U.S. v. Bain, 82-6008

Decision Date24 July 1984
Docket NumberNo. 82-6008,82-6008
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Anthony BAIN, Nelson Davis, Defendants-Appellants.
CourtU.S. Court of Appeals — Eleventh Circuit

Kenneth E. Cohen, Glenn Feldman, Asst. Federal Public Defenders, Miami, Fla., for Bain.

John D. O'Donnell, Panza & O'Donnell, Fort Lauderdale, Fla., for Davis.

Linda Collins Hertz, David O. Leiwant, Asst. U.S. Attys., Stanley Marcus, U.S. Atty., Miami, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before TJOFLAT and CLARK, Circuit Judges, and GOLDBERG *, Senior Circuit Judge.

GOLDBERG, Senior Circuit Judge:

This is a criminal case involving the importation of methaqualone tablets (quaaludes) aboard a fishing vessel. Two crewmen challenge their convictions on the grounds that the evidence was insufficient. One of the defendants also argues that evidence of the pills should have been suppressed as the fruit of an illegal search. Finally, he argues that the judge should have granted a mistrial because a government witness made a prejudicial remark. We reject all three arguments and affirm the convictions.

FACTS

On the evening of May 19, 1982, the Princess Dean II, a 53-foot lobster vessel, lay docked at the Miamarina in Miami, Florida. On board were Marcus Dean (the captain), his wife Maralyn, Tony Bain, and Nelson Davis. Bain and Davis were crewmen.

In the early evening, a supervisor at Customs Patrol headquarters in Miami received a telephone call from a confidential informant reporting suspicious activity aboard the Princess Dean II. The supervisor dispatched Customs Patrol Officers Leslie Leon and Joseph Alaimo to investigate. They arrived at the marina and found the vessel in the general area described by the informant. The officers approached the vessel and knocked on its side. Receiving no response, they moved to the cabin door and knocked again.

A man wearing only underwear and later identified as Tony Bain opened the door. The officers identified themselves and asked if Bain was the captain of the ship. He responded that he was not, but that the captain was below deck. The officers then requested Bain to bring the captain forward. They waited outside the door until Marcus Dean appeared. The officers again identified themselves, and the captain invited them inside. He told them that the The officers asked Dean for the ship's customs documents. He replied that they were not on board; the ship's agent had all of the papers. 1 The officers informed him that the law required him to have the documents present. Moreover, they could not verify his account immediately because the Customs Clearance Office was closed for the evening.

vessel had arrived in Miami earlier that morning carrying fish from the Bahamas. He also said that he, his wife and his crewmen were Bahamian.

The officers thought that the circumstances were suspicious. They thought it was strange for the captain not to have customs documents on board. In addition, the cabin was unusually plush for a commercial fishing boat. It was furnished like a pleasure yacht.

The officers asked Bain to go below deck and bring Mrs. Dean and Nelson Davis back up to the cabin. Bain went below, but he did not return for four to five minutes. Nor did Davis or Mrs. Dean come above deck. From a vantage point in the main cabin, Officer Leon could look down the stairway and follow Bain's movements. Bain moved back and forth between the same cabins several times. Leon became concerned that the crewmen were collecting weapons or destroying evidence. Leon went below deck to investigate.

He met Nelson Davis in the hallway and asked him to go above deck. Leon then went into the master bedroom. There he found Tony Bain. Leon asked Bain to dress and go upstairs. Bain complied and went into a small bedroom next to the master bedroom in order to dress.

Leon also found Maralyn Dean in the master bedroom. He identified himself and asked her to go upstairs. She immediately turned around, went over to a night stand, picked up a small case, and put it inside her purse. She appeared nervous as she left to go above deck.

Leon followed her upstairs and reported what he had seen to Officer Alaimo. Leon mentioned Mrs. Dean's nervousness and her suspicious actions with the purse. He asked Officer Alaimo to check the hidden case. Leon then went back downstairs to the small bedroom where Bain was putting on a pair of pants. Leon opened a cabinet and discovered what appeared to be marijuana residue.

Meanwhile, Alaimo remained in the main cabin above deck. He asked to see Mrs. Dean's purse. She removed the small case before handing him the purse. Alaimo then asked to see the case. Inside was a plastic bag containing 42 tablets which he believed to be quaaludes. 2

When Officer Leon came back above deck, Alaimo told him about the pills. Leon, in turn, said that he had found marijuana residue in the cabin where Bain was dressing. Based on these discoveries, the officers detained all four defendants and read them their Miranda rights. Leon then called his supervisor and requested his presence on the Princess Dean II. Leon remained in the galley with the defendants while Officer Alaimo searched the vessel.

Alaimo opened an anchor rope locker in the cabin where Bain had dressed. Hidden under a rope were nine plastic bags containing 44,500 quaaludes (about 57 pounds). The locker was within arm's reach of the bunks of Bain and Davis. 3 An anchor rope could be pulled out the top of the locker through a hole in the deck; but the main door to the locker opened into Bain and Nelson's cabin. There was no lock on the door; and Officer Alaimo had free access to the quaaludes.

It had taken Alaimo only ten minutes to find the pills. He returned to the galley to As the evening air was becoming cooler, the officers permitted the defendants to change into warmer clothing. Officer Alaimo escorted Nelson Davis to the crewmen's cabin. Alaimo asked Davis if there were any more contraband on board the vessel. Davis replied: "You don't have to break any flooring or anything like that. You don't have to destroy the vessel in your search." 4

tell his partner about the find. Their supervisor had also come aboard the vessel by then. All defendants were placed under arrest.

In a further search of the vessel, Alaimo discovered a black address book in the cabin where Bain and Davis slept and dressed. The inside front cover of the book bore the name and address of Marcus Dean. Two facing pages in the book contained several notations. On one side were the names "Nelson," "Mike," and "Tony," each name followed by several dollar amounts. On the opposite page was a chart with the notation "30,000 Ludes." The word "Ludes" was partially scratched out. Below that appeared the notation "60 short Kept 40 for sample." The next entry read "Sold 900 [at] 55cents [=] $495.00"; and the final line read "174 lbs [at] 165.00 [=] 28,710.00. 5

After the second search, appellants Bain and Davis, along with Marcus and Maralyn Dean, were transported to the Customs Office. The Princess Dean II was taken to Customs headquarters and thoroughly searched by Customs officers. They found two more bags of quaaludes under the bed in the Deans' master bedroom. The bags contained an additional 25,280 tablets (about 42 pounds).

Subsequent investigations revealed that the ship's agent, Denise Zitz, along with three government officials, 6 had boarded the Princess Dean II to fill out customs forms on the morning of May 19, 1982, the day that the appellants were arrested. The visit by Zitz came several hours before Officers Alaimo and Leon boarded the vessel, but the officers did not know about the earlier inspection. Although the customs documents were not on board ship when Alaimo and Leon arrived, Zitz had copies. The documents showed that the Princess Dean II was a Bahamian vessel, that Marcus Dean was the master, and that Tony Bain and Nelson Davis were crewmembers. The documents listed Maralyn Cartwright [Dean] and Michael Roberts as passengers. Roberts had left the vessel by the time Officers Alaimo and Leon arrived.

Mr. and Mrs. Dean, Tony Bain, and Nelson Davis were indicted in the United States District Court for the Southern District of Florida. The indictment against each defendant contained two counts: (1) conspiracy to possess with intent to distribute methaqualone, a Schedule II controlled substance, in violation of 21 U.S.C. Sec. 955c; and (2) possession with intent to distribute methaqualone, in violation of 21 U.S.C. Sec. 955a(c) and 18 U.S.C. Sec. 2. Michael Roberts was not indicted, apparently because he had escaped to the Bahamas, outside the jurisdiction of the United States. 7

The defendants were tried together before a jury; all four defendants were found guilty on all counts. Marcus and Maralyn Dean did not appear for sentencing and are presently fugitives. Tony Bain and Nelson Davis were each sentenced to concurrent terms of imprisonment for two years. They subsequently brought this appeal.

DISCUSSION
I. Sufficiency of the Evidence

Bain and Davis take the position that the evidence was insufficient to support their In reviewing the sufficiency of evidence to support a guilty verdict, we must view the evidence in the light most favorable to the government. Hamling v. United States, 418 U.S. 87, 121, 124, 94 S.Ct. 2887, 2909, 2911, 41 L.Ed.2d 590 (1974). Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). All reasonable inferences must be drawn in favor of supporting the verdict. United States v. Ceballos, 706 F.2d 1198, 1202 (11th Cir.1983).

convictions for conspiracy and possession. They claim that they were innocent crewmen on board the Princess Dean II. They believed that the vessel was merely carrying conch and other fish to the United States. They had no reason to go into the rope locker because the...

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