# Petition — Fazio v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2411%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 446 U.S. 981

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2411%3A1. Public record. Not legal advice.