U.S. v. Deweese

• Decision Date: 17 December 1980
• Docket Number: No. 79-5575,79-5575
• Citation: 632 F.2d 1267
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jay Hilery DeWEESE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1267

632 F.2d 1267

1984 A.M.C. 2406

UNITED STATES of America, Plaintiff-Appellee, v. Jay Hilery DeWEESE, Defendant-Appellant.

No. 79-5575.

United States Court of Appeals, Fifth Circuit.

Dec. 17, 1980.

Milton E. Grusmark, Miami, Fla., for defendant-appellant.

Stephen S. Cowen, Asst. U.S. Atty., Tampa, Fla., for plaintiff-appellee.

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

Before RONEY, HILL and FAY, Circuit Judges.

JAMES C. HILL, Circuit Judge:

At dawn on May 14, 1979 the "Cowboy," a large shrimping vessel, was stopped by a Coast Guard cutter in the Straits of Yucatan. Approximately 41,000 pounds of marijuana were discovered in the vessel's ice hold. This case is an appeal by the captain of the "Cowboy," Jay Hilery DeWeese, from a jury conviction for conspiracy to import marijuana into the United States. 21 U.S.C. §§ 952(a) and 963.

DeWeese's arguments fall into four categories. First, he contends that violations of the fourth amendment require that the marijuana be suppressed. Second, he argues that the district court lacks jurisdiction when the evidence fails to show that either the agreement to conspire or an overt act in furtherance thereof is committed in the United States. Third, he asserts that the evidence is insufficient to establish that he intended to import marijuana into the United States. Fourth, he maintains that the government violated Fed.R.Crim.P. 16 and the omnibus order in this case by failing to identify a witness, and provide a copy of the chart prepared by that witness, in a timely fashion. For the reasons set out below, we affirm.

I. Encounter in The Yucatan Straits

On the morning of May 14, 1979 the Coast Guard cutter "Point Lobos" was on patrol near the Straits of Yucatan some 250 miles from the United States. It observed an unidentified vessel on its radar approximately nine miles away. Upon closer investigation the vessel was identified as a large shrimp boat with the name "Cowboy" and the home port of "Mobile" painted on her stern.

When first sighted, the "Cowboy" was on a heading of 290 to 300 degrees, or northwest, at nine knots per hour. As the "Point Lobos" closed to within three miles, the "Cowboy" changed course to a heading of 340 degrees, or north-northwest. At a distance of approximately twenty-five yards the "Point Lobos" requested over its loudspeaker that the "Cowboy" stop for a boarding.

Petty Officer Helms led a three man boarding party onto the "Cowboy." The appellant identified himself as the captain. Mr. Helms told him that he was checking the "Cowboy" for compliance with United States laws. Record, Vol. IV, at B-12-13.

In response to Mr. Helms request DeWeese produced documentation papers which identified the "Cowboy" as an American flagship. No permits were produced which would allow the "Cowboy" to shrimp in foreign waters. An inspection of the vessel revealed one minor safety violation and the absence of a required oil pollution placard.

During the inspection both Mr. Helms and Coast Guardsman Gayle observed that the vessel was extremely clean. The rigging for the shrimp nets appeared unused. In addition, the metal strips on the boards used for dragging the nets on the ocean floor were rusty. This suggested the boards had not been used recently as the metal strips would have been shiny from contact with the ocean floor.

After inspecting the "Cowboy's" engine room, Mr. Helms asked DeWeese if he could look in the vessel's ice hold where the catch is generally stored. DeWeese responded, "Sure, but you're not going to like what you find." (Record, Vol. IV, at B-17). DeWeese and another crewmember proceeded to lift the hatch to the ice hold. A large number of marijuana bales could be seen from the deck. DeWeese and his four crewmembers were placed under arrest. Five-hundred and three bales of marijuana weighing over 41,000 pounds with a value of approximately $8,000,000 were seized.

DeWeese and the four crewmembers were indicted for conspiracy with each other and others unknown for a twofold purpose: importation and possession with intent to distribute. The trial of the crewmembers was severed. The charge of conspiracy to possess with intent to distribute was struck from the indictment. DeWeese was convicted by a jury on the charge of conspiracy to import. He appeals.

II. Search and Seizure on the High Seas

Appellant first argues that 14 U.S.C. § 89(a) is unconstitutional because it allows the Coast Guard to stop and board a vessel on the high seas without probable cause or reasonable suspicion. The fourth amendment prohibits only those searches and seizures that are unreasonable. This Circuit has found the Coast Guard's § 89(a) plenary authority to stop and board American vessels on the high seas to inspect for safety, documentation, and obvious customs and narcotics violations to be reasonable within the meaning of the fourth amendment. United States v. Williams, 617 F.2d 1063, 1075-78 (5th Cir. 1980) (en banc); United States v. Erwin, 602 F.2d 1183, 84 (5th Cir. 1979) (per curiam); United States v. Warren, 578 F.2d 1058, 1064-65 (5th Cir. 1978) (en banc). Such searches may be conducted "in the complete absence of suspicion of criminal activity." Williams at 1075.

Appellant's next contention leads us into less certain waters. Appellant asserts that even if we assume the Coast Guard correctly stopped and boarded the "Cowboy," Helms subsequent search of the ice hold was conducted without probable cause and is therefore violative of the fourth amendment.

Our inquiry properly begins with a determination of whether the disputed search has infringed an interest of the appellant which the fourth amendment was designed to protect. Rakas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 428, 58 L.Ed.2d 387 (1978). Specifically, we must decide whether or not DeWeese has a "legitimate expectation of privacy" in the ice hold of a large shrimping vessel. See Rawlings v. Kentucky, --- U.S. ----, 100 S.Ct. 2256, 2261, 65 L.Ed.2d 633 (1980).

Our most recent en banc encounter with search and seizure at sea embraces this initial inquiry required by Rakas. United States v. Williams, 617 F.2d 1063 (5th Cir. 1980) (en banc). In Williams we held:

We have concluded that "reasonable suspicion" is the appropriate fourth amendment standard by which to judge section 89(a) searches of the "private" areas-if there can be such areas-of the holds of vessels in international waters conducted for the purpose of discovering contraband or evidence of criminal activity.

617 F.2d at 1088.

In Williams we assumed that the defendant had a reasonable expectation of privacy in the hold, thereby avoiding the issue of what is necessary to constitute a privacy interest in the hold of a merchant vessel. Id., at 1084-85. We cannot, and should not, avoid that issue here.

It has been established that the fourth amendment's protection is not to be measured exclusively by the laws defining property rights, trespass, and the like. Rawlings v. Kentucky, --- U.S. ----, 100 S.Ct. 2556, 2562, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S., at 149-150, n.17, 99 S.Ct., at 434 n.17 (1978). One may have a protected expectation of privacy in the absence of property interest. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960). On the other hand, one may have fee simple title to property upon which he has no expectation of privacy. Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966). See Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898 (1924). For example, the owner of a mercantile establishment gives up any legitimate expectation of privacy as to goods and wares in his glass enclosed shop window.

Upon and within enclosed real or other property, expectation of privacy may vary from area to area. The outer walls of a single family residence will usually be coextensive with privacy therein. In a condominium building, all legitimately inside the building have free access to the common areas; an owner's expectation of privacy, vis-a-vis others properly inside, would normally be limited to the owner's private living quarters.

Within a property where some of the enclosed area is private to the individual and the rest freely accessible, there may yet remain an expectation of privacy as to persons not entitled to be upon the property at all. Marshall v. Barlow's, Inc., 436 U.S. 307, 314-15, 98 S.Ct. 1816, 1821-22, 56 L.Ed.2d 305 (1978). Nevertheless, in an area to which access is freely given to all properly and lawfully within the close, it is apparent that, as to them, a reasonable expectation of privacy does not exist in the common area. Cf. United States v. Dionisio, 410 U.S. 1, 13-16, 93 S.Ct. 764, 771, 35 L.Ed.2d 67 (1973) (the fourth amendment does not protect what "a person knowingly exposes to the public, even in his own home or office ....")

Of those legitimately aboard the "Cowboy" on the morning of May 14, 1979 was Petty Officer Helms. 14 U.S.C. § 89(a). United States v. Williams, 617 F.2d 1063, 1075-78 (5th Cir. 1980) (en banc); United States v. Erwin, 602 F.2d 1183, 1184 (5th Cir. 1979) (per curiam); United States v. Warren, 578 F.2d 1058, 1064-65 (5th Cir. 1978) (en banc). Though not pertinent to our task today, there may well have been enclosures to which Captain DeWeese and other individuals lawfully aboard retained a legitimate expectation of privacy. A crewman's foot locker, duffle bag, private cabin or quarters may well have been accessible to only that one individual and not others. The ice hold into which each would be expected to go (or, at least, to peer) was not such an area. ¹ There can be no legitimate expectation of privacy in those areas of a commercial vessel which are subject to the common access of those legitimately aboard the vessel. Cf. Coolidge v. New Hampshire, 403 U.S. 443,...