U.S. v. Warren

• Decision Date: 07 April 1977
• Docket Number: No. 75-4368,75-4368
• Citation: 550 F.2d 219
• Parties: , 1 Fed. R. Evid. Serv. 908 UNITED STATES of America, Plaintiff-Appellee, v. John L. WARREN, Jr., David DeFina, Des E. Shick and Thomas A. Warren, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 219

550 F.2d 219

40 A.L.R.Fed. 387, 1 Fed. R. Evid. Serv. 908

UNITED STATES of America, Plaintiff-Appellee, v. John L. WARREN, Jr., David DeFina, Des E. Shick and Thomas

A. Warren, Defendants-Appellants.

No. 75-4368.

United States Court of Appeals, Fifth Circuit.

April 7, 1977.

Daniel S. Pearson (Court-Appointed), Miami, Fla., for J. Warren.

Sky E. Smith (Court-Appointed), Miami, Fla., for DeFina.

Alan M. Medof (Court-Appointed), Miami Fla., for Shick.

Stewart E. Parsons, Tallahassee, Fla. (Court-Appointed), for T. Warren.

Robert W. Rust, U. S. Atty., James L. Whitten, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before GOLDBERG, SIMPSON and FAY, Circuit Judges.

FAY, Circuit Judge:

The defendants-appellants, John Warren, Thomas Warren, David DeFina and Des E. Shick were convicted in a joint trial by jury of conspiring to import marijuana into the United States (in violation of 21 U.S.C. § 963 (1970), and transporting from the United States money in excess of $5000.00 without filing a report (in violation of 31 U.S.C. § 1058, 1101 (1970)). The appellants assert multiple errors on appeal. Finding merit in some of the assignments of error asserted by defendants Thomas Warren, John Warren and David DeFina, we reverse as to these defendants and remand for further proceedings consistent with this opinion. As to defendant Des E. Shick, we affirm.

FACTS

The facts, considered in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), indicate that in the summer of 1974 the defendant Shick approached John Cruse (an unindicted co-conspirator) and requested Cruse to captain the shrimp vessel Stormy Seas from Appalachacola, Florida to Santa Marta, Colombia, in order to bring back approximately ten tons of marijuana. Thereafter, Cruse met on at least two occasions with defendant Thomas Warren (an attorney) to discuss the details of the mission. The defendant Shick was also in attendance.

Prior to departing for Colombia in the Stormy Seas, Cruse and Shick went to the Tallahassee, Florida apartment of defendants DeFina and Thomas Warren. DeFina turned over to them a trash compactor to be placed on board the Stormy Seas.

Defendants Shick and John Warren then drove to the home of John Warren in South Miami, Florida and picked up a smaller boat to be used in the off-loading of the marijuana when it was returned from Colombia. An additional small boat was borrowed by defendant DeFina from his brother-in-law and placed on board the Stormy Seas. In order to gain permission to use this small boat, defendant DeFina contrived a story to the effect that he needed to use the boat because he was going on a lobster diving trip in Key West, Florida.

The Stormy Seas departed Appalachacola on August 15, 1974 with defendant Thomas In the early evening of August 19, 1974, the Stormy Seas was sighted by the United States Coast Guard Cutter Steadfast in the windward passage between Haiti and Cuba, some 700 miles from the United States. Aboard the Steadfast, in addition to Coast Guard personnel, were Special Agent Thomas Battell of the Drug Enforcement Administration and Customs Patrol Officer William Wallace. Battell had been assigned to the Steadfast to aid in the enforcement of the Federal narcotics laws. Wallace was assigned to look for any violations that Customs would handle.

Warren and Cruse aboard. After a stop in Key West to pick up defendant John Warren, the vessel proceeded toward Colombia. Defendants Shick and DeFina were not on board the vessel.

A decision to board the Stormy Seas was made on board the Steadfast. The leader of the boarding party was informed that the purpose of the boarding was to be a "Coast Guard safety inspection." The boarding party consisted of three Coast Guardsmen and Battell and Wallace. All five men were armed with .45 caliber weapons.

Upon boarding the Stormy Seas, the three Coast Guardsmen asked for and received all weapons on board the ship, and then proceeded with their safety inspection. Battell and Wallace made their own search of the ship. The safety inspection of the ship revealed nothing of significance other than a very small amount of marijuana in the nightstand of Captain Cruse. The inspection by Wallace and Battell uncovered no contraband. The Warrens and Cruse were then removed to the fantail of the ship. Agent Wallace then began questioning the defendants. Wallace's reason for this interrogation was that he had gotten conflicting stories from the occupants of the Stormy Seas about the purpose of the trip, and he suspected its purpose was really to bring back narcotics and that money might be aboard. Wallace then questioned each defendant about how much money he had on board. Defendant Thomas Warren admitted, after several questions, to have $7,000.00. He also admitted, in response to a question, that he had not filled out the proper forms for taking the money out of the country. Agent Wallace then asked the defendant Thomas Warren if he could see the money. The defendant then led Wallace, Battell and a Coast Guardsman back to the crew's quarters. In the crew's quarters, the defendant lifted up a corner of a mattress and pulled out two or three envelopes and handed them to Wallace. Wallace examined them and saw that there was considerably more than $7,000.00 in these envelopes. At this point, Agent Battell read Thomas Warren his rights. Agent Wallace then asked if there was any more money. Defendant Thomas Warren denied having any more. Agents Wallace and Battell then asked Thomas Warren to remove the remaining envelopes from beneath the mattress and he did so. Agent Wallace again asked if this was all the money and the defendant Thomas Warren stated that it was. At that time Agent Battell lifted up the head of the mattress revealing still more envelopes. A total of $41,500 in United States currency and 46,800 Colombian pesos were revealed.

Thereafter, Cruse admitted to Agent Wallace that he and the two Warrens were going to Colombia to pick up marijuana. Cruse and the Warrens were then arrested. The vessel was seized and a custody party placed on board. No further search revealed any contraband, but a number of documents and tangible items supportive of the conspiracy charge were uncovered. Among these documents was a letter written on the stationery of the Colombian consul and addressed to "Tommy" describing pre-arrangements for entering Colombian waters; a yellow legal pad belonging to Thomas Warren containing a detailed check list of local and Colombian contacts and equipment to be used in picking up and packaging the marijuana; and Thomas Warren's passport showing a one-week visit to Colombia only two weeks prior to departing in the Stormy Seas.

Due to the number of defendants and the varied assignments of error which are

raised, it is necessary to discuss the merits of each defendant's appeal separately.

THOMAS WARREN

The first error raised by Thomas Warren is that the warrantless search of the vessel Stormy Seas was conducted in violation of the Fourth Amendment and thus the trial court erred in denying his motion to suppress all evidence that was a product of that search. The government argues that the Coast Guard has statutory authority to stop an American registered vessel on the high seas for a safety and documentary inspection. 14 U.S.C. § 89(a). ¹ This statute, and the validity of searches made pursuant to it, has been the subject of extended litigation over the past several years. See e. g., United States v. Hillstrom, 533 F.2d 209 (5th Cir. 1976), cert. denied,--- U.S. ----, 97 S.Ct. 734, 50 L.Ed.2d 749 (1977); United States v. Odom,526 F.2d 339 (5th Cir. 1976); United States v. One 43 Foot Sailing Vessel,538 F.2d 694 (5th Cir. 1976); and United States v. Winter, 509 F.2d 975 (5th Cir. 1975). ² The statute as applied to safety inspections conducted by the Coast Guard has been held constitutional by this court. United States v. One 43 Foot Sailing Vessel, 538 F.2d 694 (5th Cir. 1976). Since the initial intrusion by the Coast Guard in the case sub judice was made under the guise of a safety inspection, it is not necessary now to determine whether a search by the Coast Guard for other reasons would be constitutional. This Court needs only warn that no Act of Congress can authorize a violation of the Constitution. Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). An American vessel, by venturing on the high seas, does not lose the protection of the Constitution from intrusions by its own government. Consequently, § 89(a), with its broad granting of power, is subject to serious constitutional attack if implemented without caution and restraint. This is not to say, however, that the Coast Guard must refrain from stopping an American vessel on the high seas when it has probable cause to believe a crime has been or is being committed. Prior cases have indicated that such actions are constitutionally permitted. See e. g., United States v. Lee,274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927); Maul v. United States,274 U.S. 501, 47 S.Ct. 735, 71 L.Ed. 1171 (1927). ³ Nor is this to say that if the Coast Guard, while in the process of conducting a valid safety inspection, discovers evidence providing probable cause to believe a crime has been or is being committed, that it cannot extend the search into areas not normally covered by a safety check. See United States v. Hillstrom, 533 F.2d 209 (5th Cir. 1976), cert. denied, --- U.S. ----9, 97 S.Ct. 734, 50 L.Ed.2d 749 1977; United States v. Odom, 526 F.2d 339 Here, we are presented with a situation where the Coast Guard validly intercepted the vessel Stormy Seas, boarded the vessel, and proceeded with a permissible safety inspection of the vessel. No error would have been committed if this constituted the whole factual...