U.S. v. Gray

• Decision Date: 26 October 1981
• Docket Number: No. 80-5469,80-5469
• Citation: 659 F.2d 1296
• Parties: 9 Fed. R. Evid. Serv. 349 UNITED STATES of America, Plaintiff-Appellee, v. Andrew GRAY, Paul Thomas Nelson and Geoffrey Christian Knapp, Defendants-Appellants. . Unit B *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1296

659 F.2d 1296

9 Fed. R. Evid. Serv. 349

UNITED STATES of America, Plaintiff-Appellee, v. Andrew GRAY, Paul Thomas Nelson and Geoffrey Christian Knapp, Defendants-Appellants.

No. 80-5469.

United States Court of Appeals, Fifth Circuit.

Unit B ^*

Oct. 26, 1981.

John M. Edman, Petersburg, Fla., for defendants-appellants.

Terrance A. Bostic, Asst. U. S. Atty., Tampa, Fla., for plaintiff-appellee.

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

Before MORGAN, Senior Judge, and KRAVITCH and ANDERSON, Circuit Judges.

KRAVITCH, Circuit Judge:

Appellants Andrew Gray, Paul Thomas Nelson, and Geoffrey Christian Knapp were convicted by a jury of importing and conspiring to import a controlled substance in violation of 21 U.S.C. §§ 952 and 963. On appeal they contend: 1) that the district court lacked jurisdiction, 2) that the district court erred in denying motions to suppress physical evidence and statements made prior to appellants being given Miranda warnings, 3) that the district court erred in admitting co-conspirator's statements, and 4) that the evidence was insufficient to convict the appellants on the conspiracy charge. We reject these contentions and affirm appellants' convictions.

I. Background

On March 15, 1980, the Coast Guard cutter DEPENDABLE sighted the sailing vessel MYSTAR approximately 100 miles west of Fort Myers, Florida. After observing that the vessel appeared headed for the United States, the DEPENDABLE's commander, Howard Gehring, ordered the cutter to move closer to the MYSTAR so that he could contact its crew by loudhailer. Gehring asked the sole person on deck, appellant Gray, his last port of call, his next port of call, his home port, whether he was sailing solo, and whether he was carrying cargo. Gray responded that his last port of call was Cozumel, Mexico; that his next port of call and also his home port was Clearwater, Florida; and that he was sailing solo and carried no cargo.

Despite Gray's statements, Gehring observed that the ship lacked proper home-port identification and was not rigged for solo sailing. ¹ In addition, he noticed that the MYSTAR's swimming platform was awash and that the vessel did not keel despite 20-22 knot winds, indicating that the ship was heavily laden with cargo. Gehring then advised Gray that he intended to board the MYSTAR.

The officer in charge of the boarding party, Ensign Duerr, showed Gray Coast Guard form 4100, the standard boarding form, and informed Gray that he was going to conduct a safety inspection of the ship. On a sweep of the ship prior to completing this inspection, Duerr discovered a compartment, apparently locked from the inside, later identified as the crew's quarters. Gray told Duerr that the compartment had been locked by the owner of the vessel prior to the ship's departing Cozumel, and that he had no way to open the compartment. Duerr then went back up on deck and attempted to peer in the room from the topside portholes, but found them all curtained. He next contacted Commander Gehring to advise him of the situation and request instructions; Gehring told the ensign to try to find another means to see into or gain access to the compartment. Shortly after this conversation another member of the boarding party told Duerr he had seen three pairs of different sized shoes, indicating other persons had been on board.

Following Gehring's orders, Duerr asked Gray if there was some other way to see into the compartment. Gray directed the ensign to the engine room and told him that he might be able to see into the room up through the bilges. Once in the engine room, Duerr detected the odor of marijuana, and again contacted Gehring for instructions; he told Duerr to continue his efforts to gain access to the compartment. The boarding party, with Gray's help, ² disassembled the lock but failed to gain entry. Gehring then sent two additional crewmen to assist in opening the door. One picked the lock, but the boarding party could only open the door a few inches before it would slam shut. After two unsuccessful attempts to open the door, Gray told the boarding party that two men were in the compartment; he then directed these men to come out. Ensign Duerr looked into the compartment, saw bales of marijuana, and arrested Gray and the two other men.

At trial the defendants moved to suppress the marijuana evidence as fruit of an illegal search, and also moved to suppress the statements made by Gray during his initial conversation with Commander Gehring. The trial court denied both motions. Appellants subsequently were convicted and sentenced to prison terms.

II. Jurisdiction

As a threshold question we must consider appellants' argument concerning federal jurisdiction: that because no overt act of the conspiracy occurred within the territorial limits of the United States, federal courts lacked jurisdiction.

This court recently addressed this issue and directly held that federal courts have jurisdiction over drug conspiracy cases as long as the evidence indicated the defendants intended to consummate the conspiracy within the territorial boundaries of the United States. United States v. DeWeese, 632 F.2d 1267, 1271 (5th Cir. 1980); United States v. Ricardo, 619 F.2d 1124, 1129 (5th Cir.), cert. denied, --- U.S. ----, 101 S.Ct. 789, 66 L.Ed.2d 607 (1980); United States v. Mann, 615 F.2d 668, 671 (5th Cir. 1980), cert. denied, --- U.S. ----, 101 S.Ct. 1694, 68 L.Ed.2d 193 (1981). The evidence here indicated the defendants so intended. Commander Gehring, qualified as an expert in ocean navigation, testified at trial that the MYSTAR was headed for Florida; and appellant Gray stated in his initial conversation with Gehring that his next port of call and home port was Clearwater, Florida. We conclude that this evidence alone provided a basis for asserting federal jurisdiction over this case.

III. The Motion to Suppress Physical Evidence

Appellants contend that the search of the living quarters violated the crew's fourth amendment rights, and therefore the trial court should have suppressed the marijuana evidence. Appellants concede that this court's decision in United States v. Warren, 578 F.2d 1058 (5th Cir. 1978) (en banc), cert. denied, 446 U.S. 956, 100 S.Ct. 2928, 64 L.Ed.2d 815 (1980), gives the Coast Guard absolute authority to stop and board a United States vessel on the high seas to perform a safety and documentary inspection. See United States v. Williams, 617 F.2d 1063 (5th Cir. 1980) (en banc). Appellants argue, however, that the safety inspection of the ship ended prior to the time Ensign Duerr went down to the engine room to attempt to peer into the locked living quarters. According to appellants, the actions taken by Duerr after finding the locked compartment constituted a "search" of the compartment. Appellants, moreover, note that neither Warren nor Williams gave the Coast Guard plenary authority to search all areas of a ship without suspicion of criminal activity, ³ and Williams specifically did not decide what level of suspicion is necessary for the Coast Guard to search the living quarters of the crew. Appellants assert that such a search requires probable cause, and that probable cause was lacking at the time this search began. The government, on the other hand, contends that probable cause existed when the search began; and, even if probable cause did not exist, asserts that a safety inspection includes the right for the Coast Guard to make a cursory inspection of all areas of the ship, including locked living quarters.

We find it unnecessary to reach the issue, left open in Williams, of what minimum degree of suspicion is necessary for the Coast Guard to "search" ⁴ the living quarters of a vessel, because we find that the Coast Guard had probable cause to search the compartment for contraband prior to the time the "search" began. Nor must we decide if a "safety inspection" includes the right to make a cursory search of locked living quarters, because we conclude that the probable cause developed during a valid safety inspection. ⁵

Probable cause to search a vessel exists when "trustworthy facts and circumstances within the officer's personal knowledge would cause a reasonably prudent man to believe the (vessel) contains contraband." United States v. Edwards, 577 F.2d 883, 895 (5th Cir.) (en banc), cert. denied, 439 U.S. 968, 99 S.Ct. 458, 58 L.Ed.2d 427 (1978) (dealing with probable cause for search of an automobile). See United States v. Weinrich, 586 F.2d 481, 492 (5th Cir. 1978), cert. denied, 441 U.S. 927, 99 S.Ct. 2041, 60 L.Ed.2d 402 (1979) (citing the Edwards standard for a search of a vessel). Probable cause, moreover, "is the sum total of layers of information.... We weigh not the individual layers but the 'laminated' total." Edwards, supra at 895, quoting Smith v. United States, 358 F.2d 833, 837 (D.C. Cir. 1966). See Weinrich, supra, at 492.

Here the facts showed that the MYSTAR, heading from Mexico to the United States, lacked proper home port identification, and despite appellant Gray's protestations to the contrary, was obviously carrying some sort of cargo. Gray also told Commander Gehring that he was solo-sailing, but the vessel was not properly rigged for solo-sailing. Once on board, the Coast Guard had the right to conduct a cursory investigation of the open areas of the ship for possible safety violations. When this inspection revealed no heavy cargo, but a locked compartment, suspicion naturally focused on it. Added to this mix of circumstances was appellant Gray's statement that the owner of the vessel had locked the compartment prior to the ship's departure from Cozumel ⁶ and had failed to give even the ship's captain access to the room. As we noted in Warren, if during the course of a safety inspection circumstances arise which generate probable cause, the Coast Guard may "conduct searches, seize evidence, and make arrests." Warren, supra, at 1065. W...