U.S. v. Prueitt

Decision Date21 July 1976
Docket NumberNos. 75-2709,75-2599,75-2602,75-2601,75-2603 and 75-2600,s. 75-2709
Citation540 F.2d 995
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Robert Lee PRUEITT, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Karl Darrell PETERSEN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Neil Lee TEMPLE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Phillipp Michael BOURCHIER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Dwayne David WALKER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Darla Loree BLICKENSTAFF, a/k/a Darla Loree Jenkins, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Before CHAMBERS, BARNES and HUFSTEDLER, Circuit Judges.

BARNES, Senior Circuit Judge:

I Facts

On approximately September 1, 1974, a previously untested informant approached Los Angeles County Deputy Sheriff William B. Stoops, informing him that Defendants Jerry Hong and Robert Prueitt were both pilots, that Prueitt owned an airplane, that Hong would fly Prueitt's aircraft and Prueitt would fly another airplane, that both would fly to some location in the desert near Apply Valley, California, where they would meet some camper vehicles with other people. There, according to the informant, Hong and Prueitt would meet certain persons arriving by auto, and would take the seats out of the airplanes, line the inside with plastic material and install extra gas tanks. Then, the following morning, Hong and Prueitt would fly the airplanes to Mexico, leaving sometime prior to dawn, and return within approximately sixteen hours with marijuana which would be unloaded into the campers. The seats would then be placed back into the airplanes and the planes flown back to the El Monte Airport. Deputy Stoops requested the informant to contact him when such a trip was planned.

On October 1, 1974, the informant called Stoops, relating that the above scheme would take place beginning that same day at 4:00 p. m. when Hong and Prueitt were to leave from the El Monte Airport. Stoops then contacted the Drug Enforcement Administration (DEA) and related all the information he had received from the informant first to Agent Roberts and later that day to Agent Sye. Upon receipt of this information, Sye and fellow agents commenced surveillance of Prueitt's airplane. At 5:30 p. m., Prueitt's plane, occupied by both Hong and Prueitt, and under air surveillance, departed from the El Monte Airport and flew to Brackett Airport in La Verne, California, about twenty miles away. Several minutes later, it taxied back onto the runway and requested take-off clearance. A second aircraft, which had been parked beside Prueitt's plane also requested the same clearance and departure time. When both aircraft were airborne, Agent Sye monitored conversations between the pilots, noting that the parties were referring to one another as "Jerry" and "Bob" (the first names of Defendants Hong and Prueitt). At approximately 6:30 p. m., both aircraft landed at an abandoned Navy dirt airstrip located in the desert. The planes were met by a pickup camper and a station wagon with a trailer attached. Sye, who had observed the above activity in a DEA airplane piloted by Agent Hindes, left the area at dark, at which time the two ground vehicles and two airplanes were parked together on the airstrip.

Shortly before dawn on October 2, 1974, Sye and Hindes returned to the airstrip in the DEA airplane, finding that the ground vehicles were still there, but that the airplanes had departed. They returned to the area around noon, observing that the ground vehicles also had departed. Later that day, both ground vehicles were seen together in the same general area and later, at the airstrip. Shortly after 5:00 p. m., both vehicles had stationed themselves. The camper had proceeded to Galway Dry Lake, while the station wagon-trailer was parked at the airstrip. The DEA airplane containing Agent Sye shuttled between Galway Dry Lake and the airstrip, keeping both vehicles under surveillance while ground units moved into the area. Just prior to 5:15 p. m., one of the airplanes landed at the airstrip and met the station wagon-trailer. In less than twenty minutes, the aircraft and ground vehicle had separated, the airplane taking off to the west and the ground vehicle leaving the airstrip. After Agent Sye identified the airplane as one of the planes which he had observed the previous day, he instructed Agent Shaw by radio to stop and search the station wagon-trailer. Upon stopping the vehicle which Defendant Bourchier was driving as its sole occupant, Shaw looked in the trailer from outside. He saw several full burlap bags and some gas cans. He thereupon searched the vehicle and found ten bags of a substance which appeared to be marijuana and nine empty gas cans. The results of the stop and search were transmitted to Agent Sye, who arrested Defendants Hong and Neil Lee Temple when they landed at the El Monte Airport.

While the arrests of the occupants of the station wagon-trailer and the aircraft were occurring, the camper was still waiting at Galway Dry Lake under the surveillance of Agent Gribble. As it became dark, Agent Gribble radioed to Agent Roberts that an airplane was circling over the camper and the camper was flashing its headlights, but that he could not determine whether or not the airplane had landed. While Roberts and others were proceeding toward Galway Dry Lake in response to Gribble's prior transmission, Gribble radioed that the camper was leaving and heading toward them. Roberts and the others then established a roadblock. When the camper approached, the agents activated a red light and siren. The camper, however, did not stop, but rather attempted to run through the roadblock. A warning shot brought the vehicle to a stop. The occupants of the camper were Defendant Walker, the driver, and Defendant Jenkins. In the vehicle, the agents found a fully automatic carbine, four airplane seats that came from one of the planes, and a number of red gas cans.

Since the other airplane had not been located yet, Deputy Stoops and his partner, Deputy Lopez, drove to Soggy Dry Lake where it appeared that the camper had been heading before it was stopped. Upon arriving at the Lake, they heard an airplane. The officers flashed the headlights of their vehicle as the camper had previously done. An airplane landed and taxied toward them. After the plane's engine had been shut off, Deputy Stoops alighted from his vehicle with gun drawn and ordered the Defendants in the plane, Defendants Prueitt and Petersen, to exit. Other agents were notified, and Agent Roberts arrived shortly thereafter. Roberts proceeded to search the plane, during which he found seven burlap bags full of marijuana and seven red fuel cans. A fuel system identical to the one found in the station wagon-trailer was also discovered during the search. An air chart of the Northern Gulf of California area of Mexico was also found with a hand-marked course line showing it was intended for use in navigating by plane from the area of Imperial, California, to Los Mochis Sinaloa, Mexico, and back to the Soggy Dry Lake area. In both airplanes, agents found as well identical Los Angeles and San Diego sectional air charts with identical handwritten notations indicating that they were intended for use in flying to the Soggy Dry Lake area. The marijuana recovered was packaged in traditional Mexican packaging. The auxiliary fuel systems were necessary to extend the range of the two airplanes to reach Los Mochis.

II Conviction and Sentence

All Defendants were indicted in the Southern District of California on three counts. The first count charged them with unlawfully, willfully, and knowingly combining, conspiring, confederating, and agreeing together, and with each other, to commit offenses in violation of 21 U.S.C. 841(a)(1), 952, and 960. The second count charged the Defendants with knowingly and intentionally importing approximately 900 pounds of marijuana into the United States from Mexico. The third count charged them with knowingly and intentionally possessing with intent to distribute approximately 900 pounds of marijuana. In a trial without jury, the Defendants were all acquitted as to counts two and three, but were found guilty as to count one. On appeal, Defendants contend that their convictions as to count one should be reversed. This Court has jurisdiction under 28 U.S.C. 1291.

III "Authorized Attorney for Government"

The first issue which appellants raise is that the indictment in the present case was not obtained by an authorized attorney for the government as is required by statute, and was, therefore, void. The relevant statutes here are 28 U.S.C. 547, 28 U.S.C. 515(a), and Federal Rules of Criminal Procedure 6(d) and 54(c). The duties of the United States Attorney are contained in 28 U.S.C. 547, which provides in part:

Except as otherwise provided by law, each United States attorney, within his district, shall

(1) prosecute for all offenses against the United States;

(2) prosecute or defend, for the Government, all civil actions, suits or proceedings in which the United States is concerned;

As defined by Federal Rules of Criminal Procedure 6(d), only "(a)ttorneys for the government . . . may be present while the grand jury is in session . . . ." Rule 54(c) states that an " 'Attorney for the government' means the Attorney General, an...

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