U.S. v. Saimiento-Rozo, SAIMIENTO-ROZ

• Decision Date: 17 May 1982
• Docket Number: SAIMIENTO-ROZ,B,No. 81-3360,81-3360
• Citation: 676 F.2d 146
• Parties: 10 Fed. R. Evid. Serv. 785 UNITED STATES of America, Plaintiff-Appellee, v. Horacioeymen Sanchez, Jaime Padilla-Beltran, Hector Garcia-Pinillo, Roger Rodriguez-Zumaque, Dennison McDonald, Oscar De Avilla, Hueton Archibold-Robinson, Edgar Marin-Jaramillo, Jose Arboleda-Ocamdo and Alfred Martino-Domingo, Defendants-Appellants. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 146

676 F.2d 146

10 Fed. R. Evid. Serv. 785

UNITED STATES of America, Plaintiff-Appellee, v. Horacio SAIMIENTO-ROZO, Beymen Sanchez, Jaime Padilla-Beltran, Hector Garcia-Pinillo, Roger Rodriguez-Zumaque, Dennison McDonald, Oscar De Avilla Hueton Archibold-Robinson, Edgar Marin-Jaramillo, Jose Arboleda-Ocamdo and Alfred Martino-Domingo, Defendants-Appellants.

No. 81-3360

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

May 17, 1982.

Oscar S. Rodriguez, Coral Gables, Fla., for defendants-appellants.

Paul A. Winick, Michael Schatzow, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before RUBIN, SAM D. JOHNSON and GARWOOD, Circuit Judges.

SAM D. JOHNSON, Circuit Judge:

The eleven appellants were charged with conspiracy to import marihuana, 21 U.S.C § 963, conspiracy to possess marihuana with intent to distribute, 21 U.S.C. § 846, and the underlying substantive offenses of importation and possession of marihuana with intent to distribute, 21 U.S.C. § 952(a); § 841(a) (1). ¹ Appellants Saimiento-Rozo and McDonald were convicted on all counts. The remaining appellants were found guilty only of importation and conspiracy to import.

Appellants raise several points on appeal. First, they contend that the district court committed reversible error in failing to ask a supplemental voir dire question. Second, they argue that the evidence was insufficient to support their conviction on the importation counts. Third, McDonald argues that the district court erred in denying his motion to suppress a statement allegedly made by him to DEA agents because he was not properly advised of his Miranda rights. For the reasons set out below, we affirm the appellants' convictions.

On December 11, 1980, while on routine patrol, United States Coast Guard Cutter, POINT SPENCER, spotted a 110-foot coastal freighter aground in the channel of the Mississippi River-Gulf Outlet. The freighter, later determined to be the TYSFORD, was attempting to pull itself off the bank. Upon orders from the captain of the POINT SPENCER, several of the coastguardsmen boarded the TYSFORD, where they detected an odor of marihuana. A search of the TYSFORD revealed approximately 71,000 pounds of marihuana in the freighter's hold. Appellants were on board. They were arrested and a more extensive search of the TYSFORD was conducted. The search uncovered various documents including a navigation chart and a log book. Using these documents, the government's navigation expert was able to plot appellants' course from South America to the coast of Louisiana.

Voir Dire

Appellants argue that the district court committed reversible error in refusing to ask a proposed voir dire question. The question was as follows:

Have you, your close friends, or any member of your family ever had a problem with narcotic drugs, non-narcotic drugs such as marihuana and/or pills such as qualludes or diet pills?

The court agreed to ask a reformulation of that question. But the reformulated question, for whatever reason, was never asked. The closest the court came to questioning the jurors on the subject was:

Have you or any member of your family ever been the victim of a crime?

Appellants' reasoning in submitting the proposed question was that a juror who had been the victim of a drug related problem or who had a family member with a drug problem might be prejudiced against one charged with importing and distributing marihuana. They contend that the court's inquiry was too broad to uncover such prejudice.

A trial court has broad discretion in conducting voir dire, including whether to submit proposed questions to the prospective jurors. United States v. Shavers, 615 F.2d 266, 268 (5th Cir. 1980); United States v. Delval, 600 F.2d 1098, 1102 (5th Cir. 1979). The standard for evaluating the court's exercise of discretion is whether the means employed to test impartiality have created a reasonable assurance that prejudice would be discovered if present. Shavers at 268.

While the question asked by the court may well have been too broad to uncover all possible prejudice, the record shows that the question elicited many of the same responses appellants' proposed question was designed to elicit. Seven prospective jurors responded that they had family members or friends who had been arrested for and/or convicted of narcotics law violations. One man revealed that he had an uncle who had been assassinated in a drug related case. A woman stated that her son had drug related and mental problems and had been shot. The record also shows that before concluding the voir dire the court asked attorneys for appellants whether they had additional questions they wished the court to ask. Neither of the attorneys suggested any, nor did they raise any objections to the court's previous questions. Under the circumstances, the court's failure to ask the proposed voir dire question cannot be considered an abuse of discretion. See United States v. Carroll, 582 F.2d 942, 946-47 (5th Cir. 1978).

Sufficiency of the Evidence

Appellants also challenge the sufficiency of the evidence to support their convictions on the importation counts. They claim the government failed to prove that the marihuana came from outside the territorial waters of the United States. In considering appellant's claim, we must view the evidence in the light most favorable to the Government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 860 (1942); United States v. Bland, 653 F.2d 989, 995, (5th Cir.), cert. denied, --- U.S. ----, 102 S.Ct. 602, 70 L.Ed.2d 592 (1981).

The Government's principal evidence was a log book and a navigation chart found open on the bridge of the TYSFORD. The log book contained several entries dating from December 2 to December 9. Using the log book entries and notations made on the navigation chart, the Government's expert plotted appellants' course from the coast of Colombia to the Mississippi River-Gulf. The Government also introduced a seaman's license, a second class officers license, a pilot's license, and a passport, all in the name of Saimiento-Rozo from the country of Colombia. Also, a statement was introduced against McDonald only, in which he admitted to importing marihuana.

Appellants objected to the admission of the log book and the chart at trial on the grounds of relevancy and prejudice. They now contend that the evidence is hearsay, inadmissible under the co-conspirator exception, Fed.R.Evid. 801(d)(2) (E), because a conspiracy was not first established. See United States v. James, 590 F.2d 575, 578 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979). Because appellants did not raise this ground below, we must review their claim under the plain error standard. United States v. Chaney, 662 F.2d 1148, 1153 (5th Cir. 1981). ²

There is little proof of the importation conspiracy independent of the co-conspirator statements,...