U.S. v. Pearson, s. 85-7221
| Decision Date | 17 June 1986 |
| Docket Number | Nos. 85-7221,85-7336,s. 85-7221 |
| Citation | 791 F.2d 867 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. James PEARSON, Evan Walton Taylor, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Daniel RAINEY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
J.B. Sessions, III, U.S. Atty., Gloria A. Bedwell, Asst. U.S. Atty., Mobile, Ala., for the U.S.
Desmond B. Toler, Mobile, Ala., for Rainey.
Appeals from the United States District Court for the Southern District of Alabama.
Before KRAVITCH and HATCHETT, Circuit Judges, and DUMBAULD *, Senior District Judge.
The appellants in these cases were indicted together in the Southern District of Alabama for offenses arising out of marijuana smuggling activity. All three appellants were arrested on the high seas by the Coast Guard. Appellant Taylor was arrested on board the vessel AURORA I, a Panamanian freighter. Appellants Pearson and Rainey were arrested on board the On November 7, 1984, the Coast Guard Cutter ACUSHNET was patrolling the waters forty to fifty miles north of the Yucatan Peninsula. The ACUSHNET received an intelligence report of a suspicious freighter near the Alacran Reef, approximately 200 miles away. The freighter was later identified as the AURORA I. The ACUSHNET proceeded to the reported position and spotted the AURORA I at about midnight; the AURORA I was dead in the water with only a mast light on. Approaching with its lights out, the crew of the ACUSHNET observed the AURORA I rendezvous with a smaller vessel.
ADRIANA BELLE, a fishing vessel of American registry. Appellants Taylor and Pearson were tried together and convicted of possession of marijuana with intent to distribute, 21 U.S.C. Sec. 841(a)(1), conspiracy to distribute marijuana, 21 U.S.C. Secs. 841(a)(1) & 846, and conspiracy to import marijuana, 21 U.S.C. Secs. 952(a) & 963. Appellant Rainey was tried separately and convicted of the same offenses.
The ACUSHNET then made radio contact with the AURORA I, and asked permission to board to verify registration. Consent was given via radio and Lieutenant Hricz led an armed boarding party of five men. While approaching the vessel, Lieutenant Hricz noticed that the vessel had no mast marks to indicate how low it was riding in the water, and that the name of the vessel was recently painted. Once on board, the party assembled the crew of the AURORA I on the stern, and conducted a cursory safety sweep; Taylor identified himself as the master of the vessel. Lieutenant Hricz then examined the papers of the vessel and found them in order. Meanwhile, aboard the ACUSHNET Lieutenant Stark received further intelligence confirming that the AURORA I was involved in smuggling. Lieutenant Stark then joined the boarding party; on board he inspected the log and found that it bore the name of a vessel suspected of smuggling marijuana under a load of cement. The bill of lading showed that the AURORA I was carrying a cargo of cement.
The Coast Guard officers commenced a search in an attempt to account for all of the spaces in the vessel. While inspecting one of the holds, they determined that space in front of the forward bulkhead had been sealed off and detected a smell of marijuana upon inspecting the forward bulkhead in the hold. They then found a vent to the area, which was plugged with a rag; upon removing the rag they detected a strong odor of marijuana. They cut into the bulkhead and discovered 17,500 pounds of marijuana. The Coast Guard boarding party then arrested Taylor and the rest of the crew. The ACUSHNET towed the AURORA I into Mobile.
On November 10, 1984, the crew of the Coast Guard cutter POINT STEEL observed the ADRIANA BELLE five miles off Cape Romano, Florida. A four man boarding party discovered marijuana in their initial safety sweep of the ADRIANA BELLE, and then discovered several thousand pounds of marijuana throughout the vessel. Appellants Pearson and Rainey were arrested and taken to Fort Myers, Florida.
The government presented evidence at trial indicating that the ADRIANA BELLE had taken its load of marijuana off of the AURORA I. First, the log of the AURORA I contained an entry listing the ADRIANA BELLE. Second, government witnesses testified that samples of marijuana taken from the two vessels came from the same source.
Appellants Pearson and Rainey contend that venue was not proper in the Southern District of Alabama as the ADRIANA BELLE was brought into Florida, not Alabama. Appellants repeatedly have raised this issue below and on appeal, while doggedly refusing to address the applicability of 18 U.S.C. Sec. 3238, which provides:
The trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district in which the offender, or any one of two or more joint offenders, is arrested or is The offenses in this matter were committed on the high seas, Taylor was a "joint offender" with Pearson and Rainey, and Taylor was "first brought" into the Southern District of Alabama. Accordingly, venue was proper in the Southern District under 18 U.S.C. Sec. 3238.
first brought; but if such offender or offenders are not so arrested or brought into any district, an indictment or information may be filed in the district of the last known residence of the offender or of any one or two or more joint offenders, or if no such residence is known the indictment or information may be filed in the District of Columbia.
All three appellants filed motions to suppress the evidence discovered in the search of the AURORA I, challenging the propriety of the boarding and search. Pearson and Rainey, who were not even aboard the AURORA I, have presented no reason why they have standing to challenge the evidence seized from that vessel. Accordingly, the district court's denial clearly was correct with respect to them.
The Coast Guard may stop and board a foreign vessel in international waters under 14 U.S.C. Sec. 89(a) if it has a reasonable suspicion that the vessel is engaged in smuggling contraband into the United States. United States v. Williams, 617 F.2d 1063 (5th Cir.1980) (en banc). 1 The reasonable suspicion satisfies both the section 89(a) requirement that the vessel be "subject to the jurisdiction" of the United States, and the fourth amendment requirement that the seizure be reasonable. Id. Whether the Coast Guard had reasonable suspicion must turn on the totality of the circumstances. United States v. Reeh, 780 F.2d 1541 (11th Cir.1986). Reasonable suspicion must be more than a mere hunch, yet it may be based on facts consistent with innocent conduct, and a law enforcement officer may assess the facts in light of his or her expertise in detecting...
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