630 F.2d 836 (1st Cir. 1980), 78-1361, United States v. Arra

Docket Nº:78-1361.
Citation:630 F.2d 836
Party Name:UNITED STATES of America, Appellee, v. Michael Joseph ARRA, Steven Scott Aschinger, and Overton Baker Pettit, Defendants, Appellants.
Case Date:August 21, 1980
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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630 F.2d 836 (1st Cir. 1980)

UNITED STATES of America, Appellee,

v.

Michael Joseph ARRA, Steven Scott Aschinger, and Overton

Baker Pettit, Defendants, Appellants.

No. 78-1361.

United States Court of Appeals, First Circuit

August 21, 1980

Argued April 9, 1980.

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Ralph Vallone, Jr., Hato Rey, P.R., for defendants, appellants, Michael Joseph Arra and Overton Baker Pettit.

Selig I. Goldin, Gainesville, Fla., with whom Goldin & Cates, Gainesville, Fla., was on brief, for defendant, appellant Steven Scott Aschinger.

Mervyn Hamburg, Atty., U. S. Dept. of Justice, Washington, D.C., with whom Raymond Acosta, U. S. Atty., San Juan, P.R., was on brief, for appellee.

Before CAMPBELL and BOWNES, Circuit Judges, and LOUGHLIN, [*] District Judge.

LEVIN H. CAMPBELL, Circuit Judge.

Co-defendant Keller and defendants-appellants Arra, Aschinger, and Pettit were convicted of conspiracy to import 13,303 pounds of marijuana into the United States, possession of said marijuana with intent to distribute it in the United States, and attempted importation of the marijuana in violation of 21 U.S.C. §§ 841(a)(1), 963. The marijuana was discovered by the Coast Guard during the course of an administrative document and safety inspection which took place on the high seas approximately 35 miles north of Punta Borinquen, Puerto Rico at 10:30 p. m. The alleged illegality of this search is one of defendants' contentions on appeal. They also argue that the district court had no jurisdiction over the offenses charged and that the government's destruction of certain evidence prejudiced their ability to defend.

I. BACKGROUND

At approximately 2:00 p. m. on January 5, 1978, a Coast Guard helicopter on routine patrol sighted a yacht, the Great Mystery, located 15 miles north of Arecibo, Puerto Rico, and traveling in a northwesterly direction. As the Great Mystery was on a list compiled weekly by the Coast Guard of vessels suspected of violating United States laws, the helicopter reported the sighting by radio to Lt. Rummel, controller duty officer, stationed at the Coast Guard operations and rescue coordination center in Old San Juan. Lt. Rummel in turn contacted the Coast Guard 7th District operations center in Miami. Miami informed Lt. Rummel that the Great Mystery was suspected of importing marijuana to the east coast of the United States or Florida and ordered that a cutter be dispatched to investigate and that covert helicopter surveillance be maintained until the cutter arrived. The Coast Guard cutter Point Warde, which a few hours earlier had put in to San Juan for minor repairs to her electronic gear, was promptly dispatched with a crew of eight at 2:30 p. m. The Point Warde's initial orders were to conduct a boarding upon meeting up with the Great Mystery. This order was rescinded when it was determined, through the computer in Miami, that the Great Mystery, which displayed Florida registration numbers on its side, was owned by a Grand

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Cayman corporation. While the Coast Guard does board vessels owned by foreign corporations if the vessel is of domestic registry, there was a possibility that the Great Mystery could also have been registered in Grand Cayman, in which case, Lt. Rummel stated the Coast Guard would have maintained surveillance rather than have conducted a boarding. 1 The Point Warde was instead directed to inquire of the Great Mystery its nationality, that is, its registry, as well as its last port of call and next port of call.

At approximately 10:05 p. m. the Point Warde hailed the Great Mystery by radio and requested the above information. 2 Three witnesses testified to the response, giving varying accounts. According to Lt. Rummel, who was monitoring the transmission, a person who was not the captain answered the hailing and responded that the Great Mystery was a United States vessel en route from Curacao to Florida; the captain then came on and said they were a United States vessel on a pleasure trip from Curacao to Fort Lauderdale, Florida and were carrying no cargo. According to Lt. Luppert, who commanded the Point Warde, the first response was "We are from America, we are American." The captain then, in answer to a question concerning the nationality of the vessel, stated "Americans from Florida" and indicated the next intended port of call would be Fort Everglades, Florida. The captain in responding, had also given the Great Mystery's radio call sign which began with either a W or a K indicating, according to Commander Luppert's testimony, that the Great Mystery was a United States vessel. In contrast to the government's testimony, defendant Pettit, who testified he answered the original hailing, stated the Coast Guard asked not the nationality of the vessel but the crew's citizenship and Capt. Keller informed them they were United States citizens, that they had originally left from Fort Everglades, that their last port of call had been Curacao, and that they were headed for Nassau.

Commander Luppert was able to observe the Florida registration numbers on the Great Mystery and also noticed there was no hailing port printed under the name "Great Mystery" on the stern. This absence was somewhat unusual in Commander Luppert's experience. The paint on the stern appeared fresher than that on the rest of the boat, and he concluded the hailing port had been recently painted over.

Miami was informed of the Great Mystery's response, and an administrative document and safety inspection was ordered. The sea was rough that night, delaying the dispatch of the small boat and making the boarding more difficult. A four-member armed boarding party was dispatched from the Point Warde, three of whom boarded the Great Mystery, while a fourth, armed with a rifle, remained in the small boat. One of the three boarders, Seaman Arce, carried a loaded shotgun, and the other two had handguns. Seaman Arce stood guard

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over the crew-defendants Arra, Aschinger, and Pettit-during the course of the document and safety inspection.

Petty Officer Johnson, the head of the boarding party, asked Capt. Keller for the vessel's papers and the crew for identification. Passports and a birth certificate were produced, and the captain exhibited a card evidencing the Great Mystery's Florida registration. With the registration and some additional data supplied by a Lloyd's registry volume, Petty Officer Johnson was able to fill in the vessel description and ownership information required by form CP-4100, the Coast Guard's standard boarding report. 3 Apparently satisfied with the vessel's documentation, Petty Officer Johnson then asked to see the safety equipment. When he entered a compartment via the forward hatch to check for an accumulation of oil-a procedure Petty Officer Johnson said he ordinarily followed in conducting administrative inspections-he observed that the compartment was half filled with dog food bags containing a green leafy substance. A sample was sent back to the Point Warde where it tested positive for marijuana. The captain and the crew were then arrested and given their Miranda warnings, and the vessel was seized.

The primary duties of the Point Warde are search and rescue and maritime law enforcement. In the latter capacity, according to government witnesses, routine administrative inspections had been frequently conducted on vessels in the waters around Puerto Rico. Lt. Luppert, commander of the Point Warde, described the standard inspection procedure as follows:

"We look for correct papers and documentation. We look for possible safety violations and we also check for firearms and check the cargo and make sure that the vessel is in compliance with its papers and if there are contraband substances."

The boarding party routinely carries weapons because, according to Commander Luppert, the Coast Guard has lately encountered a number of vessels, particularly in the waters around Puerto Rico and Florida, carrying contraband substances and protection is needed when dealing with a criminal element. Petty Officer Johnson testified, in the same vein, that arms were deployed because they were boarding a suspect vessel at night.

Petty Officer Johnson acknowledged that while the Point Warde would not have left San Juan on a special mission to check the Great Mystery had the latter not been on the suspect list, the administrative inspection conducted did not differ from that which routinely takes place on non-suspect vessels. Although Petty Officer Johnson had conducted approximately 100 inspections in the year and a half he had been stationed in Puerto Rico, he said the Great Mystery was the first suspect vessel he had encountered.

With this background, we turn to defendants various contentions.

II. JURISDICTION OVER THE OFFENSES

Defendants argue that because the alleged crimes were not committed within the special maritime and territorial jurisdiction of the United States as defined in 18 U.S.C. § 7, the district court had no jurisdiction. Section 7 of title 18 provides in part as follows:

"The term 'special maritime and territorial jurisdiction of the United States', as used in this title includes:

(1) The high seas, any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State, and any vessel belonging in whole or in part to the United States or

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any citizen thereof, or to any corporation created by or under the laws of the United States, or of any State, Territory, District, or possession thereof, when such vessel is within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State." (Emphasis added.)

Defendants argue that because the Great Mystery did not belong "in...

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