750 F.2d 307 (5th Cir. 1984), 83-4550, United States v. Webster

Docket Nº:83-4550.
Citation:750 F.2d 307
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jimmy Dewitt WEBSTER, Sr., Candido Daniel Santiago, Barry Weinreich, Joe Buhajla, Arthur Byron Murphy, and Clarence Royalston, Defendants-Appellants.
Case Date:December 26, 1984
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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750 F.2d 307 (5th Cir. 1984)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jimmy Dewitt WEBSTER, Sr., Candido Daniel Santiago, Barry

Weinreich, Joe Buhajla, Arthur Byron Murphy, and

Clarence Royalston, Defendants-Appellants.

No. 83-4550.

United States Court of Appeals, Fifth Circuit

December 26, 1984

Rehearing Denied Jan. 28, 1985.

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Jack R. Jones, III (Court-Appointed), Southhaven, Miss., for Webster.

Vincent J. Flynn, Milton E. Grusmark, Miami, Fla., for Santiago.

Ronald W. Lewis, Oxford, Miss., for Weinreich.

Stephen Nick (Court-Appointed), Greenville, Miss., for Buhajla.

J. Murray Akers (Court-Appointed), Greenville, Miss., for Murphy.

Robert B. McDuff (Court-Appointed), University of MS Law Center, University, Miss., for Royalston.

Glenn H. Davidson, John R. Hailman, Asst. U.S. Atty., Oxford, Miss., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Mississippi.

Before WISDOM, RANDALL and JOLLY, Circuit Judges.

RANDALL, Circuit Judge:

A jury convicted appellants of various offenses arising out of an abortive scheme to import a large quantity of marijuana into the United States from Mexico. All six of them complain that the trial court mishandled an incident of jury misconduct that occurred late in the trial, during a break between closing arguments. Each appellant has also raised grounds for reversal unique to his own conviction. For the reasons set forth below, we affirm the convictions of all appellants except Clarence Royalston. Royalston's conviction is reversed because some of the evidence used to convict him was the product of an illegal arrest.

I. FACTUAL BACKGROUND. 1

The alleged drug conspiracy in this case began in February of 1983 when appellants Arthur Byron Murphy, Jimmy Dewitt Webster, and Candido Santiago stole an airplane in Florida and transported it to a remote Arkansas airstrip located on appellant Joe Buhajla's property. Agents of the Drug Enforcement Administration (DEA) learned that the plane might be used for drug trafficking and, pursuant to a court order, installed a transponder in the plane. Early on February 11, 1983, Murphy, the pilot, and passenger Gary Wells flew the stolen plane from Buhajla's airstrip to a spot near Acapulco, Mexico. They picked up a large quantity of marijuana there and began the return flight to the United States. Early that evening, the transponder signal was detected, and the plane was tracked to an area near Indianola, Mississippi.

Investigators informed local police officers and state and federal drug enforcement agents of the plane's activities and dispatched them to the Indianola airport. Murphy landed the plane at Indianola but was soon informed by a radio call from Webster, who was awaiting the plane's arrival, that police were in the vicinity. Murphy and Wells immediately took off again and flew to a prearranged, alternative landing site at Greenville, Mississippi. They abandoned the plane and marijuana at the city airport there and took a taxi into town. Murphy and Wells were both arrested in Greenville later that evening.

Meanwhile, back in Indianola, police arrived at the airstrip just in time to see the plane take off. Appellants Santiago, Clarence Royalston and Barry Weinrich (along with Mike Hartwell and Billy Freeman, who are not parties to this appeal) had also been awaiting the plane's arrival. Weinrich, Hartwell and Royalston had stationed a U-Haul truck near the runway; Santiago and Freeman positioned themselves near the airport entrance in a green Chevrolet and a camper, respectively. When police

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approached, Royalston, Weinrich and Hartwell fled into the surrounding woods, but Santiago and Freeman stayed with their vehicles. Officers searched the U-Haul and discovered a pistol, an electric shock gun, a suitcase bearing Royalston's name tag, and a rental contract indicating that Royalston had leased the truck earlier that day in Memphis, Tennessee.

After a lengthy search of the area for suspects, officers returned to the green car and found Santiago hiding in the backseat. They arrested Santiago and discovered in the car a CB radio, a speeding ticket issued that day to Hartwell, and a rental agreement reflecting that Royalston had also rented the Chevrolet in Memphis earlier the same day.

At the Indianola jail, officers discovered in Santiago's possession a document indicating that Greenville had been chosen as an alternative landing site in the event of trouble at Indianola. They discovered the plane and marijuana there a short time later. Santiago also possessed a key to room 224 of a hotel that he identified as the Days Inn in Memphis, Tennessee. The room was registered to Weinrich, whom Santiago described as his partner. Based on this information, the room was placed under surveillance the next morning.

Early the next morning, Indianola police officer Keith Fullilove spotted an unidentified man (who, it turns out, was Royalston) on a roadside near the airport. Royalston, who apparently spent the night in the woods, was cold and wet and in need of a hot cup of coffee. Before Fullilove confronted Royalston, he received a radio call instructing him to bring the man in for questioning. Without discovering the man's identity, Fullilove ordered Royalston into the car and transported him to the Sunflower County Sheriff's Office. Royalston made an initial statement to investigators there that morning and, after a two-hour car ride to Oxford, Mississippi, made a second statement later that evening.

Meanwhile, surveillance of room 224 continued but a search warrant was not obtained. About 10:00 a.m., Webster knocked on the door but left when no one answered. Officers continued their surveillance and investigation until about 4:40 p.m. when Weinrich and Hartwell were let into the room by the hotel manager. Officers then verified Weinrich's identity with the manager and, a short time later, entered and "secured" the room: they frisked Weinrich and Hartwell for weapons and made sure no one else was in the room; they advised Weinrich and Hartwell of their rights and, after receiving suspicious answers to questions, placed the two under arrest; and they observed certain items in plain view and occupied the room until a search warrant was obtained about two and one-half hours later. After obtaining a warrant, officers thoroughly searched the room. In the meantime, Hartwell had consented to a search of his room, which was located at the same hotel. Both searches turned up evidence linking Weinrich and Hartwell to the activities the night before in Indianola and Greenville.

Buhajla, Freeman, Murphy, Royalston, Santiago, Webster, Weinrich and Jack Syphan were indicted and tried together for their involvement in the theft of the airplane and the importation and possession of the marijuana. Wells was not indicted, but cooperated with the Government and testified extensively at trial. After a lengthy trial, Freeman was found not guilty; the jury convicted the others of various offenses and all but Syphan have appealed. The offenses charged in the indictment, the jury's verdict and the trial court's sentences thereon are reproduced in the margin. 2

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II. CONTENTIONS ON APPEAL.

The appellants have made extensive use of Fed.R.App.P. 28(i), which permits the adoption by reference of the briefs filed by other parties. All appellants complain that the trial court erred by conducting an in camera voir dire of the jury, outside of the presence of counsel, to assess the effect of an incident of jury misconduct that occurred during closing arguments. In addition, three distinct issues have been raised with respect to the trial court's rulings on various pretrial motions to suppress evidence: (1) Buhajla argues that all evidence linked to the installation of the transponder should have been suppressed because the court order authorizing the transponder was not based on probable cause to believe that Buhajla was involved in the drug conspiracy; (2) Royalston claims that the second statement he made to DEA agents at Oxford, Mississippi, should have been suppressed, just as the first statement he made at Indianola was suppressed, because it was the fruit of an illegal arrest; and (3) Weinrich and Santiago argue that all evidence discovered in room 224 of the Days Inn, whether noticed in plain view when officers first entered the room or turned up during the later search pursuant to a warrant, should have been suppressed because the initial warrantless entry into the room was illegal. Finally, various parties complain of errors committed during trial and attack the sufficiency of the evidence to support their convictions. We treat the claims on appeal in the order that the errors allegedly occurred at trial: (1) the failure to suppress evidence; (2) evidentiary and other rulings during trial; (3) the in camera hearing on jury misconduct; and (4) the failure to direct judgments of acquittal because of insufficient evidence.

III. THE FOURTH AMENDMENT ISSUES.

The trial court conducted extensive hearings on the many pretrial motions to suppress evidence and made detailed findings of fact with respect to each of the fourth amendment issues now before us. We note at the outset the well-established principles governing our review of the proceedings below: (1) we are bound by the district court's findings of fact unless they are clearly erroneous, see United States v. Gunn, 428 F.2d 1057, 1060 (5th Cir.1970); (2) the defendant bears the burden of demonstrating the...

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