U.S. v. Weber

• Decision Date: 28 December 1981
• Docket Number: Nos. 80-1533,s. 80-1533
• Parties: UNITED STATES of America, Appellee, v. Roland Wesley WEBER et al., Defendants, Appellants. to 80-1540.
• Court: U.S. Court of Appeals — First Circuit

Page 552

668 F.2d 552

UNITED STATES of America, Appellee, v. Roland Wesley WEBER et al., Defendants, Appellants.

Nos. 80-1533 to 80-1540.

United States Court of Appeals,

First Circuit.

Argued April 9, 1981.

Decided Sept. 30, 1981.

As Amended Oct. 5, 1981.

Rehearing Denied Dec. 28, 1981.

On Petitions for Rehearing

Philip A. DeMassa, San Diego, Cal., with whom Patricia S. O'Mara, San Diego, Cal., was on brief, for defendants, appellants.

Margaret D. McGaughey, Asst. U. S. Atty., Portland, Maine, with whom Thomas E. Delahanty, II, U. S. Atty., and James W. Brannigan, Jr., Asst. U. S. Atty., Portland, Maine, were on brief, for appellee.

Before COFFIN, Chief Judge, ALDRICH and BOWNES, Circuit Judges.

ALDRICH, Senior Circuit Judge.

Defendants Weber, Strimpel, Samsel, Mark Tice, Lewis, McDougal, Michael Tice, and Jackson were indicted, inter alia, for conspiracy to import, and to possess with intent to distribute, hashish in violation of 21 U.S.C. §§ 846 and 963. After commencement of a jury trial, defendants and government counsel entered into an agreement, approved by the court, to the following effect. Defendants would waive trial by jury and would submit to trial by the court upon certain agreed facts and the testimony and exhibits which defendants had unsuccessfully moved to suppress before trial, and would stipulate that the evidence was sufficient to charge every defendant, but reserving the right of appeal from the court's refusal to suppress. In return, the government agreed to dismiss the substantive counts, and to recommend certain sentences on the conspiracy count. Thereafter defendants were found guilty, and they appeal. ¹ No other errors are asserted. Because in two respects the motions to suppress should have been granted, we reverse, in part, as to four defendants, but otherwise affirm.

In connection with its action on the motions the court issued an extensive memorandum opinion, reciting the facts found as a result of an evidentiary hearing, together with its legal conclusions. Since this memorandum was not published, we will (a) summarize somewhat, but quote extensively therefrom; ² (b) note certain "facts" asserted by defendants, and their incorrectness; (c) summarize and supplement the district court's rulings, and (d) deal with the two items, a walkie-talkie and a chart, that, as to some defendants, should have been suppressed.

The Facts

The operative events occurred on and near Little Machias Bay, Maine, on December 12 and 13, 1978. ³ The bay, as shown on the Loran-lined edition to U.S. C. & G.S. chart No. 1201 in evidence ⁴ is in reality a cove, 5/8 mile wide. It faces south, viz., the ocean, is open and exposed, and is without wharves or other facilities. Lying centrally off the bay, in deep water, are two small islets, known as Black Ledges. Two and a half miles to the east is the town of Cutler, with an excellent anchorage, and twenty miles to the east is the Canadian border. Two miles to the west, but cut off from it by islands and a point of land, is Machias Bay and a Naval pier and twenty miles to the west is the U.S. Coast Guard station at Jonesport.

The easterly side of Little Machias Bay terminates at Dennison Point. The Point is sparsely housed, partly cleared and partly wooded. At the end of the road, and fronting on Bear Cove, a small inlet from the bay, are a large house and outbuildings known as Hill Cottage. Coastal Warden MacKeen resided 200 yards inland from the Cottage. Other persons resided further back.

The cast of characters begins, however, with Special Agent Cunniff, of the U.S. Drug Enforcement Administration, and Trooper Watkins, of the Maine Division of Special Investigations who worked in concert with him. During the late summer and fall these officers became interested in a Dodge Power Wagon 4 wheel drive pickup truck with a covered camper cap, and a Chevrolet K-5 Blazer, both Maine registered, but with undiscoverable owners. The handwriting on both sets of purchase documents appeared similar, and both vehicles were seen at times on the Hill Cottage property. The Cottage had been purchased the year before by one Melrose, whose only mailing address was a Boston answering service, and who had never been seen. The property was currently occupied by a Lou and Linda Walker, the former proving ultimately to be defendant Weber. Weber told neighbors that he was a Nebraska carpenter who had answered an advertisement to occupy as a caretaker, and was leaving shortly.

The above facts, together with many others properly found by the court, showed a classic example, shoreside, of a drug smuggling set-up, and the court so finding cannot be faulted. On December 12, 1978 the ocean activity commenced. The night was clear and calm, with a bright moon. At about 9 P.M. another coastal warden, Allen, called MacKeen's attention to

"a large black and white boat, later identified as the 135-foot seagoing tug Tusker of Panamanian registry, with its lights out, lying about a half mile off the point on the inland side of Black Ledge.... The boat's engines ran intermittently to maintain its position behind the ledge. While Allen continued to watch the boat, MacKeen returned to his house and notified the Coast Guard and the Maine State Police.

"(A)t 9:35 p.m. the Coast Guard station at Jonesport dispatched a 41-foot patrol boat under the command of Petty Officer Paul E. Laurent. Shortly thereafter, the 82-foot cutter Point Hannon was underway. By 10:33 p.m. the patrol boat had arrived in the area. Laurent had been instructed to remain out of sight behind an island, but by mistake he overshot the island and fell dead in the water at the mouth of Little Machias Bay. In that position the patrol boat was silhouetted against the sky and Laurent suspected that he had been seen in the bright moonlight. Laurent could see the Tusker without its lights on but could discern no details."

Shortly before this another coastal warden, Fetterman "had observed a small boat, later determined to be a Zodiac inflatable rubber boat with a 15-horsepower outboard motor, operating without lights, with two occupants, come out of Little Machias Bay around Dennison Point and proceed to the Tusker. About five minutes later Fetterman saw the Zodiac, still without lights and with two occupants, depart the Tusker and head directly into Bear Cove. As the Zodiac was approaching the cove, the Coast Guard patrol boat turned on its lights and started toward the Tusker. Fetterman, and Cunniff and MacKeen, who had arrived at the shore, saw the Zodiac change its course and head toward the wooded area to the east of Bear Cove. After proceeding about 100 yards, it stopped briefly and something was thrown overboard. ⁶ The Zodiac then moved into shore between two ledges, where the officers lost sight of it. They heard noises in the bushes which they took to be the occupants of the boat working their way through the underbrush. A few minutes later the Zodiac floated out from between the two ledges. 7

"Fetterman, Cunniff and MacKeen went to the spot where the Zodiac had landed. There they found two sets of tracks beginning at the snow line marking the reach of high tide. Alongside the tracks they found a canvas bag. Cunniff searched the bag, which contained, along with food and camping supplies, two sheets of yellow legal paper listing supplies and equipment and including the notations 'Mac' and 'blue p/u.' Cunniff returned to MacKeen's house. MacKeen and Fetterman set off to follow the tracks in the snow. After about 20 minutes at the end of the tracks, at a point where the underbrush impeded further progress, they found two men lying in sleeping bags. MacKeen and Fetterman arrested them for operating a boat without lights at night. See 12 Me.Rev.Stat.Ann. § 2074. The two men identified themselves as defendants Weber and Strimpel. MacKeen asked Weber if he was not 'Lou Walker,' but Weber insisted his name was Weber. The two men were searched, and a Zodiac air pressure gauge was found on Weber."

Strimpel and Weber were taken to Machias and formally arrested for violation of the federal narcotics laws.

"In the meantime, the boarding party from the Coast Guard patrol boat, led by Petty Officer Laurent, had boarded the Tusker at about 11:00 p. m. As they approached the vessel, the party had noted that she was flying a foreign flag. Only three persons were found aboard: defendant Samsel, who identified himself as the master, and defendants Mark Tice and Lewis. Samsel stated that they had been en route from Norfolk, Virginia, to Nova Scotia and had pulled into Little Machias Bay because of a bad winter storm and mechanical difficulties with the steering and electrical systems. He produced the vessel's Panamanian registration, which named 'Ocean Survey and Study, Ltd.' as the owner and gave a California telephone number. ⁹ The boarding party copied the information they wanted from the registration and the crew's seamen's papers. Laurent and another member of the boarding party, accompanied by Samsel, then searched the vessel for marijuana bales. None were found.... No arrests were made, no (physical) evidence was taken, and the vessel was not seized. Samsel, however, stated that the Tusker needed to get into a port for repairs, and at his request the Point Hannon, which had arrived at about 11:15 p. m., escorted the Tusker into the Cutler Naval Station, where both vessels tied up at the Navy pier.

"Early the next morning, at about 6:00 a.m., Cunniff, accompanied by Vittum, MacKeen and two coastguardsmen, went to the Cutler Naval Station. Cunniff boarded the Tusker and opened the hatch leading to the main cabin. Without entering, he asked if anyone was there. He was answered by Samsel, who said, 'Come on in' and led the officers to the mess hall. Cunniff identified himself and those with him and asked Samsel to get the other two crewmembers, which he did. When all three-Samsel, Mark Tice and Lewis-were assembled in the...