U.S. v. Seni, s. 81-5006

• Decision Date: 26 October 1981
• Docket Number: Nos. 81-5006,s. 81-5006
• Citation: 662 F.2d 277
• Parties: UNITED STATES of America, Appellee, v. Victor Jacob SENI, Appellant. UNITED STATES of America, Appellee, v. Bobby Lee MINTON, Appellant. UNITED STATES of America, Appellee, v. Samuel Ellis FERGUSON, Appellant. UNITED STATES of America, Appellee, v. Hector MORALES, Appellant. UNITED STATES of America, Appellee, v. Carlos FIUSA, Appellant. UNITED STATES of America, Appellee, v. Pablo Raul ALONSO, Appellant. to 81-5011.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 277

662 F.2d 277

UNITED STATES of America, Appellee, v. Victor Jacob SENI, Appellant.

UNITED STATES of America, Appellee, v. Bobby Lee MINTON, Appellant.

UNITED STATES of America, Appellee, v. Samuel Ellis FERGUSON, Appellant.

UNITED STATES of America, Appellee, v. Hector MORALES, Appellant.

UNITED STATES of America, Appellee, v. Carlos FIUSA, Appellant.

UNITED STATES of America, Appellee, v. Pablo Raul ALONSO, Appellant.

Nos. 81-5006 to 81-5011.

United States Court of Appeals, Fourth Circuit.

Argued June 5, 1981.

Decided Oct. 26, 1981.

Irvin B. Tucker, Jr., Raleigh, N.C., Paul Morris, Miami, Fla. (William A. Clay, Miami, Fla., Oscar Rodriguez, Coral Gables, Fla., on brief), for appellants.

Patricia L. Holland, Asst. U. S. Atty., Raleigh, N.C. (James L. Blackburn, U. S. Atty., Raleigh, N.C., Richard Tatum Gammon, Third Year Law Student on brief), for appellee.

Before PHILLIPS and MURNAGHAN, Circuit Judges, and Williams ^*, District Judge.

MURNAGHAN, Circuit Judge:

In the early morning of July 9, 1979, law enforcement officers converged on the Queen Elizabeth, a shrimping trawler docked at the Oak Island Marina in Brunswick County, North Carolina. On board the officers found 15 tons of marijuana, apparently in the process of being unloaded. Finding no one in the immediate vicinity, the officers set up a roadblock on Highway 133 about 5 miles from the marina. Defendant Ferguson was arrested at about 1:40 a. m. as he approached the roadblock in a large van. Defendant Minton was arrested about half an hour later as he approached the roadblock in another van.

Officers at the marina began a thorough search of the area. At about 6:30 a. m., they found defendants Seni and Morales hiding in clumps of bushes. Under questioning, Seni told the officers that he and others involved had been staying at a motel in Wilmington, North Carolina. The motel was placed under surveillance. Defendants Alonso and Fiuza were arrested as they returned to the motel that evening.

Those six defendants, and a seventh defendant, Henderson, were charged with conspiracy to import marijuana and conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. §§ 952(a), 960(a)(1), 963, 841(a)(1) and 18 U.S.C. § 2 (count I); unlawful importation of marijuana in violation of 21 U.S.C. §§ 952(a), 960(a)(1) and 18 U.S.C. § 2 (count II); and possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The six defendants were convicted on all counts. A mistrial was declared with regard to Henderson.

As anyone compelled by the nature of his work frequently to review drug convictions knows, a plethora of ingenious defenses followed the indictments. To clear the decks for consideration of several serious contentions involving rather close questions, we first dispose of the easier ones.

I.

Adequacy of Jury Instructions. a. Instruction on Importation. Assuming that importation of the marijuana has been proven (a disputed issue which we later address), nevertheless the defendants argue that the district court incorrectly instructed the jury concerning importation. They argue that the court's instruction incorrectly gave the impression that the jury could convict the defendants of importation if the jury found no more than that the marijuana had, at some previous time, been imported, rather than making clear that a finding was necessary that the defendants themselves imported it.

The argument is without merit. Unquestionably the prosecution must prove that the defendants imported the marijuana; proof simply that the marijuana was imported is insufficient. See, e. g., United States v. Moler, 460 F.2d 1273 (9th Cir. 1972). Considered as a whole, however, the court's instruction plainly requires the jury to find that the defendants imported the marijuana. The court instructed the jury that the prosecution must prove three elements to establish importation: (1) the marijuana was in fact imported, (2) the importation was done knowingly and willfully, and (3) the defendant willfully associated himself with the venture. The defendants' argument makes sense only if the first element is read separately from the second and third. But the third element clearly refers to the first each defendant must have willfully associated himself with a venture to import marijuana.

b. Instructions on the Objects of the Conspiracy. The trial court instructed the jury that it could convict a defendant of conspiracy if it found that the defendant had conspired with any other person "to commit an offense against the United States in violation of the general laws relating to marijuana." The defendants argue that the general nature of the instruction on conspiracy required the court to give adequate instructions on the objects of the conspiracy, importation and possession with intent to distribute. They argue that the court did not give adequate instructions on the objects of the conspiracy, thereby requiring a new trial under U. S. v. Head, 641 F.2d 174 (4th Cir. 1981).

The argument fails for two reasons. First, a review of the record shows that the court specifically instructed the jury on the objects of the conspiracy at several points in the instructions. Second, the defendants' reliance on Head is misplaced. The trial court in Head instructed the jury that to convict the defendant of conspiracy, the jury did not have to find that the defendant conspired to violate all three substantive counts, but did have to find that the defendant conspired to violate at least one of the substantive counts. The appellate court recognized that the acts alleged in two of the substantive counts occurred largely at a time outside the statute of limitations period. The court ordered a new trial because it could not determine from the general verdict or the general nature of the conspiracy instructions the counts on which the defendant had been convicted. No problem even remotely similar to Head exists here. The court's instructions on conspiracy, importation, and possession with intent to distribute were proper.

II.

Admissibility of Seni's Statements to Police Officers. Seni was discovered when one of the officers saw his leg protruding from a clump of bushes at the marina. The officer drew his gun, identified himself as a police officer, and ordered Seni to come out with his hands on his head. Seni was arrested, handcuffed, and read his rights. Seni said that he understood his rights. He then told the officer that he "did it" because the money was good and fast. Seni was placed in the back of a police car, advised of his rights again, and interrogated. Seni told the officers that he and several other people had been unloading the marijuana when the police arrived, and that they ran and hid. Seni also said that he had become involved in the operation in Miami, and that someone he did not know had paid for room 259 and an adjacent room at the Rodeway Inn in Wilmington, where he and others involved had been staying. ¹

a. Voluntariness of the Statements. Seni argues that his statement that he "did it" should have been suppressed at trial because it was involuntary, and that his subsequent statements should have been suppressed as fruit of the first statement. Seni argues that his first statement was involuntary because the officer had handcuffed him and was pointing a gun at him at close range when he made the statement.

Seni's argument is without merit. Neither a drawn gun, see United States v. Wertz, 625 F.2d 1128, 1137 (4th Cir. 1980), cert. denied, 449 U.S. 904, 101 S.Ct. 278, 66 L.Ed.2d 136 (1981), nor handcuffs, see United States v. Ogden, 572 F.2d 501, 503 (5th Cir. 1978), cert. denied, 439 U.S. 979, 99 S.Ct. 564, 58 L.Ed.2d 650 (1978), establish involuntariness in and of themselves. An incriminating statement is involuntary only if induced by such duress or coercion that the suspect's "will has been overborne and his capacity for self-determination critically impaired," United States v. Wertz, 625 F.2d at 1133, quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S.Ct. 2041, 2046, 36 L.Ed.2d 854 (1973). Involuntariness is a question of fact to be determined from "the totality of all the surrounding circumstances both the characteristics of the accused and the details of the interrogation." United States v. Wertz, 625 F.2d at 1133-34, quoting Schneckloth v. Bustamonte, 412 U.S. at 226, 93 S.Ct. at 2047.

The totality of the circumstances supports the trial court's conclusion that the statement was voluntary. Seni had been read his rights moments before, and said that he understood them. ² Seni did not make the statement in response to a question, but simply offered it. He does not allege that a lack of education, maturity, or intelligence deprived him of the ability to choose to remain silent.

b. Admissibility against Other Defendants. The other defendants argue that Seni's statements implicating others in a conspiracy were admitted in violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Bruton held that admission of a nontestifying defendant's confession which incriminates codefendants violates the codefendants' right to cross-examination. Subsequent to Bruton, however, numerous courts have held that a defendant's confession may be admitted at a joint trial if references to the identity of codefendants are redacted. See United States v. Belle, 593 F.2d 487, 493 (3d Cir. 1979), cert. denied, 442 U.S. 911, 99 S.Ct. 2825, 61 L.Ed.2d 277 (1979) and cases cited therein. The trial court here carefully redacted all references that would identify the other participants in the conspiracy, and cautioned the jury that it was to consider the statements only against Seni. No violation of the Bruton rule occurred.

III.

Stop, Frisk and Arrest of Alonso and Fiuza. After Seni revealed that he and others involved had been staying in room 259 and an adjacent room of the Rodeway Inn...