744 F.2d 360 (4th Cir. 1984), 82-5090, United States v. Manbeck

Docket Nº:82-5090 L to 82-5100 L.
Citation:744 F.2d 360
Party Name:UNITED STATES of America, Appellee, v. Thomas MANBECK, Appellant. UNITED STATES of America, Appellee, v. Kenneth HERRING, Appellant. UNITED STATES of America, Appellee, v. Mark Huiet SALE, Appellant. UNITED STATES of America, Appellee, v. Lorenz Josephus PRODEN, Appellant. UNITED STATES of America, Appellee, v. Kermit Theodore BROGDEN, Appellant. U
Case Date:September 11, 1984
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 360

744 F.2d 360 (4th Cir. 1984)

UNITED STATES of America, Appellee,

v.

Thomas MANBECK, Appellant.

UNITED STATES of America, Appellee,

v.

Kenneth HERRING, Appellant.

UNITED STATES of America, Appellee,

v.

Mark Huiet SALE, Appellant.

UNITED STATES of America, Appellee,

v.

Lorenz Josephus PRODEN, Appellant.

UNITED STATES of America, Appellee,

v.

Kermit Theodore BROGDEN, Appellant.

UNITED STATES of America, Appellee,

v.

John Wesley FLANNEL, Appellant.

UNITED STATES of America, Appellee,

v.

Gary GALLOPO, Appellant.

UNITED STATES of America, Appellee,

v.

John Benjamin BARTON, Jr., Jessie Lee Mallory, and Arthur

Duncan, Appellant.

UNITED STATES of America, Appellee,

v.

John O'HARE, Eddie Brantley, Thomas Earnest Folske, Thomas

Sams Hightower, Timothy Allen Laxton, Harrell

Lewis, Jr., and John Isidore Stevens, Appellant.

UNITED STATES of America, Appellee,

v.

Aaron Douglas STAETTER, John Michael Iyoob, James Anthony

Hastings, and Gregory Michael Scott, Appellant.

UNITED STATES of America, Appellee,

v.

David Martin SUMMERVILLE, Appellant.

Nos. 82-5090 L to 82-5100 L.

United States Court of Appeals, Fourth Circuit

September 11, 1984

Argued Dec. 6, 1983.

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Rhonda A. Brofman, Atlanta, Ga. (Mark J. Kadish, Kadish & Kadish, P.C., R. David Botts, Atlanta, Ga., on brief), Michael L. Pritzker, Chicago, Ill. (Marcia L. Smith, Chicago, Ill., on brief), Edwin Marger, Atlanta, Ga. (Donald B. Walker, Atlanta, Ga., on brief), Arthur Howe, Charleston, S.C. (Paul N. Uricchio, Jr., Uricchio, Howe & Krell, P.A., Charleston, S.C., Robert G. Fierer, Atlanta, Ga., on brief), for appellants.

Sara Criscitelli, Dept. of Justice, Washington, D.C. (Harry Dargan McMaster, U.S. Atty., Columbia, S.C., on brief), for appellee.

Before RUSSELL and PHILLIPS, Circuit Judges, and HOFFMAN, [*] Senior District Judge.

WALTER E. HOFFMAN, Senior District Judge:

Defendants appeal from a guilty finding at a stipulated facts trial on a multiple count indictment alleging various drug related charges. The twenty-two appellants were convicted of conspiracy to import marijuana in violation of 21 U.S.C. Sec. 963 (Count One), conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. Sec. 846 (Count Two), and importation of marijuana in violation of 18 U.S.C. Sec. 2, 21 U.S.C. Secs. 952(a) and 960 (Count Three). In addition to the three counts above, appellant Gary Gallopo was convicted of a fourth count, possession with intent to distribute marijuana in violation of 18 U.S.C. Sec. 2 and 21 U.S.C. Sec. 841(a)(1) (Count Four).

Charges were originally brought against twenty-six defendants for a drug smuggling operation that occurred in November 1980. Three of the defendants pleaded guilty, and a fourth defendant, Robert John Manbeck, remained a fugitive throughout the trial. An extensive suppression hearing was completed on April 1, 1981. At that time all the remaining defendants, with the exception of Gallopo, waived their right to a trial by jury and submitted to a bench trial. The government and the defendants agreed to a stipulation adopting the record of the suppression hearing as the record of the case, subject to any objections filed. Gallopo stipulated to only part of the record, and his case followed the others. The court found all defendants guilty of all charges.

Though the case below was a stipulated facts trial, the parties offer divergent renditions of the facts. Fortunately, the trial court rendered a lengthy narrative of the facts which we find to be a substantially complete representation of what was stipulated. The facts stated here will be a slightly condensed version of those described by the court. See United States v. Manbeck, 526 F.Supp. 1091, 1096-1100 (D.S.C.1981).

At approximately 8:45 p.m. on November 26, 1980, Deputy Harold Canady of the Colleton County Sheriff's Department received a telephone call from his office advising him that an unidentified person had called the local fire department and stated that a truck was being loaded with marijuana at Bennett's Point, South Carolina. Canady and two other officers, Deputy Allen Beach and Deputy Earl Fowler, proceeded to Bennett's Point. All three arrived at approximately 9:30 p.m., Canady and Beach in one car and Fowler in another. Canady

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and Beach proceeded on to the landing, while Fowler checked some vehicles parked on the road leading to the landing.

At the landing, Officers Canady and Beach first observed a tractor-trailer backed up between a shrimp house and the dock. Canady recorded the number of the Georgia license plate on the tractor-trailer. The two officers then observed a white "U-Haul type" truck parked in the parking lot next to the landing, and recorded its Georgia license plate. A brown "econoline-type" truck with Georgia license plates was also observed at the scene, parked facing the tractor-trailer behind the shrimp house. In addition, the officers observed a shrimp boat named the "Hazel B" docked at the south dock. No individuals were observed in the area at this time.

After notifying Colleton County Sheriff John Siegler of their observations, Officers Canady and Beach proceeded to check out another known drug smuggling site referred to as the "Wiggins area." Officer Fowler remained to maintain a surveillance point on Bennett's Point Road at the entrance to the landing. Finding nothing unusual at the Wiggins area, the two officers went to a location known as the "Brickyard Bridge" which was on the only road that runs from U.S. Highway 17 to Bennett's Point. Upon arriving at Brickyard Bridge, Officers Canady and Beach received a radio call from Officer Fowler advising that the tractor-trailer had departed Bennett's Point landing. Officer Seigler radioed Officers Canady and Beach and directed them to stop the tractor-trailer at the intersection of Bennett's Point Road and U.S. Highway 17.

Officers Canady and Beach proceeded down the road about one mile ahead of the tractor-trailer, while Officer Fowler followed the vehicle from behind. At the designated intersection, Officer Canady positioned his patrol car to block the road. When the tractor-trailer--a Peterbilt tractor with the name "Polar Transportation" on its door--arrived, Officer Canady went to the driver's side and asked the driver, defendant Kenneth Brogden, to step out of the vehicle. Brogden stepped out and, on request, produced his driver's license and registration. He also provided Officer Canady with a bill of lading which indicated that the tractor-trailer was carrying a load of lard from a Charleston business named "Central Soya." While the officers ran a check, Brogden was placed in the patrol car because the weather that evening was cold and rainy. Officer Canady then radioed Sheriff Seigler and provided him with an up-dated report of the situation and gave him the information from the bill of lading. Meanwhile, Officers Canady and Beach elicited from Brogden that he was at Bennett's Point visiting a friend. When asked where he was keeping his tractor-trailer truck parked, Brogden's response conflicted with what the officers had previously observed at Bennett's Point. When asked about when he had left Charleston Brogden responded that he had left two days before but had become ill and stayed in a motel room for some time before proceeding to Bennett's Point. Sheriff Seigler subsequently radioed officers Canady and Beach and informed them that he could not locate any company in Charleston with the name shown on the bill of lading provided by the driver.

Sometime soon thereafter, Officer Fowler, who had arrived at the scene, told Officers Canady and Beach to get out of the patrol car and come to the back of the trailer. Upon approaching the rear of the trailer, the officers smelled an extremely strong odor of what they believed to be marijuana coming from the back of the trailer. Brogden was then placed under arrest for possession of marijuana and searched and handcuffed.

While the Peterbilt tractor and trailer were being removed from the scene, Officer Canady spotted a second tractor-trailer coming from Bennett's Point. As it approached, Canady observed that it was a Ford tractor-trailer that bore Georgia license plates and, like the Peterbilt, carried the name "Polar Transportation" on its door. The tractor-trailer stopped and, as before, the odor of marijuana was detected

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coming from the trailer. Deputy Fowler immediately placed the driver of this second tractor-trailer, Donald Bohanon, under arrest.

Officers Canady, Beach, and Fowler, and others on the scene, then proceeded to organize a convoy to move the seized vehicles and contraband to Walterboro. As the convoy proceeded toward Walterboro, Officer Robinson, who had remained at the scene of the arrest with Bohanon radioed the convoy and told them to stop moving because Bohanon had informed Officer Robinson of the presence of a third tractor-trailer at Bennett's Point landing. When Officers Canady and Beach turned around to head back to the landing area, they saw the two vehicles previously observed at the landing, the white "U-Haul" type truck and the brown van, stalled in traffic behind the tractor-trailer. Both vehicles were stopped by the officers. Officer Beach approached the white truck and asked the driver, David Summerville, who was the sole occupant of the truck, to step out and show his driver's license. As Summerville handed over his license...

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