# 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/8914045

## 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 Tuttle
- **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/8914045

## Opinion text

TUTTLE, Circuit Judge,
concurring specially:
I concur in the result only. Like Chief Judge Godbold, I do so only because I am unable to distinguish this case from DeWeese as to the existence of the three factors found there to be sufficient to take such a case to the jury. We are, of course, bound by the DeWeese case as a binding precedent. It can be overruled only by an en banc decision of this Court.
Along the lines suggested by Chief Judge Godbold, I present a hypothetical ease which I believe most Judges of this Court would say should not go to a jury. Suppose a shrimping boat captain enlisted from the docks of Tarpon Springs a young non-English speaking youth to go with him on a shrimping trip for 10 days; the crewman inspects the vessel and finds it fully equipped for the purpose, with nets, refrigeration, stores, etc. and he signs on. The vessel departs and unknown to the crewman it ends up at the Rosario Banks where it is loaded, without any help by him, with several tons of marijuana. The seaman now has no choice but to continue his crewman’s duties, jump overboard or mutiny against a captain and crew of four older men, all of whom may be armed; his sleeping quarters are of necessity close to the others as are his other relations.
Such a crewman would have to choose to take the stand and testify to these facts and depend upon the jury to acquit him, or stand helpless once the government had made its proof of length of voyage, quantity of marijuana and closeness of relationship. By specifying the three “factors from which the jury could reasonably find guilt beyond a reasonable doubt” this Court has placed almost an absolute burden upon a defendant to take the stand to prove the innocence of his presence on the boat.
It may be said that this is an extreme case, but from the record before us, it is not farfetched as compared with the facts dealing with the predicament of some of these appellants when they discovered that without any participation on their part, the captain had made his firm decision to engage in the marijuana hauling business.
Thus, I, too, express the belief that the Court should take this case en banc to review the decision in DeWeese and possibly clarify Alfrey.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8914045. Public record. Not legal advice.