United States of America, Plaintiff-appellee, v. Bartholomew O'shea and Milton K. Pinder, Defendants-appellants, 588 F.2d 199 (5th Cir. 1977)

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U.S. Court of Appeals for the Fifth Circuit - 588 F.2d 199 (5th Cir. 1977)

Summary Calendar.* 

United States Court of Appeals,Fifth Circuit.

Jan. 22, 1979.

James Jay Hogan, Joseph Mincberg, Miami, Fla., for defendants-appellants.

Jack V. Eskenazi, U. S. Atty., Linda Collins Hertz, Asst. U. S. Atty., Miami, Fla., Karen L. Atkinson, Asst. U. S. Atty., West Palm Beach, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before RONEY, GEE and FAY, Circuit Judges.


Defendants appeal their convictions for importation of marijuana, claiming insufficient evidence that the marijuana seized was en route from outside the United States.

Customs and law enforcement officers patrolling Lake Worth Inlet in the early morning hours of August 12, 1977, sighted an approaching boat about one-half mile from the inlet. The boat entered the inlet and was found to contain 4,565 pounds of marijuana. Defendants O'Shea and Pinder were on board. In O'Shea's shirt pocket was a paper bearing a drawing of a boat labelled "110 foot" and the following notations:

You are BALLYO II UHF channel 68 70 looking for the Fish Hawk Capt Matillia Light east about 3-6 miles Or call me at 1-942-2212 Mr. Hugh's code 9m

At trial a customs patrol officer testified that Matanilla Reef and Shoals is located in Bahamian waters, about 75 miles northeast of Lake Worth Inlet.

Defendants were convicted of importation of marijuana, 21 U.S.C.A. § 952(a) and possession with intent to distribute marijuana, 21 U.S.C.A. § 841(a) (1). Each was sentenced to four years imprisonment on each count with sentences to run concurrently. Additionally, O'Shea received concurrent special parole terms of three years and Pinder received concurrent special parole terms of two years.

Although the circumstances of defendants' appeal are ideal for application of the concurrent sentence doctrine, See Government of Canal Zone v. Eulberg, 581 F.2d 1216, 1217 (5th Cir. 1978), we have reviewed the record and conclude that the jury could infer from the evidence presented that O'Shea and Pinder were guilty of importation of marijuana beyond a reasonable doubt. United States v. Littrell, 574 F.2d 828, 832 (5th Cir. 1978).



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