US v. Greyshock

• Decision Date: 14 March 1989
• Docket Number: No. CR 88-01778-01 to CR 88-01778-04 (DAE) (SC).,CR 88-01778-01 to CR 88-01778-04 (DAE) (SC).
• Citation: 719 F. Supp. 927
• Parties: UNITED STATES of America, Plaintiff, v. Paul GREYSHOCK, Mike Stewart, Larry Landis, and Scott Davidson, Defendants.
• Court: U.S. District Court — District of Hawaii

719 F. Supp. 927

UNITED STATES of America, Plaintiff, v. Paul GREYSHOCK, Mike Stewart, Larry Landis, and Scott Davidson, Defendants.

Nos. CR 88-01778-01 to CR 88-01778-04 (DAE) (SC).

United States District Court, D. Hawaii.

March 14, 1989.

COPYRIGHT MATERIAL OMITTED

Louis A. Bracco, Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff.

Brook Hart, Honolulu, Hawaii, for Greyshock.

William Harrison, Honolulu, Hawaii, for Stewart.

Thomas Murphy, Asst. Fed. Public Defender, Honolulu, Hawaii, for Landis.

John Ashford Thompson, Honolulu, Hawaii, for Davidson.

ORDER

CONTI, District Judge.

In December of 1988, defendants Paul Greyshock, Mike Stewart, Larry Landis, and Scott Davidson, along with Christopher Mussell, were taken on board the U.S. Coast Guard cutter Jarvis, approximately 600 miles northeast of Oahu, Hawaii. Four federal law enforcement agents were aboard the Jarvis to assist in a possible interdiction of Greyshock's vessel, known as the Mai Tai Maru or the Iho Maru, which was suspected as being part of a marijuana smuggling operation. The defendants move to suppress the confessions they made aboard the Jarvis, maintaining that (1) these confessions were involuntarily made and their waivers were the product of coercion; and (2) there was unnecessary delay in bringing defendants before a magistrate for arraignment. Defendants also move to dismiss the indictment, alleging that 46 U.S.C.App. § 1903, the Maritime Drug Law Enforcement Act ("the Act"), is unconstitutionally vague and operates as an ex post facto law. Defendants also move to dismiss the indictment on jurisdictional grounds, alleging that the Cook Islands, the flag nation of the vessel Iho Maru, has not consented to the prosecution of this lawsuit. Defendant Greyshock also moves to dismiss the indictment on the grounds that the government in bad faith destroyed the alleged crime scene.

A jurisdictional hearing and a six day suppression hearing were held on these matters. After carefully considering the parties' briefs, and the evidence presented at the hearings, the Court finds that the confessions were voluntarily made and were not the product of coercion, and that defendants knowingly and voluntarily waived their Fifth Amendment rights. In addition, the Court finds that the delay between arrest and arraignment was not unreasonable, and that the confessions should not be suppressed on that ground. The Court also finds that jurisdiction is proper, in that consent was given by the Cook Islands pursuant to 46 U.S.C.App. § 1903(c). The Court also denies defendants' motions to dismiss based on their attack on the Act's alleged unconstitutionality, finding that the Act is constitutional. Finally, the Court finds that the Iho Maru and its contents were not destroyed in bad faith.

FACTUAL BACKGROUND

On the morning of December 7, 1988, approximately 600 miles northeast of Oahu, the Jarvis sighted the vessel known alternatively as either the Iho Maru or the Mai Tai Maru. The vessel and its crew were suspected of being involved in a marijuana smuggling operation, and for several hours the Jarvis attempted to make radio and other contact with the vessel. The Iho Maru did not respond to these attempted contacts. Approximately five hours later, the Iho Maru caught fire and its crew, defendants Greyshock, Stewart, Landis, and Davidson, and Mussell, donned life preservers and abandoned ship. The Jarvis dispatched a small life boat, picked up the men, and brought them aboard the Jarvis.

Defendants were given blankets, coveralls, and boots upon boarding the Jarvis, and at some point soon thereafter were given heavy foul-weather jackets. After the defendants changed into dry clothing, they were individually questioned by one or two of the federal agents. Before the questioning, each defendant was orally advised of his rights as required under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Each defendant was also given a written "Advice of Rights" form, which sets out the Miranda warnings and provides for a place to sign indicating that the defendant is waiving these rights and is willing to make a statement and answer questions. Each defendant signed the waiver form, and answered questions posed by the agents. At this point, Christopher Mussell made a full confession.¹ Thereafter, the defendants were fed, and the medic aboard the Jarvis, Mike Caruso, examined each defendant and found no medical problems. That evening, defendants were given air mattresses and slept on the flight deck of the Jarvis. The evidence shows that the air temperature that evening was between 60-70 degrees.

On December 8, 1988, based in part on Mussell's confession the previous day, the defendants were placed under arrest. They were shackled by one leg to the flight deck, approximately 20 feet from one another, and were instructed not to speak with one another. Defendants were escorted to and from the bathroom. The defendants were given three meals a day, and were fed the same food as the Jarvis crew. They were also provided with cigarettes and coffee. On the night of December 8 it began to rain, and the defendants were brought into a covered area on the deck of the boat called the "air castle." Defendants were given gym mats to sleep on, as the air mattresses they had earlier been given had deflated.

On December 9, the Coast Guard fire-fighting team attempted to board the Iho Maru. At this point, Greyshock executed a written consent to search and take custody of his vessel. However, the fire burned so intensely that no one could board the ship. On December 10, the Iho Maru, still on fire, was taken under tow by the Jarvis towards Honolulu. At this point, the vessels were still approximately 600 miles northeast of Oahu. The next day, the defendants were brought below deck on the advice of the ship medic, to take them out of the direct sunlight.

The evidence indicates that on December 12, Greyshock informed F.B.I. Agent Vince McNally that he wanted to talk to the agents and attempt to work out a deal with them. When Greyshock was brought to the agents, he was told by the agents that they did not have the authority to make any "deals" with him, and that only the United States Attorney had that authority. Greyshock was presented with a form entitled "Written Waiver of Rights to be Taken Before a Federal Magistrate and to Have Counsel." Greyshock signed the form, which states that "I told the FBI Agent that I waive (give up) these Rights because I want to immediately cooperate with the FBI ..." Greyshock crossed out the portion of the form which states that "I also feel that I do not need the assistance of a lawyer to advise me. In addition, I do not want to talk to a lawyer until after my cooperation with FBI is over." Greyshock then made a statement to the agents in which he implicated himself and his crew in a marijuana trafficking scheme, but did not divulge to the agents the identity of the main "financier" of the entire operation. This meeting lasted approximately one hour. After dinner, Greyshock was again orally advised of his Miranda rights, and was presented with a written "Advice of Rights" form. Greyshock signed the waiver portion of this form. He was asked to repeat his story, and notes were taken of this interview.

On December 13, Greyshock asked to speak with the members of his crew, and was given permission to do so. Thereafter, Greyshock advised the agents that the members of his crew were also willing to make statements. Each defendant was then individually given the Miranda warnings orally, and was presented with an "Advice of Rights" form. Each of the crewmembers signed the waiver portion of these forms, and made statements to the agents. Greyshock was then called back to talk with the agents. He was given a copy of the agent's notes, taken during Greyshock's earlier statement, which the agent had prepared into narrative form. Greyshock read the narrative and made some corrections to it. The agent then typed the notes up several hours later, and showed this to Greyshock. Greyshock did not sign this typed version of his confession, and the agent noted on the signature line that Greyshock "refused to sign until contact his lawyer (sic) however he read it and made corrections on page 1." Page one has several corrections on it.

At this point, on December 13, the Iho Maru was still in tow, and was burning badly. The intense fire made it impossible for a fire-fighting team to safely board the vessel. Coast Guard officials were advised that the burning vessel would not be allowed into the port of Honolulu, as the ship posed an environmental hazard. The Coast Guard also felt that the burning ship presented a navigational hazard. On December 12 Greyshock had given written permission to destroy the vessel. Therefore, the Coast Guard cutter Jarvis sunk the Iho Maru by firing its guns into the vessel. Nothing was salvageable from the Iho Maru.

Without towing a burning vessel, the Jarvis was now able to move towards Honolulu at a faster pace. At this point, defendant Davidson complained of severe chest pains, and the medic aboard the Jarvis recommended that Davidson be med-evaced to Honolulu. A Coast Guard helicopter flew Davidson to the nearest hospital. The Jarvis continued towards shore, and arrived in the port of Honolulu in the morning of December 15, 1988. That afternoon all defendants, including Davidson, who had been treated and released from the hospital, were brought before a federal magistrate.

ANALYSIS

SUPPRESSION MOTIONS

The defendants claim that their confessions were involuntary and that their waivers were the product of coercion, in violation of their Fifth Amendment rights, and also that there was unnecessary delay in bringing them before a magistrate, in violation of Federal Rule of Criminal Procedure 5(a) and 18 U.S.C. § 3501. The government bears the burden of proving by a preponderance of the evidence that the...