United States v. Blair

• Citation: 493 F. Supp. 398
• Decision Date: 19 June 1980
• Docket Number: Crim. No. H-79-0235,H-79-0283.
• Parties: UNITED STATES of America v. Robert D. BLAIR, Charles L. Moore, Jr., William G. Dodds, Jr.
• Court: U.S. District Court — District of Maryland

493 F. Supp. 398

UNITED STATES of America v. Robert D. BLAIR, Charles L. Moore, Jr., William G. Dodds, Jr.

Crim. Nos. H-79-0235, H-79-0283.

United States District Court, D. Maryland.

June 19, 1980.

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Russell T. Baker, Jr., U. S. Atty., and Paul R. Kramer, Deputy U. S. Atty., Baltimore, Md., for the Government.

John K. Zwerling and Jonathan Shapiro, Alexandria, Va., for defendant Blair.

Robert G. Fierer, Atlanta, Ga., for defendant Moore.

J. Flowers Mark and William B. Moffitt, Alexandria, Va., for defendant Dodds.

Myron L. Wolfson, Baltimore, Md., for all defendants.

ALEXANDER HARVEY, II, District Judge:

This case represents another in a series of recent prosecutions brought by the federal government against individuals charged with smuggling marijuana into States of the Fourth Circuit by means of vessels operating in coastal waterways. See "High on the Seas: Drug Smuggling, The Fourth Amendment, and Warrantless Searches at Sea", 93 H.L.R. 725-751 (1980). Four of the five States in this Circuit are located along the Atlantic Seaboard and contain bays, rivers and other waterways which provide access to the ocean for the introduction of water-borne contraband into this country. Recent federal enforcement efforts have resulted in the seizures of a number of vessels in these waterways, and these seizures, in turn, have presented various Fourth Amendment questions to the District Courts and to the United States Court of Appeals for the Fourth Circuit.

United States v. Coats, 611 F.2d 37 (4th Cir. 1979), involved a fishing vessel seized by the Coast Guard in the Caribbean and later used to make a controlled delivery of marijuana in North Carolina. United States v. Harper, 617 F.2d 35 (4th Cir. 1980), dealt with other aspects of that prosecution. United States v. Laughman, 618 F.2d 1067 (4th Cir. 1980), involved a sailing vessel boarded by Custom officials in the intracoastal waterway near Charleston, South Carolina. In United States v. Diaz-Segovia, 457 F.Supp. 260 (D.Md.1978), charges of marijuana trafficking were brought following surveillance of high speed (or "cigarette") boats which left Ocean City, headed out into the ocean and returned. See 457 F.Supp. at 273-275.

The pending case arose as a result of the seizure in Maryland waters of the Potomac River of a sailing vessel loaded with 6½ tons of marijuana. The three defendants were on board at the time, and they have been charged with various violations of federal law in two separate indictments returned by separate grand juries in this District.

Besides filing a motion to suppress the evidence seized on the sailing vessel on Fourth Amendment grounds, defendants have also filed a motion to dismiss the indictments on the ground that the Jury Selection Plan for the District of Maryland is invalid. These are the only remaining motions still before the Court.¹ Extensive briefs and supporting papers have been filed by the parties, and lengthy oral argument has been heard in open court. In addition, this Court has considered the Findings and Conclusions of Magistrate Frederic N. Smalkin, to whom this Court initially referred defendants' motion to suppress for the purpose of conducting an evidentiary hearing, pursuant to 28 U.S.C. § 636 and Local Rule 80. Both the government and the defendants have "appealed" from the Magistrate's Findings and Conclusions pursuant to former Local Rule 81(a).

I The Indictments

On April 29, 1979, agents of the United States Customs Service and State and County law enforcement officers stopped, without a warrant, and boarded a 51-foot sailing vessel, the CENTAURUS, in the waters of the Potomac River about twenty miles south of Washington, D. C., within the jurisdiction of Charles County, Maryland. Finding the defendants on board as well as what they believed to be large quantities of marijuana, the agents and officers arrested the defendants and seized the vessel. The next day, the CENTAURUS was searched without a warrant, and the agents discovered that it had been transporting 6½ tons of marijuana. They also took into their possession other incriminating evidence.

On May 30, 1979, the Grand Jury for the District of Maryland returned a two-Count indictment in Criminal No. H-79-0235. The first Count charged that all three defendants had traveled in interstate commerce with the intent to further unlawful activity, in violation of 18 U.S.C. § 1952. The alleged unlawful activity was the possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The second Count charged defendants with unlawfully possessing with intent to distribute approximately 6½ tons of marijuana, in violation of 21 U.S.C. § 841(a)(1). In both Counts, all three defendants were charged both as principals and as aiders and abettors, under 18 U.S.C. § 2.

The term of the Grand Jury which returned that indictment expired in early June of 1979. Another Grand Jury was duly organized during that month to continue the investigation. On June 20, 1979, that second Grand Jury returned another indictment, in three Counts, which was docketed as Criminal No. H-79-0283 and which named as defendants the same three individuals indicted in Criminal No. H-79-0235. The first Count of the second indictment charged the defendants with a conspiracy to import marijuana, in violation of 21 U.S.C. § 963. The second Count charged defendants with a conspiracy to possess marijuana with intent to distribute, in violation of 21 U.S.C. § 846. The third Count charged the defendants, both as principals and as aiders and abettors, with unlawfully importing marijuana, in violation of 21 U.S.C. § 952. With the consent of the parties, these two criminal actions were consolidated for all purposes by Order of Court entered on September 21, 1979. Thus, in this consolidated case, each of the three defendants has been charged with five separate marijuana offenses.

II Procedural Background

Defendants originally filed a motion challenging the Jury Selection Plan of this District on June 6, 1979. At that time, the necessary investigation of the procedures employed in this District for selecting grand and petit juries had not been undertaken by defendants. With the consent of counsel for the government, this Court entered an Order on August 1, 1979, permitting designated persons of the National Jury Project to inspect and copy records maintained by the Clerk which were pertinent to the selection of grand and petit juries in this District. Defendants designated Roger Friedman, a member of the National Jury Project, to conduct this investigation.

Mr. Friedman and his associates proceeded to conduct an extensive study of this District's Jury Selection Plan. They reviewed all the jury records maintained by the Clerk's office, as well as the computer programs operated by the General Services Administration and used in this District in connection with jury selection. After the completion of this extensive investigation, defendants filed, on November 9, 1979, an updated motion to dismiss the indictments because of the alleged improper selection of grand and petit jurors in this District. In support of this motion, defendants attached the affidavit of Roger Friedman, setting forth the results of his study and the conclusions which he had drawn from those results. Thereafter, statistical experts employed by the government also investigated jury selection procedures in this Court. In support of its opposition to the jury motion, the government has filed affidavits of Bert F. Green, Jr. and Gary D. Gottfredson, its statistical experts.²

Defendants filed their motion to suppress evidence on August 9, 1979. When it became apparent that a lengthy evidentiary hearing would be required at or about the same time that this Court was engaged in a long trial, the Court, with the consent of the parties, referred the motion to suppress to Magistrate Frederic N. Smalkin for the purpose of conducting an evidentiary hearing. An extensive evidentiary hearing, lasting from November 19 to November 21, 1979, was thereafter held before the Magistrate.³

Magistrate Smalkin filed his Findings and Conclusions on February 21, 1980. He recommended that the motion to suppress be denied as to the marijuana seized from the CENTAURUS and that it be granted as to certain photographs which had been made from an undeveloped roll of film found on board the vessel. A motion for reconsideration was denied by Magistrate Smalkin on March 12, 1980. Both the government and the defendants have appealed from the Magistrate's Findings and Conclusions, pursuant to Local Rule 81.

III The Jury Selection Plan Challenge

The selection of juries in federal courts is governed by the provisions of the Jury Selection and Service Act of 1968, Pub.L.No. 90-274, which has been codified as 28 U.S.C. § 1861 et seq. (hereinafter "the Act"). The basic and underlying policy behind the Act was that all litigants in federal courts should have the right to grand and petit juries selected at random from a fair cross-section of the community in the District wherein the Court convened. 28 U.S.C. § 1861. The Act attempts to achieve this purpose by insuring that the source list for prospective jurors would reflect an adequate cross-section of the community and that no procedure would be employed which would impermissibly diminish the likelihood that a fair cross-section of the community would be attained. H.R.Rep.No.1076, 90th Cong., 2nd Sess., reprinted in 1968 U.S. Code Cong. & Admin.News, pp. 1792, 1794. The Act further specifically provides that "no citizen shall be excluded from service as a grand or petit juror in the district courts of the United States on account of race, color, religion, sex, national origin, or economic status." 28 U.S.C. § 1862.

Pursuant to provisions of the Act, this District has adopted a formal Plan for the random selection of grand and petit jurors.⁴...