U.S. v. Laughman

• Decision Date: 11 April 1980
• Docket Number: No. 78-5153,78-5153
• Citation: 618 F.2d 1067
• Parties: UNITED STATES of America, Appellee, v. Ronald Bryce LAUGHMAN, Thomas E. Niehaus, Mitchell Dale Anglin, Daniel N. Donnelly, Waldamar Ebert, Larry Kim Michael Coffey, James Edward Marchant, Kenneth David Jester, and Richard Steve Carr, Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1067

618 F.2d 1067

UNITED STATES of America, Appellee, v. Ronald Bryce LAUGHMAN, Thomas E. Niehaus, Mitchell Dale

Anglin, Daniel N. Donnelly, Waldamar Ebert, Larry Kim

Michael Coffey, James Edward Marchant, Kenneth David Jester,

and Richard Steve Carr, Appellants.

No. 78-5153.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 6, 1979.

Decided April 11, 1980.

Henry E. Sheldon, Cincinnati, Ohio, William C. Oldfield (James L. Cobb, W. Robert Lotz, Jr., Covington, Ky., on brief), for appellants.

Lionel S. Lofton, Asst. U. S. Atty., Charleston, S. C. (Thomas E. Lydon, Jr., U. S. Atty., Columbia, S. C., on brief), for appellee.

Before BUTZNER and PHILLIPS, Circuit Judges, and HOFFMAN ^*, District Judge.

WALTER E. HOFFMAN, District Judge:

The appellants were charged under an indictment alleging one count of conspiracy to possess marijuana with intent to distribute, in violation of 21 U.S.C. § 846, and one count of possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The matter went to trial before the court, without a jury, on February 21 and 22, 1978. Each of the appellants was convicted of both counts.

The pertinent facts are as follows: On the morning of July 26, 1977, Customs Patrol Officer McDonald received information about suspicious activities at the Buck Hall Campground located north of Charleston, South Carolina. Acting on this information, McDonald took his car and proceeded north on Highway 17 towards Buck Hall Campground. Along the way he encountered two pickup truck-campers bearing out-of-state license plates, one an orange Chevy and the other a brown Ford pulling a boat. ¹ By 10:45 the same morning, surveillance was established at the Ramada Inn, North Charleston, where both campers had parked. A blue Chevy camper bearing Ohio license plates, apparently being driven by the same individual who had been driving the brown Ford, was also observed.

During the day various people, including appellants Donnelly and Jester, were seen working on the boat attached to the brown Ford. Appellants Ebert, Laughman, Anglin and Carr were observed coming and checking with the men at the boat.

At approximately 6:30 p. m. the brown Ford with the boat departed the Ramada Inn and proceeded north on Highway 17 towards Buck Hall. At approximately 7:15 p. m. the brown Ford entered the Buck Hall Campground. (Buck Hall Campground is about three-quarters of a mile off Highway 17. The campground is adjacent to the intracoastal waterway). There is a concrete boat ramp at the Buck Hall landing, and the brown Ford was observed backing the boat into the water, although it was not actually launched.

At approximately 7:55 p. m. a yellow pickup truck-camper with Kentucky tags came out of the campground and turned north on Highway 17. South Carolina State Law Enforcement Division (SLED) agents reported that the yellow pickup went to the area of McClellanville (located on the intracoastal waterway about seven miles north of Buck Hall) where it parked on a hill and appeared to use a C.B. radio. After about 30 minutes, the yellow camper returned to the campground.

McDonald, at approximately 10:15 p. m., entered the campground and set up an observation post on private property located about 200 yards from the boat ramp. He received word that the orange and blue campers had left the Ramada Inn, heading towards Buck Hall. From about 10:30 until midnight, the brown, orange and blue campers moved back and forth between Buck Hall and an area located about four miles further south on the intracoastal waterway. Eventually, the campers assembled at Buck Hall Campground.

During the evening of July 26th and the morning of July 27th, McDonald maintained radio contact with various other Customs, SLED and Drug Enforcement Administration (DEA) agents in the area. The evening was very dark and rainy. At about midnight McDonald and other officers heard an outboard motor. They were able to discern a rather large Zodiac type rubber boat moving south along the waterway. The boat contained two individuals and a "mound of indistinguishable cargo." The boat proceeded south until it was out of sight.

About an hour later, the officers observed a sailing vessel of the "Columbia type" moving south on the waterway. The sailboat was moving "very quietly" and without running lights. Two Zodiac rubber boats (the same types as observed earlier) were tied alongside the sailboat.

The sailboat proceeded south past McDonald and appeared to drop anchor. There was a lot of activity on and around the sailboat. According to McDonald a barge or tug boat appeared in the waterway to the south prompting the sailboat and the rubber boats to turn and head north. McDonald observed three of the rubber boats, all containing large mounds of indistinguishable cargo.

McDonald then observed the rubber boats going ashore in the area of the boat ramp at Buck Hall. Shortly thereafter, the rubber boats reappeared, no longer containing any cargo. At about the same time the engines of several trucks started up and the vehicles departed the campground. McDonald advised the other units that the campers were leaving and to follow closely.

When the campers departed, McDonald ordered two officers, who were heading north on the waterway in a DEA boat, to continue north and board the sailboat. McDonald had intended that the DEA boat pick up himself and another officer prior to boarding the sailboat; however, when he observed that one camper was still at the boat ramp, he decided that he should investigate the camper. Accordingly, he advised the DEA boat to proceed without him.

McDonald went to the boat ramp, where he found the brown camper along with two individuals, Ebert and Anglin. Ebert was in the cab of the camper and Anglin was next to the boat ramp. Two of the rubber boats had been pulled up on the boat ramp and McDonald observed a large amount of what appeared to be marijuana residue in the boats and on the ramp. Upon discovering the marijuana residue, McDonald notified the other units by radio that the boats did, in fact, contain marijuana. McDonald testified that he advised the officers in the DEA boat of his discovery prior to their boarding of the sailboat (although the officers on the boat did not recall receiving such a message prior to boarding).

McDonald arrested Ebert and Anglin. Found in Ebert's possession at the time of his arrest was identification for appellant Laughman. Marijuana residue was subsequently discovered in the brown camper.

Acting on McDonald's instructions, Customs Patrol Officers Bell and Garcia boarded the sailing vessel ABRAXIS in the intracoastal waterway. Marijuana residue was found on board, along with appellants Niehaus, Marchant and Coffey. Two of the large rubber boats were tied alongside the vessel.

The campers that had departed the campground (between 2:30 and 3:00 a. m. on the 27th) were followed by units positioned near the entrance to the campground. The blue Chevy camper was followed south on Highway 17 to the parking lot of the Knights Inn, which is located across from the Ramada Inn in North Charleston. Appellant Donnelly was observed parking the blue camper. Later, pursuant to a valid search warrant, the blue camper was entered and found to contain in excess of 3000 pounds of marijuana.

The orange and yellow campers departed Buck Hall Campground together shortly after the blue camper. The two campers proceeded south on Highway 17 followed by Customs Patrol Officers and SLED agents. After hearing McDonald announce that he had discovered marijuana residue, the officers stopped both campers. The orange pickup contained the appellants Carr and Jester, as well as over 1100 pounds of marijuana.

The yellow camper was driven by appellant Laughman. At trial, SLED Agent Caldwell testified that the rear of the yellow camper contained one of the rubber boats, partially deflated, along with some marijuana residue. Later in the trial it was established that what Agent Caldwell had observed in the rear of the yellow camper was not a boat, but rather was one or more covers for the Zodiac type rubber boats. Agent Caldwell also testified that although he found marijuana residue, he took no samples; at trial no marijuana samples were introduced from the yellow camper.

Appellants challenge the district court's actions on several grounds. First, they argue that the warrantless search of the sailing vessel ABRAXIS was unlawful and that the court erred in admitting evidence obtained from the vessel. Next, they challenge the admissibility of evidence obtained by a warrantless search of luggage found inside the brown pickup truck-camper. The appellants also contend that the court erred in refusing to direct a verdict of acquittal at the close of the government's case because the evidence was insufficient to support convictions on either of the charges alleged in the indictment. Finally, appellant Laughman contends that perjured testimony served as the basis for his conviction.

I.

The appellants maintain that the boarding of the sailing vessel ABRAXIS in the intracoastal waterway was unlawful in that the boarding officers lacked sufficient probable cause to believe that the vessel contained contraband or had been engaged in the illegal transportation of contraband. ² Officers have probable cause to search whenever "the facts and circumstances within their knowledge, and of which they had reasonably trustworthy information were sufficient in themselves to warrant a man of reasonable caution in the belief that (contraband) . . . was being transported in the (vehicle) . . . which they stopped and searched." Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925); see Brinegar v. United States, 338 U.S. 160, 171, 69 S.Ct. 1302, 1308, 93 L.Ed. 1879 (1949); see also Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (probable cause to make an arrest).

As a...