U.S. v. Merritt
| Decision Date | 29 June 1984 |
| Docket Number | 82-3736,Nos. 82-3689,s. 82-3689 |
| Citation | 736 F.2d 223 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Gary MERRITT and Cori Desroches, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellee, v. Charles McGILL, John Hartsel, Patrick Murray a/k/a James Murphey, and Arthur Desroches, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert Glass, New Orleans, La., Joel Hirschhorn, Harry M. Solomon, Miami, Fla., for Charles McGill.
Louis Vernell, North Miami Beach, Fla., for John Hartsel and James Murphy.
Robert N. Habans, Jr., New Orleans, La., for Arthur DesRoches.
Robert Steven Lemoine, New Orleans, La., for Cori DesRoches.
Louis Vernell, North Miami Beach, Fla., James G. Roth, Miami Beach, Fla., for Gary Merritt.
John Volz, U.S. Atty., Howat A. Peters, Jr., Harry W. McSherry, Asst. U.S. Attys., New Orleans, La., for the U.S.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before TATE, JOLLY, and DAVIS, Circuit Judges.
Charles McGill, John Hartsel, Patrick Murray a/k/a James Murphey, and Arthur DesRoches appeal their convictions on drug trafficking charges. 1 The United States appeals the judgments of acquittal granted by the district court to Cori DesRoches and Gary Merritt following a jury verdict of guilty as charged on all counts. The government's appeal was argued separately; however, the appeals are consolidated for the purposes of this opinion. We affirm the convictions of Charles McGill, John Hartsel, Patrick Murray, and Arthur DesRoches as well as the judgments of acquittal granted Cori DesRoches and Gary Merritt.
On November 2, 1981, United States Customs officials advised Louisiana State Police officers that they had received an unverified tip that an attempt would be made to import a large volume of marijuana into eastern Louisiana. After receiving this information, state police began a systematic surveillance of suspected marijuana smugglers and sites believed to be used to unload and store marijuana. They also checked motel parking lots in the Slidell, Louisiana area for vehicles and vessels that might be used in a smuggling operation. On the morning of November 3, 1981, investigators discovered a Jeep pick-up truck and a Robalo speed boat from Florida parked at the Ramada Inn in Slidell. Further investigation revealed that the truck and boat belonged to Richard Merrill, a suspected smuggler who was a guest at the motel. Officers placed the truck and boat under surveillance. Later that afternoon Charles McGill pulled the boat to a launch at Fort Pike where he met Merrill. Merrill and McGill took circuitous routes to reach their Fort Pike destination, in fact they drove past the boat launch several times. They launched their speed boat just before dark and waited for darkness to fall before leaving the dock. Under cover of darkness and without showing any running lights, Merrill and McGill were observed navigating the Robalo into the Rigolets, a pass which connects Lake Ponchartrain and Lake Borgne. Lake Borgne opens into the Mississippi Sound which is part of the Gulf of Mexico. Police lost sight of the boat and its occupants after it left the dock. At approximately 11:30 p.m. the officers requested that the St. Tammany Parish Sheriff's patrol boat enter Lake Ponchartrain and look for the Robalo. At approximately 11:35 p.m., however, the Robalo returned to the Fort Pike launch.
As McGill and Merrill were loading the Robalo on their trailer, agents at Fort Pike overheard McGill or Merrill state: "Don't know why they're so mad, we did the best we could with what we had," which officers interpreted as evidence that the Robalo had met with another vessel. Merrill and McGill were followed back to the Ramada Inn in Slidell where officers maintained a surveillance. The sheriff's patrol boat was ordered to look for a larger "mother" vessel on Lake Ponchartrain.
At approximately 11:40 p.m. the patrol boat spotted the M/V FORTY, a 55-foot wooden hull vessel with the configuration of a vessel used to transport work crews in the offshore oilfield. The officers pulled alongside the vessel, instructed the vessel to stop, and asked the crew to identify themselves and state their business. Captain Arthur DesRoches advised officers that he and his crew, Gary Merritt and Cori DesRoches, were from Miami, Florida and the men were diving for treasure off the coast of Mandeville, Louisiana. The officers did not believe this unusual reason for being in the area, they also noted that the vessel reeked of pine oil--a substance often used by smugglers to hide the odor of marijuana. After obtaining this information, officers asked the M/V FORTY to follow them to Geohegan's Marina, located on the Rigolets across from Fort Pike.
After the M/V FORTY arrived at Geohegan's Marina, a United States Customs official boarded the vessel and entered the hold to compare the main beam number with the vessel's documentation papers. Customs officers noticed that the vessel was wet with pine oil, and contained food products from Colombia and Venezuela. They also found marijuana gleanings in the hold. After obtaining this evidence, all three men were arrested. As Arthur DesRoches produced identification he dropped several pieces of paper including the business card of Charles McGill into the water.
The prosecution established that the M/V FORTY passed under the Southern Railway bridge on November 3, 1981, at approximately 6:20 p.m., westbound into Lake Ponchartrain. The railway bridge is west of the Fort Pike boat launch so a vessel entering Lake Ponchartrain from the Gulf of Mexico would first pass the boat launch at Fort Pike (on the Rigolets which connects Lakes Ponchartrain and Borgne) and then go under the railway bridge into Lake Ponchartrain. A vessel resembling the Robalo passed the bridge westbound at 7:23 p.m. The FORTY came through the bridge eastbound out of Lake Ponchartrain at 11:24 p.m. and the vessel resembling the Robalo was behind the FORTY and cleared the bridge at 11:25 p.m. Only ten other vessels passed under the bridge between 6:20 and 11:25 p.m.
State police officers continued to maintain a surveillance over suspects Merrill and McGill at the Ramada Inn in Slidell, Louisiana. Between 12:30 p.m. and 2:00 a.m. the officers observed movement and visiting between the rooms of Merrill, McGill, and another guest--Vernon Holt. At approximately 9:00 a.m. the next day, November 4, the three men left the Ramada Inn in separate vehicles. Merrill and McGill drove east on Interstate 10 while Holt went west. All three individuals were stopped and arrested by Louisiana State Police officers.
An investigation of records of telephone calls at the Ramada Inn revealed that a call had been placed from Vernon Holt's room to occupants of a residence at 129 Roan Lane in Lacombe, Louisiana, a community approximately twelve miles from Slidell. The residence was already under surveillance for suspected narcotics activity and Patrick Murray a/k/a James Murphey and John Hartsel were observed on the premises at approximately 9:00 a.m. on November 4. State police arrested Murray as he left the residence. Officers then approached Hartsel in the front yard of the residence; as he attempted to enter the house he was asked to stop and give his name. As Hartsel identified himself, agents noticed marijuana gleanings on the ground and Hartsel was arrested and informed him of his rights. Hartsel was asked if marijuana was being concealed on the premises and he responded: "I didn't put it there." The premises were then secured while authorities obtained a search warrant. When the residence was searched approximately 1,500 pounds of marijuana were found.
A government expert was able to place the M/V FORTY at the Roan Lane address because several of the tires used as bumpers on the stern of the vessel left distinctive impressions on the dock. This and other circumstantial evidence supported the prosecution's theory that the Robalo led the M/V FORTY from Lake Ponchartrain through the connecting bayous and canals to the Roan Lane residence where the FORTY discharged a large quantity of marijuana.
Each defendant challenges the district court's denial of his motion to suppress evidence seized at the time of arrest. These challenges turn on the propriety of each arrest and seizure of evidence pursuant to that arrest. Defendants Charles McGill, Arthur DesRoches, Patrick Murray, and John Hartsel also disagree with the trial court's determination that the evidence supports the guilty verdict rendered against them. The government challenges the trial court's conclusion that the evidence was insufficient to support the guilty verdicts rendered against Cori DesRoches and Gary Merritt. Our review of the rulings on the suppression motions requires an examination of the record to determine police knowledge of inculpating facts at the time of each arrest. A broader review of the record is required to determine whether the evidence supports the verdict as to each defendant. We are mindful of the guiding principles. There must be substantial evidence and if more than one reasonable construction of the evidence is possible, we must take the view most favorable to the government. See United States v. Freeman, 660 F.2d 1030, 1034 (5th Cir.1981), cert. denied, 459 U.S. 823, 103 S.Ct. 54, 74 L.Ed.2d 59 (1982). We now turn to the challenge of each appellant.
In support of his argument that his motion to suppress was improperly denied, McGill contends that the district court's findings of fact are clearly erroneous and that the district judge should not have relied on evidence introduced at trial to support the court's pretrial denial of the motion to suppress. The court's findings are not clearly erroneous and evidence adduced at the suppression hearing supports the court...
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