United States v. Levino Michelena-Orovio

arrest oc- Texas, where the the district had com arrested person lieving that motion to dis- curred, a defense an offense. had denied committing or was mitted in a 835, Atkinson, 450 F.2d of an indictment miss several counts United States In do- counterfeiting prosecution. (5th Cir.1971), cert. similar (1972). Although scope so, to limit the 1790,32 L.Ed.2d it had refused ing probable cause to for- sufficient paragraph the evidence the second to a mere what amounts use more than in actual must be current or eign coins to those than what considerably less it is suspicion, money within and circulation as guilt. circumstances, for a conviction with no required is these States. Under 102, 108, 85 Ventresca, limitation, 380 U.S. evi- such a implying decision 741, 745, 13 L.Ed.2d at the time agent dence known to the cause, a must court examining probable persuade was sufficient Bertram’s arrest “ ‘[TJhey are the probabilities. that Ber- deal caution of reasonable person considerations of practical factual Because the a crime. tram had committed and pru reasonable life on which Bertram everyday to arrest cause agent probable ” technicians, act.’ Ad men, legal dent the in- for a violation of 18 U.S.C. § 143, 149, Williams, 407 U.S. incriminating ams v. criminating firearms (1972) (citing 1921, 1924, L.Ed.2d a lawful the fruit of being ATF forms v. United evi- Brinegar search, into properly admitted 93 L.Ed. 1879 175, 69 S.Ct. dence.

(1949)). reasons, foregoing For above case, it the con- of this In the context Bertram’s conviction prudent reasonable and Se- siderations of a AFFIRMED. which must be evaluat- Agent cret Service have been able to con- Bertram ed. on each “copy”

vince a that the word anyone. to defraud impossible

coin made it conclude, however, that are unable to

We word in minuscule let- presence of this minuscule) (and are indeed made ters America, STATES of UNITED prudent impossible for a reasonable and Plaintiff-Appellee, to believe that the coins were not agent counterfeit. MICHELENA-OROVIO, Levino court subsequent

That there was Defendant-Appellant. who decision which holds that an individual Krugerrands counterfeit with in possesses No. 81-3706. tent to defraud cannot be convicted Appeals, United States Court not war violation of 18 485 does U.S.C. § Fifth Circuit. 18,1982, February rant a conclusion agent could not prudent a reasonable and 31, 1983. Oct. that sec believe that Bertram had violated 19,1984. Certiorari Denied March not render its tion. First Circuit did 1605. See until 1982. To Falvey April decision decision, reach that the First Circuit decid scope paragraph

ed that of the second identically

of 18 485 must be read U.S.C. § required

with that of the first. This plain

court to read a limitation into the

wording of the second paragraph. More

over, in November the

District for the Court District of Northern

LIAMS, GARWOOD, JOLLY and HIGGIN- BOTHAM, Judges. Circuit RANDALL, Judge: Circuit Michelena-Orovio, defendant, Levino import was convicted of to mari- juana in violation of 21 U.S.C. § (1976),1 marijuana to possess with intent to it in violation of 21 (1976).2 agreed U.S.C. We to rehear § banc, this case en in order to resolve a conflict in this the decisions of court with respect to whether the evidence that a foreign crewmember on board a ves- sel intercepted high on the seas has con- spired import large quantity of mari- juana into the United States is also suffi- support cient to that crewmember’s convic- tion of conspiracy with intent to distribute it. We hold now government’s evidence was suffi- Dymond, Crull Castaing, & Edward J. support cient to the defendant’s convictions Jr., Castaing, Orleans, La., New for defend- of both conspiracy import ant-appellant. conspiracy to possess with intent to dis- Barnes, Marilyn Schatzow, Michael Asst. Therefore, tribute it. the defendant’s con- Attys., Orleans, La., New Mervyn viction on both counts is affirmed. Hamburg, Dept, Justice, Washington, D.C., The panel opinion fully states the conclu- plaintiff-appellee.

sions of this court with to the other issues raised by appeal: defendant (1) whether the court in deny- district erred ing the suppress defendant’s motion to CLARK, evidence, Before Judge, BROWN, (2) Chief whether the district court WISDOM, GEE, RUBIN, REAVLEY, POL- erred in refusing to allow the to smell ITZ, RANDALL, TATE, JOHNSON, sample WIL- bale of marijuana. Accordingly, provides: 1. Section provides: 2. Section 846 Any person attempts conspires who or Any person attempts conspires who or any subchap- commit offense defined in this any subchap- commit offense defined this punishable by imprisonment ter is or fine or punishable by imprisonment ter is or fine or may both which not exceed the maximum both which not exceed the maximum punishment prescribed offense, for the punishment offense, prescribed for the object commission of which was the object commission of which was the attempt conspiracy. or attempt conspiracy. or (1976). 21 U.S.C. § substantive of- § U.S.C. The substantive of- 952(a): fense of is set forth in § possession fense of with intent to distribute (a) It shall be unlawful into the 841(a)(1): set forth in § territory customs of the United States from (a) Except subchap- as authorized any place (but outside thereof within the ter, any person it shall be unlawful for know- States), or to into the United ingly intentionally— or thereof, any place any States from outside manufacture, distribute, dispense, or controlled substance in schedule I or II of manufacture, or with intent dis- subchapter chapter, I of this or narcotic tribute, dispense, a controlled substance. drug III, IV, subchapter schedule or V of I 841(a)(1) (1976). 21 U.S.C. chapter. § of this 952(a) (1976). 21 U.S.C. § parts panel we reinstate II and III of the the ALEX LUZ was flying Since flag, personnel Venezuelan on the VAL- opinion. permission IANT obtained to board from as well as government, per- the Venezuelan I. FACTUAL AND PROCEDURAL mission to the vessel and detain it if search BACKGROUND. marijuana or contraband were found. agent joined An undercover other law attempted VALIANT then to communicate agents pre- enforcement in Louisiana in LUZ, by radio with the ALEX but received tending to be unloaders and truckers of response. the VALIANT crew Finally, seeking employment. who were told the ALEX stop LUZ to because They persons represented met with who permission Coast Guard had board engaged smuggling themselves to be vessel. smug- from Colombia. These stop, When the ALEX LUZ did not hired the glers agents provide ships attempts VALIANT crew made several meet at sea with other ships transporting halt, including firing force a shots into the

marijuana and to aid in unloading cargo throwing propeller. air and lines into the from the additional vessels and in the stor- vessel, After the Coast Guard hosed the ing on shore in Louisiana. smokestack, sending water into its the boat Colombians, finally stop. Eight came to a smugglers The informed the undercover defendant, came out including agents ship departed that a mother had bags packed cabin with their and sat on the from agents passed Colombia. The their stern of the vessel. personnel. information on to Coast Guard They ship described the to the Coast Guard marijuana There was on apparently boat, as a converted shrimp approximately LUZ, the deck of the ALEX but Lieutenant hull, seventy-five long, feet with a white its that he Shuck testified at trial could smell removed, booms cargo marijuana. and a marijuana he when boarded vessel. They informed the Coast Guard that the When Lieutenant asked for the cap- Shuck was ship traveling from Colombia to ren- LUZ, Romero, tain of the ALEX one Oscar dezvous with specific another vessel at a persons previously aboard who had point on the high seas and to unload the crew, spoken respond- with the Coast Guard marijuana into the United captain ed that there was no and that The agents’ proved States. information papers. had no The Coast boat official be correct. or miles Forty fifty south of Guard found 363 bales of point, personnel the rendezvous aboard the witnesses hold of the vessel. Government vessel, VALIANT, Coast Guard sighted a approximately valued the four boat that met agents’ description. The to six million dollars.

boat was heading north toward the rendez- 25, 1981, September On Michelena-Orovio vous site. in a three-count charged others were vessel,

As the VALIANT neared the indictment with superseding States, VALIANT crew was able to into the identify import marijuana United vessel as the ALEX LUZ. The on the into the lights attempting vessel appeared had been reversed so that it States it, moving to be in the direction to distribute opposite to its intent LUZ, actual course. The ALEX presuma- violation of 21 and 846 U.S.C. §§ trial, VALIANT, bly sighted changed (1976), respectively. after it At Michelena- its course radically government from due north to due Orovio contended that unsuccessfully proven south. After the VALIANT his argued ALEX either He attempted conspiracy. to communicate with the radio, alongside government’s LUZ the vessel and to the court that the evi- came board, nothing pres- more than his requested permission which dence showed with a large ence on a vessel loaded was denied. board The chose to resolve panel majority . jury apparent- The marijuana. quantity Cadena, while the by following since it convicted conflict argument rejected this ly then sen- of cases more The court found the other line him on both counts. dissent term of four-year to a tenced the defendant persuasive. count on the first

imprisonment Impo- on the second. five-year and a term THE EVI- THE OF II. SUFFICIENCY was on the latter count sition of sentence DENCE. placed suspended and the defendant review of the suf The standard of to com- years, for five probation inactive in a criminal case is of the evidence ficiency custody. release from upon mence his trier of fact could whether a “reasonable motion to dismiss government’s subsequent that the evidence established] [have found] indictment was count the substantive doubt.” United guilt beyond a reasonable timely appeal- granted. Michelena-Orovio Bell, Cir. ed. aff’d, - U.S. -, 1982) (en banc), originally heard Michele panel (1983).3 In eval appeal was unanimous its na-Orovio’s ac a claim of insufficient evidence uating evidence was government’s view that standard, consider cording to this we must guilt “more than sufficient’’ to establish light most favorable to the evidence import marijuana into States, government. Glasser United in violation of 21 U.S.C. 457, 469, 60, 80, 86 L.Ed. Michelena-Orovio, 963. United States § Freeman, v. 660 (1942); 680 United States 496, (5th Cir.1983). panel 702 F.2d 500 The denied, 1030, Cir.1981), (5th 1034 cert. F.2d found itself confronted with two distinct -U.S. -, 54, 59 103 74 L.Ed.2d S.Ct. however, lines of with to precedent, case, govern the (1982) conspiracy . In a to whether the evidence was also sufficient a reasonable doubt prove beyond ment must support Michelena-Orovio’s conviction of existed, the accused conspiracy “that a that to with intent conspiracy and, knowledge, knew about it with that it, in 21 to distribute violation of U.S.C. v. voluntarily joined it.” United States 846. One line of cases held once the that § 1234, (5th Cir.) 1245 Rodriguez, 585 F.2d had determined the defendant that White, v. 569 F.2d (quoting United States conspiracy import was involved in the to aff’d, 263, (5th Cir.1978)), 612 F.2d 906 267 contraband, it was entitled conclude that to Al (5th Cir.1978) (en banc), aff’d sub nom. in the participant defendant was also a 333, States, 101 v. 450 U.S. bernaz United conspiracy to distribute on the basis of the 1137, (1981). In a 67 L.Ed.2d 275 S.Ct. See, quantity marijuana imported. e.g., 21 prosecution under U.S.C. conspiracy (5th United v. Mazyak, States 650 F.2d 788 846, no need to 963 or 21 there is U.S.C. Cir.1981), denied, 922, § § cert. 455 102 U.S. acts, 585 prove Rodriguez, or overt 1281, allege (1982); 71 464 S.Ct. L.Ed.2d United 1245, aff’d, 37, n. or F.2d at 612 F.2d 919 Mann, (5th Cir.1980), States v. 615 F.2d 668 conspir denied, 994, 101 1694, produce to direct evidence of cert. 450 68 U.S. S.Ct. Glasser, Further, govern acy. supra. L.Ed.2d 193 cases Two other had prove ment is to ... knowl participation conspiracy required held that in the “not conspiracy solely edge distribute could not be inferred from of all the details of members, that import provided each of its [the] his large quantity marijuana. prosecution established United Cadena, (5th Cir.1978); conspiracy.” v. 1252 585 F.2d essentials] Alvarez, 1196, 625 F.2d 1198 Rodriguez, 585 F.2d 1234 States v. States denied, banc), (5th Cir.), aff’d, (en banc), Cir.1980) (en cert. U.S. F.2d 68 L.Ed.2d 324 aff’d sub nom. Albernaz v. United 333, 101 omitted). (citation 67 L.Ed.2d 275 U.S. infra, significance at note 4. of the standard of review set forth in Bell is discussed 3. The from open was access to the hold Import. Conspiracy A. room engine of the vessel. the factors set forth in Relying on crew, ship’s including Michelena-Oro- Alfrey, 620 F.2d vio, endeavor engaged in a concerted denied, (5th Cir.), cert. each other. capture protect elude (1980) (the length spotted When the first Coast Guard quantity contraband voyage, vessel, so it reversed it lights had its board, relationship cap on and the between oppo- in the direction appeared going crew), upheld panel tain Michelena- course, apparently site to its actual Orovio’s conviction detection. The hope escape would marijuana. agree with the con panel’s We its changed as soon as crew boat direction government established clusion pres- became of the Coast Guard’s aware presence more than the defendant’s mere board, agents ence. When the came on all LUZ, on the ALEX see United States board on eight waiting crew members were deck Bland, Cir.), 996-97 (5th eight all bags packed, with their insist- 1055, 102 602, 70 aboard captain ed that there was no Willis, (1981); L.Ed.2d 592 United States v. vessel. (5th Cir.1981), 1338-39 We are a reasonable jury satisfied that ample support evidence to there guilty could have found Michelena-Orovio importa the defendant’s conviction beyond reasonable doubt of tion count. of this on the basis evi- dence. We turn then our consideration we note that Michelena- particular, of whether was also sufficient the evidence Orovio was arrested on board small vessel support conviction just completed relatively lengthy with intent dis- voyage from Colombia. boat was laden tribute it. reeked twelve tons of Although of its cargo. illicit boat was a B. The to Possess In- Conspiracy vessel, there was shrimping fishing tent Distribute. equipment cargo aboard and other than 1. Conflict In the Circuit.4 marijuana the contraband. The found was ship’s cargo the hold. hatch In Michelena-Orovio’s setting aside fastened, possess marijua- was neither locked nor and there conviction above, every recently reasonable 4. As stated this court forth dence was “inconsistent with set sufficiency hypothesis innocence”)). the for the standard of review of the concluded that We guilt: evidence of a criminal defendant’s was the two tests “not the difference between semantic,” adopted necessary merely specifically It the is not that evidence exclude and every hypothesis of precise reasonable innocence statement of Bell test “as the more wholly every inconsistent with conclusion law.” Id. at 549 n. 3. except guilt, provided that of a reasonable Most of cases that have re- trier of fact could find that es- evidence sulted in a in this circuit were decided conflict guilt beyond tablishes A reasonable doubt. pre-Bell Bell. The test before our decision in among is free to choose con- reasonable speculation arguably kind of about invited the structions of the evidence. that have shown what could evidence Bell, United States v. 678 F.2d panel engaged Rodriguez in. and On Cadena aff'd, -U.S. -, Cir.1982), hand, line of cases was also the other the Mann (1983) (footnote omitted). We in those decided Bell. The court cases before Bell, note that which was on June decided hypothesis presumably that the concluded that 1982, changed the statement the standard of importer large quantity sufficiency of the review for the evidence and unconcerned about unaware of Bell, rejected this circuit. In we earlier an plans was unreasonable for its distribution required acquittal of the test that an statement hypothesis require thus that did not an every unless the evidence reasona “exclude[d] Therefore, acquittal the old test. even under Bell, hypothesis ble 549; of innocence.” 678 F.2d at present circuit in the cannot be conflict (quoting at n. 3 see also id. Kassin ground explained the courts were States, (5th Cir.1937) 87 F.2d United course, Bell, applying under different tests. Of required (acquittal unless circumstantial evi- it, panel na with intent to distribute of a distribute to follow United once it reached these shores. majority chose States Cadena, (5th Cir.1978), 585 F.2d 1252 Albernaz, who Rodriguez Unlike Rodriguez, 585 F.2d arrangements make some perforce had to aff’d, (5th Cir.1978), treasure, Smigowski dispose of their (5th Cir.1980) (en banc), n. 3 aff’d sub nom. each receive his reward and Martins could 333, 101 Albernaz v. be done with the scheme. Unlike (1981).5 Albernaz, who, L.Ed.2d Cade according Rodriguez and na, we the conviction cap reversed evidence, to the had contacts outside ship tain of a mother that had transferred a area, money, Miami needed front large quantity to a smaller Smigowski or planned Winnebagos, to use craft 200 miles south of the Florida coast. Martins were not shown to have been We noted: the actual arrangements connected with importation. presented by

Unlike the situation an on- going enterprise, Cadena had no interest There Smigowski was evidence that in or plans, any, awareness of what if parties importa- and Martins were been reached to dispose scheme, tion but there is no evidence that once he reached these shores. Although would establish reasonable doubt beyond a conspiracy facilitates con- they likely possession would come in distribute, spiracy joint one cannot arrived, of the haul once it share its conspiracy, whether conduct or thereafter, proceeds [sic] or other evidence accord, verbal unless one knows that it from which it could in turn be inferred has in fact been concocted.... to distrib- privy plans [F]rom perspective, Cadena’s apparent was not ute the already contraband. We have reached, accord had yet been possession large supply noted that tacitly either or otherwise. a prohibited may justify substance possessor inference that intended to 585 F.2d at 1266. Rodriguez involved the it, but there was no evidence prosecution of the four people who were to Smigowski and Martins had suffi- receive the which was on Cade- cient dominion over or interest in the na’s boat. we affirmed the convic- While marijuana to warrant the inference. tions of with intent to distribute of two of the defendants in that (affirmed 585 F.2d at 1247 in pertinent case, we reversed the convictions of the two part, 3). 612 F.2d at 908-09 n. The panel men who had not specifically arrange- made majority was convinced that the evidence in ments participate case, distribution of Michelena-Orovio’s like the evidence in marijuana: Rodriguez, only Cadena and showed the de- fendant’s in participation importation However, there was no evi- literally scheme, in participation but not his

dence with to the involvement of distribution scheme. Martins and Smigowski in a distribution scheme except might what be inferred Relying long on a line of Fifth Circuit from their participation agreement in an jury may cases that had held that the infer to import it. The direct and circumstan- intent to distribute the contraband from the tial evidence that peripheral were cache, panel argued size of the dissent participants scheme Miehelena-Orovio’s conviction on refute, does beyond a reasonable second count should The dis- be affirmed. doubt, the hypothesis they had no sent noted that while Cadena and Rodri- Albernaz, supra, engage speculation Supreme we are not invited to 5. In con- Court about only what the defendant’s state of mind jeopardy question sidered the double been; have we must affirm the defendant’s posed by Rodriguez. jury’s long conviction as as construction of supporting guilt the evidence as the defendant’s beyond doubt a reasonable was reasonable.

745 14,611 abandoned, pounds laden of mari trawler with specifically had never been guez been sub left Miami nineteen to have overruled the trawler had they appeared juana; silentio, case that seventy there had been no it miles stopped since before was days prop Jonas, for the precedent had followed either v. 639 Cuba); of United States south of im that the amount contraband osition convic (5th Cir.1981) (affirming F.2d 200 sole for connect ported cannot be the basis pos conspiracies import tions of existing conspiracy to an ing defendant boat laden on board persons sess of found attempted The cases either distribute. 27,000 marijuana sixty over of pounds with Cadena, v. distinguish see United States Keys); miles from Florida eighty (5th F.2d Cir. 679 423 Chaparro-Almeida, (5th Cir.1980), Shelnut, v. 625 F.2d 59 States denied, - U.S. -, 1982), 103 S.Ct. cert. denied, 983, 101 67 450 cert. U.S. (1983) (convictions af 74 L.Ed.2d 1004 v. 818 United States (citing L.Ed.2d was marijuana-laden firmed where vessel denied, Love, Cir.), (5th 599 F.2d 107 cert. miles of the Louisiana stopped within seven 302, 62 312 444 100 L.Ed.2d U.S. to deliver waiting coast while boat was of defendants (1979)) (affirming convictions Americans), ignored or to two vessel shrimping who were found on v. Bor completely. United States See Texas, where the con headed toward boat chardt, (5th Cir.1983) (affirm 698 F.2d 697 shrimp, shrimping equipment tained conspiracies import ing convictions of of marijuana). did contain fifteen tons but distribute, intent to possess and to Rodriguez cases had cited for Other offenses, person who ar substantive i.e., contrary proposition, pounds 481 mari ranged importation of with intent juana Mexico); from United States from may be inferred the size Scott, (5th Cir.), 678 F.2d 606 cert. Mann, we supra, held: the cache. - --, 103 L.Ed.2d U.S. apprehended The defendants (1982) (affirming conspir convictions 22,500 pounds marijuana in their over acy and to with intent to for personal far too much possession, distribute of persons pleas some found on consumption Having four individuals. 30,000 ure boat that contained pounds planned to determined that defendants marijuana, reversing but convictions of cargo, their was entitled those defendants not shown to have knowl facts before it to infer from the edge cargo); v. Esco plan disposi- some had been made its bar, (5th Cir.1982) (affirming F.2d 469 previously tion. As we have noted “[t]he convictions crew —and captain —on can be size of ... cache sufficient very shrimp boat, left a where boat had ” Unit- to show intent to distribute.... foreign port with at least four tons of mari Rodriguez, F.2d ed States it); juana and docked in without Mississippi (5th Cir.1978), aff’d 612 F.2d Hernandez, United States v. 668 F.2d Cir.1980) (en banc). (5th Cir.1982) (affirming per conviction omitted); (other at 670 citations got son who boat off of a that contained Perez, also United see thirteen bales of five boxes denied, 454 (5th Cir.), tablets, methaqualone keys where he had (1981) (citing kept to the cabin where the contraband Rodriguez affirming Mann’s citation of wagon waiting and had a station land possess conspiracy of convictions transport boat); v. Maz distribute, agents watched intent where de yak, (5th Cir.1981), 650 F.2d 788 cert. 18,900 pounds of mari 1281, unload nied, 922, 102 71 defendants 455 U.S. S.Ct. behind a Florida onto a belt juana conveyor of (1982) (affirming L.Ed.2d 464 convictions house).6 foot forty-two found on beach captain and crew Cortez, See, e.g., jury had also that a decided. 6. A number of cases held 1, 1975) (affirming (5th conviction on the size of Cir. could infer intent to distribute from import pos- Rodriguez conspiracy and to of Cadena and one count the cache before Appeals of retailers. The Court of group with a situation are now confronted We the defend- rejected in the law: for a number for the Circuit often encountered Second disagreed recognizing the people have years, argument, specifically of reasonable ants’ drug must nec- in a about whether a reasonable participants of interdependence entertained a reasonable essarily have distribution scheme: case, the guilt. man’s In this doubt about a cooper- The evidence did not disclose reason- jury, having whether the question is between ation or communication that the defendant ably determined retailers, of group and either smugglers tons of twelve guilty of retailers groups the two or between entitled to infer from the marijuana, was themselves; however, smugglers the defendant’s size of the must sell the middlemen knew in the scheme for its of and that the retailers, the retailers knew and distribution. of one importers must buy middlemen at conspirators Thus the sort or another. Conspiracies: Has 2. Narcotics the un- the chain knew one end of Been Broken? Chain not, not, and could lawful business would to distribute narcotics7 have Conspiracies at the and those stop buyers; with their considered to ex- generally prime been begun end knew that it had other chain, interconnected, conspir- amples true, a being with their sellers. That acies, participant segment in which a in a all the ac- have found that jury might conspiracy may partici- be convicted of venture, upon were embarked cused in Unit- pation example, in the whole.8 For participant, was a parts all of which each Bruno, (2d Cir.), 105 F.2d 921 ed States that the suc- in the sense and an abettor 287, 60 grounds, rev’d on other 308 U.S. im- with which he was part cess of that 198, (1939), 84 L.Ed. 257 the defend- concerned, dependent upon was mediately ants were indicted for and convicted the success of the whole. import, sell and nar- 105 F.2d at 922. were at They argued cotics. there the Bru- followed Circuit has Second separate least three be- conspiracies —one narcotics cases no rationale in more recent smugglers tween the and the middlemen present and one between the and each under the statute: middlemen opinion term used in this sess with intent to distribute of owner of auto 7. The “narcotics” is present drugs. synonym illegal mobile who was arrival of boat at for as a carrying pounds marijuana, stating that distribution was established the fact States, 539, v. United Blumenthal In 332 U.S. 8. “virtually impossible it was for two mere (1947), Supreme 68 S.Ct. 92 L.Ed. pounds marijuana, mortals to consume 300 chain-type with a con- Court was confronted personally, span time”); within a reasonable whiskey unlawfully. Affirming spiracy to sell Maslanka, (5th United States v. 501 F.2d 208 convictions, noted the Court the defendants’ denied, 1974), cert. Cir. 421 U.S. 95 S.Ct. [among agreements the vari- that “the several (1975) (affirming 43 L.Ed.2d 777 convic integral participants] were essential ous tions of with intent single conspiracy. steps” in a 332 U.S. possession persons distribute and observed contrast, conspir- at 257. where 18,000 pounds on a beach where form, example, acy has taken a different for floating, reversing but convictions of con government’s proof has established where the spiracy because conspir- spokes but not the rim of a wheel there evidence the con was not sufficient acy, Supreme to set Court has not hesitated source); see also foreign traband came from a See Kottea- the defendants’ convictions. aside Perry, United States v. 480 F.2d 147 Cir. kos v. 328 U.S. 1973) (affirming conviction of substantive of (1946) (fatal variance be- 90 L.Ed. possession fense with intent charging indictment one holding support tween that size of cache could several). establishing solely proof inference that contraband was not Mather, personal use); United States v. (5th Cir.), F.2d 1035 (1972) (same).

747 it, to long many we in sess with intent and had recognized, As have the distribution networks ulti- attempted challenge narcotics he his subsequently may the identi- mate retailers not know in the entire participation conviction for wholesaler, supply ties of those who their he was a vital link in conspiracy, since too may the retailers’ be un- and identities imple- the distribution scheme. Successful suppliers; all are well known to those but importation plan his was de- mentation of are they participating aware that in a the of and pendent upon availability buyers collective venture. buy- while cargo, distributors for these Martino, F.2d United States Mi- dependent ers on and distributors (2d Cir.1981), cert. for a to sell.10 chelena-Orovio (1982). In 102 S.Ct. L.Ed.2d 1373 Mi- charge was able government own we have our circuit stated: two participation in chelena-Orovio aspect activities of one of Where the conspiracies Congress because enacted two necessary the are or advanta- scheme it revised the na- conspiracy statutes when geous aspect the success of another of tion’s laws in 1970. 21 drug U.S.C. §§ to the the scheme or overall success of 846. decision to enact two stat- Congress’ venture, the where there are several understood, however, to utes should not be parts plan, inherent in a common larger importers break link between the and the property or where the character of the his- legislative the While the distributors. the nature of the activity involved or Drug Prevention and tory of the Abuse part the of one such that on et Control Act of 21 U.S.C. §§ concerning member the existence and (1976), silent with seq. the function of other members of same us, the history before of precise issue due necessarily implied scheme is that did intend Congress Act not indicates nature of various overlapping roles scope drug-smuggling of the limit participants, single the existence of conspiracies a de- conspiracy or for which conspiracy will be inferred. be convicted. may fendant Elam, determining imposition In that (5th Cir.1982) (citations omitted). participation multiple punishments The defendants in chain-conspiracy these and to conspiracies government cases claimed that had jeopardy not a violation the double but proved conspiracies, not one several Constitution, a the United clause of this variance between the indictment that Congress, this court noted majority proof and the at trial their convic- rendered drug control in its various enactments Elam, Bruno, tions supra; supra.9 invalid. years, had legislation past fifty over case, In each the defendants’ claim was “turn the screw of the crimi- endeavored to rejected. We firmly suspect Michele- prosecution and machinery detection, nal na-Orovio would have the same suffered — Rodri- tighter.” punishment tighter had one count charged fate he been — Gore (quoting 612 F.2d at pos- guez, supra, Martino, rights supra, to ‘affect the substantial 9. the defendants claimed variance as ” judge failing give Berger had that the trial erred in v. United accused.’ multiple conspiracy jury. 629, 630, instruction to the L.Ed. 1314 hand, the other the courts in the On challenges Bruno Elam 10. involved engaged inquiry cases in an similar above-cited ground convictions defendants’ insofar as held there was our own there was a fatal variance between the offense charging a indictment no variance between the govern- charged in the indictment and the i.e., trial, single conspiracy proof at proof trial, challenge ment’s than a rather proved government the interde- insufficiency based on evidence pendence participants distribution any conspiracy. defendant’s cases, Nevertheless, scheme. variance analysis quite different the two instructive, dispositive are the is- while types inquiry cases as the critical a vari- sue before us. ance case is “whether has been there such 386, 390, v. United only import U.S. convicted un- 1280, 1283, (1958)), aff’d statute, sub penalty der the new his maximum Albernaz, supra, nom. at $15,000 prison, plus would be five in a years at 1144. The 1970 Act was intended by fine. This cannot be the result in a designed comprehensive to deal fash- a the screws Congress tightening intent on ion with growing menace of drug effort machinery of the criminal in an abuse in the United ... through drug combat abuse. providing more effective for means law An intent understanding congressional aspects drug enforcement pre- abuse however, we only begins inquiry, our control, vention and and ... providing must still determine whether the could for an overall balanced scheme of crimi- reasonably have concluded that Michelena- penalties nal for offenses involving drugs. participated Orovio knew of and in both the H.R.Rep. No. 91st Cong., 2d Sess. marijuana and the (1970), reprinted in 1970 Cong. U.S.Code & conspiracy possess it with intent to dis- Ad.News 4567. The President’s Ad- tribute it. There need be no doubt visory Commission on Narcotics Drug case about the existence of a reported: Abuse “The illegal traffic in distribute the found on board the drugs should be attacked with pow- the full ALEX LUZ. The Coast was able to Guard er of the Federal Government. price apprehend the vessel and crew because its for participation in this traffic should be importers Louisiana-based had informed prohibitive. It should be made too danger- agents, undercover who were posing per- as ous to be attractive.” Id. at 4575. sons in aiding interested in the distribution Were we to hold that Michelena-Orovio marijuana, the ALEX LUZ was only could be convicted of conspiracy to carrying of contraband for distribu- import, he escape would be able to with a fact, tion in the United States. one of lesser penalty under the new law than he the importers informed the agents that he could have under the old. Under the old to a belonged marijuana-smuggling “organ- law, conspiracy to distribute mar- ization,” that this organization “had a lot of ijuana carried a penalty five to twenty ships,” and that if the agents who were years in prison $20,000 and a fine. 21 posing as provide good unloaders “could 176(a) (1964) U.S.C. (repealed 1970). § service, organization] bring would ... [the Conspiracy import marijuana may now a lot shiploads marijuana.” Trial punished be with up to five years prison Transcript at 116 (Testimony Agent Don- $15,000 and/or fine. 21 960(b)(2) U.S.C. § ald). The question this case is whether (1976). Conspiracy Michelena-Orovio’s of and par- carries same penalty, 21 U.S.C. ticipation in this scheme may distribution 841(b)(1)(B) (1976), but if § the defendant be inferred from his conspires more than 1000 pounds, supply scheme to twelve tons may he be imprisoned for up to fifteen from Colombia. years $125,000. and/or fined 21 U.S.C. occasions, 841(b)(6) (1976).11 Thus, Supreme On least two § while the de- fendant culpability per- could have received Court has assessed the up twenty years prison plus $20,000 son (and supplies goods fine who in- people who required to receive a minimum of five tend to use goods unlawfully. those Where years) statute, under the old if he goods innocent,” were “themselves conspiracy statutes, 11. The two importation, pro- 21 U.S.C. stantive offense of § 846, provide person 963 and §§ that a who has penalties vides the for the substantive offense “pun- committed the offense of possession with intent to distribute. Since by imprisonment ishable may or fine or both which non-narcotic, 21 U.S.C. punishment pre- not exceed the maximum 802(16), drug, 812(c), schedule I 21 U.S.C. § § offense, scribed for the the commission of (c)(10), 960(b)(2) 841(b)(1), Schedule I §§ object which was the conspiracy.” of the ... appropriate penalties. establish the provides penalties Section 960 for the sub- goods the the nature of sold. dependent was insuffi- on the evidence Court held aiding of and in Direct Sales were support cient to convictions Because the narcotics who of know- abetting conspiracy persons greater a in- there was heavily regulated, conspirators. goods the ingly supplied the knew ference the distributor Falcone, and illegally use the goods doctor would (evidence in- (1940) 85 L.Ed. 128 further, to intended the distributor aiding of support sufficient to convictions mis- cooperate in the doctor’s promote, and spirits of abetting conspiracy and to distill commodity: of use the knowingly large vol- persons supplied who The sold commodities [in Falcone] distillers). yeast illegal of and to sugar ume commerce, sugar, of free were articles restrict- supplied Where the defendant had cans, to were not restricted as They etc. narcotics, however, ed the was will- Court form, or other registration, sale order by knowledge to of ing supplier’s infer the and left the requirements. they When seller’s complicity illegal the narcotics distribu- in hands, to purchaser’s the passed stock and of nar- large quantity tion scheme from the they not in restricted themselves of prolonged period cotics sold over a time. commodities, incapable legal of further Direct Sales Co. United U.S. compliance rigid except by regu- use 87 L.Ed. 1674 lations, morphine as to sul- apply such of manufacturer (affirming drug conviction The is like that be- phate. difference had, period and wholesaler who over a hunting-rifles toy pistols tween and years, large morphine amounts of supplied All articles of commerce guns. machine sulphate distributing a doctor who was may illegal But all do not put ends. drugs the cases are factu- illegally). These have the inherently susceptibility same ally from the before us in that distinct case Nor, illegal and use. the attempt persons by involved an to convict harmful on solely goods token, the basis of their sale all the ca- embody same do same conspirators, the while evidence nature, the very giving from their for pacity, case demonstrates that Michelena-Orovio the notice the will use them buyer seller participant seg- was an in at least a actual unlawfully. Gangsters, not hunters or ment of he the distribution scheme since boys, comprise private small the normal was a member of the ad- guns. drug market for machine So marijuana. Because Michelena-Orovio dicts furnish the normal outlet for mor- was a in at conspirator segment least a phine gets which outside restricted drug-smuggling the infer- conspiracy, legitimate channels of trade. knowledge ence of participation of and 710-11, at at 1268-69. in the remainder of the scheme distribution the difference explained Court stronger is than it might be were he a important commodities was terms bystander who had sold his wares to simply buyer’s both of the the seller’s conspirator. The Supreme Court’s dis- use, intent pro- seller's intended cussion, however, relationship be- illegal cooperate mote in the action: tween of knowledge the inference of and important for two This difference is participation in the illicit and the purposes. making is certain that One for nature the item transferred is instructive ille- buyer’s the seller knows the intended to whether rea- could The other to show that gal use. is sonably have concluded that Michelena-Oro- further, promote sale he intends vio was a member of the in it. cooperate intent to the mari- possess with juana conspired import. that he had difference Id. of the obvious recognition morphine the sale between the sale Supreme recognized Court Direct cans, on sugar, the Court went yeast strength Sales that an inference quantum proof required to state that based illicit buyer use knowledge that will on the sale of to show goods conspirators commodity unlawfully dependent in this incident.12 The single upon commodity: the nature of there is majority pro- reasoned that where cans, have sugar, longed may The difference between the seller cooperation, trade, and other articles of normal on the “stake” in the successful outcome hand, one and narcotic drugs, machine Michelena-Orovio, scheme, entire commodities, guns and such restricted nothing more but where there is other, arising from the latters’ inher- transaction,” the “single than a or casual ent harm capacity very and from the supplier buyer’s be indifferent restricted, they fact are makes a differ- illicit Direct purpose. (quoting Id. at 506 ence quantity proof required of to Sales, 8,n. at 1269 319 U.S. at 712 63 S.Ct. knowledge buyer show that the will uti- 8). recog- n. panel majority failed unlawfully. lize the article Additional just nize that was not Michelena-Orovio facts, sales, such as quantity high-pres- to the he supplier goods conspirators; methods, sure sales abnormal increases in of an segment was himself a member of a etc., buyer’s purchases, the size of the extensive to obtain which wholly would be innocuous or not and to distribute it in the United States. more than for ground suspicion in rela- Further, we do the Direct not read Sales goods, tion to unrestricted may furnish affirming supplier’s Court’s decision evidence, conclusive to restrict- narrowly panel majori- conviction as as the articles, ed that the buy- seller knows the ty did. er has an illegal object enterprise. Knowledge, equivocal and uncertain as to Falcone and Direct Sales must be viewed one, becomes sure as to the other. far So along a continuum of sales of goods as knowledge intent, is the foundation of persons engaged conspiracy. in an unlawful the latter thereby also becomes the more Falcone, At one end of the continuum secure. illegal which did not an inherently involve 711-12, Id. at all, at 1269. S.Ct. transaction at rather the sale of but goods “in innocent.” 311 themselves The panel majority reviewing Michelena- 207, (quoting opinion at at 205 Orovio’s appeal emphasized that in Direct below, 579, (2d Cir.1940)).13 109 F.2d there prolonged Sales had been cooperation morphine The sale of in Direct fell between Sales the wholesale supplier and the continuum, somewhere physician who was middle of the engaging in the illicit enterprise, while the evidence at in that the sale Michelena- involved restricted Orovio’s trial disclosed only Thus, commodity. every “not instance of attempt 12. In an illegal conspir- to counter the defendant’s them in the furtherance of an claims that he had acy. suppliers just the nature here did more than cargo, government requested permis- They sell. aided and abetted the testimony sion to introduce that Michelena- sales; making illegal themselves for their Orovio had been arrested on board a second proper sales were not on the basis of the 30,000 pounds boat that was laden with over pursuant forms or to written orders of the marijuana shortly after his adventures aboard type required by 2591(a) 26 U.S.C. for mar- § request. the ALEX LUZ. The court denied the illegal ihuana transfers. As these sales were Transcript Trial at 184-95. clandestine, them, supplier, through each part became himself a for subsequently 13. The Second Circuit has limited resale; their intended this added element of Falcone to its facts: personal lawbreaking selling and clandestine The defendants invoke our decision Unit- required furnished the “stake in the success Falcone, Cir., 579, ed States 109 F.2d for of the venture” that the Falcone case de- proposition supplier, that a mere even manded. illegal purpose one who knows of the of his Tramaglino, United States v. 930- purchaser, co-conspira- cannot be held as a (2d Cir.), 344 U.S. 73 S.Ct. tor. We have limited that case to its strict Thus, 97 L.Ed. 670 the Second supplier goods, facts—the case of a inno- participa Circuit has held that the defendant’s themselves, nothing cent in who does but sell illegal may provide requisite tion in an sale goods who, purchaser sup- those to a stake in the venture. plier’s knowledge, intends to and does use fact, plan relies on the there is a for would goods” support of restricted sale cargo. of his Turner v. at 63 the distribution See 319 U.S. charge conspiracy. 398, 417, States, 396 U.S. 1269. But the restricted nature (1970) (“Common that there were limi- commodity meant traffic us that those who sense ... tells expansion on the possible tations become aware inevitably heroin will market: legal unless product smuggled, deal in is they market opiates [not] [T]he to which they practice ignorance a studied developed as other market.... entitled.”); are v. United they not Barnes bargain-counter dis- advertising Mass 837, 845, 93 are to commodi- appropriate counts con- (affirming L.Ed.2d so with restrictions. ties surrounded Trea- viction of United possession They legal do not create new demand and mails where sury stolen from the checks patrons, classes of legitimate new as the checks were stolen was knowledge that sugar, do for and other free com- tobacco unexplained possession inferred from limits, Beyond modities. narrow nor- checks out to someone with whom made legal opiates capa- mal market for not unacquainted). defendant was being by ble of extended such methods. primary The is rather effect to create Where act itself is one from single a dope black markets for and to increase be which illegal consumption. demand and inferred, have not hesitated the courts a defendant’s conviction. See upholding Sales, In the case Id. of Direct the sale Bobo, 370 n. F.2d large quantities morphine, together with denied, (5th Cir.1978), 440 U.S. prolonged between cooperation the sell- (affirm buyer, provided er and the evidence suffi- accompa ing conviction of defendant who conspiracy cient to convict the seller of once, nied where half conspirator only violate narcotics laws. heroin was and cut pound of uncut obtained continuum, If Falcone is end of the at one Unit produce greater quantity); an even other, is at the Michelena-Orovio’s case for 434—35 Magnano, ed States v. involving the transaction the marijuana denied, 1091, 97 (2d Cir.1976), cert. illegal legal was itself and there was no (1977) (affirming 51 L.Ed.2d commodity. market for the The absence “single where acts” —sales convictions any legal market an link provides additional pure five and three kilos of heroin —were supports that inference of illegal “such a conspiracy and of core members importer’s involvement in the that inference magnitude justify as to an cargo intent criminal he was involved in a each knew it. Michelena-Orovio would have had no Michele enterprise scope”). of substantial job if there had plan been no made for the attempted importation na-Orovio’s cargo, distribution of his and the twelve marijuana an act. huge is such quantity marijuana have been tons would virtual- importation marijua of twelve tons ly worthless if had been no conspiracy there street value of approximate na with an marijuana to distribute. The could not be between to six million dollars is four supermarket sugar in the as yeast sold or as a transac readily characterized “casual” could, Falcone, disposed could it be of in nor tion, for planned if the transaction is even pharmacy hospital, morphine might a as only. one time recognized Direct As we be. Sales.14 Mann, situation Contrasting Captain sense leads to the Cadena’s supra, common presented ongoing an much with “situation importer conclusion an well, court surmised that enterprise,” indeed the Cadena perfectly knows community provide demand has ex- said to for twelve tons of 14. While the been medical perimenting treating foreign marijuana. num- ailments, community hardly can ber of scheme, importation his involvement interest in or awareness no captain “had job if there importing reached to no any, had been for he would have plans, of what if Finally, reached marijuana once he distribute. dispose was no facts F.2d at 1266. The an act in itself is these shores.” the act of the falla- us demonstrate of the case before furtherance of the Agent reasoning. According cy in this distribute, would be there with intent to dis- testimony, Donald’s were no there scheme if no distribution came into existence tribute the United States to distribute. See boat left Co- long before Michelena-Orovio’s (2d 930-31 Tramaglino, lombia; indeed, apparently the ALEX LUZ Cir.), cert. from the set sail under orders United States 97 L.Ed. 670 point and the detailing the size with the boats that were to of rendevous Seaman. 3. The Mere Colombian cargo into the United take the States. further argues Michelena-Orovio have left ALEX LUZ would never Colom- with the of actual contact that the absence bia, Michelena-Orovio would and therefore “lowly as a and his status wages to earn his opportunity have had further seaman” non-English speaking member, there been no dis- as a crew him. Michelena- against weakens the case or- placing tributors in the United States fact concerns the argument first Orovio’s ders for the contraband.15 national, he, was discover a Colombian the fact that the defendant summary, He high seas. foreign vessel on ed on importing huge quantity is involved in proved only evidence maintains may es- marijuana into the United States mari a vessel loaded with that he was on knowledge of tablish both the defendant’s States, but for the United juana headed joinder conspiracy possess in the to and en actually called for his plans that never twelve tons with intent to distribute. Since While the evidence country. into this try mortals is more than mere that he to demonstrate be sufficient might lifetime, personally could consume in a contained contraband knew that the vessel Cortez, (5th 521 F.2d 4 conspiracy the to joined that he had in and intent to Cir.1975), someone must have an to the United States bring enough it close the The defendant’s distribute contraband. it, he maintains import else to for someone conspir- awareness of the existence of the he knew of or no evidence that that there is the con- acy participation flows from his it fate once the contraband’s cared about such a for spiracy import large quantity, to shores.16 reached American legal in the market in which any absence of the vessel nationality and The location wares, to dispose to of his there is no reason the issues in bearing has no and its crew plan if there has been no goods participation of and knowledge this case: Similarly, made for their distribution. marijuana with possess to conspiracy joinder or interest in the con- defendant’s where the it. In a case inferred from intent to distribute spiracy may to distribute distinguish Rodriguez, Smigowski attempted on the same Cadena 15. In defendants acquitted conspiracy pos- urges ground were here. We Martins that Michelena-Orovio on the same theo- sess with intent to distribute ry further out boat had been noted that Cadena’s Captain defendant’s, the defendants as was Cadena: and that was the to sea than done “could each receive his reward and be supporting evidence Cadena ] [in “there was making any “ar- with the scheme” without rangements any deliver the contraband to intention to dispose 585 of their treasure.” 430. Michele- 679 F.2d at the United States.” Again, F.2d would have received at 1247. pointed that the boats in has also out na-Orovio no reward had there been no distribution Mann, Mazyak, supra, supra, were both scheme. vessels, from which the could American planning were to return that the boats infer 16. When we affirmed the defendant’s convic cargo their within the Unit- to distribute home Chaparro-Almeida, tion in 679 United States v. ed States. denied, (5th Cir.1982), F.2d 423 cert. - U.S. --, (1983), 74 L.Ed.2d 1004 we possession for high seas happened upon marijua has Guard Coast seas, there with intent to distribute it in violation of high na-laden vessel on cargo 955a). hold whether These cases be an issue about U.S.C. § States, and thus act government prove for the United need not overt bound country jurisdiction has to within in order to convict whether the United States See, foreign possess crewmembers. mari- prosecute a defendant of Freeman, long United it as e.g., juana States with intent distribute as denied, Cir.1981), cert. (5th 1034-35 conspir- that the there is sufficient evidence - U.S.-, 74 L.Ed.2d 59 within acy to be consummated United of United (1982) (holding evidence See, Ricardo, supra; territory. e.g., States to give was sufficient destination Baker, States never Michelena-Orovio has supra. jurisdiction where court defendants cargo’s disputed the fact that the ultimate off found on board American vessel coast of a fact destination was Jonas, Mexico); United States v. F.2d testimony by Agent Donald’s evidenced (5th Cir.1981) (holding that United portion Louisiana-based about defend jurisdiction prosecute States conspiracy. for with intent to ants nationality does not Michelena-Orovio’s where defendants were found on of his knowledge weaken the inference marijua American vessel laden with board to distribute contraband miles sixty eighty na from Florida knowing must or of his facilitation exist Ricardo, Keys); conspiracy. foreign While a national Cir.), (5th 1128-29 may not have same detailed might citizen of our laws as United States (United jurisdiction to States had have, would be irrational for hardly Colombian American seamen prosecute knew jury to infer that Michelena-Orovio and to mar mari- and distribution of possession ijuana with intent distribute where de illegal. After juana in the United States fendants were found on board American Colombia, all, illegal are also both Texas vessel 125-150 miles from the coast indeed, parts most of the world. There- States); was destined for United fore, the extent that Baker, F.2d 134 United States v. be may normally distribute Cir.1980) (possession large quantity of conspir- in the participation from inferred vessel marijuana on an American outside quantity a of contra- acy large States territorial waters but within band, legal of the absence of a light 21 “customs waters” is crime under U.S.C. Michelena- imported goods, the market for 841(a)(1) it was intended where clear dis § dependence on knowledge of and Orovio’s States); occur in tribution would the are the existence of distribution scheme Marino-Garcia, also 679 see United States the those of his American counter- same as (11th Cir.1982), 1373 F.2d cert. part.17 - U.S. -, (1983) 967 103 S.Ct. 74 S.Ct. note further that defendant’s (United jurisdiction prosecute States has We not be of the contraband need persons found on board stateless vessel on distribution knowingly Schmucker-Bula, conspirators 17. In United States v. was that the 609 “sufficient (7th Cir.1980), transportation encouraged arranged F.2d challenged the 402 defendant and the jurisdiction of the drugs the criminal Unit States.” would end in the United ed States him to im to convict (citing Direct 609 at 402 Cadena and F.2d port kilograms 100 He had of cocaine. been Sales). sale of The court stated further: “The Republic, apprehended in the Dominican dependent large quantity was so of cocaine he he indifferent to the maintained that feasibility smuggling upon the it into the argued He on the destination of the cocaine. Furthermore, the defendant United States. Falcone, supra, basis of that his activities as liability merely pur- escape because the cannot him liable as a seller were insufficient make conspirator responsibility primary for the took chasers importation. The Seventh arrangements.” 609 at 402. smuggling F.2d rejected argument it and held that Circuit Drug in order to stances and Amend Narcotics ultimate consumer made to the 1444 Before possess Laws, Hearings on H.R. him of 1970: convict distribute; Means, may, appropriate Ways intent to House the Subcomm. circumstances, coconspirator. made to a (statement Cong., 91st 2d Sess. Pool, (5th Nixon, President of the United Richard Pool, we held that Cir.1981). 612 F.2d at States). Rodriguez, also See marijuana from planned transfer conspira- deny No one can 915-17. boats 250 miles mother to the off-load ship them, case, before had many cies in this like Jacksonville, con- Florida east-southeast of To hold that roots in a field in Colombia. contemplated by 21 stituted “distribution as implicated cannot be Michelena-Orovio 802(11).” F.2d at 560. Even U.S.C. § with intent possess planned never to come if Michelena-Orovio national foreign because he is a distribute States, there was anywhere near the United seas would be to high who was found on the jury could have evidence from which to combat the government’s ability limit the planned inferred that he to aid in the trans- We cannot con- drug trade at its source. ALEX fer of the from the LUZ intended, or that Congress clude that boats, which were to take off-load warrant, such a result. facts of this case cargo to the United States. Someone argument Michelena-Orovio’s final would have had to unload the in the distri the inference of rendevous been successful. There was so applied should not be to him bution scheme much on board the ALEX LUZ because, Mazyak, unlike the defendants in that it took four or five customs workers to Cadena, simply Mann and even he was Trial at 110. Transcript unload the vessel. recently member of the crew. We lowly reasonably could have concluded jury rejected argument a similar in United Michelena-Orovio, one of crew eight Sockwell, Cir.), LUZ, 699 F.2d 213 members found on board the ALEX States v. denied, - U.S. -, the other in unloading intended aid seven circumstances, cargo. Under these we was a 77 L.Ed.2d Sockwell cannot that the rational- say could not the crew of a vessel that had member of ly conspir- have convicted defendant of 150,000 marijuana; carrying pounds been acy with intent to an was transferred to after it, foreign even if he was a na- boat, and sank their other the crew burned foreign tional found on board a vessel on conspira convicted of ship. Sockwell was high seas. with intent cies to and to distribute, of as well as the substantive Finally, accept we note that the de- On possession. fenses of proposed fendant’s distinction would under- his convic contended that appeal, Sockwell cut purposes of narcotics laws. overturned because “he was tions should be Both 18 U.S.C. U.S.C. § § did a cook for the vessel’s crew and merely part congressional were of a revision and of in of the activities participate recodification of the nation’s narcotics laws rejected We the vessel.” 699 F.2d at 215. deal in a fash- “designed comprehensive of testimony contention and found that this growing drug ion with the menace of abuse members, as well as circum the other crew in Comprehensive the United States.” evidence, that he was demonstrated stantial Drug Abuse Prevention and Control Act of of functioning and member “participating 1970, 1444, Cong., No. 91st 2d H.R.Rep. As in Mi throughout.” the Id. conspiracy in 1970 (1970), reprinted Sess. U.S.Code case, had been a chelena-Orovio’s Sockwell 4566, In his mes- Cong. & Ad.News 4567. (five men) crew on member of a small bill, proposed the the sage accompanying lengthy boat on a marijuana-laden board a “successful that he wanted President stated 620 Alfrey, v. See United States voyage. increased national effort prosecution of an denied, Cir.), cert. 449 551, (5th Legisla- F.2d 556 drug trafficking.” against illegal 337, 938, 66 L.Ed.2d 160 101 Dangerous Sub- Regulate tion to Controlled U.S.

755 the of Further, conspiracy in each case all of fendant’s conviction high on seas with intent the single fabricated presented members crew and 955a. under 21 U.S.C. 963 §§ distribute story. in similar strikingly The facts were Smith lowly employ Michelena-Orovio’s unregistered us. The to the case before than argument ee is in essence more seas, high on seized the flagless vessel was presence” argument on “mere variation the Massa- hundred miles off coast of one importation in our rejected discussion were two Americans chusetts. On board in disposition As discussed our count. was ten Smith), (one of whom was defendant regard with argument of the defendant’s nationals, and 263 of mari- bales Colombian count, more than mere bound the United boat was juana. was in this case. The established presence from The First Circuit Colombia. States the evidence demon jury determined that claim the defendant’s unpersuaded by Mi beyond strated a reasonable doubt that back merely hitching that he was a ride partici of chelena-Orovio was aware home, light length voyage, of of large conspiracy pated board, marijuana on large quantity He was not a mere quantity marijuana. relationship between necessarily close employee but aware of the employee, an crew. Smith his It is nature of business. well settled has The Eleventh Circuit affirmed circuit conviction will not be that a defendants convictions numerous be merely reversed for lack of evidence charged with contra conspiracy a minor played only cause defendant on the seas with the intent high band v. role in the overall scheme. United States 955c it of 21 in violation U.S.C. § Alvarez, 1196, Cir.1980) (5th 625 1198 F.2d 1981), V where the defendants (Supp. banc), denied, 451 101 (en cert. U.S. contra possession large amount of (1981) (affirming 324 L.Ed.2d Ceballos, See, v. e.g., band. United States import marijua conviction (11th Cir.1983) (af F.2d 1201-03 in supplier’s na of Colombian friend who and convic firming convictions present to be at the tended remote off-load of crewmem tions substantive offenses ing marijuana). site for the the trial While laden shrimping vessel bers found on board might court wish to take Michelena-Oro 27,520 marijuana forty-five pounds of as employee vio’s status an into account in coast); off the United States miles Florida defendant, sentencing as an his status (11th Curra-Barona, 706 F.2d v. employee does not weaken inference of conspir Cir.1983) (affirming conviction of complicity of or in the distri high persons possession on seas acy bution scheme. on craft strewn pleasure found board five miles south bales 4. Other Circuits. Munoz, 692 Bahamas); United States Finally, we that other circuits have note denied, Cir.1982), (11th cert. to infer intent to distrib permitted -, 75 L.Ed.2d 103 S.Ct. ute from size of cache. In United (1983) (affirming convictions of Cir.1982), Smith, (1st F.2d 255 pos denied, - U.S. -, cert. imported that it would be knowing sess (1983) (citing crewmember —found persons including — DeWeese, Cir.1980), vessel with twen board Panamanian laden coast of tons off the ty-three (1981), Alfrey, 188 Quesada-Rosa L.Ed.2d Florida); United States Cir.), denied, 449 (5th dal, (11th Cir.1982) (affirming F.2d 551 cert. 620 685 F.2d 1281 337, 938, 160 conspiracy possess 101 66 L.Ed.2d of to U.S. S.Ct. convictions relied on the seas and (1980), Cadena), high the First Circuit to distribute intent Amer set of found on board Alfrey persons factors that we forth possession on the running lights without affirmance de- vessel observed in its of the ican and DeWeese 756 Allen, Cir.1980), (9th southeast of Miami and found to 675 F.2d 1373 cert.

sixty miles 133, denied, 833, of 70 pounds marijuana); contain 5120 United 454 U.S. 102 S.Ct. 1359, Groce, (11th F.2d 1365 (1981), conspirators States v. 682 L.Ed.2d 112 were Cir.1982) of (affirming conspira- unloading convictions apprehended while marijuana cies to to had import possess a boat that boxes from Allen, with intent to distribute it within United the owner of spotted been offshore. persons fishing found on board States took property where the rendezvous forty boat miles off Florida Coast with to place, conspiracy was convicted of both pounds marijuana floating more than 100 with in import conspiracy possess to Diaz, nearby); in sea United v. Julio States distribute, defendants tent to and the other 1031, (11th Cir.1982) (affirm- 678 F.2d 1033 conspiracy. were convicted of the second ing conspir- convictions of crewmembers of convictions, Circuit Affirming Ninth on the seas acy possess high stated that the defendants’ attack on the with intent to distribute it where presence concerning in sufficiency of evidence large amount of contraband on board tent was baseless: “Personal obvious). 17,000 consumption pounds anything, marijuana, staggering propo much less is a Other circuits have followed ours in af disbelief, compel leaving sition sufficient to firming convictions of in persons allegedly commercial realistic only distribution volved in land-based conspiracies goal enterprise.” 675 F.2d at 1384.18 possess and to with intent to distribute. Laughman, United States v. 618 F.2d 1067 III. CONCLUSION. (4th Cir.), denied, 925, cert. 447 100 U.S. 3018, (1980),

S.Ct. 65 L.Ed.2d 1117 in Di- Supreme recognized As Court Sales, Fourth Circuit strength affirmed the convictions of rect of an inference of conspiracy possess with intent distrib of and in an illicit persons ute of goods involved in the transfer of based on the sale of conspiracy over two tons of from a conspirators dependent Colombi on the nature of an-type sailing vessel to vehicles on the waiting goods Today sold. we hold once concluded, land. The court reasonably stated that “the amount of on the jury marijuana involved ... estab sufficiently basis of factors described earlier in this lishes that there was an opinion, guilty intent to distrib the defendant was ute.” 618 F.2d at 1074 n. 4 (citing conspiracy import marijuana, it was enti- Villareal, States v. (5th Cir.), 565 F.2d 932 tled to infer from the involved quantity denied, 824, 92, cert. 439 99 58 guilty par- U.S. the defendant was also (1978)). L.Ed.2d 116 In United ticipation conspiracy possess DuFriend, foreign source); 18. See also United States v. 691 F.2d came from a (10th Cir.1982), denied, - U.S. -, 948 Prieskorn, Cir.1981) cert. (8th States v. 658 F.2d 631 820, (1983) (affirming 103 S.Ct. 74 L.Ed.2d 1017 (affirming possess convictions of conspiracies defendant’s conviction of to im cocaine with intent to distribute on the basis of port pounds marijuana in a small air large quantity period the involved); and extended of time plane it, and to with intent to distribute Boone, but see United States v. holding large quantity that evidence of a 609, denied, (8th Cir.), F.2d 611-12 cert. a controlled substance was relevant to intent to 129, (1981) U.S. 70 L.Ed.2d 109 distribute) (citing Paimere, United States v. Sales, (citing supra, Direct and United States v. (5th Cir.1978), denied, cert. 1976), Rojas, (5th Cir. cert. (1979)); 99 S.Ct. 59 L.Ed.2d 77 denied, 1061, 97 429 U.S. 50 L.Ed.2d Watkins, United States v. 662 F.2d 1090 jury proposition for the that “the Cir.1981), entitled to consider the size transaction (1982) (affirming convic in its determination of whether a scheme to tions of with intent to existed,” drugs expressing distribute the but washing distribute of crew members observed doubts “that one of these factors alone marijuana residue off decks of a vessel found permit would be sufficient to to find waterways, reversing on the intercoastal but guilty Boone distribute ille convictions of because drugs.”). gal government failed to demonstrate that the conspiracies may To there to it.19 doubt are some marijuana with intent held an Rodriguez described as a chain in which aptly the extent that Cadena be otherwise, link, an they are overruled. essential conspirator individual of de- he not have idea although may any conviction on both counts The defendant’s to the tails of scheme and be unknown is AFFIRMED. not this other That conspirators. some not WISDOM, ease. Here the United States did Judge, with whom RU- Circuit TATE, import, a massive venture to BIN, charge single Judges, POLITZ and Circuit distribute, sell, and as it in United did join, dissenting: Bruno, Cir., 921, rev’d 105 F.2d I the respectfully by I dissent. stand grounds, other on 308 U.S. There is panel decision. 501. The has 84 L.Ed. 257. indictment shred to not a of evidence the record counts, importation one separate two for show that Michelena-Orovio “possessed] distribution, the and another because for intent bales ... to distribute” the 365 separate two point conspiracies, facts to marijuana of the which carried vessel on to some the partici- least with of he served as a seaman. function as a His conspicuous the of whom pants, most marijuana seaman in the was to importing seaman Michelena-Orovio. on the anoth- delivery terminate of seas, vessel on distri- high any er the before of dealing problem with the difficult place. bution the contraband could take control, Congress chose to distin- narcotics sweep of the en banc and the opinion conspiring the crime of guish between reasoning im- implications overbroad its drugs in of 21 import controlled violation me to observa- pel following make the brief of con- and the-crime U.S.C. § tions. drugs such with intent spiring in violation of U.S.C. distribute them en not on the opinion banc rests the (1976). say is not to This evidence, a con- figure speech: § but on a of both guilty can never be same defendant conspira- is a chain and each spiracy single majority But the effect of the link. offenses. premise deceptively tor is a This is a section 963 overcoming is that a violation of to evidence decision appealing shortcut a of sec- notion entails violation automatically of innocence. The now presumption the basis for principal chain 846—whenever the the case is a tion the rests on question. accepts If conviction under section 963 begs one contra- person large a amount of premise, performing course each inference that to im- shows intent relating necessarily the contra- band seized handling function vessel Colombia, of seamen on the grower port part on band —from an infer- middleman, the contraband. purchaser, carrying first Such distribution, as to sequitur on the contra- ence is a non ship transporting crewmen a however, fails take into band, guilty down to the retailer —is because necessary for of intent conspiring “possess and to account element No of the crime. proof intent to distribute” contraband. any plan today holding

19. Our does not mean that rise to inference automatically Similarly, violation 21 U.S.C. will if B decided § its distribution. A and vice of 21 846 or entail violation U.S.C. grow § Louisi- two on their tons person conceivably guilty of versa. A could be farm, selling large quantities ana or if C being guilty of the oth- one without college campus, neither on his example, A had a For if crew member er. college drug nec- nor the farmers would dealer he not wish small amount of did essarily scheme. be involved ship when he visited to leave board States, 398, 90 See Turner v. United mem- if he convinced crew Conviction L.Ed.2d A went B distraction ber to create a while only conspiracies be would conceivable both might through inspection, both customs quantity large had ar- where import, but convicted of foreign source. from rived give quantity of contraband would small 758 case, may reasonably nary one infer rules of reason and 1 J. logic.” Wein- cargo knowledge

from the size of the Berger, stein & M. Weinstein’s Evidence part intent on the of the defendant to par- drawing The correct of an infer- § 300[01]. ticipate in import the con- ence “is upon logic experience, based traband. But that inference cannot do dou- Gausewitz, upon Presumptions not law”. ble duty and show as well intent to distrib- World, 324, a One-Rule 5 Vand.L.Rev. 327 ute when the defendant had no role play (1952). When there is no evidence that a deference, in distribution. I suggest With crew member had a stake in the distribu- case, that in the circumstances of this con- tion or an awareness of or interest sidering that especially Michelena-Orovio’s contraband, logical distribution of the role was to terminate on delivery joined inference is that the crew member high to another vessel on the a conspiracy import marijuana for deliv- seas, shores, 150 to 200 miles from our ery high to another vessel on the seas with- only rational inference that can be drawn is out any join intention to that the defendant did not intend play distribute. This especially ap- inference is part in any any ongoing dis- plicable to Michelena-Orovio because he tribute the marijuana. The distribution in lacked contacts with the United States. States, assuming United it was to stronger This case is even than Cadena be- place States, take in the United was to be parties cause here the stipulated handled by Judge others. As Alvin Rubin defendant, Cadena, unlike was not the cap- pointed out in United States v. Rodriguez: tain of the stronger vessel. It is than Rod- [Tjhere literally no evidence with riguez acquitted because defendants to the involvement of Martins the conspiracy to distribute in that case Smigowski of the four defend- [two were Americans who were more actively in a distribution scheme except ants] involved than in the con- Michelena-Orovio might what be inferred from their partic- spiracy were seamen on the ipation agreement in an it. receiving ship. The direct and circumstantial evidence The essence of conspiracy agreement

that they peripheral participants in knowingly entered into the parties. the importation refute, scheme does not of an agreement conspir to enter a beyond doubt, “[P]roof reasonable the hypothesis acy is not lightly to be inferred.” United no of a conspir- Johnson, Cir., 885, 888, acy to 439 F.2d distribute once it reached these shores. cert. denied sub nom. Golub United 880, 213, 404 U.S. Albernaz, Unlike Rodriguez and who L.Ed.2d 161 In Direct Co. v. perforce Sales had to arrangements make some States, 1943, 703, dispose treasure, of their Smigowski and Martins 87 L.Ed. on which the majority could each receive his reward relies, opinion and be done a drug with the manufacturer scheme.... [Pos- session of a large supply prohibited supplied large wholesaler had amounts of substance may justify the morphine sulphate inference that to a doctor several the possessor intended it, to distribute years. government charged the manu but there was no evidence that Smigow- facturer with conspiracy to distribute nar ski and Martins had sufficient dominion unlawfully cotics because the amounts of over or interest in to war- morphine supplied large were so rant the inference. manufacturer must have known that doctor was Cir.1978, distributing drug illegally. aff’d en The Court said: banc 612 F.2d aff’d sub nom. Abernaz States, 1981, When the evidence discloses such a sys- 67 L.Ed.2d 275. tem, working prolonged cooperation inference, “In the case of an physician’s purpose the existence with a unlawful of B may be deduced from A by the ordi- him with his stock in trade for supply (footnote obstacle Harv.URev. legal there enterprise,

illicit omitted). only finding supplier joins but both acquiesces, knows and Bell, Cir.1982, him to make its hand with mind and -, aff’d, banc), 1983, -U.S. (en step from The possible. accomplishment restated 76 L.Ed.2d and agreement to intent circuit on the in this standard of review suspicion, more than be taken. There is in a of the evidence criminal sufficiency acquiescence, care- knowledge, more than is whether “reasona case. That standard indifference, lessness, lack of concern. could ble trier of fact found] [have coopera- interested There is informed and guilt beyond a rea evidence established] tion, And there stimulation, instigation. at That articula Id. 549. sonable doubt”. which, in the venture” is also a “stake review appellate tion of the standard essential, is may not be not even if it eroded, it, the has nor could constitu conspiracy. question irrelevant doubt requirement tional reasonable at 87 L.Ed. at Judges I Anderson agree standard. sup- (footnotes emphasis omitted concurring “Judge Roney, specially: justifiably kinds of facts which plied). The sub opinion change does not Vance’s guilt inference of in Direct led an Sales law this circuit with stantive here. singularly lacking are sufficiency the standard of review for of in hypothesis evidence .... [.I]f The one inference to do use of dubious suffi sufficiently nocence is reasonable and duty double for two different crimes under- strong, then a trier of ciently reasonable of innocence due an presumption mines the entertain a reasonable necessarily fact must factfinding accused and interferes with the I see Id. at 550. As guilt.” doubt about process. case, strong hypothe this there was such a problem permissive The infer- key limit sis intended to that Michelena-Orovio abstract a ences is that isolate and job in trans his activities to his seaman’s single complex circumstance from the vessel to another porting circumstances any given in presented neces trier of fact must that a reasonable case, fact, and, proof of that isolated he doubt that sarily entertain a reasonable authorize an of some other fact inference possessing the guilty of the crime of beyond doubt. Conviction is reasonable it in distributing with the intent of drug by inference in permissive authorized States. predicate all fact ap- cases which pears, though even correlation be- contrary I advocate is not position predicate tween the fact and the element drug objectives enacting congressional perfect. to be inferred less than Per- is in this culprits The real legislation. control permit juries missive inferences thus cases, case, similar are many as assessing myriad facts which avoid arrange- who made ringleaders American as specific unique. Analysis, make cases in Colom- grower ments with the broker demonstrate, Supreme Court opinions arranged for unquestionably bia and pursued drawn to The thesis likelihoods. purchase, and distribution transportation, here is that structure which reduces are country. They guilty simplified criminal cases to a assessment to distribute and might called of what be the “chances as well. But Mi- perhaps conspiracies other fundamentally with the guilt” at odds sea- chelena-Orovio, lowly Colombian doubt, and hence to concept reasonable to im- edge man on the discouraged determining as a mode of expe- twice port, punished should not be question the ultimate or inno- guilt inference to an adding a tenuous diently cence. has majority attenuated inference. figure speech Nesson, alluring succumbed an Reasonable Doubt and Permissive as facts and reason. Inferences: The a substitute for Complexity, Value

Case Details

Case Name: United States v. Levino Michelena-Orovio

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Oct 31, 1983

Citation: 719 F.2d 738

Docket Number: 81-3706

Court Abbreviation: 5th Cir.