U.S. v. Gattie

• Decision Date: 18 April 1975
• Docket Number: No. 74--1048,74--1048
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Everett GATTIE and Thomas Walter Bailey, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 608

511 F.2d 608

UNITED STATES of America, Plaintiff-Appellee, v. John Everett GATTIE and Thomas Walter Bailey, Defendants-Appellants.

No. 74--1048.

United States Court of Appeals Fifth Circuit.

April 18, 1975.

Joseph A. Varon, Hollywood, Fla., for Gattie.

Edward M. Kay, Hollywood, Fla., for Bailey.

Robert W. Rust, U.S. Atty., Joel C. Fanning, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee.

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

Before BROWN, Chief Judge, and AINSWORTH and DYER, Circuit Judges.

JOHN R. BROWN, Chief Judge:

This double appeal from a double conviction tests the legality of those convictions on a number of grounds--the most potentially troublesome of these arising in the always perplexing search and seizure area but since our view of the law and facts in the case make the constitutional validity of the search an unnecessary question we affirm.

The facts are uncontested and relatively simple. On June 17, 1973 customs officers, acting on a tip received earlier that day, observed a Cessna 206 aircraft over Homestead, Florida and followed it in their own aircraft until it landed at Boca Raton Airport. Boca Raton is not equipped with customs facilities for inspection of aircraft arriving from a foreign country. The Cessna had first been sighted approximately 60 miles southeast of the Florida coast and the FAA information was that the flight was inbound from Montego Bay, Jamaica. As the Cessna landed, one of the agents in the following aircraft observed that its rear windows were completely blocked by something stowed in the aft section of the plane. After both aircraft had landed, Agent Warr approached appellant Gattie, the Cessna's pilot, identified himself as a Customs Agent and observed 8 large bundles in the aft end of the airplane. When Agent Reimann asked for a knife to cut open the bags, Gattie said, 'You don't need to cut it open, it's marijuana.' The agents then placed Gattie and the Cessna's passenger, Vernon Doremus, under arrest. The field test they then performed on the contents of the bags confirmed that it was marijuana.

At approximately six o'clock that evening, after considerable discussion between the two arrested smugglers and the Customs Agents, Doremus agreed to cooperate by revealing the rest of the plan. Arrangements were then made to go ahead with that plan and deliver the marijuana to the home of appellant Bailey.

The marijuana was loaded into a station wagon. Doremus, followed by customs agents in two cars, drove the station wagon the Bailey's house in Pompano Beach and parked out front. By this time it was about nine-forty and dark. The agents watched Doremus enter the house and a short time later observed a man come out of the house, remove two of the bags of marijuana from the back of the station wagon and reenter the house. Although the agents were some 150 feet from the man and so were unable to see him well enough even to testify as to the color of his clothes, the Government established to the satisfaction of the jury by circumstantial evidence that this man was Bailey. The agents then entered the house, placed Bailey under arrest and seized the two bags of marijuana.

Bailey, Doremus and Gattie were indicted in the Southern District of Florida of (i) conspiracy to import and possess marijuana, (ii) importing approximately 410 and 1/2 pounds of marijuana and (iii) possession with intent to distribute. Doremus pleaded guilty to count (ii) and the other charges against him were dropped. Gattie and Bailey each filed a motion to suppress and both were denied. After a trial to a jury Bailey was found guilty of count (iii) and Gattie of all three counts. ¹

Gattie raises two points on appeal. First, he urges that his motion for a mistrial was improperly denied when a Government witness testified without proffer and without complying with the Trial Court's discovery order as to an incriminating statement purportedly made by Gattie at the time of arrest. ² Second, he contends that the Court erred in failing to have an evidentiary hearing on his charge that the Government suppressed evidence that would establish that the reason Gattie landed at Boca Raton, presumably rather than at an airport that had customs facilities, was that the Cessna was low on fuel.

Our answer to each of these contentions is simple--even if we assume them to be true, they cannot rise to a level higher than error that is harmless beyond a reasonable doubt. Harrington v. California, 1969, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284; Chapman v. California, 1967, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; United States v. Steinkoenig, 5 Cir., 1973, 487 F.2d 225. The weight of evidence against Gattie is heavy indeed. The plane that he piloted was followed from sixty miles at sea to Boca Raton Airport and he was arrested at the scene with 400 pounds of what he admitted to be marijuana.

Bailey's situation is not so simple. He appeals on three grounds--(i) his motion to suppress was improperly denied in that the warrantless search and seizure of the two bags of marijuana from within his house was deficient under the Fourth Amendment, ³ (ii) his motion for acquittal should have been granted because the evidence identifying him as the individual who carried the marijuana from the car to the...