United States v. Lopez-Llerena

721 F.2d 311, 1983 U.S. App. LEXIS 14432
Procedural entryThis page is a short order in United States v. Lopez-Llerena. Read the opinion of the Court — 721 F.2d 311
Court of Appeals for the Eleventh Circuit·Decided December 16, 1983·No. No. 82-5916·Published

Opinion

PER CURIAM:

A panel of this court affirmed the appellants’ convictions pursuant to Circuit Rule 25, relying on United States v. Blasco, 702 F.2d 1315 (11th Cir.1983). The appellants have filed a petition for rehearing and a suggestion for rehearing en banc, contending that the affirmance of their convictions is in conflict with this court’s subsequent decision in United States v. Pintado, 715 F.2d 1501 (11th Cir.1983). We disagree and deny the petition for rehearing.

Like the appellants in this appeal, the defendants in Blasco and Pintado challenged the sufficiency of the evidence for their convictions under 21 U.S.C. § 846 of conspiracy to possess marijuana with intent to distribute. Both Blasco and Pintado were decided on the principle that although presence and flight alone are insufficient to establish that the defendant was a member of the drug conspiracy, a reviewing court must consider the totality of the circumstances, including the facts of presence and flight, to determine “if there is substantial evidence to support [the jury verdict] when the facts are viewed in the light most favorable to the government.” United States v. Blasco; 702 F.2d at 1331-32 (quoting United States v. Davis, 666 F.2d 195, 201 (5th Cir. Unit B 1982))1 United States v. Pintado, 750 F.2d at 1503. This standard of review complies with our holding in United States v. Bell, 678 F.2d 547 (5th Cir. Unit B 1982) (en banc), aff’d on other grounds, — U.S. —, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983):

It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt. A jury is free to choose among reasonable constructions of the evidence. 678 F.2d at 549.

In Blasco, we found that the totality of the circumstances would have allowed a reasonably cautious jury to conclude that the appellants were involved in a drug conspiracy. The off-loading operation had taken place early in the morning at a secluded setting, and the agents had testified to the noise of the operation and the heavy smell of marijuana. The panel found that “it strains the imagination that these appellants were not aware of the off-loading taking place on the dock outside the house,” 702 F.2d at 1332, and concluded that a jury could have found beyond a reasonable doubt [313]*313that the defendants were guilty. Id. Blas-co thus did not overrule our prior cases in this area, but simply brought them into accord with the Bell decision.2

In Pintado, a review of the totality of the circumstances led to a reversal of the defendant’s conviction. Agents testified that at 1:40 a.m. “about six” persons were seen quickly and silently unloading large bundles from a boat docked behind the house. Customs officials approached in a car with lights flashing and announced “U.S. Customs.” Two individuals were apprehended outside; the rest fled into the house. Three males and a female were arrested downstairs. Pintado was discovered hiding in a closet after officers forced open a locked bedroom door upstairs. A total of seven persons were arrested. Although at trial Pintado claimed that he had been sleeping during the off-loading operation and was unaware of the events outside, he was wearing a pair of pants and a shirt when found.

This court found that the jury could have reasonably rejected the defendant’s claim that he was sleeping, but that there was no other evidence besides his presence and hiding to infer that he was a member of the conspiracy. The operation had been carried out silently and the marijuana had been placed in a garage that was not visible from the room where the appellant was discovered. Several sets of damp and dirty clothing were found downstairs; the government, however, did not show the number or sizes of the clothing or in any way connect the clothes with Pintado. Furthermore, the government was unable to correlate the number of individuals arrested and indicted with the Customs official’s observations of the number of people involved in the unloading process. The official estimated that “about six” persons were involved, but admitted that he could not tell whether four, five, six, seven or some other number of individuals were actually present.3

Unlike Pintado, a review of the totality of the circumstances in this case demonstrates that the jury could have found beyond a reasonable doubt that the appellants were involved in the drug conspiracy. Two agents, one using a star scope, observed from one hundred feet away the separate unloadings of the SUNSHINE and the ODETTE, each time counting eleven individuals forming a line to pass the bales from the boat up to the house.4 Around 2 a.m., law enforcement officers moved in for the arrest with sirens and lights flashing, and the eleven individuals scattered. A DEA helicopter appeared minutes later, hovering overhead with its landing lights on.

The officers observed the various individuals as they fled to several areas. The first four arrested were found hiding in a cluster of sea grapes. The officer with the star scope had watched them jump a fence and take cover. Three individuals were seen running up the outside stairs to the upper level of the house and were apprehended after a search of the house; no one else was found in the house or seen escaping. Three other appellants were arrested after being observed running towards a fence near the canal; one was found swimming in the canal (although the night was very cold) and two hiding under a rock ledge. The [314]*314last defendant was discovered hiding under the dock after an agent had seen him disappear into the shadows of the ODETTE. The first arrest occurred within four minutes of the commencement of the raid; the last arrest took place approximately ten minutes later.

The appellants argue that reasonable doubt existed because the officers conceded that they could not be sure that no one had escaped and because there was evidence that other individuals had been present.5 One of the three defendants found upstairs also testified at trial that they had been watching television during the unloading, unaware of the events going on in the back yard.

Viewing the evidence as most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), we find sufficient evidence beyond the appellants’ presence and flight to support the convictions.

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United States v. Lopez-Llerena, 721 F.2d 311, 1983 U.S. App. LEXIS 14432 (11th Cir. 1983).

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Related

Glasser v. United States
315 U.S. 60 (Supreme Court, 1942)
Bell v. United States
462 U.S. 356 (Supreme Court, 1983)
Murray Stein v. Reynolds Securities, Inc.
667 F.2d 33 (Eleventh Circuit, 1982)
United States v. Nelson Bell
678 F.2d 547 (Fifth Circuit, 1982)
United States v. Alberto Pintado
715 F.2d 1501 (Eleventh Circuit, 1983)
United States v. Blasco
702 F.2d 1315 (Eleventh Circuit, 1983)