Petition — Lopez-Llerena v. United States

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CASE NO.:

ALEXANDER L. STEVAS

IN THE CLERK

z Renscisediionsimane

SUPREME COURT OF THE UNITED STATES

v OCTOBER TERM, 1983

ALBERTO LOPEZ-LLERENA, FELIX PARRA,

and JOSE BORGES,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

GEOFFREY C. FLECK, ESQUIRE

WILLIAM R. TUNKEY, ESQUIRE

WEINER ROBBINS TUNKEY & ROSS, P.A.

2250 Southwest Third Avenue

‘ Miami, Florida 33129

(305)858-9550

February 14, 1984

Counsel for the Petitioners

.

QUESTIONS PRESENTED FOR REVIEW

I. WHETHER THE DECISION’ BELOW

PRESENTS AN IMPORTANT QUESTION OF

FEDERAL LAW AND CREATES

IRRECONCILABLE CONFLICT WITH THE

PRECEDENT OF THIS COURT BY HERALDING

THE END OF THE TIME HONORED MERE

PRESENCE RULE.

Il. WHETHER THE DECISION’ BELOW

CREATES IRRECONCILABLE CONFLICT WITH

VARIOUS CIRCUIT COURT DECISIONS

INCLUDING United States v. Lopez-

Ortiz, 492 F.2d 109 #Gth Cir.

1974); United States v. Reyes, 595

F.2d 275 (th Cir. 1575), and

United States v. Pintado, 715 F.2d

t fe _

PARTIES TO THE PROCEEDING IN THE COURT BELOW

United States of America

Alberto Lopez-Llerena

Felix Parra

Jose Borges

Jose Delfin Mule Vasquez

Lazaro Cruz, Jr.

Hector Theodore Valdes

Fausto Manuel Sanchez

Raul Pinera

Carlos Olivera-Chirino

Jose Luis Marino

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOR

EEE i

PARTIES TO PROCEEDING IN

EE ee ae i

a l

Ee 2

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED...... ceeeeebeece 2

Dane «GO Ze CASE. cc ccccccccecs 4

REASON FOR GRANTING THE WRIT...... 7

I. THE DECISION BELOW PRESENTS

AN IMPORTANT QUESTION OF

FEDERAL LAW AND CREATES

IRRECONCILABLE CONFLICT WITH

THE PRECEDENT OF THIS COURT

BY HERALDING THE END OF THE

TIME HONORED MERE PRESENCE

Dt titi eeeaneoeneéeoeece eee e 7

II. THE DECISION BELOW CREATES

IRRECONCILABLE CONFLICT WITH

VARIOUS CIRCUIT COURT DECISIONS

INCLUDING United States v.

Lopez-Ortiz, 492 F.2d 109 (Sth

Cir. 1974); United States v.

Reyes, 595 F.2d 275 (5th cir.

Tov5y. and United States v.

Pintado, 715 F.2d 1501 (11th

: ts - 6eewes abeke ees 17

ii

CONCLUSION. ccccccccccccccccccccces 27

‘ CERTIFICATE OF SERVICE... .ccccccce 29

APPENDIX

: A. Lower Court Opinion

B. Order Denying Petition

for Rehearing and

Rehearing En Banc.

1ii

TABLE OF AUTHORITIES

Cases

Sibron v. New York,

S9Z U.S. GU (1968) .. cc cccccccce

Ybarra v. Illinois,

oe gl, )

United States v. Blasco,

th Cir. 1983).

United States v. DiRe,

United States v. Pintado,

F. th Cir. 1983).

Unired States v. Reyes,

595 F.2d 275 (Sth Cir. 1979)...

CONSTITUTIONAL PROVISIONS

Fifth Amendment,

United States Constitution.........

Sixth Amendment,

United States Constitution.........

RULES

Rules of the Supreme Court of the

United SGates, Rule ZOcccsccccccecs

iv

Docccccscccece

United States v. Lopez-Ortiz,

492 F.2d 109 (th Cir. 1974)...

PAGE

STATUTES

21 U.S.C. Section 846

28 U.S.C. Section 1254(1)

28 U.S.C. Section 1291

CASE NO.:

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

ALBERTO LOPEZ-LLERENA, FELIX PARRA,

and JOSE BORGES,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Elewenth Circuit

OPINION BELOW

The Opinion of the lower court is

reported in United States v. Lopez-Llerena,

721 F.2d 311 (llth Cir. 1983), rehearing

denied, 721 F.2d 311 (llth Cir. 1983).

ele

JURISDICTION

The Judgment of the Court of Appeals for

the Eleventh Circuit affirming the

Petitioners’ convictions was entered on

August 30, 1983. On December 16, 1983, the

Eleventh chews denied the Petitioners'

Petitions for Rehearing and Rehearing En

Banc.

The jurisdiction: of the Court is invoked

pursuant to 28 U.S.C., Section 1254(1) and

Supreme Court Rule 20.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

U.S. Const., Amendment V:

No person shall .. . be deprived of

life, liberty, or property, without

due process of law; ...

U.S. Const., Amendment VI:

In all criminal prosecutions, the

accused shall enjoy the right to a

speedy and public trial, by an

impartial jury .. . and to be

informed of the nature and the cause

of the accusation; to be confronted

with the witnesses against him; to

have compulsory process for

obtaining witnesses in his favor,

and to have the assistance of

counsel for his defense.

21 U.S.C., Section 846, attempt and

conspiracy:

Any person who attempts or conspires

to commit any offense defined in

this subchapter is punishable by

imprisonment or fine or both which

may not exceed the maximum

punishment prescribed for the

offense, the commission of which was

the object of the attempt’ or

conspiracy.

STATEMENT OF THE CASE

The Petitioners, ALBERTO LOPEZ-LLERENA,

FELIX PARRA, and JOSE BORGES, were arrested

as a result of a law enforcement raid on two

neighboring houses in a residential area in

Key Largo, Florida, following an off-load of

marijuana from two vessels docked behind the

premises. They, along with eight’ co-

defendants, were charged in a two count

Indictment with conspiracy to possess with

intent to distribute marijuana and with

possession of marijuana. Each of the

Petitioners was ultimately found guilty of

conspiracy and not guilty of the possession

count.

The evidence showed that when various

police vehicles with flashing blue lights and

sirens sounding converged on the premises,

various suspects ran in different directions.

At least three people climbed an external

stairway and went into the upstairs portion

of one of the two neighboring houses raided.

When the house was ultimately searched,

fifteen minutes after the initial raid,

whispered voices were heard emanating from an

upstairs bedroom. Officers announced their

presence and ordered the occupants of the

premises out whereupon the Petitioners

LOPEZ-LLERENA, PARRA, and BORGES’- exited

voluntarily. There was no evidence to show

that the Petitioners were the same people

seen entering the house previously. The

Petitioners, similarly, wene never identified

as having participated in any way in the off-

load operation.

There were no fingerprints, no

photographs, no evidence of the Petitioners'

recent exertion, no marijuana residue, no

statements, no contraband on any of the

Petitioners’ persons, or evidence of flight.

There was, however, substantial evidence

ee

to show that other people at the scene had

avoided detection and apprehension.

Nevertheless, the Petitioners were arrested,

charged and convicted because of their

proximity to the off-load operation. By the

agents' own admission, they would have, and

did, arrest everyone they found. Because

eleven people had been observed participating

in the off-load and eleven people were

ultimately arrested, each of the Petitioners

has suffered a fate derived as if from

predestination. Such a result does not

comport with either the promise of a fair

trial or the guarantee of due process

afforded by the Fifth Amendment to the United

States Constitution.

The Eleventh Circuit's jurisdiction to

entertain Petitioners’ direct appeal was

predicated upon 28 U.S.C., Section 1291.

REASONS FOR GRANTING THE WRIT

ke

The decision below presents = an

important question of federal law

and creates irreconcilable conflict

with the precedent of this Court by

heralding the end of the time

honored mere presence rule.

The decision of the Eleventh Circuit

Court of Appeals affirming the Petitioners'

convictions for conspiracy to possess

marijuana signals the death knell of the

heretofore established "mere presence

doctrine" in this jurisdiction. It has long

been the rule, as held by this Court in

United States _v. DiRe, 332 U.S. -581, 593

(1948), that mere presence is insufficient,

without more, to sustain a conviction for

conspiracy. Likewise, equally well

established is the doctrine repeatedly

expressed as in Sibron v. New York, 392 U.S.

40, 62-63 (1968), and Ybarra v. Illinois, 444

U.S. 85, 91 (1980), that:

[A] person's mere propinquity to

others independently suspected of

criminal activity does not, without

more, give rise to probable cause to

search that person.

The decision of the Eleventh Circuit in

this case signifies an extraordinary and

irreconcilable departure from the time

honored rule that mere presence, even when

coupled with flight, is not alone enough upon

which to predicate criminal convictions.

In the case at bar, two vessels, the

"Sunshine" and the "Odette", were observed by

police being unloaded of their cargoes of

marijuana during the early morning hours of

December 22, 1981. The "Sunshine" arrived

first, docked behind a house in Key Largo,

Florida, and approximately an hour later,

after the "Sunshine" had departed, the

"Odette" docked behind a house next door.

[TR. 82-84, 88]. It appeared to surveilling

officers that eleven people, all together,

were involved in each off-load operation.

None of the Petitioners at trial were

identified by any Government witness as

having been involved in either off-load

operation. None of the Government's

witnesses could identify any Petitioner as

having been observed at any specific location

on the 2lst or 22nd of December, 1981, prior

to their arrest. (TR. 418-419]. No

surveilling officer was able to see the faces

of any of the people at the scene. They

could not describe what any of the people

were wearing. The individuals involved could

only be seen as silhouettes. (TR. 84-85].

It was not known whether the people seen were

black or white. [TR. 217, 454].

There was no attempt to obtain

fingerprints in this case. (TR. 124-126].

Although the "Sunshine" was later seized in

the Miami River, no evidence was presented

that it was tested for latent fingerprint

impressions so as to identity the people who

had been on board it. (TR. 156-157]. No

evidence was presented that any of the

suspects had marijuana residue on their

clothing. Apparently, no attempt was made to

gather such evidence. [TR. 218-222]. Radio

broadcasts and communications related to the

investigation were monitored, however, none

were admitted into evidence or described by

any witness. [TR. 150]. No conversations or

interceptions were recorded. [TR. 150].

No attempt was made to take photographs

of the off-loading operation. (TR. 151,

242]. No evidence was presented that any of

the Petitioners on trial owned either of the

houses or vessels involved in this case.

[TR. 193-194]. Later investigation revealed

that one of the houses was owned or rented by

an individual uncharged in this case.

(TR. 152]. Papers located on the vessel

«tS

"Odette" indicated that its owner was also a

person who was not arrested. [TR. 147].

The critical deficiency in the

Government's case against the Petitioners

involves the fact that the prosecution was

based solely upon a "numbers game."' All that

was certain was that anyone on the premises

or in the immediate area would be arrested

even though the actual arresting officer had

no knowledge of how many people were involved

in the off-loading operation. [TR. 301-302].

However, since eleven people were observed in

the off-loading operation, it was predestined

that eleven people would be arrested and face

trial in this case.

The defect in the Government's theory of

the case, however, involved not only the

insufficiency of the evidence against the

Petitioners, but the fact that there was

evidence that guilty persons involved in the

off-load operation had escaped detection

alia

while innocents were indiscriminately

arrested and charged. The undisputed

evidence presented by the Government

demonstrated that Drug Enforcement

Administration Agent William Simpkins took

possession of two wallets discovered in the

first house. [TR. 668-669]. The two people

identified by documentation found within the

wallets were not arrested. (TR. 669-671].

The wallets contained various checks, bank

deposit slips, documents, and approximately

eight hundred to one thousand dollars in

cash. [TR. 686].

In addition, the Government's own

evidence established that one man observed

during surveillance carried a machine gun

type weapon described as an Uzi machine gun.

[TR. 90, 371-372]. None of the eleven

defendants arrested in this case possessed a

weapon. No weapons were found in either

house. [TR. 306, 322].

-12-

In addition to the missing weapon, the

two people who abandoned their wallets,

money, and personal possessions to the scene,

and whatever unknown, unobservable people

remained within the premises and in the

proximity of the vessels, there existed the

express admission by the Government witnesses

that more than the eleven people arrested may

have been involved. Prior to the raid, the

roadway coming into the area was not closed.

[TR. 207]. Accordingly, after eleven people

were apprehended, a search was nevertheless

conducted of the area because it was unknown

whether or not more people were in front of

the house. [TR. 209-210]. One surveilling

officer expressly admitted he could not

testify whether or not any of the suspects

had escaped from the area and avoided

apprehension. [TR. 423].

Thus, the decision of the Eleventh

Circuit invites, if not compels, devotion to

ite

the idea that one's suspicious mere presence

at the scene of a crime sustains proof beyond

a reasonable doubt of one's guilt. In

addition, the court's departure from

established United States Supreme Court

doctrine is aggravated by its misplaced

reliance upon its own prior decision in

United States v. Blasco, 702 F.2d 1315 (llth

Cir. 1983), cert. denied, U.S.

As set forth in the factual recitation in

Blasco at 1320-1321:

The Cohen estate is bordered by

water on two sides -- the southern

end of the residence rests upon a

canal, and the western portion of

the property extends to the Spanish

Harbor Channel. The remaining two

sides are enclosed by a chain-link

fence, and, on the night in

question, the gate across the road

leading to the residence was

padlocked.

Moreover, the Blasco court revealed that "the

officers moved ...to...a point from

which they could see the entrance to the

canal leading to the Cohen property." Id. at

Bike

1321. Also, the officers involved in the

Blasco raid were “instructed to shut off the

possible avenues of escape.'"' Id. Finally,

regarding the nature of the area involved in

Blasco, the court expressly noted: "The

Cohen estate is situated in a secluded area,

the kind frequently utilized for off-load

operations." Id. at 1332.

In the case at bar, the undisputed

testimony of the arresting officers was that

they could not preclude the possibility that

someone escaped from the residences involved

prior to the time the officers reached the

scene from the surveillance point across the

canal. (TR. 423]. No officers were

positioned to prevent suspects from escaping

via the canals which ran along both sides of

the area in question. (TR. 480]. The

photographic evidence introduced at trial

clearly revealed that the area in which the

residences were located was not private and

o1$<

secluded, but rather contained dozens of

nearby homes into which any suspects could

have entered and hidden. In addition, the

record detects numerous escape routes along

hundreds of yards of seawall giving access to

both canals.

If the mere presence doctrine is to enjoy

further viability and if this Court's

precedent is to be honored, certiorari must

be granted to remedy che constitutional

aberration created by the Eleventh Circuit

Court of Appeals in this case.

-16-

Il.

The decision below creates

irreconcilable conflict with various

circuit court decisions includin

United States v. Lopez-Ortiz, 49

F.2d 109 (Sth Cir. 974); United

States v. Re yes, 595 F.2d 275 (th

fe and United States v.

Pintado, is F.2d I501 (Ith Cir.

T9583).

The decision of the former Fifth Circuit

Court of Appeals in United States v.

Lopez-Ortiz, 492 F.2d 109 (5th Cir.), cert.

denied, 419 U.S. 1052 (1974), is materially

indistinguishable from the case at bar.

There, a night-time surveillance revealed

numerous people unloading large gunny sacks

from a truck to the garage of a residence. A

raid was conducted on the premises and the

participants in the unloading operation

"broke and ran.'' Two people were taken into

custody in the immediate vicinity and

Lopez-Ortiz was found hiding behind a rock

wall dividing the premises from the next door

site

property. Despite the fact that numerous

gunny sacks were in plain view and the odor

of marijuana was prevalent, the court

reversed the defendant's conviction for

conspiracy to possess marijuana with intent

to distribute it since his presence and

flight did not prove the offense charged.

Moreover, the court's decision was not

altered by its finding that the defendant's

story was impeached in at least three ways

and its conclusion that these inconsistencies

resulted in a jury verdict of guilty. The

court, noting that the issue before it was

not the credibility of the defendant's story,

held:

At best, the evidence establishes

only that he was present in the area

and had fled from federal officers.

It does not show that he actually

participated in the unloading

operation, or began his flight from

near the truck. Further, there was

no testimony by the government

agents that Lopez-Ortiz had

approached and entered the house

prior to the raid. Indeed, all the

~)

arresting officers could say was

that they found him behind a nearby

rock wall. 492 F.2d at 115.

The same conclusion should have been reached

by the Eleventh Circuit Court of Appeals in

this case.

The decision of the Eleventh Circuit is

equally irreconcilable with the decision of

the court in United States v. Reyes, 595 F.2d

275 (Sth Cis. i979). In Reyes, the

defendants were found in a small airplane

from which bales of marijuana had been

dropped. There was no evidence that they

pushed the bales out. Their convictions were

reversed since:

there was no direct testimony that

any of them did so, much less that

att of them participated. Each of

the defendants was entitled to have

his guilt or innocence determined as

an individual; the government failed

to prove beyond a reasonable doubt

that each defendant or any

particular defendant partici-

pated... 595 F.2d at 281

(emphasis by court).

The differentness of the court's decision

«19-6

in this case, and even its own internal

conflict, is palpably demonstrated by its

subsequent decision in United States

v. Pintado, 715 F.2d 1501 (llth Cir. 1983).

This case and Pintado are remarkable for

their factual similarities. Both involved

Customs surveillances of houses’ bordering

canals in the Florida Keys. Both involved

marijuana off-load operations from a vessel

docked behind the premises involving

numerous, unidentified people. In each case,

a raid by numerous Customs officials resulted

in the arrests of all the suspects they were

able to find at the scene.

In Pintado, after two suspects were

arrested outside, others ran into the house

and were followed by Customs agents:

Two agents climbed the stairs to the

second floor of the house and were

confronted with a pair of locked

doors. An official knocked on one

of the doors, announced in English

~ Customs'"' and asked whoever

was in the room to come out. When

-20-

no response was received, the door

was forced open. Appellant, wearing

a pair of pants and perhaps a shirt,

was found hiding in the closet. 715

F.2d at 1503.

In the case at bar, various. police

vehicles with flashing blue lights and sirens

sounding converged on the premises. Various

suspects ran in various directions.

[TR. 92]. According to surveilling agents,

at least three people entered the house where

the Petitioners were ultimately arrested.

(TR. 93, 381]. The lead officer admitted he

had not seen the people on the stairs enter

the house and did not know whether the

Petitioners were the same people he had seen

previously. (TR. 493-494]. No government

witness was able to identify either

LOPEZ-LLERENA, PARRA, or BORGES as having

been involved in the unloading of either of

the two vessels. (TR. 143]. Ultimately,

fifteen minutes after the initial raid,

agents climbed an outdoor rear staircase to

afi

the upper floor of the house. The door was

open and whispered voices could be heard from

inside. (TR. 282-283]. The officers

announced their presence and ordered the

occupants of the premises out whereupon the

Petitioners LOPEZ-LLERENA, PARRA, and BORGES

exited voluntarily.

Despite the graphic similarities in the

two cases, the Pintado court reversed the

conviction of the accused while the

Lopez-Llerena court affirmed.

The distinctions between Pintado and

Lopez-Llerena are noteworthy too, because

they demonstrate, even more compellingly,

that the convictions in the case at bar

cannot be sustained. In Pintado, security

lights in the rear of the house were lighted

and dock lights along the canal were

illuminated. In the case at bar, the off-

load operation was conducted in the blackness

of night -- so dark, in fact, that even with

o22<

a night scope all that could be seen by the

surveilling officers were silhouettes.

[TR. 169-170, 199]. The Petitioners here

were found in the part of the house facing

the street, not the part of the house facing

the canal. [TR. 284]. Thus, the conclusion

reached by the Pintado court that there were

"no objective facts or circumstances from

which Appellant's knowledge of the on-going

operation could be inferred" is all the more

compelled here.

In Pintado, defense counsel's

preposterous argument that the defendant had

been sleeping in the bedroom at the time the

Customs officials entered the house was

refuted by the fact that he was clothed in

pants and a shirt. In the case at bar, there

was sufficient clothing and food in the ice

box and on the counters at the house for two

or three people on an “overnight

trip'' -- facts utterly consistent with the

=@23<

Petitioners’ explanation of their presence.

[TR. 300]. Neither LOPEZ-LLERENA, PARRA, nor

BORGES had any weapons. [TR. 306]. There

were no two-way radios, as were found

elsewhere, in the bedroom where the

Petitioners were found. (TR. 306]. The

bedroom did contain, however, a television

and a video recorder consistent with the

Petitioners' testimony that they had been

watching television prior to their arrests.

[TR. 307-308; Government's Exhibit P44]. The

agents in Pintado had to forcibly break

locked doors to effectuate the defendant's

arrest. In the case at bar, LOPEZ-LLERENA,

PARRA, and BORGES exited upon request. None

of the Petitioners resisted the officers in

any way. (TR. 284-285, 305]. Neither

LOPEZ-LLERENA, PARRA, nor BORGES made any

effort to hide or flee contrary to the

furtive hiding of Pintado in a closet (and,

for that matter, the actions of various other

=24-

defendants in this case).

In this case, there were no fingerprints,

no photographs, no evidence of the

Petitioners’ recent exertion, no marijuana

residue, no statements, no contraband on any

of the Petitioners' persons, or evidence of

flight. There existed, as in Pintado,

absolutely no objective facts or

circumstances from which the Petitioners’

knowledge of the on-going operation could be

inferred. See, e.g., Pintado, supra at 1505.

The opposite conclusions reached by two

panels of the Eleventh Circuit within the

period of a month on the same issue and, for

all intents and purposes, the same facts, are

o2$~

utterly irreconcilable.! Certiorari must be

granted to resolve the conflict created by

the Eleventh Circuit Court of Appeals and to

remedy the injustice suffered by ALBERTO

LOPEZ-LLERENA, FELIX PARRA, and JOSE BORGES.

lfhe unsettled state of the law does not

appear to be unappreciated by the juries that

tried either Pintado or the Petitioners here.

Both juries failed to convict the defendants

on Count II of their Indictments charging

possession of marijuana with intent to

distribute while each, apparently compro-

mising, rendered guilty verdicts solely on

the conspiracy count. --

CONCLUSION

The case below characterizes a radical

departure from the substantive body of case

law developed by this Court as well as the

Fifth Circuit Court of Appeals regarding mere

presence at the scene of a crime. The matter

involved in this case is of extreme judicial

significance. The maintenance of uniformity

in the administration of criminal justice in

the federal courts, particularly the Eleventh

Circuit, is jeopardized by the decision

below. For the reasons and _ authority

-27-

advanced above, therefore, the Petitioners

strenuously urge this Court to grant its Writ

of Certiorari in this case.

WEINER, ROBBINS, TUNKEY & ROSS, P.A.

Attorneys for Petitioners

2250 Southwest Third Avenue

Miami, Florida 33129

Telephone: (305)858-9550

CLs

} . FLECK, ESQUIRE

CE

28

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that all parties

required to be served herein have been served

and further certify that three copies of the

foregoing Petition have been served by United

States mail this 13th day of February, 1984,

upon the Office of the United States

Solicitor General, 10th and Constitution

Avenue, N.W., Washington, D.C. 20530, and a

copy upon Lurana S. Snow, Esquire, Office of

the United States Attorney, 299 E. Broward

Boulevard, Fort Lauderdale, Florida 33301.

CEOL

=29<

APPENDIX A

Opinion in the Court Below.

UNITED STATES of America,

Plaintiff-Appellee,

Ve

Alberto LOPEZ-LLERENA, Felix Parra, Jose

Borges, Jose Delfin Mule Vasquez, Lazaro

Cruz, Jr., Hector Theodore Valdes, Fausto

Manuel Sanchez, Raul Pinera, Carlos

Oliver-Chirino, and Jose Luis Marino,

Defendants-Appellants.

No. 82-5916.

United States Court of Appeals,

Eleventh Circuit.

Aug. 30, 1983.

Appeals from the United States District

Court for the Southern District of Florida.

Before FAY and KRAVITCH, Circuit Judges,

and ATKINS*, District Judge.

PER CURIAM:

AFFIRMED; Circuit Rule 25. See United

States v. Blasco, 720 F.2d 1315 (llth Cir.

1983).

*Honorable C. Clyde Atkins, U.S. District

Judge for the Southern District of Florida,

sitting by designation.

A-1

APPENDIX B

Order Denying Petition for Rehearing and

Rehearing En Banc.

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

Alberto LOPEZ-LLERENA, Felix Parra, Jose

Borges, Jose Delfin Mule Vasquez, Lazaro

Cruz, Jr., Hector Theodore Valdes, Fausto

Manuel Sanchez, Raul Pinera, Carlos

Oliver-Chirino, and Jose Luis Marino,

Defendants-Appellants.

No. 82-5916.

United States Court of Appeals,

Eleventh Circuit.

Dec. 16, 1983.

Defendants were convicted in the United

States District Court for the Southern

District of Florida, Jose A. Gonzalez, Jr.,

J., of conspiracy to possess marijuana with

intent to distribute. The Court of Appeals

affirmed, slip op. p. 854, __ F.2d «Ss On

petitions for rehearing, the Court of Appeals

held that there was sufficient evidence

beyond defendants' presence and flight to

support convictions for conspiracy to possess

marijuana with intent to distribute.

Petitions denied.

: Appeals from the United States District

Court for the Southern District of Florida.

ON PETITIONS FOR REHEARING

(Opinion August 30, 1983, llth Cir.,

1983, slip op. p. 854, F.2d )-

Before FAY and KRAVITCH, Circuit Judges,

. and ATKINS*, District Judge.

PER CURIAM:

A panel of this court affirmed the

appellants’ convictions pursuant to Circuit

Rule 25, relying on United States v. Blasco,

702 F.2d 1315 (llth Cir. 1983). The

*Honorable C. Clyde Atkins, U.S. District

. Judge for the Southern District of Florida,

sitting by designation.

appellants have filed a petition for

rehearing and a suggestion for rehearing en

banc, contending that the affirmance of their

convictions is in conflict with this court's

subsequent decision in United States v.

Pintado, 715 F.2d 1501 (llth Cir. 1983). We

disagree and deny the petition for rehearing.

Like the appellants in this appeal, the

defendants in Blasco and Pintado challenged

the sufficiency of the evidence for their

convictions under 21 2.8.6. §846 of

conspiracy to possess marijuana with intent

to distribute. Both Blasco and Pintado were

decided on the principle that = although

presence and flight alone are insufficient to

establish that the defendant was a member of

the drug conspiracy, a reviewing court must

consider the totality of the circumstances,

including the facts of presence and flight,

to determine "if there is substantial

evidence to support [the jury verdict] when

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the facts are viewed in the light most

favorable to the government." United

States v. Blasco, 702 F.2d at 1331-32

(quoting U.S. v. Davis, 666 F.2d 195, 201

(Sth Cir. Unit B 1982))!; U.S. v. Pintado, at

1503. This standard of review complies with

our holding in U.S. v. Bell, 678 F.2d 547

(Sth Cir. Unit B 1982) (en banc), aff'd on

other grounds, U.S. , 203 $.Ce. 2396,

76 L.Ed.2d 638 (1983):

It is mot necessary that_ the

evidence exclude every reasonable

hypothesis of innocence or be wholly

inconsistent with every conclusion

except that of guilt, provided a

reasonable trier of facts could find

that the evidence establishes guilt

beyond a reasonable doubt. A jury

is free to choose among reasonable

constructions of the evidence.

[1] In Blasco we found that the totality

of the circumstances would have allowed a

reasonably cautious jury to conclude that the

IThis circuit has adopted Unit B decisions

of the former Fifth Circuit as binding prece-

dent. Stein v. Reynolds Securities, Inc.,

667 F.2d 33, 34 Tiith Cir. 1982).

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appellants were involved in a drug

conspiracy. The off-loading operation had

taken place early in the morning at a

secluded setting, and the agents’ had

testified to the noise of the operation and

the heavy smell of marijuana. The panel

found that “it strains the imagination that

these appellants were not aware of the off-

loading taking place on the dock outside the

house,'' 702 F.2d at 1332, and concluded that

a jury could have found beyond a reasonable

doubt that the defendants were guilty. Id.

Blasco thus did not overrule our prior cases

in this area, but simply brought them into

accord with the Bell decision.2

2The appellants, for example, rely

U.S. v. Lopez-Ortiz, 492 F.2d 109 (Sth Cir.

1974). Lopez-Ortiz, however, was decided

prior to Bell and concluded that the evidence

to be sufficfent to convict had to "exclude

every reasonable hypothesis save that of

guilt, at least where, as here, there are

explanations of presence and motives for

flight that are consistent with innocence."

492 F.2d at 115. Thus the holding of

Lopez-Ortiz, that mere presence and flight is

nsu clent evidence to convict, still is

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In Pintado, a review of the totality of

the circumstances led to a reversal of the

defendant's conviction. Agents testified

that at 1:40 a.m. "about six'’ persons were

seen quickly and silently unloading large

bundles from a boat docked behind the house.

Customs officials approached in a car with

lights flashing and announced "+S

Customs.'' Two individuals were apprehended

outside; the rest fled into the house. Three

males and a female were arrested downstairs.

Pintado was discovered hiding in a closet

after officers forced open a locked bedroom

door upstairs. A total of seven persons were

arrested. Although at trial Pintado claimed

that he had been sleeping during the off-

loading operation and was unaware of the

events outside, he was wearing a pair of

valid, but a post-Bell court need not exclude

“every reasonable hypothesis save that of

guilt’' to uphold the conviction.

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pants and a shirt when found.

This court found that the jury could have

reasonably rejected the defendant's claim

that he was sleeping, but that there was no

other evidence besides his presence and

hiding to infer that he was a member of the

conspiracy. The operation had been carried

out silently and the marijuana had been

placed in a garage that was not visible from

the room where the appellant was discovered.

Several sets of damp and dirty clothing were

found downstairs; the government, however,

did not show the number or sizes of the

clothing or in any way connect the clothes

with Pintado. Furthermore, the government

was unable to correlate the number of

individuals arrested and indicted with the

Customs official's observations of the number

of people involved in the unloading process.

The official estimated that "about. six"

persons were involved, but admitted that he

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could not tell whether four, five, six, seven

or some other number of individuals were

actually present.?

{2] Unlike Pintado, a review of the

totality of the circumstances in this case

demonstrates that the jury could have found

beyond a reasonable doubt that the appellants

were involved in the drug conspiracy. Two

agents, one using a star scope, observed from

one hundred feet away the separate unloadings

of the SUNSHINE and the ODETTE, each time

counting eleven individuals forming a line to

pass the bales from the boat up to the

house.¢ Around 2 a.m., law enforcement

3Furthermore, of the seven individuals

arrested (six males and one female), only the

six males were indicted, although “what

appeared to be a female" was observed out on

the seawall only forty minutes prior to the

raid. An additional reason thus existed to

doubt that the government's estimate of

"about six'' offloaders were the same six who

were indicted.

“Because of the darkness, the agents could

not identify any of the individuals involved

merely through their observations of the

unloading. :

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officers moved in for the arrest with sirens

and lights flashing, and the eleven

individuals scattered. A DEA helicopter

appeared minutes later, hovering overhead

with its landing lights on.

The officers observed the various

individuals as they fled to several areas.

The first four arrested were found hiding in

a cluster of sea grapes. The officer with

the star scope had watched them jump a fence

and take cover. Three individuals were seen

running up the outside stairs to the upper

level of the house and were apprehended after

a search of the house; no one else was found

in the house or seen escaping. Three other

appellants were arrested after being observed

running towards a fence near the canal; one

was found swimming in the canal (although the

night was very cold) and two hiding under a

rock ledge. The last defendant was

discovered hiding under the dock after an

——————————

agent had seen him disappear into the shadows

of the ODETTE. The first arrest occurred

within four minutes of the commencement of

° the raid; the last arrest took place

approximately ten minutes later.

[3] The appellants argue that reasonable

doubt existed because the officers conceded

that they could not be sure that no one had

escaped and because there was evidence that

other individuals had been present. One of

the three defendants found upstairs also

° testified at trial that they had been

watching T.V. during the unloading, unaware

The defendants primarily rely on evidence

that two wallets were found containing eight

hundred to a thousand dollars which did not

belong to any of the defendants, that none of

the defendants owned either the boats or

homes involved, and that although an indivi-

dual with an Uzi machinegun was seen

patrolling, the machinegun was never found.

The government, however, need not prove that

other individuals were not on the grounds

during the evening or were involved in the

- overall conspiracy (for example, providing

the boats), but only that the eleven

appellants who were arrested participated in

the conspiracy.

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of the events going on in the back yard.

Viewing the evidence as most favorable to

government, Glasser v. United States, 315

U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942),

we find sufficient evidence beyond the

appellants’ presence and flight to support

the convictions. Although the officers did

mot testify as to the noise of the unloading

or the smell of marijuana, two boats were

unloaded at different times in the early

hours of the morning by a human chain of

eleven individuals -- circumstances that

would allow a jury to reasonably infer that

those present were aware of the operation.

(Furthermore, and importantly, the officers

were able to testify as to where the

individuals had fled in attempting to escape,

and they were subsequently found and arrested

in these locations.) Finally, unlike

Pintado, the number of individuals observed

unloading, eleven, corresponded with the

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number of persons found and arrested.®

The three individuals arrested in the

upstairs room argue that their case is

identical to Pintado's, who also was found

hiding in an upstairs room. Yet, here, the

officers saw three individuals going upstairs

and no other individuals were found in the

house. We thus have a further element not

present in Pintado, where an unknown number

of individuals had fled into the house when

the raid commenced and no one saw any of

those fleeing run up the stairs to the

bedroon.

6Unlike Pintado, the agents in this case

did not estimate that "about eleven" were

involved, but testified that they had counted

nine individuals on shore and two persons on

the ODETTE unloading before the raid. The

defendants point out that at an earlier trial

one of the officers had testified that "about

nine" were on shore unloading a boat that had

docked earlier, the SUNSHINE. Even assuming

that the officer was making an estimate of

those on shore for unloading the SUNSHINE,

his testimony does not suggest that he esti-

mated the number of persons participating in

the later unloading of the ODETTE, which was

the vessel that was docked when the raid

occurred.

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The facts of this case are not identical

to either Blasco or Pintado. A review of all

the circumstances, however, leads us_ to

conclude that the facts here are more akin to

Blasco, as there are circumstances beyond

presence and flight that provided sufficient

evidence for a jury to find beyond a

reasonable doubt that the appellants were

part of a drug conspriacy.

The petition for rehearing is DENIED.

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