762 F.2d 170 (1st Cir. 1985), 84-1108, United States v. Baldacchino

Docket Nº:84-1108.
Citation:762 F.2d 170
Party Name:UNITED STATES of America, Appellee, v. Shaun BALDACCHINO, Defendant, Appellant.
Case Date:May 20, 1985
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 170

762 F.2d 170 (1st Cir. 1985)

UNITED STATES of America, Appellee,

v.

Shaun BALDACCHINO, Defendant, Appellant.

No. 84-1108.

United States Court of Appeals, First Circuit

May 20, 1985

Page 171

Charles Merle Gile, Oklahoma City, Okl., for defendant, appellant.

Charles E. Fitzwilliam, Asst. U.S. Atty., Hato Rey, P.R., with whom Daniel Lopez Romo, U.S. Atty., Hato Rey, P.R., was on brief, for appellee.

Before COFFIN, BOWNES and BREYER, Circuit Judges.

BOWNES, Circuit Judge.

This is an appeal from findings and rulings made at a pretrial hearing on motions to suppress and dismiss. Pursuant to Fed.R.Crim.P. 11(a)(2), defendant Shaun Vincent Baldacchino entered a conditional plea of guilty to importation of 1,389 pounds of marijuana and possession with intent to distribute in violation of 18 U.S.C. Sec. 2, 21 U.S.C. Secs. 841(a)(1), 952 (1982). Baldacchino alleges that his motions to suppress and dismiss the indictment should have been granted because: (1) he was arrested illegally, without probable cause; (2) all statements made by him were the fruits of an illegal arrest; (3) his statements should have been suppressed because they were not freely and voluntarily given; and (4) the government breached its plea agreement with him after dismissing the original indictment against him in exchange for his testimony by subsequently reindicting him. See 577 F.Supp. 12. We find that none of these challenges warrant reversal and affirm the district court's decision.

I. THE FACTS

A. The Smuggle

The tale of misadventure presented at the pretrial hearing involves a substantial cast of characters including seven defendants (one of whom became a government witness whose charges were dismissed), two unindicted coconspirators, and more than a dozen police officers. Baldacchino's participation began on May 5, 1983, when he was contacted at his home in Ardmore,

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Oklahoma, by codefendant Octavio Font-Ramirez (Junior Font) and asked whether he would "retrieve" an airplane in Puerto Rico for a substantial amount of money. Baldacchino agreed, and in the following two days called codefendants Jerry McLean and Fred McNulty and asked them if they wanted to help him and make some money. Both McNulty and McLean agreed to participate.

Several days later Baldacchino and McLean flew to San Juan where they were met by Font. Font drove them to a car rental agency where Baldacchino rented an Aries station wagon. The three then drove to defendant Carlos Riollano's home where they discussed a drug smuggling plan which entailed Baldacchino and McNulty traveling to St. Thomas to get an airplane, flying it to Colombia, picking up a load of marijuana, and returning to Puerto Rico.

On Saturday, May 14th, McLean and Baldacchino went to the airport to pick up Baldacchino's friend, McNulty, who was also a pilot. The next morning, Baldacchino and McNulty caught a flight to St. Thomas. There, after receiving confirmation on the Colombian connection, he and McNulty flew to a secluded airstrip in Colombia where they were received by a group of Colombians who loaded the aircraft with marijuana and fuel. Around four o'clock in the afternoon, McNulty and Baldacchino took off for Puerto Rico. They planned to land in a field in Cabo Rojo that had been recommended by another codefendant, Jesus Velez Arroyo, known to Baldacchino as "Tarzan." However, while landing the plane, McNulty lost sight of the landing beacon and hit a tree, landing short of the intended runway. Baldacchino and McNulty got out of the plane and began helping Riollano, McLean, Font, Tarzan, a friend of Tarzan's, Tarzan's cousin, and another codefendant, Millan, load the marijuana into a Blazer (a four-wheel drive vehicle) that was parked on a dirt road next to a fence near the landing field. While they were unloading, the group spotted two vehicles approaching and fled. Font, Tarzan, and Tarzan's cousin took the Blazer, while Riollano, Millan, Baldacchino, McNulty, and McLean fled on foot.

B. The Arrests

Meanwhile, around 7:30 p.m. Puerto Rico Police Officer Padilla, who was visiting his parents in the Cabo Rojo area, heard a plane flying overhead, followed by a crashing sound. Padilla went to the local rescue unit and called Police Sergeant Vidro (director of the rescue unit) who contacted customs and narcotics agents. Padilla and another officer and three or four members of a civilian rescue unit headed for the crash site. The officers and the civilians located the plane with the headlights of their vehicles. After calling out to see if there was anyone injured inside the plane and getting no answer, they waited for drug and customs agents to arrive. At approximately 8:30 Puerto Rico Police Officers Vidro, Fumero, and Garcia arrived. Shortly thereafter Padilla noticed some tire marks in the grass leading away from the plane site. Padilla, Vidro, Fumero, and Garcia went to investigate, leaving the other officer with the airplane. They discovered a black Blazer and Dodge van containing bales of marijuana about a kilometer from the plane and about 100 feet from an access road.

Meanwhile, Sergeant Vidro had contacted Lieutenant Vargas and Agents Ramirez and Rosa of the Narcotics Division of the Puerto Rico Police Department.

Enroute to the crash site, Ramirez and Rosa came upon a grey Aries station wagon parked on the shoulder of the wrong side of the road with its parking lights on. Rosa slowed down and switched on his high beams when he got about thirty to thirty-five feet from the station wagon. He was able to see a driver in the station wagon. As the police approached the car they saw three men, two of whom appeared to be Caucasian, emerge from a clump of bushes about five feet from the side of the road. The three men ran to the Aries station wagon and jumped in. The station wagon then took off past the police officers' car. Ramirez swiveled around and scribbled

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down the license plate number as the station wagon sped away and Rosa turned the car around to pursue the station wagon. By the time he had turned the car around, however, the station wagon was far ahead of them and they lost track of it. Between 9:30 and 9:45 Ramirez radioed the police dispatcher the Aries license plate number and the narcotics officers continued on to the site of the crash.

Approximately fifteen minutes later, Rosa and Ramirez arrived at the plane site where Padilla was waiting. Ramirez put several bales of marijuana that were lying outside the plane into his car and then entered the plane to look around; Rosa followed. Ramirez testified that he found a passport belonging to Baldacchino and a torn pants pocket with a design or writing on it in the cockpit area of the plane. Ramirez testified that he showed the passport to Rosa and remarked that the person in the passport picture was the second person they had seen run from the bushes. Ramirez kept the passport and pocket. After Rosa searched the back of the plane, Ramirez and Rosa left to examine the Blazer and van. After examining the van, they and Officer Fumero went to look for the Aries station wagon that Ramirez had reported. Fumero spotted it parked in front of a guesthouse and radioed Rosa and Ramirez. Fumero then waited in his own car about two hundred meters from the guesthouse.

About ten minutes later Ramirez and Rosa pulled up next to the Aries. Ramirez spotted a man, later identified as Riollano, taking some clothes out of the rear passenger door of the station wagon and recognized him as the third person he saw running from the bushes. Ramirez jumped out of his car and chased Riollano up the guesthouse stairs through a door at the top of the second story landing and into room number five. He immediately arrested Riollano. Rosa followed Ramirez up the stairs and into room five, as did Lt. Vargas who had arrived a moment or two after Ramirez and Rosa. Vargas and Rosa arrested Riollano's two companions, Font and Millan. Ramirez, Rosa, and Vargas then turned the three defendants over to Lt. Garcia and Sgt. Vidro who had also arrived at the guesthouse and were on their way up the stairs to the second story landing. Garcia and Vidro returned to the street with Riollano, Millan and Font in custody. Lt. Vargas and Officers Ramirez and Rosa testified that they heard shuffling in room four and Rosa testified that he heard English speaking voices as well. Ramirez then, without knocking or...

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