U.S. v. D'Antignac, 79-5007

• Decision Date: 20 October 1980
• Docket Number: No. 79-5007,79-5007
• Citation: 628 F.2d 428
• Parties: 6 Fed. R. Evid. Serv. 1012 UNITED STATES of America, Plaintiff-Appellee, v. Auviene D'ANTIGNAC, a/k/a Jack D'Antignac, Patrick Glen Knight, Thomas Olden Thornton, Timothy David Cahill and Robert Wheeler Welch, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 428

628 F.2d 428

6 Fed. R. Evid. Serv. 1012

UNITED STATES of America, Plaintiff-Appellee, v. Auviene D'ANTIGNAC, a/k/a Jack D'Antignac, Patrick Glen Knight, Thomas Olden Thornton, Timothy David Cahill and Robert Wheeler Welch Defendants-Appellants.

No. 79-5007.

United States Court of Appeals Fifth Circuit.

Oct. 20, 1980.

Andrew A. Taylor, Brunswick, Ga., for D'Antignac.

Fred Dalton Thompson, Nashville, Tenn., James K. Jenkins, Atlanta, Ga., for Knight.

William F. Braziel, Jr., Savannah, Ga., for Thornton and Cahill.

Wilbur C. Smith, III, Fort Myers, Fla., for Welch.

William H. McAbee, II, Kathrine L. Henry, Melissa S. Mundell, Asst. U. S. Attys., Savannah, Ga., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Georgia.

Before INGRAHAM, RONEY and THOMAS A. CLARK, Circuit Judges.

ON PETITIONS FOR REHEARING

INGRAHAM, Circuit Judge:

Petitions for rehearing have been filed by all five defendants, and upon reconsideration of our prior slip opinions of May 2, 1980 and August 15, 1980, we vacate both opinions in their entirety and substitute in their place the following, which becomes the opinion of this court.

On July 11, 1978, the five defendants Auviene D'Antignac, Patrick Knight, Thomas Thornton, Timothy Cahill and Robert Welch were indicted on four counts involving approximately 28,310 pounds of marijuana, a Schedule I Controlled Substance. The counts alleged were: 1) importation; 2) possession with intent to distribute; 3) aiding and abetting; and, as is the custom in a scheme of this magnitude, 4) conspiracy to commit the two substantive offenses. ¹ The indictment, to which all defendants pleaded not guilty, followed after the seizure and subsequent search of the M/V Little Hornet. After defendants' motion to suppress the marijuana was denied by the district court, the case went to trial and a jury convicted the defendants of all four counts of the indictment. Defendants each perfected an appeal to this court, the primary thrust of which is directed at the district court's denial of the suppression motion. For the reasons set out below, we affirm.

To begin with, this excursion involves another character who was granted immunity from prosecution in exchange for his testimony regarding this joint adventure. The unindicted co-conspirator, Jack Gore, owned several shrimp boats which he docked near Valona, McIntosh County, Georgia, at a dock he had purchased known as the old Kittles' Dock. In the early spring of 1978, Gore was approached by defendant D'Antignac with his potential get-rich-quick scheme. ² This venture involved the use of Gore's shrimp boats to transport a large shipment of Columbian marijuana from South America to the United States. According to their plans, Gore himself would not be on board the Little Hornet during her journey.

At the time the initial arrangements were being discussed between Gore and D'Antignac, all of Gore's boats, with the possible exception of one old shrimp boat, were in the Gulf of Mexico, apparently fishing. The two met in Fort Myers, Florida, to finalize their plans and to ready the Little Hornet for the trip to South America. It was at this time that Gore first met the other defendants, all of whom allegedly assisted in securing supplies and loading them on the Little Hornet for the trip. ³ Although Gore's ability to recall the initial encounters with the other defendants is somewhat disputed by them, it is clear that Gore did identify them as the ones who were in Fort Myers during the final days of preparation.

All plans having been finalized, the Little Hornet departed for Colombia sometime in the latter part of May 1978. During the time just prior to her departure, and then continuously thereafter, Gore and D'Antignac kept in constant contact with each other using a rudimentary telephone code. According to the plan, Gore's only remaining duty was to be ready to pilot the boat into Kittles' Dock upon her return.

The Little Hornet returned from Colombia, her holds laden with marijuana, and on June 8, she was approximately 20-30 miles seaward of Mayport, Florida. That evening, Gore and several other persons boarded the M/V Miss Shantell and headed out to meet the Little Hornet. ⁴ The rendezvous was at approximately 12 P.M. the next day, June 9, and after some brief discussion between Gore and the three crew members of the Little Hornet, Thornton, Cahill and Knight, both vessels headed back toward Sapelo Sound, just off the Georgia coast.

Once they all reached the Sound, Gore boarded the Little Hornet, as planned, to pilot her through the Intercoastal Waterway to Kittles' Dock. While en route, a smaller boat carrying at least two persons pulled up to her stern and defendant Welch boarded the Little Hornet. Shortly thereafter, around 11 P.M., Gore guided her in to the dock, his task completed.

Defendant D'Antignac now appeared at the dock and all five defendants prepared to unload their cargo. They strung up some lights to assist them. However, when the truck into which the marijuana would be loaded ran into the utility pole and knocked out all the lights and power, the defendants had to alter their plans. D'Antignac phoned Gore and told him the boat would be leaving Kittles' Dock. The Little Hornet thus began her fateful journey back out to the Intercoastal Waterway, her belly still laden with the cargo of marijuana.

On the evening of June 9, around midnight, Customs Patrol Officer Duane Swigert and some county deputies were at Brannen's Dock in Belleville, Georgia, awaiting the return of other officers investigating an unrelated matter. Looking over the area through his binoculars, Officer Swigert noticed a light atop the mast of a vessel out in the Intercoastal Waterway, about four miles away. He watched the movements of the vessel for approximately one hour; the vessel continuously moved north and then south, changing its course between the lighted channel markers several times before finally heading in toward the Valona dock area. These erratic movements, coupled with the late hour, aroused his suspicions. He decided to investigate, so he and his fellow officers drove the five miles down the road to the Valona dock area, losing sight of the mastlight at several points along the way.

Upon arriving, Officer Swigert and his men turned off their car lights and headed into the dock area. The Little Hornet, with her name clearly appearing on her port and starboard bow, was pulling into the dock. Recalling that he had received a memorandum from his office indicating that Gore's boats, including the Little Hornet, were suspected of being involved in smuggling contraband, and observing the arrival of one of Gore's shrimp boats, coupled with the fact that to his knowledge the coastal waters were closed for shrimping, Officer Swigert's suspicions increased. He therefore decided to investigate further after the boat was docked.

After the Little Hornet was secured to the dock, Officer Swigert approached the vessel, showed his credentials to the occupant and announced he was coming aboard, although he did not have his service revolver drawn. Defendant Cahill immediately stepped back, raised his hands in disbelief and Officer Swigert boarded. He took one step to the doorway of the pilothouse, where he saw defendant Thornton, the other remaining crew member. More importantly, however, he saw a large, partially opened bale right in front of his feet. Through the opening, Officer Swigert had within his plain view a quantity of a green leafy substance. He bent down and took a handful to inspect it and, after smelling it, determined that it was marijuana. He then drew his revolver and arrested Thornton. Cahill was brought in by a deputy and he too was arrested. The officers conducted an on-the-spot search of the cargo hold, which revealed the 28,310 pounds of marijuana.

When the Little Hornet and defendants Cahill and Thornton were secured, Officer Swigert and Deputy Ray Proudfoot left the boat and dock area to summon more police and set up roadblocks. As they pulled away, a Ford Econoline van carrying defendants D'Antignac, Welch and Knight approached and signaled a left turn into the dock area, which was approximately 100 yards from the roadway. Officer Swigert's suspicions, based on his experience, told him that someone would be arriving to unload the marijuana so he stopped the van right after it completed the turn. He decided to question the three individuals to see if they had come to pick up the marijuana so he asked them to step out of the van. Questioning as to their identity and place of residence ensued but the responses were evasive and uninformative. Deputy Proudfoot identified the driver as defendant D'Antignac. Officer Swigert noticed a gun in a shoulder holster on the suspect later identified as defendant Knight and he therefore instructed deputy Proudfoot to remove it. The third occupant was later identified as defendant Welch. Officer Swigert immediately arrested them for investigation as suspects in connection with the marijuana found on board the Little Hornet.

The five defendants were indicted by the grand jury on four counts arising out of the marijuana importation venture. Gore was named a co-conspirator but was unindicted in exchange for his testimony about the scheme. The defendants moved to suppress the marijuana, alleging an unlawful seizure and subsequent search of the Little Hornet. The motion was denied and the case was tried to a jury. All five defendants were convicted on all counts and each properly perfected his appeal.

On appeal, defendants argue four main points of error, each of which they contend warrants reversal of their convictions. First, the district court erred in denying defendants' motion to suppress the marijuana. Second, the district court erred in overruling defendants' objection to the testimony of unindicted co-conspirator Gore on the grounds that it...