# Appendix — Dill v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1104%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1983
- **Citation:** 464 U.S. 823

## Text

- . Office - “preme Court, US. #
jon «6%: 8S
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

scence ie = A I ae eee eh ——— oe

ee,

Brisa

“-— -~ —- eo wee
cee

Deeememmeammmeell
easier
ines

eancmnanepsocamion ieee Soeneel “
—

- - all

ta

llla

[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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1104%3A2. Public record. Not legal advice.