2363, (1973) L.Ed.2d ties so surrounded with restrictions. (affirming possession conviction of of Unit- They legal do not create new demand and ed Treasury checks stolen new of legitimate they classes as patrons, mails where the checks do for tobacco sugar, and other free com- were unexplained stolen was inferred from limits, Beyond modities. narrow nor- possession of checks made out to someone mal legal opiates capa- market for is not unacquaint- whom defendant was being ble of extended such methods. ed). the context of the of a The primary effect is rather to create huge quantity in contrast to black for dope markets increase commodity sale of a is merely illegal demand and consumption. restricted, it is not have necessary to Sales, Id. In the case Direct the sale of ongoing venture in order to establish in- large quantities together of morphine, distribution, volvement plan in the for be- prolonged cooperation between sell- positive cause the requisite interest provided er and buyer, the evidence suffi- distribution scheme is virtue supplied by cient to convict the seller of cargo fact that there would be no violate the narcotics laws. cargo disposed could unless If continuum, Falcone is at one end of the such a scheme existed. other, Michelena-Orovio’s case is at the for emphasizes The majority drug the transaction involving marijuana chain-conspiracy cases multiple involved illegal was itself was legal no length transactions over a considerable market for commodity. The absence of time. opinions The discussion in those any legal provides market the link that the ongoing nature of those transactions supports the inference of involvement not, however, necessarily directed to to possess with intent whether supplier could be convicted of distribute. Michelena-Orovio would have the conspiracy to distribute the narcotics job had no if there had plan been no made that he had Proof supplied. ongoing of an the distribution of cargo. conspiracy was needed to convict de- twelve tons of have been fendants in other transac- virtually worthless if there had been no tions, time, separated personnel, and lo- distribute. The could cation directly not be sold in from those which supermarket as sugar could, Falcone, yeast or participated. ongoing nor nature of the could it be disposed in a pharmacy hospital, conspiracy supplied spokes the rim for the morphine might be. wheel, Direct Com- of the Sales.6 not the links in individu- each participa- Circuit community has held that the defendant’s 6. While the medical been ex- has illegal may provide requisite

tion in perimenting treating sale a num- ailments, stake community hardly in the venture. ber of that be can provide said to a demand for tons of twelve marijuana. one, nership single continuing having al chain. The Circuit distribution Second at the ends recognized successfully cargo has that the links far distributed one long-term conspiracy may of a chain through distributing organization, X performing turn, later, unaware of others roles similar another car- years moving theirs, single supply the links of a go obtained from a different source inextricably chain related to one anoth- are through Y.

er: Borelli, 383- United States long As term applied operation (2d Cir.1964), denied, cert. 379 U.S. business, illegal pictori- of an the common 647,13 (1965) (footnote L.Ed.2d 555 85 S.Ct. al distinction between “chain” and Bruno, omitted) added); see also (emphasis “spoke” much conspiracies can obscure as is 105 F.2d at 923.7 Michelena-Orovio’s case as it clarifies. The chain metaphor jury where the issue is whether the one apt indeed in that the links of a narcotics participa entitled to infer the defendant’s inextricably are related to one to distribute the mar tion in the another, grower, through exporter he ijuana supplied, that he has not whether middleman, wholesaler, importer, and is involved in a number of distribution retailer, depending and each for his own extending schemes over time. performance success on the of all Similarly, the fact that Michelena-Orovio simple picture others. But this tends to only single in a act does not participated at are obscure that the links either end in the distribution participation render his likely to consist a number of persons scheme insufficient. who have no reason know (2d Cir.1976), F.2d 431 cert. Magnano, 543 others are similar to performing role denied, 97 S.Ct. theirs —in other words the extreme links (1977), the Circuit was L.Ed.2d 536 Second of a chain conspiracy may have elements rejected a ar confronted with and similar Moreover, spoke conspiracy. what- gument: ever the value concept chain where the fact For much the same reasons problem single operation is to trace a only that De Lutro and each Soldano through phases

from the start its various one transaction with the conclusion, consummated to its successful it becomes when, group partici- core not render their confusing long over a does period time, pation insufficient to warrant their inclu- play certain links continue to charged. single conspiracy same role but with new sion in the counterparts, rule, importers where .. . regard part- single who their so-called transaction Elam, denied, Compare Cir.1979), (rejecting (2d 446 U.S. 678 F.2d at 1247 F.2d 603 (1980) (re defendants’ contention that were of a 64 L.Ed.2d 795 100 S.Ct. separate conspiracy import marijuana versing that held that district court decision holding jury themselves and that the could rea there was one as a matter of law sonably merely have inferred that all defendants were on the basis of the fact that the contra single conspiracy city involved in a band all came from one in Colombia line, twelve tons of Colombian into the shipping a number of the de same Martino, States); (af other, United arrangements 664 F.2d at 876 fendants knew each firming single York, convictions of in a and were made at the same bar in New conspiracy of a number of retailers and whole similar methods the transactions involved salers who had consummated a transaction operation); (reversing Borelli convic Jabara, group); with the core 618 F.2d at 1327 granting defendаnts tions of and new trial for (affirming participants convictions of in an ex phases participated in some but not all who four-year drug conspiracy); and tensive nine-year conspiracy, during the narcotics Baxter, (9th Cir.1973), 492 F.2d 150 principals course of which some of the holding supply changed, sources of (1974) (affirming L.Ed.2d 292 convictions of entitled to have the the defendants were participants long-term drug in an extensive particular find what their instructed to smuggling conspiracy holding agreements and that these continued into were charg was no variance between the indictment appli conspiracy period not barred ing single trial), proof limitations). cable statute of Cambindo-Valencia, with United States v. recognizes single that a isolated act does In summary, the fact that the defendant not, se, is per support importing huge an inference that a involved in a quantity of of, marijuana into the United may defendant States es ac- tablish both the defendant’s knowledge of in, quiesced larger conspiratorial joinder in the conspiracy scheme. It is “when there is no only with intent to distribute. Since twelve tons independent tending prove is more than mere mortals some knowledge defendant had lifetime, personally could consume in a Cor of the conspiracy broader and when the tez, supra, someone must have an intent to single transaction is not in itself one from distribute the contraband.8 defend which such knowledge might be in- ant’s awareness of the existence of the con ferred,” single ... act is spiracy flows from his in the predicate upon insufficient which to link conspiracy import large such a quantity, conspiracy.... actor to the overall in any legal for the absence of market “single Each-of the acts” here —De Lu- wares, which to of his dispose there is no tro’s sale of pure five kilos heroin and reason to if goods there has been Soldano’s sale of three kilos —was to core plan no made for their distribution. Simi members of the conspiracy and of such a joinder larly, defendant’s or interest magnitude justify as to “an inference be inferred that each knew he was involved importation from his involvement in the criminal enterprise scope.” substantial scheme, for he would have no importing job (citations omitted) (em 543 F.2d at 434^35 if there was no to distribute. phasis added). So, example, where a act Finally, itself is an .the buyer purchase makes one of a small act in pos furtherance of the single amount of purchase distribute, sess with intent for there does not in and of itself the infer would be no distribution scheme if there ence that the buyer part of the distribu were no to distribute. See Unit tion scheme. purchase Such a could con Tramaglino, ed States 197 F.2d 930- ceivably solely be made for the buyer’s per (2d Cir.), denied, sonal consumption. single Where the sale 97 L.Ed. 670 marijuana, however, involves twelve tons of III. THE MERE COLOMBIAN SEAMAN.

that sale cannot possibly be limited to a purchase for the buyer’s personal use. majority maintains that the infer Mann, Mazyak, supra; supra; see also ence involvement of Michelena-Orovio’s Prieskorn, war” the distribution scheme is “at with the case, (8th Cir.1981) (ten pounds to fifteen Fenner (quoting at 506 facts in this cocaine period). sold over a fourteen-month Corp., v. General Motors Indeed, it strains credibility suggest that (5th Cir.1981), 942,102 the importation of twelve tons- of marijuana (1982)). L.Ed.2d This approximate with an street value of be “war” is based on facts that are not even in tween four and six million dollars is a “cas majority paints picture the record. The transaction, ual” even if the transaction is poor of Mr. family Michelena-Orovio planned only. for one time The majority’s man to earn a simply trying living who is approach permit the drug smuggler crew. There by serving as a member of a market, killing make a one-time no evidence in the record that Michelena- free from any prosecution family waiting fear of for his for him to Orovio had Colombia, ample in the scheme to distribute his wares. there is evi- return to dent to convict the defendant Michelena-Orovio does contend that there apprehended possession had he been the in sole could be no because he was not marijuana. case The issue in this acting people. concert with other Accord- purpose conspiracy, not its existence. ingly, question there is no to reach the need whether the evidence would have been suffi-

dence, majority recognizes as the results from the of fortuity a bifurcated opinion, IV.A of its that his means of earn- trial and is not decisive.” 585 F.2d ing a livelihood smuggling fact, was a substan- Rodriguez n. 7. In we reversed the quantity marijuana. tial of conspiracy convictions intent to distribute of two of the American The majority accepts Michelena-Orovio’s defendants who had helped arrange argument that the absence of actual con- importation of cargo Cadena’s within tact with the United and his status States found, the United States because we “lowly non-English speaking seaman” Cadena, there was insufficient evi- against further weakens the case Mi- him. dence to demonstrate that the defendants argument chelena-Orovio’s first concerns anything were involved in more than the he, national, the fact that a Colombian import. discovered on a foreign high vessel on the seas. He maintains the evidence Further, this distinction makes no sense proved only that he was on a vessel loaded in terms of the issues in this case: knowl headed for the United edge participation of and in the States, plans but that never actually called marijuana. to distribute the Michele Since for his entry into this country. While the properly na-Orovio was convicted of con evidence might be sufficient to demonstrate spiracy import into that he knew that the vessel contained con- States, presumably he knew the destination traband and that joined he had in the con- the cargo.10 rejected We have already spiracy bring it close enough to the Unit- conspirator the idea that a escape could it, ed for States someone else to he liability count on the maintains that there is no evidence that he ground that he never entered actually Unit knew of or cared about the contraband’s territory. ed States See United States fate once it reached American shores.9 Ricardo, (5th Cir.), 619 F.2d 1124 cert. de nied,

Cadena itself high does not this seas/foreign (1980); vessel distinction. The L.Ed.2d 607 see also United de- States Schmucker-Bula, fendants in Cadena were charged in the same Cir.1980).11 indictment as the foreign defendants in the While a national case, companion Rodriguez, supra. In not have the knowledge same detailed Cadena, we stated that “the fact that none our laws as a United citizen might States of the appellants have, who were tried in this case it hardly be irrational for a charged with an overt act on land merely jury to infer that Michelena-Orovio knew Schmucker-Bula, supra, 9. When we affirmed the defendant’s conviction the defendаnt Chaparro-Almeida, challenged jurisdiction United States v. the criminal of the Unit- (5th Cir.1982), attempted distinguish we ed States to him convict to im- ground port kilograms Cadena on the same that Michelena- He had been cocaine. urges apprehended Republic, Orovio here. We noted that Cadena’s in the Dominican boat had been further out to sea than was the he maintained that he was indifferent defendant’s, supporting argued and that “there was no destination of the cocaine. He any Falcone, supra, [in intention to deliver basis of activities as a Cadena] the contraband to the United States.” 679 F.2d seller were liable as a insufficient to make him pointed conspirator importation. at 430. Michelena-Orovio has also out in the The Seventh Mann, supra, rejected argument the boats in both Maz- this and held that it Circuit yak, supra, vessels, conspirators knowingly were American from which was “sufficient that the jury plan- encouraged arranged transportation could infer that the boats were ning cargo drugs to return home to distribute their that would end in the United States.” (citing within the United States. 609 F.2d at 402 Cadena and Direct Sales). “The sale of The court stated further: dependent large quantity so argument cocaine was 10. The defendant conceded at oral upon feasibility smuggling it into the if the could infer mem- that the crew Furthermore, United States. the defendant knowledge cargo bers had in the first escape liability merely pur- cannot because place, it could infer that primary responsibility chasers took cargo that the was bound for the United States. smuggling arrangements.” F.2d at 402. possession that the of mari- reprinted distribution in 1970 Cong. U.S.Code & Ad. juana illegal. in the United After News message 4567. In his accompa- all, Colombia, both arе also illegal in bill, nying proposed the President stated indeed, in most parts of the world. There- that he wanted “successful prosecution of fore, to the extent an increased national effort against illegal may normally be drug trafficking.” Legislation to Regulate inferred from participation in the conspir- Dangerous Controlled Substances acy to import large a of quantity contra- Amend Laws, Narcotics and Drug 1970: band, light of the absence of a legal Hearings on H.R. 1444 Before the Sub- market for the imported goods, Michelena- Means, comm. on House Ways and 91st Orovio’s knowledge and dependence Cong., (1970) (statement 2d Sess. the existence of the distribution scheme are Nixon, Richard President of the United the same as those of his American counter- States). See also Rodriguez, 612 F.2d at part. 915-17. The fact that conspirator some other was No one can deny conspiracies that the assigned the task actually bringing case, them, this like many before had roots contraband into country this and distribut fact, in a field in Colombia. In a number of ing it does not mean that the defendant drug smugglers carefully entering avoid could not be pos convicted of to United States in the hopes will distribute, sess with intent to since the government See, avoid criminal prosecution altogether. need not demonstrate any overt act on part e.g., Schmucker-Bula, defendant supra. To hold that connect him to a conspiracy to violate the Michelena-Orovio implicated cannot be narcotics laws. Rodriguez, supra; see also the conspiracy possess with intent Davis, United States v. 201 n. distribute would be to limit the govern- (5th Cir.1982). Further, each conspirator ability ment’s drug combat the trade at responsible for all of the acts committed its source. I cannot that Congress conclude in furtherance of the conspiracy that he has intended, or that the facts of this case war- joined. States, Pinkerton v. United 328 rant, such a result. (1946); S.Ct. 90 L.Ed. 1489 argument Michelena-Orovio’s final ‍‌​​‌​‌​​​‌‌​‌​​‌​‌‌​‌​​‌​​‌‌​‌​​​​​​‌​​​‌‌​​‌​​​‍is that Diaz, United (5th 655 F.2d 580 the inference of participation in distri- Cir.1981), denied, bution scheme applied should not be to him (1982); 71 L.Ed.2d 448 United because, unlike the in Mazyak, defendants Hodges, States v. (5th 606 F.2d 520 Cir. Cadena, Mann and even he was simply 1979), lowly member of the crew. We recently 708, 62 L.Ed.2d 671 rejected a argument similar in United I must add that accept the defendant’s Sockwell, (5th States v. 699 F.2d 213 Cir. proposed distinction would undercut 1983).12 Sockwell was a member purposes of the narcotics laws. Both 21 crew of a carrying vessel that had been U.S.C. 846 and 21 U.S.C. 963 were § § 150,000 pounds marijuana; after congressional of a revision and recodifica- boat, was transferred to another tion of the nation’s narcotics laws “designed the crew ship. burned and sank their Sock- to deal in a comprehensive fashion with the well was conspiracies import convicted of growing menace of drug abuse in the Unit- distribute, with intent to ed Comprehensive States.” Drug Abuse importa- Prevention and well as the substantive offenses of Control Act of H.R. Rep. No. Cong., (1970), 91st 2d tion possession. Sess. analogous (quoting Gray

12. We cited Cadena in Sockwell as 699 F.2d at 215 United States v. proposition son, Rubin, 1980)). Judge for the that “the 625 F.2d 66 ‘[i]ntent Cir. Cadena, to distribute a controlled substance under 21 who was the author of was a member solely pos- panel. U.S.C. § inferred of the Sockwell ” large session of a amount of the substance.’ appeal, On contended that his doubt that Sockwell Michelena-Orovio aware of overturned participated convictions should be because marijuana. “he was for the vessel’s crew a He merely large quantity cook was not any of the activi participate employee and did not a mere aware employee, but . ties of the vessel.” Id. at 215 rejected We the nature of his It is well settled business. this that testimony contention and found in this circuit that a conviction will not be members, the other as well as circum crew merely reversed for lack be- evidence, stantial demonstrated that he was played only cause defendant minor “participating functioning member of role the overall scheme. Id. As in Mi conspiracy throughout.” Alvarez, (5th Cir.1980) case, had been a chelena-Orovio’s Sockwell (en banc) conspir- conviction of (affirming (five men) member crew of a small on acy import marijuana sup- of Colombian marijuana-laden board a boat on a lengthy plier’s present to be friend who intended Alfrey, See United States v. voyage. 620 off-loading the remote site for the marijua- denied, cert. 551, Cir.), F.2d (5th 556 449 na). 66 U.S. 101 L.Ed.2d 160 S.Ct. Further, each in case all (1980). of the IV. THE AMERICAN VIEW: OTHER crew presented single members fabricated CIRCUITS. story. Finally, I other circuits note that have lowly employee argu Michelena-Orovio’s infer permitted the to intent to distrib jury ment is more in essence no than a variation United ute the cache. In from the size of on presence” argument rejected the “mere Smith, v. States (1st Cir.1982) F.2d 255 680 in the majority’s of the importa discussion (citing Alfrey, supra, United States v. De majority tion count. As explains, the we Weese, denied, cert. 1267,1270, 632 F.2d 454 have held that a member may crew not be 102 70 L.Ed.2d 188 S.Ct. convicted of a violation of the narcotics Cadena), (1981), First Circuit relied solely presence laws on the basis of his on on the we set forth in Alfrey factors that board a boat with loaded contraband. and DeWeese in its affirmance of thе de Bland, United (5th F.2d 989 conspiracy possess fendant’s to conviction of denied, Cir.), 102 S.Ct. marijuana high on the seas with intent to United States v. distribute under 21 U.S.C. (1981); 70 L.Ed.2d 592 963 and §§ Willis, (5th Cir.1981). 639 F.2d 1335 The facts in Smith 955(a). were strikingly contrast, captain may presumed to unregis similar to the us. The case before cargo. Bland, know the nature of flagless high tered was seized on the vessel F.2d at 996. seas, one off the coast of hundred miles Massachusetts. were two Ameri detail, however, As On board was discussed (one Smith), cans of whom was defendant disposition our of the argument defendant’s nationals, ten and 263 bales regard Colombian of count, to the more marijuana. than was bound for the presence mere was established in The boat this case.13 The United States from Colombia.14 The First jury determined the evi- beyond dence unpersuaded demonstrated reasonable Circuit was defendant’s might thoughts 13. While some have second 14. The defendant was convicted of high possess marijuana about whether should a defendant be convicted seas with solely distribute, import on the basis intent in violation of 21 U.S.C. Alfrey DeWeese, 855(a), was convict- § factors enumerated while Michelena-Orovio sufficiency possess evidence based ed of with intent to dis- on those 21 U.S.C. 846. The § factors is the law this circuit. See tribute in violation of United Freeman, interpreting (5th States First on cases Circuit relied concurring), Tuttle, J., Cir.1981) (Godbold, 841(a)(1), prohibits the which substantive of- § C.J. distribute, denied,-U.S.-, possession with intent rt. fense of ce Further, however, opinion portion of the L.Ed.2d 59 there were oth another suspicious rejected supporting er defendant’s constitutional which it circumstances the de challenge vagueness grounds. fendant’s this on conviction in case. to the statute merely hitching claim he was a ride and conspiracy pos- home, in light length back distribute, sess with intent to and the other voyage, large quantity marijuana on defendants were convicted of the second board, the necessarily relationship close conspiracy. Affirming convictions, crew. between Smith and the Ninth Circuit stated the defendants’ sufficiency attack on the of the evidence Other circuits have followed ours in af concerning intent to distribute was base- firming persons allegedly convictions of in less: consumption 17,000 “Personal volved conspiracies in land-based to import pounds of anything, much less possess and to intent distribute.15 Laughman, staggering In United proposition sufficient to com- Cir.), pel disbelief, leaving commercial distribu- (1980), 65 L.Ed.2d 1117 goal tion the only realistic of the enter- Fourth Circuit affirmed convictions of prise.” 675 F.2d at 1384.16 with intent to distrib persons ute of involved in the V. transfer of CONCLUSION. over two tons marijuana from a Colombi I would hold on the authority long of a an-type sailing vessel waiting to vehicles on line precedent extending before and af-

land. The court stated “the amount of Rodriguez, see, ter e.g., Mann, Cadena and marijuana involved ... estab sufficiently supra; Mather, supra, that once lishes that there was an intent to distrib concluded, basis of the factors ute.” 618 (citing F.2d at 1074 n. 4 majority’s described earlier in the opinion, Villareal, v. (5th Cir.), States 565 F.2d 932 guilty the defendant was of conspiracy denied, 92, cert. 439 99 U.S. S.Ct. 58 to import marijuana, it was entitled to infer (1978)). L.Ed.2d 116 In United States v. from the quantity involved that the defend- Allen, (9th Cir.1981), 675 F.2d 1373 con ant was guilty conspiracy also to spirators were apprehended while possess with intent distribute to the mari- unloading marijuana were boxes of from a juana.17 Allen, boat that had been spotted offshore. majority objects the owner of the to the fact property where the ren that the dezvous took place, was convicted of Mann both line of cases involves a “pyramiding” Julio-Diaz, government See also United States v. 678 F.2d to failed demonstrate that the mar (11th 1982). 1031 ijuana foreign source); Cir. came from a United Prieskorn, (8th Cir.1981) States F.2d 658 631 only 15. The First Circuit case other case (affirming possess convictions to I have where the discovered defendants cocaine with intent distribute on the basis of apprehended high suspect were seas. I large quantity period and extended of time that this is because the states within the former involved); Boone, but see United States v. 641 Fifth Circuit are the states toward which a boat (8th Cir.1981) (citing F.2d 611-12 Direct carrying South American contraband most Sales, supra, Rojas, and United States v. 537 likely proceed. denied, (5th 1976), 222 cert. Cir. 429 (1977) U.S. 97 50 L.Ed.2d 777 DuFriend, See also United 691 F.2d proposition jury for the that “the is entitled denied,-U.S.-, 1982), Cir. consider the size of the transaction in its deter (1983) (affirming L.Ed.2d mination of whether a scheme to distribute conspiracies defendant’s conviction of to im existed,” drugs expressing port pounds marijuana but doubts “that in a small air any plane alone possess one of these factors would be suffi and to it with intent to distribute it, permit jury guilty holding large quantity cient to to find Boone of a of a illegal drugs.”). distribute of a controlled was relevant to intent substance distribute) Palmere, (citing United States v. holding 17. This mean that a (5th Cir.1978)); violation United automatically Watkins, of 21 (4th Cir.1981), U.S.C. 963 would entail a § violation of 21 846 or A § U.S.C. vice-versa. person conceivably guilty (1982) (affirming could one con- L.Ed.2d 849 convictions of spiracy guilty being of the other. without For with intent example, washing marijuana of crew if member A had a small members observed crew residue off amount of that he did not wish to decks of a vessel found on the ship waterways, reversing intercoastal leave on when he visited convic board the States, tions of because and if he convinced crew mem-

of inferences. We have recognized, how-

ever, jury may that “a properly reconstruct by drawing series of events an inference inference,” Fenner,

upon an supra, 657 F.2d as long as inference relied “[t]he upon is reasonable.” Id. at 651. I cannot

say that the was unreasonable in con- man,

cluding that a who was found on a

vessel bound for the United States from

Colombia, guilty of conspiracies to im-

port possess marijuana and to with intent

to distribute it when that same vessel was

laden with twelve tons of but no

fish, when the vessel attempted disguise heading direction in which it was

fled from United agents, States customs

and when the crew all agents told the

same unlikely story that the vessel had no

captain. Accordingly, I would hold

jury’s conviction of Michelena-Orovio of possess marijuana with intent affirmed;

to distribute it should be Dahlin, II, Roland E. De- Federal Public

fender, Secrest, Jr., George McCall Thomas Acevedo, Berg, S. Gustavo L. Asst. Federal Defenders, Houston, Tex., Public for de- fendant-appellant. Gough, Atty.,

James R. Asst. Hous- ton, Tex., plaintiff-appellee. America, UNITED STATES of Plaintiff-Appellee, GARCIA-GONZALEZ,

Victoriano Defendant-Appellant. GEE, TATE, Before RANDALL and Cir- No. 82-2474 cuit Judges. Summary Calendar. Appeals, Court of TATE, Judge: Circuit Fifth Circuit. The defendant Garcia was convicted of March possession marijuana with intent to dis-

tribute, 841(a)(1). The sole con- U.S.C. § appeal tention on is that the district court erroneously sup- overruled his motion to Turner, supra. conspiracies ber B to create a distraction while A went of both Conviction through inspection, might only large quan the customs both would be conceivable where a import, tity marijuana foreign convicted of had arrived from a quantity course, give jury small of contraband would source. Of could convict any plan acquitting rise ‍‌​​‌​‌​​​‌‌​‌​​‌​‌‌​‌​​‌​​‌‌​‌​​​​​​‌​​​‌‌​​‌​​​‍to the inference that defendant of one while other, Similarly, its distribution. if A and B decided him of the since the of the cache size merely supports grow two tons of on their Louisi- the inference of involvement. farm, See selling large quantities reject if ana or C were is free to the inference. Ocanas, college campus, United States v. F.2d 353 on his neither Cir.1980), college drug nor the farmers nec- dealer essarily any importation be involved in scheme. 68 L.Ed.2d 840

Case Details

Case Name: United States v. Levino Michelena-Orovio

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Mar 25, 1983

Citation: 702 F.2d 496

Docket Number: 81-3706

Court Abbreviation: 5th Cir.