U.S. v. Nash

• Decision Date: 05 September 1990
• Docket Number: No. 88-5991,88-5991
• Citation: 910 F.2d 749
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Earl Wayne NASH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 749

910 F.2d 749

UNITED STATES of America, Plaintiff-Appellee, v. Earl Wayne NASH, Defendant-Appellant.

No. 88-5991.

United States Court of Appeals, Eleventh Circuit.

Sept. 5, 1990.

Arthur W. Tifford, P.A., Miami, Fla., for defendant-appellant.

Dexter W. Lehtinen, Lewis P. Carey, Jr., Linda Collins Hertz, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before JOHNSON, Circuit Judge, HILL ^* and HENLEY ^**, Senior Circuit Judges.

HENLEY, Senior Circuit Judge.

Earl Wayne Nash appeals a judgment of conviction and sentence for conspiring and attempting to import cocaine in violation of 21 U.S.C. Secs. 952(a), 963 (1988). We affirm his conviction but vacate his sentence and remand for new sentencing.

I.

Shortly before dark on April 16, 1988, United States Customs Service aircraft began monitoring Nash's airplane off the southwestern Florida coast. Nash's airplane was flying at an altitude of ten to thirty feet--low enough to leave a wake in the water. According to government testimony, drug smugglers commonly fly at low altitudes to avoid detection by radar. Also, Customs Service pilots testified that the United States government does not maintain a permanent radar facility on the southwestern Florida coast, which makes that area a popular passage for drug smugglers.

Nash's airplane crossed the coast and flew towards Fort Lauderdale at an altitude of around fifty feet above the trees. About twenty-five miles east of Fort Lauderdale, the aircraft began to gain altitude while heading for Homestead, Florida, near Miami. The airplane appeared ready to land at the Homestead General Airport, but then flew past the airport in a southerly direction.

The Customs Service aircraft followed Nash to Cay Sal Bank, which is part of the Republic of the Bahamas and about one hundred miles south of Homestead. It was now too dark to see Nash's aircraft. However, the Customs Service aircraft were equipped with "forward-looking infrared radar" ("FLIRR"), which "sees" and "videotapes" objects by sensing temperature variations in the area being monitored. The FLIRR indicated that bundles were being dropped into the ocean from Nash's airplane as it circled over Cay Sal Bank. No lights on Nash's aircraft were on, and the FLIRR was unable to detect the contents of the falling objects. A later search of area failed to produce evidence of any jettisoned packages, but the Customs Service pilots testified that this was not unusual, given the altitude from which the bundles were dropped (3,000 feet) and the size of the area over which the airplane circled (two miles).

After circling Cay Sal Bank, Nash's airplane returned to the Homestead General Airport. The lights on the aircraft came on as it approached the airport. When Nash landed Customs Service officials were waiting to arrest him and his passenger, Frank Maguire. Nash was read his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and asked if he would answer questions. He responded that he understood his rights and did not wish to make a statement. A Customs Service officer indicated the defendant's refusal on a "warning card" and refrained from further questioning.

Richard Cunicelli, the Customs Service case agent, arrived about an hour later and met Nash. After discussing the situation with Jack Hawley, one of the Customs Service pilots, Cunicelli searched Nash's aircraft. Seized from the airplane and later introduced at trial were navigational charts depicting routes to and from Colombia, hand-held radios, and papers listing weight displacement calculations that used 2.2 pounds (one kilogram) as a unit of measure. Also, the aircraft was equipped with "bladder tanks," fuel drums to extend its flying range. In addition, seats had been removed from the aircraft, which, according to Cunicelli, is common in airplanes used for drug smuggling. No trace of any controlled substance was found on board.

The government's account of what happened next differs substantially from that of the defendant. Agent Cunicelli stated that after he completed the search, Nash approached him and said that he wanted to speak with him and "do the right thing" but did not wish to talk in front of Maguire. Cunicelli and Hawley then took Nash to a quonset hut at the airport away from the others. Both of the government agents testified that, in their presence, Nash signed a form waiving his Miranda rights after those rights had been re-read to him by Cunicelli. Hawley then left the room, leaving Nash and Cunicelli by themselves. According to Cunicelli, the defendant next asked what the agent could do for him, and Cunicelli replied that he would make his cooperation known to the United States Attorney's office, and that although he could not guarantee a reduced sentence, generally "individuals [who] cooperated in investigations fared better time-wise" than those who did not. At that point, again according to Cunicelli, Nash confessed that on the previous day he had flown from Florida to Colombia, that he had met someone in Colombia named "Raphael," that he had waited for cargo in the company of other planes, and that his cargo had consisted of approximately ten duffel bags of marijuana or cocaine. Later Nash allegedly admitted that the duffel bags had contained only cocaine. According to Cunicelli, Nash said that he had jettisoned his cargo over Cay Sal Bank after learning that he was being followed. In addition, Nash allegedly said that he had smuggled drugs on two previous occasions.

Nash strongly disputes Cunicelli's description of their encounter. Although Hawley testified that he saw Nash and Cunicelli talking with each other beside Nash's aircraft, the defendant points out that no witness corroborated Cunicelli's testimony that Nash initiated the interview. The defendant also contends that the government did not rebut or contradict a police officer's testimony that the defendant remained in a police car with the windows rolled up until the Customs Service agents removed him to the quonset hut. Finally Nash points out that no one besides Cunicelli witnessed his alleged confession. The defendant essentially argues that Cunicelli simply obtained Nash's signature on an "ambiguous" acknowledgement form, so that the agent could later use that form as evidence that Nash had waived his rights and confessed.

After a grand jury indicted him, Nash made a pre-trial motion to suppress statements that he allegedly made to Cunicelli. The court denied the motion. The jury found Nash guilty of one count of conspiracy and one count of attempt to import cocaine. Nash was sentenced to twenty consecutive years of confinement on each count.

II.

Nash first contends that the district court erred in denying his motion to suppress Cunicelli's testimony concerning the defendant's alleged confession.

In the context of a motion to suppress, the district court's findings of fact will be upheld unless they were clearly erroneous, e.g., United States v. Newbern, 731 F.2d 744, 747 (11th Cir.1984), but the application of the law to those facts is subject to de novo review, e.g., Adams v. Balkcom, 688 F.2d 734, 739 (11th Cir.1982). We construe the facts in the light most favorable to the party who prevailed below. E.g., United States v. Baron-Mantilla, 743 F.2d 868, 870 (11th Cir.1984) (per curiam).

Nash argues that the district court erred in holding that his alleged statements to Cunicelli were voluntarily made. Both the government and the defendant agree that at the time of his arrest Nash told Customs Service officials that he did not wish to make a statement. Thus, our inquiry into whether the defendant later acted voluntarily is guided by Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), which dealt with the voluntariness of a confession that came after the defendant initially informed police of his desire to remain silent. In holding that the confession was voluntarily made, the Mosley Court rejected the argument that Miranda creates a "per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent." Id. at 102-03, 96 S.Ct. at 325-26. Rather, the Mosley Court concluded, "the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his 'right to cut off questioning' was 'scrupulously honored.' " Id. at 104, 96 S.Ct. at 326.

The evidence introduced at the suppression hearing supports a finding that the Customs Service officials scrupulously honored Nash's right to cut off questioning and that Nash knowingly and intelligently waived his right to remain silent. When the defendant first indicated that he did not wish to make a statement, the officials ceased questioning him and left him alone inside a police vehicle. Cunicelli's questioning of Nash did not take place until over an hour later and, according to Cunicelli, only at the defendant's request. Although Nash disputes Cunicelli's testimony that the defendant initiated the encounter and knowingly waived his rights by signing the waiver form, we are unable to conclude that the district court was clearly erroneous in believing Cunicelli's version of events.

The defendant further contends that his statements were involuntary because of illegal inducements. We find that the district court was not clearly erroneous in accepting Cunicelli's testimony that he only promised to make Nash's cooperation known to the United States Attorney's office and gave no guarantee of a reduced sentence. Although Cunicelli told Nash that cooperating defendants generally "fared better time-wise," this statement did not amount to an illegal inducement: "telling the [defendant] in a noncoercive manner of the realistically expected penalties and...