UNITED STATES of America, Appellee,
v.
Thomas MANBECK, Appellant.
UNITED STATES of America, Appellee,
v.
Kenneth HERRING, Appellant.
UNITED STATES of America, Appellee,
v.
Mark Huiet SALE, Appellant.
UNITED STATES of America, Appellee,
v.
Lorenz Josephus PRODEN, Appellant.
UNITED STATES of America, Appellee,
v.
Kermit Theodore BROGDEN, Appellant.
UNITED STATES of America, Appellee,
v.
John Wesley FLANNEL, Appellant.
UNITED STATES of America, Appellee,
v.
Gary GALLOPO, Appellant.
UNITED STATES of America, Appellee,
v.
John Benjamin BARTON, Jr., Jessie Lee Mallory, and Arthur
Duncan, Appellant.
UNITED STATES of America, Appellee,
v.
John O'HARE, Eddie Brantley, Thomas Earnest Folske, Thomas
Sams Hightower, Timothy Allen Laxton, Harrell
Lewis, Jr., and John Isidore Stevens, Appellant.
UNITED STATES of America, Appellee,
v.
Aaron Douglas STAETTER, John Michael Iyoob, James Anthony
Hastings, and Gregory Michael Scott, Appellant.
UNITED STATES of America, Appellee,
v.
David Martin SUMMERVILLE, Appellant.
Nos. 82-5090 L to 82-5100 L.
United States Court of Appeals,
Fourth Circuit.
Argued Dec. 6, 1983.
Decided Sept. 11, 1984.
Rhonda A. Brofman, Atlanta, Ga. (Mark J. Kadish, Kadish & Kadish, P.C., R. David Botts, Atlanta, Ga., on brief), Michael L. Pritzker, Chicago, Ill. (Marcia L. Smith, Chicago, Ill., on brief), Edwin Marger, Atlanta, Ga. (Donald B. Walker, Atlanta, Ga., on brief), Arthur Howe, Charleston, S.C. (Paul N. Uricchio, Jr., Uricchio, Howe & Krell, P.A., Charleston, S.C., Robert G. Fierer, Atlanta, Ga., on brief), for appellants.
Sara Criscitelli, Dept. of Justice, Washington, D.C. (Harry Dargan McMaster, U.S. Atty., Columbia, S.C., on brief), for appellee.
Before RUSSELL and PHILLIPS, Circuit Judges, and HOFFMAN,* Senior District Judge.
WALTER E. HOFFMAN, Senior District Judge:
Defendants appeal from a guilty finding at a stipulated facts trial on a multiple count indictment alleging various drug related charges. The twenty-two appellants were convicted of conspiracy to import marijuana in violation of 21 U.S.C. Sec. 963 (Count One), conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. Sec. 846 (Count Two), and importation of marijuana in violation of 18 U.S.C. Sec. 2, 21 U.S.C. Secs. 952(a) and 960 (Count Three). In addition to the three counts above, appellant Gary Gallopo was convicted of a fourth count, possession with intent to distribute marijuana in violation of 18 U.S.C. Sec. 2 and 21 U.S.C. Sec. 841(a)(1) (Count Four).
Charges were originally brought against twenty-six defendants for a drug smuggling operation that occurred in November 1980. Three of the defendants pleaded guilty, and a fourth defendant, Robert John Manbeck, remained a fugitive throughout the trial. An extensive suppression hearing was completed on April 1, 1981. At that time all the remaining defendants, with the exception of Gallopo, waived their right to a trial by jury and submitted to a bench trial. The government and the defendants agreed to a stipulation adopting the record of the suppression hearing as the record of the case, subject to any objections filed. Gallopo stipulated to only part of the record, and his case followed the others. The court found all defendants guilty of all charges.
Though the case below was a stipulated facts trial, the parties offer divergent renditions of the facts. Fortunately, the trial court rendered a lengthy narrative of the facts which we find to be a substantially complete representation of what was stipulated. The facts stated here will be a slightly condensed version of those described by the court. See United States v. Manbeck,
At approximately 8:45 p.m. on November 26, 1980, Deputy Harold Canady of the Colleton County Sheriff's Department received a telephone call from his office advising him that an unidentified person had called the local fire department and stated that a truck was being loaded with marijuana at Bennett's Point, South Carolina. Canady and two other officers, Deputy Allen Beach and Deputy Earl Fowler, proceeded to Bennett's Point. All three arrived at approximately 9:30 p.m., Canady and Beach in one car and Fowler in another. Canady and Beach proceeded on to the landing, while Fowler checked some vehicles parked on the road leading to the landing.
At the landing, Officers Canady and Beach first observed a tractor-trailer backed up between a shrimp house and the dock. Canady recorded the number of the Georgia license plate on the tractor-trailer. The two officers then observed a white "U-Haul type" truck parked in the parking lot next to the landing, and recorded its Georgia license plate. A brown "econoline-type" truck with Georgia license plates was also observed at the scene, parked facing the tractor-trailer behind the shrimp house. In addition, the officers observed a shrimp boat named the "Hazel B" docked at the south dock. No individuals were observed in the area at this time.
After notifying Colleton County Sheriff John Siegler of their observations, Officers Canady and Beach proceeded to check out another known drug smuggling site referred to as the "Wiggins area." Officer Fowler remained to maintain a surveillance point on Bennett's Point Road at the entrance to the landing. Finding nothing unusual at the Wiggins area, the two officers went to a location known as the "Brickyard Bridge" which was on the only road that runs from U.S. Highway 17 to Bennett's Point. Upon arriving at Brickyard Bridge, Officers Canady and Beach received a radio call from Officer Fowler advising that the tractor-trailer had departed Bennett's Point landing. Officer Seigler radioed Officers Canady and Beach and directed them to stop the tractor-trailer at the intersection of Bennett's Point Road and U.S. Highway 17.
Officers Canady and Beach proceeded down the road about one mile ahead of the tractor-trailer, while Officer Fowler followed the vehicle from behind. At the designated intersection, Officer Canady positioned his patrol car to block the road. When the tractor-trailer--a Peterbilt tractor with the name "Polar Transportation" on its door--arrived, Officer Canady went to the driver's side and asked the driver, defendant Kenneth Brogden, to step out of the vehicle. Brogden stepped out and, on request, produced his driver's license and registration. He also provided Officer Canady with a bill of lading which indicated that the tractor-trailer was carrying a load of lard from a Charleston business named "Central Soya." While the officers ran a check, Brogden was placed in the patrol car because the weather that evening was cold and rainy. Officer Canady then radioed Sheriff Seigler and provided him with an up-dated report of the situation and gave him the information from the bill of lading. Meanwhile, Officers Canady and Beach elicited from Brogden that he was at Bennett's Point visiting a friend. When asked where he was keeping his tractor-trailer truck parked, Brogden's response conflicted with what the officers had previously observed at Bennett's Point. When asked about when he had left Charleston Brogden responded that he had left two days before but had become ill and stayed in a motel room for some time before proceeding to Bennett's Point. Sheriff Seigler subsequently radioed officers Canady and Beach and informed them that he could not locate any company in Charleston with the name shown on the bill of lading provided by the driver.
Sometime soon thereafter, Officer Fowler, who had arrived at the scene, told Officers Canady and Beach to get out of the patrol car and come to the back of the trailer. Upon approaching the rear of the trailer, the officers smelled an extremely strong odor of what they believed to be marijuana coming from the back of the trailer. Brogden was then placed under arrest for possession of marijuana and searched and handcuffed.
While the Peterbilt tractor and trailer were being removed from the scene, Officer Canady spotted a second tractor-trailer coming from Bennett's Point. As it approached, Canady observed that it was a Ford tractor-trailer that bore Georgia license plates and, like the Peterbilt, carried the name "Polar Transportation" on its door. The tractor-trailer stopped and, as before, the odor of marijuana was detected coming from the trailer. Deputy Fowler immediately placed the driver of this second tractor-trailer, Donald Bohanon, under arrest.
Officers Canady, Beach, and Fowler, and others on the scene, then proceeded to organize a convoy to move the seized vehicles and contraband to Walterboro. As the convoy proceeded toward Walterboro, Officer Robinson, who had remained at the scene of the arrest with Bohanon radioed the convoy and told them to stop moving because Bohanon had informed Officer Robinson of the presence of a third tractor-trailer at Bennett's Point landing. When Officers Canady and Beach turned around to head back to the landing area, they saw the two vehicles previously observed at the landing, the white "U-Haul" type truck and the brown van, stalled in traffic behind the tractor-trailer. Both vehicles were stopped by the officers. Officer Beach approached the white truck and asked the driver, David Summerville, who was the sole occupant of the truck, to step out and show his driver's license. As Summerville handed over his license, Officer Beach detected the odor of marijuana on him. Summerville was immediately placed under arrest. The two occupants of the brown van, Mark Sale, who was driving the van, and Lorenz Proden, who was a passenger, were also arrested.
Thereafter, at about 3:30 a.m., Sheriff Seigler arrived on the scene and he and Officers Canady and Beach headed towards Bennett's Point landing. The officers observed that it was quiet and no other vehicles were present. A second trawler, the "Billy B," was now at the dock beside the "Hazel B." The three also observed what appeared to them to be lights coming from some type of vessel out on the water. They could not determine whether the lights were coming toward the dock or going away.
After checking the area and finding nothing, the three officers made contact with an officer of the U.S. Customs Patrol. The Customs officer was briefed as to what had occurred. Officers Canady, Beach, and Fowler then left the scene in order to obtain search warrants for the four vehicles. While at the Magistrate's residence, the officers received a call from the dispatcher informing them that Customs had picked up a vessel. Deputies Beach and Fowler immediately departed to assist Customs officials with the people aboard the vessel.
Customs Patrol Officers testified during the suppression hearing as to the developments which led to the arrest of the defendants found on board the two shrimp trawlers, the "Mary and John" and the "Lady Lisa."
Customs Patrol Officers had patrolled the St. Helena Sound area for two to three weeks prior to the evening of November 26th and had not observed any boats in the area. On the evening of November 26th, Customs Patrol Officer McDonald was apprised of the situation at Bennett's Point and, at approximately 3:00 a.m., he directed a Customs vessel to proceed down the Ashepoo River to see what could be located. Prior to sending this vessel out, Officer McDonald and others heard the sound of a diesel engine in the area of Bennett's Point which, according to McDonald, sounded as if it were going out the Ashepoo. Thereafter, at approximately 3:30 a.m., several Customs Patrol Officers left their location some twelve or thirteen miles from Bennett's Point in a twenty-seven foot Customs vessel and headed for Bennett's Point. Upon reaching the end of the Ashepoo River, at approximately 4:00 a.m., they observed lights from what appeared to be two vessels in the St. Helena Sound. The Customs Patrol approached and circled the anchored vessels, recorded their names, and ran a systems check on them. That check indicated that the vessels were suspected of involvement in drug smuggling.
The Customs Patrol Officers identified themselves and, after a request, were given permission to board the "Lady Lisa" by the captain. The spokesman told the Customs Patrol that he was from Thunderbolt, Georgia, and had eight people aboard. Because of the strong winds and high seas the officers had great difficulty in pulling alongside the vessel. The Customs Patrol Officers decided not to board at that time for safety reasons and the spokesman aboard the "Lady Lisa" agreed to follow the Customs vessel back into the Ashepoo to be boarded. The captain of the "Mary and John" informed Customs that he was coming from Charleston and going to St. Augustine with four people aboard. He also agreed to follow the Customs vessel back into the Ashepoo, and proceeded behind the "Lady Lisa."
As the Customs vessel led the two trawlers in, the officers observed that although the captain of the "Lady Lisa" had earlier stated that he was not familiar with the waters, he headed for deeper water whenever the Customs vessel was running into shallow water. In addition, no shrimp nets were observed aboard the vessels when the vessels were initially approached.
The vessels were taken to the dock at Bennett's Point at approximately 6:30 a.m. Customs Patrol Officers, officers from the Colleton County Sheriff's Department, and State Law Enforcement Division (SLED) agents were at the dock and secured the vessels. Customs Patrol Officers Shepard and McDonald boarded the "Mary and John" and discovered that nine people were aboard instead of the expected four. In addition, the vessel was now completely rigged with shrimp nets. Upon entering the fishhold, they observed what appeared to be marijuana residue. The crew members of the vessel were then given their Miranda warnings and placed under arrest at approximately 7:00 a.m. Those arrested aboard the "Mary and John" were John Wesley Flannel, Arthur Duncan, Jesse Mallory, John Benjamin Barton, Jr., James Anthony Hastings, Gregory Michael Scott, Aaron Douglas Staetter, John Michael Iyoob and Robert Charles Michael.
Customs Patrol Officers Settles and Sheriden boarded the "Lady Lisa" and gathered the crew in the cabin. Settles observed that the deck appeared to have been recently hosed down. He then climbed down into the fishhold and smelled and observed residue of what he believed to be marijuana. He also noticed the absence of any fish or ice on the vessel. The men aboard the "Lady Lisa," Thomas S. Hightower, John Isidore Stevens, Harrel Lewis, Jr., Timothy Allen Laxton, Thomas Ernest Folske, Eddie Brantly and John O'Hare, were given their Miranda rights and placed under arrest.
On the dock itself, investigating officers found bales of marijuana on the concrete and conveyor belts. The bales of marijuana had tags attached to them, and one of the same type tag was found in plain view on the deck of the "Lady Lisa."
On November 27, 1980, warrants signed by Magistrate Wood to search the Peterbilt tractor-trailer, the white "U-Haul" type truck, the brown van and the Ford tractor-trailer were executed under the direction of Sheriff Seigler. Quite a few bales of marijuana were discovered in each of the trailers being pulled by the Peterbilt and Ford tractors and in the "U-Haul" type truck. The total amount of marijuana found in these three vehicles was later calculated to be 59,100 pounds. In addition, numerous items were discovered in the brown van, including a wallet containing identification of defendant Staetter (arrested on the "Mary and John") and a red pad containing numerous notations.
In their appeal from the district court's findings, appellants raise the following issues: whether the indictment should have been dismissed because of alleged discrimination in the selection of the grand jury foreman; whether the trial court erred when it granted the government's motion to Nolle Prosequi Count Four of the Indictment; whether the trial court erred when it failed to suppress evidence discovered during a search which took place after the defendants were unlawfully seized and arrested; whether the trial court misconstrued the stipulations, and thereby erred when it overruled defendant's objections to certain evidence; whether there was sufficient evidence to support the convictions.
The multitude of defendants in this case renders it prudent to divide them into separate categories. This court will utilize the clear separation already provided by the arguments submitted on behalf of three distinct groups among the defendants, each group represented by their own brief.
The first group is made up of the defendants who were on land while transporting the marijuana, Sale, Proden, Brogden and Summerville, and of the defendants who participated in the smuggling operation but were not at the scene at that evening, T. Manbeck and Herring. Bohanon, driver of the second tractor-trailer, became a witness for the government.
The second group of defendants is comprised of those defendants arrested on board the two trawlers, Flannel, Duncan, Mallory, Barton, Hastings, Scott, Staetter, Iyoob, Hightower, Stevens, Lewis, Laxton, Folske, Brantly and O'Hare. Robert Charles Michael, who was on board the "Mary and John," also became a witness for the government.
The last group is made up of one defendant, Gallopo, who was arrested sometime after the incident on information from participants that he was the driver of a third tractor-trailer on the scene that evening.
The first two groups present identical issues for appeal except as to the third issue, in which the first group argues that the evidence seized from the land vehicles should be suppressed, while the second group argues that the evidence seized from the trawlers should be suppressed. Defendant Gallopo presents only one issue, that there was insufficient evidence to support his conviction. Because of this substantial overlap, all the parties will be treated together except when their respective positions dictate separation.
* The trial court found that defendants had established a prima facie case of discrimination against blacks and women in the selection of grand jury forepersons and deputy forepersons. United States v. Manbeck,
In the interim period between the trial court's decision and the hearing of this appeal, the Fourth Circuit rendered an opinion, United States v. Hobby,
The record in this case is devoid of any information regarding defendants' respective sex or race. Having thus failed to establish the requisite basis for a claim, there is no need to examine the merits underlying appellants' argument. This issue is resolved against appellants.
II
After the suppression motions were heard, but before trial in this case began, the government moved to dismiss Count Four of the indictment, which had charged defendants with the possession of marijuana with intent to distribute. The government admits that Count Four was dismissed so that pending state charges on the same crime would not be precluded. Code of Laws of South Carolina Sec. 44-53-410 bars state prosecution for the same offense once jeopardy has attached in the federal action.3
Defendants argue that this dismissal was improper under either of two grounds.4 The dismissal of an indictment under Fed.R.Crim.P. Rule 48(a) requires leave of the presiding court.5 Courts have held that by including the phrase "leave of court" in Rule 48(a), "the Supreme Court intended to clothe the federal courts with a discretion broad enough to protect the public interest in the fair administration of criminal justice." United States v. Cowan,
Alternatively, defendants argue that trial had begun in this case, and thus, consistent with express dictates of Rule 48(a), consent of the defendants was needed before Count Four could be dismissed.8 Although the case had not yet been formally called to trial when the Count was dismissed, defendants contend that, because the record of the prior suppression hearing was stipulated to as the record for trial, jeopardy had attached and trial had commenced before dismissal occurred.
Both arguments are highly imaginative, but neither is persuasive. To the extent that there may be a general policy against successive federal-state prosecutions for the same crime,9 the fact that this policy is not followed in a given case does not automatically establish that the public interest was violated. Supreme Court decisions upholding the validity of duplicitous federal-state prosecutions have recognized that there are situations where the public interest is furthered by allowing these authorities to both pursue cases, regardless of whether such efforts later turn out to be duplicitous. See Rinaldi v. United States,
The Supreme Court has established that a trial court's discretion to deny the government's motion to dismiss an indictment is limited to situations where dismissal is "clearly contrary to manifest public interest." Rinaldi v. United States,
Defendants' argument that jeopardy had attached and trial had begun before dismissal, because the record of the suppression hearing was stipulated to, is equally unavailing.12 The Supreme Court has repeatedly emphasized that "[b]oth the history of the Double Jeopardy Clause and its terms demonstrate that it does not come into play until a proceeding begins before a trier 'having jurisdiction to try the question of the guilt or innocence of the accused.' " Serfass v. United States,
Finally, for the alleged violation of Rule 48(a), defendants request the extraordinary remedy of a reversal of the convictions on the counts for which they were tried. However, prejudice to defendants by the dismissal of Count Four is limited to exposure to state criminal liability on that Count, which exposure has already occurred. The remedy for a wrongful dismissal of a count of an indictment would be a reinstitution of that count or a separate reindictment on the same charge.13 But if defendants are again indicted on Count Four, the Justice Department's Petite policy would be directly implicated by the intervening state prosecution. Then, in all likelihood, the government would again move for dismissal, and it would probably be granted. To this extent, circumstances have rendered this issue moot. In either case, defendants are denied the relief requested.
III
A. SUPPRESSION OF EVIDENCE FROM THE MOTOR VEHICLES
1. Standing
Before the validity of the search and seizures may be considered, it must first be resolved which of the defendants has standing to raise the claimed violations.
i. Peterbilt Tractor-Trailer. The trial court held that defendants Herring, Proden, Summerville, Sale, and the driver of the Peterbilt, Brogden, all had standing to challenge the search and seizure of the Peterbilt. Brogden had a privacy interest sufficient to be entitled to standing because the tractor-trailer was entrusted to his care. The other four defendants had standing, according to the trial court, because "[a] sufficient showing was made as to their interest in the marijuana seized so as to warrant the finding that they had a reasonable expectation of privacy in the Peterbilt tractor-trailer and its contents." United States v. Manbeck,
This Court finds that defendants Herring, Proden, Summerville, and Sale should not have been granted standing to challenge the search of the Peterbilt.14 The privacy interest that must be established to support standing is an interest in the area searched, not an interest in the items found. Rawlings v. Kentucky,
ii. Ford Tractor-Trailer. The trial court held that none of the defendants had standing to challenge the search and seizure of the Ford tractor-trailer. The driver of the Ford, Bohanon, became a government witness and testified that he consented to the search. For the reasons stated above, this Court agrees with the determination of the trial court.
iii. White "U-Haul Type" Truck. The trial court held that no one, not even driver Summerville, had standing to challenge the search and seizure of the White "U-Haul type" truck. Summerville did not testify at the suppression hearing, other indicia of an expectation of privacy in the truck itself were not submitted, and the ownership of the truck was never clearly established. Thus, none of the defendants satisfied their burden of showing a legitimate expectation of privacy in the truck, and none have standing to challenge its search and seizure. See United States v. Lochan,
iv. Brown Van. The trial court held that only driver Sale had standing to challenge the search and seizure of the brown van. The passenger, Proden, was denied standing because he failed to establish any interest that would support an expectation of privacy in the van. There is evidence that shows Sale was given lawful and exclusive possession and control over the van, and with it he was entitled to an expectation of privacy therein. See United States v. Dickerson,
2. Search and Seizure of the Motor Vehicles
Defendants' basic argument is that the search and seizure of the Peterbilt was illegal, and the subsequent searches of the other vehicles were tainted by this initial illegality. In conjunction, defendants argue that Brogden was subject to a custodial interrogation without first having been given the requisite Miranda warning, which failure likewise served to taint the searches and seizures that followed. The legality of the search and seizure of the Peterbilt and the detention of Brogden must therefore be resolved first.
i. Peterbilt Tractor-Trailer. Defendants argue that although the stop of the Peterbilt may have been supported by a reasonable suspicion,18 the length of time Brogden was detained (45 minutes to 1 hour) exceeded the time limit for a permissible Terry stop and thereby became a de facto arrest. See Terry v. Ohio,
Defendants' reliance on Sharpe is misplaced. Although defendants are correct that Sharpe emphasized the limited and brief nature of a permissible Terry stop, Sharpe also noted that after the initial, brief questioning, "any further detention or search must be based on consent or probable cause." Sharpe v. United States,
An officer has probable cause for arrest when, at the time the arrest occurs, the facts and circumstances within the officer's knowledge would warrant the belief of a prudent person that the arrestee had committed or was committing an offense. Beck v. Ohio,
This finding alone, however, does not conclusively resolve that Brogden was properly detained. In contrast to the length of a detention, the quality or nature of a detention may also exceed the limits of a Terry stop.22 In other words, the way in which Brogden was detained or "seized" while the officers conducted their investigation might have been so serious an intrusion on his personal liberty that it required probable cause for arrest.
Some confusion exists in the area of warrantless detentions because there are "seizures" of a person which are limited and need only a reasonable suspicion, as in Terry v. Ohio,23 and there are "seizures" of a person which are so restrictive that they are indistinguishable from an arrest and require probable cause, as in Dunaway v. New York.24 Both kinds of seizures involve detentions where the person detained is not technically free to leave while the officer pursues the investigation, but they differ in degree. See Florida v. Royer,
The manner in which Brogden was initially stopped poses no problem. This Court has already rejected the notion that officers transform a Terry stop into an arrest by virtue of blocking the progress of a vehicle and drawing their weapons when approaching. See United States v. Perate, supra; United States v. Seni,
However, the placing of Brogden in a patrol car is more problematic.25 The government argues that the officers could not let Brogden remain in the cab of the tractor, potentially allowing him access to weapons or providing him with a means of escape. Furthermore, the inclement weather made it unreasonable to detain Brogden anywhere else but in the patrol car. Once in the patrol car, the government contends, it was a proper safety precaution to ask Brogden to keep his hands in clear view on the back of the front seat.
As the Supreme Court has stated, "there are undoubtedly reasons of safety and security that would justify moving a suspect from one location to another during an investigatory detention." Florida v. Royer,
This case is unlike Brown v. Illinois,
The foregoing conclusion also goes a long way towards addressing defendants' claim that the search and seizure was tainted because Brogden's right against self-incrimination was violated.28 All of the pertinent statements made by Brogden came within the first fifteen minutes of his detention.29 Thus, the inquiry must focus on these first fifteen minutes.
Miranda safeguards are implicated only when a suspect is subjected to interrogation in a custodial setting. Miranda v. Arizona,
We have already concluded that the detention of Brogden was not a seizure amounting to an arrest. Although this finding is not necessarily dispositive of the custody issue, "[t]he question of what constitutes a 'seizure' of a person under the fourth amendment is quite similar to the determination of 'custody' triggering rights under the fifth amendment." Moore v. Ballone,
In summary, the initial stop of the Peterbilt, supported by a reasonable suspicion based on articulable facts, was proper under Terry and its progeny. The manner in which Brogden was detained did not exceed the type of seizure allowed by Terry, and probable cause arose before the brevity requirement was violated. Thus, even assuming that a de facto arrest occurred, the arrest was not illegal. Finally, Brogden was not the subject of a custodial interrogation when the statements in question were made. The motions to suppress evidence gained through the stop of the Peterbilt, and the detention of Brogden, were correctly denied.34
ii. Ford Tractor-Trailer, White "U-Haul Type" Truck, Brown Van. This Court previously concluded that none of the defendants had standing to challenge the search and seizure of the Ford and the "U-Haul Type" truck, and that only Sale had standing to challenge the search and seizure of the brown van. Even considering defendants' arguments, however, their motions to suppress the evidence obtained from these vehicles were properly denied. Defendants' primary argument, that the illegal seizure of the Peterbilt and Brogden tainted searches and seizures which followed, is foreclosed by the foregoing determination that there was no such illegality. Thus the validity of each stop must be examined on its own merits.
The facts known to the officers at the time provide ample justification for the stop of each vehicle. As with the Peterbilt, the Ford tractor-trailer came from the direction of Bennett's Point Landing, it bore a Georgia license plate, and it carried the "Polar Transportation" logo on its door. Soon after the Ford was stopped, the officers detected the odor of marijuana and its driver was placed under arrest. Both the "U-Haul Type" truck and the brown van were recognized as the vehicles observed earlier by the officers while at Bennett's Point Landing. They were stopped, and, again, the odor of marijuana was detected and the occupants were placed under arrest. There can be no serious challenge to the validity of the searches and seizures of any of these vehicles.
B. SUPPRESSION OF EVIDENCE FROM THE VESSELS
1. Standing.
The trial court granted standing to challenge the searches of the "Mary and John" and the "Lady Lisa" to defendants Flannel and Hightower, respectively, because they were the captains of each ship and asserted sufficiently protectable privacy interests in their vessels. No other defendant was granted standing to challenge the searches of these vessels. Defendants argue that all of the persons on board the vessels were entitled to standing, not because of a privacy interest, but rather, due to the fact that all of the defendants were arrested prior to the actual search of the vessel and before probable cause had arisen. According to defendants, this prior illegal arrest rendered the later searches illegal.
Defendants should have been granted standing to argue that the detention was by operation of law equivalent to an illegal arrest. It is axiomatic that the Fourth Amendment protects against the unreasonable seizure of persons as much as it protects against unreasonable searches. See, e.g. Dunaway v. New York, supra. Insofar as standing is implicated, however, the inquiries are different. While a person owning or possessed of an object searched is not always entitled to standing to challenge that search, a person claiming to be the victim of an illegal arrest is the one most entitled to challenge that arrest.
Of course, here, defendants are challenging the search and seizure of the vessels, not the arrests per se. Nevertheless, their argument, relying on Wong Sun v. United States,
We conclude that all of the crew members should have been granted standing to challenge the legality of their arrests. United States v. Demanett,
2. Search and Seizures of the Vessels.
Defendants argue that the Customs officials exceeded their authority for a limited document check under 19 U.S.C. Sec. 1581(a); that since Sec. 1581(a) was exceeded, the officers needed probable cause to board the vessels; and finally, that they were arrested prior to docking at Bennett's Point Landing, and in any event, before there was probable cause for arrest.
The trial court held that the Customs officials, supported by a reasonable suspicion of a customs violation, properly hailed and boarded the vessels, and properly detained the persons aboard as a safety precaution while securing each ship. Then, after their plain view observations, the officers had probable cause to conduct a more detailed search, all of which culminated in the arrest of defendants. We agree with the conclusions of the trial court.
The gravamen of defendants' position is that the Customs officials' authority to board under Sec. 1581(a) was exceeded. For the purposes of this appeal, the parties essentially agree that the boarding was not conducted as a document inspection, but was instead a stop to investigate the suspected participation of these vessels and their crew in a marijuana smuggling operation. Recently--while upholding the validity of section 1581(a) in the context of a suspicionless boarding for the inspection of documents--the Supreme Court noted that "[s]ection 1581(a) provides Customs officials with authority beyond boarding for document inspections." United States v. Villamontez-Marquez,
The language of this statute imparts an obviously broad grant of authority to Customs officials, and evidently draws no distinction between the boarding of a vessel for a documents inspection and the boarding of a vessel for an investigative stop. In Villamontez-Marquez, the Supreme Court declined to resolve whether the latter may likewise be validly conducted without suspicion. Id.
This Circuit has on several occasions considered the justification needed when a Section 1581(a) boarding is conducted for more than a document inspection. See, e.g., Blair v. United States,
The case law draws three apparent distinctions between the type of justification necessary for the valid detention of a vessel. Depending on the circumstances surrounding each stop, probable cause might be required, see United States v. Laughman,
Laughman applied the probable cause test because the boarding in that case "was justified by the probable cause-exigency exception to the warrant requirement." United States v. Laughman,
Blair required a reasonable suspicion because, absent allegations that a vessel detained in inland waters had previously crossed the United States territorial border, the more liberal standards used for border investigatory stops were inapplicable. See United States v. Blair,
Finally, Harper allowed the suspicionless stop of a vessel, pursuant to authority similar to Sec. 1581(a), 14 U.S.C. Sec. 89(a), because it was a limited non-discretionary intrusion of the type discussed in Delaware v. Prouse,
In summary, the precise issue presented by this case--finding the minimum applicable standard for an investigatory stop, conducted under the authority of Sec. 1581(a), made on inland waters where there is evidence of a territorial crossing--has not been resolved in this Circuit. Believing it imprudent to decide so significant an issue where such determination is not necessary for the outcome of the case, this Court also chooses to reserve the question of the minimum basis upon which an investigatory stop under Sec. 1581(a) may be upheld.
The Customs officers had ample support for a reasonable suspicion that the vessels detained had participated in a drug smuggling operation. At the time the two ships were stopped, the Customs officers were aware of the fact that marijuana was believed to have been unloaded at Bennett's Point Landing earlier in the evening; a Customs officer testified that he had observed no vessels in St. Helena Sound for the preceding two to three weeks, so the presence of these trawlers was somewhat unusual; no shrimp nets were observed on the trawlers; and a systems check run on the vessels indicated that they might be involved in drug smuggling activities.
Supplied with this information, the officers were fully justified in making an investigatory stop. Where vessels are involved, because of the nature of detentions at sea, an investigatory stop may properly include a boarding of the detained vessel by the Customs officers. Blair v. United States,
On the way to Bennetts' Point, Customs officers noted that the trawlers were navigated in a manner that indicated familiarity with the surrounding waters even though earlier the captains had denied such knowledge. Customs officers also observed that while there were no shrimp nets displayed on the trawlers when first approached, by the time they reached port the nets were completely rigged.
Once on board, the officers detained the occupants of these vessels as a safety precaution.36 Reasonable force, including the use of weapons, is permissible for the protection of officers conducting an investigatory stop, and does not transform the detention into an arrest. See United States v. Warren,
IV
Defendants argue that the trial court made four errors on its evidentiary rulings: the testimony of Michael and Bohanon should have been suppressed as fruit of illegal arrests; said testimony should have been excluded under Federal Rules of Evidence 801(d)(2)(E) as it was uncorroborated testimony of a co-conspirator; statements made by defendants to Agent Sprague should not have been permitted into evidence; the testimony of Agent Stein should not have been allowed.
Defendants' first claim is resolved against them by virtue of the foregoing determination that there were no illegal arrests. In the absence of a primary illegality there can be no taint. This Court also notes that the exclusion of live-witness testimony because of an alleged taint is not freely allowed. See United States v. Ceccolini,
On defendants' second claim, the trial court noted that it "was provided with no specific objection as to what part of [Bohanon's] testimony defendants objected to." United States v. Manbeck,
Defendants argue that Agent Sprague interviewed them in violation of their right to counsel. The trial court held that the statements were voluntarily made by defendants and made after a Miranda warning was given to each upon their entry into the interrogation room. Id. at 1111. The record supports the conclusions of the trial court.
Finally, defendants object to the admission into evidence of a transcript of Agent Stein's testimony in a prior drug case. This prior transcript was admitted into evidence as expert witness testimony on the packaging of Columbian marijuana. The trial court found that when this transcript was stipulated to as evidence no defendant raised any objection. Again, the record supports the trial court.
We find no errors in the trial court's evidentiary rulings.
V
The last issue advanced by defendants is that the evidence adduced at trial was insufficient to support their convictions. The sufficiency of evidence in support of a conviction is to be examined in the light most favorable to the government. Glasser v. United States,
A. IMPORTATION
Defendants were found guilty of the importation of marijuana. The essential element of this crime is that the marijuana must have been brought or introduced into the territory of the United States from some place outside thereof. See 21 U.S.C. Secs. 951(a), 952(a). Defendants claim that this element has not been established. To establish guilt of the crime of importation there must be proof that the defendants in some manner participated in or helped effectuate the act of importing. United States v. Seni,
Courts have held that evidence of the foreign origin of the marijuana is a factor to be considered in showing importation but is not sufficient of itself. United States v. Watkins,
In addition to the considerations specified above, however, the facts in this case include the existence of a navigational chart found in front of the steering wheel of the "Lady Lisa" which was marked so as to indicate a path of travel extending deep into customs waters. Cases where such a map has been found, in conjunction with other factors (including those previously mentioned as well as other considerations involved here like the absence of a shrimping activity on a shrimp boat), almost unanimously conclude that there was sufficient evidence to prove importation. See, e.g., United States v. Seni, supra; United States v. Moorman,
B. CONSPIRACY COUNTS
There has been considerable debate recently concerning the evidence necessary to convict members of a crew on board a vessel laden with marijuana of conspiracy to possess said marijuana with intent to distribute. See, e.g., United States v. Michelena-Orovio,
The essence of the crime of conspiracy is an agreement to engage in a criminal act. United States v. Peterson,
With respect to a conspiracy to import, courts have agreed that a crewmember's knowledge of the presence of marijuana may be inferred if there is a large quantity on board. United States v. Alfrey,
This conclusion does not, however, end the inquiry.40 Defendants were convicted of two separate conspiracy counts: conspiracy to import marijuana in violation of 21 U.S.C. Sec. 963; and conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. Sec. 846. Thus, their knowledge of and participation in both conspiracies must be proved.
The Supreme Court has confirmed that a defendant may be convicted of a conspiracy to import marijuana and a conspiracy to distribute marijuana on the basis of the same evidence and punished cumulatively for these convictions without violating the Double Jeopardy clause. Albernaz v. United States,
In Albernaz, defendants were charged on a single conspiracy count with dual objectives--"a conspiratorial agreement which envisages both the importation and distribution of marijuana." Albernaz v. United States,
In response to the conspiracy to distribute charge, the crew members contend, arguendo, that their only role was bringing the marijuana onto shore, and they had no interest or stake in whatever followed. Although this Court has never directly ruled on the necessary intent, other Circuits have held that the government must show both general criminal intent and specific intent to distribute when a defendant is charged with a conspiracy to distribute. United States v. Russell,
Defendants' position is, of course, eminently reasonable. Other courts have found defendants guilty of a conspiracy to import, and not a conspiracy to possess with intent to distribute, where it appeared that their only role was to bring the contraband into the country. See, e.g., United States v. Hawkins,
In Michelena-Orovio, supra, however, the Fifth Circuit appears to have taken a contrary position. The defendant in Michelena-Orovio was a crew member who argued that there was insufficient evidence to support a finding that he had joined the conspiracy to distribute. Like the crew members in this case, Michelena-Orovio argued that his role was limited to effectuating the importation. The Fifth Circuit rejected this contention, pointing out that "Michelena-Orovio was an actual participant in at least a segment of the distribution scheme since he was a member of the conspiracy to import marijuana". United States v. Michelena-Orovio,
Instead, the Court found Michelena-Orovio guilty of joining the conspiracy to distribute solely on the inferences drawn from the fact that a large quantity of marijuana was imported. The Court reasoned that where there is more marijuana that a person can consume, "someone must have an intent to distribute the marijuana. The defendant's awareness of the existence of the conspiracy flows from his participation in the conspiracy to import such a large quantity, for in the absence of any legal market in which to dispose of his wares, there is no reason to import goods if there has been no plan made for their distribution." Id. at 752. "In summary, the fact that the defendant is involved in importing a huge quantity of marijuana into the United States may establish both the defendant's knowledge of and joinder in the conspiracy to possess with intent to distribute". Id. at 752.
A close examination of the Court's reasoning reveals a fundamental flaw. The Court has simply established that a person importing a large quantity of marijuana should be aware that the marijuana will be distributed once it reaches the United States. Unless awareness of this fact is equivalent to joining the conspiracy to distribute, there is still no evidence indicating the extent of the agreement entered into by the defendant crew member. Evidence that "someone must have an intent to distribute the marijuana" is a far cry from identifyingthe defendant as that someone. United States v. Laughman,
Recognizing this problem, the Fifth Circuit invoked a long line of cases adhering to the proposition that intent to distribute may be inferred from the possession of a large quantity of marijuana. Id. at 755-756. The soundness of Michelena-Orovio, relied upon by the government in this case, thus rests on the validity of this inference. The inference that a person possessed of a large quantity of marijuana intends to distribute said marijuana is widely adhered to and well-recognized, but it is imperative to understand the context from which this inference originates. Invariably, every vessel case that cites this principle relies on cases which trace back to the situation where courts were distinguishing the mere possession of contraband from possession with intent to distribute.41 It makes perfect sense to infer that persons possessed of a suitcase full of marijuana intend to distribute that marijuana rather than keep it to themselves because there is more marijuana than those persons could consume. See United States v. Johnson,
Focus must be squarely placed on the quantity and what inferences really follow therefrom, and it must be remembered that the vast majority of conspiracy to import cases involve large quantities of marijuana. Again, the large quantity indicates that someone planned to distribute it, but not whether the defendant is that someone. The only difference a small quantity makes is that no one has plans to distribute it. Neither case presents a basis from which an inference can be drawn as to the general criminal intent and specific intent to distribute on the part of a particular crew member; the size of the cache alone cannot be sufficient to establish a crew member's intent and joinder in a conspiracy to distribute. See United States v. Boone,
Accordingly, this Court is not prepared to reach as far as Michelena-Orovio. In Laughman, this Court held that the large quantity of marijuana sufficiently established that there was a conspiracy to distribute. United States v. Laughman,
Short of adopting the position that the act of unloading itself constitutes participation in the conspiracy to distribute, see United States v. Pool,
Despite the Order of this Court to vacate the convictions of those on board the vessels, as to Count Two, there is no need to remand for resentencing since the punishment on this Count was to be served concurrent with the punishment imposed on Count One. United States v. McKinney,
VI
Defendant Gallopo is in a position somewhat different from the other defendants. Gallopo's claim is simply that he was not at Bennett's Point Landing that evening and he had nothing whatsoever to do with the alleged smuggling activities of his co-defendants. Gallopo urges this Court to find the evidence insufficient to support his convictions.
Gallopo was the only defendant who did not agree to a stipulated facts trial. He did agree, however, to adopt the record of the suppression hearing with the exception of the testimony of Bohanon and the statement of Michael. He also waived trial by jury.
At trial, the government's evidence against Gallopo came from Bohanon and Michael. Bohanon testified that he met Gallopo on the evening of November 28, 1980, at Bennett's Point Landing, where they waited for the vessels to show. Bohanon tentatively identified Gallopo at trial, but admitted that he could not be absolutely sure. Michael also testified that he saw Gallopo at Bennett's Point Landing that evening, and he made a positive identification of Gallopo. Both Bohanon and Michael testified that Gallopo was the driver of a third tractor-trailer.
Gallopo admits that he was in Walterboro on the evening in question, but claims that he was hauling citrus fruit and had to stop in Walterboro because of mechanical problems with the refrigeration unit in his trailer. In his defense, Gallopo points out that the officers at Bennett's Point Landing found only two tractor-trailers. Gallopo also emphasizes that Bohanon was less than sure in his identification, and Michael was a witness with a stake in the proceedings and possessed a motive to fabricate testimony. Several witnesses gave testimony on behalf of Gallopo, most of whom were employees at the Howard Johnson where Gallopo stayed while in Walterboro. These witnesses merely corroborated that Gallopo stayed at the Howard Johnson and that he made no effort to hide his identity. A witness also testified that he sold Gallopo a replacement part needed to repair the refrigeration unit on the trailer.
Gallopo argues that the weight of the evidence against the already suspect testimony of Bohanon and Michael is overwhelming. As support for his position, Gallopo submits excerpts of statements made by the trial court expressing concern about the strength of the government's case.
Although much of the government's case against Gallopo is based on the testimony of two admitted accomplices, the law in this Circuit is well settled that uncorroborated testimony of an accomplice may be sufficient to sustain a conviction. United States v. Figurski,
It is axiomatic that it is the role of the factfinder, not the appellate court, to resolve conflicts in testimony, weigh the evidence, and judge the credibility of witnesses. United States v. Tresvant,
VII
Therefore, consistent with the foregoing discussion, the decision of the trial court is REVERSED in part as to the standing of defendants where indicated; the convictions under Count Two of defendants arrested on board the vessels are VACATED; and the judgment is AFFIRMED in all other respects.
AFFIRMED IN PART; VACATED AND REVERSED IN PART.
DONALD RUSSELL, Circuit Judge, concurring in part and dissenting in part:
I concur in the recitation of the facts of this complex case, as well as in Parts I, II, III, IV, V(A), and VI of the majority opinion. I cannot agree, however, with the reasoning which leads the majority to conclude that the evidence was insufficient to support the conspiracy convictions on Count Two for possession of marijuana with intent to distribute. I therefore dissent from Part V(B) of the majority's opinion, and the portion of the judgment vacating the defendants' convictions under 21 U.S.C. Sec. 846.
The crucial issue in these cases is whether the sea-based defendants could be found to have had the requisite intent to distribute the marijuana they possessed, on the basis of the vast size of the cache, some 59,000 pounds. This is not a case where any members of the crews of the shrimp boats might have been unaware of their cargo; the majority recognizes that this is "extremely unlikely," and the evidence established that all defendants on the boats played an affirmative role in the conspiracy to import. Common sense demonstrates that the defendants could not, by the most strenuous efforts, have possibly consumed nearly 30 tons of marijuana personally. From the indisputable premises that 1) defendants possessed the marijuana, and 2) the marijuana had to be distributed, could not a rational trier of fact have concluded that defendants intended to distribute the marijuana?
The majority assumes that the sea-based defendants would have needed an intent to take some personal role in the distribution on shore to be convicted on Count Two. The flaw in this reasoning is that the defendants were not charged individually with an intent to distribute, but with participation in a conspiracy to distribute. The majority agrees that the two conspiracies charged arose from a "single continuous transaction," and so are properly treated not as distinct enterprises, but rather as "a single conspiracy with dual criminal objectives." The sea-based defendants possessed a substantial quantity of marijuana which they transferred to their land-based cohorts, who are beyond dispute subject to conviction for possession with intent to distribute. Under settled law, acts of any conspirators in furtherance of a conspiracy may be attributed to all participants, Pinkerton v. United States,
The majority's unwillingness to infer intent to distribute from possession of a quantity of drugs vastly greater than could be personally consumed stands in contrast to the numerous decisions of other circuits involving drug smuggling by vessel which have not hesitated to make that inference. See, e.g. Michelena-Orovio,
For the reasons stated, I would affirm the convictions of the defendants for possession of marijuana with intent to distribute on Count Two, as well as affirming the defendants' remaining convictions.
Notes
Honorable Walter E. Hoffman, Senior United States District Judge for the Eastern District of Virginia, sitting by designation
Defendants' proof of discrimination was based on a study of nine grand juries selected in an eight year span from 1974-1981. Of those nine grand juries, no blacks or women were chosen as forepersons, and only three women were appointed deputy forepersons. While the Court expressed "serious doubts" as to the validity of conclusions that may be drawn from only nine grand juries, it nevertheless assumed that this constituted a "significant period" for the purpose of establishing a discriminatory practice. United States v. Manbeck,
Once a prima facie case of discrimination is established the burden shifts to the government to show an absence of discriminatory intent. Duren v. Missouri,
Code of South Carolina Laws Sec. 44-53-410 (1976) provides as follows:
If a violation of this article is a violation of a federal law or the law of another state, the conviction or acquittal under the federal law or the law of another state for the same act is a bar to prosecution in this state.
Count Four of the indictment was not dismissed as to defendant Gallopo, and he does not join in this issue
Dismissal in this case was sought by the government and granted by the trial court under the authority of Federal Rules of Criminal Procedure Rule 48(a), which reads: "The Attorney General or the United States Attorney may by leave of court file a dismissal of an indictment, information or complaint and the prosecution shall thereupon terminate. Such dismissal may not be filed during the trial without the consent of the defendant."
While the Supreme Court has never authoritatively stated what "leave of court" was intended to encompass, the Court has endorsed the "public interest" consideration set out in Cowan. See Rinaldi v. United States,
The Supreme Court has made it clear that the double jeopardy clause does not prohibit state and federal authorities from each prosecuting a defendant for the same act. Bartkus v. Illinois,
The second sentence in Fed.R.Crim.P. Rule 48(a) states: "Such a dismissal may not be filed during the trial without the consent of the defendant."
It must also be remembered that only South Carolina tried defendants for a crime of distribution of marijuana. Technically speaking, then, defendants were not successively tried for the same crimes. However, the South Carolina statute speaks in terms of "same act", not "same crime." See supra, note 3
In fact, evidence that this procedure did not violate South Carolina public policy against successive prosecutions comes from the fact that defendants were ultimately indicted and sentenced on a charge of intent to distribute marijuana in South Carolina. If defendants argument is correct, presumably, South Carolina authorities would have been precluded from bringing the subsequent charges
Other courts have refused to second-guess the Justice Department's application of its Petite policy, "[i]t might be otherwise if the Attorney General's policy were something more than in-house rules, and had reached the stage of publication in the Code of Federal Regulations or some equivalent publication." United States v. Chavez,
For the purposes of this analysis, this Court will assume that a trial has begun within the meaning of Rule 48(a) when jeopardy attaches to the proceedings. See generally, United States v. Jorn,
Defendants claim that they waived the right to a jury trial because of an agreement that limited their maximum exposure to 10 years imprisonment if convicted. Permitting state prosecution would thus result in potentially greater penalties than the agreement specified. In response to these objections, the trial court voided defendants' waivers and scheduled the beginning of jury selection procedures. Defendants then rewaived their right to a jury trial, and preserved their objections to the government's requested dismissal. This sequence of events precludes defendants from linking their agreement to stipulate the facts to the Government's disposition of Count Four
Courts have held that under 48(a) a count may be dismissed from an indictment without destroying the entire indictment or affecting other charges contained therein. See United States v. Delagarza,
Defendants' proper remedy, if any was merited, would have been to challenge the institution of state charges on the distribution of marijuana.
This error was made in favor of defendants and causes them no prejudice. See Street v. Surdyka,
In Salvucci, the Supreme Court unequivocally establishes this very proposition: "We simply decline to use possession of a seized good as a substitute for a factual finding that the owner of the good had a legitimate expectation of privacy in the area searched."
Furthermore, there is some doubt concerning the extent to which one may claim a property interest in contraband, the possession of which is per se illegal. See United States v. Parks,
Where a constitutional violation is alleged, the party claiming this violation carries the burden to establish the standing required to raise that claim. Rakas v. Illinois,
Law enforcement officers may stop moving vehicles with less than probable cause where they have objective facts that support an articulable and reasonable suspicion that the vehicle or any of its occupants is subject to seizure for violation of law. Delaware v. Prouse,
It is by no means certain that the brevity limitation of Terry and Sharpe was, in fact, exceeded in this case by the hour-long detention. Relying heavily on Dunaway v. New York,
Officer Canady testified during the suppression hearing that:
We asked him where his truck was parked, and he told us where he had his truck parked, which was not where we had observed the truck. We asked him when he had loaded out of Charleston, and he told us a couple of days before is when he actually loaded, and we asked why it took two days to get there, and he said he had been sick at a motel room.
Record, Vol. XXIV, at 41.
There is no allegation that Sheriff Seigler was dilatory in his efforts to ascertain the existence of "Central Soya", or in his efforts to convey his findings to the officers on the scene
Although there is a distinction between the length of a detention and the quality of a detention when finding a de facto arrest, their inquiries often overlap. For example, in Dunaway v. New York, supra, the court took the length of the detention into account when finding that the seizure was in the nature of an arrest
Defendants submit that because one of the officers admitted Brogden was not free to leave, he was effectively under arrest. The expressed intentions of the officer is not controlling on whether Brogden was in fact arrested. As was discussed earlier, a Terry stop authorizes temporary detentions, so this statement alone provides no basis for a distinction between a Terry stop and an arrest. Furthermore, this Court recently considered a more affirmative statement made by an officer. "The minute I stopped that car he was under arrest," and, finding no arrest had occurred, held that statement of intent merely a factor to be considered. United States v. Perate, supra
Compare the analysis in this case with that of the Ninth Circuit in United States v. Chamberlin,
See also, Michigan v. Summers,
The trial court held that only Brogden had standing to raise this objection because the right against self-incrimination is personal and may not be vicariously asserted, citing United States v. Dowdy,
Of course, Miranda concerns aside, "statements given during a period of illegal detention are inadmissible even though voluntarily given if they are the product of the illegal detention and not the result of an independent act of free will." Florida v. Royer,
See also California v. Beheler,
Again, there are two types of seizures, one a permissible investigative stop, the second a detention equivalent to arrest. The Supreme Court has implied that custodial interrogations and Terry stops are mutually exclusive, i.e., if one is interrogated in a custodial situation the limits of Terry have necessarily been exceeded. See Dunaway v. New York,
In United States v. Seni,
See Moore v. Ballone,
In addition to finding that Brogden was not in custody, the trial court also found that he was not subjected to interrogation. United States v. Manbeck,
As a consequence of upholding the validity of the prolonged detention of Brogden, it follows that the discovery of the odor of marijuana itself was not tainted. In the absence of any illegality, the officers were fully entitled to examine the exterior of the tractor-trailer in the course of their investigation. A strong, emanating odor of marijuana comes within the "plain view" doctrine and need not be ignored by officers. See United States v. Haynie,
The government argues that the respective captains consented to follow the Customs officers back to Bennett's Point Landing, and defendants should therefore not be allowed to contest the validity of that action. The trial court made no mention of a consent, and this Court declines to do so in the absence thereof
Defendants also argue that the presence of local law enforcement officers and the fact that these officers participated in the boarding exceeded the authority granted to Customs Officers under 1581(a). This argument has already been addressed and refuted by the Supreme Court:
"Respondents however contend in the alternative that because the Customs Officers were accompanied by a Louisiana state policeman, and were following an informant's tip that a vessel in the ship channel was thought to be carrying marijuana, they may not rely on the statute authorizing boarding for inspection of the vessel's documentation. This line of reasoning was rejected in a similar situation in Scott v. United States (citation omitted), and we again reject it. Acceptance of respondent's argument would lead to the incongruous result criticized by Judge Campbell in his opinion in United States v. Arra [
United States v. Vilamontez-Marquez,
The trial court held that the captains could not claim a privacy interest in the fishhold area of the vessels. United States v. Manbeck,
The land based defendants who received the marijuana will largely be ignored in the following discussion because it is well settled that they may be held responsible for both importation and distribution by virtue of their participation. The treatment of crew members is less clear. Thus, the trial court's opinion sufficiently addresses the former group and nothing need be added by this Court. Defendant Gallopo, because of his different position, will be addressed separately in Section VI
Defendants argue that the testimony of a co-conspirator is insufficient to support their conviction. This objection is meritless. Other courts have held that the testimony of a co-conspirator may be relied upon to support a conviction. See, e.g., United States v. Scholle,
The sentences imposed on defendants on Counts One and Two ran concurrently with another. Under the "concurrent sentence doctrine," where one of the convictions is affirmed both may be upheld without a review of the second. United States v. Walker,
For example, Michelena-Orovio cites United States v. Ceballos,
In Ortiz, the court arrived at the inference by the following reasoning:
There was no proof of an actual sale by Ortiz, so admittedly the sufficiency of the evidence in this respect rises or falls on whether the two containers of metaphetamine were of such quantity that it is proper to conclude that Ortiz was going to sell, deliver or dispose of the speed to another rather than keep it for himself. Case law is practically non-existent on this proposition.... The legislative history of the statutory proposition against trafficking in drugs reveals that Congress believed that the quantity of drugs found in the possession of a person should bear directly upon the question of whether or not his possession is for his own use or is for the purpose of illicit transactions involving others. (citations omitted)
United States v. Ortiz,
There is some question as to whether the captain of a ship is in a position different from that of his crew with respect to a conspiracy to distribute. It is definitely conceivable that a captain would join a conspiracy to distribute in circumstances where the crew does not. For example, if it is shown that the captain had an ongoing relationship with those involved in the distribution scheme, whereas, in contrast, crew members were merely hired on a trip-by-trip basis, a strong inference can be drawn that the captain participates and has a stake in the overall conspiracy to distribute, while the crew does not. Or, if the captain was paid in an amount or manner that depended upon the successful outcome of the distribution scheme, while the crew received a flat rate upon completion of the act of importation, again, a distinction could be drawn between the captain and crew as to the extent and object of the conspiracies joined by each. A number of similar distinctions between a captain and the crew can be posited, however, no such evidence was presented in this case, and we are therefore precluded from considering guilt of the captain on such grounds