United States v. Elkins, Crim. No. 84-133 HL.

• Decision Date: 29 June 1984
• Docket Number: Crim. No. 84-133 HL.
• Citation: 587 F. Supp. 964
• Parties: UNITED STATES of America, v. Ralph ELKINS, Eugene Tillman, Frank Fuentes, and Silvio Monrabal, Defendant.
• Court: U.S. District Court — District of Puerto Rico

587 F. Supp. 964

UNITED STATES of America, v. Ralph ELKINS, Eugene Tillman, Frank Fuentes, and Silvio Monrabal, Defendant.

Crim. No. 84-133 HL.

United States District Court, D. Puerto Rico.

June 29, 1984.

Wilfredo Figueroa Vélez, Hato Rey, Puerto Rico, for defendant.

Juan A. Pedrosa, Asst. U.S. Atty., Daniel Lopez Romo, U.S. Atty., Crim. Section, Old San Juan, P.R., for plaintiff.

ORDER

LAFFITTE, District Judge.

Defendants Elkins, Calhoun, Fuentes, U.S. citizens, and Monrabal, Cuban, were indicted, tried and convicted before this Court¹ for possession with intent to distribute 5,320 lbs. of marijuana, with a street market value of $3.2 million, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 955a(a) and (f). The three U.S. citizens were also tried and convicted of violating 21 U.S.C. 955a(b).²

Succinctly,³ the evidence presented at the three-day trial established that on February 27, 1984, the U.S. Coast Guard cutter ESCAPE spotted, observed, and approached the M/V BLUE LIGHT on the high seas, nine miles from Cape Santo Domingo, Bahamas. Defendant Elkins identified himself to the Coast Guard as Master of the vessel. The Coast Guard subsequently boarded the vessel. The officer in charge, Lt. John McCarthy, proceeded to check the vessel's documentation, which he found in order. Four other members of the boarding party made a security sweep. With information voluntarily supplied by defendant Elkins, they found a shotgun and a loaded pistol.

Lt. McCarthy testified at trial as to his observations of the equipment on the vessel, describing sophisticated electronic equipment, and two disproportionately large fuel tanks for the size of the BLUE LIGHT, of approximately 46 feet, which took up a sizeable area in the engine room. He also observed fresh paint, tools, cans, and grindings on board. He further observed man-size welded areas and patches on the fuel tanks. The color of the paint in the cans matched the color of the tanks. Lt. McCarthy was doing the survey of the vessel initially accompanied by codefendant Elkins. McCarthy testified that upon being questioned by him, defendant Elkins replied that he had been aboard the vessel for about four days, had left Bimini, Bahamas, upon instructions from the owner of the vessel to test it for future use. Defendant Elkins answered most of the questions asked by him relative to the vessel.

However, Lt. McCarthy testified that at one point during these conversations, Elkins, stated that he was not going to answer any more questions and that he, Elkins, "was taking the Fifth." At this point in time during the trial, counsel for defendant requested and obtained from the Court an instruction to the jury that no inference of guilt was to be inferred from Elkins' exercise of his Fifth Amendment constitutional rights.

After consulting with the Commanding Officer, Lt. McCarthy examined the contents of the tanks on board the M/V BLUE LIGHT. The transfer of fuel from the tanks and the subsequent drillings revealed the presence of numerous bales of marijuana concealed inside. After the presence of marijuana was confirmed through a field test performed by Lt. McCarthy inside the engine room, he informed the defendants that the substance found showed positive for T.H.C., the active ingredient in marijuana.

Lt. McCarthy testified that he told defendants at that point in time, that he was seizing the vessel, and that they were under arrest for possession of marijuana.⁴ He testified that the defendants showed no surprise at the situation. He then proceeded to read to the defendants the MIRANDA warnings both in English and Spanish.

Having presented no evidence at trial, defendants have moved for a new trial on five grounds. The first two, (a) that the Court erred in denying defendants' motion for acquittal, and (b) that the verdict is contrary to the weight of the evidence are so devoid of merit, they are hereby DENIED without further consideration for the same reasons stated from the bench.⁵ The Court held from the bench at the end of testimony that the evidence was overwhelming against defendants, and that it was for the jury to assess and weigh the evidence presented and to draw all reasonable inferences from the facts as to the guilt or innocence of the defendants. In sum, the jury decided this case on the same considerable evidence that the undersigned Judge had before him in denying the motion for acquittal. U.S. v. Gibson, 675 F.2d 825, 829 (6th Cir.1982); U.S. v. Artuso, 618 F.2d 192, 195 (2nd Cir.1980), cert. denied, 449 U.S. 861, 101 S.Ct. 164, 66 L.Ed.2d 77 (1982); U.S. v. Lopez, 625 F.2d 889, 897 (9th Cir.1980).

Defendants' additional grounds for a new trial are predicated on (1) the alleged erroneous admission of evidence as to observations made and testified to by Lt. McCarthy that defendants showed no surprise when informed about the presence of marihuana; (2) that the Court erred in charging the jury, and (3) that defendant Elkins' exercise of his Fifth Amendment rights was improperly used by the Government.

Defendants filed a joint brief in support of their motion for new trial. They argue that McCarthy's testimony at trial as to his observations of their reactions, combined with the instruction given to the jury at the end of the case regarding general intent deprived them of a fair trial, in that the Government improperly used their silence in its case in chief.

Defendant Elkins argues in addition that McCarthy should not have stated that Elkins "took the Fifth" during the course of routine questions on board the vessel.

The disposition of a motion for new trial rests within the sound discretion of the trial judge, and will be disturbed on appeal only for abuse of discretion, or misapplication of law. U.S. v. Johnson, 327 U.S. 106, 111, 66 S.Ct. 464, 90 L.Ed. 562 (1946); U.S. v. Malavet Rodriguez, 738 F.2d 13, 17 No. 83-1445, Slip Op. at 7 (1st Cir. June 26, 1984).

The Court finds that the testimony of Lt. McCarthy did not impermissibly comment on the silence of the four defendants, and his testimony was properly admitted into evidence. McCarthy did not testify that defendants refused to comment, or that they refused to answer questions, or discuss the silence of defendants in any manner. Lt. McCarthy testified to his own personal observations as to the demeanor of the defendant after the search of the vessel resulted in the discovery of marijuana. See Federal Rules of Evidence 701(a). Actions of a defendant which are inconsistent with innocence are admissible without regard to the Fifth Amendment privilege. U.S. v. Nabors, 707 F.2d 1294 (11th Cir. 1983).

The case law cited by the defendants in support of their assertions of unconstitutional use of their silence can be distinguished based on the circumstances of this case. The case law cited by defendant stands for the proposition that the Government may not use the silence of a suspect, or...