U.S. v. Caicedo-Asprilla

• Decision Date: 26 November 1980
• Docket Number: A,CAICEDO-ASPRILL,No. 78-5544,78-5544
• Citation: 632 F.2d 1161
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Franciscontonio Barrios-Hoyos, Juan Calixto-Comacho, Juan Carlos Cinotto-Pantuso, Thomas Miranda-Barrios, Cristobal Fernandez-Gomez, Washington Archibald-Robinson, Guillermo Gonzales, Wilfrido Carfarzuza-Cortina, Delio Diaz-Lopez, Jaime Alvarez-Herrera, Cesar Zuniga-Lopez and Marcelo Manuel Cantera-Duyos, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1161

632 F.2d 1161

UNITED STATES of America, Plaintiff-Appellee, v. Francisco CAICEDO-ASPRILLA, Antonio Barrios-Hoyos, Juan Calixto-Comacho, Juan Carlos Cinotto-Pantuso, Thomas Miranda-Barrios, Cristobal Fernandez-Gomez, Washington Archibald-Robinson, Guillermo Gonzales, Wilfrido Carfarzuza-Cortina, Delio Diaz-Lopez, Jaime Alvarez-Herrera Cesar Zuniga-Lopez and Marcelo Manuel Cantera-Duyos Defendants-Appellants.

No. 78-5544.

United States Court of Appeals Fifth Circuit.

Nov. 26, 1980.

Ramon Clark Calafell, Jr., Tampa, Fla. (Court-appointed), for fernandez-gomez.

Enrique Escarraz, III, St. Petersburg, Fla. (Court-appointed), for Archibald-Robinson.

F. Dennis Alvarez, Tampa, Fla. (Court-appointed), for Gonzales.

Anthony Alfonso, Jr., Tampa, Fla. (Court-appointed), for Carfarzuza-Cortina.

Anthony P. Prieto, Tampa, Fla. (Court-appointed), for Diaz-Lopez.

Elvin L. Martinez, Tampa, Fla. (Court-appointed), for Alvarez-Herrera.

Frederick Allen Garcia, Tampa, Fla. (Court-appointed), for Zuniga-Lopez.

Thomas M. Gonzalez, Tampa, Fla. (Court-appointed), for Caicedo-Asprilla.

Philip J. Padovano, Tallahassee, Fla. (Court-appointed), for Barrios-Hoyos.

James D. Arnold, Tampa, Fla. (Court-appointed), for Calixto-Comacho.

Frank A. Gomez, Tampa, Fla. (Court-appointed), for Cinotto-Pantuso.

Jesse V. Dominguez, Tampa, Fla. (Court-appointed), for Miranda-Barrios.

Henry Gonzalez, Tampa, Fla., for Cantera-Duyos.

John E. Lund, Asst. U. S. Atty., Tampa, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before WISDOM, TJOFLAT and REAVLEY, Circuit Judges.

TJOFLAT, Circuit Judge:

The thirteen defendants in this case appeal their convictions for conspiring to import marijuana into the United States, and for distributing marijuana with knowledge that it would be unlawfully imported into the United States. 21 U.S.C. §§ 952(a), 959(2), 963 (1976). They assert numerous grounds for reversal: (1) the trial judge was disqualified to try the case and should have recused himself; (2) the district court lacked subject matter jurisdiction; (3) the evidence is insufficient to sustain the convictions; (4) the marijuana admitted into evidence at trial was seized in violation of the defendants' fourth amendment rights and should have been suppressed; (5) tainted in-court identifications of some of the defendants violated the fifth amendment; and (6) the prosecutor improperly commented during closing argument on the failure of some of the defendants to take the stand and testify. We find no reversible error and affirm.

I

Late in the evening of April 13, 1978, the United States Coast Guard boarded a 30 foot Chris Craft power boat, the MERMAID, in the inland waters of Lee County, Florida, and discovered the residue from a cargo of marijuana. The three occupants of the boat were placed under arrest and turned over to deputies of the Lee County Sheriff's Office. One of the occupants, Jerry Lee Sylvester, confessed that he had gotten the marijuana from a mother ship located 45 to 55 miles out in the Gulf of Mexico, off the tip of Sanibel Island. The ship was described by Sylvester as being 70 to 80 feet long, with a forward cabin and a large aft hold; he described its crew as Colombian.

Ensign John Holmes, the Duty Agent at the Coast Guard Intelligence Office in Miami, was advised of the marijuana seizure, but not of the contents of Sylvester's statement to the Lee County Sheriff's Office. Holmes promptly began coordinating efforts to determine whether the power boat had acquired the marijuana from a larger vessel in the Gulf. A Coast Guard helicopter pilot flying a routine fisheries patrol spotted the ALBAZUL, a 75-foot fishing vessel with white and blue trim, a forward cabin and large aft hold, anchored approximately 52 miles off the west coast of Florida. The vessel looked suspicious since it was not rigged for fishing, and five persons were on deck at a time when fishing boat crews normally sleep. Furthermore, the vessel flew no flag. When the pilot made two low passes in an attempt to identify it, the ALBAZUL got underway at high speed, overrunning its anchor. The pilot radioed an account of this activity to Ensign Holmes.

Ensign Holmes immediately contacted the Customs Service in Tampa and was informed of Sylvester's confession to the Lee County Sheriff's deputies. Holmes requested Customs to obtain a more detailed description of the mother ship from Sylvester. This was done and Holmes was advised that the mother ship was a fishing vessel with white and blue trim and two booms. Because this description matched the one given by the helicopter pilot, Holmes ordered the Coast Guard cutter POINT SWIFT to the area of the ALBAZUL. Meanwhile, a Coast Guard fixed wing aircraft searched a 65 by 35 mile area around the ALBAZUL and discovered no other vessel that fit its description.

At approximately 3:45 p. m. on April 14, the POINT SWIFT made visual contact with the ALBAZUL and hailed the vessel. A few minutes later, the POINT SWIFT monitored a Spanish-language radio report which, it assumed, emanated from the ALBAZUL. The speaker indicated that the Coast Guard was following his vessel, that those aboard his vessel had been unable to move anything because of the tight surveillance, and that he had not received any instructions from the "head man" to discard anything. At 4:35 p. m. the crew of the POINT SWIFT observed items from the ALBAZUL being thrown overboard. The POINT SWIFT immediately notified the ALBAZUL that it wished to board. As the POINT SWIFT pulled alongside and as the Coast Guardsmen prepared to board, Chief Turpin detected the smell of marijuana. Once aboard, Turpin was approached by the ALBAZUL's captain, appellant Calixto-Comacho, who asked Turpin, "What do you want, my marijuana?" Record, vol. 5 at 151, 162. The Coast Guardsmen subsequently discovered marijuana scattered on the ALBAZUL's deck, more than 200 bales of marijuana in its hold and additional marijuana scattered in the crew's quarters.

No documentation of the ship's registry was ever found. On the cabin the word "Panama" appeared beneath the name ALBAZUL, but another nameplate bearing "MARINER, TAMPA, FLORIDA" was discovered elsewhere.

At trial, the Government's proof indicated that the defendants were involved in a sophisticated marijuana smuggling operation. Sylvester testified that he had been given detailed plans and code names to aid him in his rendevous with the ALBAZUL and that he was to be paid $120,000 for smuggling 6000 pounds of marijuana into the West Coast of Florida. He identified appellants Calixto-Comacho and Cantera-Duyos as those in charge of the ALBAZUL; they were the ones with whom he dealt and whom he observed giving the orders to the ship's crew.

Two of the thirteen defendants, Calixto-Comacho and Diaz-Lopez, took the stand in their own defense. Calixto-Comacho testified that he was forced to participate in the venture because he owed money to those backing the smuggling operation, and they were threatening to kill his family. Diaz-Lopez, however, testified that he thought he was being hired as a crew member for a coffee freighter, and that he did not realize that the cargo was not coffee until they were at sea.

II

Appellants argue that the trial judge was disqualified to try the case and should have granted their pretrial motion for recusal. Early in the proceedings they filed motions, with supporting affidavits, pursuant to 28 U.S.C. § 144 (1976), alleging that the judge was prejudiced against anyone, especially aliens, who engaged in narcotics smuggling. They cited a comment the judge made in a previous marijuana smuggling case to the effect that he would deal as sternly as the law would permit with those caught importing narcotics. We addressed this precise issue in United States v. Serrano, 607 F.2d 1145, 1149-51 (5th Cir. 1979), cert. denied, 445 U.S. 965, 100 S.Ct. 1655, 64 L.Ed.2d 241 (1980). There, relying on the comment cited here, the defendants claimed that this trial judge was biased and thus disqualified. We held that the judge properly denied the motions for recusal because the alleged bias was judicial rather than personal. Since the allegations presently before us suggest no different source of bias, Serrano controls, and we must hold that the judge's decision to proceed to trial in this case was not error.

III

Appellants claim that the seizure of the ALBAZUL was in violation of a treaty between the United States and Panama, 43 Stat. 1875 (1924), and that the district court therefore lacked subject matter jurisdiction. We need not determine whether a violation of the treaty precluded the district court from exercising jurisdiction in this case. The ALBAZUL flew no flag and had no documentation indicating its registry. No evidence was ever presented to establish its claimed Panamanian registry. In short, there is no support in this record for the appellants' jurisdictional attack.

Appellant Zuniga-Lopez questions the district court's power to try this case on another ground. He argues that the criminal statutes under which he and the others were charged have no extraterritorial application and therefore could not reach conduct engaged in by them 50 miles out in the Gulf of Mexico. We have previously entertained this argument and have rejected it. The defendants were tried for conspiring to import marijuana and for distributing marijuana knowing that it would be unlawfully imported into the United States. Even though these acts may have occurred outside the territorial limits of the United States, they clearly had effects within United States territory, including territory over which the court below has jurisdiction. Thus, jurisdiction was proper. United States v. Williams, 617 F.2d 1063 (5th Cir. 1980) (en banc); United States v. Cadena, 585 F.2d 1252, 1257 (5th Cir. 1978); United States v. Winter, 509 F.2d 975, 980-89 (5th Cir. 1975).

IV

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