U.S. v. Butler

• Decision Date: 14 February 1980
• Docket Number: No. 78-5777,78-5777
• Citation: 611 F.2d 1066
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Scott Paul BUTLER, Michael Thomas Smith, a/k/a Thomas M. Smith, Garrison Dorminy Barnes, Thomas Richard Wingate, Robert Raymond Barnes, William Arthur Hiscock, John Richard Barnes, Jr., George Gary Holder, Robert Tyler Milne, Hugh Thomas McConaghy, Joseph Henry Cusanelli, a/k/a William Joseph and Frederick John Fazio, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1066

611 F.2d 1066

UNITED STATES of America, Plaintiff-Appellee, v. Scott Paul BUTLER, Michael Thomas Smith, a/k/a Thomas M Smith, Garrison Dorminy Barnes, Thomas Richard Wingate Robert Raymond Barnes, William Arthur Hiscock, John Richard Barnes, Jr., George Gary Holder, Robert Tyler Milne, Hugh Thomas McConaghy, Joseph Henry Cusanelli, a/k/a William Joseph and Frederick John Fazio, Defendants-Appellants.

No. 78-5777.

United States Court of Appeals Fifth Circuit.

Feb. 14, 1980.

Rehearing and Rehearing En Banc Denied April 18, 1980.

James K. Jenkins, Atlanta, Ga., for Scott Paul Butler.

Steadman S. Stahl, Jr., Hollywood, Fla., for defendants-appellants.

Kathrine L. Henry, William H. McAbee, Asst. U. S. Attys., Savannah, Ga., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Georgia.

Before THORNBERRY, CHARLES CLARK and KRAVITCH, Circuit Judges.

KRAVITCH, Circuit Judge.

Appellants, except Hugh Thomas McConaghy, were convicted in the Southern District of Georgia of conspiracy to possess marijuana, 21 U.S.C. § 846, and aiding and abetting each other in the possession of marijuana with the intent to distribute, 21 U.S.C. § 841(a)(1), ¹ 18 U.S.C. § 2. McConaghy was convicted only of aiding and abetting. All appeal their convictions. We affirm.

I. Facts

This is another in the apparently unending procession of marijuana importation cases. On July 21, 1978, an officer of the Glynn County Police Department noticed three white males in a car, the rear of which was elevated. Upon later observing the car at the Ramada Inn, the officer became suspicious and began surveillance directed at the driver of the car (John Barnes) and others with whom he came into contact. Surveillance continued from July 21 to July 29 and culminated in the arrest of fourteen people.

On the night of Friday, July 28, a DEA agent conducting aerial surveillance observed a shrimp boat, an Aqua Sport boat which had been previously observed, ² and a small cruise boat tied up at the dock of the West Point Plantation. Shortly thereafter, a tractor-trailer truck which also had been previously observed ³ arrived at the Plantation. The combination of the arrival of the tractor-trailer and the docking of the shrimp boat resulted in the Plantation being identified as the target area.

The Plantation was placed under tight surveillance. Kelly Goodowens, the DEA agent in charge, and Det. Starling, a Glynn County police officer, set up surveillance on a nearby dock. ⁴ Activities at the Plantation were observed by the officers through night goggles. ⁵ Other law enforcement officers were located along the only road into the Plantation, in the general area, and in boats on the waterways.

Through the night goggles the officers observed people carrying bundles which appeared to be marijuana ⁶ from the shrimp boat onto the Plantation property. The observation continued until approximately 2:35 a. m. Goodowens testified he planned to initiate the arrests as soon as the vehicle started to move from the scene. At approximately 2:35 a. m., Goodowens heard a vehicle start and saw its brake lights come on. He gave the signal for the arrests. When he and Det. Starling arrived at the yard of the Plantation, they observed no activity. After a few minutes several individuals came out of the house and began moving bundles from the rear of the tractor-trailer into the house. The remainder of the arrest team arrived and the arrests were initiated. ⁷

The visible marijuana was seized immediately and the house was secured. Goodowens then departed to obtain search warrants for the house, the vehicles and the hotel rooms occupied by the suspects. He arrived at the magistrate's house at approximately 4:30 or 5:00 a. m.; the search warrants were signed at 7:10 a. m. and executed later in the morning.

A four count indictment was returned against all defendants charging them with conspiracy to possess marijuana, aiding and abetting each other in the possession of marijuana with the intent to distribute, conspiracy to import marijuana, and aiding and abetting each other in the importation of marijuana. At trial, a directed verdict of acquittal was entered as to all defendants on the importation counts. John Raymond McConaghy was acquitted of both remaining counts, and Hugh Thomas McConaghy was acquitted of conspiracy to possess. All other defendants were convicted both of conspiracy to possess and aiding and abetting. All appeal their convictions. ⁸

Four issues are presented on appeal: (1) whether the grand and petit juries were legally constituted; (2) whether the motion to suppress should have been granted; (3) whether Hugh Thomas McConaghy was entitled to a severance; and (4) whether the evidence is sufficient to sustain the guilty verdicts.

II. Issues

A. Jury Challenges

Appellants raise constitutional and statutory challenges to the grand and petit jury selection systems being used in the Southern District of Georgia. We find these challenges to be without merit.

Under Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), in order to prove a prima facie violation of the fair cross-section requirement of the Sixth Amendment, the defendant must prove:

(1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

The claims raised here are essentially identical to those raised in United States v. Maskeny, 609 F.2d 183 (5th Cir. 1980), which also involved challenges to the jury system in the Southern District of Georgia. Like the Maskeny court, we need not decide whether each of the groups which the appellants assert have been excluded are "distinctive groups" because we find they have failed to show a constitutionally impermissible disparity between the group's representation in the jury system and its representation in the population. ⁹ None of the disparities urged by the appellants are as great as the 10% Disparity found not to present a case of purposeful discrimination in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). ¹⁰ Like the Maskeny court, we decline to abandon the absolute disparity method for dealing with jury challenges. 609 F.2d at 190.

As in Maskeny, appellants contend there are violations of the National Jury Selection and Service Act of 1968, 28 U.S.C. § 1861 Et seq. They argue the statute has been violated because: (1) a source of names in addition to voter registration lists was not used; (2) the one year district residency requirement is unconstitutional; (3) the ministerial exemption or its application violates the first amendment and the cross-section requirements; and (4) the clerk usurped the function of the district judge in excusing jurors in violation of the statute. All of these arguments were presented to the court in Maskeny and rejected. For the reasons fully discussed in Maskeny, 609 F.2d at 191-94, we hold there has been no statutory violation.

B. Motion to Suppress

The exact nature of appellants' contention is unclear. Apparently, they claim that the arresting officers acted without probable cause and that there were no exigent circumstances justifying the warrantless search, seizure of personalty and incidental arrests.

The problem with the appellants' contention is that they are viewing the occurrences analytically backwards. The arrests were not incident to the search but rather the search was incident to the arrests.

Exigent circumstances are not constitutionally required to make a warrantless arrest. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); United States v. Campbell, 575 F.2d 505 (5th Cir. 1978). Here, there is no question that probable cause existed when the arrests were made. Clearly, the facts and circumstances within the arresting officers' knowledge were sufficient to justify a reasonable person in the belief that an offense was being committed. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). The collective knowledge ¹¹ of the investigating officers was that: a group of people arrived in the Brunswick area using aliases and exploring the area at odd hours, learning the land and water routes to a residence in a secluded setting, and bringing in boats and a moving van suitable for a smuggling operation. The chain of events on Friday supplied the additional information needed to transform merely suspicious circumstances into probable cause to believe a crime was being committed: the gathering of boats and motor vehicles around a darkened house at night, the stationing of lookouts on the river, the blocking of the entrance road and the unloading of objects which resembled marijuana bales from a shrimp boat. Thus, the arrests were founded on probable cause and the lack of a warrant is irrelevant. ¹²

Once the police moved in to make the arrests, the seizure of marijuana was justifiable either as a search incident to a lawful arrest, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), or as a plain view seizure, Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Under either theory the denial of the motion to suppress was proper. Except for the "plain view" seizures made at the time of the arrests, all other searches and seizures were lawfully conducted pursuant to the search warrants subsequently obtained.

C. Hugh Thomas McConaghy's Motion for Severance

At the close of the Government's case, Hugh and John McConaghy moved for severance claiming they needed co-defendant William McConaghy to testify on their behalf. The motions were denied; John McConaghy was acquitted without the testimony.

In order to be...