U.S. v. Freie, s. 75-3719

• Decision Date: 11 November 1976
• Docket Number: Nos. 75-3719,75-3736,75-3798 and 75-3799,s. 75-3719
• Citation: 545 F.2d 1217
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard Lee FREIE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Charles Randolph JOUBIN aka Thomas McLaughlin, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ramesh GANGADEAN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Richard Edward GORMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1217

545 F.2d 1217

UNITED STATES of America, Plaintiff-Appellee, v. Richard Lee FREIE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Charles Randolph JOUBIN aka Thomas McLaughlin, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Ramesh GANGADEAN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Richard Edward GORMAN, Defendant-Appellant.

Nos. 75-3719, 75-3736, 75-3798 and 75-3799.

United States Court of Appeals, Ninth Circuit.

Nov. 11, 1976.

Rehearing Denied Dec. 10, 1976.

Stephen H. Scott (argued), Scott & Novak, Phoenix, Ariz., for defendant-appellant in 75-3719.

Brice E. Buehler, Phoenix, Ariz., for defendant-appellant in 75-3736.

Craig Mehrens (argued), Mehrens & Pearce, Phoenix, Ariz., for defendant-appellant in 75-3798.

Ron Minkin, Los Angeles, Cal., for defendant-appellant in 75-3799.

Daniel R. Drake, Asst. U.S. Atty. (argued), Phoenix, Ariz., for plaintiff-appellee.

Before ELY and GOODWIN, Circuit Judges, and THOMPSON, ^* District Judge.

PER CURIAM.

FACTS:

Appellants, Freie, McLaughlin (later identified as Joubin), Gangadean, and Gorman, along with co-defendant Schatzberg, were indicted for conspiracy to possess marijuana with intent to distribute. 21 U.S.C. § 841(a)(1) and (b). Freie, McLaughlin (Joubin), Gangadean, and Gorman were convicted on that count and appeal. Schatzberg was acquitted. McLaughlin (Joubin) alone was also indicted for assaulting a federal officer with a dangerous weapon, 18 U.S.C. §§ 111 and 1114, and he appeals his conviction on that count.

On May 27, 1975, at about 6:30 a.m., Forest Service personnel observed a blue and white airplane circle the small airstrip at Young, Arizona, land, and taxi down to the east end of the runway to a point at which there were no facilities for tying the plane down. Two individuals were observed to be in the plane. At 8:15 a.m., another Forest Service officer observed the plane at the same place. No persons were in the plane at that time. At 11:00 a.m., upon returning to the airstrip, the Forest Service personnel went over to the plane and observed several cardboard boxes therein.

Customs officials were notified, and at about 1:45 p.m. Customs Officer Redden met with the Forest Service people at the airstrip, discovering that the airplane had departed. About 100 feet from the airstrip and visible therefrom was a neat stack of cardboard boxes covered by a tarpaulin. The boxes were across a cattle fence on property leased for private use. Redden opened one of the boxes and discovered marijuana.

The airstrip is in an isolated mountainous area, and is used by three to four aircraft per month. Vehicle access is via a dirt road which leads from the airstrip to route 200, which is also a narrow gravel or dirt road. About one mile easterly of this intersection route 200 intersects with route 288. Route 200 goes about seven miles in the opposite direction to a recreation area. Although it would not be unusual for recreation vehicles to be traveling on the roads on the Tuesday following the Memorial Day weekend, it is reasonable to infer that such vehicles remaining in or near the area would be primarily interested in the airstrip.

DEA agents were notified and thereafter both air and ground surveillance was conducted on the marijuana stash.

Redden and two other Customs agents left the airstrip at 10:45 p.m. to obtain some warm clothing in town. As they traveled west on route 200, before reaching route 288, Redden observed two pickup trucks with white campers traveling east in the direction of the airstrip. One of the pick-ups was described as maroon or brown, and the other was blue with a license number of NE 2597. Redden radioed this information back to the DEA agents back at the stash. Redden waited 20 to 30 minutes, but the vehicles did not return. At 11:20, DEA agent Valentine and others conducting surveillance of the marijuana stash heard whispered voices and observed two figures on or near the airstrip, but they were unable to make out what was said.

At 11:30 Redden and his companions drove back down route 200 toward the airstrip and contacted DEA agent Valentine by radio. Valentine told them that they had witnessed some activity and that Redden should set up surveillance back at the intersection of 200 and 288. After making a U-turn on 200, Redden observed two campers parked along that road in such a way that they would not have been detected as the agents came in. One of the vehicles appeared to be the same blue and white truck that had been previously observed coming into the area at 10:45. Redden could not testify as to whether the other vehicle was the same one they had seen previously. Redden and the other agents then set up their surveillance at the intersection of 200 and 288.

Back at the airstrip at 1:15 a.m., two Caucasian males, one of whom was blond and had a "high forehead", approached the agents' vehicle carrying guns. They apparently thought that the agents were smugglers because one said to the other that they should forget about the agents' "load" and take care of their own. At 2:00 a.m., two figures carrying guns moved into a prone shooting position behind a nearby tree, about 200 feet from the stash. The agents waited for a time, and ultimately turned a high powered flashlight on the two figures. The agents did not see the figures clearly enough to identify them, but they did note that they were Caucasian males. When the light was switched on, somebody shouted from the position of these two people, "Cut that off or you're dead." A minute or so later, the two men started firing at the agents. The agents identified themselves by shouting "Federal agents" and "Police", but the men continued to fire. The agents then returned the fire. After a few seconds, the agents ceased firing, and when there was no response to their demands for surrender, they conducted a search of the area. Appellant McLaughlin (Joubin) was found wounded and unconscious clutching an AR15. One of the agents said that he thought that the other person, who escaped, was using an automatic pistol, though no shell casings for such a weapon were found in the area.

In the meantime, Redden and the other Customs agents heard the shooting and began driving down 200 toward the airstrip. As they approached the intersection of 200 and the road to the airstrip, they noticed a cloud of dust as if a vehicle had just driven across the road. Across the road in the brush, Redden observed his headlights reflecting off of what appeared to be a windshield.

After giving first aid to McLaughlin, DEA agent Valentine drove into town at about 3:00 a.m. to get a nurse. As he drove out the airstrip road onto 200, he observed a reflection across the road that appeared to be one or more vehicles. Upon returning with the nurse at 4:00 a.m., Valentine again observed the same reflections he had seen before. At 4:10 a.m., surveillance aircraft observed a camper heading northeast on 288, away from the area. Because of a mixup, the air surveillance was ordered to cease surveillance of the first vehicle, but about 10 minutes later a second camper was spotted. This second vehicle had apparently been traveling without its lights because the pilot testified that its lights just all of a sudden appeared. At first the vehicle was heading south, but then it made a U-turn and proceeded in the same direction as the first vehicle, toward the intersection of route 288 and highway 260. Air surveillance was continued until the vehicle arrived at a roadblock set up at that intersection. At 4:25 a.m., Agent Valentine and two others left the airstrip and observed that the vehicles they had seen at the airstrip road intersection were no longer there. They stopped to investigate the area and discovered unusually large tire tracks. They also discovered a letter on the ground addressed to Jose Alonso, with a copy indicated to Mrs. Vicki Chapman. The name "Chapman" meant something to the agents because Mr. Anton Chapman was an alleged marijuana smuggler.

The blue and white camper was stopped at the roadblock and Gorman and Gangadean were ordered out of the truck at shotgun point. They were advised of their rights and detained until DEA agents could arrive. Valentine and two others arrived at the roadblock at about 5:50 a.m. After advising the two suspects of their rights, the agents asked them where they had been. They responded that they had been to Roosevelt Lake and were proceeding to Show Low. One of them said that they had made no stops and the other said that they had only stopped to urinate. Gorman did not at first give his correct name. Valentine then approached the vehicle and noticed an envelope sitting face up on the dashboard in plain view. The envelope was addressed to Mrs. Vicki Chapman, and it had the same return address as was on the letter they had previously found. Gorman and Gangadean were then formally placed under arrest. The blue camper had license number NE 26 97, one digit off from the number observed by Redden earlier.

In the meantime, a bulletin was sent out for police to watch for a brown or maroon pickup with a white camper shell, having wide tires. At about 7:00 a.m., a deputy sheriff spotted such a vehicle at a summer resort lodge called "Kohl's Ranch" on highway 260. The truck was dusty as if it had been on the back roads. The officer checked the doors to the cab and found that they were locked. He called in the license plate number and found that it was registered to co-defendant Schatzberg, who at that time was unknown to the deputy. He went into the lodge and found that nobody registered at the lodge had indicated that the truck belonged to him. The deputy then walked to the back of the camper and opened the door to discover appellant Freie sleeping inside. Freie did not give his correct name upon questioning by the officer. The officer then asked him, whether he could look through the...