United States v. Caraway

• Decision Date: 04 April 1973
• Docket Number: No. 72-2198.,72-2198.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jo Anna Newby CARAWAY a/k/a Jo Newby and Daniel Elden Scales, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

474 F.2d 25 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Jo Anna Newby CARAWAY a/k/a Jo Newby and Daniel Elden Scales, Defendants-Appellants.

No. 72-2198.

United States Court of Appeals, Fifth Circuit.

January 15, 1973.

As Amended February 14, 1973.

Rehearing Granted April 4, 1973.

COPYRIGHT MATERIAL OMITTED

Melvyn Kessler, Miami, Fla. (Court-appointed), for Caraway.

Sky E. Smith, Miami, Fla. (Court-appointed), for Scales.

Robert W. Rust, U. S. Atty., Lawrance B. Craig, II, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Before RIVES, THORNBERRY and GOLDBERG, Circuit Judges.

Rehearing En Banc Granted April 4, 1973.

RIVES, Circuit Judge:

Defendants, Jo Anna Newby Caraway and Daniel Elden Scales, were charged in a two-count indictment with (1) conspiracy to violate 21 U.S.C. § 952(a),¹ and (2) intentionally and knowingly violating § 952(a) by importing six pounds of marijuana.

Initially, each defendant pleaded not guilty to both counts. After denial of their joint motion to suppress "all evidence seized," both defendants asked and were granted permission to withdraw the plea of not guilty as to Count II and to plead nolo contendere to that count. The district judge, upon accepting their pleas of no contest, admonished defendants in the following exchange:

"THE COURT: . . . . Have each of you had an opportunity to discuss with your lawyers the entry of a plea of nolo contendere as to Count II?

"THE DEFENDANTS: Yes, sir.

"THE COURT: Have your lawyers advised you that there has been an agreement between the Government and defense counsel that should you plead nolo contendere and be found guilty the Court would put Miss Caraway or Miss Newby on probation and would sentence Mr. Scales to six months?

"Have both of you understood that?

"THE DEFENDANTS: Yes, sir.

"THE COURT: Do each of you agree to that?

"THE DEFENDANTS: Yes, sir.

"THE COURT: Do you both understand that a plea of nolo contendere is tantamount, in effect, to a plea of guilty.

"THE DEFENDANTS: Yes, sir." Tr. pp. 68, 69.

"THE COURT: Has anyone, other than what I have said with respect to the agreement with the Government, exercised any force, interrogation or duress of any kind or made any promises to you, other than what I have said, in order to induce you to plead nolo contendere to this charge?

"THE DEFENDANTS: No, sir.

"MR. SMITH Attorney for Scales: The only other statements which were made to the defendants was concerning their right to appeal, and the Court advised them that Mr. Scales would be allowed the same condition of release pending appeal?

"THE COURT: Yes, sir." Emphasis added. Tr. pp. 69, 70.

On imposition of sentence, the Court further informed defendants that:

". . . . It is the further order of the Court that each of you shall continue to remain at liberty pending appeal upon bond under the same terms and conditions heretofore set.

". . . .

"Now, it is my duty to advise each of you that you have an absolute right to appeal from this judgment and sentence and that you are entitled to be represented by an attorney at all times. . . . " Emphasis added. Tr. p. 74.

Defendants, through this appeal, contest the validity of the warrantless search by Customs Agents of Scales' boat and allege trial court error in denying their motion to suppress the fruits of that search. Since their nolo contendere plea precluded the necessity of introducing evidence, defendants attack a search whose constitutional stature is not a jurisdictional issue.

Under normal circumstances, a plea of nolo contendere is the legal equivalent of a guilty plea and a waiver of all nonjurisdictional defects. Lott v. United States, 1961, 367 U.S. 421, 81 S.Ct. 1563, 6 L.Ed.2d 940; Zebelman v. United States, 10 Cir. 1964, 339 F.2d 484, 485; United States v. Moretti, 2 Cir. 1965, 353 F.2d 672, 673; 3 Wright, Federal Practice & Procedure § 678, p. 140 n. 28. However, when the trial court and defendant enter an explicit agreement that a no contest plea preserves objections to the evidence found admissible by denial of the motion to suppress, this Court has felt constrained to honor such an agreement. United States v. Rosenberg, 5 Cir. 1972, 458 F.2d 1183; United States v. Kelehar, 5 Cir. 1972, 470 F.2d 176. Cf., United States v. Wysocki, 1972, 457 F.2d 1155, 1162. See also Jaben v. United States, 8 Cir. 1964, 333 F.2d 535, 538, aff'd, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345.

In United States v. Doyle, 2 Cir. 1965, 348 F.2d 715, 719, cert. denied, 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84, Judge Friendly recognized that,

"There are a number of ways to deal sensibly with such a case without departing from the principle of Parrino, United States v. Parrino, 2 Cir. 1953, 203 F.2d 284, 286-287. A plea expressly reserving the point accepted by the court with the Government\'s consent4 or a stipulation that the facts are as charged in the indictment are two; failing either of these, the defendant can simply stand on his not guilty plea and put the Government to its proof without developing a case of his own."

(Emphasis added.) (Footnote omitted.) Continuing, Judge Friendly discussed Jaben and quoted from his examination of the record in Jaben "not brought to our attention by counsel for either side" that

"* * * this the record shows that Jaben pleaded nolo on the express condition `that the defendant will then have an opportunity to have the question as to whether the said count is barred by the statute of limitations decided upon by the Eighth Circuit Court of Appeals or by the Supreme Court, and that the plea of nolo contendere is not to preclude the defendant from taking an appeal on the issue at that time.\'"

348 F.2d at 719.

Our rationale for recognizing this type of express agreement is twofold. First, we are reluctant to establish a rigid rule requiring a defendant to undergo the costly and futile ordeal of a complete trial, when the State could easily prove its case by the evidence claimed to be illegally obtained and by no other evidence, and the defendant merely seeks to preserve a single, nonjurisdictional issue. See United States v. Warden of Attica State Prison, 2 Cir. 1967, 381 F.2d 209. Second, of the combined requisites, "voluntariness" and "intelligence" (see Brady v. United States, 1970, 397 U.S. 742, 747 n. 4, 90 S.Ct. 1463, 25 L.Ed.2d 747), for equivalence to a valid guilty plea, a nolo plea, conditioned on right to appellate review of a motion to suppress evidence, might now (since McMann v. Richardson, 1970, 397 U.S. 759, 768-771, 90 S.Ct. 1441, 25 L.Ed.2d 763) meet the test of being "voluntary," but the conditioning of the plea on a right to appellate review demonstrates that it was not so "intelligently" entered as to waive deprivation of the nonjurisdictional defect sought to be reviewed; and more especially so, where, at the time of pleading, the practice of the reviewing court is to honor such a condition allowed by the trial court.

In the instant case, the district court apparently induced defendants' nolo contendere plea by repeated assurances that defendants retained an absolute right to appeal. Any criminal conviction is subject to the right of appeal. For the district court in this case to twice guarantee that basic right would have been superfluous if the appeal had not been expected to test the legality of the search. The only district court ruling contested by defendants was denial of their motion to suppress. Hence, the only logical conclusion to be drawn from the district court's pointed references to defendants' right of appeal is that the appeal was clearly understood to encompass the question of illegally obtained evidence. In light of that understanding, this Court is compelled to consider the constitutional validity of the boat search, regardless of that issue's nonjurisdictional character.

The pivotal marijuana, which defendants are charged with importing, arrived at Miami International Airport, from Jamaica, concealed in a steamer trunk. The trunk was addressed to Jo Anna Caraway, 1555 Griffin Road, Miami, Florida (the Marina address). Customs officials, suspicious of the trunk's contents, placed it in the Customs Seizure Room where it lay unclaimed for three days.

On the third day, Mr. Cole, a resident of the Marina where Scales' houseboat was docked, arrived to claim the trunk. Customs officials opened the trunk at the airport in Cole's presence, discovered the marijuana, and immediately arrested Cole. Under interrogation, Cole professed his innocence, implicated the defendants in the importation plot and claimed to have seen defendants smoking marijuana on Scales' boat.

Customs agents, evidently convinced that Cole was blameless, enlisted his aid in conducting a "controlled delivery." The trunk was secured; Cole was instructed to return to the Marina as planned, and Customs officials secretly closed in on the rendezvous. At the Marina entrance, Scales stopped Cole and apprehensively asked him why he was delayed. Cole panicked and said, "There's marijuana in the trunk and we are all going to get busted." Tr., p. 26. Scales then turned to Miss Caraway, who was seated in a nearby car, and said, "Get out of here."

Both Scales and Miss Caraway were immediately arrested. The trunk never left Cole's truck. Yet, Customs officials proceeded to thoroughly search Scales' unoccupied houseboat moored some distance away. This critical search turned up no additional contraband, but did expose letters addressed to Miss Caraway which referred to the marijuana shipment. This fact does not appear in the record, but on oral argument counsel for Miss Caraway admitted that the letters contained references to the marijuana.

Not only was Scales' boat unoccupied, but also one of its engines was dismantled on the dock Tr., p. 49, suggesting that the boat might have been inoperative. Nevertheless, Customs officials proceeded to make a warrantless, exploratory search of the boat.

Customs Agent Larry Morphis, attempting...