U.S. v. Zurosky, Nos. 79-1088

Citation614 F.2d 779
Decision Date07 September 1979
Docket NumberNos. 79-1088
Parties5 Fed. R. Evid. Serv. 725 UNITED STATES of America, Appellee, v. Walter V. ZUROSKY, Jr., Defendant-Appellant. UNITED STATES of America, Appellee, v. Edward S. BRAZAS, Defendant-Appellant. UNITED STATES of America, Appellee, v. Matthew SHAUGHNESSY, Defendant-Appellant. UNITED STATES of America, Appellee, v. Thomas G. SMITH, Defendant-Appellant. to 79-1091. . Heard
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Bernard L. Segal, San Francisco, Cal., for appellant Thomas Gary smith.

David Berman, Medford, Mass., for appellants Walter V. Zurosky, Jr., and Edward S. Brazas.

Ronald J. Chisholm, Boston, Mass., for appellant Matthew Shaughnessy.

Judd J. Carhart, Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, KUNZIG, Judge, U. S. Court of Claims, * BOWNES, Circuit Judge.

BOWNES, Circuit Judge.

This appeal is brought by defendants-appellants Walter V. Zurosky, Jr., Edward S. Brazas, Matthew Shaughnessy, and Thomas G. Smith who were convicted of possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841, and conspiracy to commit the same crime, in violation of 21 U.S.C. § 846. Appellants were indicted for conspiracy and the substantive crime on August 1, 1978. All four appellants filed pretrial motions to suppress certain evidence obtained in the course of their investigation and arrest. Appellants Zurosky and Brazas also moved to suppress statements which they gave to enforcement officials subsequent to the search and seizure of their vessel, THE SALTY DOG, and requested the return of their boat. The district court conducted a hearing on the motions to suppress from September 18 to September 22, 1978. The first four days of the hearing were directed primarily to the suppression of Brazas' and Zurosky's confessions as well as evidence found aboard THE SALTY DOG. On the fifth day, after Brazas and Zurosky rested, Smith and Shaughnessy proceeded. During the course of the five day hearing, the district court heard testimony from several police and Coast Guard officers and United States Customs and Drug Enforcement agents, as well as testimony from each of the four appellants. On November 28, 1978, the district court issued its memorandum and order, granting the motions of Zurosky and Brazas to suppress their statements but denying the other motions. On December 18, 1978, appellants Zurosky and Brazas waived jury trial and stipulated to the facts as presented by certain witnesses at the suppression hearing. The district court found each guilty. On the same day, Shaughnessy's case was tried before a jury which returned a verdict of guilty on December 19, 1978. Smith also waived his right to a jury and stipulated to the facts as presented at the suppression hearing. The district court found Smith guilty on December 20, 1978. Sentences were imposed on January 24, 1979, but were stayed pending appeal.

All four appellants appeal the district court's denial of their motions to suppress. Further, appellants contend that the district court erred in ruling that the government would be permitted to introduce at trial the testimony of Smith given during the suppression hearing. Smith had stated that he would not testify at trial and was ruled an unavailable witness pursuant to Fed.R.Evid. 804. Zurosky, Brazas, and Shaughnessy also argue that, if we conclude that Smith's testimony was inadmissible, there is not sufficient evidence in the record to sustain their convictions.

Smith additionally contends that in finding him guilty, the district court erred in relying on testimony of a police officer who did not testify against Smith during his portion of the suppression hearing.

The Facts

The events in this case occurred on Cape Cod and adjacent waters within a period of approximately five or six hours. In the early morning hours of July 24, 1978, Sandwich police officer Russell Files was patrolling the downtown and canal area of the town. Files had been with the police department nearly four years and had the midnight to eight a. m. shift. It took Files about thirty minutes to drive around his beat. Officer Files had driven by the canal area, which includes the Hyannis Seafood Company, a fish warehouse, four or five times that morning, spotlighting the warehouse as he drove by it. He testified at the suppression hearing that he did not notice anything unusual or suspicious in the area. He had observed one or two trucks parked near the warehouse and also had observed a fishing vessel, THE SALTY DOG, which was tied up behind the warehouse. The fish warehouse abuts the Cape Cod Canal and has a docking area so that boats can offload their cargo directly into the warehouse. He testified that it was not unusual to find activity in that area early in the morning and he did not observe anyone in THE SALTY DOG or in parked trucks. On the front of the warehouse are two garage-type overhead doors with four panes of glass running horizontally. To the right of the garage doors is a conventional windowless door with a set of steps leading up to it.

Shortly after four a. m., Files received word from headquarters that they had been receiving a number of telephone calls allegedly signalling trouble in other parts of town. These calls, in fact, proved to be false alarms or "wild goose chase calls" as Files called them. The police sergeant on duty that morning, Sergeant Swift, directed the patrol officers to check all of the business establishments in their sector, presumably on the theory that these phony calls were tactics meant to divert the attention of the police away from actual criminal activity.

Officer Files then checked some of the businesses in town and proceeded down to the canal area. He testified that the reason he bypassed some of the businesses in town and headed to the canal area was so that he could check "the most important buildings in town." Arriving at the Hyannis Seafood Company at approximately 4:25 a. m. Files once again aimed his spotlight at the warehouse; this time, he saw, through the garage door windows, a man standing in the building with a box balanced atop his head. When the man saw Officer Files, he dropped the box, moved quickly to the right, and shut off the light. Believing that there was a breaking and entering in progress, Files radioed the police station for assistance.

Within a short time, Officer Howell, Sergeant Swift, and Officer Foley arrived and Files told them what he had seen and what he suspected. Foley lifted up the unlocked garage door of the warehouse and Swift followed. Foley unlocked the regular door and Files entered. All had their guns drawn. Once inside the door, the officers had to climb over dark green or black plastic bags to make their search, as the room was nearly filled with them. Swift testified that, after playing his flashlight around the room, he noticed the door of a walk-in ice chest and opened it. Inside he found Smith and Shaughnessy. One was in a crouched position and the other was upright.

Both men were arrested, brought outside, and placed in separate cruisers. According to Smith's testimony, Officer Foley went through Smith's pocket and found a single key. Smith claimed that the key opened the front door of the warehouse, but this information went unheeded. Sergeant Swift instructed the officers to reenter the warehouse to look for other suspects. Files and Foley once again entered the warehouse, but this time they had their guns holstered. Just as Foley started to climb over some of the plastic bags which obstructed his way to the office area of the warehouse, both he and Files noticed a slit in one of the bags. Protruding from the bag was a leafy substance which appeared to the officers to be marijuana. Considerable excitement ensued when the police realized the enormity of their find. It was later determined that one hundred thirty-four bales of marijuana were in the warehouse. Quickly, the news of the discovery was passed to the Coast Guard, Customs, State Police, and DEA agents, who all converged on the warehouse.

Based on Officer Files' early morning observation that THE SALTY DOG was tied up at the dock of the Hyannis Seafood Company shortly before the marijuana was found, it was decided to send out a Coast Guard vessel to locate the boat and question its crew. By about 5:15 a. m., a Coast Guard vessel left the Sandwich marina basin, commanded by Senior Chief Petty Officer Dana K. Barrett. Aboard were a Coast Guard crew, Sandwich Police Chief Robert D. Whearty, Officers Foley and Howell, and Massachusetts State Trooper Russell Souza. About two miles northeast of the eastern entrance to the Cape Cod Canal, they stopped and boarded THE SALTY DOG. Zurosky was at the helm and with him in the pilothouse was his mate and co-owner of the vessel, Brazas. Chief Barrett testified that a routine check was made of the vessel, to see if it was in compliance with the law. Additionally, a search was made of the engine room, fish hold, lazaret, 1 and sleeping quarters to determine whether there were any others aboard; no one else was on the boat. Barrett testified that the whole boat, including the decks and hold, was very wet, even though there had been no rain that night and the seas were calm.

Souza gave appellants the Miranda warnings, informing them that they were suspects in a criminal investigation. He asked Zurosky where they were headed and Zurosky replied that they were on their way back to Sandwich from Provincetown. Both Zurosky and Brazas testified that Souza told them that their vessel was going to be searched and gave them the choice of having it searched at sea or back in Sandwich. They opted for a search in Sandwich. The police officers disputed this.

When they arrived in Sandwich, Richard Bruton of the Coast Guard boarded and conducted a search for...

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