Petition — Coats v. United States

IN THE

Supreme Court of the United States

OctoBER TERM, 1979

——_—___—

No. 79-1230

GILLIAM Raymonp Coats, Petttioner

Va

UnitTep States oF AMERICA, Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

De ee

L. Patren Mason

Attorney at Law

710 Arendell Street

Morehead City, N.C. 28557

(919) 726-5164

Bossy LEE Cook

Attorney at Law

Cook Building

Summerville, te. 30747

(404) 857-3421

Counsel for Petitioner

February 8, 1980

Pauzss or Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C.

INDEX

Page

RENE ESS ETS TS Se 1

ee bev atcescctcecrs 2

Te Le eee 2

CoNSTITUTIONAL Provisions INVOLVED ................ 3

Cee esha ceedcecce 4

DraTeMewr OF Tim CASR ......... 0... c ccc cw cc cece: 5

Reasons FoR GRANTING THE WRIT .................- 7

eae 7

ca desc ecccccsces 9

3. Ihe Jury Selection Plan .................... 11

4. The Pre-Trial Staged Identification .......... 13

5. The Introduction of the Motel Registration

Card Violated the Petitioner’s Fifth Amend-

ment Right to Due Process ............... ew ae

6. The Judge’s Charge to the Jury as to Conten-

tions of the Government and the Petitioner .. 14

ee culeneevecects 15

APPENDIX

Exuisit A (The Opinion of the Court of Appeals

for the Fourth Circuit) .....1..........000; la

Exuisit B (Order of the Court of Appeals Deny-

ing the Petitioner’s Motion for Rehearing En

SES RP SO 7a

Exuisit C (Recommendations of the Magistrate

on the Petitioner’s Motion to Suppress Evi-

dence Obtained as a Result of an Illegal Search

and District Court Order) ............... 8a, 16a

Exursit D (Magistrate’s Findings and Conclusions

Relating to the Petitioner’s Challenge to the

Jury Selection Plan for the Eastern District of

North Carolina and District Court Order) 18a, 21a

Exurpit EF (14 U.S.C. § 89(a)) ................. 23a

Exurpit F (28 U.S.C. §§ 1861, 1862, 1863 and

ee ek ssc k cscs ces vases 24a

ii CITATIONS

CasEs: Page

Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.

eae ge Sg, OR | Re I AUT ee 8

Brown v. Tezas, -US. , 99 S.Ct. 2637, (1979) 8

Camara v. Municipal Court, 387 U.S. 023, 87 S.Ct. 1727,

Br Meme OOO AIOOT Ea ined ik oka a ee 9

Delaware v. Prouse, —~— U.S. ——, 99 S.Ct. 1391,

POP. FSS ek hia Vek i hoe ee 8

Duren v. Missouri, —~— US. —, 58 L.Ed.2d 579

ie EO TEL OE eo Te ay CREE 11, 12, 13

Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18

ek ek ee | ce aa Aaa 13

Katz v. United States, 389 U.S. 347 SPER co couus ss 10

Mancusi v. Deforte, 392 U.S. 364, 88 S.Ct. 2120 (1968) 10

Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243 (1977) 13

Marshall v. Barlow’s, Inc., —— U.S. ——. 98 S.Ct.

WR SHR as Ws iy Sa eA odo vs ope ke heou 9

Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375 (ives ccs. 28

Rakas v. Illinois, —— U.S. —, 99 S.Ct. 421 (1978) .. 10

Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967 (1967) .. 13

Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.

PE CIEE co) cea ticbae 11

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d

OOO Fo it eie ike 8, 9

United States +. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct.

WOT SIPS ees csi abi bic OG ok. 9

United States v. Chadwick, 433 U.S. 1 Sha Sere 11

United States v. Martinez-Fuerte, 428 U.S. 543 (1976) 9

Warden v. Hayden, 387 U.S. 294 CRN NA S555 oka es 11

MISCELLANEOUS:

Hearings before the sub-committee on Improvements

in the Judiciary Machinery, Judiciary Committee,

U.S. Senate, 95th Cong., Ist Sess. (Sep. 26, 1977)

WF POPE iii e¥ sks. bOI e 12

- a hi Hg At

IN THE

Supreme Court of the United States

OctoBER TERM, 1979

No.

GILLIAM RayMonp Coats, Petitioner

Ws

Unitep States or AMErIcA, Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

The Petitioner, Gilliam Raymond Coats, respect-

fully prays that a writ of certiorari issue to review the

judgment and opinion of the United States Court of

Appeals for the Fourth Circuit entered on the 29th

day of November, 1979.

OPINION BELOW

The opinion of the Court of Appeals for the Fourth

Circuit, not yet reported, appears in the Appendix

hereto as Exhibit A. The order of the Court of Appeals

denying the Petitioner’s motion for rehearing en banc

2

appears in the Appendix as Exhibit B. No opinion was

rendered by the District Court for the Eastern Dis-

trict of North Carolina. The District Court adopted

the recommendations of the Magistrate on the Peti-

tioner’s motion to suppress evidence obtained as a re-

sult of an ilf€gal search which are attached in the

Appendix as Exhibit C. The District Court also

adopted the Magistrate’s findings and conclusions re-

lating to the Petitioner’s challenge to the Jury Selec-

tion Plan for the Eastern District of North Carolina

which are attached as Exhibit D in the Appendix.

JURISDICTION

The judgment of the Court of Appeals for the

Fourth Circuit was entered on the 29th day of Novem-

ber, 1979. A timely petition for rehearing en bane was

denied on January 10, 1980, and this petition for cer-

tiorari was filed within thirty (30) days of that date.

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

QUESTIONS PRESENTED

1. Is the Fourth Amendment to the United States

Constitution violated if the Coast Guard randomly

stops and searches American vessels on the high seas

outside the jurisdictional waters of the United States

for the purpose of drug interdiction under the author-

ity granted the Coast Guard by 14 U.S.C. § 89(a) ?

2. Are the Fifth and Sixth Amendments to the

United States Constitution and the provisions of the

National Jury Selection and Service Act of 1968 (28

U.S.C. § 1861 et seq) violated*by a jury selection plan

which uses as its source lists of actua] voters in the

3

general election when use of that source results in ex-

clusion of more than 60% of the persons eligible for

jury selection and the exclusion of persons eligible re-

sults in significant and systematic under-representa-

tion of cognizable groups on the basis of race, economic

status and other cognizable classifications ?

3. Are the provisions of the Fifth Amendment right

to due process and the Sixth Amendment right of

counsel violated by the United States Attorney stag-

ing an identification of the Petitioner by having a gov-

ernment witness appear in the Courtroom approxi-

mately five (5) minutes before Petitioner’s trial to see

if he could identify the Petitioner ?

4. Were the Petitioner’s Fifth Amendment rights

to due process of law and Sixth Amendment right to

be confronted with the witnesses against him violated

by the Court’s allowance into evidence of a motel reg-

istration card directly linking him to the conspiracy

when the card was not properly authenticated and

contained matter thereon which had been changed from

the time it was originally made?

5. Did the Court violate the Petitioner’s Fifth

Amendment rights by improperly instructing the jury

and by summarizing the evidence and contentions of

the government and Petitioner in favor of the gov-

ernment?

CONSTITUTIONAL PROVISIONS INVOLVED

Unitep States Constitution, Amendment Four:

‘‘The right of the people to be secure in their per-

sons, houses, papers, and effects, against unrea-

sonable searches and seizures, shall not be violated,

and no warrants shall issue but upon probable

4

cause, supported by oath or affirmation and par-

ticularly describing the place to be searched and

the persons or things to be seized.”’

Unitep States Constitution, Amendment Five:

‘‘No person shall be held to answer for a capital

or otherwise infamous crime, unless on a present-

ment or indictment of a grand jury, except in

eases arising in the land or naval forces, or in the

militia, when in actual service in time of war or

public danger; nor shall any person be subject for

the same offense to be twice put in jeopardy of

life or limb; nor shall be compelled in any crimi-

nal case to be a witness against himself, nor be

deprived of life, liberty or property, without due

process of law; nor shall private property be taken

for public use without just compensation.”’

Unitep States Constitution, Amendment Six:

‘In all criminal prosecutions the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the state and district wherein

the crime shall have been committed, which dis-

trict shall have been previously ascertained by

law, and to be informed of the nature and cause

of the accusation; to be confronted with the wit-

nesses against him; to have compulsory process

for obtaining witnesses in his favor, and to have

the assistance of counsel for his defense.”’

STATUTES INVOLVED

14 U.S.C. § 89(a) is set forth as Exhibit E in the

Appendix hereto.

The pertinent sections of the National Jury Selec-

tion and Service Act of 1968 (28 U.S.C. $§ 1861, 1862,

1863 and 1867) are set forth in Exhibit F in the Ap-

pendix hereto.

5

STATEMENT OF THE CASE

Petitioner was convicted of conspiracy to import

marijuana under 21 U.S.A. §§ 952(a), 960(a)(1), and

963 and was sentenced to the maximum provided by

law of five (5) years imprisonment, $15,000.00 fine

and a special parole term of five (5) years.

The Petitioner’s arrest and conviction stemmed

from evidence obtained by the United States Coast

Guard as the result of a stopping, seizure and search

of a United States vessel on the high seas in the Mona

Passage on the 25th of January, 1978, pursuant to a

drug interdiction program of the Coast Guard. (At

the pre-trial suppression hearing Coast Guard officers

testified that the determination of what vessels to stop

rested solely with the captain of each Coast Guard

Cutter.) The Fourth Circuit opinion (Appendix page

la, 2a) sets forth the sequence of events leading up to

the stopping of the vessel. The District Court deter-

mined that the petitioner did not have standing to

challenge the search.

The Petitioner by appropriate motion challenged

the Jury Selection Plan for the Eastern District of

North Carolina and offered evidence which disclosed

that the Plan used as a source of jurors those persons

voting in the previous general election. In the general

election of 1976, within the Eastern District of North

Carolina, 544,444 persons actually voted. The Peti-

tioner using census data showed that in 1976 there

were 1,411,625 persons eligible for jury duty within

the District and that by dividing the number eligible

by those voting, only 38% of those eligible for jury

duty were included for consideration and thereby 62%

of those eligible were automatically excluded. The

6

Eastern District Plan does not provide an alternative

method for supplementation of jurors. (Transcript of

Magistrate’s Hearing, September 28, 1978, page 16.)

The Petitioner also offered expert witnesses who

performed a statistical analysis of the types of jurors

who were chosen under the Eastern District Plan and

offered evidence (based on the comparative disparity

standard) which showed that blacks were 44.5% un-

der-represented in the division where the Petitioner

was tried. On the basis of economic status, persons in

the lower skilled job classification were 55.1% under-

represented in the trial division; persons with incomes

below $7,000.00 per year were more than 33.3% under-

represented in the trial division; persons with high

school or less education were under-represented from

20% to 100% depending on the degree of lack of edu-

cation. The statistics disclosed that persons with some

college education to college graduates were between

152% to 240% overrepresented in the trial division.

The Petitioner’s evidence also disclosed that those

persons in the age range of 18 to 24 were 49% under-

represented. (Petitioner’s Exhibit # 10 introduced at

pre-trial hearings, September 28, 1978)

The evidence at trial disclosed that the United

States Attorney met with Wiley Thompson (a pros-

pective government witness) on several occasions in-

eluding the night before the Petitioner’s trial began

and instructed this witness to be in the Courtroom

before Court began in order to determine whether he

could identify anyone. The witness Thompson testified

that he remained in the Courtroom during the selec-

tion of the jury and saw the man he knew as “‘Jack

Long’”’ (an alias of the Petitioner) come up to the

counsel table and sit with his counsel. The witness then

7

left and was contacted that evening by the United

States Attorney and asked if he recognized anyone

and was told by the witness that he recognized ‘Jack

Long’’ (an alias allegedly used by Petitioner). The

government made no effort to have a pretrial lineup

for identification of the Petitioner by the witness.

The Court allowed into evidence a motel registration

card from the Taylor Motel, a place where the main

government witness testified he was directed to stay

by the Petitioner. This registration card contained an

automobile license number which had been marked

through and another license number placed thereon

which second license number was the same number of

a car which the Petitioner had rented. The authentic-

ity of the changed license number was never estab-

lished by the government and the Petitioner’s hand-

writing expert testified that the person originally fill-

ing out the registration card did not write in the dif-

ferent license number. The Court, over Petitioner’s

objection, allowed this document into evidence which

was the only documentary evidence that directly linked

the Petitioner with the conspiracy.

Petitioner was indicted during the month of July

1978, after elev’: (11) co-defendants had been tried

and convicted at a bench trial. These co-defendants’

appeals are still pending before the United States

Fourth Circuit Court of Appeals on issues basically

the same as those presented to this Court.

REASONS FOR GRANTING THE WRIT

1. The Fourth Amendment. This Court should grant

certiorari because 14 U.S.C. § 89(a) on its face vio-

lates the Fourth Amendment prohibition against un-

8

reasonable searches and seizures. The evidence in this

case discloses that the Coast Guard is using this sta-

tutory authority for unrestrained, unbridled invasions

of the privacy of American citizens while on the high

seas. Such unbridled discretion has been proscribed by

this Court in a long line of cases, the most recent of

which is Brown v. Texas, —— U.S. ——, 99 S.Ct.

2637, (1979). In a similar factual situation this Court

declared unconstitutional a Delaware police practice

of randomly stopping automobiles, without probable

cause, in order to check drivers license and registra-

tion. Delaware v. Prouse, —— U.S. ——, 99 S.Ct.

1391, (1979). In prohibiting such unrestrained seizures

this Court held:

‘‘Accordingly, we hold that except in those situa-

tions in which there is at least articulable and rea-

sonable suspicion that a motorist is unlicensed or

that an automobile is not registered, or that either

the vehicle or an occupant is otherwise subject to

seizure for violation of law, stopping an automo-

bile and detaining the driver in order to check

his drivers license and the registration of the au-

tomobile are unreasonable under the Fourth

Amendment.

* * ag

As Terry v. Ohio, supra, recognized, people are

not shorn of all Fourth Amendment protection

when they step from their homes onto the public

sidewalks. Nor are they shorn of those interests

when they step from the sidewalks into their

automobiles. See Adams v. Williams, 407 U.S. 143,

146 (1972).”’

“ertainly a reasonable extension of the Brown v.

Texas and Delaware v. Prouse doctrines would also

conclude that American citizens do not lose the secu-

9

rity of the Fourth Amendment by stepping from their

houses and automobiles into their boats.

The marginal contribution to boating safety of such

seizures cannot justify the intrusion to the occupants

which results. It is especially significant that boats in

general are more than means of transportation since

to many persons they constitute their homes, places of

work and total environment for many days or weeks

at the time and the intrusion envisioned by 14 U.S.C.

§ 89(a) is much greater than the intrusions which this

Court has struck down in the automobile situations.

United States v. Martinez-Fuerte, 428 U.S. 543

(1976) ; United States v. Brignom-Ponce, 422 U.S. 873

(1975) ; Terry v. Ohio, 392 U.S. 1 (1968) ; Marshall v.

Barlow’s, Inc., 4836 U.S. 307 (1978) and Camara v.

Municipal Court, 387 U.S. 523 (1967)

The evidence in the present case disclosed that there

was no probable cause or even suspicion that the ves-

sel which the Coast Guard boarded was involved in

any illegal activity or violating any safety, navigation

or documentation regulation.

The Coast Guard’s actions in this matter, even when

considered under the Statutory authority of 14 U.S.C.

§ 89(a), are unbridled intrusions as the unfettered dis-

cretion of Coast Guard personnel and under the au-

thority of the Statute can be exercised at any time

and any place in the world.

2. Standing. The District Court and the Fourth Cir-

cuit Court of Appeals avoided the Fourth Amendment

issue by concluding that the Petitioner did not have

standing to contest the search. The Circuit Court opin-

ion goes to great length to set forth why a co-defend-

ant named ‘‘Sam’’ would have standing but the Peti-

10

tioner would not. It is interesting to note that in the

companion case tried separately from the Petitioner

the same District Judge found that the co-defendant

‘‘Sam’’ did not have standing. The Magistrate’s find-

ings (Exhibit C of the Appendix) set forth an over-

whelming number of facts which support the Peti-

tioner’s claim of standing. Based on those facts, the

Magistrate, District Court and Fourth Circuit Court

of Appeals held that no standing had been established

by the Petitioner.

The general rule which has been established by this

Court has been that a defendant must have an owner-

ship, possessory or a privacy interest in the property

that was searched. Rackus v. Illinois, 99 S.Ct. 421

(1978). However, a proprietary or possessory interest

need not be exclusive; it may be shared with others

and this claim may be made even though others have

a superior interest in the property. Manchusi v. De-

Forte, 392 U.S. 364 (1968). The ultimate decision must

be ‘‘whether the disputed search and seizure has in-

fringed an interest of the defendant which the Fourth

Amendment was designed to protect.” Rackus v. Illi-

nois, supra, at 429. The boat captain in describing the

Petitioner’s role stated:

‘Tt seemed to me that Sam was obviously the over-

boss as far as laying down what would be the

proper procedure to do different things. How-

ever, Mr. Coats’ (Petitioner) responsibility was

to oversee the boat and crew.’’ (Parenthetical

matter and emphasis supplied)

Simply stated, the question is whether the Petitioner

had a legitimate expectation of privacy in the invaded

place. Katz v. United States, 389 U.S. 347 (1967). The

interest which a person may have which generates a

11

legitimate expectation of privacy does not have to be

couched in areane distinctions of property and tort

law. Warden v. Hayden, 387 U.S. 294 (1967) ; United

States v. Chadwick, 433 U.S. 1 (1977). Under the fac-

tual situation recited by the Magistrate, the Petition-

er’s control, authority and direction certainly estab-

lished his reasonable and legitimate expectation of

privacy in the boat.

3. The Jury Selection Plan. The National Jury

Selection and Service Act of 1968, 28 U.S.C. § 1861 et

seq., as well as the Fifth and Sixth Amendments re-

quire that grand and petit juries be selected from a fair-

cross-section of the community. In addition, the policy

provisions of the National Jury Selection act go fur-

ther to provide: ‘‘... [I]t is a policy of the United

States that ALL citizens shall have the opportunity to

be considered for service on juries in the District

Courts of the United States.’’ (emphasis supplied)

Use of a source which excludes more than 60% of

those persons eligible to serve on juries can under no

stretch of the imagination be rationalized to the status

of a fair-cross-section. The District Court placed the

blame of the inadequacy of the Plan on voter apathy

while the Court of Appeals concluded that use of voter

registration lists rather than lists of actual voters

would still not successfully obtain a fair-cross-section.

Apparently both Courts only would grant relief under

the ‘‘tainted source’’ doctrine. However, as this Court

pointed out in Duren v. Missouri, —— U.S. ——, 58

L.Ed.2d 579 (1979) it is the systematic, not merely

intentional, exclusions which the Sixth Amendment

addresses. Taylor v. Louisiana, 419 U.S. 522 (1975).

‘(T]he fair-cross-section requirement involves a com-

parison of the makeup of jury venires or other sources

12

from which juries are drawn with the makeup of the

community, not of voter registration lists.’’ Duren, 58

L.Ed.2d at 587 n.23 (emphasis in original).

Also the Fourth Circuit opinion disregards the

standards established in Duren, supra, that: ‘‘[t]he

right to a proper jury cannot be overcome on merely

rational grounds. Rather, it requires that a significant

state interest be manifestly and primarily advanced

by those aspects of the jury-selection process, such as

exemption criteria, that result in the disproportionate

exclusion of a distinctive group.”’

Exclusion of such large percentages of the jury com-

munity through the use of lists of actual voters leads

to the obvious results that significant cognizable groups

will be under-represented. In 1976 the Judicial Con-

ference proposed that a presumption be established in

favor of the adequacy of voter registration (not actual

voters) lists. The Attorney General opposed the estab-

lishment of the presumption on the grounds that voter

registration lists do not provide for adequate repre-

sentation of minority groups. Hearing before the Sub-

Committee on Improvements in the Judiciary Ma-

chinery, Judiciary Committee, U. S. Senate, 95th

Cong., Ist Sess. (Sept. 26, 1977), at 100-01. The use of

lists of actual voters, a more restrictive list, has proven

the Attorney General’s position in the Eastern District

of North Carolina.

The actual, practical effect of the decision of the

Fourth Circuit Court of Appeals is to establish prece-

dent for other jury selection plans across the country

to completely disregard the policy provisions of the

National Jury Service and Selection Act of 1968 and

to erode and disregard the fair-cross-section require-

13

ments as established by this Court in Duren and

Taylor, supra.

4. The Pre-Trial Staged Identification. The Peti-

tioner’s challenge of the government’s identification

of the Petitioner is two-pronged. In the first instance,

it denied the Petitioner due process under Manson v.

Brathwaite, 432 U.S. 98 (1977) and Neil v. Biggers,

409 U.S. 188 (1972). Secondly, it also denied the Pe-

titioner’s Sixth Amendment right to counsel under

Gilbert v. California, 388 U.S. 263. It is hard to

imagine a mor’ suggestive procedure than to have a

witness sitting in a Courtroom to see if he can identify

the person who is called up to the bench with his coun-

sel for trial. The process used by the government was

without the knowledge of the Petitioner or his counsel

and there can be no question that the government de-

liberately staged this identification procedure. In Sto-

vall v. Denno, 388 U.S. 293 (1967) this Court was pri-

marily concerned with whether the confrontation con-

ducted was so unnecessarily suggestive and conducive

to irreparable mistaken identification that the Peti-

tioner was denied due process. It is submitted that

here the confrontation could only be highly suggestive

and conducive to irreparable mistaken identification.

d. The Introduction of the Motel Registration Card

Violated the Petitioner’s Fifth Amendment Right to

Due Process. While the Trial Court is granted wide

discretion in admission of documents as business rec-

ords, there must be minimal authentication proof to

give them reliability. In the present case there is abso-

lutely no authentication of the automobile license num-

ber on the registration card which was the same number

as a rental car which the Petitioner had rented. In

14

fact, the only handwriting expert to testify with re-

gard to the substituted number stated that the writing

of the substituted number was different from the en-

tering clerk. The unreliability of this information,

particularly in the format of the card, was sufficient

basis for its exclusion. The Court, by allowing admis-

sion of the registration card, bolstered the govern-

ment’s case against the Petitioner by offering the only

documentary evidence which directly tied the Peti-

tioner to the other co-conspirators. The unreliability

of the document under these circumstances and its im-

portance to the government’s case denied the Peti-

tioner due process when it was introduced in evidence

over his objection.

6. The Judge’s Charge to the Jury as to Contentions

of the Government and the Petitioner. Petitioner de-

sires to preserve arguments relating to the J udge’s

charge in the event his petition for certiorari is

granted and therefore no argument is now made as to

these contentions since references to the record would

be extensive.

15

CONCLUSION

For these reasons, a writ of certiorari should issue

to review the judgment and opinion of the Fourth

Circuit.

Respectfully submitted,

L. Patren Mason

Attorney at Law

710 Arendell Street

Morehead City, N.C. 28557

(919) 725-5164

Bossy LEE Coox

Attorney at Law

Cook Building

Summerville, Ga. 30747

(404) 857-3421

Counsel for Petitioner

February , 1980

APPENDIX

a

la

EXHIBIT A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 79-5015

Unitep States or America, Appellee,

versus

Gittiam Raymonp Coats, a/k/a Jack Lona,

a/k/a Birt Wauters, Appellant.

Appeal from the United States District Court for the

Eastern District of North Carolina, at New Bern.

F. T. Dupree, Jr., District Judge.

Argued: July 12, 1979. Decided: November 29, 1979.

Before Russe.u, Circuit Judge, Fretp, Senior Circuit

Judge, and Wiener, Circuit Judge.

Bobby Lee Cook (Cook & Palmour on brief) and L. Patten

Mason (Mason and Phillips, P.A. on brief) for Appel-

lant; Herman E. Gaskins, Jr., Special Assistant

United States Attorney) (George M. Anderson, United

States Attorney on brief) for Appellee.

RussE.L, Circuit Judge:

Defendant/appellant appeals from his conviction under

21 U.S.C. §§ 952(a), 960(a)(1), and 963, of conspiracy to

import marijuana. His primary contention an appeal con-

cerns the search and seizure of the vessel used to transport

the marijuana. The facts pertinent to that search and

sizure may be briefly stated: in January of 1978 the United

States Coast Guard was engaged in patrolling the Car-

ribean sea lanes for general law enforcement purposes

with a special emphasis on drug interdiction. On J anuary

20th the Coast Guard Cutter A.err spotted the Lapy

Een, a fishing vessel of North Carolina registry, in the

2a

Mona Passage between the Dominican Republic and Puerto

Rico. Following its policy of stopping all United States

vessels less than two hundred fifty (250) feet in length, the

crew of the A.Eert stopped and boarded the Lapy Eien

and inquired of its master the vessel’s destinatior and

point of embarkation. At that point the master stated “you

got me, I’m coming from Colombia and I have a load of

marijuana on board.” A search ensued which produced

some twenty-five (25) tons of marijuana. The crew then

cooperated in a controlled delivery of the marijuana to

their co-conspirators waiting 'n North Carolina. Ulti-

mately, the marijuana was seized and a number of indi-

viduals, including the defendant, were arrested and

charged with conspiracy to import marijuana.

Defendant contends that the search of the Lavy Exuen

was unlawful and that all evidence derived from it should

be suppressed. The Coast Guard admittedly had no sus-

picion concerning criminal activities aboard the vessel. It

boarded, pursuant to authority under 14 U.S.C. § 89(a),

for purposes of conducting a safety and documentation in-

spection, and thereafter allegedly acquired probable cause

to conduct the search when the master uttered his inculpa-

tory statement. It is the initial boarding which defendant

contests.

The validity of section 89(a) boardings, which may occur

virtually anywhere in the world at the diccretion of the

Coast Guard, presents an intriguing question when mea-

sured against Fourth Amendment standards, particularly

in light of the Coast Guard’s admittedly drug related pol-

icy of stopping all vessels under a certain length which are

found in Carribean passages known to be used by smug-

glers.’ Yet, tempted though we are, we must decline to con-

*14 U.S.C. § 89(a) provides:

The Coast Guard may make inquiries, examinations, inspec-

tions, 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

3a

sider that question since we conclude that the district

court correctly denied the defendant standing to contest

the validity of the search.

In Rakas v. Illinois (1978) 439 U. S. 128, the Supreme

Court declared that only one who has a legitimate expect-

ancy of privacy in property may object to a search of such

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 com-

pliance. When from such inquiries, examination, inspection,

or search it appears that a breach of the laws of the United

States rendering a person liable to arrest is being, or has been

committed, by any person, such person shall be arrested or, if

escaping to shore, shall be immediately pursued and arrested

on shore, or other lawful and appropriate action ‘shall be

taken; or, if it shall appear that such a breach of the laws of

the United States has been committed so as to render such

vessel, or the merchandise, or any part thereof, on board f,

or brought into the United States by, such vessel, liable to for-

feiture, or so as to render such vessel liable to a fine or penalty

and if necessary to secure such fine or penalty, such vessel or

such merchandise, or both, shall be seized.

The fifth circuit, in a long line of cases, has upheld this statute.

United States v. Warren (5th Cir. 1978) 578 F.2d 1058, 1064-65

(en banc) ; United States v. One (1) 43 Foot Satling Vessel ‘‘ Winds

Will”’ (Sth Cir. 1976) 538 F.2d 694, 694 (per curiam) ; United

States v. Hillstrom (5th Cir. 1976) 533 F.2d 209, 210-11, cert.

denied, 429 U.S. 10388 (1977); United States v. Odom (5th Cir.

1976) 526 F.2d 339, 342. But see United States v. Piner (N.D.Cal.

1978) 452 F.Supp. 1335, 1339-40 (unbridled discretion violates

Fourth Amendment absent warrant or probable cause). The fourth

and fifth circuits have approved section 89(a) stops on the high

seas of foreign vessels which are subject to extra-territorial appli-

cation of domestic law. United States v. Dominguez (4th Cir. 1979)

—— F.2d ——, dated August 10, 1979; United States v. Cadena

(5th Cir. 1978) 585 F.2d 1252, 1259. The fifth circuit also has

approved, without relying on section 89(a), searches of American

vessels in foreign waters. United States v. Conroy (5th Cir. 1979)

589 F.2d 1258, 1265-69, U.S. appeal pending.

4a

property, and, while the expectation need not rest on

common-law property concepts, such property rights may

often be determinative of whether a party has such ex-

pectation of privacy as to support his objection to a prop-

erty search under the Fourth Amendment.’ In this case the

defendant Coats made no showing of a property right in

either the vessel searched or in the property seized.’ He

did not testify at the suppression hearing, even though he

might have done so without prejudice to his rights at trial,

but relied entirely on the testimony of Breslin, the captain

of the vessel, to sustain his claim to privacy.‘

Breslin stated, during his testimony, that his initial con-

tacts were with the defendant and that it was the defend-

ant who advanced funds for provisioning and equipping

the vessel turned over to him for use in the illegal trans-

portation of marijuana from Colombia to the United

States. But the defendant represented to Breslin that he

was acting under the orders of the top “boss.” The defend-

ant introduced Breslin immediately after this statement to

a “Sam.” Breslin assumed that “Sam” was the top boss,

to whom the defendant had referred. Such assumption

seemed to be borne out by later circumstances. Accord-

ingly, from the time that “Sam” was introduced to Breslin

by the defendant “Sam” became the controlling, dominant

figure in the undertaking. Breslin operated completely

from that time on under “Sam’s” direction and control. It

was “Sam” who directed Breslin where to take the vessel,

instructed him by whom he would be met in Colombia when

he arrived at the designated point in Colombia, and what

he should do when he got there. It was “Sam” who made

all the arrangements with the local Colombians for the

delivery to the vessel of the cargo of marijuana. It was

* See, United States v. Hunt (5th Cir. 1974) 505 F.2d 931, 937,

cert. denied, 421 U.S. 975 (1975).

* See, United States v. Williams (9th Cir. 1976) 536 F.2d 810,

813, cert. denied, 429 U.S. 839.

* See, United States v. Williams, 536 F.2d at 818.

5a

“Sam” who paid for the cargo when it was delivered. When

the cargo was finally taken aboard the vessel, it was “Sam”

who, using maps and charts, marked out for Breslin the

exact course the vessel was to take on its voyage to its

proposed destination in coastal North Carolina, and it was

he who provided directions to be followed in the event

Breslin encountered any problems on the voyage. Thus,

when Breslin ultimately embarked on the voyage, he was

operating entirely under the control and direction of

“Sam” in arranging to pick up and transport a cargo of

marijuana purchased and paid for by “Sam.” Breslin’s

evidence thus indicates that “Sam” was the real operator,

the one entitled to the possession and control, of the vessel

and that the defendant Coats was simply his agent in

earlier contacting and dealing with Breslin.

There was accordingly strong and compelling evidence

in the record that “Sam” was, as the defendant himself

suggested to Breslin, the head man in the illegal undertak-

ing who directed the activities of both the defendant and

Breslin and under whose control Breslin was operating

the vessel at the time it was seized. It was a reasonable

deduction from these undisputed facts that the defendant

was merely a subordinate of “Sam,” charged with locating

a vessel and crew for use by “Sam” in carrying out the

illegal undertaking, and that the right of possession and

control of the vessel, particularly after it began its voyage

to Colombia, was in “Sam” and not the defendant. And

this was the district court’s finding of fact on which it

based its denial of a right to an expectation of privacy

on the part of the defendant in either the vessel or its con-

tents. Since such finding was not clearly erroneous, it is

binding on us in this appeal.*

The defendant also challenges the jury selection plan for

the eastern district of North Carolina as failing to comply

°3 Wright, Federal Practice and Procedure, § 678 at page 143;

United States v. Jobin (1st Cir. 1976) 535 F.2d 154, 156; United

States v. Gunn (5th Cir. 1970) 428 F.2d 1057, 1060.

6a

with the National Jury Selection and Service Act of 1968,

28 U.S.C. §§ 1861-1875, and as violating the Fifth and

Sixth Amendments. The particular plan at issue here

utilizes lists of actual voters for jury selection. The de-

fendant contends that use of this list resulted in an ex-

clusion of 60% of the eligible jury population in the dis-

trict, and that an alternative source of names should have

been used.

The only showing here is that persons who failed to vote

in the 1976 general election were excluded from considera-

tion for jury duty. Absent a demonstration that some cog-

nizable group has thereby been systematically excluded or

substantially under-represented, this type of exclusion does

not violate constitutional principles.* Nor does it fail, as

defendant suggests, to comply with the policies and di-

rectives of the Act. As defendant’s own figures demon-

strate, use of voter registration lists rather than actual

voter lists would increase the source from 40% of those

eligible to 64%, thus still excluding 36%. Yet both types

of lists are expressly approved by the Act. 28 U.S.C.

§ 1863(b)(2). Nor is any supplementation of names by use

of alternative lists required absent a showing that voter

lists do not represent a fair cross-section of the com-

munity.’ With no demonstration of underrepresentation or

systematic exclusion of any cognizable group, that showing

has not been made here.

We have given careful consideration to defendant’s other

grounds of appeal and find no errors therein. Accordingly,

the judgment of conviction is AFFIRMED.

® Castaneda v. Partida (1977) 480 U.S. 482, 493-94; Brown v.

Allen (1953) 344 U.S. 443, 470-74 (opinion of Mr. Justice Reed,

announcing judgment).

* United States v. Test (10th Cir. 1976) 550 F.2d 577, 584, 586

n. 8 (en banc) ; United States v. Brady (9th Cir. 1978) 579 F.2d

1121, 1131, cert. denied, —— U.S. ——, 99 S. Ct. 849; United

States v. Ross (9th Cir. 1972) 468 F.2d 1213, 1216, cert. denied,

410 U.S. 989 (1973).

7a

EXHIBIT B

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 79-5015

Unitep States or America, Appellee,

versus

Gituiam Raymonp Coats, a/k/a Jack Lona,

a/k/a Brut Watters, Appellant.

ORDER

Upon consideration of the appellant’s petition for re-

hearing and suggestion for rehearing en banc, by counsel,

and no judge having requested a poll on the suggestion for

rehearing en banc,

It is ApsupGED AND OrpeRED that the petition for rehear-

ing is denied.

Entered at the direction of Judge Russell for a panel

consisting of Judge Russell, Judge Field and Judge

Widener.

For the Court,

/s/ Wiiu1am K. Suarez, II

Clerk

8a

EXHIBIT C

MEMORANDUM AND RECOMMENDATIONS ON

PRETRIAL MOTIONS

This action was before the court upon various pretrial

motions made by the defendant Gilliam Raymond Coats.

Responses and briefs have been filed by counsel for both

parties, and oral argument was heard at New Bern on

September 18 and 19, 1978.

MOTION TO SUPPRESS EVIDENCE AND TO EXCLUDE

TESTIMONY OF PAUL JEROME BRESLIN

In this motion the defendant asserts that the United

States Coast Guard Cutter Alert made a warrantless and

otherwise illegal boarding, search, and seizure of the vessel

Lady Ellen and its cargo of marihuana in Mona Pass in

the Caribbean sea on the evening of January 26, 1978, and

that all evidence and statements obtained as a result

thereof should be suppressed because in violation of the

defendant’s Fourth Amendment right to be free from un-

reasonable searches and seizures.

At the outset the defendant must establish his standing

to challenge the seizures and searches attacked by his

motion. It must be noted here that the same searches and

seizures at issue here were the subject of identical motions

made by the other defendants in this case which were ar-

gued and determined following a hearing at Raleigh in

May, 1978. The decisions of this court on those motions

were filed June 16 and June 20. The court determined that

the only defendants involved in those motions who had

standing to challenge the search and seizure of the Lady

Ellen and the marihuana were defendants Harper and

Rowe, who were present on board the Lady Ellen and in

custody of the vessel and its cargo of marihuana. The court

found that the only defendants who had standing to con-

test the searches and seizures made at Back Creek were:

9a

(1) those defendants who were legitimately on the prem-

ises and in the house; (2) those who specifically alleged

a proprietary or possessory interest in the premises or in

any article seized; (3) those who were victims of any

search, or, (4) those against whom a search was directed.

In addition, the defendants who were present on board

the Lady Ellen when it was again seized in the inland

waters off Back Creek were determined to have standing to

assert a Fourth Amendment right.

Defendant Coats at this time has not offered any evi-

dence or asserted any claim which would confer standing

upon him of the same nature as those defendants who

established standing in the earlier hearing. The only evi-

dence defendant Coats presented at this hearing to estab-

lish standing was by calling as a witness Paul Jerome

Breslin, master of the Lady Ellen and the informant who

cooperated with the government in making the controlled

delivery of the marihuana at Back Creek, and by introduc-

ing into evidence several written statements given by

Breslin to government officers on board the cutter Alert.

Breslin answered an advertisement in a boating magazine

concerning a boat for sale, which led him to a meeting with

defendant Coats in Morehead City at which time Breslin

said he purchased the boat from Coats. As a result of that

meeting Coats later telephoned Breslin several times at

his home in Titusville, Florida urging him to accept Coats’

offer to take a boat a Columbia and bring back some mari-

huana to the U.S. Coats offered Breslin a large sum of

money for Breslin to command the boat which was to be

obtained as soon as possible. At Coats’ direction Breslin

engaged defendants Harper and Rowe to act as crew when

a boat was obtained. Breslin testified that Coats told him

that he would obtain a fishing type vessel suitable for the

operation and Coats later took Breslin to the Thompson

dock at Bayou LaBatre, Alabama and showed him the ves-

sel Lady Ellen. Coats advanced $4,000.00 each to Breslin,

Harper, and Rowe. Breslin said he also received $2,000.00

10a

from “Sam,” who is defendant Govus. Breslin saw Coats

pay for the fuel for the vessel, and Coats also paid for the

provisions. Coats directed Breslin in all of their move-

ments in the days preceding the voyage. He delivered four

heavy suitcases to the Lady Ellen and placed them in hid-

ing, saying they were full of one hundred dollar bills.

Coats told Breslin he would pay him after the marihuana

was imported. Breslin’s statement, given on the Alert,

said he was offered a hundred thousand dollars, but Bres-

lin testified that it was actually one hundred and fifty

thousand dollars. Coats gave Breslin explicit instructions

for keeping in radio contact during the voyage, and fur-

nished code words to use in sending and receiving instruc-

tions from land such as where to rendezvous for unload-

ing. Coats told Breslin the how, where, and when Breslin

would be paid. On cross-examination by counsel for the

government, Breslin could not say that he knew who owned

the Lady Ellen or the marihuana. Coats did testify that

from his experience with Coats and “Sam” (Govus) that

Govus was the “overboss,” and Coats was over the boat

and crew. Breslin said that Coats told him that he (Coats)

was an employee.’ D.E.A. agent Edward R. Hinchman tes-

tified to the effect that the information he had received

from other officers was that defendant Coats had a con-

trolling interest in the Lady Ellen and the marihuana. A

similar evidentiary issue was presented and discussed in

the decisions on the motions at the previous hearing, and

the court concluded that hearsay evidence of that kind is

not competent to prove the substantive fact of proprietary

or possessory interest, and therefore this evidence does not

support the defendant’s claim of standing by itself.

* Coats further told Breslin that an employee of the organization

could not have a financial interest in the cargo of marihuana.

Breslin’s other testimony of Coats’ obtaining the boat, paying the

expenses, and giving orders for its operation could permit as likely

an inference that he was an agent, as that he was an owner.

lla

The next contention in the defendant’s motion to sup-

press and exclude evidence is directed toward the search

and seizure of evidence at Back Creek, and on that ques-

tion the only evidence introduced by the government was

the transcript of testimony given by Drug Enforcement

Administration agent Hinchman at the May hearing in

this same action, after which government counsel tendered

the witness to counsel for the defendant for cross-examina-

tion. On this aspect of the case, the first question to be

decided is whether the defendant has standing to challenge

any searches and seizures at Back Creek. D.E.A. agent

Hinchman at this hearing did not present any testimony

different from or in addition to his testimony at the earlier

hearing, except the hearsay testimony referred to above.

Government counsel stated that the only evidence seized at

Back Creek which it might offer against defendant at the

trial was a notebook, government exhibit 29 from the pre-

vious hearing, which was again identified by Hinchman

and introduced into evidence of the hearing. Hinchman

said that he did not know who was the owner of the note-

book or prepared it, but it was found in a briefcase in the

left front bedroom in the house searched on February 5,

1978. There was no evidence that Coats had any interest

in the notebook or any other property in the house, and he

asserted no possessory or proprietary interest in any other

property on the premises or at the dock. His only relevant

contention is that of a controlling, or proprietary, or pos-

sessory interest in the Lady Ellen and the marihuana based

upon the hearsay testimony already discussed. Therefore,

based upon all of the evidence presented, the court finds

that the defendant Coats did not establish standing to

challenge the searches and seizures at Back Creek or on

the Lady Ellen. That precludes the necessity of making

specific findings as to the validity of those searches and

seizures, but the court does find from the evidence at this

hearing that the seizures and searches were valid, just as

the court found based upon the evidence at the earlier

hearing.

EC TS SOE SOF SO Pa ESSERE OS

12a

The reasoning and authorities relied upon by the court

in reaching that decision are set forth at length in the

court’s opinions filed in June in this action. Defendant

argues in his brief that the authorities referred to therein

support his claim of standing, but the court is satisfied

that the decisions relied upon in its previous opinion on

this question are the controlling decisions.

Accordingly, the court finds that the defendant does not

have standing and that irrespective of the standing ques-

tion, all of the searches and seizures and the boarding of

the Lady Ellen and the search and seizure of evidence

thereon were entirely valid. I recommend that the defend-

ant’s motion to suppress evidence and exclude Breslin’s

testimony be denied.

MOTION TO DISMISS INDICTMENT CAUSED BY

PREINDICTMENT DELAY

The defendant bases his motion on the grounds that the

government possessed enough information about Gilliam

Raymond Coats and his involvement in this offense on

January 28, 1978 when Breslin gave government agents a

statement setting forth Coats’ actions, statements and

meetings in planning the operation, and that this informa-

tion in the possession of the government was sufficient to

establish probable cause to present a bill of indictment to

the grand jury on February 13, 1978 when the fourteen

other defendants in the case were indicted. Coats was

named as an unindicted coconspirator in that indictment.

Coats asserts that the government waited six months from

the time it received the information from Breslin before

indicting him, and five months from the time of the indict-

ment of the other defendants, and defendant alleges in his

motion that the sole purpose of the delay in indicting him

was an intentional device by the government to gain tacti-

cal advantage over the defendant or to harass him. Defend-

ant asserts that he has been prejudiced by this delay be-

13a

cause witnesses he may present in his defense may have

difficulty in recalling and remembering specific days when

defendant was in their presence. Defendant asserts that

there is no satisfactory or justifiable reason for the gov-

ernment’s failure to indict him at the same time as the

others.

The government’s response to the motion recognizes that

delays in indicting a defendant can violate his due process

rights if the delays are caused by the government for the

purpose of gaining a tactical advantage and the delays

result in actual prejudice to the defendant. The court notes

that the cases cited by the defendant in its response are

correct in stating that both deliberate and substantial pre-

judice must be shown in order to establish a violation of

due process. At this hearing the defendant did not present

any evidence that the delay in his indictment was caused

by the government with the intention of gaining any tacti-

cal advantage or with the intention to harass the defend-

ant, or that in fact the defendant suffered any prejudice

whatsoever, other than the conclusional argument referred

to above.

Government counsel also stated at the hearing that con-

trary to defendant’s contention that the delay was inten-

tional and for purpose of advantage, a later and separate

trial for this defendant actually imposes an increased bur-

den, time, effort and expense which would be avoided by

a joint trial with the other defendants. There would be no

rational reason for the government to delay this indict-

ment for other than the proper purpose of obtaining suffi-

cient reliable evidence to present to the grand jury. Gov-

ernment counsel stated that it would be improper and un-

wise to present a bill of indictment to the grand jury based

upon Breslin’s statement alone until the government was

able to obtain corroborating evidence to support Breslin’s

statement to justify an indictment. The only evidence in

the hearing relating to a reason for the delay was Bres-

l4a

lin’s testimony that the Assistant United States Attorney

told him that he would not indict Coats upon Breslin’s

statement alone, and that this statement was made to Bres-

lin within two days prior to his testifying at the hearing.

Consistent with that testimony was the Assistant United

Staates Attorney’s statement to the court that he had

wanted to obtain corroborating evidence to substantiate

Breslin’s statements about Coats before submitting an in-

dictment to the grand jury.

Based upon that evidence, the court is convinced that

the delay in indicting Coats was not for arv motive or in-

tention on the part of the government to gain an advantage

or to harass Coats. The court is inclined to believe, that,

for reasons of sound judgment and based on common sense

and practical experience, the indictment was deferred until

sufficient corroborating evidence could be obtained. The

court finds that there is no merit to the defendant’s claim

regarding delay or any lack of good faith on the part of

the government, and I conclude that the motion should be

denied, and so recommend.

MOTION TO STRIKE AND SUPPRESS USE OF ALIASES

The defendant shows that the indictment charges de-

fendant Coats with using the aliases Jack Long and Bill

Walters, and asserts that any evidence concerning the use

of such aliases was obtained as a result of illegal searches

and seizures and should therefore be stricken from the in-

dictment and suppressed at the trial as being tainted by

the illegality of the foregoing. Defendant further argues

that the use of such aliases is inherently prejudicial and a

violation of defendant’s due process right to a fair trial.

The government responded that the information as to

the use of these aliases came from Breslin in his statements

to the government that they were used in the course of the

alleged conspiracy. In the earlier hearing upon the cor-

responding motion by other defendants, this court decided

15a

that the government’s use of aliases in the indictment was

based upon reliable information that they had been used

by the defendants and that the use of aliases in the indict-

ment does not deny a defendant any due process rights to

a fair trial. That decision is valid in this case. Breslin’s

testimony in this hearing supports a finding that the use

of the aliases in this indictment was justified and proper.

The court finds that the use of aliases in the indictment

here does not deny defendant a fair trial, and recommends

that the motion be denied.

Summarizing, the court recommends that all of the fore-

going motions by the defendant Coats should be denied.

This 22nd day of September, 1978.

/s/ Logan D. Howe tt,

Logan D. Howell

United States Magistrate

l6a

EXHIBIT C

ORDER

This case is presently before the courts on defendant’s

exceptions to the memorandum and recommendations filed

by the Honorable Logan D. Howell, United States Magis-

trate, on September 22, 1978 with respect to motions to

suppress evidence and to exclude testimony of the witness

Breslin, to dismiss the indictment on grounds of pre-in-

dictment delay and to strike and suppress the use by the

government of aliases by the defendant. The court’s fa-

miliarity with the case dates from May, 1978 when similar

motions were filed by other defendants in the case relating

to the search and seizure of the vessel, Lady Ellen. The

motions of those defendants were found by the Magistrate

to be non-meritorious, and this court after a careful re-

view of the record concluded that the Magistrate’s recom-

mendations were proper and denied the motions.

The defendant here has advanced no new reasons in

support of his motion to suppress, and the court has again

concluded that the Magistrate’s recommendation that the

motion be denied for lack of standing on the part of the

defendant is proper and that the motion should be and is

hereby denied.

The Magistrate’s conclusion that the government’s delay

in indicting this defendant was not for any motive or in-

tention on the part of the government to gain an advantage

or to harass him is supported by substantial evidence, and

indeed there is no appreciable evidence to the contrary.

The Magistrate’s findings and conclusions are therefore

adopted by the court and defendant’s motion to dismiss

for pre-indictment delay is denied.

Defendant’s motion to strike and suppress use of aliases

was found by the Magistrate to be without merit, and this

court’s review of the record has led it a similar conclusion.

17a

The court therefore adopts the Magistrate’s findings and

recommendations and defendant’s motion to strike and sup-

press the use of aliases is also denied.

/s/ F. T. Dupres, Jr.

¥. T. Dupree, Jr.

United States District Judge

October 2, 1978.

18a

EXHIBIT D

MAGISTRATE’S RECOMMENDATIONS

This matter having been assigned to the undersigned by

The Honorable F. T. Dupree, Jr., United States District

Judge, to take evidence upon the defendant’s motion chal-

lenging the jury selection plan of the United States Dis-

trict Court for the Eastern District of North Carolina,

and for the Magistrate to make a memorandum of recom-

mendations herein.

That hearing was conducted in the United States Court-

house in New Bern, North Carolina, on the 28th day of

September 1978 in which the defendant, Gilliam Raymond

Coats was represented by L. Patten Mason, Esquire, and

the United States of America was represented by Herman

E. Gaskins, Jr., Assistant United States Attorney, and

after the taking and hearing of testimony and presenta-

tion of evidence and considering legal memoranda of coun-

sel, the Magistrate makes the following recommendations

as to findings of fact:

PROPOSED FINDINGS OF FACT

1. That the defendant is charged by grand jury indict-

ment filed July 17, 1978, with conspiracy to import mari-

juana in . olation of Title 21, U.S.C., Sections 952(a) and

960(a) (1).

2. That by motion filed on August 7, 1978, and supple-

mental motion filed September 20, 1978, the defendant

challenged the selection process of grand and petit juries

in the Eastern District of North Carolina.

3. That the Plan for random jury selection of the East-

ern District and modi -ations thereto provide that the

names of prospective jurors shall be publicly selected at

random from the lists of all persons actually voting in the

last General Election held in the political subdivisions of

19a

the counties within the respective divisions in which votes

were cast for the President and Vice President of the

United States. The Plan prescribes that alternate sources

in addition to the voter lists may be used to determine the

names of prospective jurors. The Plan authorizes the Clerk

of Court to manage the jury selection process. The present

master jury wheel in use in the Eastern District was ran-

domly filled from the lists of actual voters listed on the

records of the counties within each division of the Eastern

District. No other source or sources of names were used.

In the 1976 General Election of the President and Vice

President of the United States there were 544,444 actual

voters in the Eastern District.

4. That the defendant offered expert testimony based

upon random sample from information obtained from the

prospective jurors questionnaire as to jury representation

analysis based upon categorization of race, occupation, age,

and other factors in comparison of the same categories as

applicable to the 1970 census data for the various divisions

of the Eastern District. Based upon the 1970 census data,

the defendant’s expert testimony purported to show some

under-representation of the following categories: Blacks,

blue collar workers, uneducated, and persons between the

ages of 18 and 34.

0. Although while evidence was offered as to the sta-

tistical confidence range and reliability of the computa-

tions based upon this data, the reliability and credibility

of the statistical sources of information could not be shown.

PROPOSED CONCLUSIONS OF LAW

1. The Random Jury Plan and its implementation in the

Kastern District conforms with the National Jury and

Selection Act of 1968 (28 USC 1861 et seq.)

2. The defendant has failed to show that there has been

a substantial failure to comply with the provisions of the

20a

Jury Selection and Service Act in selecting the Grand and

Petit juries in the Eastern District of North Carolina.

Now, THEREFORE, in accordance with the foregoing pro-

posed findings of fact and proposed conclusions of law, it

is the Magistrate’s recommendation that the Court enter

the following:

PROPOSED ORDER

It is hereby Orpgerep, Apsupcep, and Decreegp, that the

defendant’s motion challening the Jury Selection Plan of

the United States District Court for the Eastern District

of North Carolina and the relief prayed for therein be and

the same are hereby denied.

It is FurtHer Orperep that the Clerk of this Court serve

a copy of this order on all counsel of record.

These recommendations respectively submitted this 28th

day of September, 1978, at 8:30 o’clock P.M.

/s/ Cuarutes K. McCorrer, Jr.

Charles K. McCotter, Jr.

United States Magistrate

2la

EXHIBIT D

ORDER

This case is now before the court on defendant’s motion

challenging the jury selection plan of this court. Defend-

ant’s motion to dismiss the indictment or to stay further

proceedings on the ground that the jury selection plan of

the district does not comply with the Constitution and with

the provisions of 28 U.S.C. § 1861, et seq., has been heard

by United States Magistrate Charles K. McCotter, Jr., who

filed his proposed findings of fact and recommendations

that the defendant’s motion be denied on September 28,

1978.

Defendant’s motion is based on the same grounds as

have been advanced in support of similar motions pre-

sented to the court in other cases in prior years. In those

cases the court has found the jury selection plan of the

district to be inconformity with law, and appeals from this

court’s rulings to the Fourth Circuit have not heretofore

been successful. The plan itself, of course, was required

by law to be approved by the Judicial Council of the

Fourth Circuit, and it has always had that approval.

While it is certainly true that the plan results in actual

operation to underrepresentation of certain elements of

the citizenry who would otherwise be eligible for jury

service, this results not from any systematic exclusion of

such elements but rather from the failure of substantial

numbers of persons in those elements to go to the polls

and vote on election day. Since the law recognizes voter

lists as a proper source of names to be drawn for jury

service, and since the plan lawfully uses the voter lists as

the source for obtaining jurors, the court is of opinion

that the Magistrate’s proposed findings of fact and con-

clusions are proper and should be adopted by the court.

Accordingly, it is now

22a

OrpverEp that defendant’s motion to dismiss the indict-

ment on the ground that the jury selection plan in this

district violates the Constitution and statutes of the United

States be and the same is hereby denied.

/s/ F. T. Dupres, JR.

F. T. Dupree, Jr.

United States District Judge

October 2, 1978.

23a

EXHIBIT E

14 U.S.C. 89(a)

“The Coast Guard may make inquiries, 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, ccmmissioned, 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. When from

such inquiries, examination, inspection, or search it

appears that a breach of the laws of the United States

rendering a person liable to arrest is being, or has

been committed, by any person, such person shall be

arrested or, if escaping to shore, shall be immediately

pursued and arrested on shore, or other lawful and

appropriate action shall be taken; or, if it shall appear

that a breach of the laws of the United States has

been committed so as to render such vessel, or the

merchandise, or any part thereof, on board of, or

brought into the United States by, such vessel, liable

to forfeiture, or so as to render such vessel liable to

a fine or penalty and if necessary to secure such fine

or penalty, such vessel or such merchandise, or both,

shall be seized.”

24a

EXHIBIT F

28 U.S.C. § 1861. Declaration of policy

It is the policy of the United States that all litigants in

Federal courts entitled to trial by jury shall have the right

to grand and petit juries selected at random from a fair

cross section of the community in the district or division

wherein the court convenes. It is further the policy of the

United States that all citizens shall have the opportunity

to be considered for service on grand and petit juries in

the district courts of the United States, and shall have an

obligation to serve as jurors when summoned for that

purpose.

§ 1862. Discrimination prohibited

No citizen shall be excluded from service as a grand or

petit juror in the district courts of the United States on

account of race, color, religion, sex, national origin, or

economic status.

§ 1863. Plan for random jury selection

(a) Each United States district court shall devise and

place into operation a written plan for random selection of

grand and petit jurors that shall be designed to achieve the

objectives of sections 1861 and 1862 of this title [28 USCS

§§ 1861, 1862], and that shall otherwise comply with the

provisions of this title. The plan shall be placed into opera-

tion after approval by a reviewing panel consisting of the

members of the judicial council of the circuit and either the

chief judge of the district whose plan is being reviewed

or such other active district judge of that district as the

chief judge of the district may designate. The panel shall

examine the plan to ascertain that it complies with the

provisions of this title. If the reviewing panel finds that

the plan does not comply, the panel shall state the par-

ticulars in which the plan fails to comply and direct the

district court to present within a reasonable time an alter-

25a

native plan remedying the defect or defects. Separate

plans may be adopted for each division or combination of

divisions within a judicial district. The district court may

modify a plan at any time and it shall modify the plan

when so directed by the reviewing panel. The district court

shall promptly notify the panel, the Administrative Office

of the United States Courts, and the Attorney General of

the United States, of the initial adoption and future modi-

fications of the plan by filing copies therewith. Modifica-

tions of the plan made at the instance of the district court

shall become effective after approval by the panel. Each

district court shall submit a report on the jury selection

process within its jurisdiction to the Administrative Office

of the United States Courts in such form and at such times

as the Judicial Conference of the United States may speci-

fy. The Judicial Conference of the United States may, from

time to time, adopt rules and regulations governing the

provisions and the operation of the plans formu.ated under

this title.

(b) Among other things, such plan shall—

(1) either establish a jury commission, or authorize

the clerk of the court, to manage the jury selection

process. If the plan establishes a jury commission, the

district court shall appoint one citizen to serve with

the clerk of the court as the jury commission: Pro-

vided, however, That the plan for the District of

Columbia may establish a jury commission consisting

of three citizens. The citizen jury commissioner shall

not belong to the same political party as the clerk

serving with him. The clerk or the jury commission,

as the case may be, shall act under the supervision

and control of the chief judge of the district court or

such other judge of the district court as the plan may

provide. Each jury commissioner shall, during his

tenure in office, reside in the judicial district or divi-

sion for which he is appointed. Each citizen jury com-

26a

missioner shall receive compensation to be fixed by

the district court plan at a rate not to exceed $50 per

day for each day necessarily employed in the per-

formance of his duties, plus reimbursement for travel,

subsistence, and other necessary expenses incurred by

him in the performance of such duties. The Judicial

Conference of the United States may establish stand-

ards for allowance of travel, subsistence, and other

necessary expenses incurred by jury commissioners.

(2) specify whether the names of prospective jurors

shall be selected from the voter registration lists or

the lists of actual voters of the political subdivisions

within the district or division. The plan shall prescribe

some other source or sources of names in addition to

voter lists where necessary to foster the policy and

protect the rights secured by sections 1861 and 1862

of this tile [28 USCS §§ 1861, 1862]. The plan for the

District of Columbia may require the names of pros-

pective jurors to be selected from the city directory

rather than from voter lists. The plans for the districts

of Puerto Rico and the Canal Zone may prescribe some

other source or sources of names of prospective jurors

in lieu of voter lists, the use of which shall be con-

sistent with the policies declared and rights secured

by sections 1861 and 1862 of this tile [28 USCS | , 1861,

1862].

(3) specify detailed procedures to be followed by

the jury commission or clerk in selecting names from

the sources specified in paragraph (2) of this subsec-

tion. These procedures shall be designed to ensure the

random selection of a fair cross section of the persons

residing in the community in the district or division

wherein the court convenes. They shall ensure that

names of persons residing in each of the counties,

parishes, or similar political subdivisions within the

judicial district or division are placed in a master jury

27a

wheel; and shall ensure that each county, parish, or

similar political subdivision within the district or divi-

sion is substantially proportionally represented in the

master jury wheel for that judicial district, division,

or combination of divisions. For the purposes of deter-

mining proportional representation in the master jury

wheel, either the number of actual voters at the last

general election in each county, parish, or similar poli-

tical subdivision, or the number of registered voters

if registration of voters is uniformly required through-

out the district or division, may be used.

(4) provide for a master jury wheel (or a device

similar in purpose and function) into which the names

of those randomly selected shall be placed. The plan

shall fix a minimum number of names to be placed

initially in the master jury wheel, which shall be at

least one-half of 1 per centum of the total number of

persons on the lists used as a source of names for

the district or division; but if this number of names

is believed to be cumbersome and unnecessary, the

plan may fix a smaller number of names to be placed

in the master wheel, but in no event less than one

thousand. The chief judge of the district court, or

such other district court judge as the plan may pro-

vide, may order additional names to be placed in the

master jury wheel from time to time as necessary.

The plan shall provide for periodic emptying and

refilling of the master jury wheel at specified times,

the interval for which shall not exceed four years.

(5) specify those groups of persons or occupational

classes whose members shall, on individual request

therefor, be excused from jury service. Such groups or

classes shall be excused only if the district court finds,

and the plan states, that jury service by such class or

group would entail undue hardship or extreme incon-

venience to the members thereof, and excuse of mem-

28a

bers thereof would not be inconsistent with sections

1861 and 1862 of this title [28 USCS $4 1861, 1862].

(6) specify those groups of persons or occupational

classes whose members shall be barred from jury

service on the ground that they are exempt. Such

groups or classes shall be exempt only if the district

court finds, and the plan states, that their exemption

is in the public interest and would not be inconsistent

with sections 1861 and 1862 of this title [28 USCS

§§ 1861, 1862]. The plan shall provide for exemption

of the following persons: (i) members in active service

in the Armed Forces of the United States; (ii) mem-

bers of the fire or police departments of any State,

district, territory, possession, or subdivision thereof;

(iii) public officers in the executive, legislative, or

judicial branches of the Government of the United

States, or any State, district, territory, or possession

or subdivision thereof, who are actively engaged in

the performance of official duties.

(7) fix the time when the names drawn from the

qualified jury wheel shall be disclosed to parties and

to the public. If the plan permits these names to be

made public, it may nevertheless permit the chief

judge of the district court, or such other district court

judge as the plan may provide, to keep these names

confidential in any case where the interests of justice

so require.

(8) specify the procedures to be followed by the

clerk or jury commission in assigning persons whose

names have been drawn from the qualified jury wheel

to grand and petit jury panels.

(c) The initial plan shall be devised by each district court

and transmitted to the reviewing panel specified in sub-

section (a) of this section within one hundred and twenty

days of the date of enactment of the Jury Selection and

29a

Service Act of 1968 [Mar. 27, 1968]. The panel shall

approve or direct the modification of each plan so sub-

mitted within sixty days thereafter. Each plan or modi-

fication made at the direction of the panel shall become

effective after approval at such time thereafter as the

panel directs, in no event to exceed ninety days from the

date of approval. Modifications made at the instance of

the district court under subsection (a) of this section shall

be effective at such time thereafter as the panel directs, in

no event to exceed ninety days from the date of modifi-

cation.

(d) State, local, and Federal officials having custody,

possession, or control of voter registration lists, lists of

actual voters, or other appropriate records shall make

such lists and records available to the jury commission or

clerks for inspection, reproduction, and copying at all rea-

sonable times as the commission or clerk may deem neces-

sary and proper for the performance of duties under this

title. The district courts shall have jurisdiction upon appli-

cation by the Attorney General of the United States to

compel compliance with this subsection by appropriate

process.

§ 1867. Challenging compliance with selection procedures

(a) In criminal cases, before the voir dire examination

begins, or within seven days after the defendant discovered

or could have discovered, by the exercise of diligence, the

grounds therefor, whichever is earlier, the defendant may

move to dismiss the indictment or stay the proceedings

against him on the ground of substantial failure to comply

with the provisions of this title in selecting the grand or

petit jury.

(b) In criminal cases, before the voir dire examination

begins, or within seven days after the Attorney General

of the United States discovered or could have discovered,

by the exercise of diligence, the grounds therefor, which-

30a

ever is earlier, the Attorney General may move to dismiss

the indictment or stay the proceedings on the ground of

substantial failure to comply with the provisions of this

title in selecting the grand or petit jury.

(c) In civil cases, before the voir dire examination begins,

or within seven days after the party discovered or could

have discovered, by the exercise of diligence, the grounds

therefor, whichever is earlier, any party may move to stay

the proceedings on the ground of substantial failure to

comply with the provisions of this title in selecting the

petit jury.

(d) Upon motion filed under subsection (a), (b), or (c)

of this section, containing a sworn statement of facts which,

if true, would constitute a substantial failure to comply

with the provisions of this title, the moving party shall be

entitled to present in support of such motion the testimony

of the jury commission or clerk, if available, any relevant

records and papers not public or otherwise available by

the jury commissioner or clerk, and any other relevant

evidence. If the court determines that there has been a

substantial failure to comply with the provisions of this

title in selecting the grand jury, the court shall stay the

proceedings pending the selection of a grand jury in con-

formity with this title or dismiss the indictment, whichever

is appropriate. If the court determines that there has been

a substantial failure to comply with the provisions of this

title in selecting the petit jury, the court shall stay the

proceedings pending the selection of a petit jury in con-

formity with this title [28 USCS § 1867].

(e) The procedures prescribed by this section shall be

the exclusive means by which a person accused of a Federal

crime, the Attorney General of the United States or a

party in a civil case may challenge any jury on the ground

that such jury was not selected in conformity with the

provisions of this title. Nothing in this section shall pre-

clude any person or the United States from pursuing any

3la

other remedy, civil or criminal, which may be available

for the vindication or enforcement of any law prohibiting

discrimination on account of race, color, religion, sex, na-

tional origin or economic status in the selection of persons

for service on grand or petit juries.

(f) The contents of records or papers used by the jury

commission or clerk in connection with the jury selection

process shall not be disclosed, except pursuant to the

district court plan or as may be necessary in the prepara-

tion or presentation of a motion under subsection (a), (b),

or (c) of this section, until after the master jury wheel

has been emptied and refilled pursuant to section 1863(b)

(4) of this title [28 USCS §1863(b)], and all persons

selected to serve as jurors before the master wheel was

emptied have completed such service. The parties in a case

shall be allowed to inspect, reproduce, and copy such rec-

ords or papers at all reasonable times during the prepara-

tion and pendency of such a motion. Any person who dis-

closes the contents of any record or paper in violation of

this subsection may be fined not more than $1,000 or im-

prisoned not more than one year, or both.