U.S. v. Pringle, s. 84-1059

• Citation: 751 F.2d 419
• Decision Date: 14 January 1985
• Docket Number: Nos. 84-1059,s. 84-1059
• Parties: UNITED STATES of America, Appellee, v. William Bull PRINGLE, III, Defendant, Appellant. UNITED STATES of America, Appellee, v. James Crawford McAFEE, Defendant, Appellant. UNITED STATES of America, Appellee, v. Lloyd Cowan PARKER, Defendant, Appellant. to 84-1061.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 419

751 F.2d 419

UNITED STATES of America, Appellee, v. William Bull PRINGLE, III, Defendant, Appellant.

UNITED STATES of America, Appellee, v. James Crawford McAFEE, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Lloyd Cowan PARKER, Defendant, Appellant.

Nos. 84-1059 to 84-1061.

United States Court of Appeals First Circuit.

Argued Oct. 1, 1984.

Decided Dec. 19, 1984.

Rehearing and Rehearing En Banc Denied Jan. 14, 1985.

Robert F. Muse, Washington, D.C., with whom Ronald Kovner, Washington, D.C., was on brief, for defendant, appellant William Bull Pringle, III.

James W. Lawson, Boston, Mass., with whom Joseph S. Oteri, Oteri, Weinberg & Lawson, Boston, Mass., and Herbert S. Moncier, Knoxville, Tenn., were on brief, for defendant, appellant James Crawford McAfee.

Robert W. Ritchie, Amherst, Mass., for defendant, appellant Lloyd Cowan Parker.

Robert W. Meserve, Sp. Asst. U.S. Atty., and Gary S. Katzmann, Asst. U.S. Atty., Boston, Mass., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief for appellee.

Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge, and WEIGEL, ^* Senior District Judge.

BOWNES, Circuit Judge.

Defendants-appellants, William Bull Pringle, III, James Crawford McAfee, and Lloyd Cowan Parker, appeal their convictions of conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. Secs. 955a(b) and 955c (count four) and of possessing marijuana with intent to import it into the United States in violation of 21 U.S.C. Sec. 955a(d)(1) (count six). ¹ There are four issues before us: (1) whether the stop, boarding, search and seizure of the sailing vessel Nirvana with a cargo of twelve tons of marijuana violated defendants' rights under statutory authority, the fourth amendment or international law; (2) whether the Classified Information Procedures Act was violated; (3) whether count four of the indictment should have been dismissed; and (4) whether the Speedy Trial Act was violated.

I. THE SEIZURE OF THE NIRVANA

On August 20, 1982, the Coast Guard Cutter Cape Higgon had been ordered to patrol an area northeast of Cape Cod. Its commanding officer, Lieutenant Jost, had been instructed to be on the lookout for a sailing vessel approximately forty to sixty feet in length, possibly flying a foreign flag. Jost was also told that there would be an aircraft in the area and if the aircraft sighted the vessel, he was to board it, that it was suspected of carrying marijuana.

After arriving in the designated patrol area, the cutter received a radio transmission from a Coast Guard helicopter stating that it had sighted a vessel matching the description of the one suspected of carrying marijuana. Based on the information received from the helicopter, the cutter located the Nirvana approximately twenty miles northeast of Thacher's Island, which lies off Cape Ann, Massachusetts.

The cutter followed the Nirvana and closed to about seventy-five yards. The name of the vessel was displayed on a board which was secured to the ship by two bolts, one at either end of the name board. A similar board indicated that the Nirvana's home port was Dover. This method of attaching a nameplate to a vessel violated federal regulations which require that the name either be painted on the hull or each individual letter of the name be screwed into the hull. Using removable nameplates makes it easy to change a vessel's name.

The Nirvana was on a "very extreme starboard heel" and appeared to be "riding low in the water." Lieutenant Jost also noted that the Nirvana flew no flag.

The cutter displayed a stop sign on the bow, turned on its blue light, hoisted a In the ensuing radio communication between the two ships, the Coast Guard was told that the Nirvana's home port was Dover, Delaware, that its last port of call was Falmouth, Maine, and that its destination was Marblehead, Massachusetts. Her announced destination was inconsistent with the course she had been following.

pennant with the international signal to stop -"Lima"- and over the loud hailer ordered the Nirvana to "heave to and stand by to be boarded."

On the assumption that the Nirvana was a United States vessel, a boarding party was sent over under the authority of 14 U.S.C. Sec. 89(a) with orders to perform the standard documentation and safety check and "to check the main compartment for bulk marijuana." On boarding the Nirvana, a Coast Guard officer announced that the action was taken pursuant to 14 U.S.C. Sec. 89(a). The officer proceeded to the main cabin and requested the documentation papers. He was informed that there were none. As he looked around the cabin, the officer noticed numerous packages wrapped in black plastic and tied with twine tape; they appeared to be packages of marijuana. There was a strong smell of perfumed deodorant in the cabin. As the officer looked around further, he saw more black plastic packages and determined that they contained marijuana. He opened one of the packages, saw a green leafy substance, and tested it for THC, the active marijuana ingredient. The test indicated that the substance was marijuana. The cutter was notified of the presence of marijuana on the Nirvana, the defendants were arrested, the vessel was seized, and more than twelve tons of marijuana was confiscated.

It was later ascertained that the Nirvana was registered in the Grand Cayman Islands.

Under these facts, our own precedent compels that the attacks on the boarding, search and seizure of the Nirvana be repelled.

A. Fourth Amendment and Statutory Attacks

Since the fourth amendment and statutory claims are closely related, we consider them together.

The first question is standing. The government urges that defendants have no standing because under Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), they had no legitimate expectation of privacy in the area searched nor an interest in the property seized. It is true that defendants have asserted "that they played no part as owners of the boat or the marijuana, or as financiers, or managers of the importation scheme." App. Brief at 2. But they were the only ones aboard the Nirvana at the time of the seizure. They had charge of her day-to-day operations and she was their temporary home. In United States v. Lochan, 674 F.2d 960 (1st Cir.1982), we analyzed Rakas in detail and the cases leading to it and flowing from it. We concluded that some of the factors relevant to a privacy expectation are "legitimate presence in the area searched, possession or ownership of the area searched or the property seized, prior use of the area searched or the property seized, ability to control or exclude others' use of the property, and a subjective expectation of privacy." United States v. Lochan, 674 F.2d at 965.

Both the defendants' claim that they were innocent dupes and the government's argument that they had no standing to assert a fourth amendment defense sink under the heavy weight of the facts. The defendants had a right of privacy in the Nirvana to the extent afforded any crew member of a small sailing vessel on the high seas. We have held that this is a lesser expectation of privacy than people have in their homes and obviates the usual fourth amendment requirement of a search warrant. United States v. Green, 671 F.2d 46, 53 (1st Cir.1982).

The statute under which the Coast Guard boarded the Nirvana, 14 U.S.C. Sec. 89(a), ² is no stranger to this circuit. In United States v. Hilton, 619 F.2d 127 (1st Cir.1980), we held:

Under this statute, the Coast Guard may stop and board any American flag vessel on the high seas without a warrant and without any particularized suspicion of wrongdoing. Although the statutory language is quite broad, the statute has been consistently construed as limiting such stops--in the absence of probable cause--to the necessary task of conducting safety and document inspections. A more extensive search is permissible only if there is consent or probable cause to believe a crime has been or is being committed. Upon probable cause, the Coast Guard is authorized to seize the vessel and its contents, and to arrest those aboard.

....

We believe the limited intrusion represented by a document and safety inspection on the high seas, even in the absence of a warrant or suspicion of wrongdoing, is reasonable under the fourth amendment.

Id. at 131 (footnote and citations omitted).

At the time the boarding took place, the Coast Guard had good grounds for believing that, despite the fact she was flying no flag, the Nirvana was an American vessel. The crew was obviously American and had informed the commander of the cutter that the Nirvana's home port was Dover, Delaware. Once aboard the Nirvana, the Coast Guard had authority to conduct a reasonable safety and document inspection. Entering the main cabin for this purpose was entirely proper. The packages of marijuana were in plain view. Discovery of the marijuana justified the arrest of the defendants and seizure of the vessel under 14 U.S.C. Sec. 89(a). United States v. Hilton, 619 F.2d at 133.

That the Nirvana was not an American vessel but of Grand Cayman registry only postpones the inevitable, it does not change it. In United States v. Green, 671 F.2d at 53, we held that, "in addition to permitting proper administrative searches, the fourth amendment allows government officers, who are otherwise authorized, to board and search a vessel on the high seas should they have reasonable and articulable grounds for suspecting that it is engaged in criminal activity." (Footnote omitted.) "This 'reasonable suspicion' standard ... requires less than probable cause to justify a nonadministrative maritime search." United States v. Marsh, 747 F.2d 7 at 10 (1st Cir.1984). We find that there was reasonable and articulable grounds here for suspecting that the Nirvana was engaged in criminal activity: she was flying no flag; she had an easily removable nameplate; and she...