U.S. v. Castro

• Decision Date: 06 June 1979
• Docket Number: 78-5660,Nos. 78-5510,s. 78-5510
• Citation: 596 F.2d 674
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Celio CASTRO and Ralph Alfonso, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Albert GREENE, Jr., Defendant-Appellant. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 674

596 F.2d 674

UNITED STATES of America, Plaintiff-Appellee, v. Celio CASTRO and Ralph Alfonso, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Albert GREENE, Jr., Defendant-Appellant.

Nos. 78-5510, 78-5660

Summary Calendar. ^*

United States Court of Appeals, Fifth Circuit.

June 6, 1979.

Manuel W. James, Key West, Fla., for Castro.

Alvin E. Entin, Ronald A. Dion, North Miami Beach, Fla., for Castro and Alfonso.

John F. Daniel, Panama City, Fla., for Alfonso.

Nickolas P. Geeker, U. S. Atty., Pensacola, Fla., Donald S. Modesitt, Asst. U. S. Atty., Tallahassee, Fla., for plaintiff-appellee.

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

Before CLARK, GEE, and HILL, Circuit Judges.

GEE, Circuit Judge:

Appellants Celio Castro, Ralph Alfonso and Albert Greene, Jr. were jointly indicted for conspiracy to possess marijuana with intent to distribute and for possession thereof with intent to distribute, violations of 21 U.S.C. §§ 841(a) (1) and 846. Greene failed to appear for trial at the appointed hour and was later tried separately; all were convicted and now appeal. All urge that the customs' search of the shrimper on which they were arrested was unconstitutional. Castro and Alfonso additionally complain of the admission of an out-of-court statement by Greene, about the admission of a list found in Castro's wallet after arrest, and about the jury charge concerning the voluntariness of Castro's confession. Finding no merit in their various arguments, we affirm.

Around 8:00 a. m. on December 29, 1977, officers of the U. S. Customs Service stationed at Panama City, Florida, received word from a Florida Marine Patrol officer that an unknown shrimp boat captain had reported observing a shrimp boat named TINILA five to six miles from St. George Island, an offshore island running roughly parallel to the Florida panhandle near Apalachicola. The area is a known scene of contraband smuggling. The captain had seen high speed boats going to and from the TINILA, which he described as a 65 to 70 foot shrimp boat, white with blue trim, with the home port of "Key West, Florida," painted on the stern. Though a customs officer testified that he understood the report as meaning that the vessel was south of the island and therefore in international waters in the Gulf of Mexico, it is apparently admitted that the vessel might have been to either side of, or even north of, the island and thus possibly in intracoastal or other national waters when it was observed by the shrimper.

Around 1:30 p. m. that day, a vessel named TANILA and matching the description of the vessel reported earlier was observed passing under a bridge on the Intracoastal Waterway near Choctawhatchee Bay. It was heading eastward toward the open waters about 20 miles distant. Customs agents checked with the Coast Guard documentation officer in Washington, D. C. and were informed that no vessel of the name TANILA was documented. Three customs officers intercepted the vessel as it reached the West Bay Bridge and boarded to determine the boat's nationality, to check its documentation, and to determine whether the boat had come from foreign waters. One officer went immediately to the cabin to inspect the documents, but none were produced. Another officer simultaneously observed marijuana debris scattered loosely about the open deck. After a field test verified the nature of the marijuana, the appellants were arrested and the vessel was seized. The officers continued to search the boat as it was escorted to port. In the crew's cabin they found a paper plate holding marijuana residue and a marijuana cigarette. A grocery bag full of marijuana was found in Greene's bed. Greene admitted that it was his "stash." A box of the substance was also found in the captain's quarters. Castro stated that it was his, that Santa Claus had given it to him.

Since there had been no known, recent "nexus" to the border, appellants argue that the customs agents exceeded their constitutional authority in boarding and searching their boat, which had been observed by the officers only in inland waters. This theory fails. A recent nexus to the border is not a prerequisite for an investigatory stop based on reasonable suspicion. United States v. Whitmire, 595 F.2d 1303 (5th Cir. 1979) (No. 77-5359). At the time of the boarding, the customs agents possessed sufficient articulable facts to support an inference that the TANILA was involved in smuggling contraband. Boarding to determine the vessel's identity and documentation was a reasonable response to that suspicion. Once aboard, the agents saw marijuana debris in "plain view" upon the deck, providing probable cause for an intensive search of the vessel. United States v. Freeman, 579 F.2d 942, 947-48 (5th Cir. 1978). On this record we decline to reach the question whether customs' statutory authority under 19 U.S.C. § 1581(a) constitutionally allows the boarding of a vessel, sighted initially in inland waters, even absent reasonable suspicion. See United States v. Whitaker,592 F.2d 826 (5th Cir. 1979); United States v. Freeman, supra, in which that question was decided as to vessels sighted in "customs waters" and boarded there or subsequently in intracoastal waterways.

The second point of error involves the use at Alfonso and Castro's trial of Greene's post-arrest statements. While cross-examining one of the arresting customs officers, the attorney for appellant Alfonso sought to shift blame to the absent Greene by asking whether Greene was the person aboard who had been...