United States v. Hayes

Decision Date14 June 1979
Docket NumberCrim. No. 79-190.
Citation479 F. Supp. 901
PartiesUNITED STATES of America, Plaintiff, v. Clinton HAYES et al., Defendants.
CourtU.S. District Court — District of Puerto Rico

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Justo Arenas Fernandez, Asst. U. S. Atty., San Juan, P. R., for plaintiff.

Sheryl E. Reich, Law Offices of Michael Kennedy, New York City, Emilio Soler-Mari, Rio Piedras, P. R., for defendants.

OPINION AND ORDER

TORRUELLA, District Judge.

On June 5, 1979 the CHARLES M, a shrimp boat of American registry and ownership, was intercepted on the high seas in the Carribean Sea, south of the Mona Passage by the United States Coast Guard Cutter GALLATIN. The point of interception was approximately 110 miles southeast of Cabo Rojo, Puerto Rico. The CHARLES M was heading in a northeast direction when first sighted. Upon questioning by voice radio the GALLATIN was informed that the CHARLES M's home port was Key West, Florida and that this would be the next port of call. She also stated that she carried no cargo, that she had not yet fished, but that she intended to do so "in the Islands". The Coast Guard had instructions to conduct inspections of all United States flag vessels on the high seas under 200 feet in length. Since the CHARLES M was flying the flag of the United States and otherwise fitted this description, a boarding party from the GALLATIN was dispatched to conduct a safety, documentation, and fishing regulations inspection. Once on board the vessel CHARLES M, members of the boarding party were informed by the ship's captain that the vessel carried no documentation. A cursory search for visible weapons and other persons, routinely carried out by the boarding party for its own safety, revealed the presence of bales of a green leafy substance in the pilot house, in the forward holds, and on the top deck, the latter being slightly covered with nets but plainly visible. A field test of the leafy substance showed a positive reaction for marijuana. Approximately 13 tons of the substance were found aboard the vessel. Defendants were subsequently charged with violation of 21 U.S.C. Sees. 841(a)(1) (possession with intent to distribute); 952(a) (importation); 963 (attempt) and 18 U.S.C. Sec. 2 (aiding and abetting).

Defendants' initial motions to suppress the evidence and to dismiss the Indictment for lack of jurisdiction were denied after hearings held on August 7 and September 10, 1979. After a jury trial held on September 11-13, 1979, defendants were found guilty as charged. This matter is now before the Court on defendants' "Motion for a New Trial and/or to Arrest Judgment of Conviction". This motion raises issues that were earlier before the Court and several incidental to trial proceedings.

Defendants' Motion recites the following arguments in support of their request: (1) the validity of The Coast Guard's boarding and subsequent search and seizure; (2) whether persons aboard a commercial vessel of United States registry on the high seas are subject to the reach of the provisions of the "Comprehensive Drug Abuse Prevention and Control Act of 1970", see esp. 21 U.S.C. Section 801, et seq.; (3) the qualification of certain jurors; (4) the alleged prejudicial effect of excluding certain testimony; (5) whether the Court erred in its instructions to the jury on Count Two of the Indictment; (6) whether defendants' motion for judgment of acquittal should have been granted; and, (7) whether any prejudice was caused by certain references in the prosecutor's final argument. We shall examine each point separately.

I. The Coast Guard's boarding and subsequent search and seizure

The present case is another in a series of cases in which the authority of, and the standard applied to, warrantless Coast Guard safety and documentation inspections has been challenged. Defendants' Motion to Suppress is premised on the belief that the boarding, and resulting search and seizure, are invalid because the Coast Guard here had neither a search warrant nor probable cause to believe any crime was being committed, or any regulation was being violated at the time of the initial boarding of the CHARLES M.

Fifth Circuit case law is dispositive in this matter.1 In United States v. Warren, 578 F.2d 1058, 1064-65 (CA 5 1978) reh. en banc on other grounds, 586 F.2d 608 (CA 5 1978), it held:

"Federal law authorizes the Coast Guard to make inquires, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of laws of the United States. For such purposes, commissioned, warrant, and petty officers may at any time go on board of any vessel subject to the jurisdiction, or to the operation of any law, of the United States, address inquiries to those on board, examine the ship's documents and papers, and examine, inspect, and search the vessel and use all necessary force to compel compliance. 14 U.S.C. Sec. 89(a) (1976). This law is constitutional United States v. One 43 Foot Sailing Vessel, 538 F.2d 694 (5th Cir. 1976), and pursuant to its authority, the Coast Guard may apprehend and board any vessel of the American flag. This authority is plenary when exercised beyond the twelve-mile limit; it need not be founded on any particularized suspicion. United States v. Odom, 526 F.2d 339, 341-42 (5th Cir. 1976); United States v. One 43 Foot Sailing Vessel, 405 F.Supp. 879, 882 (S.D.Fla.1975), aff'd. 538 F.2d 694 (5th Cir. 1976). The cases have recognized the power of the Coast Guard having boarded a vessel of the American flag, to conduct documentation and safety inspections. United States v. Hillstrom, 533 F.2d 209, 210 (5th Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 734, 50 L.Ed.2d 749 (1977); Odom, 526 F.2d at 342. If, during the course of such an inspection, circumstances arise that generate probable cause to believe that a violation of United States law has occurred, the Coast Guard may conduct searches, seize evidence, and make arrests. Odom, 526 F.2d at 342."

See also United States v. Erwin, 602 F.2d 1183 (CA 5 1979); United States v. Conroy, 589 F.2d 1258, 1265-1267 (CA 5 1979); United States v. Cadena, 588 F.2d 100-101 (CA 5 1979); United States v. Freeman, 579 F.2d 942, 946 (CA 5 1978).

We agree with the law as stated by Warren. See: United States v. Keller, 451 F.Supp. 631 (D.P.R.1978).2 Defendants through argument adduced in the hearing on these motions raise the possibility that this holding has been eroded by two Supreme Court cases decided shortly before and after Warren. In the first of these, Marshall v. Barlow's Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 805 (1978), the Supreme Court invalidated provisions of the Occupational Safety and Health Act of 1978 (OSHA) which allowed warrantless inspection of business premises for safety hazards and violations of OSHA regulations. In doing so the Court reasoned that the Fourth Amendment protects commercial buildings as well as private homes and that business enterprise in general is not subject to such a "long tradition of close government supervision" as to infer a consent to the search in question. Id. at p. 313, 98 S.Ct. at p. 1821.

In the second case, Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), the Supreme Court held invalid the police practice of stopping automobiles at random for a routine check of driver's licenses and vehicle registration. Here the Court drawing on the earlier cases of United States v. Martínez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) and United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), found that these random isolated spot checks constituted such an intrusion of privacy that the harm caused outweighed the interest of the governmental aim. Defendants would have us transfer to the sea these land-based decisions and limit the authority of the Coast Guard documentation stop.

It is, of course, quite clear that "the basic purpose of the Fourth Amendment . . . is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). In assessing whether governmental action transgresses the limits of this Amendment we measure it against a standard of the "reasonableness" of the particular action in light of all the circumstances and facts present. See Prouse fn. 6. What is "reasonable" under the Fourth Amendment ". . . is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interest as well as the interests of individuals citizens." Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 284, 69 L.Ed. 543 (1925). It will also "depend upon the specific enforcement needs and privacy guarantees of each statute." Barlow's Inc., supra, 436 U.S. at p. 321, 98 S.Ct. at p. 1825. In attempting to bring these broad principles to a specific workable test of Fourth Amendment validity the Court in Prouse stated:

"Thus, the permissibility of a particular law-enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests. Implemented in this manner, the reasonableness standard usually requires, at a minimum, that the facts upon which an intrusion is based be capable of measurement against `an objective standard', whether this be probable cause or a less stringent test. In those situations in which the balance of interests precludes insistence upon some `quantum of individualized suspicion', other safeguards are generally relied upon to assure that the individual's reasonable expectation of privacy is not `subject to the discretion of the official in the field . . .'" Id. pages 654-655, 99 S.Ct.
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