United States v. Steed
| Decision Date | 18 December 1972 |
| Docket Number | No. 71-2299,71-2252.,71-2299 |
| Citation | 465 F.2d 1310 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. James Devine STEED, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Floyd G. HINTZ, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
COPYRIGHT MATERIAL OMITTED
Len W. Holt (argued), Berkeley, Cal., Robert W. Ripley (argued), San Diego, Cal., James Devine Steed, in pro. per., for defendant-appellant.
Stephen G. Nelson, Asst. U. S. Atty. (argued), Robert H. Filsinger, Asst. U. S. Atty., Harry D. Steward, U. S. Atty., San Diego, Cal., for plaintiff-appellee.
Before JERTBERG, BROWNING and GOODWIN, Circuit Judges.
Certiorari Denied December 18, 1972. See 93 S.Ct. 697.
Appellants, James Devine Steed and Floyd G. Hintz, and one Sergio Anthony Sanz, were charged in a three-count indictment returned by the Grand Jury for the Southern District of California.
Count One charged the three, beginning at a date unknown and up to and including July 17, 1970, with conspiracy to smuggle marijuana into the United States, and to receive, conceal and sell, and facilitate the transportation, concealment and sale of marijuana after its importation;
Count Two charged the three with intent to defraud the United States, knowingly smuggled and clandestinely introduced into the United States from Mexico, on or about July 17, 1970, approximately 1,400 pounds of marijuana, which had not been declared or presented for inspection; and
Count Three charged the three with intent to defraud the United States, knowingly received, concealed and facilitated the transportation and concealment of the 1400 pounds of marijuana on or about July 17, 1970, which they knew had been imported and brought into the United States contrary to law, all in violation of 21 U.S.C. Sec. 176a.
Prior to trial the charges against Sergio Anthony Sanz were severed and we are not concerned on this appeal with his case.
Following trial to a jury, appellants were convicted on all three counts, and each appellant was committed to the custody of the Attorney General for a period of fifteen years on each count, the sentences to run concurrently, and each was fined the sum of $10,000.00 and to stand committed until payment of the fine.
We first summarize the relevant facts, considered in the light most favorable to the appellee. The appellant, Steed, a resident of Marysville, Washington, was and had been employed for several years by the United Air Lines as a navigation officer, and on or prior to July 16, 1970, obtained possession of a Piper Aztec twin-motor aircraft.
On July 16, 1970, defendant Sanz entered the United States from Mexico, through the Calexico Port of Entry, as the driver of an automobile. He had no California driver's license with him. He rented a room at a Calexico motel under the name of Anthony Faratta, and in the afternoon of that day a long distance call was placed from the motel room to a telephone in Marysville, Washington, which telephone was listed to Steed.
Accompanied by Hintz, Steed piloted the plane to the Imperial County Airport where they landed in the early hours of July 17, 1970. The two men checked in at the airport motel on July 17.
On the morning of July 17, Sanz visited with Steed at the airport motel. On the same day Sanz returned to Mexico through the Calexico Port of Entry. Shortly thereafter appellants drove into Mexico, through the Calexico Port of Entry, in an automobile rented by Steed.
After appellant had gone into Mexico, the interior of the aircraft was examined by looking in the side windows which were about five feet in height in relation to the ground. Two front seats were observed, but no back or rear seats. The cargo area immediately behind the front seats was empty.
After spending several hours in Mexico, appellants returned to Imperial Airport at about sun down on July 17. Appellants departed in the aircraft from the Imperial County Airport, without filing any flight plan, in a southwesterly direction toward Mexico. The aircraft landed at the Reno, Nevada Airport about 11:00 p. m., of that day. The plane was refueled at the direction of Steed. The cargo area behind the two seats in front was observed to be stacked with boxes all the way to the ceiling of the aircraft. They appeared to be shoe boxes.
After refueling, the aircraft left the fueling area and with landing lights and revolving beacon on, proceeded to the run-up area preparatory to take-off. In the meantime a Customs Agent had requested the Reno Police Department and the Sheriff's Office at Reno to intercept and detain the plane.
While the aircraft was at the run-up area the Air Traffic Control Officer simulated a complete electrical failure on the airport. Steed made requests for permission to take off, but received no response.
When the two police cars arrived at the airport, the aircraft was still at the runway area. The two cars flashed the plane with red and white spotlights. The aircraft moved to the active runway and proceeded to take off. It was pursued by both police cars, at a speed of seventy-five to eighty miles per hour, one on each side of the aircraft attempting to nudge the plane off the runway. During the chase the police cars opened fire on the plane which took off, turned off its lights, and disappeared.
The aircraft landed at Beaver Marsh, Oregon, an uncontrolled airport, in the early hours of the morning of July 18. Appellants left the plane at the airport, hitchhiked a ride to Bend, Oregon, about 4:30 a. m., of that morning where they rented a twelve foot van type truck, and returned to the airport. They were unsuccessful in moving the aircraft onto the runway. The cargo in the plane was removed and placed in the truck. They left the aircraft at the airport and departed from there in the truck.
On July 19, 1970, a search of the aircraft, pursuant to a search warrant issued by the United States Commissioner, resulted in the seizure of the following items:
All of said items were received into evidence at the trial over appellants' objections, except the last mentioned item. Bullet holes were observed on both sides of the plane. On analysis the seeds and leafy matter were found to be marijuana; the red stains on the paper towel were found to be bloodstains of the type of Steed's blood; and the fingerprints were found to be the fingerprints of the appellants.
A witness (Judy Merrell), a stewardess for United Air Lines testified that on August 1, 1970, at a social party at Bainbridge Island near Seattle, Steed and Hintz, in her presence and in the presence of several other members of the party, stated in substance: that in coming back in a plane from Mexico, they landed "somewhere," and in taking off were chased by the police and shot at; that they landed the plane somewhere and hid the "pot" and "marijuana" that they had with them; and that they had gone into town and rented a car or truck and made it back to Seattle.
Another witness (Kathleen Coch), a stewardess for United Air Lines, stated in substance: that she had previously, as a stewardess, met Steed as a flight officer on a United Air Lines trip; that he told her that he had made big money, "$45,000 a trip" flying private charter to Mexico from Renton, Washington. Later, and on August 1, 1970, while riding in an automobile with Steed, he told her that he had received a bullet wound in his leg from a shooting incident in a plane. She further testified that in September of 1970, while visiting Hintz at his cabin on Bainbridge Island, she was present when a man known to her only as "Bill," paid Hintz in the neighborhood of $25,000 in currency and that at a later date Hintz told her that he was glad to get rid of the last of the "load" of marijuana. On a later occasion in September, 1970, while riding in an automobile with Hintz, he told her in substance of taking off from the Reno airport at night with police cars chasing and shooting at the plane; that the plane landed in Oregon; that he hitchhiked into town, got a van or truck, went back to the airplane, removed 500 kilos of marijuana, put it into the van, and drove to Seattle.
Appellant Hintz did not testify at the trial nor did he call any witnesses on his behalf.
Appellant Steed testified as a witness on his own behalf, but called no other witnesses.
Steed testified that he had rented the aircraft in Oregon, and with Hintz accompanying him, piloted the plane to the Imperial County Airport, where they landed on July 17, 1970; that one purpose of the trip was to evaluate the plane for use on charter trips; that he had a visit with defendant Sanz about the chartering of the plane for a hunting trip; that he and Hintz drove to Mexico in a rented car, and they spent several hours shopping, where they purchased a saddle and other leather goods; that they departed the Imperial County Airport and landed at the Reno Airport; that after refueling, and while taking off, the plane was pursued by two automobiles; that the occupants of the automobiles shot at the plane; that appellant did not stop the plane because he feared that the lessors of the plane were attempting to arrest him for not returning the plane within the rental period and also because he was anxious to return home in order to arrive in time to meet his next flight assignment from United Air Lines. Steed disclaimed any criminal participation in the charges set forth in the indictment.
We now consider the questions for review presented by the appellants.
Appellants contend that their Fourth Amendment rights were violated when the district...
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