United States of America, Plaintiff-appellee, v. Clarence Baity et al., Defendant-appellant, 464 F.2d 570 (5th Cir. 1972)

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U.S. Court of Appeals for the Fifth Circuit - 464 F.2d 570 (5th Cir. 1972)

Fifth Circuit.

July 28, 1972.

Harry M. Hobbs, Tampa, Fla., for defendant-appellant.

John L. Briggs, U. S. Atty., Jacksonville, Fla., Hugh N. Smith, Asst. U. S. Atty., Tampa, Fla., for plaintiff-appellee.

Before BELL, DYER and CLARK, Circuit Judges.


Appellant was convicted on a two-count indictment charging him in one count with wilfully importing a controlled substance, 223 pounds of marijuana, in violation of 21 U.S.C.A. Secs. 952(a) and 960(b); and in the other with possession with intent to distribute the same marijuana in violation of 21 U.S.C.A. Sec. 841(a) (1). He was also charged as an aider and abettor in both counts. 18 U.S.C.A. Sec. 2.

Contrary to appellant's assertion, the evidence was entirely sufficient to warrant the conviction on each count. He also urges error in the admission of certain testimony, otherwise relevant, as to the modus operandi and earlier events transpiring in the surveillance of the dock area where appellant was seen taking delivery of the marijuana from persons aboard a Dutch motor vessel recently arrived at the Tampa docks from Turbo, Colombia. Assuming objection to this evidence, its admission does not rise to the level of prejudicial error. It was relevant to show the accuracy of the surveillance and the familiarity of the customs agents with the odor of marijuana.

Even assuming error in the admission of this evidence, its reflection on the guilt of appellant was remote if at all. The other evidence of guilt was overwhelming and thus such error, if any, was harmless beyond a reasonable doubt. Cf. Milton v. Wainwright, 1971, 407 U.S. 371, 92 S. Ct. 2174, 33 L. Ed. 2d 1.



Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409