United States v. Keller

• Decision Date: 22 May 1978
• Docket Number: Crim. No. 78-4.
• Citation: 451 F. Supp. 631
• Parties: UNITED STATES of America, Plaintiff, v. Paul Oliver KELLER, Michael Joseph Arra, Steven Scott Aschinger and Overton Baker Pettit, Defendants.
• Court: U.S. District Court — District of Puerto Rico

451 F. Supp. 631

UNITED STATES of America, Plaintiff, v. Paul Oliver KELLER, Michael Joseph Arra, Steven Scott Aschinger and Overton Baker Pettit, Defendants.

Crim. No. 78-4.

United States District Court, D. Puerto Rico.

May 22, 1978.

Ralph Vallone, Jr., Hato Rey, P. R., for defendants.

José A. Quiles, U. S. Atty., San Juan, P. R., for plaintiff.

DECISION AND ORDER

TORRUELLA, District Judge.

This matter is before us on issues raised by Defendants in Motions to Suppress and Dismiss wherein they allege the lack of jurisdiction of this Court, the violation of rights secured by the Fourth Amendment against unreasonable searches and seizures, and the failure to give prompt Miranda type warnings. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Defendants are charged in a three-count indictment, the first of which alleges that between November, 1977 and January 5, 1978, on the high seas within the special maritime jurisdiction of the United States, they conspired to import 13,303 pounds of marihuana into the United States, all in violation of 18 U.S.C. §§ 7, 3238 and 21 U.S.C. § 963. The second count charges that sometime between December 28, 1977 and January 1, 1978, on the high seas within the special maritime jurisdiction of the United States, the Defendants aiding and abetting each other possessed with intent to distribute 13,303 pounds of marihuana, all in violation of 18 U.S.C. §§ 2, 7 and 3238 and 21 U.S.C. § 841(a)(1). The last count charges that from December 28, 1977 through January 5, 1978, on the high seas within the special maritime jurisdiction of the United States, the Defendants aiding and abetting each other attempted to import into the United States 13,303 pounds of marihuana, all in violation of 18 U.S.C. §§ 2, 7 and 3238 and 21 U.S.C. § 963.

A hearing was held in which the following facts came to light: On January 5, 1978 at approximately 1350 hours, United States Coast Guard Helicopter Number 1470 based in San Juan, Puerto Rico, sighted the M/V GREAT MYSTERY in a location 15 miles North of Arecibo, Puerto Rico, proceeding in a westerly direction. The GREAT MYSTERY is an oil screw vessel of 71 feet 1. o. a., 55 net tons. This vessel was on a list of vessels suspected of engaging in violation of the laws of United States,¹ and thus its sighting was reported to the Coast Guard Operations Center in San Juan. This information was relayed to Seventh District Headquarters, who in turn ordered covert surveillance of the GREAT MYSTERY by the helicopter and directed the dispatching of a cutter to investigate on the scene. The Coast Guard cutter POINT WARDE was ordered out at approximately 1430 hours with instructions to plot the interception of the suspect vessel. Meanwhile the helicopter trailing the GREAT MYSTERY reported that the vessel showed Florida registration numerals. When this information was passed on to Miami it was discovered that the apparent owner of the GREAT MYSTERY was a Grand Cayman corporation by the name of Caribbean Diversified Concepts, Ltd.

At approximately 2230 hours the POINT WARDE intercepted the GREAT MYSTERY in a location about 35 miles North of Punta Borinquen, Puerto Rico, at 19°00' North Latitude, 67°37' West Longitude. The GREAT MYSTERY was on a heading of West by North West. The scene was illuminated by a search light from the cutter and a bright light (commonly referred to as the "midnight sun") from the helicopter. The intercepted vessel was not flying any flag and no home port was indicated below the name painted on her stern.² Florida registration numbers were prominently shown on both sides of the vessel.

The crew of the GREAT MYSTERY, the four Defendants herein, had been aware of the presence of the Coast Guard since the helicopter was first sighted in the early afternoon as it made a close pass by the ship's bow. During the rest of the afternoon the aircraft was seen at a distance. At dusk the ship's radar showed two contacts, one of which was on the surface. Upon observation through night binoculars, the surface contact proved to be a Coast Guard cutter. The crew of the GREAT MYSTERY kept both the helicopter and cutter under continuous visual and radar observation until intercepted.

The POINT WARDE hailed the GREAT MYSTERY by voice radio, which hail was answered by Defendant Baker. He was asked the registry of the vessel, the last port of call, the next port of call and the nationality of the vessel. He answered that it was a "U.S. vessel coming from Curacao, en route to Florida." He also informed the Coast Guard that he was not the skipper of the vessel and that he was calling the skipper to come on the radio. Shortly thereafter the skipper of the GREAT MYSTERY, Defendant Keller, came on the radio and in response to similar inquiries indicated that it was a "U.S. vessel headed to Ft. Lauderdale." When asked if she carried cargo, he responded in the negative and indicated that it was a pleasure trip.

This conversation was being monitored³ by the Operations Center of San Juan, who in turn advised District Headquarters of the developments. Miami ordered that the POINT WARDE send a boarding party to conduct an administrative inspection of the GREAT MYSTERY's safety equipment.

After informing the GREAT MYSTERY of the intended action, a small boat was put over the side by the POINT WARDE and a boarding party consisting of a coxswain, a petty officer and two able-bodied seamen proceeded to the GREAT MYSTERY. These last three actually boarded the GREAT MYSTERY. Two were armed with side arms and one with a shotgun. An automatic rifle was left with the coxswain on the small boat.

Upon boarding, the GREAT MYSTERY's crew were gathered in the stern section by the Coastguardsmen. The captain of the GREAT MYSTERY identified himself and upon request produced the ship's papers, which showed Florida registration of the vessel and ownership by a Grand Cayman corporation. Although kept under general surveillance by the Coastguardsmen, the crew of the GREAT MYSTERY were allowed to get their passports and birth certificates, which proved all of them to be citizens of the United States. Thereafter, while three of the Defendants remained in the fantail of the GREAT MYSTERY under the observation of the Coastguardsman with the shotgun, the petty officer, with Defendant Keller accompanying him, proceeded to inspect the vessel's safety equipment. While checking the forward bilges for oil, various bags bearing a "dog food" label were discovered in this compartment. A greenish substance could be observed through the plastic cover of the bags. A comment by the petty officer to the effect of "What have we here . . . ", was answered by Defendant Keller, "What can I say . . ."

Defendant Keller was sent back with the rest of his crew. Upon further inspection, 10 to 15 sacks with dimensions of about 3' × 2' × 1' were discovered. The petty officer reported to the POINT WARDE the possibility of contraband. He was asked to send a sample of the contents of the bags, which he proceeded to do. Upon arrival of the sample, a field test was performed aboard the POINT WARDE which proved positive to the presence of tetrahydrocannibinol, a compound occurring naturally only in the cannabis plant.

Immediately thereafter, which was about 45 minutes to one hour after they had first boarded, the boarding party received instructions to place Defendants under arrest, a procedure which they carried out in the stern section of the GREAT MYSTERY. Shortly after the arrest a Miranda warnings card was brought over from the POINT WARDE and read to Defendants, who acknowledged the same, and thereafter made no statements which can in any way be deemed incriminatory in nature.

With the exception of Defendant Keller, who agreed to remain on the GREAT MYSTERY to assist the prize crew with the navigation of this vessel to San Juan, the other Defendants were removed to the POINT WARDE. They were placed in the bow, but upon complaining of getting wet were removed to the after deck. There, the captain of the POINT WARDE read the Miranda warnings again. Their shackles were changed to allow them to put their hands in front and they were given wool blankets to cover themselves.

On the following day, that is on January 6, 1978, Defendants were fed breakfast and lunch, of the same substance as the crew of the POINT WARDE. They arrived at the Coast Guard Station in San Juan at 1530 hours and were taken into custody by United States Customs agents. They again were given Miranda warnings. Shortly thereafter they were taken before a United States Magistrate.

We now turn to the issues raised by the pending Motions.

I. Jurisdiction

The jurisdictional questions are twofold. The first part of this issue deals with a determination of whether a crime has been committed which is cognizable by this Court, i. e. within our subject matter jurisdiction. Bowen v. Johnston, 306 U.S. 19, 24, 59 S.Ct. 442, 83 L.Ed. 455 (1938). A separate question concerns whether Defendants are properly before the Court, i. e., whether there is personal jurisdiction to try Defendants.⁴

It has been consistently held that the power of a court to try a person for a crime is not impaired by the manner in which the person is brought within the court's physical control, Kerr v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886); Strassheim v. Daily, 221 U.S. 280, 31 S.Ct. 558, 55 L.Ed. 735 (1910); Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952); U. S. v. Cotten, 471 F.2d 744, 747-749 (C.A. 9, 1973); U. S. v. Quesada, 512 F.2d 1043, 1045 (C.A. 5, 1975), cert. denied 423 U.S. 946, 96 S.Ct. 356, 46 L.Ed.2d 277 (1975); U. S. v. Winter, 509 F.2d 975, 985-989 (C.A. 5, 1975), at least where the Defendant is not before the Court as the result of outrageous conduct by government agents. See United States v. Toscanino, 500 F.2d 267 (C.A. 2, 1974), reh. denied 504 F.2d 1380 (C.A. 2, 1974). No such conduct is...