U.S. v. Byers, 78-5762
| Decision Date | 13 August 1979 |
| Docket Number | No. 78-5762,78-5762 |
| Citation | 600 F.2d 1130 |
| Parties | 4 Fed. R. Evid. Serv. 766 UNITED STATES of America, Plaintiff-Appellee, v. Jerry Alton BYERS, Robert Hugh Donahoe, Ronald Ray Versteeg, David Robert Poad, and Leonard Earl Higginson, Jr., Defendants-Appellants. Summary Calendar. * |
| Court | U.S. Court of Appeals — Fifth Circuit |
Frank Louderback, St. Petersburg, Fla., for Byers, Donahoe, Versteeg and Higginson.
James R. Dirmann, Sarasota, Fla., for Poad.
Judy S. Rice, Asst. U. S. Atty., Tampa, Fla., for plaintiff-appellee.
Appeals from the United States District Court for the Middle District of Florida.
Before AINSWORTH, CLARK and VANCE, Circuit Judges.
On May 13, 1978 the lookout for the Coast Guard Cutter STEADFAST saw several persons jumping from a white cabin cruiser to a red and white Magnum speedboat. The Magnum then sped off in a northeasterly direction, with the persons on board the Magnum flinging into the water bales of a substance later found to be marijuana. A party from the STEADFAST boarded the cabin cruiser and found it to be abandoned. A further search disclosed that forty-nine bales of marijuana and various personal effects remained on board. Thirty-eight bales of marijuana were found floating in the water. Two hours later, a customs plane spotted a Magnum boat dead in the water approximately ten miles to the northeast. The party from the STEADFAST also boarded the Magnum boat, but it too had been abandoned. No marijuana was found on board. When the STEADFAST came upon a shrimp boat approximately two hours later, the captain of the shrimp boat identified five men on the boat as persons he had picked up from the abandoned Magnum. These five persons, David Robert Poad, Leonard Earl Higginson, Jr., Ronald Ray Versteeg, Terry Alton Byers, and Robert Hugh Donahoe, were arrested, charged with conspiracy to possess and import marijuana with the intent to distribute, and were convicted. Presenting a number of different contentions, the alleged conspirators appeal. We affirm.
Defendants challenge the Coast Guard's searches of both the cabin cruiserand the Magnum. Since the right to be free from unreasonable searches and seizures is personal in nature, each defendant must show that the disputed search and seizure "has infringed an interest of the defendant which the Fourth Amendment was designed to protect." Rakas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 429, 58 L.Ed.2d 387, 399 (1978). Thus, each defendant must show that he has standing to challenge the searches. In order to establish standing a defendant must establish either that he had a "legitimate expectation of privacy" in the premises searched, Id. at 143, 99 S.Ct. at 430, 58 L.Ed.2d at 401, or that possession of the seized item at the time of seizure is an essential element of the offense charged, Id. at 135, 99 S.Ct. at 426, 58 L.Ed.2d at 395. No defendant met either requirement here. They were not on board either of the boats during the searches nor have they established any legitimate expectation of privacy with regard to the interiors of either of the abandoned boats. Possession of the personal articles seized is obviously not an essential element of the crimes with which defendants were charged, though the articles were important evidence in connecting defendants with criminal conduct. Similarly, possession of marijuana at the time of the seizure is not an essential element of the crimes of conspiring to possess marijuana with the intent to distribute it, United States v. Archbold-Newball, 554 F.2d 665, 678-79 (5th Cir. 1977), Cert. denied,434 U.S. 1000, 98 S.Ct. 644, 54 L.Ed.2d 496 (1978), or of conspiring to import marijuana with the intent to distribute it, United States v. Reyes,595 F.2d 275, 279-280 (5th Cir. 1979). Thus, defendants have no standing to challenge the validity of the searches and seizures.
All defendants challenge the sufficiency of the evidence to convict them. This contention is without merit; the evidence against them was overwhelming. In addition to the evidence placing them near the scene of the crime, Poad's wallet, identification belonging to Higginson, and a photograph of three of the alleged conspirators were all found on board the cabin cruiser. A duffle bag belonging to Donahoe was found on the Magnum boat. The prosecution established that Poad had access to the cabin cruiser and its keys. This evidence and the remaining evidence presented at trial was clearly sufficient to convict.
Byers, Versteeg and Donahoe assert that Poad's wallet and Higginson's identification should have been excluded under Federal Rule of Evidence 403 since the probative value of the evidence was substantially...
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