589 F.2d 1117 (1st Cir. 1978), 78-1093, United States v. Miller

Docket Nº:78-1093.
Citation:589 F.2d 1117
Party Name:UNITED STATES of America, Appellee, v. Jackie David MILLER, Defendant, Appellant.
Case Date:November 15, 1978
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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589 F.2d 1117 (1st Cir. 1978)

UNITED STATES of America, Appellee,

v.

Jackie David MILLER, Defendant, Appellant.

No. 78-1093.

United States Court of Appeals, First Circuit

November 15, 1978

Argued Sept. 7, 1978.

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Martin G. Weinberg, with whom Joseph S. Oteri, Judith F. Bowman, New York City, Oteri & Weinberg, Boston, Mass., Jeanne Baker, David J. Fine, and Rosenberg, Baker & Fine, Cambridge, Mass., were on brief, for defendant, appellant.

George J. Mitchell, U. S. Atty., Portland, Me., with whom Paula D. Silsby, Asst. U. S. Atty., Portland, Me., was on brief, for appellee.

Before COFFIN, Chief Judge, KUNZIG, [*] Judge, U. S. Court of Claims, DUMBAULD, [**] Senior District Judge.

COFFIN, Chief Judge.

A jury found appellant guilty of importing and possessing with intent to distribute more than 3000 pounds of marijuana 21 U.S.C. §§ 841(a)(1), 952(a), 960(a)(1); 18 U.S.C. § 2. The jury also convicted him of possession of 2 grams of hashish. 21 U.S.C. § 844(a). The district judge sentenced appellant to the maximum term in prison for each of the three offenses, 5 years for each of the first two offenses and one year for the third, the sentences to run concurrently. Appellant now challenges some aspect of virtually every stage of official interference with his enterprise: the searches of his boat, car, and land; the use at trial of his admissions of guilt; the admission of evidence of the size of his enterprise; the sufficiency of the evidence supporting his conviction for importation; the charge to the jury explaining reasonable doubt; and the considerations supporting the trial court's imposition of maximum sentences. The relevant facts add up to a substantial narrative. Each cluster of facts provides one or more occasions for an exercise of judgment by one or more of several law enforcement agencies. All such decisions are attacked on appeal. Some issues were not preserved; some are close questions. We conclude our necessarily lengthy analysis by affirming.

The Facts

We set forth in this preliminary statement the events necessary to put each of appellant's arguments in context. Elaboration essential for the disposition of particular issues appears subsequently.

On Friday, May 13, 1977, at approximately 5:45 a. m., an employee of the Robinhood Marina in Arrowsic, Maine, noticed a yacht, the COLD DUCK, fouled in one of the marina's moorings about 250 yards offshore. The boat had never been seen in Arrowsic before and no one had arranged to rent the mooring. By mid-afternoon employees of the marina decided to investigate. One employee rowed out and boarded the boat. He found no one on board, the rubber dinghy, used to ferry mariners ashore, still in the cockpit, and a partially eaten meal on the stove. Meanwhile, another employee called

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the boat's home port and learned that the boat had recently been sold to one Jackie Miller. After conferring, the employees called the Coast Guard to report a suspected drowning.

The Coast Guard visited the marina and notified the Sagadahoc County Sheriff's Office. By 8:00 p. m. the Coast Guard, Maine State Police, Sheriff's Office, Maine State Department of Sea and Shore Fisheries and the owner of the marina had all arrived to investigate. At approximately 10:30 p. m. Chief Deputy Sheriff Charles Brawn and Coast Guard officers boarded the COLD DUCK. They found a bill of sale and registration made out to Jackie D. Miller, P.O. Box 42, Woolwich, Maine. They left the boat. The Coast Guard then called the former owner of the boat and learned that Miller had paid $19,500 cash in small bills for the boat and had asked for a receipt showing a price of $15,000.

The Sheriff's Office assumed responsibility for hiring divers to search the area for bodies at first light, and all officials left the area around midnight. Deputy Frederick White was assigned to make an hourly visual check on the boat during the night. Shortly after midnight, Deputy Brawn tried to telephone Drug Enforcement Agency (DEA) Special Agent Edward Drinan, who heads DEA operations in Maine. Brawn suspected the COLD DUCK might be involved in drug smuggling operations being investigated in Lincoln County. Independent of Deputy Brawn, a Coast Guard warrant officer who had attended "drug awareness" seminars conducted by Drinan succeeded in reaching the agent and informed him about the COLD DUCK.

At 9:00 a. m. Deputy White and Deputy Gordon Kinney met at the marina. Divers were already searching the waters around the boat. Kinney and White boarded the COLD DUCK to help the Coast Guard in clearing the boat from its fouled mooring lines and towing it to a marina slip. While aboard, the deputies noticed several thousand dollars worth of new electronic navigational equipment which had been installed in a sloppy, unprofessional manner. They also noticed a number of roaches (partially burned marijuana cigarettes) in ashtrays on the deck and the flying bridge. Perusing the main cabin for more information about where the owner might have gone, Kinney noticed a navigational chart lying on the floor, folded so that the printed part of the chart was exposed. He spread the chart on the table and observed a penciled course threading its way from the marina to a ledge located off of Mill Isle, a secluded peninsula located in Arrowsic near the confluence of the Sasanoa and Back rivers. White and Kinney did not engaged in a general search of the boat.

When the boat was secured to the dock, Deputy Brawn boarded it to discuss the situation with White and Kinney. They showed him the chart and the three discussed the possibility that the boat was involved in drug smuggling in the area. At about the same time, appellant drove into the marina parking lot in a late model, black Chevrolet Blazer. Appellant approached Willard Muise, a marina employee working in the lot, identified himself, and stated that he wished to lease a mooring for his boat. When Muise asked what type of boat Miller owned, appellant pointed to the COLD DUCK and noticed law enforcement officers on her. Appellant inquired about their presence and Muise explained that the men had brought the boat to the dock in order to free the mooring. Muise then suggested that appellant check with the main office about renting a mooring and left the lot.

A few minutes later Muise went down to the COLD DUCK and asked if appellant had been there. He had not. Muise provided a description of appellant and his vehicle, and witnesses in the lot reported that he had recently departed, apparently in a hurry. The three deputies set out in two cars to locate appellant. Deputy White proceeded alone to Georgetown Center where he passed appellant going in the opposite direction. The two had eye contact and appellant

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accelerated rapidly. 1 White immediately turned and gave chase, at speeds in excess of 90 miles per hour. White caught up with appellant in about two miles and, with lights and siren operating, tailed appellant for another two miles before appellant stopped his vehicle. Appellant produced his license and registration upon request and admitted that he owned the COLD DUCK. White then escorted appellant back to the marina, driving his police car behind the Blazer.

At the marina parking lot, Brawn began to question appellant, and, after appellant again admitted owning the COLD DUCK, Brawn read him his Miranda rights. Appellant agreed to speak without a lawyer. Appellant then stated that his ownership papers were on the boat and voluntarily accompanied Brawn and Sheriff Tainter in boarding her. Agent Drinan arrived a few minutes later and, after being briefed by Brawn, boarded the COLD DUCK. Drinan identified himself to appellant and explained that he suspected appellant had been engaged in drug smuggling. He observed two roaches in an ashtray on the boat and proceeded to discuss the situation with the appellant.

Meanwhile, back in the parking lot, Deputies White, Kinney, and Setlar were standing around "admiring" appellant's Blazer through the door that appellant had left open. They noticed marijuana debris on the floor of the vehicle, field tested the substance, locked the vehicle, and apprised Drinan of their discovery. Drinan informed appellant that his suspicions were growing, and appellant was again informed of his Miranda rights. Appellant remained relaxed and casual, moving freely about the boat preparing a meal, answering general questions and refusing to answer when he so willed. Drinan suggested that appellant cooperate and explained maximum sentences for the crimes appellant might have committed. Appellant remained calm and denied any involvement with smuggling. Drinan then seized the COLD DUCK.

The parties then returned to the locked Blazer in the lot. Although appellant claimed he did not know who owned the vehicle, he unlocked it with his keys. Drinan removed four suitcases from the vehicle. When Drinan asked about the luggage, appellant disclaimed any ownership or knowledge of the suitcases. Drinan then searched the luggage, without any objection from appellant. The fourth piece was locked with a combination lock. Although appellant denied ownership of the suitcase, he stated that he knew the combination and unlocked it. In the case was a cube that a field test proved to be two grams of hashish. Drinan placed appellant under arrest for possession and seized the drug and the Blazer.

Deputy Setlar then frisked the appellant and found a sales receipt for an industrial vacuum cleaner, sold on May 13 (the day before) to a John Davis. Appellant later admitted he had signed the receipt using the false name. The Blazer was then thoroughly...

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