U.S. v. Weinrich

Decision Date15 December 1978
Docket NumberNo. 78-5092,78-5092
Parties4 Fed. R. Evid. Serv. 263 UNITED STATES of America, Plaintiff-Appellee, v. William James WEINRICH, Michael Wiley Blair, Terry Wesley Gue, George Robert Henderson, Robert Carl D'Antonio, Jean Marc Senecal and Billy Guy Pilgrim, Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

William W. Corry, Tallahassee, Fla., Frank Alderman, III, Fort Myers, Fla., for Weinrich.

Alan Jay Braverman, Fort Lauderdale, Fla., for Blair.

Robert A. Douglass, St. Petersburg, Fla., for Gue.

Wilbur C. Smith, III, Fort Myers, Fla., for Henderson.

Guillermo A. Ruiz, St. Petersburg, Fla., for D'Antonio, Senecal, Pilgrim.

John L. Briggs, U. S. Atty., Jacksonville, Fla., Judy S. Rice, Asst. U. S. Atty., Tampa, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before WISDOM, AINSWORTH and CLARK, Circuit Judges:

CHARLES CLARK, Circuit Judge:

This consolidated appeal results from convictions for conspiracy and multiple substantive counts involving importation and distribution of marijuana and hashish. 1 Caught red-handed, the defendants principally attack, not their guilt, but the manner of their apprehension and trial. They severally challenge the legality of various wiretaps and searches that led to their arrests allege errors in the conduct of their trial, and attack the constitutionality of the federal marijuana laws. We find all of their contentions unmeritorious and affirm their convictions.

I. FACTS

The defendants were apprehended in the early morning hours of June 22, 1977, from three vessels off the coast of Florida. Approximately 6,000 pounds of marijuana and smaller quantities of hashish were confiscated from the vessels. The apprehension of the defendants and seizure of the contraband were accomplished through the combined efforts of Florida State and local authorities, various federal agencies and the United States Coast Guard. The defendants attack virtually every aspect of the police activity leading up to and including the boarding and search of the vessels.

The investigation that ultimately culminated in the defendant's arrests began with a series of wiretaps conducted by the Florida Department of Criminal Law Enforcement ("FDCLE"). FDCLE Special Agent Charles Layman received a tip from a confidential source on November 10, 1976, that Neil Ryder, not a defendant in this case, was involved in the importation and distribution of narcotics. Further information concerning Ryder was obtained from a second confidential source on January 18, 1977. Relying on information from the two confidential sources and certain other information obtained through independent investigation, Agent Layman applied for a court order authorizing a wiretap on Ryder's phone. Authorization for the wiretap was granted on February 18, 1977 by Judge John A. Rudd of the Leon County, Florida Circuit Court.

As a result of the initial wiretap (the "Ryder Wiretap") information was obtained which led Agent Layman to apply for a second wiretap order on the phone of Chuck Mitchell. The second wiretap request was supported primarily with information obtained from the Ryder wiretap; it also was approved by Judge Rudd. Using information obtained from the first two wiretaps, Agent Layman next applied to the Florida Supreme Court for an order approving a wiretap at a motel in Tampa, Florida, and the Florida Supreme Court approved the request. The FDCLE investigation continued through what ultimately became a series of eight wiretaps. Each successive wiretap application in the sequence incorporated information from the wiretap that preceded it.

Several of the wiretaps, including the initial Ryder wiretap, resulted in the interception of conversations of William James Weinrich, one of the defendant-appellants. An April 13, 1977 conversation involving Weinrich made reference to "pot," "125,000 pounds of gold," "Bogota" and "offloading sites." Following the April 13 conversation, the FDCLE began physical surveillance of Weinrich; that surveillance led the agents to a house on the intercoastal waterway in Nokomis, Florida.

On June 13, 1977, the FDCLE received a report from Sergeant Grass, a deputy county sheriff from Pinellas County, Florida. Sergeant Grass stated that an informant had told him that a vessel loaded with marijuana was to arrive from South America within twenty days, and that the marijuana would be offloaded at a house on the intercoastal waterway matching the description of the house in Nokomis that was already under surveillance as a result of the FDCLE investigation of Weinrich. Four days later, on June 17, 1977, a 34 foot cabin cruiser, the "Big Daddy," was observed moored to the dock behind the house, and twenty-four hour surveillance by the FDCLE began.

The Big Daddy left its mooring on the intercoastal waterway in the late afternoon of June 21, 1977, and began to head for open sea; it was immediately placed under aerial surveillance. At about 6:30 p.m., the Big Daddy pulled alongside two other boats, a 31 foot Bertram called the "Cat's Paw," and a 60 foot converted shrimp trawler, the "Deux Dauphins." 2 The Big Daddy and Cat's Paw tied up to the larger Deux Dauphins for about one hour. The two smaller boats then broke off from the Deux Dauphins and began heading in tandem toward the Florida Coast, while the Deux Dauphins headed toward international Waters. Aerial surveillance of all three vessels continued, and police boats were dispatched and directed by surveilling aircraft to the location of the Big Daddy and Cat's Paw.

Surveillance of the Big Daddy and Cat's Paw continued undetected as the two boats approached the Florida Coast near Boca Grande, Florida. At about 1:30 a.m., as the two boats entered Boca Grande pass, subjects on the Big Daddy turned on a spotlight, with the apparent purpose of searching for a buoy. Instead, the spotlight illuminated one of the surveillance boats, a Florida Marine Patrol boat marked "Police." At that point the FDCLE agent in charge of surveillance ordered the Big Daddy and Cat's Paw boarded. Bales of marijuana totalling 6,000 pounds were found on the two boats, and a package of hashish was found on the Cat's Paw. A document pertaining to the Deux Dauphins was found on the Big Daddy. Defendants Weinrich, Blair and Busch were arrested on board the Cat's Paw; and defendants Gue, Henderson and Ray were arrested aboard the Big Daddy.

News of the marijuana confiscation was immediately radioed by a federal Customs Officer who had been working in concert with the FDCLE to the Coast Guard Cutter Point Thatcher. The Point Thatcher had been trailing the Deux Dauphins in the Gulf of Mexico with aerial assistance. Upon receiving the radio message, the Point Thatcher had the Deux Dauphins illuminated from the air. Subjects on board were observed rinsing the deck with water. The vessel was boarded, and customs officers noticed odors of lemon-scented disinfectant and marijuana. A carpet on the rear deck was rolled back and a substance that appeared to be marijuana residue was found. A field test was performed, and the substance was confirmed to be marijuana. Also found on board were the belongings and identification of Michael Busch, one of the men arrested on the Cat's Paw. Defendants Senecal, Pilgrim and D'Antonio were placed under arrest.

Meanwhile, back at the Boca Grande Pass, the six defendants from the Cat's Paw and Big Daddy were placed under the custody of FDCLE Agent Gilliland. Defendants Ray, Henderson and Blair all made statements to Agent Gilliland after they had been given Miranda warnings.

All of the appellants were jointly charged and convicted in a single jury trial of conspiracy to import marijuana and hashish. Senecal, Pilgrim and D'Antonio from the Deux Dauphins were convicted of distributing marijuana knowing it would be imported into the United States. Henderson and Gue from the Big Daddy were convicted of importing marijuana and possessing marijuana with intent to distribute. Weinrich and Blair from the Cat's Paw were convicted on counts of importing marijuana, importing hashish, possessing marijuana with intent to distribute and possessing hashish with intent to distribute. 3 Sentences were imposed ranging from probation to four year's confinement and these appeals ensued.

Defendants in separate attacks mount a many-pronged assault on their convictions. Alleging that the initial Ryder wiretap was illegal, they claim that all subsequently developed evidence should have been suppressed as fruit of the poisonous tree. The legality of the warrantless searches of all the vessels are challenged as lacking either probable cause or exigent circumstances sufficient to excuse the failure to obtain warrants, and the authority of the Coast Guard to stop the Deux Dauphins in international waters is attacked. Various of the defendants claim errors at trial, including alleged misjoinder of parties, Bruton violations, prosecutorial misconduct on summation, and insufficiency of evidence. Appellant Gue attacks the constitutionality of the Comprehensive Drug Control Act, 21 U.S.C. § 841(a)(1), as lacking a sufficient nexus to interstate commerce.

II. THE LEGALITY OF THE RYDER WIRETAP

The appellants assert that the initial Ryder wiretap was authorized without probable cause because the application for the wiretap was based primarily on confidential source information that was both fatally stale and unreliable. If the Ryder wiretap was illegal, the appellants claim, all subsequently developed evidence, including all information obtained from the succeeding dependent wiretaps, would be tainted as fruit of the poisonous tree. The government defends the reliability and sufficiency of the information upon which the probable cause finding was made, claims that the information was not fatally stale, and challenges the standing of the...

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