United States v. Jose Luis Suarez, Carlos Rafael Calleja and Delio Eloy Marin

608 F.2d 584, 1979 U.S. App. LEXIS 9622
CourtCourt of Appeals for the Fifth Circuit
DecidedDecember 17, 1979
Docket79-5085
StatusPublished
Cited by27 cases

This text of 608 F.2d 584 (United States v. Jose Luis Suarez, Carlos Rafael Calleja and Delio Eloy Marin) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Jose Luis Suarez, Carlos Rafael Calleja and Delio Eloy Marin, 608 F.2d 584, 1979 U.S. App. LEXIS 9622 (5th Cir. 1979).

Opinions

FAY, Circuit Judge:

A jury convicted the three defendants of conspiring to import and to possess marijuana with intent to distribute in violation of 21 U.S.C. §§ 846 and 963. The defendants now claim there was insufficient evidence of their guilt to justify submission of the case to the jury. Our review of the evidence convinces us that a reasonable jury could find these defendants guilty beyond a reasonable doubt. We therefore affirm their convictions.

[585]*585THE FACTS

On the afternoon of June 17, 1978 two commercial fishing boats, the Southern Star and the Last Dime, came across the Silver Queen, a vessel in distress approximately fifteen miles offshore in the Gulf of Mexico. The passengers on the Silver Queen — defendants Jose Suarez, Carlos Calleja, and Delio Marin, and an unidentified female1 —flagged down the Southern Star and said they wanted to get off the Silver Queen because it was sinking. Captain John Kahle of the Southern Star notified the Last Dime that he was aiding a vessel in distress, and the Last Dime relayed this information to the Coast Guard. Meanwhile, the Silver Queen passengers boarded the Southern Star, bringing with them a Loran navigational instrument and two attache cases. Captain Kahle informed the defendants that the Coast Guard had been called; then, out of concern for his boat and his charter, he suggested that the defendants reboard the Silver Queen.2

After spending a few minutes aboard the Southern Star, the three defendants re-boarded the sinking Silver Queen and took off in a southeasterly direction, leaving behind their female passenger and the safety of the Southern Star and the Last Dime. Some time after the Silver Queen’s departure, the captain, mate, and two passengers from the Southern Star observed persons on board the Silver Queen throwing “bales” or “rectangles” overboard into the water. The testimony presented by the government indicates that the Southern Star was between one hundred and several hundred yards away from the Silver Queen when the jettisoning of the “bales” was observed. None of the four witnesses from the Southern Star was able to identify any one particular defendant throwing bales off the Silver Queen, and none testified to seeing any bales of marijuana on board the Silver Queen while it was in close proximity to the Southern Star.3

The individuals aboard the Southern Star continued to watch the defendants discharge bales into the water until the Silver Queen was out of sight. Several minutes later a Coast Guard helicopter arrived in the vicinity of the Silver Queen. The helicopter pilot observed the vessel come to a sudden stop, and he noted clusters of bales floating in the water about a mile behind the Silver Queen. When two Coast Guard cutters arrived on the scene two hours later, the bow of the Silver Queen was partially submerged and the defendants were seated on the cabin rooftop. One of the cutters took the defendants on board while the other cutter picked up the floating bales of what was later determined to be marijuana. After the Silver Queen was evacuated, a Coast Guard officer boarded the vessel to salvage gear and possible evidence, but he returned to the cutter when he observed water coming up into the cabin. In the few minutes he spent on the Silver Queen, the officer found no evidence that any marijuana had been on board.4 An unsuccessful attempt was made to tow the Silver Queen, which subsequently sank.

Once aboard the Coast Guard cutter, defendant Calleja identified himself as captain of the Silver Queen and related that the defendants had been fishing when heavy seas cracked the keel of the boat, which then began to take on water. When a bale of marijuana was placed near him on the Coast Guard cutter, Calleja indignantly asked if the Coast Guard was trying to [586]*586frame the defendants by saying the bale came from the Silver Queen.5

The three defendants were taken to the Middle District of Florida, where they were arrested, indicted, tried and convicted of conspiracy to import marijuana and conspiracy to possess marijuana with intent to distribute it.

THE LAW

The defendants in this case argue that the trial court erred in denying their motion for judgment of acquittal based on insufficiency of the evidence. In reviewing the denial of such a motion in a criminal case based on circumstantial evidence, our task is to determine whether, taking the view most favorable to the government, reasonable minds could conclude that the evidence is inconsistent with any hypothesis of the accused’s innocence. United States v. Edwards,, 488 F.2d 1154, 1157 (5th Cir. 1974). The test is not whether the trial judge or the appellate judge concludes that the evidence fails to exclude every reasonable hypothesis of innocence, but rather whether the jury might reasonably so conclude. United States v. Smith, 493 F.2d 24, 26 (5th Cir.), cert. denied, 419 U.S. 856, 95 S.Ct. 101, 42 L.Ed.2d 88 (1974).

We first consider the defendants’ claim that the evidence did not exclude every reasonable hypothesis of innocence as to whether the marijuana found floating in the Gulf of Mexico and recovered by the Coast Guard was in fact previously on board the Silver Queen. None of the government’s witnesses testified to seeing any marijuana on board the Silver Queen, and no residue was found on the boat. We find, however, that the testimony that defendants were observed throwing rectangular “bales” in the water, coupled with the proximity of the bales to the Silver Queen and the absence of any in the water prior to the defendants’ activities, provide sufficient evidence from which a jury could reasonably conclude that there was marijuana aboard the Silver Queen.6

Counsel for the defendants conceded at oral argument that if forty-seven bales of marijuana were on board the Silver Queen, it would be reasonable to conclude that any individual on board would have had to know of its presence. With this concession in mind, we turn to defendants’ claim that the evidence was insufficient to connect any one defendant to the alleged conspiracy. Defendants contend that the government failed to present evidence of an agreement between two or more of them to act together in committing the offense charged. They also cite the absence of any showing that the bales were thrown overboard with the knowledge that such an act was in furtherance of the alleged conspiracy. We find the defendants’ arguments unpersuasive.

To achieve a conviction for conspiracy, the government has the burden of proving an agreement among the three defendants, the intended purpose of which is a violation of United States law. The essence of conspiracy is agreement. United States v. Conroy, 589 F.2d 1258, 1269 (5th Cir. 1979).

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Bluebook (online)
608 F.2d 584, 1979 U.S. App. LEXIS 9622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jose-luis-suarez-carlos-rafael-calleja-and-delio-eloy-ca5-1979.