U.S. Goldsmith

• Decision Date: 14 March 2006
• Docket Number: No. CR. 03-10234-MLW.,CR. 03-10234-MLW.
• Citation: 432 F.Supp.2d 161
• Parties: UNITED STATES of America v. Joshua GOLDSMITH
• Court: U.S. District Court — District of Massachusetts

432 F.Supp.2d 161

UNITED STATES of America v. Joshua GOLDSMITH

No. CR. 03-10234-MLW.

United States District Court, D. Massachusetts.

March 14, 2006.

Stephen B. Hrones, Hrones & Garrity, Boston, MA, for Defendant.

MEMORANDUM AND ORDER

WOLF, District Judge.

I. SUMMARY

On July 15, 2003, John Gillies was indicted for conspiracy to possess with intent to distribute marijuana and possession of marijuana with intent to distribute. On August 5, 2003, a Superceding Indictment was returned which alleged that Benjamin Silver participated in Gillies' crimes. The government subsequently obtained the cooperation of John Ryan, an unindicted coconspirator in this case who is charged separately in another case. As a result of Ryan's cooperation, on May 4, 2004, a Second Superceding Indictment was returned. It charges that Joshua Goldsmith also conspired with Gillies, and possessed marijuana with intent to distribute it or aided and abetted that crime.

In 2005, Silver pled guilty. Gillies and Goldsmith filed motions to suppress the crate of marijuana that is at the heart of this case, alleging that it was obtained as a result of an unlawful seizure and an unlawful search. An evidentiary hearing on the motions to suppress was conducted on November 16 and 17, 2005.

The evidence at that hearing brought into sharp focus the threshold issues of whether Gillies and/or Goldsmith had the legally required Fourth Amendment interest in the crate of marijuana at the times it was seized and searched to permit them to contest the lawfulness of the government's conduct. Therefore, the court ordered further briefing on this issue.

Gillies, however, pled guilty rather than pursue his motion to suppress. After receiving additional submissions from the government and Goldsmith, the court conducted a further hearing on January 16, 2006, concerning Goldsmith's motion to suppress.

For the reasons described in detail in this Memorandum, the court concludes that Goldsmith did not have an interest protected by the Fourth Amendment in the crate of marijuana at the times it was seized and searched. Therefore, he may not contest the lawfulness of the government's conduct. Thus, Goldsmith's motion to suppress must be denied. Accordingly it is not necessary or appropriate for the court to decide the other challenging Fourth Amendment issues presented by the facts of this case.

II. FACTS

The following facts have been proven by a preponderance of the evidence.¹

On May 15, 2003, Goldsmith delivered a crate containing marijuana to the Old Dominion Freight Company in Point Loma, California and arranged to have the package transported to Old Dominion's warehouse in Dracut, Massachusetts. Goldsmith Aff. ¶ 1; Suppression Hearing Exhibit ("Ex.") 2.² Although not shipped with a guaranteed delivery time, which would have required extra payment, Old Dominion represented that delivery would be made within five business days, not counting the drop-off day. Nov. 16, 2005 Tr. at 48-49. Therefore, the crate was expected to be delivered to Dracut, Massachusetts by May 22, 2003, but the customer did not have a contractual right to delivery by that date.

Freight charges for the crate were not prepaid. Rather, the crate was shipped collect, with the freight charges to be paid by the consignee. Old Dominion characterizes collect shipments as "cash transactions." Nov. 16, 2005 Tr. at 26, 40.

In arranging for delivery, Goldsmith filled out a bill of lading. The document is captioned "Straight Bill of Lading" and states that it is "Not Negotiable." Ex. 2. On the bill of lading Goldsmith listed the sender as Underwater Equipment Sales, 317 Catalina Ct., Pt. Loma, CA 92107, and the consignee as DVP Diving & Video, 33 Silva Lane, Dracut, MA, 01826. Goldsmith Aff. ¶ 3; Ex. 2. Both of these were fictitious names for nonexistent entities. On the line of the bill of lading for the sender's signature, Goldsmith also signed a fictitious name, "K. Cleary." Ex. 2. After filling out the bill of lading, Goldsmith provided Old Dominion employees with a copy of his driver's license, which listed his real name and address. Ex. 4.

As Gillies stated in his affidavit, which provides the only evidence concerning the ownership of the crate and marijuana:

In the spring of 2003, [Mies], along with several other people, made arrangements to purchase a large amount of marijuana in California. [Gillies] supplied the money for the marijuana and was the owner of the drugs. The other people arranged for the purchase of the marijuana and its transport from California to Massachusetts. [Gillies] was supposed to give them a portion of the marijuana when it arrived in Massachusetts.

Gillies Aff. ¶ 2. Goldsmith did not own either the marijuana or the crate. The shipment was owned by Gillies. Goldsmith participated in arranging the transport of the marijuana on Gillies's behalf. Id.

After delivering the marijuana to Old Dominion, Goldsmith provided the bill of lading for the crate to Gillies, who had it when the crate was delivered to Massachusetts on May 27, 2003. Nov. 17, 2005 Tr. at 21-23, 35. Goldsmith expected the contents of the crate would remain private while it was in transit. Goldsmith Aff. ¶ 2.

Geoff Stephany, Old Dominion's director of security, had a practice of searching Old Dominion's computer system to identify suspicious packages. Nov. 16, 2005 Tr. at 3L He would search the system for freight with characteristics he associated with contraband, mainly characteristics that would help a shipper conceal his identity. For example, he would search for shipments called "dock-drop offs," which were shipments that a customer had brought directly to Old Dominion's shipping docks instead of allowing Old Dominion to send a truck to pick up the shipment at the sender's place of business. Dock drop-offs were unusual, accounting for only 15 to 30 of 20,000 packages Old Dominion received each day. Id. at 26, 29, 30, 76. Stephany associated dock dropoffs with illegal drug shipments because they allowed senders and recipients to conceal their identities more easily. Id. at 31.

Stephany would also search for dock pick-ups and shipments tendered "on a cash basis," both of which were unusual and suspicious for similar reasons. Id. at 31. "Cash basis" did not actually require a payment in cash. Rather, a shipment was on a "cash basis" if the freight charges were to be paid before Old Dominion released the shipment for pickup. See id. at 109.

If a shipment matched one of Stephany's criteria, he would consider it more carefully, looking for "abnormalities." Id. at 32. For example, he would examine how specifically the shipper had described the freight on the bill of lading and how the shipment was packaged. Id. at 32-33. He also would look to see whether the description included a National Motor Freight Classification, because packages without one were unusual. In addition, he considered whether the shipment was crated, because in his experience contraband tended to be crated. Id. at 33.

On May 16, 2003, the day after Goldsmith delivered the crate to Old Dominion in Point Loma, California, Stephany identifled it as suspicious. Nov. 16, 2005 Tr. at 34-35, 63. Stephany flagged Goldsmith's shipment because it was a dock drop-off, because it was crated, because it was also a dock pick-up, and because there was a misspelling on the package. Id. at 35, 77.

Following his practice for dealing with suspicious packages, Stephany contacted Marty Ferrell, a Highpoint, North Carolina police officer assigned to the federal Drug Enforcement Administration ("DEA") Task Force. Id. at 116-17. Stephany had worked previously with Ferrell when Stephany had identified suspicious packages. Id. at 33-34. He contacted Ferrell because Stephany knew Ferrell and believed that Ferrell would handle any investigation properly. Id.

Ferrell had about 14 years of experience investigating drug cases and had received more than a thousand hours of specialized training relating to drug investigations. Id. at 119. He was a certified teacher for the state of North Carolina police recruit school, and also taught at community colleges on controlled substance violations and narcotics interdiction. Id.

Stephany told Ferrell that Stephany had "a shipment that was tendered to us in San Diego that [Ferrell] may want to take a look at." Id. at 37. Stephany told Ferrell that the package was still in San Diego, id. at 37, and probably said that the crate "was going to be paid by a cash transaction at destination." Id. at 40. Stephany faxed the bill of lading and Goldsmith's driver's license to Ferrell. Id. at 41-42; Ex. 4.

Ferrell immediately ran Goldsmith's name through a DEA database. From the DEA database, Ferrell learned that Goldsmith had been convicted of possessing marijuana with intent to distribute in 1991, and that he had been arrested in 2001 for possessing marijuana for sale and for conspiracy. Id. at 123; Ex. 11 at 3. Ferrell also ran all of the telephone numbers that were on the bill of lading through the database and learned that one of them was associated with Michael Joseph Doyle, who also had been involved with narcotics. Id. at 124.

Shortly after receiving this information on May 16, 2006, Ferrell telephoned Stephany and asked him to divert the crate to North Carolina, where he intended to conduct a narcotics detection dog sniff. Id. at 72-74, 79, 90, 125. Stephany agreed to do so.

At the time of Ferrell's request, the crate was in a closed truck in San Diego, California. Id. at 80. It had not yet departed, but could have left at any time. Id. Stephany allowed the crate to stay on the truck, which brought it to Old Dominion's hub in Morristown, Tennessee. When it reached Morristown, Stephany had the package intercepted and driven to Greensboro, North Carolina, where it would not have traveled in its normal course to Dracut, Massachusetts. Id. at 79. He was responding to Ferrell's request.

Ferrell's request to divert...