U.S. v. Hensel, s. 81-1538

Decision Date25 January 1983
Docket NumberNos. 81-1538,s. 81-1538
Citation699 F.2d 18
Parties, 12 Fed. R. Evid. Serv. 1025 UNITED STATES of America, Appellee, v. David Keith HENSEL, Defendant, Appellant. UNITED STATES of America, Appellee, v. Gerald Wayne CASE, Larry Ronald Duke, Robert Curtis Hubbard, Charles Thad Standley and John Jacob Wells, Defendants, Appellants. UNITED STATES of America, Appellee, v. Creig Lee DILL, Defendant, Appellant. to 81-1540.
CourtU.S. Court of Appeals — First Circuit

Michael Avery, Boston, Mass., with whom John P. Ward, Boston, Mass., was on brief, for appellant David Keith Hensel.

Edward T.M. Garland, Atlanta, Ga., with whom Steven H. Sadow, and Garland, Nuckolls & Catts, P.C., Atlanta, Ga., were on brief, for appellants Larry Ronald Duke and Robert Curtis Hubbard.

David C. Pomeroy, Portland, Me., with whom Wheeler, Pomeroy & Snitger, Portland, Me., was on brief, for appellant Charles Thad Standley.

Bruce H. Morris, Atlanta, Ga., with whom Devine & Morris and Melvin Gutterman, Atlanta, Ga., were on brief, for appellant Gerald Wayne Case.

Mark J. Kadish, Atlanta, Ga., with whom Rosalyn S. Kadish, and Kadish, Davis & Brofman, P.C., Atlanta, Ga., were on brief, for appellant John Jacob Wells.

Joseph Beeler, Miami, Fla., with whom Barbara Green, Miami, Fla., was on brief, for appellant Creig Lee Dill.

Margaret D. McGaughey, Asst. U.S. Atty., Portland, Me., with whom Richard S. Cohen, U.S. Atty., Portland, Me., was on brief, for appellee.

Before TIMBERS, * Senior Circuit Judge, CAMPBELL and BREYER, Circuit Judges.

BREYER, Circuit Judge.

We here consider appeals from several defendants convicted by jury trial of participating in a conspiracy to import and distribute marijuana. Rather than write separate opinions in these several cases, we here consolidate them and treat all the appellants' claims in one opinion. We first set forth the facts upon which many of the defendants' claims depend. Our description is based primarily upon that of the Maine federal district court found in 509 F.Supp. 1364 and 509 F.Supp. 1376. We then consider the claims that raise the most difficult legal issues--those of defendant Hensel--and we follow that analysis with a consideration of the claims of the other defendants. We affirm all of the convictions.

I The Facts

On the morning of May 31, 1980, after a 24-hour chase on the high seas, a Canadian vessel stopped a 65-foot Honduran shrimp boat 65 miles southeast of Nova Scotia. On board the ship the police agents found defendant Hensel, a crew of eight Colombians, and 18.7 tons of marijuana. Three days later Maine state police and federal Drug Enforcement Administration (DEA) agents raided the secluded cove on the coast of Maine where Hensel was to have delivered his cargo. They arrested several of the defendants and gathered the evidence at issue. We shall separately describe the events at sea and on land.

A At Sea

On May 28, 1980, a local fishing vessel, the J. BRADLEY O'HARA, spotted an unfamiliar ship 90 miles southeast of Rockland, Maine. The ship, the M/V PATRICIA, did not seem to be engaged in fishing. Two days later, the PATRICIA approached the O'HARA and Hensel, captain of the PATRICIA, asked permission to use the O'HARA's radio to contact a "partner." Hensel explained that his ship's radio batteries were dead and that its generator did not work. The crew of the O'HARA assured Hensel that he could use the radio after they had hauled in their fishing nets. During that time, however, the O'HARA's captain became suspicious and sent the Coast Guard a message that the PATRICIA was disabled. When the PATRICIA again approached the O'HARA, the captain told Hensel he had contacted the Coast Guard, and he refused to let Hensel use his radio. "I told him that we knew what he was up to," the mate of the O'HARA testified, "and we didn't want any part of it." Hensel asked that the call be cancelled, but the Coast Guard had already dispatched aid. Hensel then asked the mate of the O'HARA to place three telephone calls. The O'HARA, however, simply relayed the numbers to the Coast Guard.

The Coast Guard sent at least one plane and the cutter RELIANCE to the scene. The plane piloted by Lt. Luginbuhl arrived at about 11:25 and found the PATRICIA lying dead in the water and flying no flag. Lt. Luginbuhl tried unsuccessfully to communicate with the PATRICIA by radio. After he had made several low passes over the ship, the PATRICIA got underway and began sailing toward the northeast.

Lt. Luginbuhl asked the El Paso Information Center computer to check the status of the PATRICIA and found that a ship named the PATRICIA (later discovered to be a different ship) was suspected of smuggling drugs. The Coast Guard ordered the lieutenant to follow the PATRICIA until the RELIANCE arrived; it also notified Agent Drinan of the DEA in Maine and the Canadian Coast Guard of the situation.

Lt. Luginbuhl continued to track the PATRICIA as it headed toward Nova Scotia in the northeast. After further unsuccessful efforts to communicate with the ship, he dropped a message block ordering the PATRICIA to turn around so that officers of the RELIANCE could board the ship. The PATRICIA, however, maintained its course. By 3:00 p.m., a Canadian Coast Guard plane arrived and at the request of the U.S. Coast Guard relieved Lt. Luginbuhl. This plane, too, tried to communicate with the PATRICIA by message block, and it tried to divert the ship from its course by using smoke floats. Nevertheless, the PATRICIA continued toward Nova Scotia. After about four hours, a U.S. Coast Guard plane resumed tracking the PATRICIA, but it was no more able than its predecessors to communicate with the PATRICIA or to turn it from its course.

By 7:00 p.m. it became clear the PATRICIA would escape into Canadian waters before the RELIANCE could intercept it. The Canadian authorities accordingly began their preparations to intercept the PATRICIA, and they dispatched their ship LOUISBOURG. They told the DEA they would board the PATRICIA if it came within Canadian waters, and Agent Drinan encouraged them to do so.

Meanwhile, the DEA discovered that two of the telephone numbers Hensel had asked the O'HARA to call were listed in the names of Florida men suspected of drug crimes. When Agent Drinan learned that the third number was for a Georgia exchange, he told the Coast Guard that the DEA had been monitoring a suspected drug ring on the Maine coast which used Georgia and Florida vehicles. American agents maintained contact with the Canadians throughout the night.

By 5:11 a.m. the Canadian ship LOUISBOURG was within sight of the PATRICIA, and by 6:00 a.m. the American ship RELIANCE had arrived. Both ships tried to communicate with the PATRICIA, using not only radio but flag hoists, a loud hailer, and flashing lights, but neither ship succeeded. The PATRICIA appeared badly rusted and was riding below its waterline. It displayed no nets or fishing gear and apparently contained substantial electronic equipment. Although it had the name PATRICIA on the bridgewing, it showed no homeport and no identification numbers on the hull. It had, by this time, hoisted a Honduran flag.

The RELIANCE notified the LOUISBOURG that since the PATRICIA was a Honduran ship, the RELIANCE officers could not board it without first obtaining the permission of the State Department and the government of Honduras--a process it expected to take 24 to 48 hours. The Canadians, however, believed that they could board the PATRICIA as soon as it came within 21 miles of the Canadian coast. Soon after 9:00 a.m. they told the RELIANCE that, if the RELIANCE did not act, they would. The RELIANCE in turn agreed to let the Canadians land a helicopter on board it if necessary, assured them that it would protect the LOUISBOURG, and apparently manned its fifty-caliber machine gun.

The Canadians swung the LOUISBOURG around the PATRICIA at high speed in an attempt to stop it with its wake. When that failed, they fired a 12-gauge shotgun across the PATRICIA's bow. The sailors aboard the PATRICIA ducked, and the Canadians then aimed at the wheelhouse where three or four men apparently stood. The Canadians blasted the wheelhouse twice, and the PATRICIA came to a halt.

Three armed Canadian agents boarded the PATRICIA and ordered the crew of eight Colombians and defendant Hensel to the stern of the boat. They loosened the bolts on two closed hatches at the bow of the ship and found over 600 burlap bags containing 18.7 tons of marijuana. They arrested Hensel and the Colombians and, because the Colombians spoke no English, used interpreters from the RELIANCE. One of the officers of the RELIANCE then boarded the PATRICIA to check the documentation of the vessel and to inspect its equipment, as well as to ascertain the identities of those arrested. The Canadians towed the ship to Nova Scotia where they unloaded it and stored the cargo.

After originally telling the Canadians that he was from Connecticut and that his ship was headed for Africa, Hensel admitted that his true address was in Florida, that the ship was indeed headed for the United States, and that he was to have earned $400,000 from the delivery. The Canadian officials eventually decided not to prosecute Hensel and on June 3 expelled him from the country. Hensel was flown to Boston, where Agent Drinan met him at the airport. Hensel called an attorney, and Agent Drinan then arrested Hensel. Hensel appeared before a magistrate and was charged with conspiracy to import marijuana.

B On Land

The investigation into the activities on the Maine coast had begun about a month before the PATRICIA arrived. In late April 1980 agents of the DEA and the Maine state police learned that Lot No. 3 of the Turkey Cove subdivision in Tenant's Harbor, Maine, had been bought in the name of defendant Duke's father for $170,000 in cash....

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