United States v. Alberto Espinosa-Cerpa
630 F.2d 328
5th Cir.
1980
Check Treatment

*2 KRAYITCH, Before HENDERSON REAVLEY, Judges. Circuit REAVLEY, Judge: Circuit Espinosa-Cerpa Alberto fellow crewmen on along arrested with his PHYLLIS, boat, when shrimp MISS boarded that vessel Coast Guard officers Mexico and found her to the Gulf of 35,000 marijuana carrying pounds over West, Florida. Key bound for was convicted Espinosa-Cerpa subsequently mari- conspiracy import in a trial of intent to juana into the United same, in violation of 21 U.S.C. distribute He now attacks that convic- §§ (1) grounds, arguing: tion on three of all his prior acquittal separate in a trial (his coconspirators three fel- named should, members) as a matter of crew low law, his conviction on the precluded (2) the trial court charge; all evidence refusing suppress erred stop, from the Coast Guard’s obtained PHYL- of the MISS boarding, and search LIS, procedure had been since that entire or even a without a warrant accomplished PHYL- suspicion that the MISS reasonable transgressing anyone on board was LIS or captured men board the law; four he was any United States al- that his Miranda were all indicted for fair MISS PHYLLIS denied a wit- infringed by legedly together were other rights conspiring post-arrest import comment silence. persons ness’ and distribute unknown affirm the We conviction. marijuana in the United cargo of originally All four were scheduled States. Background

I. *3 together. to be When however-as tried 13, May morning the of 1979 a heli On parties euphemistically labelled both have the copter launched from United States it-Espinosa-Cerpa “voluntarily absented DEPENDABLE, pa Coast Guard cutter trial, just prior to the himself” Mexico, sighted the trol in the Gulf of MISS remaining proceed- of the three defendants other along with some vessels PHYLLIS acquitted conspir- ed. All three were of the 150 Yucatan Straits about miles outside the ap- acy charge. appellant After was waters. rea territorial For was prehended custody, returned he and below, made the DEPENDA sons not clear individually tried of con- guilty found began covertly following BLE then the spiracy despite acquittal by jury, prior the PHYLLIS, tracking her by radar.1 MISS alleged coconspirators. of his named At about 5:30 m. the p. DEPENDABLE intercepted the for a MISS PHYLLIS Prior of Acquittal II. Effect of authority under the of boarding” “standard Coconspirators 89(a) 14 “to ensure U.S.C. § [the vessel’s] Appellant’s is that foremost contention compliance applicable with all laws.” conspiracy his conviction have been should vol., 10, 11, R.Supp. pp. prior 28. Just his a matter of all of foreclosed as law after boarding the the captain the of DEPENDA coconspirators acquit- named alleged were by BLE radio ascertained communication ted. on either of This contention rest with the that MISS PHYLLIS she was of two theories. and that registry her next port Key West, call of was to be Florida. First, under the of non- construct estoppel, mutual collateral see Blonder- walking While conducting a tour of the Laboratories, Tongue University Inc. PHYLLIS, deck of the ensign the MISS Foundation, 313, Illinois 402 91 S.Ct. leading boarding party the detected the 1434, (1971), 788 might 28 L.Ed.2d it marijuana. odor of further Upon investiga- argued prior that the of all three tion, acquittal ensign the discovered bales of the substance, 35,371 part other pounds crewmen to have taken weighing hav- in the conspiracy govern street should bar the ing value of about 14 million dol- relitigation ment’s subsequent appellant’s R. vol. pp. lars. 192. The Coast complicity officers of their in that appellant, Guard then arrested of the issue cohorts, with his those along conspiracy. This elimination of all seized and es- port the appellant corted PHYLLIS at have con might MISS St. whom 2 would, course, Petersburg, spired precluded Florida. his trial, subject hearing suppress relitigation 1. At the motion garnered stop They point evidence the not fall. that and search of conviction need out PHYLLIS, ensign coconspirators acquit the MISS even where named who led the ted, boarding party person conspiring tracking that “a can be testified convicted boarding persons where unknown as had radio names are been ordered a Coast long Operations as the indictment that such other asserts Guard Commander in Miami. vol., persons supports R.Supp. pp. and the exist evidence 22. No further mention complicity].” existence [and was made of such an order the trial testimo- Klein, (5th 1977), ny captain Cir. cert. DEPENDABLE’s or of any event, ensign. explanation given 55 L.Ed.2d In 434 U.S. no Lance, (1978), PHYLLIS, quoting for the decision United States v. to board the MISS See, 1976). e.g., F.2d whatever Cir. Unit source. Allen, (3d ed States v. Cir. Here, government government Espino argues, 2. The contends even if the complicity sa-Cerpa’s charge of the other crew was not did members indictment the existence dismissed, 1968), Iannelli conspiracy. See Cir. conviction for gen (1971). 770, 777, 95 S.Ct. erally, Annot., 91 A.L.R.2d (essence 43 L.Ed.2d 616 therein). appar (1963) (and cited cases two conspiracy agreement is between rule basis for the traditional ent individuals). more of all but one acquittal notion States,U.S. Standefer In possibility conspirator negates potential -, ---, sole remain agreement between the of an however, 2006-09, (1980), 64 L.Ed.2d 689 acquitted of one of those ing defendant and Supreme recently rejected very Court denies, by defi thereby es applicability of nonmutual collateral nition, any conspiracy existence cases, holding toppel specifically to criminal Goodwin, See, e.g., United all. prior acquittal party of one could 1974); Farns Cir. government’s not be invoked to bar the Zerbst, worth v. subsequent relitigation of the fact of that *4 denied, 642, cert. 1938), 307 U.S. 59 S.Ct. an party’s criminal conduct as element 1046, (1939) (“such judgments 83 L.Ed. 1523 prosecution of a second defendant. the there was in fact no criminal prove also, Musgrave, v. United F.2d States 483 Austin-Bag v. agreement”); United States denied, cert. 327, (5th Cir.), 332 414 U.S. (2d Cir.) cert. 229, ley Corp., 31 F.2d 233 1023, 447, (1973). 38 94 L.Ed.2d 315 S.Ct. denied, 479, 863, 279 49 73 L.Ed. S.Ct. Consequently, the avenue of collateral es J.; Hand, (1929) L. must (per 1002 “verdict "is toppel open appellant. not the itself the existence of essential deny not v. Feder United conspiracy); of facts” theory, upon which defendant second States, 694, (“rea- (2d 1919) 257 697 Cir. F. reliance, pros his is that places principal his indivisibility for the is .. . of son rule the should conspiracy ecution and conviction for crime”). therefore, Appellant argues, the precluded by extrapolation have been an it is a from this extrapolation natural single the tenet that a from traditional alleged conspirator a lone principle that not conspirator may be convicted susceptible also not be to conviction should or all proceeding same which following ac- separate prosecution in a the Her acquitted.3 his fellows are alleged of coconspirators. quittal alleged of all of States, v. 362, (5th man United 289 F.2d 368 Bruno, 570, States v. F.Supp. 333 United denied, 897, 174, Cir.), cert. 368 82 S.Ct. (E.D.Pa.1971) (adopting ex- & n.10 577-78 (1961) (applying 7 L.Ed.2d 93 traditional urged appellant). here tension Accord, e.g., United States v. Shu rule). ford, Ro 772, 1971); 779 potential 454 F.2d Cir. flaws Aside from however, States, itself, we montio v. United extrapolation 400 F.2d 618 such an coconspirators, spirator. (rejecting of actual Id. at 1365 inference of unknown and their conspiracy supplier participation may unidentified of narcot- fact that inferred the ics). analyze Accordingly, implicated we as must been shall case other individuals accomplish alleged conspirators only financing, unloading if the named were the the 35,000 appellant might planned pounds of of ones with whom have con- distribution the marijuana spired. board the on MISS PHYLLIS. correctly government the While the states spawned corollary The rule also the has law, sup we believe that the do not evidence where two more are convicted of or defendants ports application to this case. There and, reason, for whatever all but absolutely direct trial of the no evidence appeal one have their convictions reversed on anyone participation than those on of other trial, granted a new the of the conviction government board the MISS PHYLLIS. The See, remaining conspirator cannot stand. solely above. relies inference outlined States, 680, e.g., 322 U.S. 682 Hartzel v. Pena, 1356, v. F.2d 1365 In United States 527 n.3, 1233, n.3, 64 S.Ct. 1234 88 L.Ed. 1534 denied, (5th Cir.), 949, cert. 426 U.S. 96 S.Ct. Peterson, 645, (1944); 488 United States (1976), previ this court L.Ed.2d denied, Cir.), cert. 419 U.S. inference, ously rejected very in es similar (1974); Feder situation, sentially inadequate to the same as States, (2d 257 F. 696-97 single support con- the conviction of a named inconsistency notion, apparent logical recit- difficulty have some rule is above, verdicts, which basic among multiple defendants upon ed even therefore, and, with the soundness premised same evi- essentially the together tried rule. The notion even of traditional no basis for provides charges, dence and coconspir- of one’s acquittal that the verdict guilty valid attacking an otherwise noncompl- fact of concludes ators evidence; by the adequately supported of an the true nature misapprehends icity rather, or conviction each verdict such jury in scheme acquittal independently wholly reviewed It justice system. American criminal Dot- See, g., United e. others. ju- recognized that criminal long been terweich, 277, 279, 64 S.Ct. 320 U.S. to render are free ries in v. United (1943); Odom L.Ed. resulting from com- guilty” verdicts “not (5th Cir.1967), cert. confusion, mistake, leniency or promise, dismissed, 400 U.S. fac- logically irrelevant legally other Accord, g., e. (1970). L.Ed.2d States, Dunn v. United tors. Dunn, 360 & n.24 189, 190-191, 393-94, 76 L.Ed. 356 52 S.Ct. joint (9th Cir.1977) (noting conspiracy trials an is not (1932). Consequently, acquittal rule); exception general finding equivalent of a be taken Martorano, Cir.1977), (1st innocence; nor it necessari fact of does proof part even a failure ly reflect Annot., (1978); 22 A.L.R.3d 717 L.Ed.2d 515 Thus, contrary to the prosecution.4 (and therein). cited “While cases question, the rule in underlying notion *5 coconspirators may intellectually some jury’s acquittal symmetry of of results be negate the fact of not be taken to Standefer required.” should satisfying, it is not any with possible complicity -U.S. at -, criminal States, coconspirators. remaining alleged Thus, question as at 2009. there serious logical continued to the foundation for the Moreover, rule premise the and resultant upon basic which application of the rule general to the under- are antithetical here appellant and which he seeks relies deriving principle from of standing, the Dunn, recognized in that extend.5 jury prerogative 4. 5. The rule effects gation Criminal tal to volved ously fer ciples basis of 397 (1970). transplanted in leged evolution of the rule in pal here, it had been (reliance perhaps S.Ct. at 2007. continued use in our See Recognition not to Feder at -, however. Standefer United been aider and abettor. the of crime to the against from A brief examination of the a Those considerations the Law 1676 and nn. 12 another double on extend nonmutual collateral Supreme particular acquitted v. United undoubtedly applied the most English § of this Of the same defendant of acquittal jeopardy. charge S.Ct. course, regardless of the the S.Ct. Court’s decision damning since the time of subsequent “not may system. principle English system caselaw); at 2007 n.16. of - that guilty” of which he Ashe v. precluded by an indictment originally are not system was trial of alleged princi & verdict, F. at 696-97 U.S. at -, States, fundamen origin Wharton’s in Stande has Henry Swenson, in which germane provides facts in estoppel simply his al previ of reliti prin true 469 100 ed. IV. its A Most the rule All E. R. at termine when review of such that an error had been an determine if there was such an of the parently developed had no the conviction of the review The Shannon not stand if all his acquitted record rationale for the that the conviction of a sistency conviction. in R. v. relatively requiring History error) inconsistency indictment, significantly, English appellate tribunals history procedure as capacity Shannon, whether emerged was or the recent was reviewed of required 1048. See “repugnancy” Id. at 1043. The 1029-30, 1037, 1043, English restricted to formal “record” of quashing and opinions plea, decision to review the evidence more often than not based it was sufficient [1974] merely development rule at a alleged coconspirators reversal. lone Law 212-17 proceedings verdict and the made of also, disclosed that this rule single conspirator may at 2 time, of largely conspirator. such convictions All E.R. the on the some the House of Lords 1 W. original theory long Id. at apparent incon- product of the doctrine the (3d vanished, length (under Holdsworth, face of the 1009 since ed. basis that such signalled 1029-30, [1974] support like, of (H.L.). to de in 1922). Thus, writs past, the the are ap- of appellant in a with sole engaged in this liberty While are not at we vitality acquittal of upon prior the continued basis of their of ly case to rule form, certainly original in its we that charge. Consequently, tenet we hold scope to over disposed not to extend appellant’s al prior acquittal the of named valid conviction rendered an otherwise preclude turn coconspirators did not leged which subsequent to that proceeding in a having conspired for later conviction were ac conspirators them. In to the criticisms quitted. addition itself, rule such an be levelled at the may Boarding the MISS PHYLLIS III. of ignore fact extension would also argues that the Coast Guard might have been different evidence boardings arbitrary, of warrantless practice or that proceedings6 the two presented flag American vessels inspections of juries might quite reasonably two 89(a),7 seas such as high under § views of the same evidence. taken different PHYLLIS, contra boarding of the MISS appellant the rule that seeks Finally, pro Fourth Amendment venes recent blatantly invoke would inconsistent with Supreme of in Dela nouncements Court Supreme Court’s decision in Standefer. Prouse, ware v. col Whether not labelled nonmutual (1979) and Bar L.Ed.2d 660 Marshall v. estoppel, operate would in an al lateral it low’s, Inc., manner, barring relitigatiori identical most (1978).8 having of In Prouse and Bar- of the fact the other crewmen’s L.Ed.2d 7. 6. The ject review forms even course, Comm’n, Report therein). and Practice (abrogating inconsistencies in verdicts received, can criminal century. crewmen that was clarified clear dicts rule itself has of L. Cerpa Edw. Law Reform 24-27 Shannon now there R. Criminal and L. torical ed. dicts are almost port explainable This 1979)) to U.S.C. license. Morris) obviously are, come and where was some 1040-41, trial. Gov’t br. at 9-10. government suggests just independent Simon). exposition basis c. inappropriateness [1974] Law 23; see after the into serious § witnesses at the trial of the other the onset in with R. v. Shannon justice 89(a) §§ for the rule makes Indeed, continued Criminal Act of Archbold’s stubbornly persisted variances Criminal doctrine discrepancy 2 All E. R. at 1034-35 3, 20(1), (4). apparently uniformly in R. v. provides: and review beginning present. Compare Conspiracy system in (opinions even in of always Appeal as a vitality Cases question. in pervasive Shannon of to a for Pleading, (and proof c. in tolerated per in inconsistent Nonetheless, evidentiary sup England ¶¶ not so modern Act of which all ver [1974] se sources and Criminal 621-22 or testimony in this case § V. evidentiary abundantly rule); See, in various been, Espinosa- 5.-(8), (9) merely twentieth Evidence Dilhorne whether (opinion liberally rule has the his 2 All E. Ameri (where R. e. (40th cited Law sub ver g., 8. g., (9th of removing jurisdiction, ate papers, rested of, go has been committed so vessel, vessel person and arrests shore, rendering that a has amination, the United compliance. on examinations, sion warrant, so as penalty States or ia) States. over for the illegality United States both, shall penalty, Cir.1979) board, on board action The Coast on board of a breach been which to render such vessel liable to a fine or breach by, and shall be or the and shall be arrested discretion prevention, For violations shore, shall examine the such committed, by any or fixed administrative use all the United States such inspection, person not alone examine, inspect, or to the upon if (requiring reasonable merchandise, such of the of, When from such petty inspections, necessary immediately Guard vessel, or other lawful the laws of the United States v. vessel or such seized. or any taken; or, necessary address from officers in the liable Piner, purposes, officers laws of of laws of the United brought detection, operation in his criticism. vessel high liable to ship’s may or as to or, searches, seizures, search *6 inquiries or arrest is seas and waters secure pursued if make force into the United documents subject and search any part commissioned, if it and United States person, inquiries, merchandise, forfeiture, render such shall jurisdiction, escaping it to appropri- suspicion such inquiries, any being, standard suppres- to those appears and compel appear law, to the See, there- such time field fine and ex- ar- or or e. safety and docu purpose for the made held that the Court low’s, respectively, random, States g., e. inspections, mentation proscribed Amendment Fourth Robbins, for license and this court 623 F.2d at stops of automobiles v. roving warrantless, admin- ex authority permissibly registration checks held that the inspections of business safety cus istrative “to look for obvious boardings tends to premises. violations.” United narcotics toms and (5th Conroy, 589 F.2d v. States rejection of made clear its This court 831, 100 Cir.), however, in its position, basic United States (1979), quoting v. opinion United States recent en banc Thus, the Warren, 578 F.2d (5th v. 1077-78 Williams, PHYL boarding” of the MISS special Rubin in his “standard Cir.1980). Judge There applica all compliance with pleaded the case “to ensure eloquently LIS concurrence with the law application for was consistent (urged by appellant) here ble U.S. laws” embodied principles the land-based this court. interpreted by Barlow’s, of that Prouse, other cases marijuana, board, the odor of Once on boardings vein, stops and to Coast Guard pilot- ensign the boat’s by the detected majori- 89(a). Id. at 1096-98. under § around being conducted house while he to follow his exhor- ty of the court declined master, p. R. vol. by its the vessel tations, however, instead reaffirmed re- investigation that justified the further v. in United States the view articulated ship’s hold and marijuana in the vealed the Warren, (5th 1064-65 Cir. 578 F.2d quarters. crew’s stacked 1978) (en banc) en banc on other modified Williams, 1086-87. 617 F.2d at States (5th Cir.1980), that grounds, 612 F.2d 887 Hicks, 624 F.2d g., See e. 89(a), with the Fourth consistently § Cir.1980); 33-34 & n.2 Amendment, “gives plena the Coast Guard Mann, 615 F.2d ry power stop any and board American Fourth Amend- Consequently, no flag anywhere high seas vessel [out ment violation occurred. complete twelve-mile side the limit] on Defendant’s IV. Comment Silence suspicion of criminal activi absence of (though the ty.” 617 F.2d at Finally, Espinosa-Cerpa contends that boarding facts of that case dealt with fair trial rights right and his to a Miranda foreign flag vessel); testimony of the ar were breached Robbins, (5th Cir.1980). officer, during prosecu resting given Freeman, also United case-in-chief, he twice com in which tion’s Cir.1978) (articulating bas crew’s si mented on the PHYLLIS MISS search and applying es for not land-based following being arrested lence sea). principles stops seizure warnings. The offensive ex given Miranda *7 court, witness counsel and authority change most com between Although ostensibly reproduced margin.9 is monly justify stops is invoked to they Rights, boardings accomplished pursuant want their decided did not for any LaFave, Rights, 89(a)); waive did not want to make Seizure their § 3 W. Search & Note, 10.8(f) point, signed (Supp.1980); High forms- at that these at 35-44 statement § object point, Drug Smuggling, based MR. We at this the Seas: The Fourth Amend- DION: ment, Sea, on- and Warrantless Searches at your (1980). Beg pardon? THE Harv.L.Rev. 738-51 COURT: object, MR. We based on Fifth DION: Now, you go 9. tell us what did. grounds. approach ahead and Q: If we could Amendment bench? A: * * * No, have, going I’m to overrule I we which THE COURT: broke out a standard form objection. giving rights rights give He can tell about them is a list of their someone they-and you suspect they Rights let a indicate that when have committed ¡-“These you say, gentlemen, your in- Rights. ladies and are ahead me crime. are Go purpose giving you any questions, structed and read them. If ask Defendant, waiving Rights-reading Rights questions.” questioned to a I the fact of overwhelming guilt wise evidence of deriv- asserting that is correct in derogation appel- were in circumstances of ing the witness’ comments from the mere and Fourteenth arrest, Miranda the error lant’s the conclusion Miranda v. process rights. Amendment due virtually inescapable. was harmless n.37, Arizona, 1292; Staller, 616 F.2d at United v. States 1624 n.37, 16 (1966) (pros L.Ed.2d 694 States, 547 F.2d Chapman v. United not use defendant’s silence ecution 1247-50. Edwards, trial); v. 576 F.2d we affirm For the reasons stated above Cir.1978); v. Chapman United appellant’s conviction. (5th Cir.), 1242-43 547 F.2d AFFIRMED. denied, 97 S.Ct. cert. U.S. (1977) (comment is violation of L.Ed.2d 393 Ohio, 426 process). Doyle KRAVITCH,

due v. Judge. See Circuit 49 L.Ed.2d 91 96 S.Ct. I result. concur in cross- (reference to defendant’s silence impeachment purposes vio examination for That process).

lates due the witness

may not have intended that neither absolves the

make such comment any potential prejudice.

sin nor eliminates Staller, 1284, 1291 States Matos,

(5th Cir.1980); (7th Cir.1971). America, UNITED STATES Nonetheless, we convinced that Plaintiff-Appellee, beyond error in this case was harmless California, Chapman v. reasonable doubt. 824, 828, 17 L.Ed.2d al., et Claire LOBER (1967). potential prejudice The for real Defendants-Appellants. virtually from the comments was nil. No. 80-1034 and unso witness’ statements were isolated Summary Calendar. licited, “highlighted” by repeated never

questioning subsequent reference Appeals, United States Court of Davis, prosecutor. Fifth Circuit. Cir.), Nov. 52 L.Ed.2d 391 (1977). way The comments in no under any exculpatory

mined defense. Cf. Harp,

1976) (court on si condemned comments jugular” of

lence that “struck at the defense). Finally, light

accused’s

court’s curative instruction and the other- Rights,

that is what are known as Miranda ¤ Sfc Sfc Now, arrest, Rights they required you placed to make after the men under don’t-not Q: anybody any they regard said-in other statement and that statement without words, to what them; people might against make would be used don’t tell us what other said. *8 you inspect you that under the Fifth Amendment to the Tell us what did. Did the boat Con- stitution, any person Right not to make has a was in- further to see what Yes, they point Picking up a statement. And the don’t make a A: we did. fact at the [against] advising deciding Rights statement cannot be used them. them their and them right. All ahead. Go not make statement- record, MR. DION: For the we would Well- Q: 3, pp. ask for a mistrial. R. vol. 173-78. Yes, Sir, deny THE COURT: I will that.