550 F.2d 1167 (9th Cir. 1977), 75-3011, United States v. Stearns

Docket Nº:75-3011.
Citation:550 F.2d 1167
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Stephanie K. STEARNS, Defendant-Appellant.
Case Date:March 02, 1977
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1167

550 F.2d 1167 (9th Cir. 1977)

UNITED STATES of America, Plaintiff-Appellee,


Stephanie K. STEARNS, Defendant-Appellant.

No. 75-3011.

United States Court of Appeals, Ninth Circuit

March 2, 1977

Rehearing Denied March 29, 1977.

Page 1168

Winston Mirikitani, argued, Honolulu, Hawaii, for defendant-appellant.

Harold M. Fong, U. S. Atty., Wm. J. Eggers, Asst. U. S. Atty., argued, Honolulu, Hawaii, for plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before BROWNING, TRASK, and KENNEDY, Circuit Judges.

KENNEDY, Circuit Judge:

Stephanie Stearns was convicted, after a jury trial, on two counts of theft of personal property within the special maritime and territorial jurisdiction of the United States, violations of 18 U.S.C. § 661, and on one count of transporting stolen property in interstate and foreign commerce, a violation of 18 U.S.C. § 2314. On appeal she contends that the district court erred both in admitting certain photographs and in denying a motion to consolidate the three counts. We affirm.

Page 1169

The principal question on this appeal is whether the prosecution established a sufficient foundation for the admission at trial of an exhibit consisting of five photographs. To understand the significance of these photographs and the foundation problems they present, we must recount the voyages of two sailing vessels, the Iola and the Sea Wind, and describe their encounter at Palmyra, an uninhabited island in the Pacific about one thousand miles south of Hawaii.

The Iola, a 30-foot vessel, arrived in Palmyra harbor from Hawaii on June 25 or 26, 1974. The channel leading into the lagoon on Palmyra is narrow and difficult to navigate. The Iola, which had a broken motor, had to be towed through the channel by dinghies from two ships already anchored in the lagoon. The persons sailing on the Iola were the defendant Stephanie Stearns and one Buck Walker (alias Roy Allen), the Iola's owner.

Apparently Stearns' and Walker's voyage from Hawaii had been an arduous one. It is doubtful whether the Iola was sufficiently seaworthy either for a return voyage to Hawaii or for a trip to Fanning Island, 175 miles further south and the nearest available place to obtain equipment and supplies. Stearns and Walker apparently intended to remain at Palmyra until friends arrived on another boat. The Iola had meagre supplies, and Stearns and Walker found it hard to adjust to a diet of coconut and fish. They tried to grow vegetables, with little success. One witness testified that Stearns told him she and Walker had ten dollars and some equipment, which she offered to exchange for food.

On July 1, the Sea Wind dropped anchor in the lagoon at Palmyra, where the Iola and other boats were located. The Sea Wind, a ketch 37 1/2 feet long, equipped with auxiliary engines, stocked with abundant food and stores, and fitted with a complete tool shop, was owned and sailed by a Mr. Graham, who, with his wife, was on a cruise of the South Pacific. The Grahams had spent over two years planning the trip and provisioning the Sea Wind.

In late August 1974, all other vessels had departed from Palmyra, and only the Iola and the Sea Wind remained at the island. The Grahams had a prearranged pattern of radio contact with an operator in Hawaii. The operator's last radio conversation with Mr. Graham took place on August 28, 1974. All attempts to make further radio contact with the Sea Wind proved unsuccessful. The Grahams had mysteriously disappeared. They have never been found.

Three months later, the Sea Wind was recognized in a Honolulu yacht harbor. Stearns and Walker were now its crew. The ketch had been reregistered under another name and had been partially repainted. Stearns was charged with theft of the Sea Wind, theft of certain personal property of the Grahams aboard the Sea Wind, and transportation of stolen property in interstate commerce.

Stearns contended that the Grahams disappeared while the Sea Wind remained anchored in Palmyra harbor, and that after a search she and Walker had found the Grahams' dinghy overturned on a beach of the lagoon. She stated that she and Walker sailed the Sea Wind to Hawaii in order to protect it from vandalism, and that she intended to contact a relative of the Grahams to deliver...

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