U.S. v. Villamonte-Marquez

• Decision Date: 03 August 1981
• Docket Number: No. 80-3633,VILLAMONTE-MARQUEZ and R,80-3633
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Reynaldoobert Sortgese Hamparian, Defendants-Appellants. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 481

652 F.2d 481

UNITED STATES of America, Plaintiff-Appellee, v. Jose Reynaldo VILLAMONTE-MARQUEZ and Robert Sortgese Hamparian, Defendants-Appellants.

No. 80-3633.

United States Court of Appeals, Fifth Circuit.

Unit A

Aug. 3, 1981.

Richard P. Ieyoub, Lake Charles, La., for defendants-appellants.

Franklin W. Dawkins, D. H. Perkins, Jr., Asst. U. S. Attys., Shreveport, La., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before SKELTON ^*, Senior Judge, and RUBIN and REAVLEY, Circuit Judges.

SKELTON, Senior Judge.

On March 12, 1980, the defendants, Jose Renaldo Villamonte-Marquez and Robert Sortgese Hamparian, were indicted on four counts involving approximately 5800 pounds of marijuana, a Schedule I Controlled Substance. They were charged in Count I with conspiracy to import marijuana in violation of 21 U.S.C. § 963, in Count II with unlawfully importing marijuana in violation of 21 U.S.C. § 952(a), in Count III with conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. § 846, and in Count IV with unlawful possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). The indictment to which both defendants pleaded not guilty, resulted from the search and seizure of the sailboat Henry Morgan II where the marijuana was found. Following a hearing, defendants' motion to suppress the marijuana was denied by the district court. The case went to trial and a jury convicted the defendants on all four counts of the indictment. Each defendant perfected an appeal to this court, the primary thrust of which is directed to the district court's denial of the suppression motion. For the reasons set out below, we reverse.

The facts are as follows. On the evening of March 5, 1980, Customs Patrol Officer Buddy Jack Harrison, stationed in Morgan City, Louisiana, received information from a reliable informant that there were two loads of marijuana on two separate vessels in the Hackberry-Cameron, Louisiana, area waiting for persons to offload the cargo, and that the operators of those vessels spoke a foreign language. The informant could neither describe the vessels nor give their exact locations. This information was given to Senior Customs Patrol Officer Loren Wilkins who, with Customs Patrol Officer Robert Thompson, began a road check of docks and marinas for boats that would not ordinarily be in the area. A water search was also conducted by officers of the Louisiana Department of Wildlife and Fisheries and by customs agents.

About midnight on March 5, or in the early hours of March 6, while on the intracoastal waterway, the officers conducting the water search observed a small aluminum boat, approximately eighteen feet in length, in the water, with no running lights showing, in violation of navigation laws. They noticed three five-gallon fuel cans in the rear of the boat, two of which contained diesel fuel, some new tarpaulins and a walkie-talkie radio. No fishing gear was observed aboard the boat, although the operator, whose driver's license identified him as John Lewis Dexter, stated that he was going to meet some friends below Hackberry to do some fishing. Later the officers observed Dexter travelling back and forth several times over the Ellender Bridge in a vehicle pulling an empty trailer. Dexter then proceeded under the bridge to load the boat, which he had left with the wildlife and customs officers while he went to get his vehicle and trailer. Prior to Dexter's arriving at the boat ramp to pick up his boat, the agents had checked his address as given to the wildlife agents and determined that no one with his name lived at the address given on his driver's license and that none of the cars present in the driveway at that address were registered to him.

Wilkins and other officers resumed their surveillance in a state police water patrol boat in the Calcasieu River Ship Channel, ¹ when at approximately 11:00 or 11:35 A.M. on March 6, 1980, they first observed the sailboat Henry Morgan II anchored facing east on the west side of the ship channel. At the time of initial observance the sailboat was approximately 18 miles inland from the coast. As they approached the anchored sailboat, they observed a large freighter vessel moving north in the ship channel toward the Port of Lake Charles, creating a huge wake that caused the sailboat to rock violently from side to side. The patrol boat approached the sailboat from the port side and passed behind its stern, where the words HENRY MORGAN II and a home port designated as Basilea were observed. At that point, Wilkins did not recognize Basilea as being a home port in the United States. As the officers were passing behind the stern of the sailboat, a man stood up on deck where the officers were able to see him. Agent Wilkins asked in a loud voice if he was all right. The man, later identified as defendant Robert Sortgese Hamparian, merely shrugged his shoulders and lifted his hands. Wilkins then repeated the question louder and got no response. There was a discussion by Wilkins with the officers on the boat, as he felt that the vessel was foreign since the man appeared not to understand English, and the home port was believed to be foreign.

Another individual, later identified as defendant Jose Renaldo Villamonte-Marquez, was seen looking out from the mid-cabin of the boat. Wilkins and Officer Danny Dougherty, a narcotics investigator for the Louisiana State Police, boarded the vessel to check documentation. Defendant Hamparian met the boarding officers and upon Wilkins' request to see the vessel's documentation, handed him a document, which appeared to be a request to change the registration of a ship from Swiss registry to French registry, written in French and dated February 6, 1980.

While talking to defendant Hamparian, Wilkins smelled the odor of burning marijuana and asked Officer Dougherty if he smelled it, too. After receiving Dougherty's affirmative response, Wilkins looked through an open door hatch and observed burlap-wrapped bales in plain view. Officer Wilkins entered the cabin and opened one of the bales, and, based on his prior experience as a customs officer and in law enforcement, he knew the bale contained marijuana. Defendant Villamonte-Marquez was at that time on a sleeping bag on top of the bales. Wilkins then arrested both defendants and gave them the Miranda warning in both English and Spanish, and they acknowledged that they understood. A total of approximately 5,800 pounds of marijuana was found in the forward, mid and aft cabins, and under seats in the open part of the vessel.

After the search and the arrests were made, it was discovered that the vessel was almost out of diesel fuel. More fuel had to be obtained prior to moving the sailboat to the dock. In addition, neither of the foreign passports presented to Wilkins by the defendants indicated that they had been admitted to the United States. The marijuana and documents taken from the vessel were placed in the custody of special agent Dick Gustafson of the United States Drug Enforcement Administration.

At the trial, the defendants moved to suppress the marijuana, alleging an unlawful search and seizure of the sailboat and of the marijuana. The motion was denied and the case was tried to a jury. Both defendant Hamparian and defendant Villamonte-Marquez were convicted on all counts and each properly perfected his appeal to this court.

On Appeal, the defendants argue four main points of error which they contend require the reversal of their convictions. First, the district court erred in denying defendants' motion to suppress the marijuana. Second, the district court erred in allowing the nautical map of the Gulf of Mexico into evidence over defendants' objections that no foundation had been laid to establish the map's accuracy and the government had failed to comply with the defense's motion for discovery in relation to the map. Third, the district court abused its discretion in permitting the introduction of a log and an act of sale taken from the Henry Morgan II without requiring the government to lay a proper foundation for authentication of the documents. Lastly, the district court abused its discretion in refusing to permit defendants' expert botanist to impeach the government's expert witness by testifying that there are three species of marijuana.

The primary issue is the constitutionality of the search and seizure of the Henry Morgan II and its cargo. By statute, customs officers have the authority to:

* * * go on board of any vessel or vehicle at any place in the United States or within the customs waters or, as he may be authorized, within a customs-enforcement area established under the Anti-Smuggling Act, or at any other authorized place, without as well as within his district, and examine the manifest and other documents and papers and examine, inspect, and search the vessel or vehicle and every part thereof and any person, trunk, package, or cargo on board, and to this end may hail and stop such vessel or vehicle, and use all necessary force to compel compliance. 19 U.S.C. § 1581(a).

The broad language of the statute, however, is circumscribed by the reasonableness requirement of the Fourth Amendment. ² United States v. D'Antignac, 628 F.2d 428, 432 (5 Cir. 1980); cert. denied, --- U.S. ----, 101 S.Ct. 1485, 67 L.Ed.2d 617 (1981); United States v. Serrano, 607 F.2d 1145, 1147 (5 Cir. 1979), cert. denied, 445 U.S. 965, 100 S.Ct. 1655, 64 L.Ed.2d 241 (1980); United States v. Freeman, 579 F.2d 942, 945 (5 Cir. 1978).

The constitutionality of the boarding of a vessel in inland waters by customs officers pursuant to 19 U.S.C. § 1581(a) has been the subject of numerous cases in this circuit, e. g., United States v. Guillen-Linares, 643 F.2d 1054 (5 Cir. 1981); United States v. D'Antignac, supra; United States v. Serrano, supra; United States v....