Petition — Fazio v. United States

MAY 19 1980

|

, IR., CLERK |

IN THE

Supreme Court of the United States

OctospeR TERM, 1979

We. <enie

79-1839

FREDERICK JOHN Fazio AND JOSEPH HENRY CUSANELLI,

Petitioners,

es

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

MicHAEL EK. TIGAR

JOHN J. PRIVITERA

1302 18th Street, N.W.

Washington, D.C. 20036

Attorneys for Petitioners

Press oF Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C.

IN THE

Supreme Court of the United States

OcroseR TERM, 1979

ee

No.

—

FREDERICK JOHN Fazio AND JoSEPH HENRY CUSANELLI,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioners, Frederick John Fazio and Joseph Henry

Cusanelli pray that a writ of certiorari issue to review

the judgment of the United States Court of Appeals

for the Fifth Circuit, affirming their convictions in

the United States District Court for the Southern

District of Georgia for possession of marijuana with

intent to distribute and conspiracy to possess mari-

juana.

OPINIONS BELOW

The opinion of the court of appeals, reported as

United States v. Butler, 611 F.2d 1066 (5th Cir. 1980),

and an unreported amendment thereto on denial of

rehearing, are reprinted in the Appendix.

2

JURISDICTION

The judgment of the court of appeals was entered

on February 14, 1980. A timely petition for rehearing

was denied on April 18, 1980. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

QUESTION PRESENTED

In the absence of exigent circumstances, does not

the fourth amendment prohibit police from making a

warrantless and nonconsensual entry into a private

residence to make an arrest?

STATEMENT OF THE CASE

This case involves warrantless arrests of several per-

sons in and around a private residence. The eight-acre

residence, West Point Plantation, is on the northern

edge of St. Simons Island near Brunswick, Georgia.

The warrantless arrests were orchestrated by Drug

Enforcement Administration Special Agent Kelly

Goodowens, the only witness at the suppression hear-

ing below. The transcript of his testimony consists of

seventy-eight pages.

The Plantation was rented by two of the defendants,

not petitioners, below. It fronts the Frederica River,

providing northern and southern access to the inter-

coastal waterway. The property is heavily wooded and

substantially protected by an electrified fence. The

only access to the property by land is a single, half-

mile dirt road. 8. 52, 62, 85, 87."

By approximately nine o’clock on the evening of

July 28, 1978, circumstances had led Agent Good-

2 Citations to the Suppression Hearing are abbreviated as S. —.

3

owens to place the property under heavy physical

surveillance.

Earlier in the week, local officer Starling had ob-

served an unfamiliar high-powered pleasure boat in

the waterways near the Plantation, sometimes late at

night. S. 33-40. He saw the boat operators, two de-

fendants below, change nearby motel accommodations

three times during the week. Jd. He watched the boat

operators having dinner with petitioners Fazio and

Cusanelli at one of the motels and saw petitioner Fazio

in a tractor-trailer parked at the motel. Officer Star-

ling contacted Agent Goodowens and at eight o’clock

on July 28 the tractor-trailer and pleasure boat were

followed to the Plantation. S. 49, 55.

Agent Goodowens quickly compiled an extensive

physical surveillance team. Agents were stationed in

boats on the Frederica River north and south of the

Plantation, the only access by water. S. 62, 87. Another

team of officers established themselves at the mouth

of the only road. Jd. Other agents were stationed on

nearby property. Agent Goodowens and Officer Star-

ling stood on the corner of adjoining property. The

Plantation’s dock, some five hundred feet away, was in

view. Agent Goodowens maintained instant communi-

cation with the entire team through a circling, radio-

equipped airplane. S. 89-90, 100, 102-104.

When darkness fell, Agent Goodowens observed,

through night goggles, the high-powered pleasure boat

and a large shrimp boat docked at the Plantation. S.

40, 54, 58. Several men started offloading bundles from

the shrimp boat onto the dock. 8. 78. Agent Goodowens

testified that he soon determined, based on his experi-

ence, that the bundles were bales of marijuana. S. 56,

+

96-7. All the officers maintained their position and ob-

served the continuous offload operation for five hours.

S. 56, 81.

Karly in the evening Agent Goodowens made the

decision to initiate the arrests only when one of the

vehicles on the Plantation started to move. S. 61. He

testified he had all the information which formed the

basis of the arrests by at least 10:30 p.m., S. 84, 97,

but did not apply for a warrant because he was not

sure when a vehicle would start to move. S. 94.

At 2:30 am., a pickup truck started and Agent

Goodowens gave the arrest order. S. 61. Officers con-

verged on the house, curtilage and vehicles, and ten

arrests were made. Petitioner Fazio was seized in a

bedroom in the house where he was asleep.

At 4:00 a.m., Agent Goodowens telephoned a nearby

United States magistrate from the Plantation then

drove to her home and, by 7:10 a.m., had secured four

search warrants for the home, its curtilage, the ve-

hicles and nearby motel rooms. Bales of marijuana and

other evidence were seized. Petitioner Cusanelli was

found under the dock at the Plantation during the

execution of the warrants.

The district court denied a motion to suppress. The

court of appeals affirmed.

REASONS FOR GRANTING THE WRIT

As the statement of facts reveals, a combined state

and federal force surveilled, then surrounded, then

forcibly entered the grounds of a home in Georgia.

They continued across the grounds, seizing all the

5

civilians in sight, and into the house itself, where pe-

titioner Fazio was found asleep in a bedroom and

seized. These minions of Agent Goodowens were in air-

planes, police cars and watercraft. They had radios,

telephones, night goggles, and guns. They were armed

with everything—except a warrant, that one weapon

which, absent special circumstances, grants the police

access to places within the constitutional zone of

privacy.

No ambiguity clouds the constitutional issue pre-

sented: not only would the impressive communications

technology brought to the surveillance scene belie any

assertion that the agents could not have reached a

magistrate to make an appointment for a warrant ap-

plication, but the record shows that once all the per-

sons at the home and its surroundings were arrested,

the agents did wake up a magistrate and obtain a

search warrant.

The case presents a departure from the accepted and

usual course of judicial proceedings, and an issue of

federal law decided inconsistently with applicable de-

cisions of this Court. 8.Ct.R. 19.

United States v. Watson, 423 U.S. 411 (1976), up-

holding a warrantless arrest in a public place, and

Payton v. New York, U.S. ——, 48 U.S.L.W. 4375

(April 15, 1980), condemning warrantless arrests in

dwellings, provide the matrix within which the ques-

tion presented will be decided. No lengthy exposition

of these recent cases is necessary, particularly given

the review in Payton of the law of warrantless arrest.

Id., 48376 at nn.1-4.

6

Payton recalls and gives life to the constitutional

history of the warrant requirement.’

The opinion below may be explicable only by noting

the date on which it was decided, February 14, 1980.

The denial of rehearing was April 18, 1980, and Pay-

ton v. New York, supra, was decided April 15, 1980.

Payton notes that the fifth circuit has traditionally

permitted warrantless entry of a home to make an

arrest. 48 U.S.L.W. at 4376, n.4. Although petitioners

may be able to raise their fourth amendment claim on

collateral attack, this is, we submit, a case in which

the Court should consider, at a minimum, granting the

writ and remanding in light of Payton.

The facts of this case, a fairly typical large-scale

arrest in these days of federal-state cooperation and

law enforcement technological sophistication, present,

however, issues which would permit the Court to sur-

vey the ground between the arrest in a public place and

that inside the threshold of a home.

Hight fenced acres with a house and outbuildings is

not a ‘‘publie place’’ like the restaurant in Watson,

nor are all its square feet of lawn, garden, woods and

docks constitutionally indistinguishable from a house

or apartment like the premises in which Payton and

Riddick were taken. Some of those seized, though not

the petitioners, were on or near conveyances—trucks

and boats—which might permit the invocation of spe-

*The development, in this Court’s jurisprudence, of a strong

insistence upon the warrant requirement has been consistent. See,

e.g.’s, Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979) ; Mincey

v. Arizona, 437 U.S. 385 (1978) ; Michigan v. Tyler, 436 U.S. 499

(1978) ; Marshall v. Barlow’s Inc., 436 U.S. 307 (1978) ; GM Leas-

ing Corp. v. United States, 429 U.S. 338 (1977).

7

cial rules. See Chambers v. Maroney, 399 U.S. 42

(1970). :

The seizure of Fazio surely implicates the values

held paramount in Payton. The case of Cusanelli pro-

vides an opportunity for the petitioners and the gov-

ernment to air, on a record fairly presenting the ques-

tion, whether ‘‘threshold’’ and ‘‘dwelling’’ refer to

the stuff of which houses are made or suggest a zone

of privacy around the home which officers are generally

forbidden to enter without a warrant.’

CONCLUSION

For all of these reasons, it is respectfully prayed

that the writ of certiorari be granted. ‘n the alterna-

tive, petitioners pray that the writ be granted, the

judgment vacated and the cause remanded to the court

of appeals for further consideration in light of Payton

v. New York, supra.

Respectfully submitted,

MicHarEL EK. Ticar

JOHN J. PRIVITERA

1302 18th Street, N.W.

Washington, D.C, 20036

(202) 466-5470

Attorneys for Petitioners

Dated: May 19, 1980

*Candor compels the observation that this Court is not likely

to disturb the findings of the lower courts that the arrests, searches

and seizures were based on probable cause, Graver Mfg. Co. v.

Linde Co., 336 U.S. 271 (1949) ; see, e.g., United States v. Ceccolini,

435 U.S. 268, 273 (1978). However, should this Court grant re-

view petitioners will request to brief and argue the matter since

it would have to be decided if a majority of the Court finds no

warrant was required here.

APPENDIX

la

UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

No. 78-5777

Unrrep States or America, Plaintiff-Appellee,

v.

Scorr Pau. Butter, MicnarL THomas Situ, a/k/a

THomas M. Smirn, Garrison Dorminy Barnes, THoMas

RicHarp Winaate, Ropert Raymonp Barnes, WILLIAM

Artuur Hiscock, Jonn Ricuarp Barnes, Jr., GEORGE

Gary Horper, Ropert Tyter Minne, Huan TxHomas

McConacuy, JosepH Henry Cusane.u, a/k/a WILLIAM

JosepH and Freperick Joun Fazio, Defendants-

Appellants.

February 14, 1980

James K. Jenkins, Atlanta, Ga., for Scott Paul Butler.

Steadman S. Stahl, Jr., Hollywood, Fla., for defendants-

appellants.

Katherine L. Henry, William H. McAbee, Asst. U.S.

Attys., Savannah, Ga., for plaintiff-appellee.

Appeals from the United States District Court

for the Southern District of Georgia

Before THornBeRRY, CHARLES CLaRK and Kravitcn, Cir-

cuit Judges.

Kravitcu, Circuit Judge.

Appellants, except Hugh Thomas McConaghy, were con-

victed in the Southern District of Georgia of conspiracy

to possess marijuana, 21 U.S.C. § 846, and aiding and abet-

ting each other in the possession of marijuana with the

intent to distribute, 21 U.S.C. § 841(a)(1),’ 18 U.S.C. § 2.

*21 U.S.C. §841(a)(1) provides: ‘‘Except as authorized by

this subchapter, it shall be unlawful for any person knowingly or

2a

McConaghy was convicted only of aiding and abetting.

All appeal their convictions. We affirm.

I. Facts

This is another in the apparently unending procession

of marijuana importation cases. On July 21, 1978, an offi-

cer of the Glynn County Police Department noticed three

white males in a car, the rear of which was elevated.

Upon later observing the car at the Ramada Inn, the officer

hecame suspicious and began surveillance directed at the

driver of the car (John Barnes) and others with whom he

came into contact. Surveillance continued from July 21

to July 29 and culminated in the arrest of fourteen people.

On the night of Friday, July 28, a DEA agent conducting

aerial surveillance observed a shrimp boat, an Aqua Sport

boat which had been previously observed,? and a small

intentionally—to manufacture, distribute, or dispense, or possess

with intent to manufacture, distribute, or dispense, a controlled

substance. ’’

* The Aqua Sport boat was first observed on July 21, parked at

the Ramada Inn where John Barnes was registered. On July 23,

John Barnes, Robert Barnes and two others took the Aqua Sport

to a public landing where it was launched. The boat was then

driven to St. Simons Island where it was docked. Later that after-

noon, John and Robert Barnes left the marina in the boat, headed

north on the Frederica River. The boat was discovered back at the

marina the next morning. The West Point Plantation is located

on the Frederica River.

On July 24, John and Robert Barnes again took the boat out

and again headed north on the Frederica River. They stayed out

approximately four hours. On July 25, the Barnes brothers took

the boat out in the same direction for approximately the same

length of time. The boat was next observed that night in the

course of aerial surveillance docket at the West Point Plantation.

The next movement of the boat apparently occurred on July 28

in the early afternoon. John and Robert Barnes fueled the boat

and returned it to its berth. It was launched at about 6:30, and

again headed north.

3a

cruise boat tied up at the dock of the West Point Planta-

tion. Shortly thereafter, a tractor-trailer truck which also

had been previously observed * arrived at the Plantation.

The combination of the arrival of the tractor-trailer and

the docking of the shrimp boat resulted in the Plantation

being identified as the target area.

The Plantation was placed under tight surveillance. Kelly

Goodowens, the DEA agent in charge, and Det. Starling,

a Glynn County police officer, set up surveillance on a

nearby dock.‘ Activities at the Plantation were observed

by the officers through night goggles. Other law enforce-

ment officers were located along the only road into the

Plantation, in the general area, and in boats on the water-

ways.

Through the night goggles the officers observed people

carrying bundles which appeaed to be marijuana® from

the shrimp boat onto the Plantation property. The obser-

vation continued until approximately 2:35 a.m. Goodowens

testified he planned to initiate the arrests as soon as the

‘The tractor-trailer truck was first observed on July 27 at the

Holiday Inn. It was seen leaving the Holiday Inn, going to the

8 Days Inn and then to the Best Western Motel in Eulonia,

Georgia. George Holder and Frederick Fazio were in the tractor-

trailer truck.

The truck left Eulonia on the afternoon of July 28 and was

driven to the West Point Plantation. It arrived at approximately

7:00 p. m. Observed in the truck were Holder and Fazio. The

trailer of the truck bore the label ‘‘Murray Van and Storage.’’

*The dock on which Goodowens and Starling were located is

approximately 500 feet from the West Point Plantation dock.

There is, however, an unobstructed view between the two docks.

* Night goggles amplify light, but do not magnify. Thus, despite

the darkness of the night the agents were able to observe what

transpired.

* Agent Goodowens testified, based on his prior experience with

marijuana smuggling, that the packages being carried were pack-

aged like marijuana typically is packaged.

4a

vehicle started to move from the scene. At approximately

2:35 a.m., Goodowens heard a vehicle start and saw its

brake lights come on. He gave the signal for the arrests.

When he and Det. Starling arrived at the yard of the

Plantation, they observed no activity. After a few minutes

several individuals came out of the house and began mov-

ing bundles from the rear of the tractor-trailer into the

house. The remainder of the arrest team arrived and the

arrests were initiated.’

The visible marijuana was seized immediately and the

house was secured. Goodowens then departed to obtain

search warrants for the house, the vehicles and the hotel

rooms occupied by the suspect’s. He arrived at the magis-

* Defendant

Scott Paul Butler

Michael Thomas Smith

Garrison Dorminy Barnes

Thomas Richard Wingate

Robert Raymond Barnes

William Arthur Hiscock

John Raymond McConaghy

John Richard Barnes, Jr.

George Gary Holder

Robert Tyler Milne

Hugh Thomas McConaghy

Joseph Henry Cusanelli

Frederick John Fazio

Place of Arrest

on the shrimp boat docked at

Plantation

in front of the Plantation house

on the Plantation’s dock

in basement of the Plantation

house

cruise boat on the Frederica River

south of Plantation, claimed to be

fishing—no bait on boat

on the shrimp boat docked at the

Plantation

on a road away from the Planta-

tion

in Aqua Sport on Frederica River

north of Plantation

on the road in front of the Planta-

tion

running from the basement of the

Plantation

by the fence near the dock or un-

der the dock

under the dock

inside house

5a

trate’s house at approximately 4:30 or 5:00 a.m.; the

search warrants were signed at 7:10 a.m. and executed later

in the morning.

A four count indictment was returned against all de-

fendants charging them with conspiracy to possess mari-

juana, aiding and abetting each other in the possession of

marijuana with the intent to distribute, conspiracy to im-

port marijuana, and aiding and abetting each other in the

importation of marijuana. At trial, a directed verdict of

acquittal was entered on the importation counts. John Ray-

mond McConaghy was acquitted on both remaining counts,

and Hugh Thomas McConaghy was acquitted only of con-

spiracy to possess. All other defendants were convicted

both of conspiracy to possess and aiding and abetting. All

appeal their convictions.*

Four issues are presented on appeal: (1) whether the

grand and petit juries were legally constituted; (2) whether

the motion to suppress should have been granted; (3)

whether Hugh Thomas McConaghy was entitled to a sever-

ance; and (4) whether the evidence is sufficient to sustain

the guilty verdicts.

II. Issues

A. Jury Challenges

Appellants raise constitutional and statutory challenges

to the grand and petit jury selection systems being used

in the Southern District of Geormia. We find these chal-

lenges to be without merit.

Under Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664,

58 L.Ed.2d 579 (1979), in order to prove a prima facie

* William Anthony McConaghy died on July 8, 1979, before

this case was orally argued. Accordingly, his appeal in this matter

was dismissed by order of the court.

6a

violation of the fair cross-section requirement of the Sixth

Amendment, the defendant must prove:

(1) that the group alleged to be excluded is a ‘‘dis-

tinctive’’ group in the community; (2) that the repre-

sentation of this group in venires from which juries

are selected is not fair and reasonable in relation to

the number of such persons in the cbmmunity; and

(3) that this underrepresentation is due to systematic

exclusion of the group in the jury-selection process.

The claims raised here are essentially identical to those

raised in United States v. Maskeny, 609 F.2d 183 (5th Cir.

1980), which also involved challenges to the jury system in

the Southern District of Georgia. Like the Maskeny court,

we need not decide whether each of the groups which the

appellants assert have been excluded are “distinctive

groups’’ because we find they have failed to show a con-

stitutionally impermissable disparity between the group’s

representation in the jury system and its representation

in the population.’ None of the disparities urged by the

appellants are as great as the 10% disparity found not to

present a case of purposeful discrimination in Swain v.

Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).%°

Like the Maskeny court, we decline to abandon the abso-

lute disparity method for dealing with jury challenges. At

190.

®The groups and the disparities as urged by the appellants are

as follows:

Absolute disparity between

presence on jury wheel

and presence in

Group population

Non-white 8.69%

Service workers 5.71%

Youth (18-29 years old) 9.14%

‘© For a discussion of the interplay between jury claims decided

on equal protection grounds (Swain) and those decided on sixth

amendment grounds as are urged here, see Maskeny, at 190.

7a

As in Maskeny, appellants contend there are violations of

the National Jury Selection and Service Act of 1968, 28

U.S.C. § 1861 et seq. They argue the statute has been vio-

lated because: (1) a source of names in addition to voter

registration lists was not used; (2) the one year district

residency requirement is unconstitutional; (3) the minis-

terial exemption or its application violates the first amend-

ment and the cross-section requirements; and (4) the clerk

usurped the function of the district judge in excusing

jurors in violation of the statute. All of these arguments

were presented to the court in Maskeny and rejected. For

the reasons fully discussed in Maskeny, 191-194, we hold

there has been no statutory violation.

B. Motion to Suppress

The exact nature of appellants’ contention is unclear.

Apparently, they claim that the arresting officers acted

without probable cause and that there were no exigent cir-

cumstances justifying the warrantless search, seizure of

personalty and incidental arrests.

The problem with the appellants’ contentions is that

they are viewing the occurrences analytically backwards.

The arrests were not incident to the search but rather the

search was incident to the arrests.

Exigent circumstances are not constitutionally required

to make a warrantless arrest. United States v. Watson,

423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); United

States v. Campbell, 575 F.2d 505 (5th Cir. 1978). Here,

there is no question that probable cause existed when the

arrests were made. Clearly, the facts and circumstances

within the arresting officers’ knowledge were sufficient to

justify a reasonable person in the belief that an offense

was being committed. Draper v. United States, 358 U.S.

307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). The collective

8a

knowledge " of the investigating officers was that: a group

of people arrived in the Brunswick area using aliases and

exploring the area at odd hours, learning the land and

water routes to a residence in a secluded setting, and bring-

ing in boats and a moving van suitable for a smuggling

operation. The chain of events on Friday supplied the

additional information needed to transform merely sus-

picious circumstances into probable cause to believe a

crime was being committed: the gathering of boats and

motor vehicels around a darkened house at night, the sta-

tioning of lookouts on the river, the blocking of the en-

trance road anu the unloading of objects which resembled

marijuana bales from a shrimp boat. Thus, the arrests

were founded on probable cause and the lack of a warrant

is irrelevant.”

Once the police moved in to make the arrests, the seizure

of marijuana was justifiable either as a “search ‘incident to

a lawful arrest’,” Chimel v. California, 395 U.S. 752, 89 S.

Ct. 2034, 23 L.Ed.2d 685 (1969), or as a “plain view” seiz-

ure, Coolidge v. New Hampshire, 403 U.S. 448, 91 S.Ct.

2022, 29 L.Ed.2d 564 (1971). Under either theory the denial

Collective knowledge rather than the sole knowledge of any

individual officer is the factor to be considered when determining

the existence of probable cause. United States v. Clark, 559 F.2d

420 (5th Cir.), cert. denied, 434 U.S. 969, 98 S.Ct. 516, 54 L.Ed.2d

457 (1977).

1? Equally irrelevant is the fact that the police did not make the

arrests as soon as there was sufficient information to constitute

probable cause. The police are under no obligation to make arrests

as soon as probable cause exists, Hoffa v. United States, 385 U.S.

293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966) ; United States v. Cravero,

545 F.2d 406 (5th Cir. 1976), cert. denied, 430 U.S. 983, 97 S.Ct.

1679, 52 L.Ed.2d 377 (1977); Koran v. United States, 469 F.2d

1071 (5th Cir. 1972).

If, however, the arrests had been incident to a warrantless search

justified on the basis of exigent circumstances, the delay would

have been more significant. See United States v. Curran, 498 F.2d

30, 34 (9th Cir. 1974).

9a

of the motion to suppress was proper. Except for the “plain

view” seizures made at the time of the arrests, all other

searches and seizures were lawfully conducted pursuant to

the search warrants subsequently obtained.

C. Hugh Thomas McConaghy’s Motion for Severance

At the close of the Government’s case, Hugh and John

McConaghy moved for severance claiming they needed co-

defendant William McConaghy to testify on their behalf.

The motions were denied; John McConaghy was acquitted

without the testimony.

In order to be entitled to a severance on the ground

urged, the movant must demonstrate: (1) a bona fide need

for the testimony; (2) the substance of the testimony; (3)

its exculpatory nature and effect; and (4) that the co-

defendant will in fact testify if the cases are severed.

Umted States v. Rice, 550 F.2d 1364 (5th Cir.), cert. denied,

434 U.S. 954, 98 S.Ct. 479, 54 L.Ed.2d 312 (1977); United

States v. Morrow, 537 F.2d 120, 135 (5th Cir. 1976); Byrd

v. Wainwright, 428 F.2d 1017 (5th Cir. 1970). Given such

a showing, the court should (1) examine the significance

of the testimony in relation to the defendant’s theory of

defense; (2) assess the extent of prejudice caused by the

absence of the testimony; (3) pay close attention to judi-

cial administration and economy; (4) give weight to the

timeliness of the motion. United States v. Rice, 550 F.2d

1364 (5th Cir. 1977).

Considering Hugh MeConaghy’s motion under these cri-

teria we hold that the court properly denied the motion

for severance. The motion obviously was not timely as it

was not made before the trial began and there was no show-

ing that it was based on grounds not known prior to trial.

Fed.R.Crim.P., Rule 12; United States v. Spinella, 506

F.2d 426 (5th Cir.), cert. denied, 423 U.S. 917, 96 S.Ct.

227, 46 L.Ed.2d 147 (1975). Furthermore, the significance

10a

of the testimony as exculpatory evidence is not certain,”

as it did not rise to the level of showing that Hugh Mc-

Conaghy was not involved in the off-loading. The testimony

was not so clearly exculpatory as to justify the judicial

diseconomy occasioned by a severance in the middle of a

trial. Finally, the need for the testimony is questionable

as John McConaghy was acquitted without the testimony

on the same defense theory utilized by Hugh McConaghy.

D. Sufficiency of the Evidence

All defendants challenge the sufficiency of the evidence

both as to conspiracy and on the substantive count of pos-

session.

1. Overvirnw oF THE EVIDENCE

The cumulative evidence collected by the DEA and local

law enforcement officers revealed a number of people ar-

riving in the Brunswick area, moving from one hotel to

another in the same immediate vicinity, meeting with each

other, scouting boat channels and ending up on a secluded

plantation where 41,000 pounds of marijuana was off-

loaded from a shrimp boat. While Agent Goodowens and

Det. Starling observed the off-loading operation through

night goggles, both candidly admitted they could not posi-

tively identify any individual as participating in the off-

load as they could see only forms and not faces. The Gov-

ernment secured the area and arrested everyone present;

13The defense proffer of the testimony showed William Me-

Conaghy would testify that brothers John and Hugh had arrived

in the Brunswick area only to bring him (William) his jeep; Hugh

had a back problem; when the flares went off to signify the onset

of the arrests, William got Hugh from the bedroom of the house

where he had been since early in the day (before the shrimp boat

arrived) and together they hid under the dock. This would have

controverted the testimony of the police to the limited extent that

they testified Hugh McConaghy was arrested in the woods. (T-323).

lla

the theory of the possession case was that everyone on the

plantation property must have been involved in the off-

load. The theory of the Government on the conspiracy

count was one of “presence plus” additional circumstances.

See e. g., United States v. Soto, 591 F.2d 1091 (5th Cir.),

cert. denied, —— U.S. ——, 99 S.Ct. 2862, 61 L.Ed.2d 298

(1979); United States v. Sink, 586 F.2d 1041 (5th Cir.

1978), cert. denied, —— U.S. ——, 99 S.Ct. 3102, 61 L.Ed.

2d 876 (1979).

2. Is tHe Evinence Surricient?

a. Conspiracy Count

In reviewing the sufficiency of the evidence, the appel-

late court must view the trial evidence 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), but must

reverse the verdicts if reasonable minds must have had a

reasonable doubt as to the existence of the essential ele-

ments of the crime charged. United States v. Barrera, 547

F.2d 1250, 1255 (5th Cir. 1977); United States v. Rey-

nolds, 511 F.2d 603 (5th Cir. 1975).

In this case, as in many conspiracy cases, there is no

direct, conclusive evidence of a conspiracy. There is sub-

stantial circumstantial evidence, however, that a conspiracy

existed, that the appellants had knowledge of it, and with

that knowledge they acted in furtherance of the conspiracy.

United States v. Soto, 591 F.2d 1091, 1101 (5th Cir.), cert.

denied, —— U.S. ——, 99 S.Ct. 2862, 61 L.Ed.2d 298

(1979); United States v. Garza, 574 F.2d 298, 304 (5th

Cir. 1978); United States v. Duckett, 550 F.2d 1027, 1030

(5th Cir. 1977).

The circumstantial evidence of a conspiracy includes the

following: (1) a mid-week meeting at the Holiday Inn

attended by John Barnes, Robert Barnes, Fazio, Holder,

William MecConaghy and Cusanelli; (2) the scouting of the

ba

as

12a

waterways several days before the off-load occurred; (3)

the leasing of a secluded plantation; (4) the placing of

guards on the river; and (5) the arrival of the shrimp

boat, tractor-trailer truck and defendants at the Plantation

on the same night. The totality of the circumstantial evi-

dence indicates a well-orchestrated criminal conspiracy to

possess marijuana.

Given the existence of a conspiracy, each appellant’s

participation in the crime must be established by evidence

which a jury could conclude rules out any reasonable hy-

pothesis of innocence. United States v. Soto, supra at 1102;

United States v. Alvarez, 548 F.2d 542, 544 (Sth Cir. 1977).

John and Robert Barnes acted as river lookouts on the

night of the off-load, or at least the jury could so conclude.

That, in combination with their apparent “scouting” of the

waterways and presence at the Wednesday meeting at the

Holiday Inn is sufficient evidence from which a jury could

conclude the Barnes were a part of the conspiracy.

Evidence of appellant Holder’s participation in the con-

spiracy may be found in his presence at the Wednesday

meeting, the fact that many bales of marijuana were loaded

on to his truck, and that he drove his truck to the Planta-

tion on Friday. Appellant Fazio was also at the Holiday

Inn meeting and accompanied Holder in his truck to the

Plantation on Friday. Appellants Smith and Wingate to-

gether leased the Plantation and purchased one of the

boats involved in the operation. They both were present at

the scene of the off-load. Cusanelli was at the Wednesday

meeting, at the Plantation on the night of the off-load, and

possessed large amounts of cash and false identification

papers. Hiscock was present when the shrimp boat was

purchased and identified himself at that time as her in-

tended captain. He was in possession of a large amount of

cash and was arrested on the shrimp boat which was loaded

with marijuana. Butler also was arrested on the shrimp

boat and the evidence suggested he was a crew member

13a

(prescription bottles bearing his name were found in the

crew cabin which appeared to have someone living in it).

Appellants Garrison Barnes’ and Milne’s presence at the

Plantation, in a secluded area of the island at night, in the

midst of the unloaded marijuana and wearing T-shirts

bearing the name ‘‘Murray Van and Storage,”’ clearly con-

nects them to the conspiring group.’* Moreover, Milne was

seen running from the basement just after the flare sig-

nifying the beginning of the arrests had been fired.

There is ample evidence, viewing each appellant’s con-

duct in the context of the overall conspiracy, to connect

them beyond a rgasonable doubt to the proven conspiracy.

See e. g., United States v. Soto, 591 F.2d 1091, 1102-03 (5th

Cir.), cert. dented, —— U.S. ——, 99 S.Ct. 2862, 61 L.Ed.

2d 268 (1979).

b. Possession

As to the appellants discussed above, the evidence is also

sufficient to support the possession convictions. For the

most part the evidence which connects the defendants to

the conspiracy also supports a finding that they aided and

abetted others in the possession. United States v. Soto,

supra at 1103.

The appellants who were arrested on the Plantation

property (Fazio, Smith, Wingate, Cusanelli, Barnes and

Milne) and on board the shrimp boat (Hiscock and Butler)

all had marijuana sufficiently within their control to be in

*The trailer into which the marijuana had been loaded also

bore the label ‘‘Murray Van and Storage.’’ Appellants Smith and

Wingate and deceased appellant William McConaghy were wear-

ing dark blue Murray Van and Storage T-shirts, also.

There is no mention in the record of how Garrison Barnes and

Milne arrived at the Plantation. The jury could have reasonably

concluded that they arrived either on the shrimp boat or in the

trailer of the truck, as they obviously arrived before the DEA

surveillance or their arrival would have been noticed.

l4a

constructive possession. See United States v. Riggins, 563

F.2d 1264, 1266 (5th Cir. 1977), cert. denied, 439 U.S. 848,

99 S.Ct. 148, 58 L.E.2d 150 (1978). The amount of mari-

juana possessed in sufficient to permit the jury to infer

an intent to distribute. United States v. Raffo, 587 F.2d

199 (5th Cir. 1979). The evidence against appellants John

and Robert Barnes, while not placing them on the Planta-

tion property, supports a finding that they were acting as

river lookouts, and hence were aiding and abetting the

others in the off-load operation. Appellant Holder was

arrested on the road in front of the Plantation shortly after

the other arrests were made and after the area had other-

wise been secured. The evidence was sufficient to sustain

an inference that he had slipped by the police in the initial

confusion, but had been on the Plantation property, and

thus in constructive, if not actual, possession of marijuana.

There is also sufficient evidence to sustain the conviction

of Hugh McConaghy. Identification papers and personal

belongings of Hugh McConaghy were found inside the

Plantation house. He was arrested either from under the

dock or by a fence near the dock at about 8:00 a.m. on

Saturday.”

McConaghy took the stand in his own behalf and testi-

fied he had nothing to do with the marijuana, had no

knowledge that an off-load was going to occur that night

and disclaimed any possessory interest in the marijuana.

He indicated he had previously injured his back in a work

accident, that his back had begun to hurt early Friday

afternoon and that he had gone into the bedroom to lie

down. He and John McConaghy, his younger brother, heard

arguing. John left but Hugh did not because of his back.

The next thing he remembers after John left (he slept

intermittently all day) was the sky lighting up. William

8 The police testified he was arrested from beside the fence near

the dock; MeConaghy testified he was arrested from under the

dock.

15a

McConaghy came to the bedroom and told Hugh to follow

him. They then hid under the dock until they were arrested.

John McConaghy, who was acquitted, corroborated Hugh’s

story up to the point when he (John) left the Plantation.

The jury was presented with a classic credibility choice.

Inasmuch as John McConaghy was acquitted we must con-

clude they believed him to a certain extent. That does not

mean, however, that they had to believe his testimony about

Hugh. Construing the evidence in the light most favorable

to the Government, Glasser v. United States, 315 U.S. 60,

62 S.St. 457, 86 L.Ed. 680 (1942), we cannot say there is

insufficient evidence to sustain the conviction of Hugh

McConaghy.

AFFIRMED.

l6a

UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

No. 78-5777

Unitep States or America, Plaintiff-A ppellee

v.

Scott Paut Butter, MicHaeL THomas Smita, a/k/a

Txomas M. Situ, Garrison Dominy Barnes, THOMAS

Ricuarp Wineate, Ropert Raymonp Barnes, WILLIAM

ArtHur Hiscock, JoHn RicHarp Barnes, JR., GEORGE

Gary Howper, Rospert TyLter Mitng, Huecu THomas

McConacuy, JosepH Henry CusANELLI, a/k/a WILLIAM

JosepH, and Freperick JoHn Fazio, Defendants-

Appellants.

Suie OpInion

April 18, 1980.

Appeals from the United States District Court

for the Southern District of Georgia

(For Butier)

James K. Jenkins, 900 Flat Iron Bldg., 84 Peachtree St.,

N.W., Atlanta, Ga. 30303

(For ALL OTHERS)

Steadman S. Stahl, Jr., 2432 Hollywood Blvd., Holly-

wood, Fla. 33020 for Appellant

Wm. T. Moore, Jr., U.S. Atty., P.O. Box 2017, Augusta,

Ga. 30903

Kathrine L. Henry, AUSA, P.O. Box 8999, Savannah,

Ga. 31402

William H. McAbee, AUSA P.O. Box 8999, Savannah,

Ga. 31402

Melissa S. Mundell, AUSA P.O. Box 8999, Savannah, Ga.

31402 for Appellee

l7a

On Petitions for Rehearing and Petition

for Rehearing En Banc

(Opinion February 14, 1980, 5 Cir., 1980, 611 F.2d 1066)

Before THoRNBERRY, CHARLES CLARK and KravitcnH, Cir-

cuit Judges.

Per Curiam:

The only contention made by appellants in their Peti-

tions for Rehearing and Rehearing En Bane which merits

discussion is Scott Paul Butler’s argument that the panel

erred in stating that he was arrested on the shrimp boat.

He asserts that because he was not arrested on the

boat that there is insufficient evidence to sustain his

conviction. We must disagree. Although at the time

of the arrest Butler was at the end of the dock by

the shrimp boat rather than on the boat( as stated

in the opinion), his personal belongings, including a

prescription drug bottle, were found on the boat. That

connects him to the instrumentality which the jury could

well infer brought the mariquana to the Plantation, thus

giving him sufficient connections to the conspiring group

to sustain his conspiracy conviction, and sufficient relation-

ship to the marijuana to sustain his conviction for aiding

and abetting the possession of marijuana. Moreover, the

fact that he was dressed differently from several of the

other conspirators (he was wearing a white shirt and ov-

eralls) does not lessen his connection to the shrimp boat.

We also wish to clarify a statement made in the opinion

in this case. In discussing the appellant’s jury challenges,

we stated: ‘‘Like the Maskeny [United States v. Maskeny,

609 F.2d 183 (5th Cir. 1980) ] court, we decline to abandon

the absolute disparity method for dealing with jury chal-

lenges.’’ Butler, at 1070. We did not wish to imply that

the absolute disparity method is the sole means of estab-

lishing unlawful jury discrimination. However, given the

small absolute disparities proven and the fact that a ‘‘less-

18a

than-10% minority’’ was not at issue, we did not feel cciu-

sideration of other statistical methods was necessary in

this case.

The Petition for Rehearing is Deniep and no member of

this panel nor judge in regular active service on the Court

having requested that the Court be polled on rehearing en

banc. (Rule 35, Federal Rules of Appellate Procedure;

Local Fifth Circuit Rule 16), the Petition for Rehearing

En Banc is denied.