U.S. v. Leon
| Decision Date | 12 July 1984 |
| Docket Number | Nos. 83-5208,No. 83-5209,No. 83-5208,No. 83-5210,No. 83-5212,83-5208,83-5209,83-5210,83-5212,s. 83-5208 |
| Parties | UNITED STATES of America v. LEON, Pablo, Appellant inCase, William, Appellant inPugh, David Mark, Appellant inTomlinson, Clemente Roberto, Roberto Clemento Tomlinson, Appellant into 83-5310 and 83-5312. |
| Court | U.S. Court of Appeals — Third Circuit |
William L. Muckelroy, Trenton, N.J., Denise D. Ashley (argued), Camden, N.J., for appellant Leon.
Eli Lewis Eytan (argued), Lawrenceville, N.J., for appellant Case.
James Mullaly, III (argued), Mullaly & Mullaly, Trenton, N.J., for appellant Pugh.
Alexander W. Booth, Jr. (argued), Brownstein, Gold, Booth & Barry, Jersey City, N.J., for appellant Tomlinson.
W. Hunt Dumont, U.S. Atty., Samuel Rosenthal, Chief, Appeals Div., Michael V. Gilberti, Asst. U.S. Atty. (argued), Newark, N.J., for appellee.
Before ADAMS, BECKER and VAN DUSEN, Circuit Judges.
These consolidated appeals of four co-defendants challenge judgments of conviction and sentences of confinement entered after a jury returned guilty verdicts. 1 The defendants were indicted for importing and possessing, with the intent to distribute, 35 tons of marijuana, as well as conspiracy to commit such crimes. Several motions made by appellants before, during, and after trial were denied after careful consideration by the trial judge. For the reasons given in this opinion, we affirm the four judgments of conviction and the sentences imposed by the district court judge which are the subjects of the above-captioned appeals.
On July 17 and 18, 1982, 27 people (including the four appellants) were arrested and approximately 35 tons of marijuana were seized. 2 Prior to trial, 12 defendants entered guilty pleas to one count of the indictment and were sentenced to jail terms ranging from 18 months to four years. The charges against four additional defendants were dismissed.
The jury trial of the remaining defendants commenced before the district court in December 1982. On January 15, 1983, after 26 days of trial and two days of deliberation, the jury returned guilty verdicts against six defendants 3 and not guilty verdicts in favor of three defendants (T. 2699-2702).
The events forming the basis of this prosecution were initiated when, on the afternoon of July 15, 1982, the Drug Enforcement Administration (DEA) received a telephone call from an unidentified male caller. The caller stated that a shipment of marijuana was scheduled to arrive that night at an isolated dock near South Amboy, New Jersey, on a white ship named the "Saetta" (having its home port at Barranquilla, Colombia). The caller informed the DEA that the marijuana would be transported from the "Saetta" by motor vehicle to upstate New York. The caller also made additional phone calls giving further specific information that was verified by subsequent events. 4
Law enforcement officers from both federal and state agencies began surveillance of the Thomas A. Edison Rest Area on the New Jersey Turnpike in the vicinity of southbound exits 11 and 12 in an attempt to locate the tractor-trailer that the caller had identified. The tractor-trailer described in note 4 above was seen at the Edison Rest Area between exits 11 and 12 shortly after 5 p.m. on July 15. Surveillance was set up at that Area and continued until 6 a.m. on July 16. When the vehicle was first seen, Angel Roman 5 was seated in the cab and the trailer was empty. Later that evening, the officers noticed two U-Haul trucks, one of which had been rented to defendant Pablo Leon, parked near the tractor-trailer. During this 12-hour period of surveillance, Leon, Roman, and a third defendant, Roberto Clemente Tomlinson, were seen near the three vehicles and walking in the area of the parked tractor-trailer and the two U-Haul trucks (T. 124-28, 133-34). 6 At 6 a.m. the next morning, with Leon driving the tractor-trailer (T. 226), the three vehicles drove south on the New Jersey Turnpike to exit 11, where they left the Turnpike. Shortly thereafter, the three vehicles re-entered the Turnpike at entrance 10N (northbound); one U-Haul truck exited the highway at exit 14, while the tractor-trailer and the other U-Haul truck continued north to exit 16. From exit 16, the two vehicles drove to the Lincoln Tunnel Motel where the tractor-trailer was parked in the motel parking lot. After registering at the motel, Leon and Roman drove back to the Edison Rest Area in the U-Haul truck to meet the driver of the second U-Haul truck. The two U-Haul trucks then returned to the motel. Surveillance of the Edison Rest Area, the tractor-trailer, and the motel continued for most of the following day.
While law enforcement authorities conducted such surveillance, other authorities conducted aerial surveillance in an attempt to locate the white ship described by the anonymous caller. Shortly after noon on July 16, the law enforcement authorities discovered that the ship was docked at a remote coal pier in South Amboy. Further investigation identified the ship as the "Saetta." A review of Customs Office records revealed that the "Saetta" had not reported its arrival and, therefore, had not been cleared for entry into the United States. After locating the ship, surveillance of the dock area was established from several vantage points. DEA agent Maher, the chief of surveillance, watched from the roof of an electric power station about 300-400 yards away (T. 236 ff.) while New Jersey state trooper Clifford Coyle, accompanied at times by one or two other agents, observed the dock from a small motor boat located in a nearby inlet. In addition, DEA and other law enforcement officials established surveillance from automobiles covering the roads leading to and from the dock area (T. 238-56).
Shortly after 8 p.m. on July 16, a blue and white pickup truck came to the dock area and parked adjacent to the "Saetta," which was docked with its bow facing the power station. This pickup truck was driven to and from the dock area several times during late night and early morning hours of July 16-17. At 2 a.m., the pickup led a large tractor-trailer to the dock area where the tractor-trailer parked with its back to the "Saetta". From 2:00 a.m. until approximately 3:30 a.m. there was a flurry of activity around the trailer. Many figures, seen only against a dim street light, moved around carrying bale-shaped objects between the boat and the rear of the tractor-trailer. Approximately 45 minutes after the arrival of the tractor-trailer, the pickup truck left the dock area; 30 to 40 minutes later, while the off-loading operation progressed, the pickup truck driven by Case returned, but it stopped at a position up the road from the dock area. The pickup truck then flashed its headlights on and off three separate times (T. 261-62). About 3:30 a.m., the pickup truck moved up the road from the dock area. The lights on the tractor-trailer came on and it followed the pickup truck out of the dock area. 7
The pickup truck and tractor-trailer proceeded northbound on the New Jersey Turnpike toward the George Washington Bridge. Both vehicles left the Turnpike at one point, drove slowly in and out of a rest area, and immediately thereafter returned to the Turnpike. The pickup truck and tractor-trailer separated after they returned to the Turnpike. The tractor-trailer proceeded on to the Bridge followed by surveillance cars of law enforcement officers while the pickup truck headed south back to the dock area. On the trip from the dock area to the George Washington Bridge, the speed of the tractor-trailer varied erratically; at times it accelerated to 70 m.p.h. and at other times it slowed to 35 m.p.h. When the agents who were following the tractor-trailer observed that the trailer was riding extremely close to the ground and that the driver had to shift gears frequently, they deduced that the trailer was carrying a heavy load. Based on their observations of the erratic driving speed, the transactions at the dock area, and the informant's telephone call, Customs officials and DEA agents stopped the tractor-trailer just after it arrived at the tollgate at the George Washington Bridge. On request, the driver got out of the cab and identified himself as Pablo Leon. Upon approaching the trailer, Customs officer Crosson testified that they smelled a strong odor of marijuana emanating from the rear of the trailer and noticed green vegetable matter, identified as marijuana residue, on the back ledge and bumper of the trailer (T. 446-47). The officers opened the trailer and a bale of marijuana fell out. Further investigation subsequently revealed that the tractor-trailer contained approximately 20 tons of marijuana. The agents arrested Leon at that time.
Approximately one-and-one-half hours after the tractor-trailer left the dock area, while Customs officials were following and arresting Pablo Leon, surveillance was continuing at the South Amboy dock area. At that time, DEA agent Maher, from his vantage point on top of the electric power station, observed that lights came on aboard the "Saetta" and on a green tugboat ("Julian A") and that both vessels appeared to be leaving the dock area. At this time, Mr. Maher instructed the surveillance units to close in and seal off the dock area and to arrest everyone in that area. Detectives Maltese and Krisza, among others, responded to Mr. Maher's instructions by proceeding to the South Amboy dock in their vehicles. Upon his arrival, Detective Maltese noticed that several individuals scattered. Detective Maltese shouted to the individuals in English and Spanish, "I am a police officer" and he directed them to "freeze" (T. 710). Only one individual responded, and Detective Maltese arrested defendant Roman. 8 After arriving, Detective Krisza proceeded toward the pier area where he boarded a tugboat. On the topmost portion of one...
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