U.S. v. Alfrey, 79-5014
| Decision Date | 03 July 1980 |
| Docket Number | No. 79-5014,79-5014 |
| Citation | 620 F.2d 551 |
| Parties | 6 Fed. R. Evid. Serv. 475 UNITED STATES of America, Plaintiff-Appellee, v. Thomas ALFREY, Davis Michael Haight and Grover P. Kennedy, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Gary J. Takacs, Asst. U. S. Atty., Tampa, Fla., for plaintiff-appellee.
Appeals from the United States District Court for the Middle District of Florida.
(Opinion February 20, 1980, 612 F.2d 180 (5th Cir. 1980))
Before SIMPSON, CHARLES CLARK, and FRANK M. JOHNSON, Jr., Circuit Judges.
The Court withdraws its opinion dated February 20, 1980, 612 F.2d 180, in its entirety and substitutes therefor the following:
A jury convicted appellants Alfrey, Haight and Kennedy of importing marijuana, possessing marijuana with intent to distribute it, and conspiring to commit these offenses in violation of 21 U.S.C. §§ 841, 846, 952, and 963, and 18 U.S.C. § 2. They were each sentenced to three concurrent four year sentences.
We consider on this appeal three challenges to the convictions. First, all appellants argue that the district judge erred by refusing to suppress the evidence gained from the search of the vessel RUNNING BEAR. Second, Haight and Alfrey argue
that the trial judge improperly admitted certain hearsay evidence under Rule 803(24) of the Federal Rules of Evidence. Third, all argue the evidence is insufficient to support the jury verdict. We find the search was valid; therefore its evidential fruits were properly admitted. Because we apply the concurrent sentence doctrine, it is unnecessary to consider whether the hearsay evidence was improperly admitted. Although the evidence is insufficient to support two of appellant Kennedy's convictions, importation of marijuana and conspiracy to possess and import marijuana, it is sufficient to support Kennedy's conviction for possession with intent to distribute and all convictions of appellants Haight and Alfrey.
On May 22, 1978 at 3:00 P.M. United States Customs Patrol Officers Gehr, Tenbieg and Scott anchored the PELICAN, an unmarked thirty-six foot sport fishing type Customs vessel, off the southern tip of Egmont Key, an island lying in a north-south latitude off the mouth of Tampa Bay. The Customs officers were dressed as ordinary fishermen. Their anchorage afforded a clear view of the Southwest Passage, an entrance to Tampa Bay south of Egmont Key and the main shipping channel, an entrance to the Bay to the north. Although the PELICAN outwardly appeared an ordinary fishing vessel, it was equipped with radar, night vision goggles and binoculars. Its mission was to survey traffic entering or leaving Tampa Bay.
The weather was mild, the seas light and the moon full that night. From 3:00 P.M. until 9:00 P.M. only a phosphate shipping vessel was seen in the main channel; no vessels were observed in the Southwest Passage. At 9:00 P.M. a thirty-five to forty foot speedboat departed the Southwest Passage. At 11:30 P.M. a twenty-five to thirty foot speedboat sped out the Southwest Passage. At approximately 1:00 A.M. a seventy foot North American trawler type vessel was sighted two to three miles offshore steaming toward the Southwest Passage. It was the first time that a trawler of this type had been seen in the area by any of the Customs officers. Unknown to them at that time, the trawler, later identified as the RUNNING BEAR, was laden with 19,094 pounds of marijuana. The vessel entered the Southwest Passage and proceeded up the main shipping channel toward the Sunshine Skyway bridge.
Ten minutes later a Wellcraft Nova entered the Southwest Passage. It was of the same size and configuration as the vessel observed speeding out the Southwest Passage at 11:30 P.M., but the officers were unable to positively identify it as the same vessel. The Nova did not have all its navigation lights on and appeared to be having engine trouble. It eventually overtook the trawler, approaching within ten to twenty feet. Shortly thereafter the PELICAN weighed anchor and began a moving surveillance as the trawler traveled up the main shipping channel. About 2:00 A.M. the trawler passed under the Sunshine Skyway bridge, which traverses Tampa Bay from north to south approximately ten miles inland.
Continuous visual contact was maintained with the trawler, but the Customs officers had previously lost sight of the Nova. However, minutes after passing under the bridge, a Wellcraft Nova of similar size and configuration as the Nova observed earlier approached the PELICAN's stern and maneuvered alongside. Only a single operator was visible on board, but there was a small cuddy cabin aft large enough to conceal another person. The Nova was operating without lights and an object was tied around the windshield. The operator of the Nova asked why the PELICAN was running without lights; the Customs officers placed the same query to the Nova. Communication was difficult because of the engine noise. Suddenly the Nova cut sharply across the port bow of the PELICAN and proceeded directly to the Meanwhile the trawler continued northerly up the channel to marker 7F, then headed west for approximately 1000 yards before abruptly facing about and coming back toward the PELICAN. As the trawler passed officer Gehr brought the PELICAN about and came along the port side of the trawler. The officers observed that the vessel was heavily laden because her plimsoll line was not visible. After some small talk passed between the vessels, the Customs officers decided to board for a documents check. Officer Gehr piloted the PELICAN into position, identified himself and the others as Customs officers and informed the crew of the trawler of their intention to board. Chester Leon Curtis, later identified by the vessel's sailing permit as its captain, replied: "If you're going to come aboard, come aboard." Record vol. IV at A-173. From his position on the flying bridge of the PELICAN officer Gehr observed someone attempting to hide on the starboard side of the trawler. Suddenly, a Magnum type speedboat, resembling the larger speedboat observed departing the Southwest Passage at 9:00 P.M., cut closely and sharply across the bows of the PELICAN and the trawler and sped away. It had three persons aboard. Almost simultaneously the Nova circled around the PELICAN and the trawler and hovered ten to fifteen feet off the starboard side of the trawler. Customs officers Scott and Tenbieg boarded the trawler after putting on their gun belts. As he walked to the stern officer Tenbieg observed the Nova speeding away. He asked the captain, Curtis, how many persons were on board and whether there were any weapons. The captain replied that three persons were on board and that they had no weapons. Officer Tenbieg instructed the captain to assemble everyone on the port side of the trawler. Only appellants Alfrey and Haight joined the captain there. The two officers then made a cursory inspection to determine whether there were any other persons on board; they found appellant Kennedy hiding on the starboard side of the trawler. Kennedy was bare chested and dressed in street shoes and trousers.
trawler. One of the officers, aided by the night vision goggles, observed the Nova pull up close to the trawler. The Nova then proceeded up the channel for a short distance, made a large circle and fell in behind the PELICAN for ten to fifteen minutes.
Both officers noticed the smell of marijuana as they escorted Kennedy through the open wheelhouse; officer Scott decided to conduct a further investigation. Several burnt marijuana cigarettes were lying in plain view in the open wheelhouse and a small quantity of marijuana was lying on a table in the salon. Upon opening a small hatch he discovered that the trawler was loaded with bales of marijuana. All four persons aboard, Curtis, 1 Alfrey, Haight and Kennedy were then arrested.
The ship's sailing permit was later discovered on board. It indicated that the RUNNING BEAR, commanded by Captain Curtis, had permission to sail from the port of Cartagena, Colombia on May 12, 1978 with a crew of three men and no passengers. The permit was signed by the port captain.
The district court denied appellant's motions to suppress the evidential fruits of the search. As counsel for appellant Kennedy concedes, the recent decision of this court in United States v. Whitaker, 592 F.2d 826 (5th Cir. 1979), rehearing en banc denied, 601 F.2d 586, cert. denied, --- U.S. ----, 100 S.Ct. 422, 62 L.Ed.2d 320, clearly holds that United States Customs officers have authority under 19 U.S.C. § 1581(a) 2 to stop and board vessels initially The facts in Whitaker are indistinguishable from the facts of the instant case on any material ground; this panel is of course bound by prior panel decisions of the court. Trunkline Gas Co. v. FERC, 608 F.2d 582 (5th Cir. 1979); Puckett v. Commissioner, 522 F.2d 1385 (5th Cir. 1975).
sighted in customs waters for document checks even in the absence of a modicum of suspicion or probable cause. See also United States v. Freeman, 579 F.2d 942, 945 (5th Cir. 1978). This interpretation of § 1581(a) does not offend the Fourth Amendment. Whitaker, supra, 592 F.2d at 829. Freeman, supra, 579 F.2d at 946. The trawler was initially sighted within customs waters; 3 therefore the Customs officers acted within their authority in stopping and boarding it. Once the officers were on board, the limited topside inspection, to ascertain whether all persons on board were accounted for, was a justified safety precaution. For these...To continue reading
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