U.S. v. Massell, 86-3447

• Decision Date: 07 August 1987
• Docket Number: No. 86-3447,86-3447
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George M. MASSELL, II, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1503

823 F.2d 1503

UNITED STATES of America, Plaintiff-Appellee, v. George M. MASSELL, II, Defendant-Appellant.

No. 86-3447.

United States Court of Appeals Eleventh Circuit.

Aug. 7, 1987.

Martin R. Raskin, Raskin & Graham, P.A., Miami, Fla., for defendant-appellant.

Robert W. Merkle, U.S. Atty., Robert Kennedy, Asst. U.S. Atty., Tampa, Fla., Sidney M. Glazer, Dept. of Justice, Washington, D.C., for plaintiff-appellee.

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

Before TJOFLAT and EDMONDSON, Circuit Judges, and MORGAN, Senior Circuit Judge.

MORGAN, Senior Circuit Judge:

Appellant George Massell challenges his conviction in district court of: (1) possession of hashish oil with intent to distribute, in violation of 21 U.S.C. Sec. 955a(a), (2) conspiracy to import hashish oil, in violation of 21 U.S.C. Secs. 952(a) and 963; and (3) conspiracy while on board a United States vessel to possess hashish oil with intent to distribute, in violation of 21 U.S.C. Secs. 955a(a) and (c). He asserts that the lower court erred in denying his motions to suppress evidence, and to grant a continuance during trial. He also contends there were other procedural errors. Finding no merit in these assertions, we affirm the conviction.

I. FACTUAL BACKGROUND

On January 18, 1986, Customs officials observed a vessel on radar which was headed from the Gulf of Mexico towards Clearwater, Florida; and as the vessel came within sight, officials recognized her to be a 52-foot Irwin sailing yacht named the Navesink. Earlier in November 1985, one of the Navesink's crew members, co-defendant Fenton Sellers, told a confidential informant that he could smuggle marijuana from Jamaica by either aircraft or vessel. Said informant relayed this information to Randy Davis, a Special Agent Group Supervisor with the Customs Service. Acting on this information, Customs officials intercepted the ship at Clearwater Pass, a strip of water just off the coast of Florida.

After stopping the ship, Customs officials boarded and found George Massell, II, the "owner" of the ship; ¹ Christopher Stang, the captain; and Fenton Sellers, the crew member. Massell told the officials that they had been in the Grand Cayman Islands for four months furnishing diving charters. Agent Davis knew this statement was false, since he had seen both the vessel and Sellers in November 1985 in Clearwater Beach. The Customs officials then stated that the vessel would have to dock at a shore location where it would have to clear Customs and endure a Customs search. Massell agreed, saying he welcomed a thorough search of the vessel.

Once the vessel docked, a Customs Inspector allowed Massell to go aboard the Navesink to obtain documentation concerning the boat. While appellant was on board, a Clearwater police officer heard a clicking sound, and upon investigation, he found Massell tightening the ship's swing keel. Massell stated that he did not want the swing keel to touch bottom. Customs officials searched the ship for one-half hour, finding a semiautomatic machine gun, three long guns, ammunition, diving gear, and charts of Jamaica and the Cayman Islands. They then informed Massell that they were going to remove the vessel from the water to check its hold. Massell did not object and merely encouraged the officials to be careful not to damage the boat. An official assured him that the government would pay for any damage to the boat and asked appellant if the boat had a swing keel. Massell replied that he had removed it two years before and admitted to lying about its presence earlier in the search. Once the vessel was out of the water, Customs officials boarded her and released the line attached to the drop-keel winch. The plate cover to the swing keel compartment then fell open and exposed a cavity filled with 207 pounds of hashish oil, with a wholesale value of $300,000. When this happened, appellant responded "I guess we are in trouble now." He was then arrested and Mirandized.

Massell, Stang, and Sellers were charged with possession of hashish oil with intent to distribute, conspiracy to import hashish oil, and conspiracy while on board a United States vessel to possess hashish oil with intent to distribute. Co-defendant Sellers pled guilty. Appellant moved to suppress all physical evidence taken from the Navesink. The district court denied the motion. The district court also refused to allow Massell to introduce Sellers' guilty plea into evidence. The court refused to grant continuances for appellant to prepare for the testimony of his ex-wife, Lynn Miller, and to locate individuals about whom she testified to determine whether their testimony would impeach her credibility. The government had not included Ms. Miller's name on the witness list provided to appellant. At trial, she testified about Massell's prior drug use while they were still married. The trial court also refused to accept Massell's requested jury instruction dealing with the jury's duty not to convict on suspicion or innuendo.

The jury found appellant guilty on all counts, and the court sentenced him to ten years' imprisonment with a $25,000 fine on the possession count, and five years probation on each conspiracy count, to be served consecutively to the prison sentence.

II. THE SUPPRESSION MOTION

Appellant challenges the lower court's denial of his motion to suppress all physical evidence obtained by the search of the Navesink. He claims that the search of the swing keel area was beyond the scope of a Customs search, and was therefore illegal. If the search was illegal, then the hashish oil would be inadmissible at trial as fruit of a poisonous tree. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). The lower court denied appellant's motion on two grounds. The court claimed appellant had no standing to object to the search, and alternatively, the court found that appellant consented to the search. We must examine each of these decisions before dealing with the actual legality of the search.

A. The Standing Question ²

Before appellant may properly object to the search of the Navesink, he must show the court that he has standing to invoke the exclusionary rule of the Fourth Amendment. To do this, he must demonstrate a legitimate expectation of privacy in the particular areas of the vessel searched. See Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). "The defendant bears the burden of proving a legitimate expectation of privacy in the areas searched." United States v. Sarda-Villa, 760 F.2d 1232, 1235 (11th Cir.1985). On appeal, this court must examine the evidence garnered at the suppression hearing in a light most favorable to the government. United States v. Torres, 720 F.2d 1506, 1510 (11th Cir.1983).

In ruling that the appellant did not have standing to object to the search of the Navesink, the lower court referred to our decision in Sarda-Villa. It is our opinion that the court misinterpreted this case. The court emphasized that Sarda-Villa dealt only with standing in "compartment cases." ³ The case did hold that a defendant's efforts to ensure that contraband in hidden compartments remained hidden did not establish a reasonable expectation of privacy. Sarda-Villa, 760 F.2d at 1236. However, this court in Sarda-Villa also looked at two other factors which might have conveyed standing. One was the defendant's argument that they could exclude strangers from the boat; the other dealt with their financial interests in the marijuana seized. Id. Although the defendants in Sarda-Villa were found not to have standing on any of these grounds, the case does not stand for the proposition that there is never an expectation of privacy when a secret compartment is used.

Appellant does meet one test for establishing standing. Even if the appellant did not own the Navesink, he has standing to object to illegal searches of the vessel if he can show "an unrestricted right of occupancy or custody and control of the premises as distinguished from occasional presence." United States v. Bachner, 706 F.2d 1121, 1126 n. 6 (11th Cir.1983) (quoting State v. Leveson, 151 So.2d 283, 285 (Fla.1963)), cert. denied, 464 U.S. 896, 104 S.Ct. 247, 78 L.Ed.2d 237 (1983). Although appellant's father, Dr. Massell, owned title to the Navesink through the Newbird Charter Corporation, appellant testified at the suppression hearing that he had unrestricted custody and control of the vessel. (R. 9-253). Appellant also testified that he was in charge of chartering the boat for the Newbird, Corp. (R. 9-252). The government failed to introduce any evidence contrary to his assertions. Therefore, even when viewing the evidence in a light most favorable to the government, we find that Massell did have standing to object to the vessel's search due to his unrestricted right of custody and control to the Navesink.

B. Massell's Consent to the Search

Although the lower court mistakenly held that Massell lacked standing to object to the legality of the search at trial, it was correct in finding that Massell consented to the search of the Navesink. The prosecutor has the burden of proving that the defendant consented to the search and that this consent was given freely and voluntarily, and was not mere acquiescence to a claim of lawful authority. Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 1791-92, 20 L.Ed.2d 797 (1968).

When determining whether the defendant freely consented to the search, the court must examine the totality of the circumstances. United States v. Sierra-Hernandez, 581 F.2d 760, 764 (9th Cir.), cert. denied, 439 U.S. 936, 99 S.Ct. 333, 58 L.Ed.2d 333 (1978). In this case, the Customs officials boarded the Navesink and Massell readily agreed to a search of the vessel. ⁴ Even when Customs officials pulled the ship out of the water, Massell did not object. He merely indicated concern that moving the boat...