U.S. v. Vidal-Hungria

• Citation: 794 F.2d 1503
• Decision Date: 25 July 1986
• Docket Number: VIDAL-HUNGRI,J,No. 85-5079,85-5079
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Julioader Meza-Castillo, Jose Castro-Lahoz, Alberto Robinson-Vasquez, Alfonso Galvis-Diaz, Angel Ferreira-Navas, Enrique Aaron-Pinto, Jacinto Alava-Solano, Defendants- Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1503

794 F.2d 1503

UNITED STATES of America, Plaintiff-Appellee, v. Julio VIDAL-HUNGRIA, Jader Meza-Castillo, Jose Castro-Lahoz, Alberto Robinson-Vasquez, Alfonso Galvis-Diaz, Angel Ferreira-Navas, Enrique

Aaron-Pinto, Jacinto

Alava-Solano,

Defendants-

Appellants.

No. 85-5079.

United States Court of Appeals, Eleventh Circuit.

July 25, 1986.

Frederick E. Graves, Fort Lauderade, Fla., for Julio Vidal-Hungria, Jose Castro-Lahoz and Alberto Robinson-Vasquez.

Miguel Caridad, Asst. Federal Public Defender, Miami, Fla., for Jader Meza-Castillo, Alfonso Galvis-Diaz, Angel Ferreira-Navas and Enrique Aaron-Pinto.

Leon Kellner, U.S. Atty., Kenneth Noto, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee.

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

Before FAY and KRAVITCH, Circuit Judges, and HENLEY ^*, Senior Circuit Judge.

CORRECTED OPINION

KRAVITCH, Circuit Judge:

The eight appellants in this case were convicted on both counts of a two-count indictment charging them with (Count I) violating 21 U.S.C. Sec. 955c by conspiring with each other and with persons unknown to possess with intent to distribute marijuana while aboard a vessel subject to the jurisdiction of the United States in violation of 21 U.S.C. Sec. 955a(a), and (Count II) violating 21 U.S.C. Sec. 955a(a) and 18 U.S.C. Sec. 2 by possessing with intent to distribute marijuana while aboard a vessel subject to the jurisdiction of the United States on the high seas. The appellants all were named in the same indictment and convicted by the same jury following a joint trial. On appeal, the vessel's captain, Jacinto Alava-Solano, contends that his trial and conviction violated the constitutional prohibition against double jeopardy. The seven crew members assert that their convictions are invalid because the evidence at trial was insufficient as a matter of law to support their convictions on either count. ¹ For the reasons set forth below, we reject Alava-Solano's double jeopardy argument and affirm his convictions on both counts. As to the crew members' claims, however, we agree with their contention that the record evidence is insufficient to support their convictions.

I. FACTUAL BACKGROUND AND PRIOR PROCEEDINGS

In considering the sufficiency of the evidence, we have sifted through the record to ensure consideration of the evidence in its entirety. Our reading of the complete transcript indicates that the following facts were established at trial.

The Security Search

At approximately noon on June 3, 1984, a United States Coast Guard cutter on routine patrol sighted the motor vessel MRS. WHITE, a 156-foot coastal freighter flying the British flag, approximately seven miles off the coast of the Bahamas in international waters. The markings on her stern included her name and indicated a home port of Tortola, BVI, signifying the British Virgin Islands. The Coast Guard received permission to board via radio from Alava-Solano, who identified himself as the captain. The six-member Coast Guard boarding party included Petty Officer First Class David Amidon, Petty Officer First Class Charles Hefner, Spanish-English interpreter Seaman Herman Plaza, Chief Warrant Officer Robert Webber, Chief Warrant Officer Jeffrey Fulcher, and Coast Guardsman Bartlett.

Upon boarding the vessel, Amidon, who was the chief boarding officer, spoke with Alava-Solano through interpreter Plaza. Amidon obtained permission for the Coast Guard search team to check all "man-sized" compartments to make sure no other persons were on board. At Alava-Solano's command, six of the MRS. WHITE crew members, Julio Vidal-Hungria, Jose Castro-Lahoz, Alberto Robinson-Vasquez, Jader Meza-Castillo, Angel Ferreira-Navas, and Enrique Aaron-Pinto, were mustered on the bow of the ship. Hefner was stationed there to watch them throughout the search procedure. The Chief Engineer of the MRS. WHITE, Alfonso Galvis-Diaz, remained in the engine room, with the Coast

Guard's permission, in order to perform necessary upkeep maintenance on the engine. Alava-Solano, accompanied by interpreter Plaza, remained apart from the crew members in the aft section of the boat throughout the search. Amidon was on the bridge with Alava-Solano for a total of approximately four hours. He and Plaza examined all the ship's papers during the first half hour. The papers appeared to be in order and indicated that the port of origin was Baranquilla, Colombia. They were told that the last port of call had been Grand Caicos in the Bahamas, and the destination point was Freeport, Bahamas. The documents from the Baranquilla port described a large lumber and cement cargo. The other Coast Guard members proceeded to make an extensive search of all areas, the main purpose of which was two-fold--the interdiction of Haitian refugees and interdiction of contraband. The search revealed a large cargo of cement and lumber in the cargo hold, properly stowed for passage. The vessel was in working condition for operation as a cargo ship.

Discovery of the Sealed Forward Compartment

More than two hours after the search had begun, Hefner notified Amidon and sweep team leader Webber that from his station up in the bow he detected the odor of marijuana. Webber joined him on the bow to try to assist in locating the source of the odor. Webber, however, did not detect the odor. Eventually Hefner, who is six feet two inches tall, identified a six-foot vent, next to which he had been standing for the past two hours, as the possible source. The top of the vent was covered by a greyish-silver plastic bag tied around the bottom with twine. Amidon joined the group up on the bow at this point. He did not detect an odor either. Webber removed the twine and bag, revealing a burlap sack. Webber testified that at this point he first smelled marijuana. Webber then removed the burlap sack, revealing a makeshift metal cover which had grease all over it. Webber removed the greased metal cover, revealing a jagged border at the top of the metal vent. Amidon testified that he first smelled marijuana when he stuck his head over the top of the uncovered vent.

Fulcher then came up to assist and attached his large flashlight to the end of a twenty-foot rope which they obtained from the Coast Guard vessel and lowered it down the vent. They saw bales of what they believed to be marijuana at the bottom. They relayed their discovery of marijuana to Plaza, who was still with Alava-Solano in the aft section, through the predetermined coded message that their "big or B-light was broken." Amidon obtained permission from Alava-Solano for them to try to gain access to the unaccounted for compartment in the bow. Their efforts led Amidon and Webber down into a locker where paint supplies were stored. They found numerous paint cans and noted a thick tacky layer of paint on one area of the floor. After moving the paint cans, and scraping away the paint, Webber found a three-foot square steel plate that appeared to have been tack-welded to the floor. They also noticed that a pad-eye and a hand hook had been welded near that area. They pried off the plate and removed a white compound substance in the cracks around the edge. They found an aluminum sheet wired up underneath the opening apparently intended to catch the drippings from the tack-welding. Finally, after removing the aluminum sheeting, they uncovered an entrance to a compartment in which bales of what appeared to be marijuana wrapped in burlap were stacked. The compartment was attached to the vent uncovered above. After getting Alava-Solano's permission, they performed a field test on the bales which tested positive for THC, the active ingredient in marijuana. Sometime after this, Alava-Solana asked Plaza if they had found marijuana.

Discovery of the Sealed Aft Compartment

Meanwhile, approximately one to two hours after boarding, Fulcher, who had After the uncovering of the forward compartment, Amidon obtained permission from Alava-Solano to drill a hole into the aft deck of the ship. Using equipment from the Coast Guard vessel, the boarding party drilled a hole into the main deck above the area behind the aft bulkhead of the main cargo hold. They then smelled marijuana, inserted a small piece of pipe and, from a point a few feet below the deck, retrieved a leafy substance which was then field tested positive for marijuana.

been examining the main cargo hold suggested looking at the blueprints of the vessel. He thought that the forward and aft bulkheads in the main hold might be of newer material than the area around them. Amidon asked Alava-Solano for the blueprints and then handed them over to Fulcher who knew how to read them. Fulcher examined them to determine if there was unaccounted for space. He perceived that there was an unaccounted for compartment in front of the forward bulkhead of the cargo hold and another behind the aft bulkhead just below the main deck in front of the pilot house. There was no visible sign of access to it. Fulcher examined the sounding tubes--pipes which extend from the various compartments below deck of a ship up to the deck so that the contents of the compartments can be checked. There was no odor emanating from the tubes as they were. After receiving permission from Alava-Solano, Fulcher sounded the sounding tubes. The sounding of the first few tubes revealed nothing unusual--some compartments contained liquid, some were empty. After sounding the fourth or fifth tube, however, finding it full of oil, Fulcher leaned over to smell the tube and detected an odor of marijuana. Fulcher reported the results of his investigation back to Amidon.

The Arrests and Confiscation of Evidence

Upon discovering the two hidden compartments and their contents, the boarding team relayed the information to Coast Guard authorities and received orders to arrest all eight individuals on the MRS. WHITE. The eight were arrested and transferred to the Coast Guard cutter....