U.S. v. Miller
| Decision Date | 21 November 1980 |
| Docket Number | No. 80-1207,80-1207 |
| Citation | 636 F.2d 850 |
| Parties | UNITED STATES of America, Appellee, v. John MILLER, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Leo S. McNamara, Boston, Mass., with whom Davey & Davey, Boston, Mass., was on brief, for defendant, appellant.
Kevin J. O'Dea, Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.
Before COFFIN, Chief Judge, and ALDRICH and BOWNES, Circuit Judges.
John Miller appeals from a jury verdict convicting him of fraudulently smuggling, receiving, and facilitating the transportation of swordfish from Canada into the United States. He argues that his indictment failed to inform him adequately of the charges against him, that the district court erred in refusing to suppress the search and seizure of the fish, and that there was insufficient evidence to support his conviction. We affirm.
I.
The evidence taken in the light most favorable to the prosecution, United States v. Gabriner, 571 F.2d 48, 50 (1st Cir. 1978), reveals the following. Appellant Miller was president and owner of Nova Seafoods, Inc., of Yarmouth, Nova Scotia, Canada. In the summer of 1978, Miller legitimately attempted to import a truckload of swordfish from Canada to Massachusetts. He complied with Customs and Federal Drug Administration inspection procedures, but was informed that his fish could not enter the United States since its mercury content exceeded federal standards.
Another swordfish importation, occurring over the three days from Saturday, September 29, 1979 through Monday, October 1, 1979, comprised the focus of this suit. On Saturday evening in Carlton, Nova Scotia, Miller met with Richard Ottino, whom he knew to be a cousin of an associate. Miller mentioned to Ottino that he was smuggling swordfish into the United States. He recounted the profitable nature of the enterprise and explained that he had no problem bringing fish in through Maine because of his contacts there. He informed Ottino that federal authorities had confiscated a shipment of his fish the week before. Miller left this meeting in Carlton to catch a ferry bound for St. John, New Brunswick, which is adjacent to Maine. Unbeknownst to Miller, Ottino in fact was Police Commissioner of the town of Kingston, Massachusetts. Ottino related the substance of his conversation to Special Agent Callahan of the United States Customs Service when Ottino returned to the United States.
On Saturday morning at 3:00 a. m., a truck bearing Canadian registration arrived at United States Customs in Calais, Main. The driver one Arthur M. Ross-produced an invoice stating that he was carrying 48,000 pounds of duty free frozen herring bait. The invoice identified F. H. Fenderson, Inc. as the customs broker, Sum Good Stores of Yarmouth, Nova Scotia as the shipper, and Wally's Sea Products Corp. of Boston as the consignee of the cargo. The driver valued the herring at about $12,000. The Customs inspector on duty instructed the driver to open several boxes on top of the four foot deep load in the truck's trailer. The inspector released the cargo when he discovered all these boxes to contain herring.
About sixteen hours later, around 7:00 p. m. Sunday evening, Officer Stevens of the Weymouth, Massachusetts Police responded to an anonymous tip to go to the Capitol Supermarket. As he drove up to the rear of the supermarket, Stevens saw the trailer portion of a tractor trailer unit backed up to a U-Haul truck. Stevens then saw a man whom he later identified as Miller flee from the truck to a nearby wooded area. After attempting to pursue him, Stevens gave up and returned to the trucks. There he observed four persons transferring swordfish from the trailer to the U-Haul truck. The trailer had no license plates. Stevens inquired about the trailer's driver and the ownership of the fish. The four men directed him to look for the driver, Art Mead, in Room 24 of the Boston Motel in Weymouth. Stevens went to the Boston Motel but discovered that Room 24 was registered to Miller, not Art Mead. After failing to find Mead, Stevens returned to the Capitol Supermarket to discover that the trucks were gone. He then proceeded to the Capeway Fish market (which was owned by Walter Wojtasinski, Jr., one of the four persons he had observed at the Capitol Supermarket) and observed two U-Haul trucks parked there. One he recognized from the Capitol parking lot. He saw the same four men, and again inquired as to the origin and ownership of the fish. He received no answer. Stevens returned to the police station, but about 11:00 p. m. that same evening returned to the Capeway Fish Market. There he met Miller, whom he identified from the Capitol parking lot. Miller stated that he was the owner of the fish, which had come from Canada. Miller told Stevens that he did not have a bill of lading for the fish, but that he would get one to Stevens within a day or two.
At 11:30 p. m. that Sunday night, the Weymouth Police called Vincent Freitas, the Weymouth health inspector, to inform him that a large quantity of fish was being transferred to the Capeway Fish Market. Freitas directed that the fish be embargoed because he "was concerned about the wholesomeness of the fish." As a result, Officer Stevens was dispatched back to the Capeway market, where he prevented Wojtasinski from moving the U-Hauls from the premises to Boston at about 5:00 or 5:30 a. m. that Monday morning.
About this time (the precise time being uncertain), Weymouth health inspector Freitas arrived at the Capeway Market. The U-Hauls containing the fish were locked, but an unidentified Capeway employee unlocked the trucks at Freitas's request. Freitas examined the fish and again announced that they were to be embargoed pending laboratory inspection. Freitas gave to Wojtasinski the stub of the embargo slip, which noted "question on import" as the reason for the embargo.
Sometime later, at about 6:30 or 7:30 a. m., Stevens and another officer returned to Room 24 of the Boston Motel. There they saw Miller, and they again asked him about the origin and ownership of the fish. Miller again stated that the fish were from Canada, and gave them a bill of lading that he had written out the previous evening after leaving the Capeway Fish Market. This bill showed Sum Good Stores, Ltd. to be the fish's carrier and "Capeway Fish" to be the consignee. Miller told Stevens that Sum Good Stores owned the fish, but that he had had "to sign over the property" to the independent truck driver to fulfill the requirement that the independent driver carry only his own property. In response to Stevens's questions, Miller indicated that he had neither brought the fish through customs nor had it inspected. Neither had he paid import tariffs on it. Stevens then announced to him that the swordfish had been embargoed. After Stevens asked Miller if he would return to the Capeway Market, Miller requested to ride there with the police.
Later that morning the U-Haul trucks were again opened at Freitas's request with keys provided by a Capeway employee. U. S. Customs Special Agent Callahan the agent to whom Ottino related his Nova Scotia conversation with Miller arrived, investigated the situation, and seized the 40,000 pounds of swordfish, which Miller valued at about $80,000. He also arrested Miller. Subsequent analysis by the FDA showed that the swordfish had a mercury content 20 percent in excess of the FDA's maximum regulation.
The next day, Tuesday, October 2, 1979, Callahan presented to a United States magistrate an affidavit charging illegal importation. On October 15, 1979, the magistrate found the complaint to be...
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