U.S. v. Bilir, s. 77-2584-77-2586

• Citation: 592 F.2d 735
• Decision Date: 08 February 1979
• Docket Number: Nos. 77-2584-77-2586,s. 77-2584-77-2586
• Parties: UNITED STATES of America, Appellee, v. Nedim BILIR, Appellant. UNITED STATES of America, Appellee, v. Ziya SOKUM, Appellant. UNITED STATES of America, Appellee, v. Nail AKDENIZ, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 735

592 F.2d 735

UNITED STATES of America, Appellee, v. Nedim BILIR, Appellant.

UNITED STATES of America, Appellee, v. Ziya SOKUM, Appellant.

UNITED STATES of America, Appellee, v. Nail AKDENIZ, Appellant.

Nos. 77-2584-77-2586.

United States Court of Appeals, Fourth Circuit.

Argued Sept. 11, 1978.

Decided Feb. 8, 1979.

Roger E. Zuckerman, Washington, D. C., for appellants in 77-2585 and 77-2586.

Andrew Jay Graham, Baltimore, Md., for appellant in 77-2584.

Kurt L. Schmoke, Asst. U. S. Atty., Baltimore, Md. (Russell T. Baker, Jr., U. S. Atty., Baltimore, Md., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and WINTER and PHILLIPS, Circuit Judges.

PHILLIPS, Circuit Judge:

Nedim Bilir, Ziya Sokum, and Nail Akdeniz appeal their respective convictions on single counts of conspiracy to import heroin; possession of heroin with intent to distribute; and conspiracy to distribute heroin. ¹ Having failed on various pre-trial motions to suppress critical evidence, they preserved their exceptions to its admissibility and submitted to a joint bench trial on facts stipulated subject only to the exceptions. Found guilty and given substantial prison sentences on the counts indicated, they concede on appeal the sufficiency of the evidence received to sustain their respective convictions, and renew here their challenges on constitutional grounds to the admissibility of certain of the evidence: a quantity of heroin seized in a warrantless search of a suitcase in Sokum's possession; information acquired incident to an arrest of Akdeniz some time before the search; and statements made by Sokum to arresting officers after the search; together with all other received evidence derivative from these. Finding no prejudicial error in the admission of any of this evidence, we affirm.

I

The factual background out of which these convictions grew is somewhat involved, but because many of its elements bear importantly upon the constitutional arguments advanced, it is necessary to recount it in some detail. It is the saga of a chase, remarkable among other things for its length, and for the sheer indomitability displayed throughout by both pursuers and pursued: the pursuers driven by duty, the pursued presumably by avarice, as the former attempted to intercept, the latter to introduce into this country for sale, a substantial quantity of heroin.

The saga began on May 25, 1977 with the receipt by the International Office of the Drug Enforcement Agency (DEA) of information that a quantity of heroin was concealed aboard the Turkish ship M/V General A. F. Cebesoy (CEBESOY), then scheduled to visit various American ports of call; that the heroin was then in possession of two seamen aboard the ship, one of them the defendant Nedim Bilir; and that these two would control it on board and effect delivery in the United States to two or more persons of Greek or Turkish extraction. DEA agents determined to place the ship under continuous surveillance in an attempt to foil the attempt and apprehend the participants. Surveillance was begun in Savannah, Georgia, CEBESOY's first port of call in this country, by DEA special agent Counihan and Customs Patrol officers. Two persons, later identified as the defendant, Nail Akdeniz, and one Bahtiyar Karagoz, approached the ship and told a customs agent, posing as a guard, that they wished to visit Karagoz's uncle who was supposed to be a cook on the ship. They were allowed to enter the area of the ship, walked around, but did not go aboard. They then left the port area and the federal agents followed them, the suspects in a black Ford Thunderbird with New York tags registered to Akdeniz. After awhile Karagoz left the Thunderbird, and returned to the port area in a taxi. Again telling the guard he was looking for his uncle, Karagoz entered the area of the CEBESOY, went up the gangplank and met the defendant Nedim Bilir at its top. They went into the ship for about an hour. Karagoz then left, returned to downtown Savannah and met Akdeniz. While the CEBESOY was docked in Savannah, the suspects, including now Bilir, met on a number of occasions in that port city under the surveillance of the federal agents.

The night before the CEBESOY was to leave, Bilir attempted to drive the Thunderbird and damaged it in a wreck. He and Karagoz were arrested by the Savannah police, Bilir for driving without a license and while intoxicated, Karagoz for offering one of the policemen a $100 bribe. The federal agents conveniently arranged for their release.

The CEBESOY then sailed to Jacksonville, Florida and the suspects Akdeniz and Karagoz followed in the Thunderbird under the agents' surveillance. Because their departure was delayed while the car was being repaired and because the CEBESOY left Jacksonville early in an attempt to make up some of the time lost in Savannah, the suspects arrived in Jacksonville just as the ship was sailing from that port. Undaunted, the two headed in the general direction of Texas, CEBESOY's next destination. Surveillance of the car was maintained for awhile after it left Florida going west, but was discontinued before the CEBESOY next made port in Texas. After failing to find dockage in Houston, the ship put into Galveston, where it anchored off-shore, thus preventing surveillance while there. The Thunderbird was spotted by the agents in Galveston, and Akdeniz and Karagoz were seen with it. When the CEBESOY sailed for New Orleans, the Thunderbird was followed from Galveston, through the Houston port area, to New Orleans. From there the suspects, still in the Thunderbird, headed north through Louisiana away from all the Gulf Coast ports.

The federal agents followed, but because of difficulty in keeping up, and because of the possibility that the heroin might have been removed from the CEBESOY in Galveston, decided to stop and arrest the suspects. The subsequent search produced no contraband. The suspects told the authorities that they were on their way to California for vacation. When the local U.S. attorney would not press charges, the suspects were released.

In light of the possibility that the heroin had already been smuggled into the country and the fact that the authorities had now tipped their hands, surveillance of the suspects was temporarily discontinued and efforts were concentrated on Baltimore, the CEBESOY's last port of call in the United States. Uniformed customs agents were stationed at the gangplanks in each of the CEBESOY's remaining ports of call other than Baltimore in the hope that this, together with the two arrests that had already occurred, would discourage any attempts to bring the heroin into the country at those places, and force an effort in Baltimore.

Surveillance was reinitiated in Baltimore on July 6, 1977, where a New York licensed taxicab, registered to Karagoz, was spotted at a Holiday Inn and placed under surveillance. After the CEBESOY docked, Bilir left the ship and met Akdeniz and the defendant Ziya Sokum in downtown Baltimore. From here the suspects left in a taxi, temporarily eluding the agents, who had been away from their own cars and were unable immediately to follow. The agents returned to the CEBESOY where soon the suspects were observed to return and board the ship. About an hour and a half later, at around 11:00 p.m., Akdeniz and Sokum left the ship. Sokum had worn a tight fitting yellow T-shirt when he boarded the ship, but when he left he was wearing a long sleeved, loose fitting blue shirt worn outside his pants. The agents recognized his attire as a style frequently used to "body-carry" drugs so as to hide any bulges. The three suspects were taken in a taxi driven by a DEA agent posing as a cab driver to a bar, which Sokum entered, returning in two or three minutes, and from there they were taken to a hotel. There, Akdeniz and Sokum were observed to enter a room between 11:30 and 11:45 p.m., having apparently checked in earlier. Bilir left the hotel and eventually returned to the CEBESOY. At this point the federal agents were in some doubt that the heroin had been brought from the CEBESOY, ² but they continued their surveillance. The hotel room was kept under constant external observation until Akdeniz and Sokum left it to check out. On one occasion, Sokum and Akdeniz left the room, but were watched while outside the room. On another occasion, Sokum came out, got some ice from the ice machine, and took it to the room. The agents saw no other material taken into the room by the two room occupants or any other persons.

About 5:00 a.m. on July 7, agent Counihan learned from the hotel desk that the suspects had registered under hispanic names and had given a Wilmington, North Carolina address and listed a fake North Carolina license number. He also learned that they had requested a wake up call for 5:00 a.m. About 5:15 a.m. Akdeniz and Sokum, the latter now carrying a suitcase the size of an overnight bag, checked out of the hotel and entered a taxi, again driven by a DEA agent. The bag had not been observed before nor had the jackets the men were wearing, so it was assumed that these had been placed in the room prior to their observed entry on the previous evening. Akdeniz and Sokum told the driver that they were going to New York and he took them to the Pennsylvania Railroad Station in downtown Baltimore. Sokum was overheard purchasing two tickets to New York on a train leaving at 6:30 a.m. The two suspects then met and about that time Akdeniz recognized Counihan as the person who had arrested him in Louisiana. The suspects separated, Akdeniz starting toward an exit and Sokum with the suitcase heading toward the boarding area. Counihan apprehended Akdeniz, and at some distance away, Supervisory Customs Patrol Officer Porter stopped Sokum and questioned him. Sokum said he was in Baltimore to visit a friend known only as Joe, denied knowing Akdeniz and denied having been aboard any ships. After requesting permission to...