U.S. v. Cranston, s. 81-1481

• Citation: 686 F.2d 56
• Decision Date: 13 August 1982
• Docket Number: 81-1482,Nos. 81-1481,s. 81-1481
• Parties: 11 Fed. R. Evid. Serv. 872 UNITED STATES of America, Appellee, v. Alexander and Albert CRANSTON, Defendants, Appellants. UNITED STATES of America, Appellee, v. Bernard CRANSTON, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 56

686 F.2d 56

11 Fed. R. Evid. Serv. 872

UNITED STATES of America, Appellee, v. Alexander and Albert CRANSTON, Defendants, Appellants.

UNITED STATES of America, Appellee, v. Bernard CRANSTON, Defendant, Appellant.

Nos. 81-1481, 81-1482.

United States Court of Appeals First Circuit.

Submitted May 7, 1982.

Decided Aug. 13, 1982.

Willie J. Davis, Boston, Mass., on brief for appellants in 81-1481.

Owen S. Walker, Federal Defender Office, Boston, Mass., on brief for appellant in 81-1482.

William F. Weld, U. S. Atty., and Kevin J. O'Dea, Sp. Asst. U. S. Atty., Boston, Mass., on brief for appellee.

Before COFFIN, Chief Judge, BOWNES and BREYER, Circuit Judges.

BOWNES, Circuit Judge.

Appellants Alexander "Scott" Cranston (Scott), Albert "Joko" Cranston (Joko), and Bernard Cranston (Bernard) were charged, along with Murdock Cranston, in a 10 count indictment with conspiracy to import swordfish into the United States contrary to law, 18 U.S.C. §§ 371, 545 (count 1), and with nine acts of causing the illegal importation of swordfish (counts 2-10). The illegal importations were alleged to have taken place in August and September 1979, and in October 1980. Scott and Joko were found guilty on all counts, and Bernard on the conspiracy count and two of the substantive counts. Murdock, according to the government's brief, failed to appear for trial and is a fugitive.

Basically, the evidence showed that during the time frame embraced by the indictments, various captains, at the behest of one or another of the appellants, picked up swordfish either from a vessel hovering off Canadian shores or at a Canadian port and brought the fish to Gloucester, Massachusetts. The captains, who alone had the duty, all parties agree, to report to the United States customs (see, e.g., 19 U.S.C. §§ 1431(a), 1433, 1434) failed to do so, and the swordfish were illegally unloaded without being declared. See, e.g., 19 U.S.C. §§ 1448, 1461. Scott and Joko contend that no properly admitted evidence indicated they counseled, commanded, induced, or otherwise procured the captains not to report to customs or knew that the captains would be committing an illegal act by failing to report; therefore, they maintain, there was insufficient evidence to support their convictions for illegal importation or conspiracy to import illegally. They also argue that the trial court failed to follow the standards enunciated in United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1973), and United States v. Ciampaglia, 628 F.2d 632 (1st Cir.), cert. denied, 449 U.S. 956, 1038, 101 S.Ct. 365, 618, 66 L.Ed.2d 221, 501 (1980), governing the admission of co-conspirators' statements and that consequently one of Murdock's statements directing a captain not to report to customs was improperly admitted. Bernard, while believing there was sufficient evidence Scott and Joko acted together, contends there was insufficient evidence he entered an agreement with them or knew that their plan included illegal-as opposed to legal-importation. He also challenges the court's instruction on reasonable doubt.

A. Petrozziello Ruling

We start with Scott's and Joko's second argument. In United States v. Petrozziello 548 F.2d 20 (1st Cir. 1973), we stated that a district court may admit an out of court declaration of a co-conspirator under Fed.R.Evid. 801(d) (2)(E) provided "it is more likely than not that the declarant and the defendant were members of a conspiracy when the hearsay statement was made, and that the statement was in furtherance of the conspiracy," id., 23, and in United States v. Ciampaglia, 628 F.2d 632 (1st Cir. 1980), we added that Petrozziello rulings are to be made at the conclusion of all the evidence, id., 638. We adopted the following rule:

If the prosecution attempts to introduce into evidence an out-of-court declaration under Fed.R.Evid. 801(d)(2)(E), the trial court, upon proper objection, may conditionally admit the declaration. If the declaration is conditionally admitted, the court should inform the parties on the record out of the hearing of the jury that (a) the prosecution will be required to prove by a preponderance of the evidence that a conspiracy existed, that the declarant and defendant were members of it at the time that the declaration was made, and that the declaration was in furtherance of the conspiracy, (b) that at the close of all the evidence the court will make a final Petrozziello determination for the record, out of the hearing of the jury; and, (c) that if the determination is against admitting the declaration, the court will give a cautionary instruction to the jury, or, upon an appropriate motion, declare a mistrial if the instruction will not suffice to cure any prejudice.

United States v. Ciampaglia, supra, 628 F.2d at 638. As Scott and Joko now point out, the Petrozziello ruling was made on the second day of evidence rather than at the close of the evidence and the court, in shortened form, merely ruled there was sufficient evidence of a conspiracy among the defendants and Murdock to bring in swordfish and made no specific finding that the objected to conversation was in furtherance of the conspiracy. At trial, however, Scott and Joko made no objection directed either to the timing or content of the Petrozziello ruling; rather they, then as now, suggested the evidence at the time of the ruling was insufficient to support a finding of conspiracy. Because final Petrozziello rulings are supposed to be made at the close of the evidence and as alleged co-conspirators' statements may be admitted conditionally before then, we need not decide whether there was sufficient evidence of a conspiracy among the Cranstons to import swordfish illegally into the United States at the time Murdock's complained of statement was admitted into evidence. For reasons to be discussed, we conclude there was, at the close of the evidence, sufficient evidence of such a conspiracy, including substantial independent, non-hearsay evidence, and consequently we conclude that Murdock's statement was admissible under a proper application of the Petrozziello standard and that the deviations therefrom were not plain error. United States v. David E. Thompson, Inc., 621 F.2d 1147, 1153 (1st Cir. 1980); United States v. Pappas, 611 F.2d 399, 405 (1st Cir. 1979).

B. Sufficiency of the Evidence

We turn then to the evidence. Five captains testified concerning the various swordfish trips they had made to Canada. Additional evidence was provided by boat owners, deck hands, and customs agents. Viewed most favorably to the government, United States v. Cordero, 668 F.2d 32, 35 (1st Cir. 1981), the evidence included the following.

Donald Cameron, captain of the MRS. MARIA, testified that in August 1979 both Scott and Joko asked Cameron if he would like to make a couple of trips to Nova Scotia, Canada, pick up swordfish, and bring it back to the United States. Cameron agreed, and Scott and Joko said they would inform him when they had something set up. A week or so later, Scott and Joko gave Cameron the bearings of the pick up point and told him which boat to contact in Canada and which radio channel to use. Before departing, Cameron asked them what to do if caught by customs, and either Scott or Joko (Cameron did not remember which as they were always together) replied in the presence of the other, that Cameron should say he caught the swordfish but had lost his fishing gear on the last set. Cameron thereafter sailed to Canada, picked up the swordfish, and returned to Gloucester, radioing Scott and Joko before entering the harbor. Scott and Joko met Cameron at a specified dock, and the swordfish were unloaded onto waiting U-haul trucks. Cameron did not report to United States customs. Cameron thereafter made two more trips at Scott's and Joko's direction, both times failing to report to United States customs. Several hours after his return from the third trip and while the swordfish were being unloaded by Scott, Joko, Bernard and others, Cameron was questioned about the fish by a customs agent. As prearranged, Cameron replied he had caught the fish, but as some of the fish already had weights stamped on them, his story was not convincing and Cameron was arrested.

Cameron's testimony alone was sufficient to establish that Scott and Joko conspired with each other to import swordfish into the United States contrary to law. From their advice to Cameron to lie to customs if caught, it can be inferred that they knew a captain of a United States vessel returning from a foreign place had a duty to report to United States customs and that they counseled against reporting. While Cameron's testimony, as recited so far, provided sufficient evidence to sustain Scott's and Joko's conviction on the conspiracy count and on three of the substantive illegal importation counts, Murdock's and Bernard's membership in the conspiracy, as well as six substantive counts, remain. We therefore continue with the evidence.

After Cameron was released from custody, he met with Scott and Joko. They wanted Cameron to talk with Murdock Cranston, who was in Canada, so they took Cameron to a pay phone in a department store basement. Murdock was on the line and said, "Just be cool and keep things quiet and things would be taken care of." Thereafter, Joko asked Cameron not to involve him because he (Joko) had a family and was not really part of things.

Elizabeth Akerley, captain of the PATROL, testified that Scott approached her in August 1979 and asked if she would like to pick up swordfish in Canada and transport them to Gloucester. She agreed, and Scott provided her with pertinent information for contacting and meeting, off the shore of a small Canadian island, a vessel from which to offload the swordfish. Scott gave her Murdock's telephone number in Canada and told her to notify Murdock "(i)n case something should go wrong." Akerley transported the fish to Gloucester, but intentionally...