U.S. v. Marshall, 78-5664

• Decision Date: 02 January 1980
• Docket Number: No. 78-5664,78-5664
• Citation: 609 F.2d 152
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jeffery Todd MARSHALL and Louis James Sterrenberg, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 152

609 F.2d 152

UNITED STATES of America, Plaintiff-Appellee, v. Jeffery Todd MARSHALL and Louis James Sterrenberg,

Defendants-Appellants.

No. 78-5664.

United States Court of Appeals, Fifth Circuit.

Jan. 2, 1980.

Peter F. K. Baraban, Joseph Minceberg, Miami, Fla., for Marshall.

A. Raymond Randolph, Jr., Washington, D. C., for Sterrenberg.

Jack V. Eskenazi, U. S. Atty., Kevin M. Moore, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

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

Before COLEMAN, Chief Judge, TJOFLAT and HILL, Circuit Judges.

JAMES C. HILL, Circuit Judge:

Appellants Marshall and Sterrenberg were each convicted of one count of possession of marijuana with intent to distribute in violation of 21 U.S.C.A. § 841(a)(1). At this stage of the appeal we need only decide whether the district judge erred in denying defendants' motion to suppress evidence after the magistrate had conducted a suppression hearing and recommended granting defendants' motion, and when the district judge neither conducted a hearing on the motion nor consulted the transcript of the magistrate's hearing before he ruled.

Appellants were aboard the vessel "Yella Bird" when customs officers boarded it. The officers on the vessel then seized a substance later identified as marijuana. On February 7, 1978, defendant Sterrenberg filed a motion to suppress this evidence accompanied by a statement of facts and memorandum of law. Record, vol. 1, at 29. ^* Evidence presented at the hearing before the magistrate on February 21, 1978 consisted of testimony of three witnesses for the government: Customs Patrol Officers Collins and Wein (whose name appears as "Wayne" in the transcript of this hearing) and Agent Henderson of the Drug Enforcement Administration. Wein and Collins testified about events preceding and following the time that they, along with fellow Officer Weber, boarded the "Yella Bird." Henderson testified that he took custody of this seized evidence two days after the seizure. On February 23, 1978 the government filed its response to defendants' motion to suppress. The response contained a statement of facts and recommendations of law. Record, vol. 1 at 56.

On February 24, 1978 the magistrate filed his report and recommendation, containing findings of fact and conclusions of law, and recommending that defendants' motion be granted. In this report the magistrate found that the customs officers lacked a reasonable suspicion both for the boarding and for the search and seizure. He implied fairly clearly that he did not find that defendants consented to the boarding and he explicitly concluded that even assuming Arguendo that the boarding was lawful, the plain view theory did not apply to later events.

On March 1, 1978 the government filed its written objections to the proposed findings and recommendations of the magistrate (which it called a petition on appeal of the magistrate's ruling) which contained further references to fact and law and requested that the district court deny defendants' motion

(o)n the basis of the facts presented at the Motion to Suppress together with the Government's memorandum of law filed therein as well as the present memorandum . . . ."

Record, vol. 1, at 71, 77.

The district judge denied defendants' motion to suppress on June 14, 1978. In his order the judge found that the seizure fell within the plain view doctrine and that the defendants had consented to the initial boarding. He conducted no hearing on the motion and could not then have reviewed the transcript of the hearing before the magistrate as that transcript was not prepared until August 4, 1978. Record, vol. 2, at 52. Neither in its brief nor at oral argument did the government assert that when the district judge denied defendants' motion he had any version of the evidence presented at the hearing before the magistrate. At most, then, the judge based his order on the magistrate's report and upon the parties' motions containing recitals of facts and legal authority.

Defendant Sterrenberg petitioned the district court to rehear and otherwise reconsider the motion to suppress on July 24, 1978. In this petition the defendant stated that the district court entered its order without the benefit of hearing live testimony and without anything before it other than the findings of fact contained in the magistrate's report. Record, vol. 1, at 99. Defendant also offered the grand jury testimony of Agent Collins which he had obtained on July 19, 1978 and asserted that this testimony had a material bearing on the issue of consent. On July 26, 1978 and August 9, 1978 the district judge denied the petitions to rehear of defendant Sterrenberg and Marshall respectively. Record, vol. 1, at 109, 110.

Evidence presented at defendants' non-jury trial on September 5, 1978 consisted of testimony of Agent Wein and three exhibits the transcript of the suppression hearing before the magistrate, the grand jury testimony of Agent Collins, and a government chemist's report on the substance seized. It is clear from the record that the purpose of this trial for the defendants was to preserve for appeal the issue of denial of their motion to suppress. At the close of the evidence defendant Sterrenberg urged the court to reconsider the motion to suppress "with the additional grounds that the agents were obligated to secure a search warrant for the vessel, the YELLA BIRD, once it had been taken back to the Customs docks . . . ." Record, vol. 3, at 58-59. The judge responded with some brief remarks on that issue, stated that

These matters that have been ruled upon heretofore, the Court adheres to the ruling, and denies the renewed motion to suppress,

and immediately found both defendants guilty. Record, vol. 3, at 59-60. The record does not suggest that at this stage of the proceedings the district judge considered anew the motion to suppress. We cannot conclude that the act of handing the transcript of the hearing before the magistrate to the court produced a record on which the district judge, after considering that transcript, reversed the magistrate. At trial a record consisting of testimony, transcripts, and an exhibit was admirably compiled. The trial transcript indicates, however, that this record was compiled so that the Court of Appeals for the Fifth Circuit could make the first determination On that record. For the reasons set forth below, we find that the district judge should have but did not base his order denying defendants' motion to suppress on a proper record.

A panel of this court recently held that a defendant's due process rights are not violated when a district judge refers a motion to suppress to a magistrate, reviews the record of the hearing before the magistrate, and adopts the magistrate's recommendation. United States v. Whitmire, 595 F.2d 1303, 1305 (5th Cir. 1979). The court noted that 28 U.S.C.A. § 636(b)(1) specifically provides that a district judge may designate a magistrate to conduct an evidentiary hearing on a motion to suppress and to recommend disposition of the motion, and provides for procedures to safeguard the integrity of the factfinding process and to ensure that the district judge retains final responsibility for ruling on the motion, citing the portion of subsection 636(b)(1) that provides:

Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A...