United States v. Trabucco

• Decision Date: 26 June 1970
• Docket Number: No. 27476.,27476.
• Citation: 424 F.2d 1311
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Flavio Humberto TRABUCCO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

424 F.2d 1311 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Flavio Humberto TRABUCCO, Defendant-Appellant.

No. 27476.

United States Court of Appeals, Fifth Circuit.

April 15, 1970.

Rehearing Denied May 13, 1970.

Certiorari Denied June 26, 1970.

Lucius M. Dyal, Jr. (court appointed), Tampa, Fla., for defendant-appellant.

Edward F. Boardman, U. S. Atty., Robert H. MacKenzie, Special Asst. U. S. Atty., Tampa, Fla., for plaintiff-appellee.

Before WISDOM, GEWIN and AINSWORTH, Circuit Judges.

Certiorari Denied June 26, 1970. See 90 S.Ct. 2224.

WISDOM, Circuit Judge.

This direct criminal appeal raises questions of probable cause for a warrantless arrest, admissibility of a confession, proof of the corpus delicti, and correctness of jury instructions. The question of probable cause is close; the confession question unusual because of the defendant's language barrier and cultural background; and the issue of jury instructions complicated by a recent Supreme Court ruling. But after close consideration we affirm the conviction.

I.

Customs agents and other law enforcement officers¹ took Flavio Humberto Trabucco, a Chilean seaman, into custody from his ship, the "Chilean Nitrate", about 9:00 p. m. the evening of August 29, 1968, in the port of Tampa. The Chilean Nitrate was due to leave port that evening. During the trip into town, one of the officers who spoke Spanish chatted generally with Trabucco, asking whether he had been into town and enjoyed his visit to Tampa. Trabucco replied that he had been to different bars and had done some shopping. Upon arrival at the sheriff's office, officers escorted Trabucco to the polygraph room. There two officers asked him whether he knew a man named Roberto Bravo and whether he had ever been to the Sheraton-Tampa Hotel. Trabucco answered "No" to both questions. Meanwhile, Miss Sesylia Pardo, an employee of the Sheraton-Tampa, positively identified Trabucco (observing him through a see-through glass) as the man who had asked for Roberto Bravo's room number a couple of days earlier and whom she had observed sitting with Roberto Bravo² in the hotel lobby. An officer informed Trabucco that he had been identified as having talked with Roberto Bravo in the Sheraton lobby. Trabucco again insisted that he had never been there. Two officers then proceeded formally to arrest Trabucco, to advise him in Spanish of his rights, and to search him. They discovered in his rear pocket a piece of Sheraton-Tampa stationery with the name "Roberto Bravo, Ponce de Leon Hotel, Miami City" written on it. When the officers confronted him with this evidence, and administered Miranda warnings, Trabucco proceeded to outline the following incidents.

An individual named Alamido Baras had approached Trabucco in Chile apparently because of the Trabucco family's known financial straits and offered him $1,000 to take a package of cocaine to the United States. Trabucco agreed. He received the package in Tocopilla, Chile, and hid it in the stack of the ship — the Chilean Nitrate — on which he was a mechanic. Baras told Trabucco that an unidentified individual would board the Chilean Nitrate in Tampa Monday night, August 26, at twelve midnight.

When the appointed individual did board the ship in Tampa, Trabucco recognized him as Roberto Bravo, a Chilean he knew. Trabucco took the package and left the ship with Bravo. They went to the bus station, put the package in a "safety box", and proceeded to a bar. Bravo invited Trabucco to visit him at the Sheraton-Tampa Hotel the next day, August 27, around noon. When Trabucco arrived, Bravo was not there; Trabucco waited for him in the lobby. He finally saw Bravo about 3:30 p. m. The two men talked, then went to some stores on the main street in Tampa. When Trabucco asked Bravo for his payment, Bravo informed him that he could not produce the $1,000 until the ship reached Panama. Trabucco went back to the Chilean Nitrate, worked on board the following day, did some shopping in the afternoon, and apparently was prepared to leave port with the ship when he was arrested.

Trabucco was indicted, tried before a jury, and convicted of the illegal importation of cocaine and of conspiracy illegally to import cocaine. The district judge sentenced him to five years imprisonment with a recommendation to the Attorney General to deport Trabucco in lieu of incarceration.³ Trabucco appeals from this conviction, contending that 1) probable cause did not exist for his warrantless arrest; 2) the piece of Sheraton-Tampa stationery with Bravo's name on it was therefore inadmissible as the product of an illegal search and seizure; 3) his oral confession and subsequent written admissions were inadmissible as the product of an illegal arrest, illegal search, and custodial interrogation without proper Miranda warnings; 4) the evidence is defective for failure to establish the corpus delicti independently of his confession; and 5) the district court's instruction on the presumptions to be drawn from the possession of cocaine constituted reversible error.

II. Probable Cause

The Government admits that Trabucco was effectively arrested at the time the officers removed him from the Chilean Nitrate. We therefore examine the information available to the arresting officers as of that time to determine whether probable cause for the arrest existed.

The circumstances leading up to Trabucco's arrest show a course of concentrated investigation by law enforcement officers along with a few strokes of luck. The case began when Eastern Airlines employee Gloria Caruso became concerned about a telephone call she had taken while on duty at about 4:45 p. m. the afternoon of August 27, 1968. The caller, a Spanish-speaking man interested in an afternoon flight at 6:15 p. m. to New York City, had asked about the procedure for sending a package on the flight without himself travelling on the plane and about the identification necessary for picking up the package in New York. Miss Caruso took no chances. She notified her supervisor that if anyone brought out a package for the 6:15 flight to New York, the airline should be on the lookout for a bomb. Meanwhile, a Spanish-speaking man had indeed delivered a package to Eastern's Air Freight Office for this flight, fifteen minutes before flight time. This individual also wanted information about identification needed for retrieving the package in New York. Employees first placed the package on the aircraft, then upon instructions, removed it to a supervisor's office. When the package was finally opened, it turned out to be not a bomb, but glass cylinders containing five pounds of white powder later identified as cocaine. Law enforcement officers wrapped a small amount of the powder in a similar package and put it on a later flight to New York. The next morning, a federal narcotics agent in New York arrested Ramon Enrique Carjaval-Alfaro, a Chilean, who claimed the package at the airport.

Investigation in New York and in Tampa produced the following information. Carjaval-Alfaro, the Chilean who picked up the cocaine in New York, was registered at the Stanford Hotel in New York. He and Roberto Bravo had registered there together on August 23, 1968. Bravo had since gone to Tampa where he stayed at the Sheraton-Tampa on August 26, 1968, giving his address as Santiago, Chile. While at the Sheraton-Tampa, Bravo had called the Stanford Hotel in New York. Bravo checked out of the Sheraton-Tampa at 4:02 p. m. August 27, 1968. A taxi-cab took a man speaking only broken English and carrying a package to the Eastern terminal around five or shortly after. A Chilean ship had arrived in Tampa August 26, 1968, the same day that Bravo registered at the Sheraton-Tampa. It was the only Chilean ship in port. Miss Sesylia Pardo, a Sheraton-Tampa employee who spoke Spanish, had been asked by a Spanish-speaking male of Latin extraction how to reach Roberto Bravo. She directed him to the room phone. She later observed this individual in the hotel lobby talking to another man of Latin extraction whom she believed or assumed to be Roberto Bravo.⁴ Miss Pardo subsequently identified the defendant, Trabucco, from a spread of Polaroid photographs of the entire crew (thirty-six) of the Chilean vessel. The officers removed Trabucco from his ship.

In applying the standard of probable cause we determine whether "the arresting officers * * * possess knowledge of facts and circumstances gained from reasonably trustworthy sources of information sufficient to justify a man of reasonable caution and prudence in believing that the arrested person has committed or is committing an offense". Miller v. United States, 5 Cir. 1966, 356 F.2d 63, 66, cert. denied, 384 U.S. 912, 86 S.Ct. 1357, 16 L.Ed.2d 365; Henry v. United States, 1959, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134, 138. That is not to say that the agent finally ordered to take Trabucco from the ship must himself have possessed all the information; we may impute to him the knowledge of his superiors. See Daniels v. United States, 1968, 129 U.S.App.D.C. 250, 393 F.2d 359, 361; Smith v. United States, 1966, 123 U.S.App.D.C. 202, 358 F.2d 833, 835, cert. denied, 1967, 386 U.S. 1008, 87 S. Ct. 1350, 18 L.Ed.2d 448; United States v. Bianco, 3 Cir. 1951, 189 F.2d 716, 719. In this case, the agents could reasonably believe that an offense had been committed with regard to the shipment of the cocaine and that Bravo had initiated the shipment from Tampa to New York.⁵ The harder problem is the inference of Trabucco's involvement.

The officers knew that a Chilean citizen, Roberto Bravo, who had previously been in New York, checked into the Sheraton-Tampa the same day a Chilean vessel arrived in port (the only Chilean vessel in port); that Trabucco, a Chilean seaman on that ship tried to contact Bravo the next day at his hotel and was seen with him there; and that Bravo airshipped a quantity of cocaine that day to be picked up by...