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Bemis Co.

July 30, 1997

THE UNITED STATES OF AMERICA, APPELLEE

v.

RAYMOND ISAAC, A/K/A ROCKY RAYMOND ISAAC, APPELLANT



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE VIRGIN ISLANDS (ST. THOMAS)

(D.C. Criminal No. 94-00215-1)

BEFORE: SCIRICA, NYGAARD and McKEE, Circuit Judges

NYGAARD, Circuit Judge.

Filed July 30, 1997

Argued on Tuesday, December 10, 1996

OPINION OF THE COURT

Raymond Isaac was charged with: (1) conspiracy to possess marijuana with intent to distribute, in violation of 21 U.S.C. Section(s) 846; (2) possession of marijuana with intent to distribute, in violation of 21 U.S.C. Section(s) 841(a)(1); and (3) possession of marijuana on board a vessel arriving in the United States, in violation of 21 U.S.C. Section(s) 955. The jury found him guilty on the first two counts, and not guilty on the third. Isaac appeals his convictions, claiming that the district court inaccurately described the reasonable-doubt standard for the jury; failed to caution the jury on assessing the credibility of witnesses who, according to Isaac, should be considered accomplices or immunized witnesses; neglected to take judicial notice of the fact that identical charges against those witnesses were dropped "in response to the government's motion to dismiss;" and allowed the prosecutor to intimate that Isaac's decision not to testify was evidence against him. We will affirm.

I. FACTS

On August 5, 1994, a boat mechanic working near docks used by the St. Thomas police marine unit noticed a strange boat tied up beside an abandoned barge and called Corporal Alan Roberts of the marine unit. When Corporal Roberts arrived, he found two men sitting on the barge, dressed in shorts and short-sleeved shirts and barefoot. They looked tired, bruised, sunburnt and dehydrated. On questioning by Corporal Roberts and U.S. Customs agents, the men identified themselves as Conrad Brown and Irvin Reid and said that they had arrived on the boat from Jamaica. They also described a man they knew as "Rocky," who, they said, had accompanied them from Jamaica and had left the boat when they docked.

Later, Roberts and U.S. Customs Agent Willis Smiley saw a man fitting the description of "Rocky" get out of a van that had pulled up near the dock. When Corporal Roberts and Agent Smiley approached the man, the van and an accompanying car sped off, but the man made no attempt to leave. Asked his name, the man replied, "Rocky." Agent Smiley then asked him what his real name was and he replied, "Raymond Isaac." Isaac was shown to Brown and Reid, and they identified him as the "Rocky" who had arrived with them in the boat from Jamaica. When customs agents searched the boat they found 29 bales of marijuana weighing approximately 582 pounds.

Isaac, Brown and Reid were charged with conspiracy to possess marijuana with intent to distribute, possession of marijuana with intent to distribute, and possession of marijuana on board a vessel arriving in the United States. On the day the trial was to begin, the government moved to dismiss the charges against Brown and Reid. In a simultaneous motion to designate Brown and Reid as material witnesses and detain them pending Isaac's trial, the government stated that the charges against Brown and Reid had been dropped "in the interest of justice and the witnesses['] cooperation."

At Isaac's subsequent trial, Brown and Reid testified that they had set out on July 31, 1994 to go fishing with "Rocky." Because it was a windy day, they had taken a larger, community-owned vessel called the "Community Aid." Brown and Reid were dressed for a day offishing, barefoot, in shorts and short-sleeved shirts. The three of them first stopped in Port Royal, where Isaac disembarked to get beer. He returned with a friend, and asked that the friend be allowed to accompany them. Brown agreed, and they fished for several hours. Isaac and his friend then had Brown and Reid take them to a nearby deserted island named Lime Cay. While Isaac and his friend drank beer under a tree, Brown and Reid took a walk. When they returned, Isaac asked Brown if he would like to do "a drug move" for $20,000 in Jamaican dollars. Brown initially agreed, but then changed his mind when he grasped that a lengthy trip was involved. At that point, Brown and Reid say that Isaac's friend threatened them with a gun and forced them to remain on Lime Cay while he and Isaac departed in the boat. Brown was ready to swim to the mainland, but Reid did not think he could swim the nine or ten mile distance, so the two of them remained on the island.

Several hours later, Isaac and his friend returned. The two five-gallon canisters of gasoline with which the boat had been equipped were gone, replaced by seven fifty-five-gallon drums of gasoline. The bow, which had been open, was now covered with a piece of plywood. Isaac's friend forced Brown and Reid to board at gunpoint, and Isaac, Brown and Reid departed, leaving the friend behind on the deserted island.

Brown and Reid testified that they sailed for days, while Isaac navigated with the aid of charts and a global positioning system. Although Brown was at the helm most of the time, Isaac took over when they neared St. Thomas, and piloted the boat to the dock where it was discovered. Upon docking, Isaac left, telling Brown and Reid he would return. Shortly thereafter Brown and Reid were found and arrested.

Brown testified that early in the trip he had planned to jump overboard and swim to safety, but he was dissuaded by Reid, who could not swim well. Neither made any further attempt to escape: they had never been far from Jamaica and did not know how to read the charts or use the global positioning system; moreover, until arrested, they did not encounter anyone whom they could ask for help.

II. JURY INSTRUCTION ON REASONABLE DOUBT

The district court instructed the jury that it might only convict Isaac if the government had proven him guilty beyond a reasonable doubt, explaining the evidentiary standard as follows:

Reasonable doubt is a term often used, probably well understood, but not easily defined. Reasonable doubt is what the term implies. The doubt must be reasonable. It is not a mere possible or imaginary doubt, because as you well know, everything relating to human affairs, and depending on oral testimony, is open to some possible or imaginary doubt. The government is not required to produce evidence that will exclude every possibility of a defendant's innocence. It is only required to prove his guilt beyond a reasonable doubt, not beyond all possible doubt. The test is one of reasonable doubt. A reasonable doubt is a fair doubt, based upon reason and common sense -- the kind of doubt that would make a reasonable person hesitate to act. Proof ...


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