U.S. v. Ogden, 81-1442

• Decision Date: 22 March 1983
• Docket Number: No. 81-1442,81-1442
• Citation: 703 F.2d 629
• Parties: UNITED STATES of America, Appellee, v. John H. OGDEN, Jr., Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 629

703 F.2d 629

UNITED STATES of America, Appellee, v. John H. OGDEN, Jr., Defendant, Appellant.

No. 81-1442.

United States Court of Appeals First Circuit.

Argued Dec. 10, 1982.

Decided March 22, 1983.

Anthony M. Traini, Boston, Mass., with whom Leppo & Traini, Boston, Mass., was on brief, for defendant, appellant.

F. Mark Terison, Asst. U.S. Atty., Auburn, Me., with whom Richard S. Cohen, U.S. Atty., Portland, Me., was on brief, for appellee.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, and SMITH, ^* Senior District Judge.

BOWNES, Circuit Judge.

Defendant-appellant John H. Ogden, Jr. was convicted by a jury of the transportation of stolen components of a 1975 Kenworth motor freight tractor in violation of 18 U.S.C. Sec. 2314 and receipt of the same stolen tractor components in violation of 18 U.S.C. Sec. 2315.

Three issues are raised on appeal:

1. whether defendant's pretrial motion to suppress evidence was properly denied;

2. whether the indictment should have been dismissed for prosecutorial abuse; and

3. whether defendant was properly charged under 18 U.S.C. Secs. 2314 and 2315.

I. THE SUPPRESSION ISSUE

The Facts

The facts adduced at the lengthy suppression hearing are not hotly disputed, only the legal conclusions to be drawn from them. A little information about Stonington, Maine, is necessary. Stonington is located on the southern tip of Deer Isle, a sparsely populated island jutting out into the Atlantic Ocean. The main road in the island is Route 15; it leads to and terminates at Stonington. The chief industry of the town is fishing. There is an abandoned granite quarry with a deep water dock in a section of the town called the "settlement area." A boat repair establishment and fish-loading business are located in this area. The settlement area is also popular with young people because it lends itself to a trysting place for romance. There is a chain across the road leading to the settlement area which is a barrier to traffic; the chain is lowered during normal working hours.

The case began at about 8:15 p.m. on March 14, 1980, when the police chief of Stonington, Richard Sweetsir, received a phone call from a local resident informing him that four large tractor-trailer trucks had been seen going south towards Stonington on Route 15. The caller's remarks that these were "strange trucks" and "it didn't look right" struck a responsive chord in Sweetsir for several reasons. Trucks that were used regularly for transporting fish were locally owned and familiar to Stonington residents. All fishing activity had been halted by a week of very stormy weather. Sweetsir had been told earlier that week by the Maine State Police to be on the alert for strange trucks that might be used in smuggling operations on the island.

After receiving the call, Sweetsir decided to investigate. He first called Trooper Bruce Setler of the State Police, told him about the trucks and arranged to meet him at a local gas station. Sweetsir then drove to the settlement area. As he drove through Stonington village, he saw that the local fishing boats were tied up at the docks. When the chief got to the approach to the settlement area he found the chain down. He thought this odd because normally the area is not used at night (except for romance) and the chief knew that no fish-loading operations were scheduled for that night.

Sweetsir then met State Trooper Setler as arranged. Before meeting Sweetsir, Setler had called another state trooper, Brian White, and told him about the report of strange tractor-trailers in the area. White joined Sweetsir and Setler at the filling station after notifying Sergeant Harry Bailey and Special Agent Michael Vittum of the report of strange trucks in the area. Bailey and Vittum were members of the Division of Special Investigations of the State Police. The meeting at the filling station took place at about 9:15 p.m., after which the three men went to Sweetsir's house. They returned to the filling station at about 11:10 p.m. Ten minutes later, at approximately 11:20 p.m., White and Setler left together in one cruiser to go to the settlement area. As they approached the area, they saw a forty-foot tractor-trailer leaving it. The truck proceeded to Route 15 and headed north. The officers followed it. Another tractor-trailer came out of the settlement area and proceeded along behind the troopers' cruiser. When the two trucks with the cruiser between them went past the filling station, Sweetsir pulled out and followed in his car. Two other tractor-trailers, which apparently had also just left the settlement area, followed behind Sweetsir.

At about 11:30 p.m. White and Setler stopped the lead truck and Sweetsir halted the other three. The stop was made approximately two miles beyond the gas station. The defendant was driving the lead truck which consisted of a 1975 Kenworth tractor with Massachusetts plates C 82-497 and a 1970 Trailmobile trailer. When Setler and White approached the truck to check the driver's license and vehicle registration, Setler recognized the defendant as being implicated in a pending state court case involving stolen property. Defendant produced a Massachusetts license and registration showing that Emanon Trucking Co., Inc., owned the truck. Defendant did not have a Public Utilities Commission permit or a manifest. He explained this by stating that the trailer was empty and that he had come to Maine only because of a court case in Ellsworth. White checked the trailer and found it empty except for two dollies. Defendant then gave a different reason for his presence on Deer Isle. He said that he had originally come to Maine to haul a load of potatoes from Aroostook County, but changed his plans after meeting a man named "Murray" or "Murphy" at a truck stop near Bangor. According to defendant, this man offered him four hundred dollars to haul a load of fish from Stonington to Boston. Defendant said that he followed the man to Stonington, but the boat carrying the fish never arrived.

A check of the identification of the people in the other three trucks and the truck registrations was then made. Two of the trucks were registered to defendant's mother, Josephine Ogden, doing business as Ever Ready Trucking. One was a black 1967 Mack tractor with a 1970 Mack trailer, the other was a 1970 black Kenworth with a 1970 Great Dane trailer. The fourth truck was a 1974 Peterbilt tractor with a 1974 utility trailer. It was registered to the driver, Joseph Sullivan, and is not involved in this case.

Sometime after White and Setler returned to their cruiser to check the licenses and registrations and record the information obtained, defendant joined them. Without prodding or questioning, he repeated his story about hauling the load of fish that never arrived at Stonington.

Within thirty minutes of the time the truck caravan was first stopped, a local resident, Bradley Jones, arrived at the scene in a pick-up truck. After being told by Sweetsir that Jones had some information about the trucks, White went over to Jones' pick-up. Jones told White that he had been in the settlement area earlier that evening looking for a girl. A red Blazer pick-up truck and four tractor-trailers were in the area. Jones was captured by a man wearing a ski mask who took him to the Blazer. Thereupon, a man in the Blazer told Jones' captor to put him in a nearby van. There were others being held in the van. When Jones was in the van, he heard the men in the front seat trying to make radio contact with a boat. The question, "Where's the boat?" was repeatedly asked. One or more of them said they were going to "blow the deal." Jones and the others were given three hundred dollars each and told to forget everything they had seen or heard and then released. Jones promptly contacted the police.

Because of the freezing rain and icy and narrow road the police thought it prudent to drive to a local high school parking lot. The truck drivers agreed. The licenses and registrations were not returned because the troopers had not yet finished their paper work. The caravan left for the parking lot at 12:28 a.m. The roadside investigation had lasted about one hour.

On the way to the high school parking lot, Sergeant Bailey of the state police special investigation unit was informed of what had occurred. Bailey instructed White to hold the trucks and all occupants until Drug Enforcement Administration (DEA) agents arrived at the parking lot. At the parking lot White read defendant his Miranda rights and then interviewed him. Defendant adhered to his "fish" story. The occupants of the other trucks also said that they came to the settlement area to pick up a load of fish and when the boat did not come, they left.

DEA Agents Drinan and Cuniff arrived at the parking lot at about 5:30 a.m. Cuniff seized the trucks pursuant to 21 U.S.C. Sec. 881 which provides for forfeiture of conveyances used to transport drugs. All of the truck occupants were arrested for conspiracy to smuggle marijuana.

The next day, March 16, the trucks were taken to Camp Keyes, a National Guard camp in Augusta, pending further investigation. As the trucks were driven into the camp, they were observed by Sergeant Peter McCarthy of the State Police who was stationed at the gate. McCarthy had been warned by the Massachusetts State Police that it was suspected that these trucks contained stolen parts. McCarthy noticed that the 1967 Mack tractor appeared to have a double drive shaft. He went over to it, bent down slightly, looked underneath and confirmed his suspicion that the tractor did have a double drive shaft. McCarthy did not crawl under the tractor, nor did he open the hood. The vehicle identification number of the tractor, which had been given McCarthy by the Massachusetts State Police, showed that the tractor should have had a single drive shaft. McCarthy subsequently informed FBI Agent Gerald Mahoney of what he had observed. Later...