United States v. Soto

591 F.2d 1091
CourtCourt of Appeals for the Fifth Circuit
DecidedMarch 22, 1979
DocketNo. 78-5065
StatusPublished
Cited by56 cases

This text of 591 F.2d 1091 (United States v. Soto) 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. Soto, 591 F.2d 1091 (5th Cir. 1979).

Opinion

JAMES C. HILL, Circuit Judge:

This appeal is from judgments of conviction entered against the appellants after a jury trial. Each of the fifteen appellants was accused and convicted of conspiring to import marijuana into the United States in violation of 21 U.S.C. § 963 (Count I); conspiring to possess marijuana with intent to distribute in violation of 21 U.S.C. § 846 (Count II); actual possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count III); and actual importation of marijuana in violation of 21 U.S.C. §§ 952(a) and 960(a)(1) and 18 U.S.C. § 2 (Count IV). Appellant Quintana was sentenced to imprisonment for concurrent terms of four years and received concurrent special parole terms of two years on each count. The other fourteen appellants were each sentenced to imprisonment for concurrent terms of three years and received concurrent special parole terms of two years on each count.

The issues on appeal are: (1) whether the District Court properly denied Sosa’s and Villalba’s motions to suppress evidence of the marijuana found in the vans they were driving; (2) whether samples of marijuana, taken from bales which were randomly selected from the total amount confiscated, were properly admitted into evidence; (3) whether there was prejudicial variance between the crime charged in the indictment and the proof adduced at trial; (4) whether the District Court properly denied the motions for mistrial made by thirteen of the appellants when counsel for Alvarez and Alvila made certain statements in his closing argument; and (5) whether the convictions are supported by sufficient evidence. We find no merit in the appellants’ first four arguments, but we find the claim that there was insufficient evidence meritorious with regard to all four counts in the cases against Quintana and Rivero and with regard to the two importation counts in the cases against the thirteen other appellants. Hence, we reverse the convictions on all four counts against Quintana and Rivero, reverse the convictions on the two importation counts against the thirteen other appellants, but affirm the convictions on the two possession counts against those same thirteen.

I. The Facts

The facts, considered in the light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), reveal the following pattern of events. The raid during which the appellants were apprehended was the result of two weeks of surveillance conducted by Customs Patrol Officers, with the assistance of Lee and Collier County officers, on two beach houses in Bonita Springs, Florida. On the night of the arrests, July 11, 1977, four groups of officers were participating in the surveillance. Two officers were stationed two to three miles south of the beach houses in a Winnebago, referred to as the command post, which was equipped with marine radar; they were monitoring the Gulf of Mexico in order to detect boats headed north to the area off the shore of the beach houses. Three officers were stationed approximately one hundred and fifty yards north of the two beach houses and were positioned at the edge of the beach so that they could observe activity in the beach area behind the houses; they were in radio contact with two more officers in a backup assistance vehicle one block up the street. The third group consisted of some five officers who were in two boats in the Gulf of Mexico in the area near Bonita Springs; they were assigned to monitor visually any suspect boats picked up on the marine radar. The final group was composed of about five officers who were in the general area of the beach houses or on the roads leading to and from that area; they were observing general activity in the area, including motor vehicle traffic.

Upon arriving at the Winnebago command post at approximately 10:00 p. m. on July 11, 1977, Officer Martinez noticed on the horizon in the Gulf of Mexico lights of what appeared to be a large vessel heading [1095]*1095north. After turning on the radar, he located a solitary “blip” on the radar screen which corresponded with the position of the lighted target that he could observe with his naked eye. The object was approximately three miles out to sea and moving in a northerly direction. The object continued to move north for some thirty minutes, during which time its lights were extinguished, and then it remained stationary for about one hour at a position approximately two miles off the coast where the beach houses were located. At this point, about 11:80 p. m., Martinez notified the beach house surveillance group of the target’s sustained position near them and also advised the group in the two boats of his observations and directed them to the area of the target. He and Officer Kranz then left the command post and drove in separate vehicles toward the beach houses.

In the meantime, one of the officers in the vicinity of the beach houses had also made an observation of traffic attributable to the beach houses. Officer Tomlinson had observed, sometime between 10:00 p. m. and midnight, a red van turn onto Bonita Beach Road, the road which leads to the two beach houses, and proceed west toward the beach and the area of the houses. He had also observed a light colored van, described as beige or light yellow, parked at one of the two beach houses where he had been informed a large marijuana drop would be made.

As Officers Martinez and Kranz drove west down Bonita Beach Road toward the two surveilled beach houses at about 12:15 a. m. on July 12, 1977, they saw two vans, one behind the other, coming from the direction of the beach houses and heading east. Officer Kranz noticed that one was red and the other was tan and that they appeared to be carrying heavy loads. Since the vans were spotted on the only road leaving the area where the marijuana drop was thought to be occurring, he concluded that the vans could well be involved and issued a “BOLO” (“be on the lookout”) request that the two vans be stopped for investigation. Martinez and Kranz then positioned themselves down the street from the beach houses and waited to hear from the surveillance group on the beach.

The officers on the beach had arrived at their station, one hundred and fifty yards north of the beach houses, at about 9:30 or 10:00 p. m. on the evening of July 11, 1977. They had immediately observed a man at the edge of the water about fifty yards north of them. He was holding a fishing rig known as a Cuban Yo-yo and a hand-held radio, but the officers saw no other fishing equipment or fish. The “fisherman” was talking into the radio, looking up and down the beach, and, periodically during the evening, walking back and forth between the woods behind the beach and the water.1 At approximately 12:45 a. m. in the early morning of July 12, 1977, the officers heard boats offshore.

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Bluebook (online)
591 F.2d 1091, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-soto-ca5-1979.