Appendix — Dill v. United States

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NO ALEXANDER L. STEVAS,

. CLERK

Tag

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

CREIG LEE DILL,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

JOSEPH BEELER, Member of the

Bar of the Supreme Court

and

BARBARA GREEN

Joseph Beeler, P.A.

Counsel for Petitioner

Suite 300

3050 Biscayne Boulevard

Miami, Florida 33137

(305) 576-3050

APPENDIX

Table of Contents

Opinion, United States Court

of Appeals For the First

Circuit, January 25, 1983. .

Appendix I to Opinion .. s+ -

Appendix II to Opinion... -

Judgment, United States Court

of Appeals For the First

Circuit, January 25, 1983. .

Order of Court, United States

Court of Appeals for the

First Circuit, denying

petition for rehearing

with suggestion for re-

hearing en banc, March 9,

Bee 6 6 a be eo 8 4 6 8 8

Order, Supreme Court of the

United States, extending

time to petition for cer-

tiorari, April 29,

1983 * - * * * * * * *

Petitioner's Request for

Discovery at Trial...

United States Constitution,

Amendment V & VI «+s «

18 U.S.C... § 3500, The

Jencks AGG .- ee © © © @ @

Federal Rules of Evidence,

Rules 401, 402, 403. « -

la

APPEALS FROM THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

{(Hon. Edward T. Gignoux,

U.S. District Judge)]

Before

Timbers,* Senior Circuit Judge,

Campbell and Breyer, Circuit Judges.

Michael Avery, with whom John

P. Ward was on brief, for appellant David

Keith Hensel.

Edward T.M. Garland, with whom

Steven H. Sadow, and Garland, Nuckolls

& Catts, P.C. were on brief, for appel-

lants Larry Ronald Duke and Robert Curtis

Hubbard.

* Of the Second Circuit, sitting by designation.

2a

David C. Pomeroy, with whom

Wheeler, Pomeroy & Snitger was on brief,

for appellant Charles Thad Standley.

Bruce H. Morris, with whom

Devine & Morris, and Melvin Gutterman

were on brief, for appellant Gerald Wayne

Case.

Mark J. Kadish, with whom

Rosalyn S.Kadish, and Kadish, Davis &

Brofman, P.C. were on brief, for appel-

lant John Jacob Wells.

Joseph Beeler, with whom Barbara

Green was on brief, for appellant Creig

Lee Dill.

Margaret D. McGaughey, Assis-

tant United States Attorney, with whom

Richard S. Cohen, United States Attorney,

was on brief, for appellee.

3a

Breyer, Circuit Judge.

We here consider appeals from several

defendants convicted by jury trial of

participating in a conspiracy to import

and distribute marijuana. Rather than

write seperate opinions in these several

cases, we here consolidate them and treat

all the appellants’ claims in one

opinion. We first set forth the facts

upon which many of the defandants'

Claims depend. Our description is based

primarily upon that of the Maine federal

district court found in 509 F. Supp. 1364

and 509 F. Supp. 1376. We then consider

the claims that raise the most difficult

legal issues--those of defendant Hensel-

and we follow that analysis with a

consideration of the claims of the other

defendants. We affirm all of the convic-

tions.

4a

I

The Facts

On the morning of May 3l,

1980, after a 24-hour chase on the

high seas, a Canadian vessel stopped a

65-foot Honduran shrimp boat 65 miles

southeast of Nova Scotia. On board the

ship the police agents found defandant

Hensel, a crew of eight Colombians, and

18.7 tons of marijuana. Three days later

Maine state police and federal Drug

Enforcement Administraion (DEA) agents

raided the secluded cove on the coast of

Maine where Hensel was to have delivered

his cargo. They arrested several of the

defendants and gathered the evidence at

issue. We shall seperately describe the

events at sea and on land.

5a

A

At Sea

On May 28, 1980, a local

fishing vessel, the J. BRADLEY O'HARA,

spotted an unfamilar ship 90 miles

southeast of Rockland, Maine. The ship,

the M/V PATRICIA, did not seem to be

engaged in fishing. Two days later, the

PATRICIA approached the O'HARA and

Hensel, captain of the PATRICIA, asked

permission to use the O'HARA's radio to

contact a “partner.” Hensel explained

that his ship's radio batteries were dead

and that its generator did not work. The

crew of the O'HARA assured Hensel that he

could use the radio after they had

hauled in their fishing nets. During

that time, however, the O'HARA's captain

became suspicious and sent the Coast

Guard a message that the PATRICIA was

disabled. When the PATRICIA again

6a

approached the O'HARA, the captain told

Hensel that he had contacted the Coast

Guard, and he refused to let Hensel use

his radio. "I told him that we knew what

he was up to," the mate of the O'HARA

testified, “and we didn't want any part

of it." Hensel asked that the call be

cancelled, but the Coast Guard had

already dispatched aid. Hensel then

asked the mate of the O'HARA to place

three telephone calls. The O'HARA

however, simply relayed the numbers to

the Coast Guard.

The Coast Guard sent at least

one plane and the cutter RELIANCE to the

scene. The plane piloted by Lt. Luginbuhl

arrived at about 11:25 and found the

PATRICIA lying dead in the water and

flying no flag. Lt. Luginbuhl tried

unsuccessfully to communicate with

the PATRICIA by radio. After he had made

7a

several low passes over the ship, the

PATRICIA got underway and began sailing

toward the northeast.

Lt. Luginbuhl asked the El Paso

Information Center computer to check the

status of the PATRICIA and found that a

ship named the PATRICIA (later discovered

to be a different ship) was suspected of

smuggling drugs. The Coast Guard ordered

the lieutenant to follow the PATRICIA

until the RELIANCE arrived; it also

notified Agent Drinan of the DEA in Maine

and the Canadian Coast Guard of the

situtation.

Lt. Luginbuhl continued

to track the PATRICIA as it headed toward

Nova Scotia in the northeast. After

further unsuccessful efforts to commun-

icate with the ship, he dropped a message

block ordering the PATRICIA to turn

around so that officers of the RELIANCE

8a

could board the ship. The PATRICA,

however, maintained its course. By 3:00

p.-m., a Canadain Coast Guard arrived and

at the request U.S. Coast Guard relieved

Lt. Luginbuhl. This plane, too, tried to

communicate with the PATRICIA by message

block, and it tried to divert the ship

from its course by using smoke floats.

Nevertheless, the PATRICIA continued

toward Nova Scotia. After about four

hours, a U.S. Coast Guard plane resumed

tracking the PATRICIA, but it was no more

able than its predecessors to communicate

with the PATRICIA or to turn it from its

course.

By 7:00 p.m. it became clear

that the PATRICIA would escape into

Canadian waters before the RELIANCE

could intercept it. The Candaian

authorities accordingly began their

preparation to intercept the PATRICIA,

9a

and they dispatched their ship LOUIS-

BOURG. They told the DEA they would

board the PATRICIA if it came within

Canadian waters, and Agent Drinan

encouraged them to do so.

Meanwhile, the DEA discovered

that two of the telephone numbers Hensel

had asked the O'HARA to call were listed

in the names of Florida men suspected of

drug crimes. When Agent Drincan learned

that the third number was for a Georgia

exchange, he told the Coast Guard that

the DEA had*been monitoring a suspected

drug ring on tje Jaine*cocst which used

Georgia and Florida vehicles. American

agents maintained contact with the

Canadians throughout the night.

By 5:11 a.m. the Canadian

ship LOUISBOURG was within sight of the

PATRICIA, and by 6:00 a.m. the American

Ship REIANCE had arrived. Both ships

10a

tried to communicate with the PATRICIA,

using not only radio but flag hoists, a

loud hailer, and flashing lights, but

neither ship succeeded. The PATRICIA

appeared badly rusted and was riding

below its waterline. It displayed

no nets or fishing gear and apparently

contained substantial electronic equip-

ment. Although it had the name PATRICIA

on the bridgewing, it showed no homeport

and no identification numbers on the

hull. It had, by this time, hoisted a

Honduran flag.

The RELIANCE notified the

LOUISBOURG that since the PATRICIA was a

Honduran ship, the RELIANCE officers

could not board it without first obtain-

ing the permission of the State Depart-

ment and the government of Honduras--a

process it expected to take 24 to 48

hours. The Canadians, however, believed

lla

that they could board the PATRICIA as

soon as it came within 21 miles of the

Canadian coast. Soon after 9:00 a.m.

they told the RELIANCE that, if the

RELIANCE did not act, they would. The

RELIANCE in turn agreed to let the

Canadians land a helicopter on board it

if necessary, assured them that it would

protect the LOUISBOURG, and apparently

manned its fifty-caliber machine gun.

The Canadians swung the

LOUISBOURG around the PATRICIA at high

speed in an attempt to stop it with its

wake. When that failed, they fired a

12-gauge shotgun across the PATRICIA's

bow. The sailors aboard the PATRICIA

ducked, and the Canadians then aimed at

the wheelhouse where three or four men

apparently stood. The Canadians blasted

the wheelhouse twice, and the PATRICIA

came to a halt.

l2a

Three armed Canadian agents

boarded the PATRICIA and ordered the crew

of eight Colombians and defendant Hensel

to the stern of the boat. They loosened

the bolts on two closed hatches at the

bow of the ship and found over 600 burlap

bags containing 18.7 tons of marijuana.

They arrested Hensel and the Colombians

and, because the Colombians spoke no

English, used interpreters from the

RELIANCE. One of the officers of the

RELIANCE then boarded the PATRICIA to

check the documentation of the vessel and

to inspect its equipment, as well as to

ascertain the identities of those

arrested. The Canadians towed the ship

to Nova Scotia where they unloaded it

and stored the cargo.

After originally telling the

Canadians that he was from Connecticut

and that his ship was headed for Africa,

l3a

Hensel admitted that his true address was

in Florida, that the ship was indeed

headed for the United States, and that he

was to have earned $ 400,000 from the

delivery. The Canadian officials event-

ually decided not to prosecute Hensel and

on June 3 expelled him from the country.

Hensel was flown to Boston, where Agent

Drinan met him at the airport. Hensel

called an attorney, and Agent Drinan then

arrested Hensel. Hensel appeared before

a magistrate and was charged with conspi-

racy to import marijuana.

B

On Land

The investigation into the

activities on the Maine coast had begun

about a month before the PATRICIA ar-

rived. In late April 1980 agents of the

DEA and the Maine state police learned

that Lot No. 3 of the Turkey Cove subdi-

l4a

vision in Tenant's Harbor, Maine, had

been bought in the name of the defendant

Duke's father for $ 170,000 in cash. The

lot contained just under three acres of

relatively secluded land on the Maine

coast. On it stood three wood-frame

buildings, a wooden garage, and a ceep~

water dock that gave the residents access

to the Atlantic Ocean. A short driveway

connected the buildings to a subdivision

dirt road, which in turn led to Glenmere

Road, a public highway.

The agent also learned that in

late April defendant Dill had bought a

32-foot sport-fishing boat, SUNSHINE, in

defendant Hubbard's name, and had paid

for it with four checks totalling

30,000.00. Dill had installed in the

boat $8,000 worth of electronic equip-

ment. Although Dill and an accomplice

told the sellers of the boat that they

15a

planned to take it to Massachusetts,

agents later saw it at the Turkey Cove

lot. Dill, the agents also discovered,

had been convicted in 1974 in Venezuelza

(and sentenced to four years in prison)

for possessing 2-1/2 kilograms of co-

caine.

On the basis of this informa-

tion the DEA and the Maine police set up

a surveillance program to monitor activ-

ity at the Turkey Cove property. Agent

Drinan of the DEA and Sgt. Bailey of the

Maine police coordinated the operation.

They established posts on adjacent

properties as well as across the St.

George River, and two or three times a

week they conducted aerial surveillance.

During the day they used a telescope, a

spotting scope, and binoculars to monitor

the property, and at night they used a

nonmagnifying nightscope. The agents

16a _

could see people and vehicles on Lot No.

3, but they were unable to observe

activities inside any of the buildings.

During May the agents watched

the SUNSHINE sail out to sea many times.

The boat generally left in the afternoon

and returned late at night, often without

navigational lights. The agents also saw

several vehicles on the property, includ-

ing eight out-of-state, large-capacity,

cargo vans. Near the end of May they

observed people strengthening the dock,

and they noticed that some of this work

was being done at night by flashlight.

At about 11:30 p.m. on June 2 a

state policeman at the observation post

across the river saw the SUNSHINE return

to Turkey Cove accompanied by a sisxty-

to seventy-foot boat. Although the

agents later learned that the SUNSHINE

had run aground and was merely being

17a

towed home, they initially suspected that

this larger boat might be the narcotics

boat for which they had been waiting.

Accordingly, Agent Cunniff of the DEA and

Cpl. Sinclair of the Maine police went to

scout the Turkey Cove property. At about

12:30 a.m. they made their way down the

subdivision access road and walked to the

beach through the woods on the land

adjacent to Lot No. 3. They then fol-

lowed the beach toward Lot No. 3 until

they reached a spot where debris blocked

their way. Cpl. Sinclair waded through

waist-high water around the debris in

Order to approach the dock. Agent

Cunniff waited some minutes and then

joined Cpl. Sinclair. Although several

people boarded the larger boat, no one

unloaded it, and at about 3:00 a.m. the

larger boat left.

18a

Having discovered that the

boat was not delivering drugs, Agent

Cunniff and Cpl. Sinclair decided to

leave Turkey Cove. Rather than return

through the deep water, however, they

chose to take what they said they thought

was the most direct route back to Glen-

mere Road--a route through Lot No. 3. As

they walked along the Lot No. 3 driveway,

they passed a tan jeep and recorded its

license number.

Through a check of the license

number, the agents discovered later that

night thet the jeep was owned by de-

fendant Wells. Agent Drinan then ob-

tained Wells' telephone number and

found that the third phone number Hensel

had given to the O'HARA had been Wells’

number--with two digits transposed. At

this point, the connection between the

PATRICIA and the Turkey Cove property

19a

became clear. Moreover, at about 4:30

the next afternoon the agents monitoring

Turkey Cove learned that Hensel had been

deported from Canada and arrested at

Boston's Logan airport. More critically,

however, they learned that Hensel had

telephoned an attorney in Boston and told

him to call a woman who “would know who

to call and know what to do." Worried

that Hensel's acquaintance would have

relayed the news of the PATRICIA to those

at Turkey Cove, the agents decided to

survey the property more closely and, if

appropriate, to make arrests.

At about 7:15 p.m., Agent

Cunniff saw the tan jeep turn off the

access road at Turkey Cove onto Glenmere

Road. He followed the jeep and signalled

it to stop. Defendant Case climed out of

the jeep and asked if something was

wrong. Agent Cunniff identified himself

20a

as a narcotics agent and, when he saw

defendant Hubbard crouched in his seat in

the jeep, opened the door and asked

Hubbard to step out. As Agent Cunniff

did so he found a CB radio with a 1l2-volt

battery and an antenna. Two state

policemen had arrived by this time, and

the agents put the defendants under

arrest.

Agent Cunniff and Cpl. Bailey

feared, however, that Hubbard might have

used the CB radio in the jeep to alert the

men at Turkey Cove. To prevent those

present from escaping or destroying

evidence, the police decided to raid Lot

No. 3. They arrested defendant Standley

by the boathouse and found defendant Duke

sitting at a desk in the main house,

Duke was writing on sheets of paper,

later entered into evidence as Government

Exhibit lll, and a yellow pad, Government

2la

Exhibit 110, lay nearby. The agents

found $2,000 in cash on Duke's desk and

$44,000 in an open briefcase. Agent

Cunniff arrested Duke; defendants Dill

and Wells apparently were arrested

later.

The seven appellants, together

with two other defendants, were indicated

by a grand jury on June 12, 1980, and

charged with conspiracy to posses with

intent to distribute and to import into

the United States approximately 18.7 tons

of marijuana, in violation of 21 U.S.C.

§§ 846 & 963. Eight of the defendants

were tried together before a jury with

Chief Judge Gignoux, of the U.S. District

Court for the District of Maine, presid-

ing. On May 15, 1981, the jury found the

seven appellants guilty as charged and

acquitted an eighth defendant, William

Storey. We previously considered a

22a

government appeal from a suppression

order concerning the ninth defendant,

John Downing, in United States v. Down-

ing, 665 F.2d 404 (lst Cir. 1981). The

lower court's decision on several of the

evidentiary issues involved in the appeal

at bar can be found at United States v.

Hensel, 509 F. Supp. (D. Me. 1981) and

United States v. Hensel, 509 F. Supp.

1376 (D. Me. 1981).

II

Hensel's Suppression Claim

We first consider defendant

Hensel's suppression claim. He argues

that the federal government obtained

evidence from the PATRICIA in violation

of his Fourth Amendment rights and that

the “exclusionary rule" therefore re-

quired the district court to suppress all

evidence obtained through that seizure.

See Weeks v. United States, 232 U.S. 383

23a

(1914). We recognize that the exclus-

ionary rule” applies to searches by

American agents on the high seas. See

United States v. Green, 671 F.2d 46, 53

(ist Cit.), cert. Genied, 131 (lat Cir.),

cert denied, 449 U.S. 887 (1980); United

States v. Miller, 589 F.2d 1117, 1125-26

(lst Cir. 1978), cert. denied, 440 U. S.

958 (1979); see also Note, High on the

Seas: Drug Smuggling, the Fourth Amend-

ment, and Warrantless Searches at Sea, 93

Barv. GG. Rev. 725, 726 6 n.8 (i980)

{hereinafter cited as Harv. Note]. We

are also willing to assume the search

violated Canadian law. Even so, however,

we believe that the “exclusionary rule"

does not authorize suppression here.

We shall analyze Hensel's

argument by examining three separate

questions. Pirst, is the "exclusionary

rule" inapplicable because of the fact

24a

that the Canadians, not the Americans,

searched the ship? Second, if tae

exclusionary rule is applicable despite

the actions of the Canadians, did the

search violate Hensel's constitutionally

protected right of privacy? Third, if

not, is suppression nonetheless required

because the search was unauthorized by

statute or Coast Guard regulations?

l. We first consider whether

the “exclsusionary rule" does not apply

to this search because it was conducted

by Canadians. As the government points

out, the “exclusionary rule" does not

require the suppression of evidence

seized by foreign police agents, for the

actions of an American court are unlikely

to influence the conduct of foreign

police. See United States v. Rose, 570

P.2d 1358, 1361-62 (9th Cir. 1978);

United States vy. Morrow, 537 F.2d i206,

25a

139 (Sth Cir. 1976), cert. denied sub

nom. Martin v. United States, 430 U.S.

S56 (1977), This principle does not

dispose of the case, however, for there

are two well-established exceptions to

this rule: (1) where foreign police

conduct “shock[s] the judicial cons-

cience,” id. at 139 and (2) where Ameri-

can agents “participated in the foreign

search, or .. . [the foreign officers

acted] as agents for their American

counterparts .... " Id. The district

court held that the second exception

applies here.

The issue is one of applying a

legal label to a complex set of facts,

some of which suggest significant Ameri-

can involvement while others suggest the

contrary. On the one hand, as the

district court noted, the Americans began

the search, the Americans asked the

26a

Canadians to join in the effort, an

American DEA agent urged the Canadians to

join in the effort, it entered Canadian

waters, the RELIANCE (an American ship)

showed firepower and provided back-up

assistance during the Canadians' board-

ing, the RELIANCE provided interpreters

after the boarding, and an American

officer participated in a second search

of the PATRICIA. These factors suggest

an American-Canadian "joint venture."

On the other hand, the Cana-

dians controlled the search of the

PATRICIA, they were searching for evi-

dence of violations of Canadian law, they

intended to prosecute Hensel for Canadian

crimes, the initial boarding party

consisted only of Canadians, the Cana-

dians retained control of all the evi-

dence for some time after its seizure,

and American agents may have told the

27a

Canadians to make their boarding decision

independently. As the district court

noted, the question is a “close” one. We

see no obvious error, and we shall assume

that U.S. participation was sufficient to

validate Hensel's foreign search argu-

ment. We need not decide this factually

based issue definitively, however, for a

determination against the government does

not change the ultimate result.

- oe Next, we must consider

whether the search violated any privacy

right of Hensel that the Fourth Amendment

protects. We believe not. Of course,

the search was warrentless--a fact that

might ordinarily make it “unreasonable”

if it had violated a citizen's reasonable

expectations of privacy. See, e.g., Katz

v. United States, 389 U.S. 347, 357

(1967); United States v. Miller, 589 F.2d

at 1124; Harv. Note, supra, at 727-28.

28a

But there are exceptions to the warrant

requirment. When this case was tried in

1981, this circuit recognized an excep-

tion for searches on the high seas based

on “probable cause." See United Sates v.

Hilton, 619 F.2d at 131. Later, in 1982,

we held that "reasonable suspicion" was

sufficient to allow a high seas Coast

Guard search. See United States v.

Green, 671i F.2d at 53. The district

court, following Hilton's stricter

standard, held that the Coast Guard had

probable cause to belive that those

aboard the PATRICIA were conspiring to

smuggle contraband into the United States

and that they carried contraband aboard

the ship. The court wrote:

[T)he record in the

present case more than adequately

supports the conclusion that the

Coast Guard had probable cause to

29a

belive that those aboard the

PATRICIA were engaged in a conspir-

acy to smuggle contraband into the

United States and that there was

contraband aboard the vessel.

For several days the crew of the

O'HARA boat had seen the PATRICIA

lying idly with no apparent purpose

in the Gulf of Maine just outside

United States waters, with one

white man and several black men on

board. An EPIC check disclosed

that two of the land line telephone

numbers which the white man re-

quested the O'HARA captain to call

were listed to suspected drug

smugglers and suggested a possible

connection between the PATRICIA and

a suspected drug offloading site in

Maine. An EPIC check further

revealed that a vessel named

30a

PATRICIA was suspected of drug

smuggling. The PATRICIA had no

fishing gear or nets on deck, yet

sat low in the water. The only

indentification was the name

PATRICIA on the bridgewing. The

vessel did not fly the flag of any

country until approached by the

LOUSISBOURG and the RELIANCE, at

which time it raised an Honduran

flag. The PATRICIA carried sophis-

ticated electronic and radar

equipment. When the first Coast

Guard plane arrived, the vessel got

underway and fled, although the

white man had reported to the

O'HARA boat that she was disabled

and in need of assistance. During

the ensuing pursuit, the PATRICIA

continuously refused to identify

herself, to stop, or to deviate

3la

from her northeasterly course,

despite repeated attempts by the

Coast Guard to communicate with the

vessel by radio, message block,

smoke floats, flag hoists and loud

hailer. During the entire night

the PATRICIA was under observation,

the vessel was operating without

navigational lights, steering an

erratic course toward the open sea.

Only after the RCMP aboard the

LOUSIBOURG opened gunfire did the

PATRICIA finally come to a stop.

These facts add up to ample pro-

bable cause for the Coast Guard to

believe that the PATRICIA was

engaged in a conspiracy to smuggle

contraband into the United States.

United States v. Hensel, 509 F. Supp.

1364, 1374 (D. Me. 1981). The district

court's finding of probable cause is

32a

fully supported by the evidence.

. Finally, we consider

Hensel's claim that the evidence must be

excluded because, whether or not there

was “probable cause", the search exceeded

the Coast Guard's statutory authority

(and violated its regulations). He

claims that the only statute that could

have authorized the search is 14 U.S.C. §

89(a), which states:

The Coast Guard may make...

searches, seizures and arrests upon

the high seas . . . for the preven-

tion, detection and suppression of

violations of laws of the United

States. For such purposes [Coast

MUREGi « »« « O€ficeES May . . « 90

on board of any vessel subject to

the jurisdiction, or to the opera-

tion of any law, of the United

33a

States . . . and search the vessel

Hensel believes that this statute does

not authorize searches that violate

international law and that the search of

a foreign vessel without the flag state's

permission is such a violation of inter-

national law. Therefore, Hensel argues

that the search at bar was not authorized

by statute, that it is therefore an

"unreasonable search" within the terms

of the Fourth Amendment, and that conse-

quently its fruits should be suppressed.

This claim is best analyzed in

terms of three separate questions: (a)

Does the relevant statute authorize

searches that violate international law?

(b) If not, did this search violate

international law? (c) If so, does the

"exclusionary rule" require suppression

of the evidence?

34a

(a) We agree that § 89(a) does

not authorize searches that violate

international law. The rule is well

established, at least since the time of

Chief Justice John Marshall, that “an act

of congress ought never to be construed

to violate the law of nations, if any

other possible construction remains ..

-" Murray v. The Charming Betsy, 6 U.S.

(2 Cranch) 64, 118 (1804); see e.g.,

Weinberger v. Rossi, 50 U.S.L.W. 4354,

4355 (1982); McCulloch v. Sociedad

Nacional Ge Marineros de Honduras, 372

U.S. 10, 21 (1963); Lauritzen v. Larsen,

345 U.S. 571, 578 (1953); Note, "Smoke on

the Water": Coast Guard Authority to

Seize Foreign Vessels Beyond the Conti-

euous Zone, i323 W.Y¥.U. Jd.:Int*l he & POl.

249, 284-85, 295 (1980) [hereinafter

cited as N.Y.U. Note]. Moreover, the

‘ legislative history of § 89(a) does not

35a

suggest that Congress intended to violate

this principle. Section 89(a) was

enacted in response to a Supreme Court

opinion holding that the Coast Guard

could seize American ships on the high

seas to enforce revenue laws, but imply-

ing that it could not do so to enforce

other laws. See Maul v. United States,

274 U.S. 501 (1927); H.R. Rep. No. 2452,

74th Cong., 2d Sess. 2 (1936). Justices

Brandeis and Holmes, concurring in Maul,

disagreed with the majority opinion's

implication, for they believed the Coast

Guard should be able to seize American

ships on the high seas to enforce any

American law. They assumed, however,

that Congress would conform with general

principes of international law--princi-

ples which did not “confer the general

authority to seize foreign vessels upon

the high seas." Maul v. United States,

36a

274 U.S. at 523 & n.26 (Brandeis &

Holmes, J.J., concurring). Congress took

note of the opinon of Justices Brandeis

and Holmes, and sought to enact the

Brandeis/Holmes concurrence. See H.R.

Rep. No. 2452, 74th Cong., 2d Sess. 1-3

(1936); S. Rep. No. 2211, 74th Cong., 24d

Sess. 1-3 (1936). Congress wished to

authorize the search of vessels on the

high seas to the extent such searches

conformed to international law, but there

is no indication that it wished to go

further.

(b) We next consider whether

the search violated international law--a

difficult question. Despite the implica-

tions of Fifth Circuit dicta to the

contrary, see United States v. Williams,

617 F.2d 1063, 1076 (5th Cir. 1980) (en

banc) (§ 89(a) allows high seas searches

of foreign vessels without flag state

37a

permission, provided reasonable suspicion

exists); Harv. Note, supra, at 727 n.ll,

international law does not allow one

nation to search on the high seas vessels

belonging to another except in very

special circumstances. As a fundamental

rule, the proposition “that a merchant

ship flying the flag of a recognied State

is immune from all interference on the

high seas by the ships of any other than

her own State” is widely accepted. Cc.

Colombos, The International Law of the

Sea 311 (6th Ed. 1967); see The Sagatind,

S VF. Be S20, BSL (8c DcNeFs 1929) tha

Hand, J. ); H. Smith, The Law and Custom

of the Sea 64-65 (3d ed. 1959); Harv.

Note, supra, at 727 n.ll. As stated in

the Convention on the High Seas:

Ships shall sail under the flag of

one State only and, save in excep-

tional cases expressly provided for

38a

in international treaties or in

these articles, shall be subject to

its exclusive jurisdiction on the

high seas.

Convention on the High Seas art. 6(1),

opened for signature April 29, 1958, 13

U.8.T. 2313, T.T.A.8. Wo. $200, 450

U.N.T.S. 11 (entered into force Sept. 30,

1962). This statement embodies the

principle of "freedom of the seas," the

principle for which we fought the War of

1812.

The Convention on the High Seas

apparently allows only narrow exceptions

to this rule of freedom of navigation,

for the Convention itself states that the

exceptions will be “provided for in

international treaties or in these

articles." Commentators agree: "even

suspicious conduct will not justify

active interference [with a foreign

39a

merchant vessel on the high seas in

peacetime] except in those cases, such as

Slave trading, where it is authorized by

treaty.” H. Smith, supra, at 64-65;

accord, e.g., C. Colombos, supra, at

2207-15) W.X¥.Us Note, supra, at 276 &

n.107; Note, Free Navigation: Examin-

ation of Recent Actions of the United

States Coast Guard,, 13 Vand. J. Trans-

nat'l L.141, 144-45 (1980) [hereinafter

cited as Vand.Note].

Thus, the Convention states

that we should look to a treaty--in this

case the Convention on the High Seas

itself--to determine whether a search

violates international law. The Conven-

tion, as interpreted in light of recog-

nized principles of international law,

provided several exceptions. It allows

the ship of one state to search another's

ship on the high seas when those on the

40a

searching ship suspect the foreign ship

of piracy, suspect the ship of engaging

in the slave trade, suspect that the ship

despite the foreign flag is a domestic

ship, are engaged in hot pursuit, or have

obtained the permission of the flag

state. See Convention on the High Seas,

supra, arts. 14-23; H. Smith, Supra, at

65-70; Vand. Note, supra, at 144-47.

The Convention may also allow searches in

cases where those on the searching ship

believe that the foreign ship threatens

the security of their own nation. See

Vand. Note, supra, at 146 n.19; cf. dH.

Smith, supra, at 70-71. Arguably, three

of these exceptions apply here.

First, the Coast Guard may have

had reason to believe that the PATRICIA

was either a domestic ship or a state-

nation may assert jurisdiction. See

Smith, supra, at 64-65; Vand. Note,

4la

supra, at 156. The PATRICIA, after all,

sailed for a considerable time with no

flag despite numerous attempts to

communicate with it, and it hauled up

its Honduran flag only at the eleventh

hour.

Second, the Coast Guard argu-

ably searched the ship with Honduras'

consent. Given the need for speedy

action, the hostility shown by all

nations including Honduras to the inter-

national drug trade, see Restatement

(Revised) of Foreign Relations § 34 note

2 (1965) ("universal condemnation" of

drug traffic), and the fact that Honduras

apparently did not protest the seizure,

Honduras may arguably be said to have

ratified the search. Cf. United States

v. Dominguez, 604 F.2d 304, 308 (4th Cir.

1979) (where Bahamas government's confir-

mation of its permission to seize ship

42a

referred to wrong registration number but

where Bahamas government did not protest

seizure of ship, defendant cannot contest

validity of permission), cert. denied sub

nom. Sarmiento v. United States, 444 U.S.

1014 (1980).

Although Coast Guard regula-

tions specifically require its units to

obtain the permission of the Coast Guard

Commandant before searching foreign

vessels on the high seas, see Commandant

Instruction No. 16244.1 (1978), and

although the Commandant generally grants

permission only after the foreign state

has consented to the search, a violation

of this regulation does not automatically

constitute a violation of international

law.

Third, some authorities suggest

that coastal nations have a right to

search hovering vessels up to a “reason-

43a

able" distance from shore where serious

crime is at issue, even if that search

extends beyond the state's territorial

waters or contiguous zone. See Brown,

Protective Jurisdiction 34 Am. J. Int'l

Le. 112, 114 (1940) ("Questions concern-

ing the extent of the zone of protective

jurisdiction . . . can only be answered

by the rule of reason in each individual

case."); Comment to Draft of Convention

on the Law of Territorial Waters, art.

20, 23 Am. J. Int'l L. Spec. Supp. 334,

335 (1929) (zone where search is allowed

"is determined not by mileage but by the

necessity of the littoral state and by

the connection between the interests of

its territory and the acts performed on

the high seas"); see also Church v.

Hubbard, 6 U.S. (2 Cranch) 187, 234-35

(1804); The Panama, 6 F.2d 326, 327 (S.D.

Tex. 1925); The Rosalie M.,.4 F.2d

44a

815, 816 (S.D. Tex. 1925), aff'd on other

grounds, 12 F.2d 970 (Sth Cir. 1926); The

Grace and Ruby, 283 F. 475, 478 (D. Mass.

1922); Dickenson, Jurisdiction at the

Maritime Frontier, 40 Harv. L. Rev. l,

21-22 (1926). Such a flexible interpre-

tation of a nation's “protective juris-

diction" see Brown, supra, conceivably

fits within the exception to the free

navigation principle related to "national

security"--a provision arguably implicit

in the High Seas Convention. CF. H.

Smith, supra, at 70-71; Vand. Note,

Supra, at 145-46 & n.19. Although we

recognize that a provision for Coast

Guard Searches up to sixty-two mniles

from shore proved highly controversial

during prohibition, see Ficken, The 1935

Anti-Smuggling Act Aplied to Hovering

Narcotics Smugglers Beyond the Contiguous

Zone: An Assessment Under International

45a

Law, 29 U. Miami L. Rev. 700, 709-11 '

nn.35-36 (1975), because the antipathy to

international drug traffic is more

widespread than was the antipathy to the

liquor trade, see id. at 720-21, and

because the use of hovering “mother

ships” has become so common, the reason-

ableness of searches beyond the conti-

guous zone may now be more widely ac-

cepted. See Restatement (Revised) of

Foreign Relations § 522(2)(a) & comment c

(Tent. Draft No. 3, 1982) (search but not

seizure of narcotics smuggling ship

permitted).

The application of the first

two of these posible exceptions to this

case, however, would involve factually

based determinations not made by the

district court, and to apply the third

would require a difficult exploration of

the murky waters of international law.

46a

Rather than remand the case or conduct

that exploration, we shall assume for the

sake of argument that the exceptions do

not apply, and that the search therefore

exceeded the bounds of § 89(a). We shall

also assume that the Coast Guard failed

to comply with its regulation requiring

Honduras’ advance permission. For, as

discussed below, even under these assump-

tions we believe the evidence was proper-

ly admitted.

(¢) We turn then to the

final question: assuming that the search

violated international law and therefore

was not authorized by § 89(a), and

assuming that it also violated the Coast

Guard's "advance permission” regulation,

does the “exclusionary rule" require

suppression of its fruits? We think

not. The Supreme Court has held that

lack of statutory authority and the

47a

contravention of a regulation do not

automatically invoke the exclusionary

rule. See United States v. Caceres, 440

G.8s F411, 15S (1979) <"*we decline to

adopt any rigid rule requiring federal

courts to exclude any evidence obtained

as a result of a violation of these

rules"); United States v. Giordano, 416

LaFave, Search and Seizure § 1.3(b)

(1978). The exclusionary rule was not

fashioned to vindicate a broad, general

right to be free of agency action

not “authorized” by law, but rather to

protect certain specific, constitutional-

ly protected rights of individuals. Were

this not so, courts might have to sup-

press, for example, information that an

agency such as the FCC (or Department of

Labor) gathers in a Community Antenna

Television regulatory proceeding (or a

48a

Fair Labor Standards Act proceeding)

that later turns out to have been beyond

the agency's statutory authority. cf.

United States v. Southwestern Cable Co.,

392 U.S. 157, 178 (1968) (FCC's authority

over CATV “is restricted to that reason-

ably ancillary to the effective perfor-

mance of the Commission's various respon-

sibilities for the regulation of televi-

sion broadcasting"); Addison v. Holly

Hill Fruit Products, Inc., 322 U.S. 607

(1944) (construing scope of administra-

tive authority under FLSA). Yet, the

fact that an agency's employees may

exceed the scope of a statute's or a

regulation's authority does not automat~-

ically make their actions “unreasonable”

either in Fourth Amendment terms or as 4a

matter of ordinary understanding of

reasonableness. Thus, it is not surpris-

ing that the Supreme Court in Caceres

49a

denied any such principle of automatic

exclusion.

On the other hand, courts have

found strong reason to apply the exclu-

Sionary rule if an agency gathered

information “in direct violation of the

constitutional rights of the defen-

dant .. ." Weeks v. United States, 232

U.S. 383, 398 (1914). But, in this case

the search violated none of Hensel's

constituionally protected interests. For

reasons previously stated, see pp. 15-17

infra, the searchdidnot invade Hensel's

Fourth Amendment privacy interests, for

the searchwassupported by "probable

cause." Hensel is wrong in suggesting

United States v. Ramsey, 431 U.S. 606

(1977), holds to the contrary, for Ramsey

Supports the notion that a court must

analyze the statute or regulation invol-

ved in terms of the interests protected

50a

bythat statute or regulation before

deciding whether to invoke the exclusion-

ary rule. In this case, the statute and

regulation arguably violated (insofar as

they incorporate principles of interna-

tional law) were designed not to protect

the privacy rights of ship captains, but

rather to protect the rights of foreign

sovereigns. In such a situation, we find

the Fifth Circuit's conclusion in United

States v. Cadena, 585 F2d 1252, 1261 (5th

Cir. 1978), directly on point: "[T] here

is no basis for concluding that violation

of these international principles must or

should be remedied by application of the

exclusionary rule or by dismissal of the

indictment unless Fourth Amendment

interests are violated.” Accordingly, we

reject the argument that the Coast

Guard's violation of the statute and

regulation in this case requires us to

5la

apply the exclusionary rule.

A related way to reach the

same conclusion is to say that Hensel

lacks “standing.” That is, Hensel is not

entitled to invoke the exclusionary rule

on his own behalf, for any violation of

international law invaded not his rights

but rather the rights of Honduras. The

rule of international law in the case at

bar is a rule designed to secure peace

among nations, not to protect the privacy

of individuals. As one commentator

wrote, the principle of freedom of the

seas “does not protect the smuggler, but

it forbids the claim, generally, to

jurisdiction on the high seas ... .”

W. Masterson, Jurisdiction in Marginal

Seas with special Reference to Smuggling

383-84 (1929); see McDougal & Burke,

Crises in the Law of the Sea: Community

Perspectives versus National Egoism, 67

52a

Yale L. J. 539, 539 (1958) ("The historic

function of the international law of the

sea has long been recognized as that of

achieving an appropriate balance between

the special exlcusive demands of coastal

states, and other special claimants, and

the general inclusive demands of all

other states in the world arena."). Even

if international law gives Hensel as

captain a right to sue for damages

suffered during an illegal search, see

The Marianna Flora, 24 U.S. (Wheat.) l,

42 (1826); The Convention on the High

Seas, supra, art. 22(3);3 Restatement

(Revised) of Foreign Relations § 522(4)

(Tent. Draft No. 3, 1982) (damages award-

able if suspicions of narcotics traffic

prove unfounded), this compensation

rightderives from the sovereign's right

to obtain redress for damages suffered,

for “rights under international common

53a

law must belong to sovereign nations, not

to individuals..." United States v.

Williams, 617 F.2d at 1090. In brief,

international law protects Honduras, not

Hensel. And Honduras, as far as this

record reveals, does not care.

The Supreme Court has made

clear that a defendant cannot invoke even

the privacy interests of a third party in

order to complain of an unlawful search,

United States v. Payner, 447 U.S. 1727,

731 (1980). Thus, Hensel cannot invoke

the interests of Honduras, especially

Since Honduras' interests are not privacy

interests, are waivable, and have not

been asserted by Honduras. See also

Rakas v. Illinois, 439 U.S. 128 (1978);

Alderman v. United States, 394 U.S. 165

(1969).

In sum, whether or not Canadian

law authorized the seizure, whether or

54a

not there was sufficient evidence of a

"joint venture” to invoke constitutional

protections, and whether or not the

seizure was unlawful under international

law, the evidence against Hensel was

properly admitted.

a a

Hensel's Hearsay Argument

We turn next to a minor matter,

and Hensel's only additional argument for

reversal. Hensel claims that the trial

court erred in admitting into evidence a

glass found at the Turkey Cover property.

The glass had on it the word "Dink,"

Hensel's nickname, and tended to tie

Hensel to those at Turkey Cove. As

admitted to show this relation, Hensel

states, the glass was heresay.

We are tempted to say any error

was "harmless" as to Hensel, see, e.g.,

United States v. Honneus, 508 F.2d 566,

55a

572-73 (lst Cir. 1974), cert. denied, 421

U.S. 948 (1975), but we need not do so,

for the glass was properly admitted. The

fact that the word "Dink" appears on the

glass does not itself make the glass

hearsay evidence, for no assertion

intended by the act of putting the word

on the glass was relevant to the chain of

inferences the government wished the jury

to draw. The jury was not asked to infer

anything about the person who put the

name on the glass, who for all we know or

care works in a factory that turns out

"name" glasses by the score. Rather, the

jury was asked to infer that Dink Hensel

was likely to have possessed a glass with

the name "Dink" on it and that he, or

someone he knew, placed it in the house

at Turkey Cove. The First of these

inferences is merely circumstantial.

There is no obvious way it depends upon

56a

the statement or state of mind of any

out-of-court declarant.

The second of these inferences

could involve hearsay only if one accepts

a highly complex line of argument:

Hensel might claim that he would like to

cross-examine the “unknown” person who

brought the glass to Turkey Cove on the

ground that this out-of-court person's

state of mind is relevant to the validity

of the second inference. In order to

invoke the hearsay rule, Hensel would

have to argue that this individual's

"nonverbal conduct” in placing the glass

in the house was “intended by him as an

assertion,” Fed. R. Evid. 801(a)(2), that

"Hensel was here." Even were one to make

the heroic assumption that this was

Hensel's argument, it fails. It faiis

because Hensel did not preliminarily show

the district judge that placing the glass

57a

in the house was intended as an "asser-

tion" (e.g., that it was designed to

"frame" Hensel). Yet, the Federal Rules

of Evidence" place the burden [of proving

Such an assertive intent] upon the party

Claiming that the intention existed."

Fed. R. Evid. 801 Advisory Committee note

(a). Hence, the glass was not shown to

be hearsay and it was properly admitted.

IV

The Other Defendants' "Search and

Seizure" Issue

Defendants Case, Duke, Hubbard,

and Standley challenge the admission of

all evidence the government obtained as a

result of Agent Cunniff's observation of

the license number of the jeep on Lot No.

3 on June 3. This license number was a

key piece of evidence. It showed that

the jeep belonged to Wells whose tele-

Phone number Hensel had given to the

58a

O'HARA prior to the Coast Guard chase.

Thus, the license number helped link the

ship to the defendants on shore, and much

subsequently obtained evidence is argua-

bly a "fruit" of its observation.

For purposes of this appeal we

accept the district court's findings, for

they are adequately supported in the

record. Agents Cunniff and Sinclair

walked along to the public beach and

waded through waist-high water to observe

the dock on Lot No. 3 where they thought

a ship carrying drugs was about to dock.

The agents apparantely believed that the

only way back to civilization without

braving the deep water lay through Lot

No. 3. Accordingly, they crossed the lot

to return to the public access road, and

along their way saw the jeep in the

driveway and noted the license number.

Under these circumstances, the agents may

59a

have had a legal right to pass through Lot

No. 3. See, e.g., Ploof v. Putnam, 71 A.

188 (Vt. 1908). Even if we assume they

were trepassers, however, we believe they

did not violate any of the defendants'

Fourth Amendment rights.

To show that their constitu-

tional rights were violated, defendants

must show that they had a "legitimate

expectation of privacy" in the license

number of the jeep parked in the drive-

way. See, e.g., Rawlings v. Kentucky,

448 U.S. 98, 104 (1980); United States v.

Salvucci, 448 U.S 83, 91-92 (1980); Rakas

Te 2A55Get8., 4339 0.8. at 145, The

district court found no such legitimate

expectation, given that a license plate

is an item normally revealed to the

public and that this license plate was

observed in a place where the owner could

not reasonably have expected it to remain

60a

hidden. United States v. Hensel, 509 F.

Supp. at 1386.

The fact that the plate itself

is designed for public exposure, while

relevant, see United States v. Humphries,

636 P.2d 1172, 1179 n.12 (9th Cir. 1980),

cert denied, 451 U.S. 988 (1981), is not

determinative. It would not, for ex-

ample, justify the search of a bedroom if

the plate were hidden in the mattress.

Thus, we have examined the record,

including the aerial photographs, with

some care to determine the nature of the

place where the jeep was parked.

The testimonial descriptions and

the photographs suggest that the driveway

to Lot No. 3 is not quite so nestled in

the “middle of nowhere" as defendants

would have us believe. Rather, they

indicate that houses and arms are scat-

tered every few hundred yards along the

6la

highway, and that other residents have

built cabins along the coast. The public

highway runs within one-quarter to

one-half mile of the buildings on Lot No.

3 and three-quarters of the distance from

the building to the highway is spanned by

a semi-public road--a subdivision road

that was open to people other than the

Owners or users of Lot No. 3. The record

contains testimony that members of the

public generally considered the beach

open to their use for clamming and

"gunning," and that they used the wooded

area for hauling wood and fishing. On

the other hand, there were “no trespass-

ing" signs and there was a chain across

the drive (although the government

produced testimony that the chain and all

but one sign first appeared after June

3). In any event, taken together, the

evidence could lead the district court

62a

reasonably to conclude that the defen-

dants should have expected that a license

plate on a jeep parked on their driveway

“~-apparently only one or two hundred

yards from a subdivision road, and

Squarely between that road and a beach

used at least sometimes by clammers,

hunters and others--would not remain

hidden from the occasional passerby.

We have also reviewed the case

law on the subject. This case seems

a less compelling one for defendants than

Many other cases in which similar sear-

ches were uph: 4d. See United States

vouece, 669 F.2€ 46 (24 Cir. 1982)

(surveillance of 70-acre Vermont farm by

agents who entered the farm in military

camoflouge uniforms and maintained

round-the-clock surveillance with such

equipment as nightscopes, 130-power

Questarlens, and infra-red goggles);

63a

United States v. Ramapuram, 632 F.2d 1149

(4th Cir. 1980) (search of trunk of junk

car abandoned on farm owned by defen-

dant's father, where agents were able to

reach car only by driving 200 yards

down private road and then walking by

foot across open field), cert. denied,

450 U.S. 1030 (1981); see also United

States v. Edmonds, 61ll F.2d 1386 (5th

Cir. 1980) (search of private dock area

upheld, where public generally considered

it open to public); United States Vv.

Humphries, 636 F.2d 1172, 1178-79 (9th

Cir. 1980) (evidence obtained as a result

of an agent's entrance onto private

driveway to observe license number of

parked car), cert. denied, 451 U.S. 988

(1981).

We have been unable to find any

case in which courts have accepted claims

Similar to that of defendants. And, the

64a

cases they have cited are distinguish-

able. See United States v. Oliver, 657

F.2d 85 (6th Cir. 1981) (search unconsti-

tutional where agents passed many "No

Trespassing” signs and locked gate along

private road, and were told to leave

premises); Fixel v. Wainwright, 492 F.2d

480 (5th Cir. 1974) (search unconstitu-

tional where agents searched shaving kit

hidden in backyard); United States v.

Davis, 423 F.2d 974 (5th Cir.) (search

unconstitutional where agents made

warrantless search of defendant's yard

and seized pistol), cert. denied, 400

U.S. 836 (1970); Wattenburg v. United

States, 388 F.2d 853 (9th Cir. 1968)

(search unconstitutional where agents

searched pile of trees next to lodge and

seized nine trees as evidence); Sanders v.

State, 264 Ark. 433, 572 S.W.2d 397

(1978) (observation of garden located

65a

behind home and separated by fence from

home impermissible); Norman v. State, 134

Ga. App. 767, 216 S.E.2d 644 (1975)

(search unconstitutional where agents

searched truck located behind barn behind

house); State v. Kendler, 588 P. 2d 447,

60 Hawaii 301 (1978) (observation uncon-

stitutional where officer climbed fence

to observe plants hidden behind dense,

tall vegatation in defendant's backyard).

Given the facts and case law, we

believe the decision of the district

court on this issue was correct.

Vv

Each defendant, with the excep-

tion of Hensel and Duke, argues that the

evidence against him was insufficient for

conviction. On appeal, our task is to

"consider the evidence as a whole, taken

in the light most favorable to the

66a

Government, together with all legitimate

inferences to be drawn therefrom, to

determine whether a rational trier of

fact could have found guilt beyond a

reasonable doubt." United States v.

Patterson, 644 F.2d 890, 893 (lBt Cir.

1981); see United States v. Doran, 483

waee seee sea tist Cir. 1973). cert.

denied, 416 U.S. 906 (1974); Parker v.

United States, 378 F.2d 641, 644 (lst

Cir.), cert. denied, 389 U.S. 842 (1967).

To convince the defendants of conspiring

to import marijuana into the United

States, the government bore the burden of

proving that each defendant knowingly and

intentionally joined that conspiracy.

See Direct Sales Co., v. United States,

319 U.S. 703, 709 (1943); United States

%. ieei, Gid F.2d 1205, 12410 (ist Cir.),

cert denied, 446 U.S. 940 (1980); United

States v. Mora, 598 F.2d 682 and 683 (lst

67a

Cir. 1979) ("the gist of conspiracy is an

‘agreement to aiapier or to disregard the

law'"). But, "“[p)articipation in a

criminal conspiracy need not be proved by

direct evidence; a common purpose and

plan may be inferred from a ‘development

or collection of circumstances.'" United

States v. Stubbert, 655 F.2d 453, 456

(lst Cir. 1981), quoting Glasser v.

United States, 315 U.S. 60, 80 (1942).

We apply these standards first to the

strongest defense claims~-those of

Standley, Hubbard and Case. We then turn

to defendants Wells and Dill.

A

l. Standley, Hubbard and

Case are three carpenters who moved to

Maine and worked on the Turkey Cove

property. We suspect the sufficiency of

the evidence against them turns on the

68a

proper use of two key pieces of evidence:

a “preparation” and "clean up” list

(Government Exhibit 110), and a payroll

list (Government Exhibit 111), both of

which government agents found in the

bedroom where defendant Duke was working

at the time of his arrest. Government

Exhibit 110 consists of a yellow pad

which includes: 1) a page entitled "Clean

Up Crew 20 Minutes"" that contains

suggestions of behaeen to be done to move

the "bales" from the boat to the boat

house and van, and lists fourteen names

including "Bobby" and "Flip" (see Appen-

dix I); 2) nineteen pages headed "Master

List," with numbers one through 950 in

columns and a heading “Total per col.--

wt" at the bottom of each column; 3) a

page headed “Wet Ones List;" 4) a page

listing “Total Gross Weight" and "Total

Net" by truck; and 5) a page headed

69a

"Preparation Group 9:00 Dark" which

lists six names including "Charlie,"

and "Bobby" (see Appendix II). Since

independent evidence indicated that

defendant Case was know as "Flip," and

since the jury could reasonably infer

that Charles Standley was known as

"Charlie" and Robert Hubbard as "Bobby,"

these lists linked these men to the

conspiracy. Government Exhibit 11ll

incudes five separate pages marked A

through E. One page, entitled "Pay

Schedule,” lists 24 names, including

"Flip." Government Exhibit 111 does not

refer to "Charlie" or "Bobby."

When the government initially

offered the preparation, clean up, and

payroll lists into evidence, the defen-

dants objeted to them as hearsay. The

government invoked the "co-conspirator"

exception, see Fed. R. Evid. 801(d) (2)

70a

(E), but also stated that it offered the

lists not for the truth of the matter

they asserted, but rather to allow the

jury to infer that those named on the

list were associated with the conspiracy

from the fact that these lists were found

in the bedroom when government agents

entered the house. When arrested,

Duke was writing on the payroll list

(Government Exhibit 111) and the other

list (Government Exhibit 110) was nearby.

Cash ($2,000) was lying on Duke's desk,

and a briefcase with $44,000 was on the

bed nearby. The government believed the

jury could circumstantially infer an

association from these facts. The trial

court, faced with the defendants’ hearsay

objection to the lists, told the jury

when the exhibits were entered: "These

papers are not admitted to show the truth

of the statements made in them. You, as

7la

the jury, may not consider them as

providing any evidence that the contents

of these papers are accurate or true."

Later during the trial, the court

made the preliminary findings of a likely

conspiracy required by United States v.

Petrozziello, 548 F.2d 20 (lst Cir. 1977)

and United States v. Ciampaglia, 628 F.2d

632, 638 (lst Cir.), cert. denied, 449

U.S 956 (1980), and it concluded that

the statements were admissible hearsay

under the co-conspirator exception to the

hearsay rule. See Fed. R. Evid. 801(d)

(2) (EB). When the court decided to

remove the limiting instruction, however,

the defendants claimed that they were

prejudiced by this ruling on the grounds

that they had relied upon the govern-

ment's statement that it would not use

the lists to prove the truth of the

assertions they contained. Accord-

72a

ingly, the court rescinded this ruling.

On the following day, the court heard

argument on the purposes for which the

government could use the lists. The

government argued:

We are not asserting that it in

fact takes 20 minutes for the

clean up crew to operate. We are

not asserting that in fact "Flip"

has the key. However, we are

asserting that the fact that Mr.

| Duke was writing on one of the

exhibits and the other was in

close proximity with him at the

time is an act of a co-conspirator

from which the jury may draw

certain inferences about the

purpose of the act and the

scheme included in it.

The court granted the government's motion

to allow the use of the lists for the

73a

following purposes:

[t]he exhibits do not constitute

statements admitted for the truth

of any assertion contained in them

but that if the Jury finds that

the Defendant Duke was writing on

these exhibits at the time Special

Agent Cunniff encountered Duke and

that Defendant Duke was in custody

and control of the exhibits at

that time, the Jury may consider

these two exhibits as circumstan-

tial evidence from which you may

draw inferences about the rela-

tionship among the various parties

and items for plan, purpose,

preparation and knowledge.

The judge himself gave no instructions to

the jury concerning the use of the lists.

However, during closing argument the

government told the jury:

74a

You will recall that the Judge

instructed you that these documents

have not been admitted for the

truth of the statements that are

contained thereon. . + fee

know, however, that at the time Mr.

Cunniff went to the upstairs

bedroom and encountered Mr. Duke

that Mr. Duke was writing on

Government Exhibit lll, the white

paper, and also that he had $44,000

with him in a brief case and in

cash. From those facts, Ladies and

Gentlemen, you may consider Govern-

ment Exhibits 110 and 11l as

circumstantial evidence from which

you may draw certain inferences

about the relationship among the

parties listed in those lists and

inferences about the plan, purpose,

preparation and knowledge of the

75a

people involved in this conspiracy.

Defense counsel moved for a mistrial on

the basis of this argument, but the

court denied the motion.

We believe the court's ruling

was proper. The jury was not permitted

to infer Standley, Hubbard, and Case's

participation from the out-of-court

written assertion by the maker of the

list that the three were participants in

the conspiracy. The jury was permitted

to infer their participation from the

fact that one actively involved in the

conspiracy, namely Duke, possessed a

participant's list on which their names

were found. We recognize that inferring

participation from the juxtaposition of

the fact that Duke possessed lists

containing their names with the fact that

Duke himself was actively involved in the

conspiracy may involve a use of the lists

76a

for a purpose closely related to hearsay.

See generally 4. J. Weinstein & M.

Berger, Weinstein's Evidence 801-53 to

801-57 (1979). After all, the validity

of making the inference ‘that a defendant

participated' from the fact “that Duke

possessed a list with defendant's name

depends in part upon Duke's state of mind

in possessing the list. The inference is

based, first, on the assumption that Duke

believed the three were participants, and

second, on the assumption that Duke's

beliefs regarding the membership of the

conspiracy were, in the context of the

totality of the evidence, likely to be

correct.

Nevertheless, even if the

jury's inference involved a hearsay-type

of problem, the evidence was outside the

scope of hearsay as defined by the

Federal Rules of Evidence. See Fed. R.

77a

Evid. 801-806. The court allowed the

jury to infer plan, purpose, preparation,

knowledge, and association from Duke's

possession of the list. Possession is

conduct, and conduct is hearsay under the

Federal Rules only if "intended ... as

an assertion." Fed. R. Evid. 801(a)

(2). We do not see how Duke's possession

of the list could have been "“"intend-

ed .. . aS an assertion" of the defen-

dants' role unless Duke had been staging

an elaborate charade to implicate the

defendants. If defendants believed that

to be the case, however, they bore the

burden of proving that the conduct was

indeed intended as an assertion, see Fed.

R. Evid. 801 Advisory Committee note (a);

4 J. Weinstein & M. Berger, supra, at

801-62 to 801-63, and they offered no

such proof, Similar evidence has been

admitted as circumstantial evidence in

78a

other cases. See e.g., United States v.

Marino, 658 F.2d 1120, 1124 (6th Cir.

1981); United States v. Marino, 658 F.2d

1120, 1124 (6th Cir. 1981); United States

v. Mazyak, 650 F.2d 788, 792 (5th Cir.

1981), cert. denied, 102 S. Ct. 1281

(1982); United States v. Day, 591 F.2d

861, 883 (D.C. Cir. 1978); United States

v. Ruiz, 477 F.2d 918, 919 (2d Cir.) (per

curiam), cert. denied), 414 U.S. 1004

(1973); United States v. Canieso, 470

F.2d 1224, 1232-33 (2d Cir. 1972). And,

in any event, this use would both fit

within the "co-conspirator" hearsay

exception, Fed. Fed. R. Evid. 801(d)

(2)(E) (as the district court properly

found to apply), and would have come as

no surprise to defendants.

Thus, we believe the jury could

properly have used the lists as evidence

that Duke beieved Standley, Hubbard and

79a

Case were in the conspiracy and, hence,

given Duke's central role, as evidence

that they were, in fact, conspirators.

2. In addition to their

first names being on the lists found in

Duke's possession, there was other

evidence from which the jury could infer

that Standley, Hubbard, and Case know-

ingly and intentionally participated in

the conspiracy. The jury could have

believed that Hubbard, Case, and Standley

were Georgia residents. It could con-

clude that the three were carpenters who

had come to work on the Turkey Cove

property in Maine during the time

that the con spiricy was in operation.

It could have inferred that they built

shutters that fit on the inside of the

boathouse windows to hide the marijuana

that would be stored there. And it could

have inferred that they saw the conveyor

80a

belt, the elaborate radio and communica-

tions equipment, the industrial vacuum

cleaner, the vans, and the navigational

charts--all of which were present on the

Turkey Cove property.

We believe that a jury could

reasonably find that Standley was a

member of the conspiracy from the evi-

dence regarding Standley's occupation,

the likelihood that the carpentry work

was in fact to be used to further a

drug-smuggling conspiracy, the evidence

that Standley was not from Maine, the

fact that items like sophisticated

radios, conveyor belts and industrial

vacuum cleaners were likely to be seen by

one working at Turkey Cove, and Duke's

possession of a "preparation" and "clean

up" list mentioning Standley. This case

is unlike the cases reversing convictions

where the evidence consisted of little

8la

more than mere presence at the scene of

the crime. See, e.g., United States v.

Mora, 598 F.2d 682 (lst Cir. 1979)

(conviction reversed where defendant had

traveled with woman carrying cocaine, but

where there was no evidence that defen-

dant knew woman carried drugs or that he

had known her before trip); United States

¥. Mehbtala, 578 F.26 6(ist Circ. 1978)

(conviction reversed where only evidence

against defendant was proof of her

presence on ship containing drugs and

evidence of a close relationship with

captain during voyage, and where there

was no evidence that defendant had

embarked on voyage for any purpose other

than pleasure and no indication of prior

association with captain); United States

v. Francomano, 554 F.2d 483 (lst Cir.

1977) (conviction reversed where defen-

dants worked on ship carrying drugs, but

82a

where there was no evidence that they

knew drugs were aboard and where there

was evidence that they had sought passage

on other ships and were sailing for sake

of adventure). The presence of other

incriminating evidence in this case makes

it considerably more like United States

©; tfiserry, 673 ¥F.26 554 (ist Circ. i862)

(conviction for aiding and abetting

affirmed where defendant was present in

hotel room with others, where agents saw

one of the party take a gun out of a

handbag, and where agents later found

that gun and two others as well as

marijuana hidden in ceiling and found

marijuana in ashtray and bathtub.

If the evidence is sufficient

to convict Standley, it is also suffi-

cient to convict Hubbard, since virtually

all the evidence against Standley was

available against Hubbard. In addition,

83a

Hubbard was arrested while leaving the

Turkey Cove property in Wells' tan jeep

with Case and was described as having

slouched down in his seat when the police

agent approached. In the jeep, the

police found elaborate radio equipment,

— explaining how to manitor police

radio frequencies, a navigational chart

showing the course of a ship (which the

jury could reasonably have believed was

the PATRICIA) from Florida to the Gulf of

Maine; navigational equipment; Duke's

passport together with a luggage tag with

Duke's name and address; photographs and

an airline ticket for Standley; and a car

rental contract and Howard Johnsons'

receipt in Wells’ name. When arrested,

Hubbard had various slips of paper in his

pocket with the first names or nicknames

and telephone numbers of various co-de-

fendants, as well as a slip of paper

84a

mentioning radios and rollers--items

which the jury could reasonably conclude

were used to guide and unload the PATRIC-

IA. As noted at p. 8, supra, defendant

Dill bought the SUNSHINE and the boat's

radio equipment in Hubbard's name.

Similarly, the evidence against

Standley and Hubbard was available

against Case, whose nickname "Flip"

appeared on both Government Exhibit 110

and Government Exhibit lll. Case was the

driver of the tan jeep in which he and

Hubbard were arrested, and in which the

various paraphernalia described above

were found. In addition, Case had on his

person at the time of his arrest the keys

to a large-capacity cargo van registered

in Georgia which was found, loaded with

radio equipment, at the Ramada Inn in

Lewiston, Maine. We therefore find the

evidence sufficient to allow the convic-

85a

tion of Standley, Hubbard, and Case.

Wells

Wells, too, challenges the

sufficiency of the evidence linking him

to the conspiracy. However, the jeep in

which Case and Hubbard were arrested

belonged to Wells. Wells and Hensel were

long-time acquaintances, and one of the

phone numbers that Hensel aboard the

PATRICIA asked the mate cf a nearby

fishing boat to call was that of Wells.

Wells did not live in the Turkey Cove

area, but was seen with Duke on the

SUNSHINE on May 20, 1980, in Panobscot

Bay. On May 28, a John Wells and another

person registered at a hotel in Portland,

Maine, and calls were made from one of

their rooms to the Turkey Cove property.

Wells also rented a car, the contract for

which was found in the tan jeep. And

86a

Duke had on him at the time of his arrest

a book with Wells' name and phone number.

This evidence is adequate to allow the

jury reasonably to conclude that Wells

knowingly and intentionally joined the

conspiracy.

Dill

Pinally, Dill claims that the

evidence against him was insufficient.

There was, however, considerable evidence

linking him to the conspiracy. Dill

lived in Georgia until early 1980, when

he came to Maine and lived in one hotel

after another. He bought a pick-up truck

with over $3,000 in cash--from which the

jury could reasonably conclude that he

hoped to avoid leaving any trace of his

transactions. Dill bought the SUNSHINE

in Hubbard's name, and then outfitted the

boat with radar and radio equipment,

87a

again in Hubbard's name. He paid for

the boat and this material with cash

and several separate checks. He told

inconsistent stories about what he

planned to do with the boat. He had the

boat repaired--for which he again paid in

cash--and was observed using the boat.

The boat was moored at the Turkey Cove

dock, and DEA agents testified that

small boats like the SUNSHINE are often

used by drug smugglers to guide to shore

larger vessels that carry the contraband.

In addition, on March 20, 1980, Dill

talked to a realtor about buying the

Turkey Cove property (he did not then buy

it) and paid special attention to the

dock. When Hubbard was arrested, he

carried two slips of paper with Dill's

name and phone number, and "Craig 300"

was written in a notebook found in the

back of the jeep. While some of this

88a

evidence by itself may not be highly

incriminating, we have no doubt that the

jury might reasonably have concluded on

the basis of the totality of the evidence

that Dill knowingly and intentionally

joined the conspiracy.

vi

Other Issues

Various of the defendants

raise other arguments which do not

require extensive discussion.

A

Defendant Dill argues that the

jury could not validly convict him on the

basis of his having provided members of a

conspiracy with a boat unless it also

believed that he knowingly and intention-

ally agreed to join the conspiracy.

Hence, he says, the trial court ought to

have adopted his proposed instructions,

which emphasized agreement, specific

89a

intent, and criminal knowledge. It is,

however, well established that a court

need not “deliver a requested instruction

verbatim." United States v. Winter, 663

P.2€ 1120, 1146 (lst Cir. 1981), app.

pending. And we are satisfied that the

district judge's instructions were fair,

impartial, and complete statements of the

law, adequately emphasizing the need to

find agreement, knowledge, and intent.

The district judge stated, for example,

But what the law says is that

before a jury may find that a

Gefendant has become a member of a

conspiracy, the evidence must show

beyone a reasonable doubt that the

conspiracy was willfully and

knowingly formed and that the

Gefendant willfully and knowingly

participated in the unlawful plan

with the intent to advance or

90a

further some illegal object or

purpose of the conspiracy. In

other words, although willful

participation in a conspiracy may

be established by circumstantial

evidence, there must be some

evidentiary basis for inferring

that the defendant knew about the

conspiracy and intended to partici-

pate in it and to make it succeed.

‘+. s So if a defendant with

understanding of the unlawful

character of a plan voluntarily and

intentionally encourages, advises

Or assists for the purpose of

furthering the undertaking or

scheme, that defendant then becomes

@ willful and knowing participant

in the scheme; in other words, a

conspirator.

These instructions were adequate. See

Sla

United States v. Irwin, 593 F.2d 138,

140-141 (lst Cir. 1979); United States v.

Coast of Maine Lobster Co., 557 F.2d 905,

909 (lst Cir.), cert. denied, 434 .S. 862

(2977). Other requested instructions

based on United States v. Falcone, 109

P.2d 579 (2d Cir.), aff'd, 311 U.S. 205

(1940), were inappropriate here.

B

Dill contests the admission

of “expert” testimony by Agent Cunniff

about the general practices of drug

smugglers. The issue is whether the risk

of prejudice outweighed the probative

value of Cunniff's testimony. See Fed.

R. Evid. 403. On the one hand, smuggling

tons of marijuana is a complex matter.

Agent Cunniff's testimony explained the

methods drug smugglers generally use;

thus it was testimony that would "assist

the trier of fact to understand the

92a

evidence,” Fed. R. Evid. 702, and helped

the jury determine which alleged facts

were material to the charges made against

which defendants. On the other hand,

Agent Cunniff sat at the prosecutor's

table, and much of his testimony con-

cerned behavior, such as making lists and

buying boats, in which innocent people

commonly engage. Although we recognize

the risk of prejudice, the question

facing the lower court was one of bal-

ance, "[T)he propriety of receiving

expert testimony rests within the sound

discretion of the trial court." United

States v. Fosher, 590 F.2d 381, 382 (lst

Cir. 1979). Similar evidence has been

admitted in other cases. See, €.g.,

United States v. Golden, 532 F.2d 1244,

1247-48 (9th Cir.) (per curiam) (DEA

agent testifies about the price of

drugs), cert. denied sub nom. Trowery v.

93a

United States, 429 U.S. 842 (1976);

United States v. Sellaro, 514 P.2d 114,

118-19 (8th Cir. 1973) (FBI agent testi-

fies about bookmaking practices), cert.

denied, 421 U.S. 1013 (1975). “Given the

broad discretion allowed a trial court in

determining the admissibilty of expert

testimony," United States v. Fosher, 590

F.2d at 382, as well as the permissive

language of Fed. R. Evid. 403, we find

no error here.

Cc

1. Dill argues that the lower

court erred in refusing to allow discov-

ery of documents that he believes were

essential to the cross-examination of

Agent Cunniff. After Agent Cunniff

testified on direct examination (about

the general habits of drug smugglers and

his investigation of Turkey Cove), the

defense sought, in the trial judge's

94a

words, "a vast number of DEA manuals,

guidelines, reports and memoranda,

opinions, rules or regulations issued by

the United States Department of Justice,

and also by the DEA, all relating to drug

smuggling on the coast of Maine and the

eastern seaboard of the United States."

As the defense conceded, this material

did not involve “any documents whatsoever

which [were] involved in the investiga-

tion of this particular case." The trial

judge believed that these documents were

not essential to Dill's defense and that,

given the timing of the request and the

burden it would impose on the government,

the request should be denied. Having

reviewed the request and the testimony,

we agree.

This general conclusion dis-

poses of most of Dill's specific claims

that one or another rule or statute

discovery.

95a

required the district court to allow this

705. But, as the district court stated,

Evidence Rule 705 provides that on

cross~-examination an expert witness

may be required to disclose the

underlying facts or data upon which

his expert opinion was based. Mr.

Cunniff testified that his expert

opinion was based upon his prior

experience in drug smuggling

investigations along the coast of

Maine. At no time did he indicate

that that opinion was predicated

upon the manuals, reports, rules

and regulations production of which

is here sought.

This statement is correct and disposi-

tive.

Dill refers to Fed. R. Evid.

Dill refers to Fed. R. Crim P.

governing discovery and inspection.

96a

But the district court held that the

request under that rule was untimely ("as

the defendants were on notice that this

testimony would be presented over two

weeks ago prior to the start of the

trial") and that the defendants had not

shown how the documents were "material to

the preparation of [their] defense."

Rule 16 requests ordinarily must be made

before trial. See United States v.

Jensen, 608 F.2d 1349, 1357 (10th Cir.

1979); 2 C. Wright, Federal Practice and

Procedure § 257 (1982). And Rule 16(a)

(1)(c) specifically limits discovery to

documents “which are material to the

preparation" of the defense. According-

ly, the district court's ruling was well

within its power.

Although Dill also refers to

Fed. R. Crim. P. 17 governing subpoenas,

that rule gives the district court

ee

97a

adequate authority to deny a subpoena

where production would be unreasonable.

See United States v. Nixon, 418 U.S. 683,

698 (1974). Because the district court

found the requested subpoena "far too

broad", “untimely,” and “harrass[ing],"

and since these findings were well within

its discretion, see United States v.

Lieberman, 608 F.2d 889, 904 (lst Cir.

1979), cert. denied, 444 U.S. 1019

(1980); 2 C. Wright, supra, at § 275,

this rule does not help Dill. Moreover,

since we believe the district court could

reasonably find that the information

sought was not “material” or necessary

for effective cross-examination of Agent

Cunniff, we reject Dill's “witness

confrontation” claim under the Sixth

Amendment. See Davis v. Alaska, 415 U.S.

308, 318 (1974); Chambers v. Mississippi,

410 U.S. 284, 295 (1973).

98a

Finally, Dill argues the

Jencks Act, 18 U.S.C. § 3500, and the

Freedom of Information Act, 5 U.S.C. §

552, support his document request. But

the defendants argued no FOIA or Jencks

Act request to the court below, and they

are therefore barred from pursuing those

claims here. See United States v. Campa,

679 F.2d 1006, 1011 (list Cir. 1982);

United States v. Carter, 613 F.2d 256,

261 (10th Cir. 1979), cert. denied, 449

U.S. 822 (1980) ("By failing to make a

timely motion for the production of the

Jencks Act materials as the statute

requres, appellants waived any right they

may have had to complain on appeal of an

alleged lack of governmental produc-

tion."). There is no special circun-

stance warranting an exception.

y Dill argues that the

government violated its agreement under

99a

an April 8, 1981, court order to produce

all Jencks Act materials at least five

days prior to the start of the trial.

The claim of violation was not made to

the court below, and accordingly is

waived.

3. Dill argues (in his reply

brief) that the government violated the

Jencks Act anew when it discussed testi-

mony Agent Cunniff gave in other trials.

However, a "transcript of a witness'

testimony in a prior trial does not come

within the language of the Jencks Act."

United States v. Baker, 358 F.2d 18, 20

(7th Cir.), cert. denied, 385 U.S. 869

(1966); cf. Pittsburgh Plate Glass Co. v.

United States, 360 U.S. 395, 398 (1959)

(grand jury minutes not covered by Jencks

Act). Regardless, given the fact that

the testimony is part of the public

record, the government's failure to

100a

disclose the material would constitute

harmless error. See, e.g., United States

v. Honneus, 508 F.2d at 572-73.

D

Wells argues that his in-court

identification by former Coast Guardsman

Anthony Stewart, who had boarded the

SUNSHINE when it was in distress on May

20, 1980, violated his Fifth and Sixth

Amendment rights. During the trial,

Stewart had been called to the court-

house to identify defendants Wells and

Duke as the men he saw on the SUNSHINE.

While waiting to meet with the U.S.

Attorney, Stewart talked with three Coast

Guardsmen who were also at the courthouse

to identify Wells and Duke. They had

already identified the two men from

photographs and assured Stewart that it

was “easy to pick them out." After the

U.S. Attorney had talked with Stewart

10la

about the case, the U. S. Attorney told

him, in Stewart's words, to “just look

around to see if [he] could pick them

out.” When Stewart went to the court-

house snack bar later that day, he

noticed and identified Wells and Duke.

The district judge described the incident

as follows:

The defendant was standing with a

group of others, some eight or

nine, of whom two may have been

women, the others men; all dressed

in civilian clothes in the lunch

area in the courthouse; and without

prompting or suggestion of any

type, identified the two indivi-

duals in question. .. . [There is

no] evidence to support a finding

by this Court that the identifica-

tion occurred as a result of an

arranged confrontation oe

102a

While it's true that the witness

Stewart was requested by the United

States Attorney to keep his eyes

open as he walked around the

courthouse to see whether there was

anyone whom he might indentify,

there is nothing in the record to

support the finding by the Court

that the actual confrontation which

occurred was in any way prearranged

by the United States Attorney's

Office.

Wells claims that these cir-

cumstances amount to a violation of the

Pifth Amendment. We disagree. The Fifth

Amendment right to due process protects a

Gefendant against unduly suggestive

identification procedures. Thus, the

right is invoked in identification

situations to prevent “the primary evil"

of "a very substantial likelihood of

103a

irreparable misidentification." Neil v.

Biggers, 409 U.S. 188, 198 (1972),

guoting Simmons v. United States, 390

U.S. 377, 384 (1968); see Manson v.

Brathwaite, 432 U.S. 98, 114 (1977)

("reliability is the linchpin"). Stewart

was not subjected to a suggestive en-

counter, nor was the incident orchestrat-

ed by the government. Neither the

comments of the U.S. Attorney nor the

comments of the Coast Guardsmen increased

the likelihood that Stewart would identi-

fy Wells and Duke as the men aboard the

SUNSHINE. See United States v. Massaro,

544 F.2d 547, 550-51 (lst Cir. 1976)

(chance encounter in courthouse hall),

cert. denied, 429 U.S. 1052 (1977).

Accordingly, we find no violation of

Wells’ Fifth Amendment rights.

Wells also claims a violation

of the Sixth Amendment. But the Sixth

104a

Amendment right to counsel at identifica-

tion sessions is designed to protect

defendants from Suggestiveness or other

Prejudicial acts that might otherwise tak

place. See Moore vy. Illinois, 434 u.s.

220, 224 (1977). The right to counsel at

an identification session, the Supreme

Court explained in United States v. Wade,

see GS. 6. 338 237 (1967), depends on

"whether potential substantial prejudice

to defendant's rights inheres in the

particular confrontation and [on] the

ability of counsel to help avoid that

prejudice." See also Gilbert v. Cali-

fornia, 388 U.S. 263 (1967). Since

Stewart's identification of Wells and

Duke was not arranged by the government,

since it was not "suggestive," and since

it was accidental, “we fail to see any

harm resulting from the defense counsel's

absence." United States v. masaro, 544

105a

P.2d at 551 (concerning an accidental

identification in the courthouse halls)

(opinion by Mr. Justice Clark).

E

Pinally, defendants argue that

the agents’ use of nightscopes, spotting

scopes, binoculars, telescopes, and

aerial surveillance in observing activi-

ties on the Turkey Cove property violated

their Fourth Amendment rights. After

examining the record, we agree with the

government that appellants are foreclosed

from raising this issue on appeal by

their failure to present it to the court

below.

Toward the close of cross-

examination of the government agents

about their use of optical equipment, the

Gistrict judge asked the defendants

whether they claimed “that any Fourth

Amendment rights are violated by the use

106a

of a telescope .. . or a nightscope to

observe activity on a dock such as this."

Counsel for defendant Duke responded, “No

Your Honor. That's not our position."

No one disagreed. Later in the suppres-

sion proceedings, the judge again asked

whether the defendants contended that

their Fourth Amendment rights were

infringed by “observations made from the

[observation post] across the St. George

River." The judge stated that he

believed that no violation could have

occurred unless the sight-enhancing

equipmeht permitted the agents to see

inside the structures on Lot No. 3, and

the defense counsel replied that that

was "a correct statement of the law."

This was a reasonable position to take,

given the case law on the subject. See

e.g., United States v. Lee, 274 U.S. 559

(1927) (Brandeis, J.) (approving use of

107a

search lights, marine glasses, and field

glasses); United States v. Lace, 669 F.2d

46 (2d Cir. 1982) (approving use of

nightscopes, 130-power Questar lens, and

infra-red goggles on rural property);

United States v. Allen, 633 F.2d 1282,

1289-90 (9th Cir. 1980) (approving use of

helicopter surveillance of secluded

sea-~side ranch where airspace above

property was routinely traversed by Coast

Guard heicopters), cert. denied, 454 U.S.

833 (1981); United States v. Minton 488

P.20d 37 (4th Cir. 1973) (per curiam)

(approving use of binoculars), cert.

denied, 416 U.S. 936 (1974). Pinally,

during oral argument at the closing of

the motion to suppress, no defense

attorney argued that the officers' use of

optical equipment constituted a Fourth

Amendment violation. In these circum-

stances, we think the district court's

108a

finding that the defendants waived this

claim, 509 F. Supp. at 1384 n. 9, is

supported by the record. See United

States v. Campa, 679 F.2d at 1011 (argu-

ment not made below will not be consider-

ed on appeal absent special circum-

stances); Langton v. Berman, 667 F.2d

231, 233 (lst Cir. 1981); United States

v7. Milier, 636 ¥.26 850, 853 (let Cir.

1980) (per curiam).

For the reasons stated above,

the convictions returned against the

appellants are affirmed.

110a

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[JUDGMENT OF UNITED STATES COURT OF

APPEALS FOR THE FIRST CIRCUIT

Entered January 25, 1983 in Case Nos.

81-1538-1540].

This cause came on to be heard on

appeal from the United States District

Court for the District of Massachusetts,

and was argued by counsel.

Upon consideration whereof, It is

now here ordered, adjudged and decreed as

follows: The judgment of the District

Court is affirmed.

By the Court: Clerk.

ll2a

[ORDER OF COURT, UNITED STATES COURT

OF APPEALS FOR THE FIRST CIRCUIT,

Entered March 9, 1983,

in Case No. 81-1540]

Upon consideration of the "Petition

for Rehearing and Suggestion for Rehear-

ing En Banc", which document was submit-

ted to the members of the panel and to

the judges of the Court who are in

regular active service; and

The judges of the panel having

voted to deny the petition for rehearing,

and the judges of the Court who are in

regular active service having voted

against rehearing en banc,

It is ordered that said application

for hearing en banc is hereby denied.

By the Court:

Dana H. Gallup, Clerk

By: Francis P. Scigliano

Chief Deputy Clerk

ll3a

[ORDER OF SUPREME COURT OF THE

UNITED STATES, Case No. A-881)

Upon Consideration of the applica-

tion of counsel for petitioner.

It is Ordered that the time for

filing a petition for writ of certiorari

in the above-entitled cause be and the

same is hereby, extended to and including

June 7, 1983.

/s/William J. Brennan, Jr.

Associate Justice of the

Supreme Court of the United

States

Dated this 29th day of April, 1983

ll4a

[PETITIONER'S REQUEST FOR DISCOVERY

AT TRIAL (Excerpt of proceedings

in the United States District Court

for the District of Maine, May 4,

1981))

MR. GARLAND: May it please the

Court, I would move this Court to have

the Government disclose, prior to the

completion of cross-examination of this

witness before he's finally released as a

Government witness and before defense

counsel finally cross-examines him,

since I understand the Government intends

to return him to the stand, the follow-

ing: The DEA agent's manual, specifically

portions related to importation and

distribution of marijuana.

1l5a

Number two, the DEA domestic opera-

tion guidelines, specifically those

portions related to the importation and

distribution of marijuana.

Number three, the DEA summary

reports, as well as detailed reports,

concerning the drug smuggling cases on

the Maine coast that this witness has

participated in the investigation of;

especially those portions of the report

that relate to the use of items such as

he has testified to as being typically

used in those cases.

Reports including smuggling cases

where Michael Cunniff was the agent in

charge on the eastern seaboard, especial-

ly those in Maine.

In addition, all cases that Mr.

Cunniff has been involved in that were

related to importation into Canada.

1l6a

All final opinion, rules and regula-

tions issued by the United States Depart-

ment of Justice and the DEA relating to

investigation of marijuana importation

and distribution along the eastern

seaboard into the United States and into

Maine.

117a

[UNITED STATES CONSTITUTION

AMENDMENT V (1791)]

No person shall be. . . deprived of

life, liberty, or property, without due

process of law ...--«

AMENDMENT VI [1791]

In all criminal prosecutions, the

accused shall enjoy the right to be...

informed of the nature and cause of the

accusation; to be confronted with the

Witnesses against him; to have compulsory

process for obtaining witnesses in his

Sewee «6 } *

118a

[THE JENCKS ACT, 18 U.S.C. §3500]

Demands for production of

statements and reports of

witnesses

(a) In any criminal prosecution

brought by the United States, no state-

Ment or report in the possession of the

United States which was made by a Govern-

Ment witness or prospective Government

witness (other than the defendant) shall

be the subject of subpoena, discovery, or

inspection until said witness has testi-

fied on direct examination in the trial

of the case.

(b) After a witness called by the

United States has testified on direct

examination, the court shall, on motion

of the defendant, order the United States

to produce any statement (as hereinafter

defined) of the witness in the possession

of the United States which relates to the

119a

subject matter as to which the witness

has testified. If the entire contents of

any such statement relate to the subject

matter of the testimony of the witness,

the court shall order it to be delivered

directly to the defendant for his examin-

ation and use.

(c) If the United States claims

that any statement ordered to be produced

under this section contains matter which

does not relate to the subject matter of

the testimony of the witness, the court

shall order the United States to deliver

such statement for the inspection of the

court in camera. Upon such delivery the

court shall excise the portions of such

Statement which do not relate to the

subject matter of the testimony of the

witness. With such material excised, the

court shall then direct delivery of such

Statement to the defendant for his use.

120a

If, pursuant to such procedure, any

portion of such statement is withheld

from the defendant and the defendant

objects to such withholding, and the

trial is continued to an adjudication of

the guilt of the defendant, the entire

text of such statement shall be preserved

by the United States and, in the event

the defendant appeals, shall be made

available to the appellate court for the

purpose of determining the correctness of

the ruling of the trial judge. Whenever

any statement is delivered to a defendant

pursuant to this section, the court in

its discretion, upon application of said

defendant, may recess proceedings in the

trial for such time as it may determine

to be reasonably required for the examin-

ation of such statement by said defendant

and his preparation for its use in the

trial.

l2la

(d) If the United States elects not

to comply with an order of the court

under subsection (b) or (c) hereof to

deliver to the defendant any such state-

ment, or such portion thereof as the

court may direct, the court shall strike

from the record the testimony of the

witness, and the trial shall proceed

unless the court in its discretion shall

determine that the interests of justice

require that a mistrial be declared.

(e) The term "statement", as used

in subsections (b), (c), and (d) of this

section in relation to any witness called

by the United States, means--

(3) a written statement made by

said witness and signed or otherwise

adopted or approved by him;

(2) a stenographic mechanical,

electrical, or other recording, or a

transcription thereof, which is a sub-

122a

stantially verbatim recital of an oral

statement made by said witness and

recorded contemporaneously with the mak-

of such oral statement; or

(3) a statement, however taken or

recorded, or a transcription thereof, if

any, made by said witness to a grand

jury.

123a

FEDERAL RULES OF EVIDENCE

RULE 401. Definition of "Relevant

Evidence"

"Relevant evidence” means evidence

having any tendency to make the existence

of any fact that is of consequence to the

determination of the action more probable

or less probable than it would be without

the evidence.

RULE 402. Relevant Evidence Generally

Admissible; Irrelevant Evidence

Inadmissible

All relevant evidence is admissible,

except as otherwise provided by the

Constitution of the United States, by Act

of Congress, by these rules, or by other

124a

rules prescribed by the Supreme Court

pursuant to statutory authority. Evi-

dence which is not relevant is not

admissible.

RULE 403. Exclusion of Relevant Evi-

dence on Grounds of Prejudice,

Confusion, or Waste of Time.

Although relevant, evidence may be

excluded if its probative value is

substantially outweighed by the danger of

unfair prejudice, confusion of the

issues, or misleading the jury, or by

considerations of undue delay, waste of

time, or needless presentation of cumula-

tive evidence.