U.S. v. Warren

• Decision Date: 24 August 1978
• Docket Number: No. 75-4368,75-4368
• Citation: 578 F.2d 1058
• Parties: 4 Fed. R. Evid. Serv. 289 UNITED STATES of America, Plaintiff-Appellee, v. Thomas A. WARREN, John L. Warren, Jr., Des. E. SCHICK and David DeFina, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1058

578 F.2d 1058

4 Fed. R. Evid. Serv. 289

UNITED STATES of America, Plaintiff-Appellee, v. Thomas A. WARREN, John L. Warren, Jr., Des. E. SCHICK and David DeFina, Defendants-Appellants.

No. 75-4368.

United States Court of Appeals Fifth Circuit.

Aug. 24, 1978.

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

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

Alan M. Medof, Miami, Fla. (Court-Appointed), for Des. E. Schick.

Stewart E. Parsons, Chattahoochee, Fla. (Court-Appointed), for Thomas Warren.

Jack V. Eskenazi, U. S. Atty., Jamie L. Whitten, Asst. U. S. Atty., Miami, Fla., Shirley Baccus-Lobel, Washington, D. C., for plaintiff-appellee.

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

Before BROWN, Chief Judge, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, SIMPSON, MORGAN, CLARK, RONEY, GEE, TJOFLAT, HILL, and FAY, Circuit Judges. ^*

TJOFLAT, Circuit Judge:

This case comes before the court en banc to review the substantial issue of the power of the Coast Guard to board and search American vessels on the high seas beyond the twelve-mile limit. A panel of this court held the boarding of an American shrimping vessel, the interrogation of its crew, and the search of the vessel unconstitutional. United States v. Warren, 550 F.2d 219 (5th Cir. 1977). We reverse.

A jury convicted the four defendants of conspiring to import marijuana into the United States, in violation of 21 U.S.C. § 963 (1976), and of transporting from the United States an amount of money in excess of $5,000 without filing the report required by 31 U.S.C. § 1101 (1970), in violation of 31 U.S.C. § 1058 (1970). Each defendant was sentenced to eighteen months imprisonment for the conspiracy to import marijuana and to six months for the monetary violation. The sentences of each defendant were to run concurrently.

The panel reversed the convictions of John Warren, Thomas Warren, and David DeFina. It affirmed the conviction of Des Schick. En banc review was granted, but only as to Thomas and John Warren. We reverse the panel's decision as to the Warrens. The panel's affirmance of Schick's conviction and its reversal of DeFina's conviction are left undisturbed.

I. Facts

The substance of this case is a conspiracy to import from Colombia into the United States approximately ten tons of marijuana. The Government's chief witness was John Cruse, an unindicted coconspirator. He testified that Schick, a close friend, approached him in the early summer of 1974 and asked him to captain the shrimping vessel Stormy Seas to make the run. Cruse agreed, and subsequently he met with Thomas Warren at least twice (with Schick attending) to discuss the details of the venture.

A few weeks before the departure of the Stormy Seas for Colombia, Cruse and Schick drove to John Warren's residence in Miami and picked up a small boat belonging to John Warren. It was to have been used to unload the marijuana from the Stormy Seas upon return to the United States. A few days before departure, Cruse and Schick went to the Tallahassee apartment shared by Thomas Warren and DeFina, where they received from DeFina (Thomas Warren was not present) a trash compactor that was to have been used to compress the marijuana. The compactor and 300 plastic bags were placed on the Stormy Seas. On the eve of departure, DeFina provided a small boat that was also placed on board and was to have been used to load the marijuana in Colombia.

These preparations having been made, Cruse and Thomas Warren left Apalachicola, Florida, in the Stormy Seas on August 15, 1974. They sailed to Key West where they took on fuel and picked up John Warren, who was to serve as navigator. The following day they put to sea for Colombia.

In the early evening of August 19, the Coast Guard Cutter Steadfast sighted the Stormy Seas as she sailed southward between Haiti and Cuba in the Windward Passage. The Steadfast hailed the Stormy Seas and told her to prepare for boarding. At a point approximately 700 miles from the United States, the Stormy Seas received a party including three Coast Guard officers: Lt. Miller, who was in charge of the boarding party, Ensign Ryan, and First Class Quartermaster Tuck. Accompanying these officers were Special Agent Battell of the Drug Enforcement Agency and Agent Wallace of the Customs Service.

Lt. Miller introduced himself and the other members of the boarding party and asked to see the master of the vessel. John Cruse identified himself as the captain, and Lt. Miller asked for the ship's enrollment papers. Cruse produced the papers, and Lt. Miller noted that they did not indicate that the Stormy Seas was bound for a foreign port. Following customary Coast Guard procedure, Agent Battell inquired whether any firearms were aboard, and Thomas Warren stated that there were. He led Ensign Ryan and Agents Wallace and Battell to the crew's quarters where a .22 calibre and two .38 calibre pistols were produced. When the guns were brought forth, Agent Battell asked Thomas Warren why the guns were on board, and in his reply he stated that the purpose of the cruise was to speculate in land in South America. Record, vol. 2, at 80. According to the testimony of Agent Battell, during this conversation Thomas Warren evinced some confusion. Warren asked, "What's this all about?" and remarked, "We are all in this together." Id. at 214.

Agent Wallace and Ensign Ryan testified that they and Agent Battell made a "cursory search" of the Stormy Seas immediately after the guns were produced and transferred for identification to the Steadfast. Id. at 61-62, 229 (Wallace); Id. at 44 (Ryan). ¹ During this search a small amount of marijuana was discovered in Cruse's cabin. According to Agent Wallace, this discovery "aroused my suspicion somewhat," prompting him to make a more thorough, though unproductive, search of Cruse's cabin. Id. at 61-62. ²

Agent Wallace testified that after he had conducted this search, he questioned Cruse as to the nature of the trip. Cruse answered that the Warrens had chartered the Stormy Seas for fishing and diving. Id. at 62. John Warren also stated that the purpose of the cruise was fishing. Id. at 81. Agent Wallace had noted, however, the absence of any ice in the hold that could have been used to preserve the catch. Id. at 62. While examining the ice hold, he did see scuba gear, which, according to Lt. Miller, "was in pretty bad shape." Id. at 19.

These circumstances, along with the conflicting stories of the Warrens and Cruse as to the nature of their trip, led Agent Wallace to suspect "the purpose of this trip was going to be to bring back narcotics." Id. at 77. He reasoned that money for purchasing the narcotics might be on board. Id. Therefore, he asked Cruse and the Warrens, who were gathered on the fantail, whether they had any money on board. Thomas Warren answered that he had a "couple of thousand dollars." Agent Wallace asked what he meant by that answer, and Thomas Warren replied, "maybe $5,000." Agent Wallace asked whether he had more than that; the reply was, "maybe $7,000." Agent Wallace then asked whether the money had been declared. Thomas Warren answered "no." Id. at 39-40, 48-49, 63-64, 81, 207, 232.

Agent Wallace asked to see the money, and Thomas Warren led him, Agent Battell, and Ensign Ryan to the crew's quarters. Warren lifted up the corner of a mattress and removed several envelopes, which he handed to Agent Wallace. While the mattress was raised, additional envelopes were exposed. Agent Wallace examined the envelopes handed him and realized that they contained more than $7,000. He advised Thomas Warren that there was a possible currency violation, and at this point Agent Battell read Warren the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Additional envelopes and cash were removed from under the mattress. Later, envelopes containing cash were discovered in a briefcase. The total recovered was $41,500 and 46,800 Colombian pesos. Thomas Warren was led back to the fantail, where John Warren and Cruse were given their Miranda warnings and arrested.

Agent Wallace testified that after these events, he and Cruse, who had volunteered to assist, went to the hold to conduct a search. While in the hold, Agent Wallace advised Cruse that he was "very possibly in some serious trouble with exporting money," and asked, "Are you going for a coke run?" Cruse responded that they were not going for cocaine, but for "pot." Record, vol. 2, at 237. ³

The defendants were transferred to the Steadfast. Subsequently, an extensive inventory search was conducted by the Coast Guard, during which the trash compactor and plastic bags were discovered behind paneling in the aft hold. Additional evidence was found, including a letter to Thomas Warren from the Colombian consulate giving instructions for complying with Colombian customs, a legal pad of Thomas Warren listing equipment to be used to load and package the marijuana and referring to Colombian contacts, and Thomas Warren's passport showing that he had visited Colombia just two weeks before the Stormy Seas set sail.

II. The Panel Opinion

The panel hearing the appeal in this case ruled that the warrantless search of the Stormy Seas violated the fourth amendment. This ruling was founded on two theories. First, the panel held that Agents Battell and Wallace were not authorized to assist the Coast Guard either in the questioning of those on board the Stormy Seas or in the search that ensued. The panel reasoned that any evidence adduced by the two agents was therefore unconstitutionally obtained. Second, the panel ruled that even the Coast Guard officers had no authority to extend their inquiry beyond that called for by a customary safety and documentation check. With all deference to the panel, we think that the Coast Guard had authority to stop and board the Stormy Seas and to...