U.S. v. McQuillan, s. 74-2461

• Decision Date: 12 December 1974
• Docket Number: 74-2691,Nos. 74-2461,s. 74-2461
• Citation: 507 F.2d 30
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sean H. McQUILLAN, Defendant-appellant. UNITED STATES of America, Plaintiff-Appellee, v. Walter W. HAMILTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 30

507 F.2d 30

UNITED STATES of America, Plaintiff-Appellee, v. Sean H. McQUILLAN, Defendant-appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Walter W. HAMILTON, Defendant-Appellant.

Nos. 74-2461, 74-2691.

United States Court of Appeals, Ninth Circuit.

Dec. 12, 1974.

James P. Hagerstrom, of Hagerstrom & Geller, San Diego, Cal. (for appellant McQuillan); Anthony Deutsch, of Deutsch, Parziale & McCabe, San Diego, Cal., (for Hamilton), for defendants-appellants.

Henry D. Steward, U.S. Atty., San Diego, Cal., for plaintiff-appellee.

Before BARNES and TRASK, Circuit Judges, and BALDWIN, ¹ Judge, Court of Customs and Patent Appeals.

OPINION

BARNES, Circuit Judge:

Defendants appeal their conviction under 21 U.S.C. 841(a)(1) for the offense of possessing a controlled substance (176 lbs. of marijuana) with intent to distribute the same, as charged in Count Four of the Indictment.

On December 23, 1973, Customs Patrol Officers Davis and McDermott were on routine patrol duty on the Border Park Beach approximately one half mile north of the international border (R.T. 12). Around 2:00 a.m., McDermott observed four silhouettes (Hamilton, McQuillan, Sakel-- a Fugitive codefendant-- along with another unidentified person) approximately halfway between him and the border. They appeared to be carrying backpacks on their backs and were proceeding north along the beach (R.T. 13). McDermott then observed one silhouette (Defendant Hamilton) separate from the rest and head north of McDermott's position and then return to the rest. This person appeared to be wearing a white type sneaker (R.T. 14). Officers Davis and McDermott then radioed for assistance, and additional Customs Patrol officers, along with a Border Patrol agent, went to the area, cordoning it off (R.T. 14). As the dragnet was tightened, seven people (the three defendants and four Mexican aliens) were flushed from various hiding places and apprehended before they could cross the line into Mexico (R.T. 15). It appeared to McDermott that there were two distinct groups of people, but when the suspects turned to run back toward Mexico they appeared to group together (R.T. 15). Defendant Hamilton was found lying in the water. All three defendants had sand all over them. The four Mexican aliens, on the other hand, were fairly well-dressed and their clothes were not as soiled as the defendants (R.T. 16).

After the apprehension of the seven subjects, Border Patrol Agent Grasky-- an expert tracker-- backtracked the footprints of defendants Hamilton, McQuillan, and Sakel and discovered four backpacks containing 80 kilograms of marijuana abandoned on the beach (C.T. 42). Grasky compared the footprints of the backpackers with those of the defendants and determined that three of the backpackers were in fact Hamilton, McQuillan, and Sakel. He further compared the footprints of the backpackers with those of the Mexican aliens and determined that they did not make any of the tracks found around the area of the backpacks which contained the marijuana (C.T. 42).

After the arrests, DEA Agent Paul Provencio interviewed the four Mexican aliens found in the area along with the defendants and, on the basis of his interview together with his personal observations of the defendants, decided not to charge them in connection with the smuggling of the seized marijuana (R.T. 42-43). Specifically, Provencio noted that the clothing of the aliens was inconsistent with the smuggling of the marijuana (R.T. 43). They were neatly dressed; their shoes were not scuffed; their clothes were not dirty as it would have been had they been crawling; and the clothing on their backs did not have perspiration marks on them that would have been left had they in fact been carrying backpacks (R.T. 43, 45). In addition, the aliens told Provencio that they had just walked into the United States when one of the defendants had crawled over to them and stated that border policemen were in the area and that if they followed him, they would not be apprehended (R.T. 44). Agent Provencio then turned the aliens over to the Border Patrol for processing as illegal aliens (R.T. 43, 51). Having concluded that the four aliens had no connection with, or knowledge of, the seized marijuana, the four aliens were, as is customary, returned to Mexico by the government.

At the hearing on the motions in the case, the government provided defense counsel with all the information it possessed with respect to the names and addresses of the four Mexican aliens arrested on the beach (R.T. 44).

On May 29, 1974, the date of trial, the court admitted into evidence letters from appellants addressed to the four witnesses. The letters had been returned undelivered by the Mexican postal system. Also admitted into evidence were copies of letters sent to the police departments in each of the Mexican cities and to the American Consul asking for their assistance in locating these individuals (R.T. 72-73).

The gravamen of this appeal and the sole issue...