U.S. v. Aikins, s. 88-1369

• Decision Date: 15 August 1990
• Docket Number: 88-1373,Nos. 88-1369,s. 88-1369
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George Gordon AIKINS, Roosevelt Rodney, Manuel Arcenio Angulo-Castillo, Roberto Daniel Cayasso-Schellett, Lai Chai Hai, Anastacio Henry-Barnard, Eusebio Samudio-Jiminez, William Graham Snyder, Defendants-Appellants. to 88-1379, and 89-16067.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 608

946 F.2d 608

UNITED STATES of America, Plaintiff-Appellee, v. George Gordon AIKINS, Roosevelt Rodney, Manuel Arcenio Angulo-Castillo, Roberto Daniel Cayasso-Schellett, Lai Chai Hai, Anastacio Henry-Barnard, Eusebio Samudio-Jiminez William Graham Snyder, Defendants-Appellants.

Nos. 88-1369, 88-1373 to 88-1379, and 89-16067.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 7, 1990.

Decided Aug. 15, 1990.

As Amended on Grant of Rehearing; Government's Petition for

Rehearing Denied Oct. 2, 1991.

Appeal from the United States District Court for the District of Hawaii.

John Ashford Thompson, Michael R. Levine, Federal Public Defender, Benjamin B. Cassidy, III, Richard T. Pafundi, William A. Harrison, R. Steven Geshell, Richard S. Kawana, Honolulu, Hawaii, for defendants-appellants.

Louis A. Bracco, Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff-appellee.

Before CANBY, NOONAN and RYMER, Circuit Judges.

NOONAN, Circuit Judge:

George Aikins, Manuel Angulo-Castillo, Roberto Cayasso-Schellett, Lai Chai Hai, Anastacio Henry-Barnard, Roosevelt Rodney, Eusebio Samudio-Jiminez, and William Snyder were convicted of possessing with intent to distribute 21,000 pounds of marijuana on the high seas on February 19, 1988 and of distributing a separate 14,000 pounds of marijuana on the high seas on February 17, 1988, all in violation of the Maritime Drug Enforcement Act, 46 U.S.C.App. § 1903(a). We reverse their convictions and remand for a new trial.

FACTS

The facts are well set out by Judge Takasugi in the district court and with minor editorial revisions are restated here:

During an ongoing undercover investigation of marijuana trafficking/importation, approximately two weeks preceding the seizure in this case, an undercover United States Customs agent was solicited by a marijuana trafficker to off-load a large quantity of marijuana from a mother ship located on the high seas southeast of the Hawaiian Islands. The undercover agent agreed to provide a vessel to off-load marijuana from the mother ship and transport the substance to the Bay Area of Northern California as directed by the trafficker.

A plan was developed among members of United States Customs, Drug Enforcement Administration and the United States Coast Guard whereby a crew of federal agents, posing as marijuana traffickers, would rendezvous with the mother ship and off-load the marijuana. The plan included the United States Coast Guard cutter Mallow 's following the undercover off-load vessel at a safe distance and remaining in radio contact with the off-load vessel.

On February 16 and 17, 1988, the undercover vessel rendezvoused with the mother ship approximately 600-800 miles southeast of the Hawaiian Islands. The mother ship was identified as the Christina M, a Panamanian coastal freighter bearing a Panamanian flag. After off-loading to a capacity of approximately 14,000 pounds of marijuana from the Christina M, the undercover agents were able to ascertain that the Panamanian freighter still had a large quantity of marijuana remaining aboard. All identification, registry and description of the Christina M were relayed by radio from the undercover crew to the Mallow.

Thereafter, the government contends that on February 18, 1988, U.S. Coast Guard officials on the Mallow sought and received permission from Panamanian officials "to the enforcement of United States law by the United States against the individuals found aboard the M/V Christina M." The Christina M was not then proceeding toward the United States.

On February 19, 1988, some 48 hours after the previous off-loading operation by the undercover vessel, the Mallow closed within visual distance of the Christina M. Lt. Commander Christian Bohner, Commanding Officer of the Mallow, identified the Mallow as a United States Coast Guard vessel and requested permission to board the Christina M. Defendant Augustus Rodney, Captain of Christina M, initially refused Bohner's request. Bohner then indicated to Rodney that the Coast Guard had permission of the Panamanian authorities to board and search the Christina M and that he, Bohner, had "other means" to stop the Christina M. Rodney relented and the Christina M made no effort to flee.

Shortly thereafter, without a search or arrest warrant or any efforts to secure same, the Coast Guard personnel from Mallow boarded the Christina M for the express purpose of searching the freighter for marijuana. A strong odor of marijuana was immediately apparent to all members of the boarding party. They found in excess of 21,000 pounds of marijuana in the aft hold. Although no other cargo was found, other than the bales of marijuana, documents and other personal effects were found and seized from the living quarters assigned to the crew. Rodney and his crew of seven men were arrested. The Mallow possessed radio equipment capable of communicating with a magistrate in Hawaii or the mainland.

Captain Rodney and the seven crew members were arrested and subsequently indicted.

PROCEEDINGS

The defendants moved to suppress the evidence. The district court, per Judge Takasugi, denied the motion. United States v. Aikens, 685 F.Supp. 732 (D.Hawaii 1988).

According to a procedure not unusual in some district courts, the voir dire of the jury was conducted by a magistrate. The defendants objected, each using the following written form:

OBJECTION TO MAGISTRATE CONDUCTING VOIRE DIRE

The defendant objects to having voire dire conducted by a magistrate and requests that it be done by the district court.

Although the Ninth Circuit has held that it is not unconstitutional for the magistrate to conduct voire dire, e.g., United States v. Bezold, 760 F.2d 999 (9th Cir.1985), cert. denied, 474 U.S. 1063, 106 S.Ct. 811, 88 L.Ed.2d 786 (1986), the Fifth Circuit has recently held to the contrary. United States v. Ford, 824 F.2d 1430 (5th Cir.1987) (en banc ), cert. denied, 484 U.S. 1034, 108 S.Ct. 741, 98 L.Ed.2d 776 (White, J., dissenting). Because of split in the circuits, certiorari is likely to be granted by the Supreme Court to resolve the issue. The defendant, therefore, wishes to preserve his objection for the record.

The magistrate overruled the objection and went ahead with the voir dire. All counsel made numerous objections to the magistrate's failure to ask follow-up questions of certain jurors, to his failure to excuse certain jurors for cause, and to certain remarks of his to the jury that the defendants asserted were prejudicial questions.

The case was assigned to visiting judge Robert P. Aguilar for trial. Counsel raised various objections before him regarding the magistrate's conduct of jury selection. In response Judge Aguilar offered to select a new jury panel or, alternatively, to pose additional questions to the impaneled jury and to admonish them to disregard any prejudicial remarks made by the magistrate.

Judge Aguilar stated his views as to selecting a new jury including these remarks: "If necessary, I will pick a jury. I don't want to pick a jury. I want to get this case started. I have a calendar for the balance of the month that does not provide for an extra day to pick a jury." In the face of these comments, defendants' counsel acquiesced in the panel that had been selected.

The trial proceeded in 1988, the defendants were convicted. They appeal.

ANALYSIS

1. Selection of the Jury.

In 1989, the Supreme Court held that a magistrate did not have jurisdiction to select the jury in a felony case. Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 2247-2248, 104 L.Ed.2d 923 (1989). This court has held that Gomez must be applied to all cases not yet final on July 7, 1989, the date on which the mandate in Gomez issued. United States v. France, 886 F.2d 223, 227 (9th Cir.1989). The present case was not final on the relevant date. Therefore Gomez governs.

The government argues that certiorari has been granted in France, --- U.S. ----, 110 S.Ct. 1921, 109 L.Ed.2d 285 (1990), and that this case should not be decided pending the disposition of France by the Supreme Court. There appears, however, no doubt that the retroactivity of Gomez is required by Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). Accordingly, there is no reason not to apply Gomez retroactively here. We are not otherwise dependent upon the holdings in France.

Gomez points out that by statute a magistrate's jurisdiction to try a misdemeanor "depends on the defendant's specific, individual consent." Gomez, 490 U.S. at 871-72, 109 S.Ct. at 2245 (citing 18 U.S.C. § 3401(b)). Here, where the issue is whether the magistrate may preside over the selection of jurors and the case involves a felony and not a misdemeanor, the same safeguard should apply. The waiver of objection must be by specific written consent.

A defendant prosecuted for a felony has the "basic ... right to have all critical stages of [his] criminal trial conducted by a person with jurisdiction to preside." Id. 490 U.S. at 876, 109 S.Ct. at 2248. As Gomez recognizes, jury selection is a critical stage. If consent can confer authority to preside--a proposition doubted in France, 886 F.2d at 227--that consent must meet the minimal requirements of being specific and individual.

An additional reason leads us to doubt the consent here given. As Gomez points out, Congress has provided by statute that, in a civil case, "neither the district judge nor the magistrate shall attempt to persuade or induce any party to consent to reference of a civil matter to a magistrate." Gomez, 490 U.S. at 869-70, 109 S.Ct. at 2244 (citing 28 U.S.C. § 636(c)(2)). This court has said en banc that the waiver of the right to an Article III judge must be "freely and voluntarily undertaken." Pacemaker Diagnostic Clinic of America v. Instromedix, 725 F.2d 537, 543 (9th Cir.) (en banc) (per Kennedy, J.), cert. denied, 469 U.S. 824, 105 S.Ct. 100, 83 L.Ed.2d 45 (1984). In the present case, the...