U.S. v. Elkins, s. 84-1604

• Decision Date: 09 October 1985
• Docket Number: Nos. 84-1604,84-1634,s. 84-1604
• Citation: 774 F.2d 530
• Parties: UNITED STATES of America, Appellee, v. Ralph ELKINS, Defendant, Appellant. UNITED STATES of America, Appellee, v. Silvio MONRABAL, Defendant, Appellant. UNITED STATES of America, Appellee, v. Eugene Tillmon CALHOUN, Defendant, Appellant. UNITED STATES of America, Appellee, v. Frank FUENTES, Defendant, Appellant. to 84-1636.
• Court: U.S. Court of Appeals — First Circuit

Page 530

774 F.2d 530

54 USLW 2242

UNITED STATES of America, Appellee, v. Ralph ELKINS, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Silvio MONRABAL, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Eugene Tillmon CALHOUN, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Frank FUENTES, Defendant, Appellant.

Nos. 84-1604, 84-1634 to 84-1636.

United States Court of Appeals, First Circuit.

Argued May 6, 1985.

Decided Oct. 9, 1985.

Stephen J. Golembe, Miami, Fla., with whom Mishkin & Golembe, Miami, Fla., was on brief, for defendants, appellants.

Juan A. Pedrosa, Asst. U.S. Atty., San Juan, Puerto Rico, with whom Daniel F. Lopez Romo, U.S. Atty., Hato Rey, Puerto Rico, was on brief, for appellee.

Before CAMPBELL, Chief Judge, COFFIN and TORRUELLA, Circuit Judges.

COFFIN, Circuit Judge.

Defendants-appellants, the master and crew members of the M/V BLUE LIGHT, an American flagship vessel, appeal their convictions for, inter alia, aiding and abetting the possession with intent to distribute marijuana. 21 U.S.C. Sec. 955a, 18 U.S.C. Sec. 2. Appellants argue that their convictions should be overturned or a new trial granted as a result of: (1) the district court's denial of their motion to suppress the evidence seized from the M/V BLUE LIGHT, (2) the court's refusal to exclude or neutralize testimony commenting on appellants' silence and the invocation of the privilege against self-incrimination, and (3) the court's failure to adequately warn appellants of the inherent conflicts of joint representation 587 F.Supp. 964. As to three of the four appellants we find reversible error, and remand their case to the district court for retrial.

Appellants were on board the M/V BLUE LIGHT when it was sighted by the United States Coast Guard Cutter ESCAPE on the high seas, off the coast of the Bahamas. The ESCAPE, following its customary practice of conducting a document and safety check of all American flagship vessels on the high seas, tracked the course of the M/V BLUE LIGHT and within several hours closed upon the vessel. During that time the Coast Guard observed no suspicious behavior; the boat continued to travel in the same general direction, at the same speed, and responded to all radio contacts. The Coast Guard made physical contact with the M/V BLUE LIGHT nine miles from Key Santo Domingo, Bahamas and was given permission to board the boat for a document and safety inspection. Appellants willingly surrendered their documents, which were found to be in order.

The four appellants, Mr. Elkins, the master of the ship, Mr. Calhoun, and Mr. Fuentes, who are all American citizens, and Mr. Monrabal, who is a Cuban citizen, were the only persons on board the M/V BLUE LIGHT. Appellant Elkins stated that the boat and crew had set out from Bimini, Bahamas three or four days earlier, that they had been cruising around the Bahamas, and that they were on their way back to Miami, Florida. The ostensible purpose of the trip was to give appellant Elkins an opportunity to test the vessel to determine whether he wished to become its permanent master.

While the boarding party conducted a safety sweep of the boat, Mr. Elkins accompanied Lt. McCarthy, the boarding officer, on his inspection. Lt. McCarthy testified that he observed several potential safety hazards and peculiarities of the boat including what he believed to be a leak in the fuel tank. There was a pervasive odor of diesel fuel throughout the boat and puddles of fuel near the tanks. The cap to one fuel tank was missing and looked as if it had been improperly repaired. In addition, the fuel tanks were disproportionately large for a boat the size of the M/V BLUE LIGHT, and had numerous newly welded patches, some of which were man-sized. Lt. McCarthy also testified to the presence of mechanical and electrical equipment on the ship, the absence of fishing equipment on a fishing boat, and the fact that the boat was overstocked for such a short journey. Lt. McCarthy asked appellant Elkins about his observations and received straightforward, although generally uninformative, answers.

Lt. McCarthy stated, however, that Elkins became visibly nervous when he and the boarding crew decided to make a closer inspection of the fuel tanks. It was explained to appellant that this would involve sounding the fuel tanks to determine the amount of fuel remaining in them, and if anything peculiar were found, the tanks would be drilled. Appellant stated at that time that he did not want to answer any more questions and would "take the fifth".

Inspection of the over-sized tanks revealed two smaller tanks inside. Non-destructive drilling through these tanks indicated that marijuana was being stored in the innermost tank. Upon this discovery, now several hours after the initial boarding, Lt. McCarthy returned to the main deck, placed all of the appellants under arrest and read them their Miranda rights. Lt. McCarthy testified that the appellants did not look surprised.

Appellants were transferred to the ESCAPE and then to another Coast Guard cutter, the ALERT, which was headed towards San Juan, Puerto Rico. Appellants were held on board the ALERT during the six day journey to Puerto Rico where they made their initial appearance. Appellants were arraigned before the United States Magistrate in San Juan, consenting at that time to waive their rights to individual representation. Appellants were convicted after a three day jury trial in the district court of Puerto Rico and appeal from those convictions.

Suppression Issues

Appellants seek suppression of the evidence seized aboard the M/V BLUE LIGHT on three grounds. First, they argue that the M/V BLUE LIGHT was impermissibly stopped by the Coast Guard within the territorial waters of the Bahamas. They claim that the boat, although outside the three-mile territorial limit which the United States recognizes for Bahamian waters, was well within the twelve-mile territorial sea which the Bahamas claims for itself. The Coast Guard has statutory authority to stop, board and search vessels found only within the "customs waters" of the United States, 19 U.S.C. Sec. 1581(a), upon the "high seas[,] and [in] waters over which the United States has jurisdiction ...", 14 U.S.C. Sec. 89(a). Because the "customs waters" extend only twelve nautical miles from the United States coast, 19 U.S.C. Sec. 1401(j), (unless extended by treaty, see United States v. Romero-Galue, 757 F.2d 1147 (11th Cir.1985)), and the "high seas" by definition includes only those waters "beyond the territorial seas of any foreign nation", 21 U.S.C. Sec. 955b(b), the Coast Guard, they contend, was without jurisdiction to stop the M/V BLUE LIGHT.

Appellants assumed throughout the proceedings below that the M/V BLUE LIGHT was stopped on the high seas and consequently they never raised this issue before the district court. Appellants therefore waived their rights to a review on the merits of this and all other claims which rely on allegations that the M/V BLUE LIGHT was stopped in Bahamian territorial waters.

Appellants next challenge the district court's denial of their motion to suppress on the ground that the Coast Guard was not authorized to stop the M/V BLUE LIGHT or search it for contraband because the Coast Guard had no articulable reason to suspect criminal activity. This claim is without merit.

First, we have repeatedly stated that under 14 U.S.C. Sec. 89(a) ¹ the Coast Guard may "stop and board an American flag vessel on the high seas without a warrant and without any particularized suspicion of wrongdoing" to conduct an administrative safety and document inspection. United States v. Burke, 716 F.2d 935, 937 (1st Cir.1983); United States v. Hilton, 619 F.2d 127, 131 (1st Cir.1980). The evidence is undisputed that the Coast Guard in this instance stopped and boarded the M/V BLUE LIGHT for just those purposes.

The only question, therefore, is whether the Coast Guard went beyond its statutory authority and violated the Fourth Amendment by conducting the more extensive search which revealed the cache of marijuana. Government officers who are otherwise authorized may search a vessel on the high seas if they have reasonable and articulable grounds for suspecting that it is engaged in criminal activity. United States v. Green, 671 F.2d 46, 53 (1st Cir.1982); United States v. Williams, 617 F.2d 1063 (5th Cir.1980). The government argues that the safety check triggered a "reasonable suspicion" that the boat might contain contraband.

As we recognized in United States v. Arra, 630 F.2d 836, 843 (1st Cir.1980), it is standard practice, authorized by federal regulation, to check for fuel leaks and accumulations when boarding a vessel. The government, therefore, initially had "a legitimate safety regulatory interest", id., in inspecting the fuel tanks. Once the boarding crew saw the leakage, the oversized tanks, the crude man-sized patches on the tanks, and other odd features, we believe that it had "reasonable and articulable grounds for suspecting" criminal activity. United States v. Green, 671 F.2d at 53. This suspicion justified the transfer of fuel between the tanks and the exploratory drilling which exposed the marijuana. No violation of the Fourth Amendment occurred.

Finally, appellants argue that the evidence obtained by the boarding crew prior to their formal arrest must be suppressed due to the government's failure to comply with the requirements of Rule 5(a) of the Federal Rules of Criminal Procedure. Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957) (a confession made during a period of unnecessary delay in complying with the requirement that the defendant be taken before a magistrate is inadmissible at his trial); McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943). Rule 5(a) provides that:

"any person making an arrest without a warrant shall take the arrested person without...