U.S. v. Schmidt, 77-1334

Decision Date06 February 1978
Docket NumberNo. 77-1334,77-1334
Citation573 F.2d 1057
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Richard A. SCHMIDT, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Thomas H. S. Brucker, Seattle, Wash., for defendant-appellant.

Donald M. Currie, Asst. U. S. Atty., Tacoma, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before CARTER and HUFSTEDLER, Circuit Judges, and SMITH, * District Judge.

JAMES M. CARTER, Circuit Judge:

This is an appeal by Richard A. Schmidt of his conviction under a two count indictment for importation and conspiracy to import cocaine into the United States in violation of 21 U.S.C. §§ 952 and 963, respectively. Schmidt waived his right to a jury and following trial was found by the district judge to be guilty on both counts. He was sentenced to five years imprisonment on each count, the sentences to run concurrently.

Schmidt states three grounds upon which he contends his conviction should be reversed. First, statements made to DEA agents in Peru were allegedly improperly admitted because they were the result of coercive conduct by the Peruvian government. Second, the physical evidence presented at trial is claimed to be the inadmissible product of the coerced statements. Third, the United States government is alleged to have prevented the defense from investigating the crime in Peru. None of these contentions is meritorious. We affirm.


Appellant Richard A. Schmidt and James Hooker conspired to illegally import approximately five pounds of cocaine from Lima, Peru to Tacoma, Washington. Pursuant to this plan, on the evening of January 6, 1976, Schmidt scuba-dived underneath the freighter "Santa Mercedes" which was moored in the Callao Harbor, Lima, Peru. He attached a metal canister containing the cocaine to the rolling chock of the ship. The ship was leaving that evening for Tacoma.

When he surfaced Schmidt was spotted by Peruvian military guards. Since he was in a restricted area the guards suspected him of espionage or sabotage and after a chase apprehended him. Although the departure of the Santa Mercedes was delayed shortly because of the commotion in the harbor, the ship received clearance and left on route to Tacoma before the Peruvian military could search its hull.

Schmidt was interrogated immediately by the Peruvian navy intelligence police. He had no clothes because he had worn only his wetsuit to dive. He was given a blanket. Schmidt then told the authorities that Commander Petrozzi, a Peruvian military officer, could vouch for him and the commander was summoned. Upon arrival Commander Petrozzi offered his assistance to Schmidt and arranged for Schmidt to be escorted to find his clothes on the beach where he had left them.

At the beach the authorities discovered not only Schmidt's clothing, but also James Hooker who was hiding in the rocks nearby. Hooker had taken Schmidt to the restricted area of Callao Harbor earlier that evening in a rubber boat. When Schmidt was being chased by the harbor guards Hooker was observed to flee the harbor in the rubber boat. Apparently he was waiting in the rocks to see if Schmidt would return. Hooker was taken into custody. Schmidt's clothing disappeared unexplainedly, thought by Schmidt to be stolen by some of his guards. He was given other clothes the next day.

A search of the area near where Hooker was caught revealed a car which contained, among other items, Hooker's passport, some rubber tubing, a motor and a rubber boat. The boat was later determined to have been purchased by Richard Schmidt in Seattle, Washington in December, 1975, under an assumed name.

Other important physical evidence was uncovered by the Peruvian authorities during Schmidt was abusively interrogated by the Peruvian naval authorities. For the first few days he resisted interrogations at which he was slapped and hit for refusing to answer questions. 2 Finally, however, after a nighttime interrogation at which he was again slapped and hit and repeatedly had his head dunked in a bucket of water, Schmidt confessed his participation in the cocaine smuggling conspiracy. Throughout the entire ordeal Schmidt asked to see either an attorney or a representative of the American Embassy, but was refused. Once he had confessed Schmidt was returned to his cell, but within a few days he became ill, unable to eat, and was transferred to a hospital for treatment. About a week had elapsed since Schmidt's capture.

their investigation. In James Hooker's apartment a metal canister with gaskets and a clear plastic plate which sealed its top were found. A search of the apartment of James Hooker's father, Cecil Hooker, uncovered Richard Schmidt's passport. 1

At the hospital custody over Schmidt was conveyed by the navy to the narcotics division of the Peruvian Investigative Police (PIP). Officials of the PIP attempted to obtain a second confession from Schmidt while he was still in the hospital, but Schmidt refused to cooperate. After a two-day recovery period at the hospital Schmidt was removed to the prison at PIP headquarters.

The PIP interviewed Schmidt frequently over the next week, at all times of day or night, attempting to corroborate the statements he had made to the naval officials. Again Schmidt was slapped and hit for refusing to cooperate, but continued to insist on seeing an attorney or a representative of the U.S. Embassy. Although his later testimony is inconclusive, apparently Schmidt repeated some of his earlier admissions, but refused to fully corroborate the coerced confession. Nevertheless, based mostly on the information extracted from Schmidt by the Peruvian navy, the PIP typed up a complete statement and made Schmidt sign it. Schmidt refused to sign until he feared another dunking session. Even then he withheld his signature until he was permitted to append the words "forced signature" to two of the three pages of the document. 3

On January 16, 1976, during his confinement at PIP headquarters but before he had been forced to sign the statement, Schmidt was visited by two American agents of the Drug Enforcement Administration (DEA). The agents were attempting to ascertain whether the attempt to smuggle cocaine into the United States had been successful and whether any still undisclosed persons had been involved. They first advised Schmidt of his Miranda rights which he said he understood. Then Schmidt admitted his own participation in the conspiracy but refused to implicate any others until he was returned to the United States.

One or two subsequent meetings were held between agents of the DEA and The Santa Mercedes arrived on schedule in Tacoma, Washington on January 23, 1976. DEA divers found a metal cylinder identical to the one discovered in Hooker's apartment in Peru attached to the rolling chock of the ship. The cylinder's contents were analyzed and found to contain 85 ounces (approximately 2.4 kilograms or 5.3 pounds) of 70% pure cocaine with an estimated street value of over $340,000. The cocaine was wrapped in a plastic bag and sealed with surgical tubing like that found in Hooker's car at the beach in Peru.

Schmidt, but at these meetings Schmidt was less willing to discuss even his own involvement. His only further admission occurred when he was criticized for placing the canister on a dangerous part of the ship. Schmidt expressed that he had not intended to endanger anyone by doing so.

On February 5, 1976, Schmidt escaped from prison in Peru. Four days later charges were filed against him in the United States. He was subsequently arrested in Seattle on June 11, 1976.

One week prior to trial, counsel for Schmidt sent an attorney, Jeffrey Steinborn, to Lima to investigate the case and take depositions. Steinborn intended to depose all the military personnel in Peru who had participated in the capture or interrogation of Schmidt. In addition he intended to depose several Peruvian lawyers and a reverend who knew of conditions in Peruvian jails.

Upon arrival in Lima, Steinborn was intimidated by what he called the "state of marshal law" existing in Peru. 4 He distrusted not only the Peruvian officials, but also the United States officials stationed in Peru, contending that the officials of both countries were seeking to frustrate his investigation. Ultimately Steinborn returned to Seattle having been unable to obtain any depositions.

Schmidt moved to dismiss the indictment because the U.S. government allegedly interfered with the defense investigation in Peru. He also moved to suppress all statements, both oral and written, made to either Peruvian or American authorities in Peru. After a pretrial hearing the trial court found the United States representatives had not interfered with the investigation. The oral and written statements made to the Peruvian naval authorities and the PIP were suppressed as involuntary, but Schmidt's statements to the American DEA agents were found voluntary and admitted.

At trial Schmidt denied making any incriminating admissions to the DEA in Peru. However, the trial judge made a factual finding that the admissions were made and reaffirmed his determination that they were voluntary. The physical evidence produced by the investigation of the Peruvian officials was admitted over the objection that it was tainted fruit of the illegal confession. Schmidt was convicted by the court sitting without a jury.


A. Could the trial court reasonably conclude that Schmidt's statements to the American DEA agents in Peru were voluntary?

B. Was the physical evidence of the crime inadmissible as the product of the coerced confession obtained by the Peruvians?

C. Was the trial court's finding that the United States government in Peru did not interfere with the defense investigation clearly erroneous?


A. Admissibility...

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