U.S. v. Goggin, 87-5559

• Decision Date: 29 August 1988
• Docket Number: No. 87-5559,87-5559
• Citation: 853 F.2d 843
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Patrick GOGGIN and William Irwin Delp, Jr., Defendants-Appellants. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 843

853 F.2d 843

UNITED STATES of America, Plaintiff-Appellee, v. James Patrick GOGGIN and William Irwin Delp, Jr. Defendants-Appellants.

No. 87-5559

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

Aug. 29, 1988.

Dennis J. Cary, Ft. Lauderdale, Fla., for defendants-appellants.

Dexter W. Lehtinen, U.S. Atty., Allan J. Sullivan, Linda Collins Hertz, Harriett R. Galvin, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before TJOFLAT, HILL and KRAVITCH, Circuit Judges.

KRAVITCH, Circuit Judge:

James Goggin and William Delp were both convicted of one count of importing cocaine into the United States, in violation of 21 U.S.C. Sec. 952(a), one count of conspiracy to import cocaine, in violation of 21 U.S.C. Sec. 963, one count of possession of cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1), and one count of conspiracy to possess cocaine, in violation of 21 U.S.C. Sec. 846. Goggin and Delp now appeal their convictions for importation and conspiracy to import. They argue that the evidence was insufficient to support the convictions and that an erroneous charge to the jury on the element of importation requires reversal. We affirm.

I.

At approximately 9:45 A.M. on August 17, 1986, Louis Garland, a United States Customs Service pilot operating a twin-engine jet with sophisticated radar equipment, learned from radar operators in Miami that an unidentified airplane had been tracked flying ten miles north of Bimini, an island in the Commonwealth of the Bahamas. Garland located the airplane on radar and then visually observed the plane northwest of Bimini. He identified the plane as a Piper Navajo aircraft modified to increase speed and proficiency in flying. Garland flew his jet underneath the Piper Navajo and discerned the Piper Navajo's tail number, N374UM, which would be unique to that aircraft. Garland continuously tracked the Piper Navajo by radar as it crossed the United States coastline twenty miles south of Palm Beach, Florida and advanced to a remote point twenty-two miles southwest of West Palm Beach airport. Garland momentarily lost radar contact with the Piper Navajo as it made a 360-degree turn, but he soon reacquired contact and tracked the airplane as it headed towards an airfield at Okeechobee, Florida.

Meanwhile, agents of the Drug Enforcement Administration, the Customs Service, and the Palm Beach County Sheriff's Office were conducting surveillance from a wooded area adjacent to a field in western Palm Beach County. DEA Agent Mark Minelli observed two males drive onto the field. A half hour after their arrival, Minelli saw an airplane with tail number 374UM fly over the field and circle around. Minelli watched as fifteen canvas bags fell, in two drops, from a door at the rear of the airplane. Only two bags fell on the field; the other thirteen landed in an inaccessible marsh. One of the two men collected the two bags from the field and started to drive away. Government agents then arrested both men. The government later ascertained that the fifteen canvas bags contained approximately 452 kilograms of 91 to 93 percent pure cocaine.

Garland alerted the crew of a Customs Service helicopter that the suspect Piper Navajo was flying towards Okeechobee. The pilot of the helicopter saw the Piper Navajo fly past Okeechobee airport, turn around, and land at the airport. The helicopter also landed, and federal agents arrested two men as they exited the Piper Navajo. These two men were later identified as appellants Goggin and Delp.

II.

We address first appellants' contention that there was insufficient evidence to support their convictions for importation and conspiracy to import. We review the evidence in the light most favorable to the government, and we may reverse only if no reasonable trier of fact could have found the appellants guilty beyond a reasonable doubt. United States v. Montes-Cardenas, 746 F.2d 771, 778 (11th Cir.1984).

21 U.S.C. Sec. 952(a) provides:

It shall be unlawful to import into the customs territory of the United States from any place outside thereof (but within the United States), or to import into the United States from any place outside thereof, any controlled substance in schedule I or II of subchapter I of this chapter.... ¹

As a preliminary matter, we note that the government need not demonstrate a specific point on foreign soil from which the cocaine originated to establish a violation of section 952(a). "The fact of crossing the boundary of the United States with contraband suffices to establish importation." United States v. Lueck, 678 F.2d 895, 905 (11th Cir.1982). The government may prove that a defendant imported cocaine into the United States "from any place outside thereof" by showing that the defendant brought cocaine into the country from international waters or from airspace in excess of twelve geographical miles outward from the coastline. See id.

Appellants argue that the government did not show that they brought cocaine into the country from airspace twelve miles out from the Florida coastline. In particular, they challenge the government's reliance on Garland's testimony. During its case in chief, the government asked Garland to supplement his narrative account of tracking the Piper Navajo by making cross marks on a large aeronautical chart depicting parts of Florida and the Bahamas. Garland indicated two marks on the chart corresponding to the points where he and the Miami radar operators first observed the Piper Navajo. The prosecutor then asked, "The two 'X's', though, that you have indicated here, are they beyond three miles from the United States coastline?" Garland replied, "I would say it is approximately 25 to 30 miles northwest of Bimini Island." Appellants contend that this exchange demonstrated only that the plane entered the United States from outside the three-mile territorial zone of the United States, not from outside the twelve-mile contiguous zone over which the United States exercises customs authority and which is included in the meaning of "the United States" in 21 U.S.C. Sec. 952(a). See United States v. Williams, 617 F.2d 1063, 1073 n. 6 (5th Cir.1980) (en banc). ²

We disagree. The prosecutor's question to Garland about the territorial limits of American jurisdiction over airspace and waters was, admittedly, imprecise. However, the prosecutor also asked Garland if there was a line on the aeronautical chart indicative of American airspace. Garland pointed to an air defense line, which, he stated, was fifteen miles offshore. The jury could see, from the chart, that the cross marks near Bimini where Garland first observed the Piper Navajo were well outside this fifteen-mile line and, by inference, outside the twelve-mile zone as well. ³

Appellants also rely on United States v. Maslanka, 501 F.2d 208 (5th Cir.1974), cert. denied on other grounds sub nom. Knight v. United States, 421 U.S. 912, 95 S.Ct. 1567, 43 L.Ed.2d 77 (1975), and United States v. Carrion, 457 F.2d 200 (9th Cir.1972). We find those cases readily distinguishable. In Maslanka, the government introduced evidence tending to show that a large quantity of marijuana had been imported into the United States from Jamaica; the marijuana had been found wrapped in Jamaican packing materials. The government also showed that Maslanka had been in Jamaica one month before the discovery of the marijuana, but it failed to show that Maslanka had purchased the marijuana in Jamaica. Nor indeed did the government show that anyone in particular transported the marijuana into the United States from outside the country. The marijuana had been brought to the point of seizure on a barge owned by one Capo, but there was no evidence indicating that Capo's barge had left the twelve-mile zone or had rendezvoused with any other boat which had done so. Similarly, in Carrion, the government failed to prove that the defendants had brought the seized marijuana from outside the United States. In Carrion, the government received a tip that the defendants would be transporting marijuana by airplane from Mexico to an airport in the Los Angeles area. An airplane indeed arrived in Los Angeles carrying marijuana, and the defendants indeed were aboard, but the government had no evidence indicating the origin of the flight. The Ninth Circuit held that one defendant's possession of a map of Mexico (along with other maps) and a matchbook bearing an advertisement for a Mexican motel was insufficient to establish beyond a reasonable doubt that the particular flight bringing marijuana to Los Angeles had originated in Mexico.

In this case, by contrast, the government established that the aircraft dropping the cocaine entered from outside the United States and that the defendants were on that aircraft. Garland first observed the aircraft well outside the twelve-mile zone, and he noted the Piper Navajo's tail number. He tracked the Piper Navajo as it crossed into the United States and headed towards the drop-off point. Although he briefly lost the Piper Navajo on his radar screen, he attributed that to a circular maneuver by the airplane. This explanation was fortified by Minelli, who saw the same airplane circle around the field where the cocaine was dropped. Minelli also saw the cocaine...