Petition — Albernaz v. United States

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Gupreme Court, UY

FILED

In the JUN 7 1980

Supreme Court of the United|States....

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OcrosBer TERM, 1980.

No. vd “} we ] 9 3 G

THOMAS J. ALBERNAZ, PETER SMIGOWSKI,

EDWARD RODRIGUEZ, anv WILLIAM J. MARTINS,

PETITIONERS,

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for a Writ of Certiorari to the United States Court of

Appeals for the Fifth Circuit.

JosePH S. OTERI,

ManrtTIN G. WEINBERG,

JupirH H. Mizner,

Oren & WEINBERG,

10 Post Office Square, Suite 528,

Boston, Massachusetts 02109.

Attorneys for Petitioners

Thomas J. Albernaz

and Peter Smigowski.

RAYMOND E. LaPorte,

408 Madison Street,

Tampa, Florida 33602.

Attorney for Petitioner

Edward Rodriguez.

Joe, M. MaGazINE,

2669 South Bayshore Drive,

Cocoanut Grove, Florida 33133.

Attorney for Petitioner

William J. Martins.

BATEMAN & SLADE, INC. BOSTON , MASSACHUSETTS

Table of Contents.

Proceedings below

Jurisdiction

Constitutional provision involved

Questions presented

Statement of the case

Reasons why the writ should be granted

I. The court’s error in defining “Distribution”

— an essential element of the offense charged in

count 2 of the indictment — requires reversal

II. The failure to properly and adequately in-

struct the jury concerning petitioners’ theory of

defense denied them due process of law

III. The court’s instruction equating reasonable

doubt with substantial doubt impermissibly

lessened the government’s constitutionally man-

dated burden of proof

Conclusion

“J fF © WwW WwW bY

Appendix follows page 14

Table of Authorities Cited.

CASES.

Bachellar v. Maryland, 347 U.S. 564 (1970)

Carbajal-Portillo v. United States, 396 F.2d 944 (9th

Cir. 1968)

In re Winship, 397 U.S. 358 (1970) 7, 12, 13

ii TABLE OF AUTHORITIES CITED.

Sandstrom v. Montana, ___ U.S. ___., 99 S. Ct. 2450

(1979)

Stromberg v. California, 283 U.S. 359 (1931)

Taylor v. Kentucky, 436 U.S. 478 (1978)

United States v. Alfonso-Perez, 535 F.2d 1362 (2d Cir.

1976)

United States v. Alvero, 470 F.2d 981 (5th Cir. 1972)

United States v. Atkins, 487 F.2d 257 (1973)

United States v. Creamer, 555 F.2d 612 (7th Cir. 1977),

cert. den. 434 U.S. 833

United States v. Gilbreath, 452 F.2d 992 (5th Cir. 1971)

United States v. Leach, 247 F.2d 1107 (1st Cir. 1970),

cert. den. 400 U.S. 829

United States v. Wright, 542 F.2d 975 (7th Cir. 1976),

cert. den. 429 U.S. 1073

Williams v. North Carolina, 317 U.S. 387 (1942)

Yates v. United States, 354 U.S. 298 (1957)

CONSTITUTIONAL AND STATUTORY PROVISIONS.

21 U.S.C.

§ 846 ~

§ 963

28 U.S.C. § 1254(1)

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eo ow a

In the

Supreme Court of the United States.

OcrosBer TERM, 1980.

No.

THOMAS J. ALBERNAZ, PETER SMIGOWSKI,

EDWARD RODRIGUEZ, anp WILLIAM J. MARTINS,

PETITIONERS,

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for a Writ of Certiorari to the United States Court of

Appeals for the Fifth Circuit.

Thomas J. Albernaz, Peter Smigowski, Edward Rodriguez

and William J. Martins petition for a writ of certiorari to

review the judgments of the United States Court of Appeals for

the Fifth Circuit entered in this case on November 14, 1978

and May 8, 1980.

Proceedings Below.

Following a jury trial in the United States District Court for

the Southern District of Florida (Atkins, J.), petitioners were

convicted of conspiracy to import marijuana (count 1) and

conspiracy to distribute marijuana (court 2) in violation of 21

U.S.C. §§ 846 and 963. Albernaz was sentenced to a 32 year

term of imprisonment and a special paro.. term of two years

on each count with the sentences to be served consecutively,

for a total sentence of seven years imprisonment and four years

parole. Smigowski received consecutive sentences of three

years confinement and a special parole term of two years for a

total sentence of six years imprisonment and four years parole.

Rodriguez received consecutive sentences of 42 years confine-

ment and a special parole term of two years for a total of nine

years imprisonment and four years parole. Martins received

concurrent sentences of three years and a special parole of two

years.

Petitioners appealed from the judgments of the District

Court entered on May 26, 1977. On November 14, 1978, the

United States Court of Appeals for the Fifth Circuit affirmed

the convictions of petitioners Albernaz and Rodriguez on both

counts, affirmed the convictions of petitioners Smigowski and

Martins on count 1, and reversed Smigowski’s and Martins’

convictions on count 2 for insufficient evidence. The court’s

opinion is reported at 585 F.2d 1234 (5th Cir. 1978) and is re-

produced in the Appendix at la-2la. On November 20, 1978,

the court, on its own motion, ordered rehearing en banc,

limited, in a letter dated November 28, 1978, to the question

of the propriety of the imposition of consecutive sentences.

The court also extended the time for filing a petition for panel

rehearing to December 12, 1978, “[i]n order to preserve [peti-

tioners’] right as to other issues in the case” (A. 22a-23a). A

timely petition for rehearing was filed.

On February 27, 1980, the court, en banc, affirmed peti-

tioners’ convictions. The opinion is reported at 612 F.2d 906

(5th Cir. 1980) (en banc). The time for filing a petition for a

writ of certiorari was enlarged to April 27, 1980 by Mr. Justice

Powell (A. 26a), and a petition, raising the question of the pro-

priety of the imposition of consecutive sentences, was timely

filed and remains pending before this Court.

On May 7, 1980, the court remanded the case to the panel

for resolution of the issues raised in petitioners’ December,

1978 petition for rehearing (A. 27a). Rehearing was denied on

May 8, 1980 (A. 29a).

Jurisdiction.

The original judgment of the Court of Appeals was entered

on November 14, 1978, and affirmed on February 27, 1980.

Rehearing was denied on May 8, 1980. The jurisdiction of this

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

Constitutional Provision Involved.

The Fifth Amendment to the United States Constitution

provides, in pertinent part:

No person shall be . . . deprived of life, liberty, or

property without due process of law;

Questions Presented.

I. Whether an erroneous instruction on an element of the

offense — an error which could have resulted in a verdict re-

turned on an invalid ground — requires reversal of petitioners’

convictions?

II. Whether the failure to properly and adequately instruct

the jury concerning petitioners’ theory of defense — a defense

of jurisdictional entrapment — denied petitioners due process

of law?

III. Whether the court’s instruction equating reasonable

doubt with substantial doubt impermissibly lessened the gov-

ernment’s burden of proof in derogation of petitioners’ right to

due process of law?

Statement of the Case.

On December 26, 1976, petitioner Albernaz and DEA agent

Theodore Weed, posing as a man with a boat and access to

other boats, began negotiations for Weed to offload 15,000-

20,000 pounds of marijuana from a freighter at sea and bring

it back into a port. Over the course of the next month, Weed

was introduced to Rodriguez, Smigowski, and another indi-

vidual purportedly acting with petitioners (A. 5a-6a). There

were a number of meetings with a number of plans and

changes of plans as to the amount of marijuana involved, the

boat to be used, and the selection of an offload site (A. 6a).

Petitioner Smigowski was present at only three of those meet-

ings, held on January 7th and 8th, during which he made two

isolated remarks.'

On January 27, 1977, a vessel crewed by DEA agents, Cus-

toms Agents, and DEA civilian employees left West Palm

' At the first meeting Smigowski asked about the lights at a proposed off-

load site. He said nothing at the second meeting. At the third meeting he

said that two ton of marijuana was worth more than $500,000, so there was

no way Weed’s group could lose money.

Beach to meet the freighter 200-225 miles east of the United

States. They were to offload 1,100 bales of marijuana weigh-

ing approximately fifty pounds each. Two days later peti-

tioners Rodriguez, Albernaz and Martins chartered a plane to

assist in the rendezvous, which was not completed due to dark-

ness. The following day the rendezvous was made, the off-

loading began, the Coast Guard was called, the cargo was

seized and thirteen men on board the freighter were arrested

(A. 6a).* Petitioners were arrested in Miami that night

(A. 7a).

A two-count indictment charging eighteen individuals, in-

cluding petitioners, with conspiracy to import marijuana in

violation of 21 U.S.C. § 963 (count 1) and conspiracy to distri-

bute marijuana in violation of 21 U.S.C. § 846 (count 2) was

returned in the Southern District of Florida.

Petitioners were tried jointly before the Honorable C. Clyde

Atkins, United States District Judge, and ajury. At trial, peti-

tioners Albernaz, Rodriguez and Smigowski raised a defense of

jurisdictional entrapment, introducing the testimony of the

navigator of the vessel carrying the marijuana which had been

given in the trial of the thirteen Colombian sailors — testi-

mony that as far as the navigator knew his cargo had not been

destined for the United States or for United States territorial

waters; that, on the contrary, he had been given two destina-

tions for the voyage — one off the coast of the Bahamas and

the other one off the coast of Canada — and had been told

that the freighter was to be unloaded by boats coming from

the Bahamas, Norwegian and Canadian fishing boats.

On cross-examination agent Weed testified that by January

8, 1977 he had learned that the freighter, which had left Col-

ombia prior to Christmas, was short of food and the crew was

* The thirteen members of the crew were charged as co-conspirators. They

were tried separately.

near mutiny. Indeed, Weed admitted that without the DEA’s

assistance at that juncture, the plan may well have been

aborted.

Testimony was also elicited on cross-examination to the ef-

fect that there was no evidence of a conspiracy to import mari-

juana into the United States prior to Agent Weed’s involve-

ment in the scheme; that the physical means of importing the

marijuana into the United States territorial waters was to be

the vessel procured by the DEA for this purpose; that the DEA

had selected the point of debarkation; that all of the persons

who were to be involved in the physical transportation of the

marijuana into United States territorial waters and its unload-

ing were government agents or were subcontractors working

for the government; that initially the defendants were negoti-

ating with persons other than the DEA agents, of unknown

identity and unknown nationality, to do the offloading; * that

until January 7th the DEA did not actually have access to a

boat but Weed told Albernaz he did because he was afraid

that Albernaz would go to someone else; and that by the time

the scheme had reached the point where it would have been

aborted by failure to procure a boat within two days time the

DEA was the only group with whom petitioners were negoti-

ating for the vital offloading function, and thus the DEA’s

services were absolutely essential to the scheme to import

marijuana.

The circumstances of the seizure itself were also explored by

the defense. The freighter was seized in international waters,

was not of United States registry (in fact being of Canadian

registry out of St. Johns, Newfoundland), was entirely manned

by Colombian nationals, was carrying no United States citi-

zens, and was owned by none of the defendants.

* Weed admitted that large loads of marijuana had been imported into the

Bahamas in recent years.

Based on this testimony, petitioners sought an instruction on

their defense of jurisdictional entrapment — a defense predi-

cated on the legal principle that a conspiracy to import into

and/or distribute marijuana in some other country is not an of-

fense against the United States, and on the evidence adduced

at trial of governmental inducement to import into and/or

distribute the marijuana within the United States.

The trial court agreed that an instruction on this theory of

defense was appropriate. However, as set forth infra, the in-

struction given by the court, and objected to by petitioners,

failed to adequately set forth the parameters of this key de-

fense theory.

Petitioners also preserved their objections to the court’s in-

struction on reasonable doubt (an instruction which equated

reasonable doubt with substantial doubt), and to the court’s

instruction on “distribution” (an instruction which erroneous-

ly defined distribution as transferring an object into the United

States).

Reasons Why the Writ Should be Granted.

If, as our system of criminal justice provides, the jury is to

determine the guilt or innocence of a criminal defendant by

applying the law provided to it by the court to the facts found

by the jury, that law must be accurately and fairly stated to in-

sure that the defendant receives a fair trial and due process of

law. This case raises three questions concerning the funda-

mental fairness of three instructions provided by the court —

its instruction defining an element of the offense; its instruc-

tion defining the standard of reasonable doubt, a standard

which, as this court has stated, “plays a vital role in the Ameri-

can scheme of criminal procedure” In re Winship, 397 U.S.

358, 363 (1970); and its instruction presenting to the jury peti-

tioners’ theory of defense, a defense of jurisdictional entrap-

ment. Petitioners contend that all of these instructions were

erroneous and deprived them of their constitutional right to a

fair trial.

I. THE Court’s Error in DeErininc “DisTRIBUTION” — AN

EssENTIAL ELEMENT OF THE OFFENSE CHARGED IN CouNT 2

OF THE INDICTMENT — REQuIRES REVERSAL.

In instructing the jury as to the elements of the offense of

conspiracy to distribute charged in Count 2 of the indictment,

the trial court charged that “distribution means, with respect

to any article, transferring into the United States some or all of

the article to another individual while in the United States”

(emphasis added). As recognized by the court below, “this in-

struction was erroneous” (A. 15a). The prejudice from this

failure to clearly and correctly define distribution is clear; the

instruction obliterated the distinction between the two counts

of the indictment — conspiracy to import and conspiracy to

distribute — and invited the jury to convict the petitioners for

conspiracy to distribute if it found evidence of conspiracy to

import. Nonetheless, pointing to certain circumstantial “evi-

dence” and weighing the prejudicial impact of the erroneous

instruction against “the weight of the evidence pointing to

conviction” the court affirmed petitioners Albernaz’ and Rod-

riguez’ convictions for conspiracy to distribute.‘

Petitioners Albernaz and Rodriguez submit that in engaging

in such a weighing process the court acted in direct contraven-

tion of the well established principle that where the jury re-

‘The Court vacated the convictions of petitioners Smigowski and Martins

on Count 2 for lack of sufficient evidence to support a finding of conspiracy

to distribute beyond a reasonable doubt.

turns a general verdict and one of the possible grounds for that

verdict is invalid, the verdict cannot stand.

Thus, in Yates v. United States, 354 U.S. 298 (1957) defend-

ants were charged with conspiracy both to advocate the over-

throw of the United States and to organize the Communist

Party of the United States with the intent of causing the over-

throw of the government. Because of a statute of limitations

problem, the conspiracy to organize theory should not have

been submitted to the jury. Despite the government’s argu-

ment that the conviction could properly have been returned on

the advocacy theory alone, this Court held — without con-

sideration of the weight of the evidence — that reversal was

mandated, since, “the proper rule to be applied is that which

requires a verdict to be set aside in cases where the verdict is

supportable on one ground, but not on another, and it is im-

possible to tell which ground the jury selected.” Id. at 312.

Similarly, in Bachellar v. Maryland, 347 U.S. 564 (1970), de-

fendants, who were conducting a demonstration against the

Vietnam War, were convicted of disturbing the public peace.

Under the court’s instructions the guilty verdict could have

rested on any of three grounds, one of which was constitu-

tionally impermissible. Again this Court reversed. See also,

Stromberg v. California, 283 U.S. 359 (1931); Williams v.

North Carolina, 317 U.S. 387 (1942); Sandstrom v. Montana,

___U.S.___,, 99 S. Ct. 2450 (1979).

Accordingly, here, because @he verdict was a general one

and because the jury may have reached its verdict on Count 2,

on the basis of an erroneous instruction equating distribution

with importation, per se reversal was required. The court be-

low thus erred in balancing the prejudicial impact of the in-

struction against the weight of the evidence, and because its

approach conflicts with established precedent of this Court,

certiorari shou'd be granted.

Il. THE Famure TO ProperR_y AND ADEQUATELY INSTRUCT THE

Jury CONCERNING PETITIONERS’ THEORY OF DEFENSE DENIED

THEM Due Process or Law.

Although a number of Courts of Appeals have held that a

criminal defendant is entitled to an instruction on any theory

of defense for which there is any evidentiary foundation (see,

e.g., United States v. Leach, 427 F.2d 1107 (1st Cir. 1970),

cert. denied, 400 U.S. 829; United States v. Alfonso-Perez, 535

F.2d 1362 (2d Cir. 1976); United States v. Gilbreath, 452 F.2d

992 (5th Cir. 1971); United States v. Creamer, 555 F.2d 612

(7th Cir. 1977) cert. denied, 434 U.S. 833, this Court has

never discussed the basis for or the parameters of this right.

Petitioners submit that the right to an instruction on a theory

of defense supported by any evidence is founded on principles

of fundamental fairness and due process of law, guaranteed by

the Fifth Amendment to the United States Constitution. The

government’s theory of the case is, in essence, presented to the

jury both when the indictment is read and when the court

charges on the elements of the offense. Fundamental fairness

demands that . defendant, similarly, have his theory of de-

fense presented to the jury by the court and not simply in the

argument of counsel, which does not bear the imprimatur of

neutrality carried by the court’s instructions and, as the jury is

instructed, is not evidence.®

If this right is to have any meaning, a theory of defense in-

struction must “precisely and specifically, rather than merely

generally or abstractly, [point] to the theory of [a defendant's]

defense”. United States v. Gilbreath, supra, 452 F.2d at 994.

Just as the elements of the offense must be specifically and ac-

curately presented to the jury, so must a theory of defense.

*As noted in United States v. Alfonso-Perez, supra, 535 F.2d at 1365,

defense summation cannot take the place of judicial instruction.

In this case, jurisdictional entrapment — a theory of defense

predicated on the legal principle that a conspiracy whose ob-

jective is located in some other country is not a crime against

the United States — was a key defense raised by petitioners

Albernaz, Smigowski and Rodriguez. Petitioners contended

that since the government, through its agents, had induced

them to conspire to import into and/or distribute marijuana

within the United States, rather than into and/or within some

other country, they had been jurisdictionally entrapped. See,

e.g., Carbajal-Portillo v. United States, 396 F.2d 944 (9th Cir.

1968) (where defendant sought to sell narcotics in Mexico and

crossed the border into the United States only upon the induce-

ment of a state narcotics agent, defendant had been en-

trapped).

Proper explanation of this theory required instruction on

two jurisdictional aspects — the concept of “jurisdictional in-

ducement,” i.e., that the government had induced petitioners

to import into and/or distribute marijuana within the United

States rather than into or within some other country; and the

concept of “jurisdictional non-predisposition,” i.e., that peti-

tioners need not be innocent of criminal designs against some

other country to be able to raise the defense of jurisdictional

entrapment.

The trial court agreed that petitioners were entitled to in-

structions on their theory of defense.* Accordingly, the court

was obligated to give that instruction in a clear and correct

form which properly and completely conveyed the theory of

defense to the jury. While presenting, in substance, the gener-

al legal principle underlying the defense, the charge to the jury

*In holding the instructions adequate, the Court of Appeals declined to

consider the validity of the legal principles of the defense of jurisdictional en-

trapment, stating that the “factual hypotheses on which they were also based

were not established” (A. 8a). However, by agreeing to instruct on this

theory of defense the trial court necessarily found that the evidence established

sufficient factual hypotheses to warrant presentation of the defense to the

jury — a finding which petitioners submit is amply supported by the record.

failed to specifically explain the particular and narrowly de-

fined nature of the defense itself. Rather, as a whole, it

created the erroneous impression that petitioners had to be in-

nocent of all criminal predisposition to benefit from the juris-

dictional entrapment defense, thereby depriving petitioners of

the heart of their defense since they did not claim to be inno-

cent of criminal designs against some other country before

they were induced by government agents, but only claimed

the absence of a design to commit a criminal offense against

the United States.

This Court has not yet defined the parameters of a defend-

ant’s right to an instruction on his theory of defense; nor has it

discussed the defense of jurisdictional entrapment. Certiorari

should be granted to provide guidance to lower courts on these

questions and to promote the uniform and equitable adminis-

tration of justice throughout the federal system.

III. THe Court’s INstRuCcTION EQUATING REASONABLE DouBT

WITH SUBSTANTIAL DouBT IMPERMISSIBLY LESSENED THE

GOVERNMENT’S CONSTITUTIONALLY MANDATED BURDEN OF

PROOF.

As this Court held in In re Winship, 397 U.S. 358, 364

(1970) “the Due Process Clause protects the accused against

conviction except upon proof beyond a reasonable doubt of

every fact necessary to constitute the crime with which he is

charged”. By instructing the jury, in pertinent part, that “[a]

reasonable doubt means a doubt that is based on reason and

common sense. Such doubt must be substantial rather than

speculative” (A. 9a), petitioners submit that the trial court in

this case overstated the degree of uncertainty required for

finding a reasonable doubt, impermissibly lessening the gov-

ernment’s burden of proof in derogation of the Due Process

Clause of the Fifth Amendment to the United States Constitu-

tion.

Instructions equating reasonable doubt with substantial

doubt, have, as this Court stated in 1aylor v. Kentucky, 436

U.S. 478 (1978), often been criticized as confusing. Indeed,

they have engendered substantial criticism and warnings

against their continued use from a number of courts. (See,

e.g., United States v. Alvero, 470 F.2d 981 (5th Cir. 1972);

United States v. Wright, 542 F.2d 975 (7th Cir. 1976), cert.

denied 429 U.S. 1073, and United States v. Atkins, 487 F.2d

257 (1973)). Nevertheless as demonstrated by this case, the

use of this erroneous equation has not been laid to rest.

Although recognizing that “it certainly would have been

better for the charge to be given in other terms” (A. 9a) and

warning against the continued use of the equation of reason-

able and substantial doubt (A. 10a), the court below held that

when viewed contextually there was no reversible error. (Id.).

Petitioners submit that where, as here, the fundamental con-

cept of reasonable doubt — a concept which provides “con-

crete substance for the presumption of innocence — that bed-

rock ‘axiomatic and elementary’ principle whose ‘enforcement

lies at the foundation of the administration of our criminal

law’” (In re Winship, supra, 397 U.S. at 363) — has been ex-

plained, in part, in terms so erroneous that the reviewing court

warns that continued use may constitute plain error (A. 10a),

reliance on other portions of the charge to correct that error is

misplaced; the court cannot determine which part of the in-

struction the jury relied on in reaching its verdict. Just as

reversal is required where a jury’s general verdict could have

rested on an impermissible ground, so it should be required

where it could have rested on application of an improper

standard of reasonable doubt.

Thus, this case presents this Court with an opportunity to

clarify the proper definition of the fundamental concept of

reasonable doubt and to provide standards to guide the lower

courts in determining the effect of erroneous jury instructions

on a verdict, thereby promoting the fair and uniform adminis-

tration of justice throughout the federal system.

Conclusion.

For all the foregoing reasons this petition for a writ of cer-

tiorari should be granted.

Respectfully submitted,

JOSEPH S. OTERI,

MARTIN G. WEINBERG,

JUDITH H. MIZNER,

OTERI & WEINBERG,

10 Post Office Square, Suite 528,

Boston, Massachusetts 02109.

(617) 227-3700

Attorneys for Petitioners

Thomas J. Albernaz

and Peter Smigowski.

RAYMOND E. LaPORTE,

408 Madison Street,

Tampa, Florida 33602.

Attorney for Petitioner

Edward Rodriguez.

JOEL M. MAGAZINE,

2669 South Bayshore Drive,

Cocoanut Grove, Florida 33133.

Attorney for Petitioner

William J. Martins.

UNITED STATES v. RODRIGUEZ

UNITED STATES of America,

Plaintiff-Appellee,

Edward RODRIGUEZ, a/k/a Rick,

Thomas J. Albernaz, Peter Smigow-

ski, and William John Martins, De-

fendants-Appellants.

No. 77-5339.

United States Court of Appeals,

Fifth Circuit.

Nov. 14, 1978.

Defendants were convicted in the

United States District Court for the

Southern District of Florida, C. Clyde |

Atkins, Chief Judge, of conspiracy to im-

, port marijuana and conspiracy to distrib-

ute marijuana, and they appealed. The

Court of Appeals, Alvin B. Rubin, Circuit

Judge, held that: (1) there was suffi-

cient evidentiary basis for jury to con-

clude, beyond reasonable doubt, that de-

fendants were predisposed to import

marijuana and were not entrapped into

doing 80; (2) confession made after be-

ing counseled by friend was admissible;

(3) reasonable doubt charge did not re-

quire reversal; (4) prosecutor's com-

ments that he thought evidence against

defendants was overwhelming and that

he thought jury could reach only conclu-

sion of guilt did nct have prejudicial im-

pact; (5) evidence was sufficient to

prove conspiracy to distribute; (6) evi-

dence was not sufficient to sustain dis-

tribution conviction of defendants who

were peripheral participants in importa-

tion scheme and who would not have

control over marijuana once it was with-

in United States and (7) separate convic-

tions of conspiracy to import and con-

spiracy to distribute would be affirmed

notwithstanding contention that there

was a single illegal agreement.

Affirmed in part, reversed in part

and remanded.

1. Criminal Law @=569

Drugs and Narcotics 124

There was sufficient evidentiary ba-

sis for jury in drug prosecution to con-

clude, beyond reasonable doubt, that de-

fendants were predisposed to import

marijuana into the United States and

were not entrapped into doing so nor

enmeshed in crime by federal agents.

Comprehensive Drug Abuse Prevention

and Control Act of 1970, §§ 401, 406,

1002, 1018, 21 U.S.C.A. §§ 841, 846, 952,

2.:Criminal Law 2569

Government has ultimate burden of

proving beyond reasonable doubt that

predisposition and not inducement was

cause of crime.

3. Criminal Law #=822(8)

Even though trial court did not spe-

cifically describe allocation of proof

when it discussed entrapment, where tri-

al court properly indicated that reasona-

ble doubt as to inducement required ac-

quittal on drug charges, jury was in-

structed that general burden of proof

beyond reasonable doubt was on Govern-

ment and it was evident from charge as

whole that such allocation governed en-

trapment defense, charge was not inade-

quate.

4. Criminal Law @1172.2

When viewed contextually, charge

that reasonable doubt means doubt that

is based on reason and common sense

and that such doubt must be substantial

rather than speculative did not consti-

tute reversible error even though it

would have been better for charge to

have been given in other terms.

5. Criminal Law @=822(16)

In reviewing reasonable doubt

charges, court looks to whole instruction

rather than isolate any particular sen-

tence.

6. Arrest @63.4(6)

Where government agents, at time

of defendant’s arrest, had no knowledge

that he was connected with drug conspir-

acy although they had seen his name on

passenger manifest of chartered aircraft

used in conspiracy and were aware that

he was in room with conspirator on

night of arrest, agents did not have

probable cause to arrest defendant.

7. Criminal Law #519(8)

Even though government agents

had no probable cause to arrest defend-

ant, where defendant after his arrest

was advised of his constitutional rights,

obtained meaningful counsel from frend

who was law enforcement officer and

who advised him to cooperate with

government agents and made confession

after being so counseled, confession was

not fruit of illegal arrest and was admis-

sible.

8. Infants #69

Trial court’s failure to state explicit-

ly that defendant would not benefit

from sentencing under Youth Correc-

tions Act did not constitute error where

record established that court fully con-

sidered whether defendant would benefit

from sentencing under Act. 18 U.S.C.A.

§ 5005 et seq.

9. Criminal Law @719(3)

It is improper for counsel to express

his personal opinion or to state facts of

his own knowledge not in evidence and

not part of evidence to be presented.

ABA Code of Professional Responsibility,

DR7-106(c)\1, 3, 4, 7).

2a .

UNITED STATES v. RODRIGUEZ

10. Criminal Law @719(1), 720(5)

Prosecutor has duty to be scrupulous

in his argument and avoid all efforts to

obtain a conviction by going beyond evi-

dence before jury or by putting sanction

of his office behind testimony of wit-

nesses. ABA Code of Professional Re-

sponsibility, DR7-106(cX1, 3, 4, 7).

11. Criminal Law @719(3)

Prosecutor's expression of personal

belief may be tolerated if it is based

solely on evidence introduced and jury is

not led to believe that other evidence,

unavailable to them, justified the belief.

12. Criminal Law #=720'A

Prosecutor may state, “I believe

that the evidence has shown defendant's

guilt” but not “I believe that defendant

is guilty.” ‘

13. Criminal Law #730(7)

Court’s jury instruction may be con-

sidered as a factor in assessing degree of

prejudice arising from prosecutor's giv-

ing of personal opinion.

14. Criminal Law #719(3)

In assessing prejudicial impact of

prosecutor’s comments expressing his

opinion, court will consider strength of

evidence against each defendant who

might have been prejudiced.

15. Criminal Law @=719(3)

Prosecutor's statement that he

thought the evidence was overwhelming

and that he thought jury could reach

only conclusion of guilt and that defend-

int confessed because he was guilty of

serious crime and was not a hardened

criminal did not prejudice defendant

with respect to charge of conspiracy to

import marijuana where evidence

against defendant who confessed was

overwhelming, prosecutor’s expressions

of persona! belief referred to evidence or

conclusions drawn from it and prosecu-

UNITED STATES v. RODRIGUEZ

tor’s conjecture was at least partially fa-

vorable in that it cast defendant as re-

morseful ‘and not hardened criminal.

Comprehensive Drug Abuse Prevention

and Control Act of 1970, §§ 1002, 1013,

21 U.S.C.A. §§ 952, 963.

16. Criminal Law @ 1171.3

Prosecutor’s remarks that he

thought evidence against defendants was

overwhelming and that he thought jury

would have to reach only conclusion of

guilt did not prejudice defendants in

that statements were not specifically di-

rected at either of them and case against

two defendants was overwhelming.

17. Criminal Law @ 1144.13(3)

In reviewing sufficiency of evidence

to support a conviction, evidence must be

viewed in light most favorable to

government.

18. Conspiracy #47(1)

There must be proof beyond reason-

able doubt that a conspiracy existed,

that accused knew it and, with that

knowledge, voluntarily joined it.

19. Conspiracy @=43(12)

There is no need to allege or prove

overt act in a conspiracy prosecution un-

der sections governing attempt and con-

spiracy. Comprehensive Drug Abuse

Prevention and Control Act of 1970,

§§ 406, 1013, 21 U.S.C.A. §§ 846, 963.

20. Conspiracy @=47(12)

Evidence in drug conspiracy was

sufficient to prove an agreement to dis-

tribute by defendants who imported

marijuana in large quantities. Compre-

hensive Drug Abuse Prevention and

Control Act of 1970, §§ 401, 406, 21 U.S.

C.A. §§ 841, 846.

21. Conspiracy @=40.1

Mere association with other persons

involved in criminal enterprise is insuffi-

cient to prove participation in a conspir-

acy.

22. Conspiracy #40 .

Proximity to crime or even actual

presence at scene of crime is not suffi-

cient to prove participation in a conspir-

acy.

23. Conspiracy #=40.1

Mere knowledge, acquiescence or ap-

proval without cooperation or agreement

to cooperate is not enough to constitute

_ one a party to a conspiracy.

24. Conspiracy @47(12)

Defendant’s knowledge of conspir-

acy and presence at meetings relative to

conspiracy, taken together with his

statements relative to carrying out of

conspiracy and money gto be realized

from drug transaction was sufficient to

connect defendant with conspiracy to im-

port marijuana. . Comprehensive Drug

Abuse Prevention and Control Act of

1970, § 1002, 21 U.S.C.A. § 952.

25. Criminal Law @ 1171.3

Prosecutor’s erroneous statement

placing defendant at key meeting rela-

tive to conspiracy to import marijuana

was harmless error where there was in-

disputable evidence that defendant was

connected with the conspiracy and that

he attended other key meetings. Com-

prehensive Drug Abuse Prevention and

Control Act of 1970, § 1002, 21 U.S.C.A.

§ 952.

26. Criminal Law #=720(1)

Prosecutor’s expression of opinion as

to weight of evidence was not an en-

dorsement of his case.

27. Drugs and Narcotics #73

Very size of a narcotics cache can be

sufficient to show intent to distribute.

Comprehensive Drug Abuse Prevention

and Control Act of 1970, § 401, 21 U.S.

C.A. § 841.

28. Conspiracy @47(12)

Although there was no direct evi-

dence that defendants planned to distrib-

ute marijuana in the United States,

where evidence showed plan to import

1,100 50-pound bales of marijuana and

use of vans to transport marijuana and

that conspirators were short on “front

money,” evidence was sufficient to es-

tablish a conspiracy to distribute. Com-

prehensive Drug Abuse Prevention and

Control Act of 1970, §§ 401, 406, 21 U.S.

C.A. §§ 841, 846.

29. Criminal Law @805(3)

Trial court in marijuana distribution

prosecution erred when it used word

“into” in instruction that distribution

meant transferring “into” the United

States some or all of article to another

individual while in the United States.

Comprehensive Drug Abuse Prevention

and Control Act of 1970, § 401, 21 U.S.

C.A. § 841. .

30. Criminal Law 1162

In determining whether erroneous

instruction and other errors required re-

versal, court had to determine whether

errors might have contributed to verdict

that was reached.

31. Criminal Law @ 1172.1(5)

Erroneous instruction that distribu-

tion means transferring “into” the Unit-

ed States was not unduly prejudicial to

two defendants where subsequent cor-

rect definition was given and where evi-

dence against defendants as to their par-

ticipation in conspiracy to distribute

marijuana was overwhelming. Compre-

hensive Drug Abuse Prevention and

Control Act of 1970, § 401, 21 U.S.C.A.

§ 841.

32. Conspiracy t47(12)

Direct and circumstantial evidence

that two defendants were peripheral

participants in scheme to import mari-

UNITED STATES v. RODRIGUEZ

juana did not refute, beyond reasonable

doubt, hypothesis that they had no

knowledge of a conspiracy to distribute

once marijuana reached shores of United

States. Comprehensive Drug Abuse Pre-

vention and Control Act of 1970, §§ 401,

406, 1002, 1018, 21 U.S.C.A. §§ 841, 846,

952, 953.

33. Conspiracy # 40.1

One who knows of a conspiracy and

intentionally acts in furtherance of it is

culpable as a conspirator.

34. Conspiracy @47(12)

Although defendants who contribut-

ed to scheme to import marijuana could

be charged with knowledge that scheme

to distribute would likely be formed once

marijuana arrived in United States, that

was not sufficient to exclude, beyond

reasonable doubt, the hypothesis that

they did not then join in the conspiracy

to distribute or even know of it. Com-

prehensive Drug Abuse Prevention and

Control] Act of 1970, §§ 401, 406, 1002,

1013, 21 U.S.C.A. §§ 841, 846, 952, 953.

35. Conspiracy #40

Where two defendants were periph-

eral participants in scheme to import

marijuana and there was no evidence

that they would come into possession of

marijuana once it arrived in the United

States share in its proceeds thereafter or

other evidence that they were privy to

plans to distribute marijuana, defendants

could not be convicted of conspiracy to

distribute marijuana. Comprehensive

Drug Abuse Prevention and Control Act

of 1970, §§ 401, 406, 1002, 1013, 21 US.

C.A. §§ 841, 846, 952, 953.

36. Criminal Law #193

Double jeopardy clause precluded re-

trial of defendants whose conviction of

conspiracy to distribute marijuana was

overturned.

37. Criminal Law @=29

A single act may constitute two of-

fenses if it violates two substantive stat-

utes but, even if a single agreement has

more than one unlawful objective, it

may not truly constitute two conspira-

cies. —

38. Conspiracy @24

It is agreement that is illegal in a

conspiracy; if there is only one agree-

ment, there is but one offense though its

objectives are multiple.

39. Criminal Law #29

A single act may cause more than a

single consequence; therefore, one act

may be prosecuted and punished as more

than a single offense.

40. Conspiracy @40.1

Government need prove only that a

conspirator agreed to one of many objec-

tives charged to hold him liable for other ,

objectives of agreement.

41. Conspiracy @28(1)

Commission or attempted commis-

sion of several offenses constitutes sev-

eral crimes but one agreement to violate

a number of laws remains but one crime

if it is charged merely as a conspiracy

and not as a substantive offense.

42. Conspiracy #23

There may be two or more agree-

ments in a given case and each may

violate different or identical conspiracy

statutes.

43. Conspiracy @=28(3)

Separate convictions of conspiracy to

import marijuana and conspiracy to dis-

tribute marijuana would be affirmed

notwithstanding contention that there

was a single illegal agreement relative to

*Senior Judge of the United States Court of

Claims, sitting by designation.

UNITED STATES v. RODRIGUEZ

857

drugs. Comprehensive Drug Abuse Pre-

vention and Control Act of 1970, §§ 401,

406, 1002, 1013, 21 U.S.C.A. §§ 841, 846,

952, 953. '

Appeals from the United States Dis-

trict Court for the Southern District of

Florida.

Before SKELTON *, Senior Judge,

and FAY and RUBIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

The appellants challenge their convic-

tions on both counts of a two count in-

dictment charging conspiracy to import

marijuana in violation of 21 U.S.C.

§ 952, and a conspigacy to distribute

marijuana in violation of 21 U.S.C.

§ 841,' alleging that some twenty differ-

ent errors were committed below. Their

cavalcade of contentions marches against

a background of dramatic events narrat-

ed by the government witnesses. A full

panorama would be fitting material for

a novelist but redundant to this opinion

80 we recount only so much as appears

essential for decision.

During a lengthy intrigue conducted

with various of the defendants, a special

agent of the Drug Enforcement Admin-

istration (“DEA”), Theodore Weed, rep-

resented himself as being able to obtain

a boat that could unload marijuana from

a vessel at sea and transport it to Flori-

da. He was to be paid $200,000 or ten

percent of the value of the cargo, which

was eventually represented to be 40,000

pounds. He was first approached by the

defendant Albernaz. During the course

1. Conspiracy to violate § 952 is punishable un-

der 28 U.S.C. § 963. Conspiracy to violate

§ 841 is punishable under 28 U.S.C. § 846.

of negotiations that ensued, he was in-

troduced to defendants Rodriguez and

Smigowski, as Albernaz’s principals.

There were many meetings, complicat-

ed plans, and many conversations with

Albernza and Rodriguez, some of which

were tape recorded. Eventually, a place

to unload the cargo was located on a

Florida key south of Marathon. Plans

were made to meet the freighter that

would bring the cargo, and Captain

Jones, the captain of the Catchalot II,

was enlisted. Captain Jones was secret-

ly assisting the government.

Albernaz gave DEA agent McCut-

cheon and Captain Jones the final in-

structions, including the coordinates for

a rendezvous with the freighter, and

codes to be used when communicating

with it. Albernaz stated that they were

to unload 1,100 bales containing about 50

pounds each, and that there was an op-

tion for 300 more bales which could be

obtained if a particular message were

given the captain of the freighter. The

Catchalot II left West Palm Beach the

evening of January 27, with a crew se-

cretly composed of DEA agents, Customs

agents, and civilians. Albernaz and Ro-

driguez continued their efforts to ar-

range for delivery of the valuable cargo.

Two days later, the co-defendant Wil-

liam Martins chartered a Piper Navajo

aircraft. Martins, Rodriguez and Alber-

naz, together with three pilots, flew on

the plane from Fort Lauderdale to the

Bahamas. Martins told one pilot, Jerry

Harvey, that they were searching for a

fishing boat which was in trouble. Due

to darkness, the rendezvous of the ves-

sels could not be completed, so the plane

carrying Martins, Albernaz and Rodri-

guez returned to Fort Lauderdale. Har-

vey was paid $900 for the trip.

2. The marijuana was transferred 30 miles east

of Elbow Cay, outside of Abaco Island in the

UNITED STATES v. RODRIGUEZ

The next day, Martins again chartered

Harvey's aircraft. Harvey flew Martins,

Albernaz and Rodriguez over the

freighter and the Catchalot I]; messages

were dropped to each indicating the loca-

tion of the other vessel. The Catchalot

II established itself as the pickup boat

via the use of the code disclosed by Al-

bernaz. Captain Jones informed the

captain of the freighter that he wanted

“to offload” immediately. The captain

of the freighter replied that he wanted

to wait for dark, but eventually agreed

to unload after asserting that he had

never “offloaded” in daytime before.

The Catchalot II tied up alongside the

freighter and 150 bales of marijuana

were unloaded pursuarftt to a careful

count by the captain of the freighter and

Captain Jones.

Ostensibly to stow the marijuana bales

below deck, the Catchalot II] moved

away from the freighter, and then cov-

ertly called the Coast Guard. During

the next few hours, the Catchalot II

maintained a distance from the freight-

er. The Coast Guard vessel Dauntless

appeared on the scene at approximately

7:00 p. m.

Using both Spanish and English, the

Coast Guard vessel] ordered the freighter

to stop. It did not respond and, after

approximately 30 minutes, the Coast

Guard fired three short bursts of a ma-

chine gun across its bow. It then fired

three rounds from a canon. This caused

the freighter to stop. Thirteen Colombi-

an seamen aboard the freighter were ar-

rested, and, although separately tried,

were charged as co-conspirators with the

appellants herein. The appeal from

their convictions is separately reported.

United States v. Cadena, 5 Cir. 1978, slip

op. p. 874, —— F.2d

Bahamas, 200 to 225 miles east of the United

States.

UNITED STATES v. RODRIGUEZ

About the time these events were oc-

curring, defendants Martins and Rodri-

guez were arrested in a Miami hotel

room, and Miranda’ warnings were giv-

en to them. Smigowski and Albernaz

were arrested an hour later at the same

hotel.

At DEA headquarters, Agent Fernan-

dez discovered that Martins was only 18

and asked him how he got into trouble.

In an emotional state, Martins replied

that he would give his story but “he had

to make a telephone call prior to talking

. . «” Martins’ parents had recently

died so he called a family friend, Captain

Bob Frost of the Hialeah Police Depart-

ment, and asked his friend whether or

not he should cooperate with the federal

agents. Captain Frost asked Martins

about the circumstances of the arrest;

the young defendant indicated that he

had gotten into a marijuana deal and:

that someone had given him $20,000.

Captain Frost then advised Martins to

cooperate with the agents. Martins be-

came very upset; he said to Captain

Frost that, if he did cooperate, he would

be killed. After Frost advised Martins,

Agent Fernandez got on the phone and

promised Frost that, if Martins cooperat-

ed, the DEA would provide the Hialeah

Police Department with helpful informa-

tion. Martins then gave a statement

that incriminated himself and some of

the other defendants.

The defendants were each convicted of

a conspiracy to import marijuana, 21

U.S.C. § 952, (Count I) and a conspiracy

3. Miranda v. Arizona, 1966, 384 U.S. 436, 86

S.Ct. 1602, 16 L.Ed.2d 694.

4. Rodriguez was sentenced to imprisonment

for four and one-half years on both counts, the

sentences to be served consecutively. Alber-

naz was sentenced to imprisonment for three

and one-half years (42 months) on each count,

the sentences to be served consecutively.

Smigowski was sentenced to imprisonment for

to distribute marijuana, 21 U.S.C. § 841,

(Count II).4 There was no distinction

whatsoever between the allegations in

the Count I conspiracy and the Count II

conspiracy except that each count cited a

different statutory section and a differ-

ent objective. The overt acts charged

and all the other recitals of the indict-

ment in each count were identical. Ap-

pellants raise eleven common challenges

to their convictions; Martins raises nine

additional grounds, and Smigowski sepa-

rately challenges the sufficiency of the

evidence.

Appellants raise ansingenious defense

which they call jurisdictional entrap-

ment. They note that, had they con-

spired to import marijuana from a

freighter located in,international waters

into some country other than the United

States, they would not have committed a

crime against the. United States or be

subject to its jurisdiction. They contend

that the government induced them to

conspire to import the marijuana into,

and distribute it within, the United

States rather than another country. In

addition, appellants raise the related is-

sue that importation into the United

States was suggested by the govern-

ment; therefore, they were enmeshed in

a crime fomented by the state. This

misconduct, they urge, required their ac-

quittal. See United States v. Oquendo, 5

Cir. 1974, 490 F.2d 161, where the court

three years on both counts, the sentences to

be served consecutively. Martins was sen-

tenced to three years on each count, the sen-

tences to be served concurrently. Each was

sentenced to a special parole term of two

years on each count, to be served consecutive-

ly by Reriguez, Albernaz and Smigowski, and

concurrently by Martins.

approved submitting to the jury bath the

traditional entrapment defense and the

different but related entrapment defense

discussed in United States v. Bueno, 5

Cir. 1971, 447 F.2d 903, cert. denied,

1978, 411 U.S. 949, 93 S.Ct. 1931, 36

L.Ed.2d 411.5

[1] We need not consider and endorse

or disclaim the legal bases on which

these contentions are postulated because

the factual hypotheses on which they

were also based were not established.

The trial judge submitted each conten-

tion to the jury under an adequate

charge,* and there was a sufficient evi-

dentiary basis for the jury to conclude,

beyond a reasonable doubt, that the de-

fendants were predisposed to import

marijuana into the United States, and

were neither entrapped into doing so nor

enmeshed in crime by federal agents.

{[2,3) Appellants also contend that

the charge failed adequately to allocate

the burden of proof with respect to the

standard entrapment defense. The

government has the “ultimate burden

{of} proving beyond reasonable doubt

5. In Bueno, this court held that entrapment is

established as a matter of law whenever the

contraband in question is supplied to the de-

fendant by a government agent, even where

the defendant is predisposed. Bueno was ef-

fectively overruled by Hampton v. United

States, 1976, 425 U.S. 484, 96 S.Ct. 1646, 48

L.Ed.2d 113.

6. Appellants complain that the court did not

instruct that jurisdictional entrapment could

occur if they had a predisposition to commit

crimes only against other countnes. Even if

predisposition must contemplate a particular

jurisdiction, this was adequately explained in

the charge which provided in relevant part:

In the event the evidence establish[{es) that

the government induced the defendant to im-

port and/or distribute the manjuana into the

United States, as opposed to some other jur-

isdiction or country, then the defense of en-

trapment will lie.

UNITED STATES v. RODRIGUEZ

that predisposition and not inducement

was the cause of the crime.” United

States v. Tate, 5 Cir. 1977, 554 F.2d 1341,

1844; United States v. Groessel, 5 Cir.

1971, 440 F.2d 602, 606, cert. denied,

1971, 403 U.S. 9338, 91 S.Ct. 2263, 29

L.Ed.2d 718. At the point where the

court discussed entrapment, it did not

specifically describe the allocation of

proof. However, it properly indicated

that a reasonable doubt as to inducement

required acquittal.’ The jury was in-

structed that the general burden of

proof beyond reasonable doubt was on

the government, and it was evident from

the charge as a whole that this allocation

governed the entrapment defense. This

court has approved similar instructions.

United States v. Banks, 5eCir. 1973, 475

F.2d 1367, 1369; see also United States

v. Groessel, supra, 440 F.2d at 607.

Ill.

The trial court also included in the

charge to the jury the following state-

ment with respect to the general] reason-

able doubt standard:

7. dhe charge read:

If you, the jury, should find beyond a rea-

sonable doubt from the evidence in the case

that before anything at all occurred respect-

ing the alleged offense involved in this case,

the defendants were ready and willing to

commit the crimes, such as charged in the

indictment, whenever the opportunity was

afforded and that the Government officer or

their agent did no more than offer the op-

portunity, then the jury should find that de-

fendants are not victims of entrapment.

On the other hand, if the evidence should

leave you with reasonable doubt as to

whether the defendants had the previous in-

tent or purpose to commit any offense of the

character charged and did so only because

they were induced or persuaded by some

officer or agent of the Government, then it is

your duty to acquit them.

A reasonable doubt means a doubt

that is based on reason and common

sense. Such doubt must be substantial

rather than speculative.

In United States v. Alvero, 5 Cir. 1972,

470 F.2d 981, 982-983, this court re-

versed a conviction because the court

charged:

“It is not a speculative doubt, but any

substantial reasonable doubt, common,

ordinary horsesense doubt . . . a

very substantial doubt, let me put it

that way, of the guilt of the defend-

ant.”

(Emphasis added.)

However, in United States v. Turk, 5

Cir. 1976, 526 F.2d 654, 669, cert. denied,

1976, 429 U.S. 823, 97 S.Ct. 74, 50

L.Ed.2d 84, and in United States v.

Muckenstrum, 5 Cir. 1975, 515 F.2d 568,

570, cert. denied, 1975, 423 U.S. 1082, 96

S.Ct. 564, 46 L.Ed.2d 406, we sustained a

verdict despite our express disapproval

of a charge stating:

Such doubt must be substantial rather

than speculative, that is, a defendant

is never to be convicted on mere suspi-

cion or conjecture.

[4] It certainly would have been bet-

ter for the charge to be given in other

terms. But cf. LaBuy, Jury Instructions

in Federal Criminal Cases § 6.01-3.

There is no want of jurisprudence with

respect to how the reasonable doubt

standard mav be explained. See discus-

sions in In re Winship, 1970, 397 U.S.

358, 90 S.Ct. 1068, 25 L.Ed.2d 368; Hol-

land v. United States, 10 Cir. 1954, 209

F.2d 516, 522-523, aff'd, 1954, 348 U.S.

121, 75 S.Ct. 127, 99 L.Ed. 150. Little

new can, or should, be added after 200

years of judicial use of the same term.

But the charge given is sufficiently akin

to the ones permitted in Turk and Muck-

enstrum, where substantial doubt was

UNITED STATES v. RODRIGUEZ

employed to contrast speculation, to war-

rant affirmation. Unlike the charge in

Alvero, it does not directly equate rea-

sonable doubt with “very substantial

doubt” or even with a “substantial

doubt” by use of an introductory phrase

such as, “let me put it th[is] way.”

We note that the Seventh Circuit

Court of Appeals has wrestled with the

equation of reasonable doubt with sub-

stantial doubt on a number of occasions,

and, although it expressly disapproved

the formulation, it has not yet found

reversible error. United States v.

Crouch, 7 Cir. 1976, 528 F.2d 625, 630,

631, cert. denied, 1976, 429 U.S. 900, 97

S.Ct. 267, 50 L.Ed.2d 184; United States

v. Shaffner, 7 Cir. 197§, 524 F.2d 1021,

1023, note 2, cert. denied, 1976, 424 U.S.

920, 96 S.Ct. 1126, 47 L.Ed.2d 327; Unit-

ed States v. Lawson, 7 Cir. 1974, 507

F.2d 433, 440, cert. denied, 1975, 420 U.S.

1004, 95 S.Ct. 1446, 43 LEd2d 762.

Compare United States v. Bridges, 7 Cir.

1974, 499 F.2d 179, 185-186, cert. denied,

1974, 419 U.S. 1010, 95 S.Ct. 330, 42

L.Ed.2d 284. Most recently the Supreme

Court noted, “this definition, though per-

haps not in itself reversible error, often

has been criticized as confusing.” Taylor

v. Kentucky, 1978, —— U.S. '

98 S.Ct. 1930, 1936, 56 L.Ed.2d 468. Ad-

ditionally, other courts of appeals have

considered similar equations and decided

in the context of each particular case

that a new trial was not required. Unit-

ed States v. Magnano, 2 Cir. 1976, 543

F.2d 431, 437, cert. denied, 1977, 429 U.S.

1091, 97 S.Ct. 1101, 51 L.Ed.2d 536;

United States v. Fallen, 8 Cir. 1974, 498

F.2d 172, 177; United States v. Christy,

6 Cir. 1971, 444 F.2d 448, 450-451, cert.

denied, 1971, 404 U.S. 949, 92 S.Ct. 293,

30 L.Ed.2d 266; United States v. Aiken,

2 Cir. 1967, 373 F.2d 294, 299, cert. de-

nied, 1967, 389 U.S. 833, 88 S.Ct. 32, 19

L.Ed.2d 93. See also United States v.

10a

Gratton, 7 Cir. 1975, 625 F.2d 1161, 1162,

and United States v. Atkins, 8 Cir. 1978,

487 F.2d 257, 260, where the courts

found similar instructions were not plain

error in the abeence of a Rule 30, Fed.R.

Crim.Proc. objection. A timely objection

was made here.

(5) In reviewing “reasonable doubt”

charges, we look to the whole instruction

rather than isolate any particular sen-

tence. United States v. Patman, 5 Cir.

1977, 557 F.2d 1181; United States v.

Steinkoenig, 5 Cir. 1973, 487 F.2d 225;

Russel] v. United States, 5 Cir. 1970, 429

F.2d 237; Baker v. United States, 5 Cir.

1969, 412 F.2d 1069, cert. denied, 1970,

$96 U.S. 1018, 90 S.Ct. 583, 24 L.Ed.2d

609; Tillery v. United States, 5 Cir. 1968,

396 F.2d 790. When viewed contextual-

ly, the reference does not constitute re-

versible error. However, we underscore

the gravity of misstating this “bedrock

‘axiomatic and elementary’ principle

whose ‘enforcement lies at the founda-

tion of the administration of our crimi-

nal law,’” In re Winship, 1970, 397 U.S.

358, 363, 90 S.Ct. 1068, 1072, 25 L.Ed.2d

368, citing Coffin v. United States, 1895,

156 U.S. 432, 453, 15 S.Ct. 394, 403, 39

L.Ed. 481, and join the Seventh Circuit

in admonishing “that a district court giv-

ing a reasonable doubt instruction con-

taining the challenged equation notwith-

standing a Rule 30 challenge can reason-

ably expect a revers2l. We would as-

sume further that district courts in view

of the expressed dissatisfaction by this

court [in Muckenstrum, Turk, Alvero and

now here] with the language would sua

sponte eliminate the phrase from their

set of standard instructions even in the

absence of a Rule 30 objection.” United

States v. Wright, 7 Cir. 1976, 542 F.2d

975, 988.

UNITED STATES v. RODRIGUEZ

* ee

Because of its significance with re

spect to discussions that follow, we turn

aside to consider the issues raised by the

appellant Martins concerning the admis-

sibility of his confession. It is contended

that this should be suppressed as the

fruit of an illegal arrest. See Wong Sun

v. United States, 1963, 8371 U.S. 471, 83

S.Ct. 407, 9 L.Ed.2d 441.

[6] At the time of Martins’ arrest,

the agents had no knowledge that he

was connected with the conspiracy al-

though they had seen his name on the

passenger manifest of the chartered air-

craft and were, of course, aware that he

was in the room with Rodriguez the

night of the arrest. Tey did not have

probable cause to arrest him.

Hence, we must consider whether the

confession that followed his arrest was

:“come at by exploitation of [the] illegali-

ty or instead by means sufficiently dis-

tinguishable to be purged of the primary

taint.” Wong Sun,. supra, 371 U.S. at

488, 83 S.Ct. at 417. In Brown v. Illi-

nois, 1975, 422 U.S. 690, 603-04, 95 S.Ct

2254, 2261-62, 45 L.Ed.2d 416, the fac-

tors to be considered in this determina-

tion were explained:

The Miranda warnings are an impor-

tant factor . . . in determining

whether the confession is obtained by

exploitation of an illegal arrest. But

they are not the only factor to be con-

sidered. The temporal proximity of

the arrest and the confession, the pres-

ence of intervening circumstances,

. . nd, particularly, the pur-

pose and flagrancy of the official mis-

conduct are al] relevant the

burden rests, of course, on

the prosecution.

(Footnotes omitted.) See also United

States v. Ceccolini, 1978, 435 U.S. 268, 98

S.Ct. 1054, 55 L.2d.2d 268.

lla

UNITED STATES v. RODRIGUEZ

[7] Miranda warnings were given to

Martins although he refused to sign a

form affirming this. See United States

v. Hopkins, 5 Cir. 1970, 483 F.2d 1041,

cert. denied, 1971, 401 U.S. 1013, 91 S.Ct.

1252, 28 L.Ed.2d 550. The confession did

not actually occur until Martins was

transported to DEA offices and after he

had the benefit of the intervening advice

of Captain Frost; while Frost is not an

attorney, Martins was able to obtain

meaningful counsel from him. Frost

was consulted as, and acted as, a friend,

not as a law enforcement official. The

offer of helpful information to Frost in

exchange for Martins’ cooperation came

after Frost’s advice and did not affect it.

The record indicates that Martins know-

ingly and voluntarily waived his rights

to silence and assistance of counsel by

insisting that he wanted to tell his story.

Finally, the government’s conduct was'

not flagrant or reprehensible. There-

fore, the court below did not err in deny-

ing the motion to suppress.

{8} The only other error raised by

Martins alone that warrants comment is

the failure of the sentencing court ex-

plicitly to find that Martins would not

benefit from sentencing pursuant to the

Federal Youth Corrections Act, 18 U.S.C.

§ 5005, et seg. At sentencing, Martins’

attorney expressly waived sentencing

under the Act after discussing the bene-

fits of it with the court. The record is

convincing that, although the court did

not recite any talismanic phrases, it did

fully consider whether the defendant

would benefit from sentencing under the

Act. Bustillo v. United States, 5 Cir.

1978, 573 F.2d 368; Mitchel] v. United

States, 5 Cir. 1977, 547 F.2d 875; United

States v. Brown, 5 Cir. 1975, 522 F.2d

207; United States v. Gamboa-Cano, 5

Cir. 1975, 510 F.2d 598. See also Dorsz-

ynski v. United States, 1974, 418 U.S.

424, 444, 94 S.Ct. 3042, 3053, 41 L.Ed.2d

855.

Appellants complain of alleged mis-

statements of facts by the prosecutor to

the jury and of his expression of person-

al opinion with respect to the defend-

ants’ guilt. In the course of a lengthy

argument occupying 20 pages in the

transcript, the prosecutor made the fol-

lowing challenged statements:

1) One “Banello,” who had been char-

acterized in the testimony as an organ-

ized crime figure, was found in the room

with Martins and Rodriguez at the time

of the arrest. There was no evidentiary

basis for this statement.

2) Smigowski was at a key meeting,

contrary to the testimony as to who at-

tended the meeting.

3) “Smigowski made some comment

about the lights [at one suggested un-

loaded spot], because he was also con-

cerned about having too much light at

night and that it would not be really

clever to try a smuggling operation if

you are bathed in light. And, of course,

he wanted it dark.” The only relevant

testimony was, “Smigowski asked about

the lights, and the brightness of the

lights.” ®

4) “Once [the marijuana] arrived in

South Florida it would then be trucked

to New England and that is why the

indictment is in the form of two differ-

ent counts . . .. One, it would be

imported, and it would then be distribut-

ed throughout New England.” There

8. When asked if Smigowski said anything else, Agent Weed testified, “no more than just

about the lights.”

/ 12a

was no evidence that the marijuana

would be distributed throughout, or in,

New England or that it would be trans-

ported there.

5) “The evidence against those defend-

ants ] think is just overwhelming ._ .”

and “J think you will have to reach. .

only one conclusion, that they are guilty

of two counts .” (Emphasis

added.)

6) “But if you are guilty of a [serious

crime] and you are not some

kind of hardened criminal or something

. you would confess.

And I think that is what Willie Martins

did.”

{9,10} “It is improper for counsel] to

express his personal opinion or to state

facts of his own knowledge, not in evi-

dence, and not part of the evidence to be

presented,” Dunn v. United States, 5 Cir.

1962, 307 F.2d 883, 885-886. See also

Berger v. United States, 1935, 295 U.S.

78, 55 S.Ct. 629, 79 L.Ed. 1314; United

States v. Morris, 5 Cir. 1978, 568 F.2d

396, 400-02; United States v. Pariente, 5

Cir. 1977, 558 F.2d 1186; United States

v. Corona, 5 Cir. 1977, 551 F.2d 1386;

United States v. Warren, 5 Cir. 1977, 550

F.2d 219, 229; Code of Prof. Resp., DR

7-106(CX1), (8X4), and (7); ABA Stan-

dards, The Prosecution Function, §§ 5.8

and 5.9. This rule imposes a duty on the

prosecutor to be scrupulous in his argu-

ment and to avoid all efforts to obtain a

conviction by going beyond the evidence

before the jury or by putting the sanc-

tion of his office behind the testimony of

witnesses. But it does not require a mis-

trial for every erroneous statement or

expression of opinion.

{11} A prosecutor’s expression of per-

sonal belief may be tolerated if it is

based solely on the evidence introduced

and the jury is not led to believe that

other evidence, unavailable to them, jus-

UNITED STATES v. RODRIGUEZ

tified the belief. United States v. Mor.

ris, supra; United States v. Dawson, &

Cir. 1978, 486 F.2d 1826, 1330-1331;

United States v. Martinez, 5 Cir. 1972

466 F.2d 679, 6838, cert. denied sub. nom..,

‘1978, 414 U.S. 1065, 94 S.Ct. 571, 38

L.Ed.2d 469; cf. United States v. Di-

harce-Estrada, 5 Cir. 1976, 526 F.2d 637,

641-642.

[12] Hence, he may state, “I believe

that the evidence has shown the defend-

ant’s guilt,” but not, “I believe that the

defendant is guilty.” United States v.

Morris, supra, 568 F.2d at 402. The ex-

pressions of personal belief here express-

ly referred to the evidence or to conclu-

sions to be drawn from it. Nor did the

prosecutor’s conjecture regarding Mar-

tins amount to 4 statement of personal

- belief in his guilt. Indeed it was at least

partially favorable insofar as it cast this

defendant as remorseful! and not a hard-

ened criminal. Cf. United States v. Cor-

ona, 5 Cir. 1977, 551 F.2d 1386; Unitec

States v. Warren, si'pra, 550 F.2d at 219.

229; United States v. Dunn, supra;

Gradsky v. United States, 5 Cir. 1967,

373 F.2d 706, 710.

[13] Further, the court gave an in-

struction to disregard any personal opin-

ion of the prosecutor. We have stated:

In every case involving improper argu-

ment of counsel, we are confronted

with relativity and the degree to

which such conduct may have affected

the substantial rights of the defendant

. one “cannot unring a bell”;

“after the thrust of the saber it is

difficult to say forget the wound”;

and finally, “if you throw a skunk into

the jury box, you can’t instruct the

jury not to smell it”.

Dunn v. United States, supra, 307 F.2d

at 886. The court’s jury instruction may

be considered as a factor in assessing the

13a

UNITED STATES v. RODRIGUEZ

degree of prejudice. United States v.

Martinez, supra; see also United States

v. Crane, 5 Cir. 1971, 445 F.2d 509, 520.

(14] In assessing the prejudicial im-

pact of such assertions, we must also

consider the strength of the evidence

against each defendant who might have

been prejudiced. Berger v. United

States, supra, 295 U.S. at 89, 55 S.Ct. at

633; United States v. Warren, supra, 550

F.2d 219, 229. “[{Ttn close cases improper

remarks by the prosecuting attorney

may carry ‘much weight against the ac-

cused when they should properly carry

none.’” United States v. Diharce-Estra-

da, 5 Cir. 1976, 526 F.2d 637, 642. In

this regard, the prosecution itself conced-

ed, and we agree, that the evidence

against Martins was “somewhat differ-

ent” than the others; absent his confes-

sion, it is doubtful that it would have

withstood a motion for a directed verdict :

of acquittal. With Martins’ confession in

evidence, however, the case against him

with respect to participation in the con-

spiracy to import was overwhelming.

[15] Considering the case as a whole,

we conclude that these statements did

not prejudice the substantial rights of

Martins with respect to Count I; the

evidence against him was so strong that

the same verdict would have resulted

had they not been made. We delay con-

sideration of the evidence against Mar-

tins with respect to Count II. Likewise,

we postpone consideration of the suffi-

ciency of the evidence with respect to

Smigowski as to both counts so that the

cumulative impact of the various errors

he complains of may be assessed with

respect to the sufficiency of the evidence

against him.

{16} Obviously Albernaz and Rodri-

guez were not prejudiced with respect to

either count. None of the statements

was specifically directed at either of

them and the case against these two de-

fendants was likewise overwhelming.

VI.

[17] The standard for reviewing the

sufficiency of the evidence in criminal

cases has repeatedly been stated by this

court:

{I}f the trial or appellate court is satis-

fied that the jury could not reasonably

conclude that the evidence fails to ex-

clude every reasonable hypothesis but

that of guilt then the trial court, or on

appeal, this Court must hold that “the

jury must necessarily have had a rea-

sonable doubt as to the inconsistency.”

United States v. Card? 5 Cir. 1978, 569

F.2d 411, 416, quoting from United

States v. : ins, 5 Cir. 1977, 545 F.2d

1009, 1012. See also United States v.

Pinner, 5 Cir. 1977, 561 F.2d 1208, 1207;

United States v. Nazien, 5 Cir. 1974, 504

F.2d 394, 395, cert. denied, 1975, 420 U.S.

964, 95 S.Ct. 1358, 48 L.Ed.2d 443. The

evidence must be viewed in the light

most favorable to the government.

Glasser v. United States, 1942, 315 U.S.

60, 62 S.Ct. 457, 86 L.Ed. 680.

{18] “{TJhere must be proof beyond a

reasonable doubt that a conspiracy exist-

ed, that the accused knew it and, with

that knowledge, voluntarily joined it.”

United States v. White, 5 Cir. 1978, 569

F.2d 263, 267; United States v. Caro,

supra; United States v. Gutierrez, 5 Cir.

1977, 559 F.2d 1278, 1280; United States

v. Bright, 5 Cir. 1977, 550 F.2d 240; see

also United States v. Barrera, 5 Cir.

1977, 547 F.2d 1250.

[19,20] In a conspiracy under 21

U.S.C. § 846 or 21 U.S.C. § 968, there is

no need to allege or prove overt acts.

United States v. White, 5 Cir. 1978, 569

F.2d 2638, 266; United States v. Thomas,

l4a

5 Cir. 1978, 567 F.2d 688, 641; United

States v. Palacios, 5 Cir. 1977, 556 F.2d

1859, 1864, note 9. Although as this

court has emphasized, “[p]roof of an

agreement to enter into a conspiracy is

not to be lightly inferred,” United States

v. White, supra, 569 F.2d at 267, quoting

United States v. Johnson, 5 Cir. 1971,

439 F.2d 885, 888, cert. denied, 1971, 404

U.S. 880, 92 S.Ct. 218, 30 L.Ed.2d 161,

there was sufficient evidence from which

an agreement to distribute could reason-

ably be inferred.

With respect to Smigowski’s presence

at various meetings, the government re-

lies upon the three statements that he

made:

1) When the conspirators planned to

use a marina as a site to unload the

Catchalot II, he asked about the lights

there, and, as a result, they moved to a

darker spot;

2) After Weed’s group had agreed to

arrangements whereby they would keep

a ton of marijuana, he commented that

it was worth $500,000 and, therefore,

they would not lose money, which may

have been an attempt to reassure the

agents; and,

3) He told Agent Weed, when asked,

that Rodriguez and Albernaz were out at

sea coordinating the rendezvous and,

therefore, Weed did not have to do it.

Additionally, when asked to be intro-

duced to the principals of his organiza-

tion by Weed, Rodriguez arranged a

meeting at which Smigowski was

present?

[21-23] “[Mlere association with oth-

er persons involved in criminal enterprise

is insufficient to prove participation in a

conspiracy.” United States v. Barrera,

supra, 547 F.2d at 1257, and cases cited

9. Although this might constitute hearsay that

would not be admissible through the co-con-

UNITED STATES v. RODRIGUEZ

therein. Proximity to the crime or eve

actual presence at the scene of the crim

is not sufficient. Jd., 547 F.2d at 125

and cases cited therein. See also Gutie:

rez, supra, 559 F.2d at 1280-1281; Can

supra, 569 F.2d at 418. See also Unite

States v. Duckett, 5 Cir. 1977, 550 F.2

1027. “[MJjere knowledge, acquiescenc

or approval withcut cooperation o

agreement to cooperate is not enough t

constitute one a part to a conspiracy.

United States v. Mendez, 5 Cir. 1974, 49

F.2d 128, 130.

[24-26] With respect to the importa

tion scheme (Count I), the jury coul

conclude beyond a reasonable doubt tha

Smigowski was more than a sympatheti

spectator. It was entitled tosinfer fror

the facts presented that Smigowski wa

a quiet but active member of the con

spiracy. His knowledge and presenc

are mot a basis of guilt in themselves

but, taken together with his statements

they provide more than the “slight ba

sis” required to connect him with th

conspiracy shown to exist. Unite

States v. Cadillac Overall Supply Co., |

Cir. 1978, 568 F.2d 1078; United State

v. Bolts, 5 Cir. 1977, 558 F.2d 316, 324

and cases cited therein. With respect t

Smigowski’s conviction on Count I, th

various errors reviewed in Part V wen

clearly harmless. At the worst the pros

ecutor, in summing up, placed Smigow

ski erroneously at one key meeting

there was indisputable evidence that hi

attended others. The prosecutor’s state

ments with respect to distribution relat

ed only to Count II. The expression o

opinion as to the weight of the evidence

was not an endorsement of his case by

the prosecution. United States v. Mor

ris, supra.

spirator exception without independent proo

of a conspiracy, it was not objected to at trial

15a

UNITED STATES v. RODRIGUEZ

([27] There is little direct evidence

with respect to a conspiracy to distribute

the marijuana after it was _ imported.

There was mention of the use of Winne-

bagos to transport the marijuana, and

Rodriguez indicated that his group was

short on “front money” from which it

might be inferred that there would be a

subsequent sale. The load consisted of

. approximately 1100 fifty-pound bales,

far more than the appellants could per-

sonally consume in the course of many

lifetimes of furious effort. The very size

of a narcotics cache can be sufficient to

show intent to distribute under Section

841. United States v. Perry, 5 Cir. 1973,

480 F.2d 147 (188 pounds of hashish);

United States v. Mather, 5 Cir. 1972, 465

F.2d 1035, cert: denied, 1972, 409 U.S.

1085, 93 S.Ct. 685, 34 L.Ed.2d 672 (197.75

grams of cocaine); United States v. Ro-

driguez, S.D.Tex.1974, 375 F.Supp. 589,

aff'd, 5 Cir. 1974, 497 F.2d 172 (876

pounds of marijuana). Cf. cases finding

amount too small to infer intent to dis-

tribute; Turner v. United States, 1970,

396 U.S. 398, 423, 90 S.Ct. 642, 655-56,

24 L.Ed.2d 610 (less than one gram co-

caine); United States v. Olvera, 5 Cir.

1975, 523 F.2d 1252 (two grams cocaine).

[28,29] Although there was no direct

evidence that Albernaz and Rodriguez

planned to distribute the marijuana in

the United States, this inference might

reasonably be drawn from the plan to

import it and from the additional evi-

dence concerning them to which we have

just referred. If its ultimate destination

were, for example, Canada, it is hard to

imagine why the appellants would risk

bringing it into American borders. In

this regard, we must consider the in-

struction with respect to the definition

of distribution:

Distribution means, with respect of

any article, transferring into the Unit-

ed States some or all of that article to

another individual while in the United

States.

(Emphasis supplied.) As the italicized

word emphasizes, this instruction was er-

roneous; while the error may have re-

sulted from a slip of the tongue or from

inadvertence, it acquires significance in

the light of the nature of the two counts

and the poverty of evidence, at least as

to some of the defendants, concerning

what they knew about the destination

and disposition of the smuggled cargo.

Before the charge was given, the

government stated for the record that it

thought the charge did confuse distribu-

tion with smuggling; counsel and the

court agreed that the charge would be

changed by substituting “while within

the United States” for “into,” but the

court, apparently inadvertently, neglect-

ed to make the actual correction. In-

deed, in other parts of the instruction,

‘ the court correctly stated the law:

In Count II, the defendants are ac-

cused of conspiring to distribute a con-

trolled substance in the United States

while within the United States.

And:

Count II alleges that during the same

period, the defendants and other al-

leged conspirators knowingly and will-

fully conspired to distribute 30 tons of

marijuana in the United States while

within the United States.

{30} In determining whether this and

other errors require reversal, we must

determine whether these errors might

have contributed to the verdict that was

reached, United States v. Arias-Diaz, 5

Cir. 1974, 497 F.2d 165, cert. denied sub.

nom., 1975, 420 U.S. 1008, 95 S.Ct. 1445,

43 L.Ed.2d 761; Addison v. United

States, 5 Cir. 1963, 317 F.2d 808, cert.

denied, 1964, 376 U.S. 905, 84 S.Ct. 658,

l6a

UNITED STATES v. RODRIGUEZ

11 L.Ed.2d 605, considering the weight

of the evidence pointing to conviction.

United States v. Kilrain, 5 Cir. 1978, 566

- F.2d 979; Chapman v. United States, 5

Cir. 1977, 547 F.2d 1240, 1250, cert. de-

nied, 1977, 431 U.S. 908, 97 S.Ct. 1705, 52

L.Ed.2d 398; United States v. Demchak,

5 Cir. 1977, 545 F.2d 1029; Null v. Wain-

wright, 5 Cir. 1975, 508 F.2d 340, cert.

denied, 1975, 421 U.S. 970, 95 S.Ct. 1964,

44 L.Ed.2d 459; Loftis v. Beto, 5 Cir.

1971, 450 F.2d 599; Lewis v. United

States, 5 Cir. 1967, 375 F.2d 772.

[31] The distribution instruction was

not unduly prejudicial to Rodriguez, and

Albernaz; the evidence against them

was overwhelming albeit indirect, and

the impact of the mistake was lessened

by the subsequent correct definition of

the law. See United States v. Wilkin-

son, 5 Cir. 1972, 460 F.2d 725.

[32] However, there was literally no

evidence with respect to the involvement

of Martins and Smigowski in a distribu-

tion scheme except what might be in-

ferred from their participation in an

agreement to import it. The direct and

circumstantial evidence that they were

peripheral participants in the importa-

tion scheme does not refute, beyond a

reasonable doubt, the hypothesis that

they had no knowledge of a conspiracy

to distribute once it reached these

shores.

Unlike Rodriguez and Albernaz, who

perforce had to make some arrange-

ments to dispose of their treasure, Smi-

gowski and Martins could each receive

his reward and be done with the scheme.

Unlike Rodriguez and Albernaz, who, ac-

cording to the evidence, had contacts

outside the Miami area, needed front

money, and planned to use Winnebagos,

Smigowski or Martins were not shown to

have been connected with the actual ar-

rangements for importation.

There was evidence that Smigowski

and Martins were parties to the importa-

tion scheme, but there is no evidence

that would establish beyond reasonable

doubt that they would likely come in

possession of the haul once it arrived,

share in its proceeds thereafter, or other

evidence from which it could in turn be

inferred that they were privy to plans to

distribute the contraband. We have al-

ready noted that possession of a large

supply of a prohibited substance may

justify the inference that the possessor

intended to distribute it, but there was

no evidence that Smigowski and Martins

had sufficient dominion over or interest

in the marijuana to warrant the infer-

ence.

[33,34] It is well established that one

who knows of a conspiraty and inten-

tionally acts in furtherance of it, is cul-

pable as a conspirator Direct Sales Co. v.

United States, 1943, 319 U.S. 703, 63

S.Ct. 1265, 87 L.Ed. 1674; Uz.led States

v. Becker, 5 Cir. 1978, 569 F.2d 951. But

there is no evidence whatever that, at

the time of Martins’ and Smigowski’'s

contribution to the importation scheme,

they knew that a conspiracy to distribute

had been formed. Although they may

be charged with knowledge that such a

scheme would likely be formed once the

haul arrived, this is not sufficient to ex-

clude, beyond reasonable doubt, the hy-

pothesis that they did not then either

join in it or even know of it.

[35,36] Although the inference to be

drawn against either Smigowski or Mar-

tins or both is a reasonable one, the

proof of guilt as to each of them with

respect to Count II] was insufficient to

meet the reasonable doubt standard.

Hence, their retrial on that count is pre-

cluded by the double jeopardy clause.

Burks v. United States, 1978, —— USS.

17a

UNITED STATES v. RODRIGUEZ

——, 98 S.Ct. 2141, 57 L.Ed.2d1. Ac

cordingly, we find sufficient evidence to

warrant Smigowski’s and Martins’ con-

victions on Count I but must dismiss

Count II of the indictment with respect

to each of them.

VII.

Finally, all appellants contend that the

two counts of conspiracy charged in the

indictment were but “one offense,” and

that, therefore, the imposition of consec-

utive sentences violates the double jeop-

ardy clause.

This court considered the issue wheth-

er violations of 21 U.S.C. § 846 and

§ 963" constitute but one offense in

United States v. Houltin, 5 Cir. 1976, 525

F.2d 943, and decided that, even if there

“was only one conspiracy . . . Con-

gress may choose to punish two aspects

of that behavior without contradicting

the Double Jeopardy Clause.” 525 F.2d

at 950. That decision was vacated, sub

nom. Croucher v. United States, 1977,

429 U.S. 1034, 97 S.Ct. 725, 50 L.Ed.2d

745." Were we free to consider that

10. See note 1, supra.

11. After the Supreme Court vacated Houltin

for reconsideration with respect to whether a

compelling federal interest would be served by

both convictions, this court accepted the

government's decision to withdraw the charge

of conspiracy to possess (Count II), and its

decision not to withdraw the charge with re-

spect to conspiracy to import (Count I) was

not challenged. United States v. Houltin, 5

Cir. 1977, 553 F.2d 991 (Houltin I/). We stat-

ed in Houltin Il, “In all other respects this

Court's judgment and that of the district court

are reaffirmed.” But because there was only

one conviction remaining, the court could not

be reaffirming that portion of Houltin / that

addressed the double jeopardy issue. A vacat-

ed judgment is not binding. See 1B Moore's

Federal Practice § 0.416[2] (1974).

We note also that counsel in United States v.

Herrera-Vinagas, 5 Cir. 1978, 573 F.2d 1308,

raised the double jeopardy issue with respect

problem anew, we would conclude, con-

trary to the conclusion in Houltin, that

the double jeopardy clause prohibits the

punishment of a single conspiracy by

more than one penalty. However, the

reasoning of Houltin has been adopted

by two panels of this court. United

States v. Dyar, 5 Cir. 1978, 574 F.2d

1885, at 1389; United States v. Smith, 5

Cir. 1978, 574 F.2d 308. Although the

statements with respect to this issue in

both of these cases may be distinguished

as obiter dictum," they express the

views of a number of members of this

court." Under these circumstances, we

believe that we are required to treat

these decisions as binding, set forth the

reasons for our disagreement with them,

and permit the parties ‘to petition this

court for a rehearing en banc.

In United States’ v. Adcock, 6 Cir.

1973, 487 F.2d 637, and United States v.

Honneus, 1 Cjr. 1974, 508 F.2d 566, cert.

denied, 1975, 421 U.S. 948, 95 S.Ct. 1677,

44 L.Ed.2d 101, the courts considered the

very conspiracy statutes charged here, 21

to these same statutes, but the court did not

address the issue in its unpublished per curiam

affirmance.

12. In Smith, two separate conspiracies were

charged and proved: one for violation of the

Racketeer Influenced and Corrupt Organiza-

tion Act, 18 U.S.C. § 1961, et seqg., and one for

conspiracy to distribute marijuana, 21 U.S.C.

§ 846. The court specifically stated, “A curso-

ry examination of the offenses involved here

reveals that they are not the same,” and that

each involved separate elements. 574 F.2d at

310. In Dyar, concurrent sentences were im-

posed, hence it was not necessary to consider

the issue.

13. Although Smith was a per curiam opinion,

court records reveal that it was authored by

Judge Fay. As a concurring member of this

panel, Judge Fay has authorized me to state

that, upon reflection, he is of the opinion that

the view adopted here is a preferable one.

18a

870

U.S.C. §§ 846 and 963, and concluded

that, although each concerns different il-

legal objectives, where a single agree-

ment violates both statutes, the defend-

ants have engaged only in one conspir-

acy and may be punished only once. See

also United States v. Mori, 5 Cir. 1971,

444 F.2d 240, 241-245, cert. denied, 1971,

404 U.S. 913, 92 S.Ct. 238, 30 L.Ed.2d

187, where this court held that, under

the facts, an agreement to import a nar-

cotic drug and an agreement to travel in

foreign commerce to promote unlawful

activity were but one conspiracy and

sentence must be imposed on only one

count.

These conclusions all rely upon Braver-

man v. United States, 1942, 317 U.S. 49,

63 S.Ct. 99, 87 L.Ed. 23, in which the

court held that, when a single agreement

is made, “[t]he one agreement cannot be

taken to be several agreements and

hence several conspiracies because it en-

visages the violation of several statutes

rather than one.” Id., 317 U.S. at 53, 63

S.Ct. at 102. This is true “however di-

verse its objects.” Frohwerk v. United

States, 1919, 249 U.S. 204, 210, 39 S.Ct.

249, 252, 63 L.Ed. 561. The court in

Honneus, supra, recognized that Con-

gress has the power to enact such over-

lapping statutes and that defendants

could simultaneously be prosecuted and

convicted under each, for it might be

difficult or impossible for the grand jury

definitely to determine in advance which

set of laws the conspiracy violated if

proved; if, however, the defendants

were convicted of both, they could be

sentenced under only one.

[37-39] The opposite result was

reached in United States v. Marotta, 9

Cir. 1975, 518 F.2d 681, with respect to

these statutes. But, in surveying the ju-

risprudence, the Ninth Circuit failed to

take note of the essential distinction: a

UNITED STATES v. RODRIGUEZ

single act may constitute two offenses if

it violates two substantive statutes, but,

even if a single agreement has more

than one unlawful objective, it may not

truly constitute two conspiracies. It is

the agreement that is illegal in a con-

spiracy; if there is only one agreement,

there is but one offense though its objec-

tives are multiple. However, a single

act may cause more than a single conse-

quence; therefore, one act may be prose-

cuted and punished as more than a sin-

gle offense. See Gore v. United States,

1958, 357 U.S. 386, 78 S.Ct. 1280, 2

L.Ed.2d 1405, which involved violation of

several substantive statutes by one act

of sale. But cf. Simpson v. United

States, 1978, 435 U.S. 6, 98 S.Ct. 909, 55

L.Ed.2d 70. This distinction is drawn in

Braverman where the court distin-

guished the case before’ it (a single con-

spiracy that appeared to violate two sep-

arate statutory provisions) from the case

of “a single act which violates two stat-

‘utes,” as evidenced by its citation of

Blockburger v. United States, 1932, 294

U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 and

Albrecht v. United States, 1927, 273 U.S.

1, 47 S.Ct. 250, 71 L.Ed. 505.

A single agreement to rob a bank, kill

the guard, steal a car and flee contem-

plates the possible commission of a num-

ber of crimes. But if there is only one

agreement, it is the agreement that is

the offense; the agreement itself rather

than its imagined objectives is the only

concrete harm that has occurred. By

contrast, a person who fires one bullet

and kills two different persons has

wrought two distinct social harms, and

society may punish both.

Unlike the present case, Braverman

involved one conspiracy statute which

made it illegal to conspire to violate a

number of substantive laws. Here we

are presented with two different conspir-

19a

“UNITED STATES v. RODRIGUEZ

acy statutes each of which makes it ille-

gal to corspire to a particular end. But

this is not an adequate basis for reaching

a different result from the one deter-

mined in Braverman. Here the facts

showed that there was but one conspir-

acy regardless whether its objectives are

proscribed by two discrete laws such as

21 U.S.C. §§ 846, 963, or by one law such

as former 18 U.S.C. § 88," considered in

Braverman, which proscribed objectives

by reference to other statutes. Cf. De-

velopments—Conspiracy, 72 Harv.L.Rev.

920, 964-966; LaFave & Scott, Criminal

Law, § 62 at 479-480 (1972). For, as the

court said in Braverman: “([t)he one

agreement cannot be taken to be several

agreements and hence several conspira-

cies because it envisages the violation of

several statutes rather than one.” IZd.,

317 U.S. at 53, 63 S.Ct. at 102.

The problem was recognized in the

careful opinion in Houltin, supra, and

the court distinguished the situation

where it is charged that one agreement

violates the general conspiracy statute

and a specific conspiracy statute (as

charged in Mori, supra) and the case

where there are two specific conspiracy

statutes. We cannot accept this as a

valid distinction. It would permit the

Congress to penalize a single agreement

by a multitude of separate conspiracy

statutes so long as they are specific.

{40} This court has found, in other

contexts, that but a single conspiracy ex-

ists even though the agreement that con-

stitutes it has several objectives and

aims at the commission of severa) of-

fenses. United States v. Elliott, 5 Cir.

1978, 571 F.2d 880, 902; United States v.

Bolts, supra, 558 F.2d at 325. It is for

this reason that the government need

prove only that a conspirator agreed to

871

one of the many objectives charged to

hold him liable for the other objectives

of the agreement, United States v. Bolts,

supra. See also United States v. Decker,

5 Cir. 1976, 643 F.2d 1102, cert. denied

sub. nom., 1977, 431 U.S. 906, 97 S.Ct.

1700, 52 L.Ed.2d 390.

Our conclusion that only one conspir-

acy existed is consistent with cur finding

sufficient evidence that Smigowski and

Martins agreed to only one objective, im-

portation, of a multiple objective con-

spiracy: that does not imply that there

was more than one agreement, merely

more than one objective. As we stated

in United States v. Elliott, supra, 571

F.2d at 902, “the precise nature and ex-

tent of the conspiracy must be deter-

mined by reference to the agreement

which embraces and defines its objects.

Whether the object of a single agree-

ment is to commit ong or many crimes, it

is, in either case, that agreement which

constitutes the conspiracy which the

statute punishes.” . Quoting Braverman

¥. United States, supra, 317 U.S. at 53,

63 S.Ct. at 102.

Because one conspiracy may have

many illegal objectives, it will necessari-

ly involve a number of sub-agreements

to commit each of these specified objec-

tives. Some members may concur in

only some of the many objectives, yet

they are liable for all because there is

but one scheme, one enterprise, one con-

spiratorial web. See United States v.

Becker, 5 Cir. 1978, 569 F.2d 951, 960-61;

United States v. Baldarrama, 5 Cir. 1978,

566 F.2d 660, 565-66; United States v.

Bolts, supra. If each stitch in that web

were treated as a separate conspiracy,

infinite bases for liability could be con-

fected, see United States v. Papa, 2 Cir.

1976, 533 F.2d 815, 820, and cases cited

14. Now 18 U.S.C. § 371).

20a

872

therein. Here, for example, each con-

spirator might be charged with 16 sepa-

rate conspiracies to import or distribute

with each of the 16 other conspirators;

over 200 conspiracies could be charged.

Hence, the conspiracy must be defined as

broadly as the reach of vicarious liabili-

ty. ib

For example, in a chain conspiracy,

the distributor and exporter may have

one agreement to import, and the dis-

tributor and seller may have another

agreement to distribute, yet one conspir-

acy exists, and the exporter and seller

are liable for each other's acts, although

they never agreed upon the same objec-

tives. United States v. Bruno, 2 Cir.

1939, 105 F.2d 921, 922, rev'd on other

grounds, 1939, 308 U.S. 287, 60 S.Ct. 198,

84 L.Ed. 257; see United States v. Papa,

2 Cir. 1976, 533 F.2d 815, 820-821, cert.

denied, 1976, 429 U.S. 961, 97 S.Ct. 387,

50 L.Ed.2d 329. See also United States

v. Morrow, 5 Cir. 1976, 537 F.2d 120, 126,

cert. denied sub. nom., 430 U.S. 956, 97

S.Ct. 1602, 51 L.Ed.2d 806.

[41] Had the distribution scheme suc-

ceeded, Smigowski and Martins could be

held vicariously liable for it because it

was a related objective of the one con-

spiracy. If the conspiracy to distribute

15. According to one commentator:

Whether several offenses are the multiple

objects of a single agreement or the separate

objects of distinct agreements is of consider-

able importance for purposes of multiple

punishment and double jeopardy, since gen-

erally there can be only one conspiracy con-

viction when there has been only one agree-

ment. Assuming, however, that the prose.

cuuion is able to show separate agreements

to each of the objects, it does not seem that

liability for several conspiracies must neces-

sarily follow. When two men who have

agreed to commit a rape later agree to com-

mit a burglary, there is a new object dimen-

sion and hence strictly speaking a new

agreement. If the first crnme has been com-

UNITED STATES v. RODRIGUEZ

were a completely separate offense from

the conspiracy to import, then, even had

the conspiracy to distribute been success-

ful, Smigowski and Martins could not be

convicted of participation in it by virtue

of the joinder in the agreement to im-

port. In some circumstances, however,

that very joinder in an agreement to

reach an illicit objective (itself part of

the conspiracy to reach a larger but en-

compassing objective) renders the con-

spirator liable for objectives he did not

himself concur in. United States v. Bru-

no, supra, and progeny. Here, the con-

spiracy did not succeed; Smigowski and

Martins were charged merely with mak-

ing an agreement that in fact was abort-

ed. Therefore, the evidence was not suf-

ficient to make a jury case on the al-

leged conspiracy to distribute. The two

conspiracies were not separate crimes for

double jeopardy purposes because they

embraced but one ultimate overall goal.

The commission, or even the attempted

commission, of several offenses consti-

tutes several crimes, but one agreement

‘to Violate a number of laws remains but

one crime if it is charged merely as a

conspiracy and not as a substantive of-

fense.

pleted, and the parties are no longer united

by their adherence to a common undertaking

when the second is agreed to, the old group-

ing dangerous to society has been dissolved,

and the new agreement creates a new one

, But when the second object is

agreed to before the attainment of the first,

it seems that this new agreement should be

disregarded since no new grouping is creat-

ed by it since the law does not

punish separately for the multiple objects of

a@ single agreement, punishment for both

agreements in this case tends to place a pre-

mium upon foresight in crime.

Developments—Conspiracy, 72 Harv.L.Rev.

920, 930 (1959).

2la

UNITED STATES v. RODRIGUEZ

{42} Of course, there may also be two

or more agreements in a given case and

each may violate different, or identical,

conspiracy statutes. See generally Note,

Resolution of the Multiple Conspiracies

Issue Via a “Nature of the Enterprise”

Analysis: The Resurrection of Agree-

ment, 42 Brooklyn L.Rev. 243 (1975).

Distinguishing between one overall con-

spiracy and several separate conspiracies

is “a frustrating und challenging task.”

United States v. Perez, 5 Cir. 1973, 489

F.2d 51, 57, cert. denied, 1974, 417 U.S.

945, 94 S.Ct. 3067, 41 L.Ed.2d 664. But

there is ample jurisprudence to assist in

that task. See, e. g., United States v.

Becker, supra; United States v. Baldar-

rama, supra; United States v. Morrow,

supra; United States v. Perez, supra.

“In essence, the question is what is the

nature of the agreement. If there is one

overall agreement among the various

parties to perform different functions in

order to carry out the objectives of the

conspiracy, then it is one conspiracy.”

United States v. Perez, supra, 489 F.2d

at 62.

[43] Here some conspirators may

have agreed only to the importation and

others to importation and distribution,

but all were part of a common scheme

aimed at moving the marijuana from the

fields of Colombia to its consumers. It

is no defense to the one conspiracy theo-

ry that some conspirators were unaware

of the precise role played by others.

United States v. Becker, supra; Blumen-

thal v. United States, 1947, 332 U.S. 539,

68 S.Ct. 248, 92 L.Ed. 154. As we noted

at the outset, Counts I and II are identi-

cal except with respect to the alleged

objective of the agreement and the stat-

873

ute charged to have been violated.

However, we are constrained by Dyar,

supra, and Smith, supra, to conclude that

appellants may be punished twice for

their agreement; hence we affirm the

conviction of appellants Rodriguez and

Albernaz with respect to both counts.

For reasons stated previously, the convic-

tions of appellants Smigowski and Mar-

tin on Count II are reversed and that

count of the indictment is ordered dis-

missed with respect to them.

VIII.

In a separate opinion in United States

v. Cadena, 5 Cir. 1978, slip op. p. 874,

—-- F.2d , we consider the question

whether the evidence seized during the

search of the freighter was illegally

obtained and was properly’ admitted.

However, this decision does not turn on

the conclusion reached thére. Assuming ~

arguendo that all evidence obtained

aboard the freighter should have been

suppressed, there were 150 bales of mari-

juana aboard the Catchalot II, and other

overwhelming evidence against each of

the defendants. This conclusion makes

it unnecessary for us to determine

whether the appellants have standing to

.challenge the search of the freighter.

Having carefully reviewed the record,

we are persuaded that appellants’ addi-

tional contentions are without merit.

Accordingly, the judgment is AF-

FIRMED in part, REVERSED in part,

and REMANDED for proceedings con-

sistent with this opinion.

Affirmed in part, reversed in part and

remanded.

222

United States Court of Appeals

Fifth Circuit

OFFICE OF THE CLERK

TEL. 504-589-6514

Epwarp W. WapswortH 600 CAMP STREET

CLERK NEW ORLEANS, LA. 70130

November 28, 1978

TO ALL COUNSEL OF RECORD

No. 77-5339 — United States of America vs. Edward

Rodriguez, a/k/a Rick, Et Al.

Dear Counsel:

Enclosed is a copy of an order entered by the Court on its

own motion directing that this case be reheard en banc with

oral argument on a date thereafter to be fixed.

However, the court’s consideration of the case en banc is

limited to the following question:

If the same agreement is charged as a violation of both 21]

USC §846 and 21 USC §963, and the defendants are con-

victed of both offenses, may separate sentences be im-

posed for each offense? This question is discussed in Part

VII of the panel opinion.

23a

Please prepare your supplemental briefs and oral argument

accordingly. Ancillary to this question, you may wish to com-

ment on whether, as to Rodriguez and Albernaz, there was

proof of a single conspiracy violating both statutes or two

separate conspiracies. In order to preserve your right as to

other issues in the case, the time for filing a petition for panel

rehearing thereof is being extended for a period of fourteen

(14) days from this date.

Pursuant to the court’s direction for the Clerk to set a brief-

ing schedule for the filing of supplemental briefs, appellants

may have until December 13, 1978 for the filing of a supple-

mental brief, with opposing counsel to have until December

27, 1978. These dates are the dates on which the briefs must

be in the Clerk’s Office and not mailed on that date, because

the case will be orally argued sometime during the week of

January 22, 1979. Therefore, no extensions of time should be

applied for. Counsel should hold themselves available for that

week. Notice of the exact date should be forthcoming thirty

(30) days in advance.

Very truly yours,

EDWARD W. WADSWORTH,

CLERK

By Gitpert F, GANUCHEAU,

Chief Deputy Clerk

24a

In the United States Court of Appeals

for the Fifth Circuit.

No. 77-5339

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE,

versus

EDWARD RODRIGUEZ, a/x/a Ricx, THOMAS J.

ALBERNAZ, PETER SMIGOWSKI, ano

WILLIAM JOHN MARTINS,

DEFENDANTS-APPELLANTS.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

(November 20, 1978)

Before Brown, Chief Judge, THORNBERRY, COLEMAN, GOLp-

BERG, AINSWORTH, GopBoLp, CLARK, Roney, Gee,

TyorLaTt, Hitt, Fay, Rusin AND VANCE, Circuit Judges.

By THE Court:

A majority of the Judges in active service, on the

Court’s own motion, having determined to have this

case reheard en banc,

25a

It 1s Orperep that this cause shall be reheard by the Court

en banc with oral argument on a date hereafter to be fixed.

The Clerk will specify a briefing schedule for the filing of sup-

plemental briefs.

26a

Supreme Court of the United States.

No. A-806

THOMAS J. ALBERNAZ, ET AL.,

PETITIONERS,

UNITED STATES

Order Extending Time to File Petition for

Writ of Certiorari

Upon ConsiDErATION of the application of counsel for peti-

tioner(s),

IT 1s Orperep that the time for filing a petition for writ of

certiorari in the above-entitled cause be, and the same is

hereby, extended to and including April 27, 1980.

/s/ LEWIS F. POWELL, JR.

Associate Justice of the Supreme

Court of the United States

Dated this 19th day of March, 1980.

27a

In the United States Court of Appeals

For the Fifth Circuit.

No. 77-5339

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE,

EDWARD RODRIGUEZ, a/k/a Rick, THOMAS J.

ALBERNAZ, PETER SMIGOWSKI, ano

WILLIAM JOHN MARTINS,

DEFENDANTS-APPELLANTS.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

(May 7, 1980)

Before CoLEMAN, Chief Judge, Brown, AINSworTH, Gop-

BOLD, CHARLES CLARK, RONEY, GEE, TJOFLAT, HILL,

Fay, RuBiIn AND VANCE, Circuit Judges. **

By THE Court:

By Court directive from the Clerk on November 28, 1978,

all parties were advised of the issues to be considered by the

** Judges Kravitch, Frank M. Johnson, Jr., Garza, Henderson, Reavley, Po-

litz, Hatchett, Anderson, Randall, Tate, Sam D. Johnson, and Thomas A. Clark

28a

Court en banc and were also instructed that, “In order to pre-

serve your right as to other issues in the case, the time for filing

a petition for panel rehearing thereof is being extended for a

period of fourteen (14) days from this date.” (See also Fifth

Circuit Local Rule 17). To enable the panel to determine the

issues raised in the petitions for rehearing the case is remanded

to the panel for determination of all such issues other than

those determined by the Court en banc.

ENTERED FOR THE COURT

have become members of the Court since January 23, 1979, when this case

was taken under submission. They do not wish to participate in the decision.

29a

In the United States Court of Appeals

For the Fifth Circuit.

No. 77-5339

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE,

EDWARD RODRIGUEZ, a/k/a Rick, THOMAS J.

ALBERNAZ, PETER SMIGOWSKI, ano

WILLIAM JOHN MARTINS,

DEFENDANTS-APPELLANTS.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

On Petition for Rehearing

(May 8, 1980)

Before SKELTON, Senior Judge*, Fay anv Rusin, Circuit

Judges.

PER CuRIAM:

Ir 1s Orperep that the petition for rehearing filed in the

above entitled and numbered cause be and the same is hereby

denied.

* Senior Judge of the United States Court of Claims, sitting by designation.

30a

The court granted rehearing en banc to consider the double

jeopardy question discussed in the opinion rendered by the

court en banc. See United States v. Rodriguez, 612 F.2d 906

(5th Cir. 1980) (en banc). However, in doing so the court did

not enter an order specifically restricting the en banc rehear-

ing to this issue. Therefore, under rule 17, Local Rules, Fifth

Circuit Court of Appeals, the entry of the order granting the

rehearing en banc automatically vacated the panel opinion.

The court en banc has, therefore, remanded to the panel

those issues listed on application for rehearing and not dis-

cussed in the en banc opinion. Having fully considered the

applications for rehearing as to all issues other than the double

jeopardy issue, the panel finds them to be without merit, and

denies rehearing.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.