# Petition — Delgado v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0690%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 1015 ## Text 0 80-679 — No. . —MICHAEL RODAK, JR., CL IN THE Supreme Court of the United States OCTOBER TERM, 1980 UNITED STATES OF AMERICA, Respondent, versus RAPHAEL FELO DELGADO and JORGE F. BUSTILLO, Petitioners. On Petition for a Writ of Certiorari to The United States Court of Appeals For the Fifth Circuit PETITION FOR CERTIORARI RAUL R. BENCOMO 604 Girod Street, 2nd Floor New Orleans, Louisiana 70130 Telephone: (504) 525-0720 ATTORNEY OF RECORD FOR PETITIONERS October ___, 1980 SCOFIELDOS QUALITY PRINTERS. P. O. BOX 53096. N. O . LA. 70153 - 504 622-1611 QUESTIONS PRESENTED Whether the trial court erred in denying petition- ers’ Motion to Suppress the Evidence where law enforcement agents conducted a _ warrantless search of a private warehouse in violation of peti- tioner’s right to protection against unreasonable search and seizure guaranteed by the Fourth Amendment of the United States Constitution? See Payton vs. New York, U.S. + a oe 3033 (April 15, 1980). Whether the trial court erred in denying petition- ers’ Motion for Judgment of Acquittal based upon insufficiency of evidence? 7 INDEX Page QUES TIGINS PRESEN TED: 865.6 cioic iwc sccecccs i EEE 0 ovis Gace so viccvect netboevese 2 WEIN isd Svan WE dT MAb 400 US oe sav peeve 2 CONSTITUTIONAL AND STATUTORY PROP VEIN PNVOG VED) oo inc ccc ccccccccesss 2 ieee meres OF THE CASE nooo ec cccccvcccce 3 REASONS FOR GRANTING THE WRIT AND ARGUMENT ................ 6 1. The warrantless entry of law enforce- ment agents into a private warehouse to effect the arrest of unknown and, ultimately, non-existent suspects, but which resulted in the seizure of evi- dence, violated the petitioners’ Fourth Amendment Rights as guaranteed by the United States Constitution .......... 6 2. The trial court erred in denying peti- tioners’ motion for judgment of acquittal based upon insufficiency of NUE au cary PU Cacay Pee as ese coe «oie slpis 11 INE au cei £56 bo 4 i'd'n 2 ell ca 0 His tga cers s 13 Roe RON URLN OES GE GER VICE fics ccc cesccdeees 14 PRECEDING PAGE WAS BLANK I iv INDEX (Continued) Page Appendix A — Judgment of the Court of Appeals, Fifth Circuit, Denying Petition for ee EO OOM ROCA EAT years a RR EY la Appendix B — Opinion of the Court of Appeals, United States of America vs. Delgado, et al (No. 79-5409, 5th Cir., 1980) .............. 2a AUTHORITIES CASES: GLASSER vs. U.S., 315 U.S. 60 (1942) ............ 12 HARRIS vs. U.S., 390 U.S. 234 (1968) ...........4.. 6 PAYTON vs. NEW YORK, —__— U.S. —__, 27 Crib... DOSS LAE Oy ROO? cia ccecp coceeee’ i,7 U.S. vs. BRIGHT, 550 F.2d 240 (Sth Cir., 1977) ...12 U.S. vs. DELGADO, (No. 79-5409, Sth Cir., 1000s i ee Ue eee. 2,11 U.S. vs. HIGGINS, 545 F.2d 1009 (Sth Cir., WII js tyke kodatinn Cosans hee bea ULS. vs. PHILLIPS, 497 F.2d 1131 (9th Cir., VOPR in Fs or cast fae meee aan Vas ae ae 7 LLS. vs. WARNER, 441 F.2d 821 (Sth Cir., 1971, cert. denied 404 U.S. 829 (1971) ........ 12 LIS. ws. WATSON, 423 U.S. 411 (1976) .........-. Z Vv AUTHORITIES (Continued) OTHER: BF Rh Mr ER AOMCAP US gWhkc a cg bites Whases ec ciation 2 U.S. Constitution, Fourth Amendment ....i,2,3,6,11 No. IN THE : SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1980 UNITED STATES OF AMERICA, Respondent, versus RAPHAEL FELO DELGADO and JORGE F. BUSTILLO, Petitioners. On Petition for a Writ of Certiorari to The United States Court of Appeals For the Fifth Circuit PETITION FOR CERTIORARI TO THE HONORABLE, THE CHIEF JUSTICE OF THE UNITED STATES AND THE ASSOCIATE JUS- TICES OF THE SUPREME COURT OF THE UNIT- ED STATES | 2 7 The petitioners, RAPHAEL FELO DELGADO and JORGE F.. BUSTILLO, through their undersigned counsel, pray that a writ of certiorari issue to review the opinion andjudgment of the United States Court of Appeals for the Fifth Circuit, rendered in this proceed- ing on April 9, 1980. OPINIONS BELOW The Judgment of the Court of Appeals for the Fifth Circuit, denying the Petition for Rehearing, appears as Appendix A hereto, pp. 1la-2a. The opinion of the Court of Appeals for the Fifth Circuit, affirming the conviction and sentence of the petitioners herein, entitled Linited States of America vs. Raphael Felo Delgado, et al, (No. 79-5409, Sth Cir., 1980) appears as Appendix B hereto, pp. 2a-8a. JURISDICTION The judgment of the Court of Appeals for the Fifth Circuit was entered April 9, 1980. A timely petition for rehearing en banc was denied on June 17, 1980. This Court’s jurisdiction is invoked under 28 U.S.C. §1254(1). CONSTITUTIONAL AND STATUTORY PROVISION INVOLVED : The Fourth Amendment of the United States Con- stitution provides: 3 “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized.” STATEMENT OF THE CASE A. Statement Of Facts In December of 1978, Drug Enforcement Adminis- tration (DEA) agents received information that a group of individuals were involved in smuggling marijuana into New Orleans from South America and that they could be found at a residence on Elysian Fields Avenue in New Orleans. The location was placed under sur- veillance. On the night of January 15, 1979, DEA and customs officials observed several individuals at a marina un- loading bales from a yellow boat, previously observed at the above residence, into a silver pick-up truck. The truck then proceeded to a private warehouse on Paris Road, New Orleans, where the bales were unloaded. This procedure was repeated twice that night. No search warrant was obtained during this time, al- though Agent Woodrow Wilson, the chief investigat- ing officer, admitted that he discussed with other offi- _- | 4 cials whether or not to obtain a search warrant. (Tr. 29- 30). As the silver pick-up exited the warehouse for the last time, it turned away from the previous loading site. The officers stopped it and arrested the three occu- pants. On the pretext of searching for other suspects, the private warehouse was then entered by law enforcement agents without either arrest or search warrants. Although no one. was found within the pri- vate warehouse, the relevant evidence herein, mari- juana, was seized. SIGNIFICANTLY, the first delivery to the private warehouse occurred at approximately 10:40 p.m. and the above arrests were not made until 3:15 a.m., approximately 4% hours later. The petitioners herein, Delgado and Bustillo, were arrested as they were driving a red pick-up truck some two miles from the marina where the yellow boat was originally observed. Allegedly, a truck matching the de- scription of the petitioners’ truck was seen departing the marina, but the testimony revealed that this sur- veillance was-broken. The petitioners were arrested miles from where the surveillance was broken, as they proceeded on a different highway. According to DEA agent McCoy, the petitioners were wet, had gleanings of marijuana on their clothing, and smelled of mari- juana when arrested. 5 B. Course Of Proceedings And Disposition Below Petitioners and four other defendants were indicted on January 25, 1979 in a two count indictment with: Count 1 — conspiracy to possess with intent to dis- tribute and to distribute marijuana; Count 2 — posses- sion with intent to distribute the same marijuana as in Count 1, (R. 1-2). On June 4, 1979, it was agreed that the case would be tried to the court without a jury and that the evidence on the Motion to Suppress would be submitted to the court for the trial on the merits. On June 12, 1979, the trial court denied the Motion to Suppress stating that no search warrant was necessary because the seizures were made pursuant to valid arrests. The court specifically rejected the plain view doctrine as being a “legal pigeon hole”. (Tr. 301-302). The evidence pre- sented in the Motion to suppress was submitted to the court for the trial on the merits. (R. 310). Petitioners herein moved for a judgment of acquittal. (R. 311). The court denied the motion. After the petitioners rested, the court found each of the six defendants guilty as charged on both counts. The United States Court of Appeals for the Fifth Cir- cuit affirmed the conviction and sentence of the peti- tioners finding that: (1) the warrantless search of the private warehouse herein was proper where officers entered the warehouse on the pretext of arresting ° 6 additional suspects, and (2) that the evidence suffi- ciently connected the petitioners with the crimes charged. REASONS FOR GRANTING THE WRIT AND ARGUMENT 1. The warrantless entry of law. enforce- ment agents into a private warehouse on the pretext of arresting unknown and, ultimately, non-existent suspects, but which resulted in the seizure of evi- dence, i.e., marijuana, violated the peti- tioners’ Fourth Amendment Rights as guaranteed by the United States Consti- tution. The United States Court of Appeals for the Fifth Cir- cuit, in its opinion below, held that the evidence here- in, i.e., marijuana, was legally seized because (1) the agents entered the private warehouse to arrest sus- pects (and not seize marijuana) and (2) once in the pri- vate warehouse, the agents seized the evidence pursu- ant to the “plain view doctrine”. The “plain view doctrine” holds that “objects falling in the plain view of an officer who has a right to be in the posi- tion to have that view (emphasis added) are subject to seiz- ure and may be introduced in evidence.” Harris vs. Unit- ed States, 390 U.S. 234 (1968). Petitioners respectfully submit that the officers herein did not have the right to be in the private ware- 7 house in order to view and seize the evidence intro- duced at trial. Accordingly, that evidence should be suppressed. This Court, in the recent decision of Payton vs. New York, U.S. ,27 Cr. L. 3033 (April 15, 1980) held that in order to justify an entry of a residence for the purpose of effecting an arrest there must be: (1) prob- able cause to arrest, (2) cause to believe the person sought to be arrested is on the premises, and (3) exi- gent circumstances. In reaching its conclusion about residences, the Court distinguished U.S. vs. Watson, 423 U.S. 411 (1976) upholding warrantless arrests in public places. However, the law of Payton is applicable to the present case. The private warehouse herein is not a public place. The expectation of privacy therein, if not as great, is clearly nearer the expectation one would have for his possessions stored at home than that ex- pected in an area where the public is invited. Absent some exigent circumstances there is no right of the Government to make a warrantless entry upon the premises of a business establishment not open to the public to perfect an arrest. See U.S. vs. Phillips, 497 F.2d 1131 (9th Cir., 1974). Given the applicability of Payton tothe present case, there is no doubt that the instant entry into the pri- vate warehouse to effect arrests of unknown and non- existent suspects was illegal. There was nocause to be- lieve that there were any suspects in the warehouse and, even if those suspects did exist, there were no exi- gent circumstances to justify the intrusive entry. There is no evidence or testimony in the record to support the contention that the officers had “reason- able grounds” to believe that anyone remained in the warehouse. The door to the warehouse had been closed by the three men who left in the silver pick-up truck. The rear of the warehouse (where all the activity had taken place) had been left in total darkness. (Tr. 227). No sign of movement or activity was noticed inside the warehouse by the two officers assigned to keep this area under surveillance To the contrary, these offi- cers left the rear of the warehouse completely unattended and went to where the arrest was taking place some distance to the front of the warehouse. Had these offi- cers had any indication of the continued activity in the rear of the warehouse after the departure of the pick- up truck, they would never have left their assigned position. There is no testimony from these officers or any other officers of the slightest movement or activ- ity once the pick-up truck leaves the scene. Noone was found in the warehouse. Additionally, these two offi- cers wholeft the rear of the warehouse were not sum- moned to assist in the arrest. There were certainly suf- ficient.officers at the front of the warehouse to secure the arrest of any other individuais. After the agents had arrested the three men in the silver pick-up truck they had accounted for at least nine 9 persons who had been seen on the night in question. The best estimates of the total number of individuals seen at the landing site was seven. Upon their arrival back at the rear of the warehouse no law enforcement officer made any call whatsoever for anyone in the warehouse to come out and surrender himself. This lack of even a single announcement is shown in the testimony of Officer Fuller who opened the door to the warehouse. (Tr. 176-177). Although the use of the canine is now portrayed as a safety precaution, the pro- cedure used does not substantiate this allegation. In- stead of announcing the dog and giving any individual a chance to surrender, no announcement was made, as previously mentioned. The dog was not sent in alone, which is the method used to protect the lives of offi- cers. One officer and maybe more accompanied the dog into the warehouse. (Tr. 106). Officers also tried the front door and the side door before opening the rear door. (Tr. 114). By their actions, they obviously in- tended to enter the premises with no apparent con- cern for safety since the dog was not present at those entry points. The surveillance lasted over four and one-half hours. There were so many agents, custom officers and sher- iff’s deputies on the scene that no accurate number is given. A minimum of fifteen officers were present. ‘7 r. 129). : In spite of an abundance of time, four and one-half hours, an excess of manpower, previous knowledge of cn 10 the location and description of the warehouse, a series of deliveries tothis warehouse, and no apparent danger whatsoever of anyone escaping or destroying the con- traband, a warrant was never even sought. There were no exigent circumstances. The difficul- ties of getting warrants signed is mentioned by both the federal authorities (Tr. 125) and the St. Bernard Sheriff Deputies (Tr. 204-205). However, these diffi- culties are not particular ones encountered in this in- stance but general problems from previous situations. The problems, it turns out, were all apprehensions rather than realities. Not even a single phone call was made to any federal or state judge or magistrate to see if they were available. (Tr. 225-226). It is obvious that it was more convenient for the officers to radio for a canine unit than to follow constitutional requirements and get a valid search warrant. Additionally, the DEA Report of Investigation ‘Defense Exhibit 1) page 4 states as follows: ‘.. . utilizing Customs Search Authority and under the direction of Customs Patrol Offi- cers, DEA Agents and St. Bernard Sheriff's Officers entered the warehouse and searched the warehouse.” No mention is made in the DEA Report of any reason whatsoever for the agents to have expected additional individuals in the warehouse. It is obvious from the 11 facts that the officers felt it burdensome to obtain a search warrant. Instead, what was first labeled a “cus- toms search” by the officers (Defense Exhibit 1) be- came a search for non-existent suspects. In summary, the law enforcement agents herein had no legal grounds to enter the private warehouse, as the record clearly demonstrates that: (1) there was no cause to believe that there were any suspects in the warehouse, and (2) even if such suspects existed, there were no exigent circumstances to justify the intrusive entry. The entry into the private warehouse was il- legal. All evidence seized in the private warehouse should be suppressed as violative of the petitioners’ rights under the Fourth Amendment of the United States Constitution. The violation of the petitioners’ Fourth Amend- ment rights justifies the grart of certiorari to review the judgment below. 2. The trial court erred in denying petition- ers’ Motion for Judgment of Acquittal based upon insufficiency of evidence. As admitted by the Government, the evidence in this case against the petitioners was, at best, circum- stantial. See Brief for the United States, p. 43, U.S. vs. Delgado, supra. On a motion for a judgment of acquit- tal, the test is whether, taking the views most favor- able to the Government, a reasonably minded jury 12 could accept relevant evidence as adequate and suffi- cient to support the conclusion of the defendant's guilt beyond a reasonable doubt. United States vs. Warner, 441 F.2d 821 (Sth Cir., 1971), cert. denied 404 U.S. 829 (1971); Glasser vs. United States, 315 U.S. 60 (1942). The standard to be applied. by a trial judge in testing the sufficiency of the evidence is whether a reasonable minded jury must necessarily entertain a reasonable doubt about the evidence. United States vs. Bright, 550 F.2d 240 (Sth Cir., 1977); United States vs. Higgins, 545 F.2d 1009 (Sth Cir., 1977). Petitioners, Delgado and Bustillo, were arrested sev- eral miles from the private warehouse. They were never identified on the boat or inthe marina. Acar and a trailer matching their description was seen leaving the marina. However, surveillance was not continu- ous. Moreover, the petitioners were arrested as they proceeded on a different highway miles from where the surveillance was conducted. An agent testified that they were wet and had marijuana gleanings on their clothes. Suspicious circumstances are not a substitute for evi- dence of guilt beyond a reasonable doubt. The evi- dence herein was insufficient to establish that the peti- tioners were involved in aconspiracy with intent todis- tribute marijuana. 13 CONCLUSION For these reasons, a writ of certiorari should issue to review the judgment and opinion of the Fifth Circuit. Respectfully Submitted, RAUL R. BENCOMO Attorney of Record for Petitioners Capitelli & Bencomo 604 Girod Street, 2nd Floor New Orleans, Louisiana 70130 Telephone: (504) 525-0720 | 14 CERTIFICATE OF SERVICE | hereby certify that a copy of this Petition has been served upon counsel for respondent, John Volz, United States Attorney, Eastern District of Louisiana, Hale Boggs Federal Building, 500 Camp Street, New Orleans, Louisiana 70130, and that three (3) copies have been served upon Wade H. McCree, Solicitor General, Department of Justice, Washington, D.C. 20530 by placing said copies in the United States mails, postage prepaid. I further certify that all parties required to be served have been served. This day of October, 1980. RAUL BENCOMO i | la APPENDIX A IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 79-5409 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RAPHEL FELO DELGADO, JORGE F. BUSTILLO, JOSE GUEVARA, RUGELIO SILVA, SILVIO CASTRO and JESUS A. HERNANDEZ, Defendants-Appellants. Appeal from the United States District Court for the | Eastern District of Louisiana ON PETITION FOR REHEARING June 17, 1980 Before RONEY, KRAVITCH and TATE, Circuit Judges. PER CURIAM: IT IS ORDERED that the petition for rehearing filed on behalf of Appellants DELGADO and BUSTILLO, in the above entitled and numbered cause be and the same is hereby denied. ENTERED FOR THE COURT: ls} Paul H. Roney Paul H. Roney United States Circuit Judge APPENDIX B UNITED STATES OF AMERICA, Plaintiff-Appellee, versus Raphel Felo DELGADO, Jorge F. Bustillo, Jose Guevara, Rugelio Silva, Silvio Castro and Jesus A. Hernandez, Defendants-Appellants. No. 79-5409 Summary Calendar.* United States Court of Appeals, Fifth Circuit. April 9, 1980. * Fed.R.App.P. 34(a); Sth Cir. R. 18. 3a Appeals from the United States District Court for the Eastern District of Louisiana. Before RONEY, KRAVITCH and TATE, Circuit Judges. PER CURIAM: Defendants were convicted of possession of mari- juana with intent to distribute and conspiracy, 21 U.S.C.A. §§841(a)(1), 846. Their major contention on appeal is that evidence of the warrantless seizure of several thousand pounds of marijuana was wrongfully admitted. Some defendants contend there was insuffi- cient evidence to sustain their convictions. Finding these arguments to be without merit, we affirm the convictions. A sketchy review of the facts is sufficient to set the scene for the search and seizure issue. In December 1978, Drug Enforcement Administration (DEA) offi- cers received information from a confidential inform- _ant that a group of people would be importing 50,000 pounds of marijuana into New Orleans from South America, and they could be found at a residence on Elysian Fields Avenue in New Orleans. The location was placed under surveillance by both Customs agents and agents of the DEA. On the night of January 15, 1979, DEA and Cus- toms officials saw a yellow boat, previously observed at 4a. the residence, returning from the Mississippi River Gulf Outlet, which is directly connected to the Gulf of Mexico. The boat was heavily laden and riding low in the water. The boat pulled into a marina where several vehicles that had also been observed at the residence were parked. These vehicles included a silver pick-up with a camper top and a red pick-up pulling a boat trail- er. Anumber of people were observed off-loading bales of what appeared to be marijuana from the boat into the silver pick-up truck. The truck then proceeded to a warehouse on Paris Road, where the bales were un- loaded. This procedure was repeated two more times that night. Another rental van was also observed leav- ing the warehouse. As the door was opened to allow these trucks in and out, one of the Customs officers was able to see several bales of marijuana inside the well-lighted warehouse. After the last load, several officers met to discuss strategy, leaving Customs officers to watch the ware- house and marina. Before they could agree on a plan, the Customs officers at the warehouse reported the silver pick-up was leaving. The Customs officers and the others stopped the vehicle less than 100 yards from the warehouse, and the occupants, defendants Her- nandez, Guevara and Silva, were arrested. Because of _ the noise of the arrest and the presence of a CB radio in the truck, and because the warehouse had been left un- watched during the arrest, the officers ran back to the warehouse to prevent the escape of other suspects they believed were still inside. Small lights in the office area 5a were on but the building was otherwise dark. The rear door, through which the pick-up had driven, was open slightly at the bottom. After the building was sur- rounded, one of the Customs officers opened the door and a police dog and its handler were sent in to search for other suspects. None were found but the bales of marijuana in the warehouse were seized. The district court correctly held the evidence seized in the warehouse was not the fruit of an illegal search. In United States v. Diezel, 608 F.2d 204 (Sth Cir. 1979), this Court held that Customs officials have the power, under 26 U.S.C.A. §7606, to make arrests when viola- tions of drug and marijuana laws are committed in their presence or where there are reasonable grounds to sus- pect a violation. In Diezel, Customs agents had received information that an illegal off-loading of marijuana would occur in Key West. The pier was kept under sur- veillance. Bales were observed being unloaded from a vessel into motor vehicles. The vehicles were stopped and the occupants arrested. When other persons ran into a nearby warehouse, Customs agents followed them there and arrested them. The arrests were held to be legal. The Customs agents here were authorized to arrest the occupants of the truck leaving the warehouse and to enter the warehouse to arrest other suspects they reasonably believed to be present. A number of people were involved in the operation, in the middle of the night, and a number had gone and come at the ware- 6a house. The door was partially open. A few lights were on in parts of the building. The fact that suspects were not found does not vitiate the reasonableness of the officers’ entry. Vale v. Louisiana, 399 U.S. 30, 90S.Ct. 1969, 26 L.Ed.2d 409 (1970), relied on by defendants, is inapposite. That case held that an arrest on the street outside the house does not justify a warrantless search of the house. The entry into the warehouse is not justified on the ground that an arrest was made nearby. The entry was proper because the agents had probable cause to arrest the participants in the operation and reasonable grounds to believe that some of them were in the warehouse. Having legally entered the warehouse for the pur- pose of apprehending additional suspects, the Cus- toms officers could seize the bales of marijuana that were then in plain view. It has long heen settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are sub- ject to seizure and may be introduced in evi- dence. Harris v, United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968). Defendants argue that since the agents knew mari- juana was in the warehouse, it was not discovered in- 7. 7% 7a advertently and therefore may not come in under the plain view doctrine, citing Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1970). The “in- advertent discovery” requirement in Coolidge does not prohibit the admission of the evidence here. Coolidge was “not acase involving contraband or stolen goods or objects dangerous in themselves.” Id. at 472, 915.Ct. at 2041. The seizure here was of contraband. The Coolidge opinion cites Ker v. California, 374 U.S. 23, 83S.Ct. 1623, 10 L.Ed.2d 726 (1963), as the proper test for determin- ing the validity of the seizure of contraband. The Court held in Ker that, while an arrest may not be used mere- ly as a pretext for a search without a warrant, the seiz- ure of marijuana in plain view is proper when the entry is based on constitutionally permissible grounds and when the purpose for the entry is to arrest the sus- pect. Id. at 42-43, 83 S.Ct. at 1634-1635. Here the dis- trict court specifically found that the officers entered the warehouse to arrest additional suspects and not to’ search for and seize the marijuana. Our cases fully support the refusal to suppress evi- dence of contraband under such circumstances. Linited States v. Worthington, 544 F.2d 1275, 1280 (Sth Cir.), cert. denied, 434 U.S. 817, 98 S.Ct. 55, 54 L.Ed.2d 72 (1977); United States v. Cushnie, 488 F.2d 81 (Sth Cir, 1973), cert. de- nied, 419 U.S. 968, 95 S.Ct. 233, 42 L.Ed.2d 184 (1974). See also United States v, Bolts, 558 F.2d 316 (Sth Cir.), cert. de- nied sub nom. Hicks v. United States, 434 U.S. 930, 98 S.Ct. 417, 54 L.Ed.2d 290 (1977). 8a Delgado and Bustillo argue there was insufficient evidence to connect them with the conspiracy. After the third load, the boat was observed by a surveillance aircraft and Customs agents at the marina to make one more run to the area where a 65-foot shrimper was seized the next day. Shortly after the boat returned to the marina, the red pick-up with a boat trailer attached was seen driving away. It was followed, stopped, and its occupants, defendants Delgado and Bustillo, were arrested. At the time of their arrest they were wet and had gleanings of marijuana on their clothing and they smelled of marijuana. Evidence of such activity in a re- mote area in the middle of the night is clearly suffi- cient to support the verdict of the district court as to Delgado and Bustillo. AFFIRMED. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0690%3A1. Public record. Not legal advice.