U.S. v. Marsh

• Decision Date: 17 July 1984
• Docket Number: 82-1921,No. 82-1888-82-1893,82-1888-82-1893
• Citation: 747 F.2d 7
• Parties: UNITED STATES of America, Appellee, v. Frederick MARSH, * Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 7

747 F.2d 7

UNITED STATES of America, Appellee, v. Frederick MARSH, ^* Defendant, Appellant.

No. 82-1888-82-1893, 82-1921.

United States Court of Appeals, First Circuit.

Argued Feb. 10, 1984.

Decided July 17, 1984.

Stephen M. Perry, Boston, Mass., by appointment of the Court, with whom David M. Roseman, Casner, Edwards & Roseman, John Russell, Herlihy & Russell, Raymond Gillespie, Daniel Kelleher, Michael O'Laughlin, Anne Mackin, Stephen Morse, Guterman, Horvitz, Rubin & Rudman, Boston, Mass., and Martin Gideonse, Cambridge, Mass., were on brief, for appellants.

Tobin Harvey, Asst. U.S. Atty., Boston, Mass., with whom William F. Weld, U.S. Atty., and John C. Doherty, Asst. U.S. Atty., Boston, Mass., were on brief, for appellee.

Before COFFIN and ALDRICH, Circuit Judges, and GIGNOUX, ^** Senior District Judge.

COFFIN, Circuit Judge.

This is a consolidated appeal. All of the defendants were found aboard the GRIMURKAMBAN, a 120-foot coastal freighter of Danish registry, which was carrying about 60 tons of marijuana when it was stopped and boarded by the United States Coast Guard on July 14, 1982, in international waters some 270 miles off the northeastern coast of the United States. These defendants, all of whom are citizens of either Jamaica or Colombia, ¹ were convicted of conspiring to import marijuana, 21 U.S.C. Sec. 952, 960 & 963, conspiring to possess marijuana in excess of 1,000 pounds with intent to distribute, 21 U.S.C. Secs. 841(a)(1), 841(b)(6) & 846, and possessing with intent to distribute in excess of 1,000 pounds of marijuana, 21 U.S.C. Secs. 841(a)(1) & 841(b)(6). ²

On appeal all of the defendants except for Fernandez Barker, who was tried separately before a jury, argue that there was insufficient evidence to support their convictions and that the district court, which decided the case on the basis of stipulated facts and evidence in a jury waived trial, erred in relying on the so-called "slight evidence" rule in finding that the defendants had conspired to import marijuana into the United States. In addition, all of the defendants argue that the search warrant authorizing the search of the GRIMURKAMBAN was invalid and that the seizure and prosecution of the GRIMURKAMBAN's crew violated United States and international law.

Summarizing our views in reverse order, we decide first, that the boarding and seizure of the GRIMURKAMBAN and the prosecution of its crew did not violate United States and international law. Second, we decide that although the July 19 search warrant was invalid because not based on probable cause, defendants are not entitled to a new trial on that basis because no rights of any defendant appear to have been infringed by the illegal search. Finally, however, we have enough uncertainty about whether the district court may, in its invocation of the "slight evidence" rule, have impermissibly lowered the government's burden of proof in establishing that the defendants knew the destination of the cargo to remand the case for clarification.

The Boarding and Seizure of the GRIMURKAMBAN

All of the defendants contend that the Coast Guard violated domestic and international law in boarding and seizing the GRIMURKAMBAN. We disagree.

The district court properly concluded that the Coast Guard acted within its statutory authority in boarding the GRIMURKAMBAN. Although the Coast Guard has no regular authority to search foreign vessels not within the customs waters of the United States or within a designated "customs enforcement area", see 19 U.S.C. Sec. 1701, the Coast Guard (and other government agents) may search or seize a foreign vessel "upon the high seas" if "enabled or permitted under special arrangement with [the] foreign government", 19 U.S.C. Sec. 1581(h). The district court properly found that the government of Denmark entered into such a "special arrangement" when it gave the United States government permission to board and seize the GRIMURKAMBAN. United States v. Green, 671 F.2d 46, 51-52 (1st Cir.1982); United States v. Dominguez, 604 F.2d 304, 308 (4th Cir.1979). Thus the district court committed no error in ruling that the Coast Guard acted within its statutory authority in boarding and seizing the GRIMURKAMBAN. See generally United States v. Hensel, 699 F.2d 18, 26-30 (1st Cir.1983) (discussing the validity of searches of foreign ships in international waters under 14 U.S.C. Sec. 89(a) and international law).

Nor did the Coast Guard violate the Fourth Amendment rights of the defendants when it boarded and seized the GRIMURKAMBAN. In United States v. Green, 671 F.2d at 53, we held that "the fourth amendment allows government officers, who are otherwise authorized, to board and search a vessel on the high seas should they have reasonable and articulable grounds for suspecting that it is engaged in criminal activity" [footnote omitted]. This "reasonable suspicion" standard, which was first enunciated in United States v. Williams, 617 F.2d 1063, 1087 (5th Cir.1980) (en banc), requires less than probable cause to justify a non-administrative maritime search. As the district court noted, the Coast Guard had ample cause to suspect the GRIMURKAMBAN: it was initially sighted within the general area that Coast Guard intelligence had earlier suggested a "mother ship" carrying contraband might be found; it changed its course erratically when the Coast Guard Cutter BIBB came within the scope of its radar, a course of conduct the Coast Guard considered suspicious and evasive; despite its appearance as a fishing boat, it carried no fishing gear; it was not flying the flag of any nation; as the BIBB approached no one came on deck to look at the Coast Guard cutter, which was unusual; the cargo boom was in an upright position and appeared to have been readied for use or recently used; the vessel's name and home port were not both painted on the stern; and its crew advised the Coast Guard that the ship was bound from the Netherland-Antilles to Bermuda, a declaration inconsistent with the ship's position.

In Green we noted that search warrants are not usually required for shipboard searches because a "lesser expectation of privacy" prevails at sea. 671 F.2d at 53. Although we declined to define exactly the permissible bounds of a warrantless shipboard search initiated pursuant to the reasonable suspicion standard, we did emphasize that "[o]ur present holding is not to be understood as giving officers carte blanch to search living quarters or personal effects, such as footlockers". 671 F.2d at 53. The Coast Guard did not run afoul of that proscription in this case.

Since the presence of marijuana was immediately apparent to the boarding party, it is properly in evidence in these proceedings. Similarly, the government may introduce any other evidence it found in common (or commercial) areas of the GRIMURKAMBAN while securing the vessel or bringing it to port. See United States v. DeWeese, 632 F.2d 1267, 1271 (5th Cir.1980) ("there can be no legitimate expectation of privacy in those areas of a commercial vessel which are subject to the common access of those legitimately aboard the vessel.").

The Validity of the Search Warrant

The sole matter that was presented to the magistrate who issued the warrant was the affidavit of Special Agent Allen, an agent with ten years service in the Drug Enforcement Administration. The affidavit reveals that the Coast Guard cutter BIBB stopped and boarded a Danish vessel, the GRIMURKAMBAN, at an unspecified location, of unspecified heading, with the permission of the Danish government while on law enforcement patrol; that a large quantity of marijuana was evident "in all parts of the boat"; that marijuana was the only cargo found aboard the ship; that the ship was equipped with sophisticated navigation and communication equipment; that navigation charts indicating "various locations from Europe to the Carribbean area" were observed in the wheelhouse; that the agent's experience led him to believe that the GRIMURKAMBAN carried charts, logs, and other documents indicating its past travels and activities; and that the agent believed that these charts, logs, and other documents "constitute[ ] evidence of violations of title 21, United States Code, Sections 841(a)(1); 846, 952, 960 and 963".

The affidavit obviously established probable cause to believe that the GRIMURKAMBAN was carrying a large quantity of marijuana. And if there had been an averment that the ship was off Nantucket and headed for the United States when first located by the Coast Guard, the finding of probable cause to import into the United States would have been supported. But nothing in the affidavit suggested that the marijuana was bound for the United States or that the ship or its crew had any connection whatsoever with the United States. Indeed, given that the navigation charts observed bore European and Carribean markings, one might have concluded from the affidavit that Europe was the GRIMURKAMBAN's most likely destination. The only statement in the affidavit suggesting that the laws of this country might have been violated was the DEA agent's allegation that he believed the GRIMURKAMBAN carried charts, logs, and other documents demonstrating that the crew of the GRIMURKAMBAN had violated those United States statutes that prohibit conspiracies to import, possess, and distribute controlled substances.

Although we accord "great deference" to a magistrate's probable cause determination, Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), that determination "cannot be a mere ratification of the bare conclusions of others". Id. at ----, 103 S.Ct. at 2332. Probable cause cannot "be made out by affidavits which are merely conclusory ...." United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 (1965). The DEA agent's statement that he believed evidence of a conspiracy to import marijuana into the United States would be found...