# United States v. Freeman > Court of Appeals for the Fifth Circuit · November 12, 1981 · 660 F.2d 1028 URL: https://www.frixlaw.com/law-library/cases/8914044 ## Case - **Full name:** United States v. Jack Wayne FREEMAN, Moses Taylor Millis, Keith Allen Keesling, and Clifford Wayne Bennett - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** November 12, 1981 - **Citations:** 660 F.2d 1028 - **Precedential status:** Published - **Opinion:** Concurrence by Godbold - **Judges:** Godbold, Hill, Tuttle - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8914044 ## Opinion text GODBOLD, Chief Judge, specially concurring: I concur in the result but only because I am bound by unfortunate language in U. S. v. DeWeese, 632 F.2d 1267 (5th Cir. 1980), that is the basis for the decision in this case. DeWeese was handed down a month and a half after this case was argued. It states, relying on U. S. v. Alfrey, 620 F.2d 551 (5th Cir. 1980), that if a vessel is caught with marijuana aboard the presence of three factors will make out a prima facie case of conspiracy between captain and crewmen to import: a long voyage, a large quantity of marijuana on the vessel, and a “necessarily close relationship” between captain and crew members. The DeWeese language sweeps too broadly. The third factor, the close relationship between captain and crew, will always be present because captain and crew are neces *1038 sarily thrown together by arrangements for eating and sleeping and for working a small vessel. Until DeWeese is corrected every officer and every crewman on every fishing and shrimping boat that makes a “long voyage” (here ten days) in the Gulf or Atlantic is now prima facie a conspirator if a large quantity of contraband is found aboard the vessel. The same will be true of all officers and crew on recreation and pleasure craft. DeWeese should be overruled. Alfrey should be overruled or clarified so that no other panel will put on it the construction suggested by the majority in this case. DeWeese is wrong because, first, it is inconsistent with our prior jurisprudence concerning the sufficiency of evidence permitting an inference that a defendant has joined in a conspiracy that is going on in his presence and of which he has knowledge. Second, it misreads Alfrey . Turning first to our prior jurisprudence, under familiar standards we review the evidence in the light most favorable to the government, together with the reasonable inferences that may be drawn therefrom. When the evidence of the defendants’ knowing participation in the conspiracy is circumstantial we must decide “whether the jury could reasonably, logically, and legally infer from the evidence presented that [defendants were] guilty beyond a reasonable doubt” (citations omitted), or, put another way, “could the jury reasonably find that the evidence was inconsistent with every hypothesis of innocence?” U. S. v. Littrell, 574 F.2d 828, 832 (5th Cir. 1978). In drug conspiracy cases under 21 U.S.C. § 963 it is not necessary that an overt act be charged or proved but only that the defendant knowingly participated in the conspiracy. E. g., Littrell, at 832. “[M]ere presence, association, acquiescence, or approval without more is not sufficient to establish that a defendant is a member of a conspiracy.” U. S. v. Macker, 608 F.2d 223, 227 (5th Cir. 1979). “[T]here must be proof beyond a reasonable doubt that a conspiracy existed, that the accused knew it and, with that knowledge, voluntarily joined it.” U. S. v. White, 569 F.2d 263, 267 (5th Cir.), cert. denied, 439 U.S. 848 , 99 S.Ct. 148 , 58 L.Ed.2d 149 (1978). “Proof of an agreement to enter into a conspiracy is not to be lightly inferred.” White, 569 F.2d at 267 . We have now rejected the rule we formerly followed that once there is evidence establishing the existence of a conspiracy only slight evidence is necessary to connect a defendant with it, and we now follow the rule that there must be substantial evidence of that connection. U. S. v. Malatesta, 590 F.2d 1379 (5th Cir.) (en banc), cert. denied, 440 U.S. 962 , 99 S.Ct. 1508 , 59 L.Ed.2d 777 (1979). The DeWeese formulation is, of course, correctly directed toward whether there is evidence from which it can be inferred that an officer or crew member had knowledge of a conspiracy in progress on the vessel. But knowledge is not participation in the conspiracy. Without more, the three factors are not sufficient basis to permit an inference that persons on the vessel have joined in the conspiracy as participants. In this case the jury could, of course, infer that a conspiracy existed involving DeWeese, the radio spokesman, and the persons who unloaded the delivery vessel and loaded the Cowboy. But there is not sufficient evidence that any member of the Cowboy’s crew joined in this conspiracy. I have attached as Appendix A a description of DeWeese’s testimony in this case. He was the key witness for the government, and he testified during the case in chief. The defendants did not testify. No witness other than DeWeese gave testimony tending to show participation by the defendants in a conspiracy other than testimony describing the presence of the defendants on the Cowboy and the fact that none of them asserted innocence when the Coast Guard boarded. In numerous vessel cases the courts have relied upon several kinds of evidence that, when added to the DeWeese factors, carry presence and knowledge over the line to joining in the conspiracy: —Evidence tending to show that before the voyage the defendants had agreements or conversation about going on a marijuana venture or had been on such a voyage before. *1039 —Evidence that after the voyage began there were negotiations or agreements between defendant and co-conspirators concerning joining in the venture. —Evidence that the vessel had as its known destination a usual source of marijuana. —Evidence that a defendant received, or made a bargain for, drug transaction money- —Evidence that a defendant helped to load the marijuana, to handle it once it was aboard the vessel, to clean up after loading, or to participate in unloading. —Lack of fishing or shrimping gear. —Maps and charts on which incriminating marks appeared. 1 —Evidence that a defendant either set or selected a course for the vessel. —Evidence that a defendant participated in evasive action, flight, throwing of marijuana overboard, or the like. —Evidence that the vessel went into a port or mooring at which the defendant might have jumped ship. DeWeese , and now this case, make such additional evidence unnecessary. Second, DeWeese misreads our decision in Alfrey . Defendants Alfrey and Haight were crewmembers aboard a 70 foot trawler entering Tampa Bay and loaded with marijuana. During night hours the trawler engaged in a suspicious series of maneuvers and events involving two smaller boats, one of which was operating without lights and with its windshield covered. In reviewing sufficiency of the evidence we held: The jury could have reasonably concluded that appellants Alfrey and Haight sailed as crew members from Colombia, South America to their point of capture within Tampa Bay in a vessel laden with over 19,000 pounds of marijuana. That conclusion and the highly suspicious events of the night of the capture could logically lead the jury to conclude that Alfrey and Haight imported marijuana into the United States, possessed marijuana with intent to distribute it and conspired to ' commit these two substantive offenses. 620 F.2d at 555 . Also we held: In this case the probable length of the voyage, inferable from the proximity of the border and the documentary evidence, the large quantity of marijuana on board, which made it undisputable that Alfrey and Haight had knowledge of the marijuana, and the necessarily close relationship between the captain of the trawler and his two man crew were factors from which the jury could reasonably find guilt beyond a reasonable doubt. See United States v. Christian, 505 F.2d 94, 96 (5th Cir. 1974), finding such inference from a similar fact situation. Id. at 556. Reading together the language quoted above from p. 555 and that from p. 556, it appears that the court held that the evidence permitted an inference that the conspiracy was operative in Colombia when the boat sailed from Colombia with defendants and marijuana aboard. The “three factors” discussed at 620 F.2d 556 are necessarily limited by the “beginning of the conspiracy” facts discussed at p. 555. Moreover, the Alfrey court appeared to be of the view that Alfrey and Haight were participants in the highly suspicious events that occurred on the night of capture. DeWeese disregarded these additional factors and only relied upon the three-factor language appearing at p. 556. The evidence does not permit the jury to draw the inferences that Alfrey, at p. 555, held could be drawn in that case. For example, it does not support an inference that crewmembers of the Cowboy were participating in a conspiracy when the vessel departed Tarpon Springs. The jury could not infer that the crew even knew of a conspiracy at that time or even knew where the vessel was bound. All that the evidence showed as of the place and time of embarkation was that seamen, some of whom knew each other and knew the captain and some of whom had been on one previous voyage together with the captain, left port *1040 in a shrimp boat rigged for shrimping and commanded by Captain DeWeese. The facts necessarily relied upon to permit an inference that the crew joined a conspiracy at a later time and place were facts about subsequent events — length of voyage, quantity of marijuana, and close association with the captain. In n.l, as an alternative ground of decision, Judge Hill attempts to find factors in the present case that are analogous to those mentioned in Alfrey at p. 555 . But his primary ground of decision is that the “three-factor test” drawn by DeWeese from p. 556 of Alfrey is enough. Of course, as noted by Judge Hill, the jury could accept DeWeese’s inculpatory testimony and reject his exculpatory testimony. The issue is whether the inculpatory testimony is sufficient to escape a motion for judgment of acquittal. But for the unfortunate language in DeWeese the inculpatory evidence would not be sufficient. DeWeese had not been decided when this case was briefed and argued. It is not without significance that in brief and oral argument the government did not contend for the grudging reading of Alfrey that this court, a month and a half later, gave in DeWeese . Rather the government contended that the evidence was pushed over the line of sufficiency by the crew’s usual performance of duty and their failure to mutiny, take to the lifeboats, or radio the Coast Guard. Thus, the evidence that the government urged made it possible for the case to be submitted to the jury was later held by this court to be not even necessary. APPENDIX A DeWeese is a resident of Marathon, Florida, in the Florida Keys, as are the four defendants. He is an experienced commercial fisherman and owns a commercial lobster and crab fishing boat. He had been shrimping 10 to 12 times, sometimes as captain and other times as crew. In March 1979 he served as captain of the Cowboy, a new 88-foot vessel, on a shrimping voyage on which the crew consisted of his son and defendants Millis, Keesling and Bennett. Before this March voyage DeWeese knew Millis and Bennett on sight. This voyage was discontinued when the Cowboy’s radio transmission equipment failed. Between March and May 1979 the Cowboy made three or four shrimping voyages on which Keesling, Bennett and Freeman served as crew but with a different captain or captains. Around May 1979 DeWeese was contacted by the owner of the Cowboy, who had arranged for him to take the vessel out in March, and asked if he wanted to take the boat out again. DeWeese agreed. DeWeese asked Millis, who had been on the March voyage, to be a member of the crew. The two of them flew together from Marathon to Tampa in the private airplane of a friend with whom they were able to get a ride. DeWeese and Millis went to Tarpon Springs, north of Tampa, where the Cowboy was docked. When they arrived the boat was already fueled and filled with ice and had aboard most of the groceries necessary for a two-week trip. Defendants Keesling, Bennett and Freeman were already on board from the Cowboy’s last voyage (some may have been temporarily off getting groceries), and their belongings were on board. It was agreed that Freeman would be the cook. Millis had served as captain on other vessels and could assist in navigating. Keesling was to act as engineer. The Cowboy was equipped with shrimp nets and with baskets for handling shrimp. The Cowboy left Tarpon Springs on May 4 and headed toward the Dry Tortugas to go shrimping. On route to the Tortugas while standing the 4:00 a.m. to 8:00 a.m. watch, around 4:30-5:00 a.m., DeWeese was playing with the radio and received a call from another vessel that he had not heard of before, calling the Cowboy by name. After several calls he answered. The caller identified himself by name and asked if DeWeese was interested in making money, more than he could make shrimping. After thinking the matter over for a while DeWeese received a second call and replied affirmatively. He was instructed to travel 200 miles to the Rosario Banks, approxi *1041 mately 140 miles due west of the Cayman Islands, and there the Cowboy would be loaded with marijuana. DeWeese told the caller he was afraid to do this, and the caller replied that there was no danger because the Cowboy would not be going back to the United States with the cargo. Later DeWeese informed the caller by radio that the Cowboy was proceeding to the Rosario Banks. The vessel headed for the Rosario Banks. About noon that day Freeman asked where they were going, and DeWeese told him they were not going shrimping but to get a load of marijuana. Freeman passed the word to other crewmembers and later in the day DeWeese talked to all of them. Millis and Freeman came to the wheelhouse and expressed concern, and DeWeese told them “that’s where I was taking the boat.” They “were worried about the fact where the boat was going.” DeWeese told them that they would not be going into American waters. Bennett and Keesling also expressed their concern. It took two days to reach the Rosario Banks. During that time each crewmember took his watches. Freeman cooked and Keesling gave the engine such attention as it needed. After the vessel anchored at the Rosario Banks the same voice as before called on the radio and talked to DeWeese, who was alone on the bridge. DeWeese could not say whether the radio was loud enough for the crewmembers to overhear. The voice instructed DeWeese to travel to the Serrano Banks, some 200 miles away and off the coast of Nicaragua. DeWeese informed the crewmembers of this. Again they expressed concern. Freeman said “I’ve got a wife and children,” and expressed concern that they might be stopped. DeWeese again explained that the boat would not be coming to the United States. Freeman was still concerned and said he did not think it was a good idea. Millis was “about the same mind” as Freeman. Freeman and Millis did most of the talking. The vessel proceeded to the Serrano Banks and anchored for two days. A radio message was received that a vessel would rendezvous with it. When the other vessel arrived DeWeese and Millis threw a line to it and tied the two vessels together. A man boarded the Cowboy from the other vessel and identified himself as the radio spokesman. He and DeWeese met alone in the wheelhouse of the Cowboy. They negotiated an arrangement under which DeWeese would be paid $150,000 to deliver the load of marijuana to a point approximately 13 to 14 miles off the coast of Mexico. DeWeese was instructed how to signal to two boats that would meet him and unload the marijuana. Eight crewmembers from the other vessel loaded the Cowboy with bales of marijuana. They brought it aboard, put it in the hold, and stacked it. The defendants watched the loading operation. None of them handled the marijuana in any fashion. None cleaned up any debris left from the loading. DeWeese received no money. When loading was complete DeWeese and Millis covered the hatches with plastic bags. The Cowboy weighed anchor, departed, and entered the straits of Yucatan. Throughout the voyage crewmembers brought up how they would be paid since they were not shrimping, but DeWeese refused to discuss money with them. DeWeese explained his command of and control over the crew as follows: Q Were they refusing any directions that you were giving them? A Not refusing, no. Q So when you told somebody to lay anchor, they would do that? A Yes, sir. Q —Weigh anchor? A Yes, sir. Q When you told somebody to stand watch, they would stand watch? A Yes, sir. Q Nobody said, “No, I don’t want anything to do with this?” A They better damn well have not said that. Q Well, what would you have done, Mr. DeWeese? — -With no gun? [Objection made and overruled.] A I would have ordered the man to his sleeping quarters to stay there. Q (By Mr. Cowen) If all four of ’em had told you, “I don’t want anything *1042 to do with this," then what would you have done? A We would have set there on anchor ’til the boat rusted out, I suppose. It takes a crew to operate a boat, Mr. Cowen. It takes at least two members plus the ' captain merely to operate the Cowboy while cruising and not fishing. The vessel was operated most of the time on automatic pilot. DeWeese made all changes in course. Throughout the voyage the crew performed their usual duties. Some helped put out the anchor, or weigh anchor, at the various places where the Cowboy went. When the Cowboy was anchored at Serrano Banks, Millis notified DeWeese that someone was on the radio. DeWeese and the crewmembers worked, slept and ate in close proximity to each other on the Cowboy. The defendants’ sleeping quarters were immediately adjacent to those of DeWeese. DeWeese would usually sleep four to six hours per day. He had no weapon on the vessel. . There were such charts in this case but no evidence connects any of the defendants with them by fingerprints, markings or by use of them in usual duties. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8914044. Public record. Not legal advice.