Appendix — O'Hare v. United States

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FILED

JAN 16 1985

ALEXANDER L. STEVAS,

CLERK

No.

(Court of Appeals, Fourth Circuit No. 5098)

IN THE SUPREME COURT OF THE UNITED STATES

Term, 1985

JOHN O'HARE, EDDIE BRANTLEY,

THOMAS EARNEST FOLSKE, THOMAS

SAMS HIGHTOWER, TIMOTHY ALLEN

LAXTON, HARRELL LEWIS, JR., and

JOHN ISIDORE STEVENS,

Petitioners,

vs.

THE UNITED STATES OF AMERICA

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ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Pau! N. Uricchio, Jr.

Arthur G. Howe

Barry Krell

URICCHIO, HOWE & KRELL, P.A.

Post Office Box 399-17 % Broad Street

Charleston, South Carolina 29402

(803) 723-7491

APPENDIX A

United States v. O'Hare, No. 82-5098 (4th Cir. September

11, 1984.) (Caption Omitted.)

HOFFMAN, Senior District Judge:

Defendants appeal! from a guilty finding at a stipulated

facts trial on a multiple count indictment alleging

various drug related charges. The twenty-two appellants

were convicted of conspiracy to import marijuana

in violation of 21 U.S.C. Sec. 963 (Count One), conspiracy

to possess marijuana with intent to distribute in violation

of 21 U.S.C. Sect. 846 (Count Two), and importation

of marijuana in violation of 18 U.S.C. Sect. 2, 21

U.S.C. Sects. 952(a) and 960 (Count Three). In

addition to the three counts above, appellant Gary

Gallopo was convicted of a fourth count, possession

with intent to distribute marijuana in violation of

18 U.S.C. Sect. 2 and 21 U.S.C. Sect. 841(a)(1) (Count

Four).

Charges were originally brought against twenty-

six defendants for a drug smuggling operation that

occurred in November 1980. Three of the defendants

pleaded guilty, and a fourth defendant, Robert John

Manbeck, remained a fugitive throughout the trial.

An extensive suppression hearing was completed

on April 1, 1981. At that time all the remaining

defendants, with the exception of Gallopo, waived

their right to a trial by jury and submitted to a bench

trial. The government and the defendants agreed

to a stipulation adopting the record of the suppression

hearing as the record of the case, subject to any

objections filed. Gallopo stipulated to only part of

the record, and his case followed the others. The

court found all defendants guilty of all charges.

Though the case below was a stipulated facts

trial, the parties offer divergent renditions of the

facts. Fortunately, the trial court rendered a lengthy

narrative of the facts which we find to be a substantially

complete representation of what was stipulated.

The facts stated here will be a slightly condensed

version of those described by the court. See United

States v. Manbeck, 526 F.Supp. 1091, 1096-1106 (D.S.C.

1981).

At approximately 8:45 p.m. on November 26,

1980, Deputy Harold Canady of the Colleton County

Sheriff's Department received a telephone call from

his office advising him that an unidentified person

had called the local fire department and stated that

a truck was being loaded with marijuana at Bennett's

Point, South Carolina. Canady and two other officers,

Deputy Allen Beach and Deputy Ear! Fowler, proceeded

to Bennett's Point. All three arrived at approximately

9:30 p.m., Canady and Beach in one car and Fowler

in another. Canady and Beach proceeded on to the

landing, while Fowler checked some vehicles parked

on the road leading to the landing.

At the landing, Officers Canady and Beach first

observed a tractor-trailer backed up between a shrimp

house and the dock. Canady recorded the number

of the Georgia license plate on the tractor-trailer.

The two officers then observed a white "U-Haul type"

truck parked in the parking lot next to the landing,

and recorded its Georgia license plate. A brown

“econoline-type" truck with Georgia license plates

was also observed at the scene, parked facing the

tractor-trailer behind the shrimp house. In addition,

the officers observed a shrimp boat named the “Hazel

B" docked at the south dock. No individuals were

observed in the area at this time.

After notifying Colleton County Sheriff John

Siegler of their observations, Officers Canady and

Beach proceeded to check out another known drug

smuggling site referred to as the "Wiggins area".

Officer Fowler remained to maintain a surveillance

point on Bennett's Point Road at the entrance to the

landing. Finding nothing unusua! at the Wiggins area,

the two officers went to a location known as the

"Brickyard Bridge" which was on the only road that

runs from U. S. Highway 17 to Bennett's Point. Upon

arriving at Brickyard Bridge, Officers Canady and

Beach received a radio call from Officer Fowler

advising that the tractor-trailer had departed Bennett's

Point landing. Officer Seigler radioed Officers Canady

and Beach and directed them to stop the tractor-

trailer at the intersection of Bennett's Point Road

and U.S.Highway 17.

Officers Canady and Beach proceeded down the

road about one mile ahead of the tractor-trailer,

while Officer Fowler followed the vehicle from behind.

At the designated intersection, Officer Canady positioned

his patrol car to block the road. When the tractor-

trailer--a Peterbilt tractor with the name "Polar

Transportation" on its door—arrived, Officer Canady

went to the driver's side and asked the driver, defendant

Kenneth Brogden, to step out of the vehicle. Brogden

stepped out and, on request, produced his driver's

license and registration. He also provided Officer

Canady with a bill of lading which indicated that

the tractor-trailer was carrying a load of lard from

a Charleston business named "Central Soya". While

the officers ran a check, Brogden was placed in the

patrol car because the weather that evening was

cold and rainy. Officer Canady then radioed Sheriff

Seigler and provided him with an up-dated report

of the situation and gave him the information from

the bill of lading. Meanwhile, Officers Canady and

Beach elicited from Brogden that he was at Bennett's

Point visiting a friend. When asked where he was

keeping his tractor-trailer truck, Brogden's response

conflicted with what the officers had previously observed

at Bennett's Point. When asked about when he had

left Charleston Brogden responded that he had left

two days before but had become ill and stayed in

a motel room for some time before proceeding to

Bennett's Point. Sheriff Seigler subsequently radioed

officers Canady and Beach and informed them that

he chould not locate any company in Charleston

with the name shown on the bill of lading provided

by the driver.

Sometime soon thereafter, Officer Fowler, who

had arrived at the scene, told Officers Canady and

Beach to get out of the patrol car and come to the

back of the trailer. Upon approaching the rear of

the trailer, the officers smelled an extremely strong

odor of what they believed to be marijuana coming

from the back of the trailer. Brogden was then placed

under arrest for possession of marijuana and searched

and handcuffed.

While the Peterbilt tractor and trailer were being

removed from the scene, Officer Canady spotted

a second tractor-trailer coming from Bennett's Point.

As it approached, Canady observed that it was a

Ford tractor-trailer that bore Georgia license plates

and, like the Peterbilt, carried the name "Polar Transportation"

on its door. The tractor-trailer stopped and, as before,

the odor of marijuana was detected coming from

the trailer. Deputy Fowler immediately placed the

driver of this second tractor-trailer, Donald Bol.anon,

under arrest.

Officers Canady, Beach, and Fowler, and others

on the scene, then proceeded to organize a convoy

to move the seized veh’ les and contraband to Walterboro.

As the convoy proceeded toward Walterboro, Officer

Robinson, who had remained at the scene of the arrest

with Bohanon radioed the convoy and told them to

stop moving because Bohanon had informed Officer

Robinson of the presence of a third tractor-trailer

at Bennett's Point landing. When Officers Canady

and Beach turned around to head back to the landing

area, they saw the two vehicles previously observed

at the landing, the white "U-Haul" type truck and

the brown van, stalled in traffic behind the tractor-

trailer. Both vehicles were stopped by the officers.

Officer Beach approached the white truck and asked

the driver, David Summerville, who was the sole occupant

of the truck, to step out and show his driver's license.

As Summerville handed over his license, Officer Beach

detected the odor of marijuana on him. Summerville

was immediately placed under arrest. The two occupants

of the brown van, Mark Sale, who was driving the

van, and Lorenz Proden, who was a passenger, were

also arrested.

Thereafter, at about 3:30 a.m., Sheriff Seigier

arrived on the scene and he and Officers Canady

and Beach headed towards Bennett's Point Landing.

The officers observed that it was quiet and no other

vehicles were present. A second trawler, the "Billy

B", was now at the dock beside the "Hazel B". The

three also observed what appeared to them to be

lights coming from some type of vessel out on the

water. They could not determine whether the lights

were coming toward the dock or going away.

After checking the area and finding nothing, the

three officers made contact with an officer of the

U.S. Customs Patrol. The Customs officer was briefed

as to what had occurred. Officers Canady, Beach

and Fowler then left the scene in order to obtain

search warrants for the four vehicles. While at the

Magistrate's residence, the officers received a call

from the dispatcher informing them that Customs

had picked up a vessel. Deputies Beach and Fowler

immediately departed to assist Customs officials

with the people aboard the vessel.

Customs Patrol Officers testified during the suppression

hearing as to the developments which led to the arrest

of the defendants found on board the two shrimp

trawlers, the "Mary and John" and the "Lady Lisa".

Customs Patrol Officers had patrolled the St.

Helena Sound area for two to three weeks prior to

the evening of November 26th and had not observed

any boats in the area. On the evening of November

26th, Customs Patrol Officer McDonald was apprised

of the situation at Bennett's Point and, at approximately

3:00 a.m., he directed a customs vesse! to proceed

down the Ashepoo River to see what could be located.

Prior to sending this vesse! out, Officer McDonald

and others heard the sound of a diesel engine in the

area of Bennett's Point which, according to McDonald,

sounded as if it were going out the Ashepoo. Thereafter,

at approximatley 3:30 a.m., several Customs Patrol

Officers left their location some twelve or thirteen

miles from Bennett's Point in a twenty-seven foot

customs vessel and headed for Bennett's Point. Upon

reaching the end of the Ashepoo River, at approximately

4:00 a.m., they observed lights from what appeared

to be two vessels in the St. Helena Sound. The customs

Patrol] approached and circled the anchored vessels,

recorded their names, and ran a systems check on

them. That check indicated that the vessels were

suspected of involvement in drug smuggling.

The Customs Patrol Officers identified themselves

and, after a request, were given permission to board

the "Lady Lisa" by the captain. The spokesman told

the Customs Patrol! that he was from Thunderbolt,

Georgia, and had eight people aboard. Because of

the strong winds and high seas the officers had great

difficulty in pulling alongside the vess.« . The Customs

Patro! Officers decided not to board at that time

for safety reasons and the spokesman aboard the

"Lady Lisa" agreed to follow the customs vessel back

into the Ashepoo to be boarded. The captain of the

"Mary and John" informed Customs that he was coming

from Charleston and going to St. Augustine with

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four people aboard. He also agreed to follow the

Customs vessel back into the Ashepoo, and proceeded

behind the "Lady Lisa."

As the Customs vessel! led the two trawlers in,

the officers observed that although the captain of

the "Lady Lisa" had earlier stated that he was not

familiar with the waters, he headed for deeper water

whenever the Customs vessel was running into shallow

water. In addition, no shrimp nets were observed

aboard the vessels when the vessels were initially

approached.

The vessels were taken to the dock at Bennett's

Point at approximately 6:30 a.m. Customs Patrol

Officers, officers from the Colleton County Sheriff's

Department, and State Law Enforcement Division

(SLED) agents were at the dock and secured the vessels.

Customs Patrol Officers Shepard and McDonald boarded

the "Mary and John" and discovered that nine people

were aboard instead of the expected four. In addition,

the vesse! was now completely rigged with shrimp

nets. Upon entering the fishold, they observed what

appeared to be marijuana residue. The crew members

of the vessel! were then given their Miranda warnings

and placed under arrest at approximately 7:00 a.m.

Those arrested aboard the "Mary and John" were

John Wesley Flannel, Arthur Duncan, Jesse Mallory,

John Benjamin Barton, Jr., James Anthony Hastings,

Gregory Michael Scott, Aaron Douglas Staetter, John

Michael Iyoob and Robert Charles Michael.

Customs Patrol Officers Settles and Sheriden

boarded the "Lady Lisa” and gathered the crew in

the cabin. Settles observed that the deck appeared

to have been recently hosed down. He then climbed

dow into the fishold and smelled and observed residue

of what he believed to be marijuana. He also noticed

the absence of any fish or ice on the vessel. The

men aboard the "Lady Lisa", Thomas S. Hightowe;z,

John Isidore Stevens, Harrel Lewis, Jr., Timothy

Allen Laxton, Thomas Ernest Folske, Eddie Brantly

and John O'Hare, were given their Miranda rights

and placed under arrest.

On the dock itself, investigating officers found

bales of marijuana on the concrete and conveyor

belts. The bales of marijuana had tags attached to

them, and one of the same type tag was found in

plain view on the deck of the "Lady Lisa".

On November 27, 1980, warrants signed by Magistrate

Wood to search the Peterbilt tractor-trailer, the

while "U-Haul" type truck, the brown van and the

Ford tractor-trailer were executed under the direction

of Sheriff Seigler. Quite a few bales of marijuana

were discovered in each of the trailers being pulled

by the Peterbilt and Ford tractors and in the "U-Haul"

type truck. The total amount of marijuana found

in these three vehicles was later calculated to be

59,100 pounds. In addition, numerous items were

discovered in the brown van, including a wallent containing

identification of defendant Staetter (arrested on

the "Mary and John") and a red pad containing

numerous notations.

In their appeal from the district court's findings,

appellants raise the following issues: whether the

indictment should have been dismissed because of

alleged discrimination in the selection of the grand

jury foreman; whether the trial court erred when

it granted the government's motion to Nolle Prosequi

Count Four of the Indictment; whether the trial court

erred when it failed to suppress evidence discovered

during a search which took place after the defendants

were unlawfully seized and arrested; whether the

trial court misconstrued the stipulations, and thereby

erred when it overruled defendant's objections to

certain evidence; whether there was sufficient evidence

to support the convictions.

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The multitude of defendants in this case renders

it prudent to divide them into separate categories.

This court will utilize the clear separation already

provided by the arguments submitted on behalf of

three distinct groups among the defendants, each

group represented by their own brief.

The first group is made up of the defendants who

were on land while transporting the marijuana. Sale,

Proden, Brogden and Summerville, and of the defendants

who participated in the smuggling operation but were

not at the scene that evening, T. Manbeck and Herring.

Bohanon, driver of the second tractor-trailer, became

a witness for the government.

The second group of defendants is comprised of

those defendants arrested on board the two trawlers,

Flannel, Duncan, Mallory, Barton, Hastings, Scott,

Staetter, Iyoob, Hightower, Stevens, Lewis, Laxton,

Folske, Brantly and O'Hare. Robert Charles Michael,

who was on board the "Mary and John", also became

a witness for the government.

The last group is made up of one defendant, Gallopo,

who was arrested sometime after the incident on

information from participants that he was the driver

of a third tractor-trailer on the scene that evening.

The first two groups present identical issues for

appeal except as to the third issue, in which the first

group argues that the evidence seized from the land

vehicles should be suppressed, while the second group

argues that the evidence seized from the trawlers

should be suppressed. Defendant Gallopo presents

Only one issue, that there was insufficient evidence

to support his conviction. Because of this substantia!

overlap, all the parties will be treated together except

when their respective positions dictate separation.

The trial court found that defendants had established

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a prima facie case of discrimination against blacks

and women in the selection of grand jury forepersons

and deputy forepersons. United States v. Manbeck,

514 F. Supp. 141, 147-150 (D.S.C. 1981).! However,

in an excellent and thoroughly reasoned opinion, the

trial court also concluded that the presumption of

discrimination created by this prima facie showing

was adequately rebutted by proof of an absence of

discriminatory intent. Id. at 145-150.

In the interim period between the trial court's

decision and the hearing of this appeal, the Fourth

Circuit rendered an opinion, United States v. Hobby,

702 F.2d 446 (4th Cir. 1983), affirmed, S.Ct.

, 52 U.S.L.W. 5001 (7/2/84), which controls

the disposition of this issue. Like appellants here,

defendants in Hobby sought a dismissal of their indictment

! Footnotes at conclusion.

and a reversal of their convictions on the grounds

of discrimination in the selection of grand jury forepersons.

Denying the relief requested, this court held that

a federal grand jury foreperson has only ministerial

duties that cannot meaningfully affect the rights

of persons charged with crime. Id. at 470-471. The

supreme court affirmed Hobby, concluding that the

due process clause is not violated in light of the ministerial!

functions of the grand jury foreperson, and that the

equal protection clause does not protect a white

male from the discriminatory exclusion of blacks

and women.

The record in this case is devoid of any information

regarding defendants’ respective sex or race. Having

thus failed to establish the requisite basis for a claim,

there is no need to examine the merits underlying

appellants' argument. This issue is resolved against

appellants.

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After the suppression motions were heard, but

before trial in this case began, the government moved

to dismiss Count Four of the indictment, which had

charged defendants with the possession of marijuana

with intent to distribute. The government admits

that Count Four was dismissed so that pending state

charges on the same crime would not be precluded.

Code of Laws of South Carolina, Section 44-53-410

bars state prosecution for the same offense once

jeopardy has attached in the federal action.”

Defendants argue that this dismissal was improper

under either of two grounds. * The dismissal! of an

indictment under Fed. R. Crim. P. Rule 48(a) requires

leave of the presiding court.” Courts have held that

by including the phrase "leave of court" in rule 48(a),

"the Supreme Court intended to clothe the federal

courts with a discretion broad encugh to protect

the public interest in the fair administration of criminal!

justice." United States v. Cowan, 524 F.2d 504, 512

(Sth Cir. 1975), cert. enied sub nom. Woodruff v.

United States, 425 U.S. 971 (1975).° Defendants

argue that the trial court abused its discretion because

dismissal was not in the public interest as it violated

the public policy expressed in Code Section 44-53-

410 against successive state prosecutions and went

against the Justice Department's Petite policy prohibiting

duplicitous state-federal prosecutions.”

Alternatively, defendants argue that trial had

begun in this case, and thus, consistent with express

dictates of Rule 48(a), consent of the defendants

was needed before count four could be dismissed.®

Although the case had not yet been formally called

to trial when the Count was dismissed, defendants

contend that, because the record of the prior suppression

hearing was stipulated to as the record for trial,

jeopardy had attached and trial had commenced before

dismissal occured.

Both arguments are highly imaginative, but neither

is persuasive. To the extent that there may be a

general policy against successive federal-state prosecutions

for the same crime, the facts that this policy is not

followed in a given case does not automatically establish

that the public interest was violated. Supreme Court

decisions upholding the validity of duplicitous federal-

state prosecutions have recognized that there are

situations where the public interest is furthered dy

allowing these authorities to both pursue cases, regardless

of whether such efforts later turn out to be duplicitous.

See Rinaldi v. United States, 434 U.S. at 28; Bartkus

v. Illinois, 359 U.S. at 137; Abbate v. United States,

359 U.S. at 195. South Carolina may very well have

had substantial reasons for wishing to prosecute defendants

and there is nothing in the record that indicates otherwise. !°

The Supreme court has established that a trial

court's discretion to deny the government's motion

to dismiss an indictment is limited to situations

where dismissal is "clearly contrary to manifest

public interest." Rinaldi v. United States, 434 U.S.

at 30, quoting United States v. Cowan, 524 F.2d at

513; United States v. Perate, 719 F.2d 706 44th Cir.

1983); see also, United States v. Hamm, 659 F.2d

624, 628-632 (5th Cir. 1981). This Court cannot conclude

on the basis of the record presented that the trial

court abused its discretion when granting the government's

motion to dismiss. !

Defendants’ argument that jeopardy had attached

and trial had begun before dismissal, because the

record of the suppression heraring was stipulated

to, is equally unavailing. /2 The Supreme Court has

repeatedly emphasized that "(b)oth the history of

the double Jeopardy Clause and its terms deomonstrate

that it does not come into play until a proceeding

begins before a trier ‘having jurisdiction to try the

question of the guilt or innocence of the accused.™

Serfass v. United States, 420 U.S. 377, 391 (1975)

(citations omitted). Count Four was dismissed by

pretrial motion on grounds unrelated to the merits

of the case, and before the question of the guilt or

innocence of defendants was before the court. See

Serfass v. United States, 420 U.S. at 391-92; United

States v. Jorn, 400 U.S. 470, 479 (1971). Accordingly,

jeopardy had not attached, the trial! had not begin,

and Rule 48(a) did not require defendants consent

for dismissal of Count Four.

Finally, for the alleged violation of Rule 48(a),

defendants request the extraordinary remedy of a

reversal of the convictions on the counts for which

they were tried. However, prejudice to defendants

by the dismissal of Count Four is limited to exposure

to state criminal liability on that count, which exposure

has already occurred. The remedy for a wrongful

dismissal of a count of an indictment would be a

reinstitution of that count or a separate reindictment

on the same charge.!? But if defendants are again

indicted on Count Four, the Justice Department's

Petite policy would be directly implicated by the

intervening state prosecution. then, in all likelihood,

the government would again move for dismissal, and

it would probably be granted. To this extent, circumstances

have rendered this issue moot. In either case, defendants

are denied the relief requested.

Ill

A. SUPPRESSION OF EVIDENCE FROM THE

MOTOR VEHICLES.

1. Standing

Before the validity of the search and seizures

may be considered, it must first be rseolved which

of the defendants has standing to raise the claimed

violations.

i. Peterbilt Tractor-Trailer. The tria! court held

that defendants Herring, Proden, Summerville, Sale,

and the driver of the Peterbilt, Brogden, all had standing

to challenge the search and seizure of the Peterbilt.

Brogden had a privacy interest sufficient to be entitled

to standing because the tractor-trailer was entrusted

to his care. The other four defendants had standing,

according to the trial court, because "(a) sufficient

showing was made as to their interest in the marijuana

seized so as to warrant the finding that they had

a reasonable expectation of privacy in the Peterbilt

tractor-trailer and its contents." United States v.

Manbeck, 526 F.Supp. at 1100. Defendants established

their interest in the marijuana through testimony

that the smuggling operation was a joint venture

and each of the defendants had an undivided possessory

interest in the profits to be made from the sale.

This Court finds that defendants Herring, Proden,

Summerville and Sale should not have been granted

standing to challenge the search of the Peterbilt.!4

The privacy interest that must be established to support

standing is an interest in the area searched, not an

interest in the items found. Rawlings v. Kentucky,

448 U.S. 98, 104-106 (1980); United States v. Salvucci,

448 U.S. 83, 91-93 (1980); United States v. Ramapuram

632 F.2d 1149, 1154 (4th Cir. 1980), cert. denied,

450 U.S. 1030 (1981).1° As Rawlings made clear,

ownership of the items seized is, by itself, insufficient

to confer a privacy interest in the area searched.

At most, an interest in the items found may be a

factor considered when deciding whether there is

a privacy interest in the area searched. Rawlings

v. Kentucky, 448 U.S. at 105-106; United States

v. Salvucci, 448 U.S. at 91-92. See also Rakas v.

Illinois, 439 U.S. 128, 149-150 n. 17 (1978).!© Defendants

have not submitted any other persuasive evidence

of a privacy interest in the tractor-trailer.!” Consequently,

only Brogden has standing to challenge the search

of the Peterbilt.

ii, Ford Tractor-Trailer. The trial court held

that none of the defendants had standing to challenge

the search and seizure of the Ford tractor-trailer.

The driver of the Ford, Bohanon, became a government

witness and testified that he consented to the search.

For the reasons stated above, this Court agrees with

the determination of the trial court.

iii, White "U-Haul Type" truck. The trial court

held that no one, not even driver Summerville, had

standing to challenge the search and seizure of the

White "U-Haul type" truck. Summerville did not

testify at the suppression hearing, other indicia of

an expectation of privacy in the truck itself were

not submitted, and the ownership of the truck was

never Clearly established.

Thus, none of the defendants satisfied their burden

of showing a legitimate expectation of privacy in

the truck, and none have standing to challenge its

search and seizure. See, United States v. Lochan,

674 F.2d 960, 963-65 (Ist Cir. 1982).

iv. Brown van. The trial court held that only

driver Sale had standing to challenge the search and

seizure of the brown van. The passenger, Proden,

was denied standing because he failed to establish

any interest that would support an expectation of

privacy in the van. There is evidence that shows

Sale was given lawful and exclusive possession and

control over the van, and with it he was entitled

to an expectation of privacy therein. See, United

States v. Dickerson, 655 F.2d 559, 561 (4th Cir. 1981).

Conversely, Proden could only show that he was a

passenger in the van with the permission or acquiescence

of Sale. This showing alone is insufficient to vest

Proden with an expectation of privacy in the van.

See, Rakas v. Illinois, 439 U.S. at 148. Only Sale

has standing to challenge the search and seizure of

the brown van.

2. Search and Seizure of the Motor Vehicles

Defendants’ basic argument is that the search

and seizure of the Peterbilt was illegal, and the subsequent

searches of the other vehicles were tainted by this

initial illegality. In confuction, defendants argue

that Brogden was subject to a custodial interrogation

without first having been given the requisite Miranda

warning, which failure likewise served to taint the

searches and seizures that followed. The legality

of the search and seizure of the Peterbilt ne

detention of Brogden must therefore be resolved

first.

i. Peterbilt Tractor-Trailer. Defendants argue

that although the stop of the Peterbilt may have

been supported by a reasonable suspicion, !* the length

of time Brogden was detained (45 minutes to | hour)

exceeded the time limit for a permissible Terry stop

and thereby became a de facto arrest. See, Terry

v. Ohio, 392 U.S. | (1968). Defendants rely upon

Sharpe v. United States, 660 F.2d 967 (4th Cir. 1981),

vacated and remanded, 457 U.S. 1127 (1981); modified,

712 F.2d 65 (4th Cir. 1983), cert. granted, 53 U.S.L.W.

3040 (1984), for the proposition that an investigatory

stop may only be brief and certainly less than the

time span in this case.

Defendants’ reliance on Sharpe is misplaced.

Although defendants are correct that Sharpe emphasized

the limited and brief nature of a permissible Terry

stop, Sharpe also noted that after the initial, brief

questioning, "any further detention or search must

be based on consent or probable cause." Sharpe v.

United States, 660 F.2d at 970, quoting United States

v. Brignoni-Ponce, 422 U.S. 873, 882 (1975). Here,

unlike in Sharpe, the officers were provided with

probable cause well! within the confines of any brevity

requirement.!?

An officer has probable cause for arrest when,

at the time the arrest occurs, the facts and circumstances

within the officer's knowledge would warrant the

belief of a prudent person that the arrestee had committed

or was Committing an offense. Beck v. Ohio, 379

U.S. 89, 91 (1954). "In dealing with probable cause,

«- aS the very name implies, we deal with probabilities.

These are not technical; they are the factual and

practical considerations of everyday life on which

reasonable and prudent men, not legal! technicians,

act." Brinegar v. United States, 338 U.S. 160, 175

(1949). Recently, the Supreme Court held that the

existence of probable cause is to be judged by the

"totality of the circumstances," and added that even

anonymous tips may provide the basis for probabie

cause where there are other indicia of reliability.

See, Illinois v. Gates, U.S. _, 103 S.Ct. 2317,

2328-2336 (1983). The officers who detained Brogden

were aware of the anonymous phone tip informing

that marijuana was being smuggled at Bennett's

Point. This tip was supported by the reputation of

the area and the unusual! presence and acitivity of

the tractor-trailer, and by Brogden's unlikely description

of his activities and the fact that his answers contradicted

some of the earlier observations made by the officers

while at Bennetts Point landing.?° Within approximately

fifteen minutes of the stop Sheriff Seigler informed

the officers that the company listed on the bill of

lading provided by Brogden, "Central Soya", did not

exist.2!

Combined with the facts previously known to

the officers, there was sufficient information to

lead a reasonably prudent man to believe that Brogden

was participating in a marijuana smuggling operation.

These developments served to elevate the reasonable

suspicions of the officers to probable cause justifying

an arrest. Thus, assuming, arguendo, that a de facto

arrest occurred by virtue of the length of the detention,

such arrest was not illegal because probable cause

arose before a de facto arrest can be posited.

This finding alone, however, does not conclusively

resolve that Brogden was properly detained. In contrast

to the length of a detention, the quality or nature

of a detention may also exceed the limits of a Terry

stop.72 In other words, the way in which Brogden

was detained or "seized", while the officers conducted

their investigation might have been so serious an

intrusion on his personal liberty that it required probable

cause for arrest.

Some confusion exists inthe area of warrantless

detentions because there are "seizures” of a person

which are limited and need only a reasonable suspicion,

as in Terry v. Ohio, ~ and there are "seizures" of

a person which are so restrictive that they are indistinguishabl

from an arrest and require probable cause, as in Dunaway

v. New York. Both kinds of seizures involve detentions

where the person detained is not technically free

to leave while the officer pursues the investigation,

but they differ in degree. See, Florida v. Royer,

__US.at_—_, 103 S. Ct. at 1319, 1324-1325.

Which of these two types of seizures has occurred

can only be identified by examining the characteristics

of each particular detention in view of permissible

Terry stops, and by comparing the seizure to the

essentia! attributes of a formal arrest. See, Florida

v. Royer, 103 S. Ct. at 1325-1326; Michigan v. Summers,

452 U.S. at 700 (1981); Dunaway v. New York, 442

U.S. at 215 (1979).

The manner in which Brogden was initially stopped

poses no problem. This Court has already rejected

the notion that officers transform a Terry stop into

an arrest by virtue of blocking the progress of a vehicle

and drawing their weapons when approaching. See

United States v. Perate, supra; United States v.

Seni, 662 F.2d 277, 283 (4th cir. 1981) cert. denied,

455 U.S. 950 (1982). The former is a reasonable way

of effectuating the stop of a motor vehicle, and the

latter is a justified safety precaution.

However, the placing of Brogden in a patrol car

is more problematic.?> The government argues that

the officers could not let Brogden remain in. the cab

of the tractor, potentially allowing him access to

weapons or providing him with a means of escape.

Furthermore, the inclement weather made it unreasonable

to detain Brogden anywhere else but in the patrol!

car. Once in the patrol car, the government contends,

it was a proper safety precaution to ask Brogden

to keep his hands in clear view on the back of the

front seat.

undoubtedly reasons fo safety and security that would

justify moving a suspect from one location to another

during an investigatory detention.” Florida v. Royer,

103 S. Ct. at 1328. The problem arises because Brogden

was placed in a patrol car. This, of course, is not

an ideal location for the purposes of an investigatory

detention. The undisputed facts show that, to their

credit, the officers had no feasible alternative. This

court refuses to recognize a rule that all detentions

in a patrol car are per se arrests. Indicia associated

with arrest are often identified by their restrictive

or coercive nature, and, admittedly, there are certain

inherently coercive aspects to being placed in a patrol

car; but the Terry doctrine allows police officers

the use of "a number of devices with substantial coercive

impact on the person to whom they direct their attention,

including an official show of authority, the use of

physical force to restrain him, and the search of

the persons for weapons." Kolender v. Lawson,

U.S. ,» 103 S.Ct. 1855, 1862 (1983) (citations

omitted). In this case, the coercive and restrictive

aspects of Brogden's detention were unavoidable.7©

Similarly, ordering Brogden to keep his hands in view

was purely a safety precaution and was less intrusive

than a frisk, which under Terry, the officers were

fully entitled to do.

This case is unlike Brown v. Illinois, 422 U.S. 590

(1975), where the defendant was subject to threats

anc abuse, and unlike Dunaway v. New York, supra,

where the defendant was transported to the police

station and placed in an interrogation room. Brogden

was not informed that he was under arrest; the officers

did not believe that they had arrested him; and he

was not frisked or handcuffed. Brogden was removed

from the cab for safety reasons and placed in the

only available shelter-—a police car. In short, except

for this unavoidable happenstance, the manner in

which Brogden was detained lacks most of the trappings

of a formal arrest and is fully consistent with an

investigative stop. Balancing the nature and quality

of the seizure with the importance of the government's

interests, and taking into account that this was the

least intrusive means to effectuate the investigative

Stop, this court finds the officers' conduct to be a

permissible Terry detention—at least until probable

Cause arose--and not an arrest. See, United States

v. Place, 103 S. Ct. at 2642-2643 (balance nature

and quality of intrusion against the governmental!

interests); Florida v. Royer, 103 S. Ct. at 1325 (least

intrusive means reasonably available).

The foregoing conclusion also goes a long way

towards addressing defendants' claim that the search

and seizure was tainted because Brogden's right against

self-incrimination was violated.“°

All of the pertinent

statements made by Brogden came within the first

fifteen minutes of his detention.?” Thus, the inquiry

must focus on these first fifteen minutes.

Miranda safeguards are implicated only when

a suspect is subjected to interrogation in a custodial

setting. Miranda v. Arizona, 384 U.S. 436, 477-478

(1966); United States v. Stanley, 597 F.2d 866, 867

(4th Cir. 1979). This Court finds that the failure

to give Brogden the Miranda warning when he was

placed in the patrol car did not violate his Fifth Amendment

rights because he was not subjected to a custodial!

interrogation when the statements in question were

made.

We have already concluded that the detention

of Brogden was not a seizure amounting to an arrest.

Although this finding is not necessarily dispositive

of the custody issue, "(t)he question of what constitutes

a 'seizure' of a person under the fourth amendment

is quite similar to the determination of 'custody'

triggering rights under the fifth amendment." Moore

v. Ballone, 658 F.2d 618, 226-227 (4th Cir. 1981).2°

The same basic factors are examined in both inquirites,

except that focus for the purposes of custody is more

squarely placed on the coercive nature of the environment.

The reason for detaining Brogden in the patro! car-

-specifically, the inclement weather—derogates from

whatever coercive elements are otherwise normally

attendant thereto. In addition, Brogden was not formally

placed under arrest, nor frisked or handcuffed ah

nor was he threatened, pressured, or abused. "Any

interview of one suspected of a crime by a police

officer will have coercive aspects to it, simply by

virtue of the fact that the police officer is part of

a law enforcement system which may ultimately

cause the suspect to be charged with a crime. But

officers are not required to administer Miranda warnings

to everyone whom they question. Nor is the requirement

of warnings to be imposed simply because the questioning

takes place in the station house, or because the questioned

person is one whom the police suspect." Oregon v.

Mathiason, 429 U.S. 492, 495 (1977). Likewise, Miranda

warnings are not required simply because one is questioned

in a police car. Applying the objective standard, >~

this Court finds that Brogden was not in "custody"

when questioned by the officers.?? Therefore, Brogden's

Fifth Amendment rights were not violated by the

failure to immediately give him a Miranda warning

and there was no taint of the search and seizure of

the Peterbilt.

In summary, the initial stop of the Peterbilt, supported

by a reasonable suspicion based on articulable facts,

was proper under Terry and its progency. The manner

in which Brogden was detained did not exceed the

type of seizure allowed by Terry, and probable cause

arose before the brevity requirement was violated.

Thus, even assuming that a de facto arrest occurred,

the arrest was not illegal. Finally, Brogden was not

the subject of a custodial interrogation when the

statements in question were made. The motions

to suppress evidence gained through the stop of the

Peterbilt, and the detention of Brogden, were correctly

denied.>”

ii. Ford Tractor-Trailer , White "U-Haul Type"

Truck, Brown Van. This Court previously concluded

that none of the defendants had standing to challenge

the search and seizure of the Ford and the "U-Haul!

Type” truck, and that only Sale had standing to challenge

the search and seizure of the brown van. Even considering

defendants' arguments, however, their motions to

suppress the evidence obtained from these vehicles

were properly denied. Defendants’ primary argument,

that the illegal seizure of the Peterbilt and Brogden

fainted searches and seizures which followed, is foreclosed

by the foregoing determination that there was no

such illegality. Thus the validity of each stop must

be examined on its own merits.

The facts known to the officers at the time provide

ample justification for the stop of each vehicle.

As with the Peterbilt, the Ford tractor-trailer came

from the direction of Bennett's Point Landing, it

bore a Georgia license plate, and it carried the "Polar

Transportation" logo on its door. Soon after the Ford

was stopped, the officers detected the odor of marijuana

and its driver was placed under arrest. Both the

"U-Haul type" truck and the brown van were recognized

as the vehicles observed earlier by the officers while

at Bennett's Point Landing. They were stopped, and,

again, the odor of marijuana was detected and the

occupants were placed under arrest. There can be

no serious challenge to the validity of the searches

and seizures of any of these vehicles.

B. SUPPRESSION OF EVIDENCE FROM THE

VESSELS.

1. Standing.

The trial court granted standing to challenge

the searches of the "Mary and John" and the "Lady

Lisa" to defendants Flannel and Hightower, respectively,

because they were the captains of each ship and asserted

sufficiently protectable privacy interests in their

vessels. No other defendant was granted standing

to challenge the searches of these vessels. Defendants

argue that all of the persons on board the vessels

were entitled to standing, not because of a privacy

interest, but rather, due to the fact that all of the

defendants were arrested prior to the actual! search

of the vessel and before probable cause had arisen.

According to defendants, this prior illegal arrest

rendered the later searches illegal.

Defendants should have been granted standing

to argue that the detention was by operation of law

equivalent to an illegal arrest. It is axiomatic that

the fourth amendment protects against the unreasonable

seizure of persons as much as it protects against

unreasonable searches. See e.g. Dunaway v. New

York, supra. Insofar as standing is implicated, however,

the inquiries are different. While a person owning

or possessed of an object searched is not always entitled

to standing to challenge that search, a person claiming

to be the victim of an illegal arrest is the one most

entitled to challenge that arrest.

Of course, here, defendants are challenging the

search and seizure of the vessels, not the arrests

per se. Nevertheless, their argument, relying on

Wong Sun v. United States, 371 U.S. 471 (1963), gives

defendants standing to challenge whatever may have

been tainted by the primary illegality-—in this case

their arrest--once that illegality is established. See,

United States v. Sharpe, supra. An illegal arrest

does not preclude the prosecution of the arrestee,

nor does it usually vitiate a subsequent conviction.

See United States v. Crews, 445 U.S. 463 (1980).

Thus, most claims of illegal arrest are made in furtherance

of a motion to suppress evidence allegedly tainted

by that illegal arrest. If all such motions are denied

on the grounds of a lack of standing as to the subject

of the taint, defendants raising these claims will

be left without a remedy, and whatever deterrent

that now exists against the exploitation of an illegal

arrest will be eliminated.

We conclude that all of the crew members should

have been granted standing to challenge the legality

of their arrests. United States v. Demanett, 629

F.2d 862, (3d Cir. 1980) cert. denied, 450 U.S. 910

(1981); see also United States v. Glen-Archila, 677

F. 2d 809, 817 n.6 (11th Cir.) cert. denied, 459 U.S.

874 (1982). This Court also finds, however, that the

trial court's failure to do so was harmless error.

The trial record reveals that the two defendants

granted standing, Flannel and Hightower, were allowed

by the trial court to argue the very position asserted

by the crew members who were denied standing:

that the initial detention and seizure of the boat

and its crew was improper and amounted to an illegal

arrest. We also take notice of the identity of interests

between the crew and the captains, and of the fact

that at least a few of the crew shared counsel with

Captain Hightower. Thus, even though officially

denied standing, the crew was effectively allowed

to argue for the existence of the primary illegality

and no prejudice was suffered by them as a result

of the deniai. Cf. Halderman v. Pennhurst State

School and Hospital, 612 F.2d 131 (3rd Cir. 1979)

(wrongful denial of intervention is harmless error

because party participating argued same position

as party excluded); Lang v. Cone, 542 F.2d 751, 754

(8th Cir. 1976) (harmless errcr where case developed

fully anyway). The trial court's error was therefore

harmless, and does not provide a basis for a reversal.

2. Search and Seizures of the Vessels.

Defendants argue that the Customs officials exceeded

their authority for a limited document check under

19 U.S.C. Sect. 1581(a); that since Section 1581(a)

was exceeded, the officers needed probable cause

to board the vessels; and finally, that they were

arrested prior to docking at Bennett's Point Landing,

and in any event, before there was probable cause

for arrest.

The trial court held that the Customs officials,

supported by a reasonable suspicion of a customs

violation, properly hailed and boarded the vessels,

and properly detained the persons aboard as a safety

precaution while securing each ship. Then, after

their plain view observations, the officers had probable

cause to conduct a more detailed search, all of which

culminated in the arrest of defendants. We agree

with the conclusions of the trial court.

The gravamen of defendants’ position is that the

Customs officials' authority to board under Section

1581(a) was exceeded. For the purpose of this appeal,

the parties essentially agree that the boarding was

not conducted as a document inspection, but was

instead a stop to investigate the suspected participation

by these vessels and their crew in a marijuana smuggling

operation. Recently--while upholding the validity

of Section 1581(a) in the context of a suspicionless

boarding for the inspection of documents--the Supreme

Court noted that "(s)ection 1581(a) provides Customs

officials with authority beyond boarding for document

inspections." United States v. Villamontez-Marquez,

U.S. , 103 S. Ct. 2573, 2575 n.2 (1983). Section

1581(a) reads in pertinent part:

“Any officer of the customs may at any time

go on board of any vessel or vehicle at any place

in the United States or within the customs waters...

and examine the manifest and other documents and

papers and examine, inspect, and search the vessel

or vehicle and every part thereof and any person,

trunk, package, or cargo on board and to this end

may hail and stop such vessel! or vehicle, and use

all necessary force to compel compliance."

The language of this statute imparts an obviously

broad grant of authority to Customs officials, and

evidently draws no distinction between the boarding

of a vessel for a documents inspection and the boarding

of a vessel for an investigative stop. In Villamontez-

Marquez, the Supreme Court declined to resolve whether

the latter may likewise be validly conducted without

suspicion. Id. at 2575 n.2. Some guidance was provided,

however, when the Court reiterated that "no Act

of Congress can authorize a violation of the Constitution"

Id. at 2578, citing Alameida-Sanchez v. United States,

413 U.S. 266, 272 (1973). thus, there can be little

doubt that Section 1581 (a) must be interpreted in

a manner consistent with limitations imposed by

the Fourth Amendment.

This Circuit has on several occasions considered

the justification needed when a Section 1581(a) boarding

is conducted for more than a document inspection.

See, e.g., Blair v. United States, 665 F.2d 500 (4th

Cir. 1981); United States v. Watkins, 662 F.2d 1090

(4th Cir. 1981); see also United States v. Helms, 703

F.2d 759 (4th cir. 1983) (boarding for document inspection,

but includes discussion of investigatory stops). Unfortunately,

the large number of cases and the distinctions upon

which they rest have created a morass of precedent

that has persistently defied attempts at clarification

of this area of the law.

The case law draws three apparent distinctions

between the type of justification necessary for the

valid detention of a vessel. Depending on the circumstances

surrounding each stop, probable cause might be required,

see United States v. Laughman, 618 F.2d 1067 (4th

Cir.) cert. denied, 447 U.S. 925 (1980); or a reasonable

suspicion may be sufficient, see, Blair v. United States,

supra, and United States v. Watkins, supra; or no

suspicion at all may be needed, see, United States

v. Harper, 617 F.2d 35 (4th Cir.); cert. denied, 447

U.S. 925 (1980).

*Laughman applied the probable cause test because

the boarding in that case "was justified by the probable

Cause-exigency exception to the warrant requirement."

United States v. Laughman, 618 F.2d at 1973 n.5.

Throughout the disposition of the case, the detention

was examined in the context of a full-fledged search,

not as a limited investigatory stop. The Court expressly

limited its holding by noting that other rationales

might support the boarding which require something

less than probable cause, citing, inter alia, the border

search described in Alamedia-Sanchez v. United

States, 413 U.S. 266 (1972); an investigatory stop

under United States v. Brignoni-Ponce, 422 U.S. 873

(1975); and a boarding for document checks and safety

under 19 U.S.C. Section 1581(a). See, United States

v. Laughman, 618 F.2d at 1072 n.2, 1073-1074, n.5.

Blair required a reasonable suspicion because,

absent allegations that a vessel detained in inland

waters had previously crossed the United States territorial

border, the more liberal standards used for border

investigatory stops were inapplicable. See, United

States v. Blair, 665 F.2d at 505. We found that most

other circuits faced with the seizure of a vessel in

inland waters without sufficient evidence of a border

crossing applied the reasonable suspicion standard.

Id. Watkins rested on the reasonable suspicion standard

because the presence of a reasonable suspicion in

that case satisfied the traditional investigatory stop

requirement and made it unnecessary for the court

to determine whether a lesser justification would

have sufficed. United States v. Watkins, 662 F.2d

at 1095-1096.

Finally, Harper allowed the suspicionless stop

of a vessel, pursuant to authority similar to Section

1581 (a), 14 U.S.C. Section 89({a), because it was a

limited non-discretionary intrusion of the type discussed

in Delaware v. Prouse, 440 U.S. 648 (1979). United

States v. Harper, 617 F.2d at 38-39.

In surnmary, the precise issue presented by this

case--finding the minimum applicable standard for

an investigatory stop, conducted under the authority

of Section 1581{a), made on inland waters where

there is evidence of a territorial crossing--has not

been resolved in this Circuit. Believing it imprudent

to decide so significant an issue where such determination

is not necessary for the outcome of the case, this

Court also chooses to reserve the question of the

minimum basis upon which an investigatory stop under

Section 1581(a) may be upheld.

The Customs officers had ample support for a

reasonable suspicion that the vessels detained had

participated in a drug smuggling operation. At the

time the two ships were stopped, the Customs officers

were aware of the fact that marijuana was believed

to have been unloaded at Bennett's Point Landing

earlier in the evening; a Customs officer testified

that he had observed no vessels in St. Helena Sound

for the preceding two to three weeks, so the presence

of these trawlers was somewhat unusual; no shrimp

nets were observed on the trawlers; and a systems

check run on the vessels indicated that they migh:

be involved in drug smuggling activities.

Supplied with this information,the officers were

fully justified in making an investigatory stop. When

vessels are involved, because of the nature of detentions

at sea, an investigatory stop may properly include

a boarding of the detained vessel by the Customs

officers. Blair v. United States, 665 F.2d at 506.

After attempting to pull alongside the vessel, and

being unable to accomplish this due to strong winds

and high seas, the Customs officers decided not to

board for safety reasons and asked that the ships

follow the customs vessel back into the Ashepoo.

As was discussed in a previous section, where dictated

by reafety reasons, an investigatory stop may entail

moving the detained party from one location to another.

See United States v. Demanett, 629 F.2d 862, 865

(3rd Cir. 1980) (vessel moved to calmer waters before

boarding). Relying heavily on "the important factual!

differences between vessels located in waters offering

ready access to the open sea and automobiles on principal!

thoroughfares in the border area," the Supreme Court

has acknowledged that the Fourth Amendment "reasonableness"

requirement allows certain greater intrusions in vessel

stops than might be permitted in land vehicle stops.

United States v. Villamontez-Marquez, 103 S. Ct.

at 2579-2580. The blind application of Fourth Amendment

doctrines developed in other contexts ignores the

inherent exigencies which accompany vessel stops,

and threatens to proscribe a significant range of

government activities that are necessary and reasonable

under the circumstances. Accordingly, despite the

35 this Court concludes that Customs

two hour journey,

officials were entitled to escort the vessels to Bennetts'

Point Landing in order to effectuate a safe and practical

investigatory stop. See United States v. Demanett,

supra; United States v. Zurosky, 614 F.2d 779, 790

(1st Cir.) cert. denied, 46 U.S. 967 (1980).

On the way to Bennett's Point, Customs officers

noted that the trawlers were navigated in a manner

that indicated familiarity with the surrounding waters

even though earlier the captains had denied such

knowledge. Customs officers also observed that while

there were no shrimp nets displayed on the trawlers

when first approached, by the time they reached

port the nets were completely rigged.

Once on board, the officers detained the occupants

of these vessels as a safety precaution.. Reasonable

force, including the use of weapons, is permissible

for the protection of officers conducting an investigatory

stop, and does not transform the detention into an

arrest. See United States v. Warren, 578 F.2d 1050,

1070 (5th Cir. 1978) (gathered crew under armed

guard); see also United States v. Seni, supra; Michigan

v. Summers, supra. The officers boarding the "Mary

and John" immediately discovered nine persons instead

of the four acknowledged by the captain. Also, the

officers on board the "Lady Lisa" observed that

the deck appeared to have been recently hosed down

SO as to erase any residue of marijuana. Combined

with the information previously known to the officers,

these observations provided probable cause to conduct

a further search. See, e.g. United States v. Watkins,

662 F.2d at 1094 (wash deck of marijuana residue).

The exigent circumstances concomitant to the mobility

of a vessel! justified the search without a warrant.

United States v. Helms, 703 F.2d at 766; United States

v. Hensler, 625 F.2d 1141, 1142 (4th Cir. 1980), cert.

denied, 450 U.S. 980(1981). Upon entering the fishhold

of each vessel! the officers smeiled and observed

the residue of marijuana 37 and noticed the absence

of fish or ice. Only after this sequence of events

transpired did the officers place the crew under arrest,

supported fully by probable cause. There being no

Fourth Amendment violations, we conclude that the

motions to suppress were properly denied.

Defendants argue that the trial court made four

errors on its evidentiary rulings: the testimony of

Manbeck and Bohanon should have been suppressed

as fruit of illegal arrests; said testimony should have

been excluded under Federal Rules of Evidence 801(a)(2)(E)

as it was uncorroborated testiomny of a co-conspirator;

statements made by defendants to Agent Sprague

should not have been permitted into evidence; the

testimony of Agent Stein should not have been allowed.

Defendants’ first claim is resolved against them

by virtue of the foregoing determination that there

were no illegal arrests. In the absence of a primary

illegality there can be no taint. This Court also notes

that the exclusion of live-witness testimony because

of an alleged taint is not freely allowed. See, United

States v. Ceccolini, 435 U.S. 268 (1978). The testimony

of Manbeck and Bohanon was properly admitted.

On defendants’ second claim, the trial court noted

that it was "provided with no specific objection as

to what part of (Bohanon's) testimony defendants

objected to." United States v. Manbeck, 526 F.Supp.

at 1109. Nevertheless, the Court opined that "the

government introduced sufficient independent evidence

of the conspiracy and of all defendants’ participation

therein." Id. This finding precludes any Rule 801! (a)

(2XE) objection to the testimony of Bohanon and

Michael.

Defendants argue that Agent Sprague interviewed

them in violation of their right to counsel. The trial

court held that the statements were voluntarily made

by defendants and made after a Miranda warning

was given to each upon their entry into the interrogation

room. Id. at 1111. The record supports the conclusion

‘of the trial court.

Finally, defendants object to the admission into

evidence of a transcript of Agent Stein's t estimony

in a prior drug case. This prior transcript was admitted

into evidence as expert witness testimony on the

packaging of Columbian marijuana. The trial court

found that when this transcript was stipulated to

as evidence no defendant raised any objection. Again,

the record supports the trial court.

We find no errors in the trial court's evidentiary

rulings.

The last issue advanced by defendants is that

the evidence adduced at trial was insufficient to

support their convictions. The sufficiency of evidence

in support of a conviction is to be examined in the

light most favorable to the government. Glasser

v. United States, 315 U.S. 60 (1942). The trial court

gave an exhaustive accounting of the proof relative

to each defendant which indicated their guilt beyond

a reasonable doubt. See United States v. Manbeck,

526 F. Supp. at 1111-1116. After reviewing the record,

this Court adopts and incorporates herein that portion

of the trial court's opinion. Moreover, except as discussed

below with regard to Count Two, this Court affirms

the convictions of all defendants as well supported

by the evidence.°®

A. IMPORTATION

Defendants were found guilty of the importation

of marijuana. The essential element of this crime

is that the marijuana must have been brought or introduced

into the territory of the United States from some

place outside thereof. See 21 U.S.C. Sections 951 (a),

and 952(a). Defendants claim that this element has

not been established. To establish guilt of the crime

of importation there must be proof that the defendants

in some manner participated in or helped effectuate

the act of importing. United States v. Seni, 662 F.2d

at 285-286. This proof may be made through use

of circumstantial evidence, and need not be based

on direct testimony of an observed territorial crossing.

See United States v. Watkins, 662 F.2d at 1098; United

States v. Phillips, 664 F.2d 971, 1033 (5th Cir. 1981),

cert. denied sub. nom., Platshorn v. United States,

459 U.S. 906 (1982).

Courts have held that evidence of the foreign

origin of the marijuana is a factor to be considered

RRR A ree een

in showing importation but is not sufficient of itself.

United States v. Watkins, 662 F.2d at 1098; United

States v. Seni, 662 F.2d at 285. Courts have also

held that the size of the ship and the quantity of

the marijuana alone are not enough to prove importation.

Id at 287; United States v. Soto, 591 F.2d 1091, 1104

(5th Cir.) cert. denied, 442 U.S. 930 (1979).

In addition to the considerations specified above,

however, the facts in this case include the existence

of a navigational chart found in front of the steering

wheel of the "Lady Lisa" which was marked to as

to indicate a path of travel extending deep into customs

waters. Cases where such a may has been found,

in conjunction with other factors (including those

previously mentioned as well as other considerations

involved here like the absence of a shrimping activity

on a shrimp boat), almost unanimously conclude that

there was sufficient evidence to prove importation.

See e.g., United States v. Seni, supra; United States

v. Moorman, 660 F.2d 106 (4th Cir. 1981); United

States v. Saimiento-Rozo, 676 F.2d 146 (5thCir. 1982);

United States v. Escobar, 674 F.2d 469 (5thCir. 1982).

The same conclusion prevails in the present case.

There is ample proof of each element on the crime

of importation to support the conviction of all attendants

on that count.

B. CONSPIRACY COUNTS

There has been considerable debate recently concerning

the evidence necessary to convict members of a crew

on board a vessel laden with marijuana of conspiracy

to possess said marijuana with intent to distribute.

See, e.g., United States v. Michelena-orovio, 719

F.2d 738 (5th Cir. 1983) ( en banc reversal! ), cert.

denied, 104 S. Ct. 1604 (1984). This debate invariably

arises in the circumstance where crew members are

separately charged with both conspiracy to import

marijuana and conspiracy to distribute marijuana.

Many courts have grappled with the distinction between

these two conspiracies.

The essence of the crime of conspiracy is an agreement

to engage in a criminal act. United States v. Peterson,

524 F.2d 167, 174 (4th Gr. 1975) cert. denied, 423

U.S. 1088 (1976); see also Ingram v. United States,

360 U.S. 672 (1959). To convict a defendant of conspiracy

the government must establish the defendant's knowledge

of and participation in the conspiracy. United States

v. Laughman, 618 F.2d at 1075. The elements of

knowledge and participation may be proven by circumstantial!

evidence. Glasser v. United States, 315 U.S. at 80.

With respect to a conspiracy to import, courts

have agreed that a crew member's knowledge of the

presence of marijuana may be inferred if there is

a large quantity on board. United States v. Alfrey,

620 F.2d 551, 556 (5th Cir.), cert. denied, 449 U.S.

938 (1980). Likewise, participation is established

where there is some evidence of the crew's affirmative

role in the conspiracy. The facts of this case easily

fulfill both prerequisites. The large amount of marijuana

found, over 50,000 pounds, makes it extremely unlikely

' that the crew was unaware of its cargo. The crew's

participation was established by Michael's testimony

that all of the crew members manned the vessels

and helped off-load the marijuana.>” Michael also

testified that some time during the off-loading a

sum of money was distributed among the persons

on board the "Mary and John", and that the entire

crew of the "Mary and John" helped wash the ship

and string up shrimp nets while being escorted back

to Bennett's Point. All of this evidence, combined

with the inference that — in the absence of evidence

to the contrary — the crew was aware of its point

of origin and general destination, is sufficient to support

the convictions of the crew of joining a conspirary

to import. See United States v. Laughman, supra;

United States v. Alfrey, supra.

This conclusion does not, however, end the inquiry.”°

Defendants were convicted of two separate conspiracy

counts: conspiracy to import marijuana in violation

of 21 U.S.C. Section 963; and conspiracy to possess

marijuana with intent to distribute in violation of

21 U.S.C. Section 846. Thus, their knowledge of

and participation in both conspiracies must be proved.

The Supreme Court has confirmed that a defendant

may be convicted of a conspiracy to import marijuana

and a conspiracy to distribute marijuana on the basis

of the same evidence and punished cumulatively for

these convictions without violating the Double Jeopardy

clause. Albernaz v. United States, 450 U.S. 333 (1980).

In satisfaction of the Blockburger test, each statutory

offense requires proof of a fact which the others

do not. See, Blockburger v. United States, 284 U.S.

299 (1932). Conviction of a conspiracy to import

does not require proof of the existence of a subsequent

plan for distribution; and a conviction of conspiracy

to distribute need not include proof of a preceding

act or plan of importation.

In Albernaz, defendants were charged on a single

conspiracy count with dual objectives--"a conspiratorial

agreement which envisages both the importation

and distribution of marijuana." Albernaz v. United

States, 450 U.S. at 336. "Congress has in effect determined

that a conspiracy to import drugs and to distribute

them is twice as serious as a conspiracy to do either

object singly." Id. at 343; see United States v. Marotta

518 F.2d 681, 685 (9th Cir. 1975). In contrast to

Albernaz, the crew members here were charged with

two separate conspiracies. In view of the fact that

the events which gave rise to these charges have

evolved from a single continuous transaction, this

Court will examine the case with the understanding

that defendants were engaged in a single conspiracy

with dual criminal objectives, much like the charge

in Albernaz. United States v. Marotta, 578 F.2d

at 684-685; United States v. Burkett, 612 F.2d 449

(9th cir. 1979), cert. denied, 447 U.S. 905 (1980);

cf. American Tobacco Co. v. United States, 328 U.S.

781, 787-788 (1946). We do not understand the government

to be arguing, by virtue of the separate counts, that

two distinct and separate conspiracies were entered

into by the crew. See, e.g., United States v. Marotta,

supra. To convict the crew members of both conspiracies,

then this court must find that they entered into a

conspiratorial agreement that encompassed distribution

as well as importation.

In response to the conspiracy to distribute charge,

the crew members contend, arguendo, that their

only role was bringing the marijuana onto shore, and

they had no interest or stake in whatever followed.

Although this court has never directly rulec on the

necessary intent, other circuits have held that the

government must show both general criminal intent

and specific intent to distribute. United States v.

Russell, 703 F.2d 1243, 1244 (11th Cir. 1983), citing

United States v. Pope, 561 F.2d 663, 670 (6th Cir.

1977). Moreover, the degree of criminal intent must

be at least that necessary for the substantive offense

itself. United States v. Malatesta, 590 F.2d 1379,

1381 (5th Cir.), cert. denied, 944 U.S. 846 (1979);

see also Ingram v. United States, 360 U.S. at 678.

The crew members argue that, at most, the evidence

supports an inference that they engaged in a conspiracy

to import, but there is no evidence to support an

inference that they joined a conspiracy to distribute.

Defendants’ position is, of course, eminently

reasonable. Other courts have found defendants

guilty of a conspiracy to import, and not a conspiracy

to possess with intent to distribute, where it appeared

that their only role was to bring the contraband into

the country. See, e.g., United States v. Hawkins,

661 F.2d 436, 452-453 (5th Cir. 1981), cert. denied,

459 U.S. 832 (1982) (pilot only indicted and found

guilty of conspiracy to import; persons meeting plane

indicted and found guilty of conspiracy to possess

with intent to distribute); United States v. Rodriguez,

585 F.2d 1234, affirmed in pertinent part, 612 F.2d

906 (5th Cir. 1980), overruled in pertinent part, United

States v. Michelena-Orovio, 719 F.2d 738 (5th Cir.

1983); United States v. Cadena, 585 F.2d 1252 (5th

Cir. 1978), overruled in pertinent part, United States

v. Michelena-Orovio, 719 F.2d 738 (5th Cir. 1983).

In Michelena-Orovio, supra, however, the Fifth

Circuit appears to have taken a contrary position.

The defendant in Michelena-Orovio was a crew member

who argued that there was insufficient evidence to

support a finding that he had joined the conspiracy

va distribute. Like the crew members in this case,

Michelena-Orovio argued that his role was limited

to effectuating the importation. The Fifth Circuit

rejected this contention, pointing out that "Michelena-

Orovio was an actual participant in at least a segment

of the distribution scheme since he was a member

of the conspiracy to import marijuana". United States

v. Michelena-Orovio, 719 F.2d at 749. The Fifth Circuit

stopped short of relying on the doctrine that one

ee ee Le ee eS ee

who joins a part of a conspiracy is culpable for the

entire conspiracy, presumably because that rationale

would revive the spectre of double jeopardy which

was dispelled by the Supreme Court in Albernaz.

Wherein, the Supreme Court concluded that the Blockburger

test was satisfied because "(s)ections 846 and 963

specify different ends as the proscribed object of

the conspiracy—distribution as opposed to importation-

-it is beyond peradventure that ‘each provision requires

proof of a fact (that) the other does not'." Albernaz

v. United States , 450 U.S. at 333. Therefore, one

guilty of a conspiracy to import cannot, by virtue

of that fact, automatically be guilty of a conspiracy

to distribute.

Instead, the court found Michelena-Orovio guilty

of joining the conspiracy to distribute solely on the

inferences drawn from the fact that a large quantity

of marijuana was imported. The court reasoned

that where there is more marijuana that a person

can consume, “someone must have an intent to distribute

the marijuana. The defendant's awareness of the

existence of the conspiracy flows from his participation

ir. the conspiracy to import such a large quantity,

for in the absence of any legal market in which to

dispose of his wares, there is no reason to import

goods if there has been no plan made for their distribution."

Id, at 752. "In summary, the fact that the defendant

is involved in importing a huge quantity of marijuana

POF ee CI AP OP ee ee ee ee ee ra

into the United States may establish both the defendant's

knowledge of and joinder in the conspiracy to possess

with intent to distribute." Id. at 752.

A close examination of the court's reasoning

reveals a fundamental flaw. The Court has simply

established that a person importing a large quantity

of marijuana should be aware that the marijuana

i ————eee—eEe—e—eEeEeEeEeEeEeEeEeEeEeEeEe—eEeEeEeEeEEEEeeeeeene ea aaa eEeeEEywTrmrmrer eee eee eee aaa SL.

will be distributed once it reaches the United States.

Unless awareness of this fact is equivalent to joining

the conspiracy to distribute, there is still no evidence

indicating the extent of the agreement entered into

by the defendant crew member. Evidence that "someone

must have an intent to distribute the marijuana"

is a far cry from identifying the defendant as that

someone. United States v. Laughman, 618 F.2d at

1074 n.4.

Recognizing this problem, the Fifth Circuit invoked

a long line of cases adhering to the proposition that

intent to distribute may be inferred from the possession

of a large quantity of marijuana. Id. at 755-756.

The soundness of Michelena-Orovio, relied upon by

the government in this case, thus rests on the validity

of this inference. The inference that a person possessed

of a large quantity of marijuana intends to distribute

said marijuana is widely adhered to and well-recognized,

but it is imperative to understand the context from

which this inference originates. Invariably, every

vessel case that cites this principle relies on cases

which trace back to the situation where courts were

distinguishing the mere possession of contraband

41 It makes

from possession with intent to distribute.

, erfect sense to infer that person possessed of a

suitcase full of marijuana intends to distribute that

marijuana rather than keep it to themselves because

there is more marijuana than those persons could

consume. See United States v. Johnson, 469 F.2d

973 (5th Cir. 1972). This conclusion does not follow

so surely when applied to infer that a crew member

of a vessel conspired to distribute as well as import

the marijuana. In the former context, the inference

is relied upon to distinguish two choices where quantity

is a relevant factor: mere possession from possession

with intent to distribute. Whereas, in the latter context,

the inference is relied upon to distinguish two choices

where quantity is not a relevant factor: mere importation

from importation and distribution. Assuming that

joining a conspiracy to import is distinct from joining

a conspiracy to distribute, and assuming that in any

given case a defendant may have conspired to participate

in one or the other or both, the quantity of marijuana

smuggled provides no basis for identifying which

of the foregoing conspiracies were joined unless

it is presumed that one who conspires to import a

large quantity of marijuanz also conspires to distribute

it. In other words, through circular reasoning, the

presumption used to find the ultimate fact in question-

-whether one who conspires to import a large quantity

of ma: ijuana also conspires to distribute it-—is the

| ultimate fact itself. This latter presumption is entirely

) different from the inference that one possessed of

: a ilarge quantity of marijuana intends to distribute

it, and the facts do not support its adoption.

Focus must be squarely placed on the quantity

and what inferences really follow therefrom, and

it must be remembered that the vast majority of

conspiracy to import cases involve large quantities

of marijuana. Again, the large quantity indicates

that someone planned to distribute it, but not whether

the defendant is that someone. The only difference

a small quantity makes is that no one plans to distribute

it. Neither case presents a basis from which an inference

can be drawn as to the general criminal intent and

specific intent to distribute on the part of a particular

crew member; the size of the cache alone cannot

be sufficient to establish a crew member's intent

and joinder in a conspiracy to distribute. See United

States v. Boone, 641 F.2d 609, 611-612 (8th Cir.),

cert. denied, 454 U.S. 831 (1981). The answer would

be the opposite, of course, if one of the crew members

possessed his own cache of marijuana. In that case,

the crew member would be possessed of an amount

such that it would be fair to infer an intent to both

import and distribute—but that is not the situation

here.

Accordingly, this Qurt is not prepared to reach

as far as Michelena-Orovio. In Laughman, this Court

held that the large quantity of marijuana sufficiently

established that there was a conspiracy to distribute.

United States v. Laughman, 612 F.2d at 1074 n.4.

"Simply proving the existence of a conspiracy, however,

Cannot sustain a verdict against an individual defendant.

There must also be a showing of that defendant's

knowledge of the conspiracy's purpose and some action

indicating his participation." Id at 1075. This principle

vas reaffirmed by this court in United States v. Watkins

662 F.2d 1097. In neither of these cases was this

Court content to rely on the quantity alone to infer

the defendant's knowledge of and participation in

the conspiracy. Even granting that the crew should

have known someone was going to distribute the marijuana,

"(m)ere knowledge, acquiescence or approva! without

cooperation or agreement to cooperate is not enough

to constitute one part of a conspiracy." United States

v. Mendez, 496 F.2d 128, 130 (5th Cir. 1974).

Short of rdopting the position that the act of

unloading itself constitutes participation in the «»nspiracy

to distribute, see United States v. Pool, 660 F.2d

547, 561 (5th Cir. 1981), as opposed to merely a completion

of the conspiracy to import, there is little evidence

of the crew's joinder in the conspiracy to distribute.

There is no evidence that the crew had any interest

in or awareness of what plans, if any, were made

to dispose of the marijuana once it reached shore.

See United States v. Cadena, 585 F.2d at 1266. Likewise,

"there is no evidence that would establish beyond

a reasonable doubt that they would likely come in

possession of the haul once it arrived, share in its

proceeds thereafter, or other evidence from which

it could be inferred that they were privy to plans

to distribute the contraband." United States v. Rodriguez,

585 F.2d at 1247. “Proof of an agreement to enter

into a conspiracy is not to be lightly inferred." United

States v. Johnson, 439 F.2d 885, 888 (5th Cir.) cert.

denied, 404 U.S. 880 (1971). Considered in a light

most favorable to the government, we conclude that

on the evidence presented no rational! trier of fact

could be convinced beyond a reasonable doubt that

any of those on board the two vessels joined a conspiracy

that went beyond importation to include the intent

to distribute.’ The convictions on Count Two as

to those defendants are vacated and the indictments

on this Court are dismissed as to the same. Due

to the fact that this ruling is based on the insufficiency

of the evidence, retrial on this Count is prohibited

by the double jeopardy clause. Burks v. United States,

437 U.S. 1 (1978).

Despite the Order of this Court te vacate the

convictions of those on board the vessel as to Count

Two, there is no need to remand for resentencing

' since the punishment on this count was to be served

concurrent with the punishment imposed on Count

One. United States v. McKinney, 477 F.2d 1184,

1186 (D.C. Cir. 1973); see also United States v. Powell,

407 F.2d 582, 585 (4th cir.), cert. denied, 395 U.S.

966 (1969).

Defendant Gallopo is in a position somewhat different

. from the other defendants. Gallopo's claim is simply

that he was not at Bennett's Point Landing that evening

and he had nothing whatsoever to do with the alleged

smuggling activities of his co-defendants. Gallopo

urges this court to find the evidence insufficient

to support his convictions.

Gallopo was the only defendant who did not agree

to a stipulated facts triai. He did agree, however,

to adopt the record of the suppression hearing with

the exception of the testimony of Bohanon and the

statement of Michael. He also waived trial by jury.

At trial, the government's evidence against Gallopo

came from Bohanon and Michael. Bohanon testified

that he met Gallopo on the evening of November

28, 1980, at Bennett's Point Landing, where they

waited for the vessels to show. Bohanon tentatively

identified Gallopp at trial, but admitted that he could

not de absolutely sure. Michael also testified that

he saw Gallopo at Bennett's Point Landing that evening,

and he made a positive identification of Gallopo.

Both Bohanon and Michael testified that Gallopo

was the driver of a third tractor-trailer.

Gallopo admits that he was in Walterboro on the

evening in question, but claims that he was hauling

Citrus fruit and had to stop in Walterboro because

of mechanical problems with the refrigeration unit

in his trailer. In his defense, Gallopo points out that

the officers at Bennett's Point Landing found only

two tractor-trailers. Gallopo also emphasizes that

Bohanon was less than sure in his identification, and

Michael was a witness with a stake in the proceedings

and possessed a motive to fabricate testimony. Several!

witnesses gave testimony on behalf of Gallopo, most

of whom were employees at the Howard Johnson

where Gallopo stayed while in Walterboro. These

witnesses merely corroborated that Gallopo stayed

at the Howard Johnson and that he made no effort

to hide his identity. A witness also testified that

he sold Gallopo a replacement part needed to repair

the refrigeration unit on the trailer.

Gallopo argues that the weight of the evidence

against the already suspect testimony of Bohanon

and Michaei is overwhelming. As support for his position,

Gallopo submits excerpts of statements made by

the trial court expressing conce.n about the strength

of the government's case.

Although much of the government's case against

Gallopo is based on the testimony of two admitted

accomplices, the law in this circuit is well settled

that uncorroborated testimony of an accomplice

may be sufficient to sustain a conviction. United

States v. Figurski, 545 F.2d 389, 392 (4th Cir. 1976);

United States v. Clark, 541 F.2d 1016, 1018 (4th Cir.

1976); United States v. Miller, 451 F.2d 1306, 1307

(4th Cir. 1971). Even so, the evidence against Gallopo

was not uncorroborated. Despite his claimed innocence

and unrelated presence in Walterboro, a red pad was

found in the brown van with a notation which read

“Gary Gallopo", and beneath it, "HJ 101". Not surprisingly,

the evidence also shows that Gallopo was registered

to Room 101.

It is axiomatic that it is the role of the factfinder,

not the appellate court, to resolve conflicts in testimony,

weigh the evidence, and judge the credibility of witnesses.

United States v. Tresvant, 677 F.2d 1018, 1021 (4th

Cir. 1982); United States v. Fisher, 484 U.S. 924 (1974),

citing Glasser v. United States, 315 U.S. at 80. The

fact that the trial court first expressed concern,

but later had "no difficulty in concluding that the

government (had) proven its case against Gary Gallopo

beyind a reasonable doubt", Manbeck, 526 F.Supp.

at 1116, is merely an indication that Judge Hawkins

carefully considered the evidence before rendering

his decision. Viewed in the light most favorable to

the government, we find the evidence sufficient to

sustain convictions of Gallopo on al! counts.

VII

Therefore, consistent with the foregoing discussion,

the decision of the trial court is REVERSED in part

as to the standing of defendants where indicated;

the conviction under count two of defendants arrested

on board the vessels are VACATED; and the judgment

is AFFIRMED in all other respects.

AFFIRMED IN PART:

VACATED AND

REVERSED IN PART.

RUSSELL, Circuit Judge, concurring in part and dissenting

in part:

I concur in the recitation of the facts of this complex

case, as well as in Parts I, Il, Ill, IV, V(A) and VI of

the majority opinion. I cannot agree, however, with

the reasoning which leads the majority to conclude

that the evidence was insufficient to support the

conspiracy convictions on Count Two for possession ;

of marijuana with intent to distribute. 1 therefore

dissent from Part V(B) of the majority's opinion, and

the portion of the judgment vacating the defendants'

convictions under 21 U.S.C. Section 846.

The crucial issue in these cases is whether the

sea-based defendants could be found to have had

the requisite intent to distribute the marijuana they

possessed, on the basis of the vast size of the cache,

some 59,000 pounds. This is not a case where any

members of the crews of the shrimp boats might

have been unaware of their cargo; the majority recognizes

that this is "extremely unlikely", and the evidence

established that all defendants on the boats played

an affirmative role in the conspiracy to import. Common

sense demonstrates that the defendants could not,

by the most strenuous efforts, have possibly consumed

nearly 30 tons of marijuana personally. From the

indisputable premises that 1) defendants possessed

the marijuana, and 2) the marijuana had to be distributed,

could not a rational trier of fact have concluded

that defendants intended to distribute the marijuana?

The majority assumes that the sea-based defendants

would have needed an intent to take some persona!

role in the distribution on shore to be convicted on

Count Two. The flaw in this reasoning is that the

defe™ jants were not charged individually with an

intent to distribute, but with participation in a conspiracy

to distribute. The majority agrees that the two conspiracies

charged arose from a "single continuous transaction",

and so are properly treated not as distinct enterprises,

bur rather as "a single conspiracy with dual criminal

objectives." The sea-based defendants possessed

a substantial quantity of marijuana which they transferred

to their land-based cohorts, who are beyond dispute

subject to conviction for possession with intent to

distribute. Under settled law, acts of any conspirators

in furtherance of a conspiracy may be attributed

to all participants, Pinkerton v. United States, 328

U. S. 640, 646-47 (1946), and therefore the sea-based

defendants may be treated as participants in the

entire course of the smuggling operation up to its

interception by law enforcement authorities if their

intent to distribute can be established at any point,

absent evidence of subsequent withdrawal! from the

conspiracy. I would follow the Fifth Circuit's recent

en banc decision in United States v. Michelena-Orovio

719 F.2d 738 (5th Cir. 1983), cert. denied, U.S.

, 104 S. Ct. 1605 (1984), which recognizes that

conspiracies to smuggle illegal! drugs are not to be

artificially severed into several stages, but in reality

are an interconnected whole. 719 F.2d at 746. See

also United States v. Martino, 664 F.2d 860, 876 (2d

Cir. 1981), cert. denied, 458 U.S. 1110 (1982). The

facts establishing an interconnected distribution

chain are more compelling here than in Michelena-

Orovio, where the defendant was a Colombian seaman

apprehended by the coast guard on a converted shrimp

boat at sea laden with twelve tons of marijuana.

These defendants are not foreigners, and they actually

brought the marijuana to United States shores and

participated in the offloading.

The majority's unwillingness to infer intent to

distribute from possession of a quantity of drugs

vastly greater than could be personally consumed

stands in contrast to the numerous decisions of other

Circuits involving drug smuggling by vessel which

have not hesitated to make that inference. See,

e.g., Michelena-Orovio, 719 F.2d 738, 752; United

States v. Ceballos, 706 F.2d 1198, 1202 (11th Cir.

1983); United States v. Smith, 680 F.2d 255, 260-61

(Ist Cir. 1982), cert. denied, U.S. _, 103

5.Ct. 739 (1983); United States v. Allen, 675 F. 2d

1373, 1384 (ith cir. 1980), cert. denied, 454 U.S. 833

(1981). Indeed, we have previously recognized that

intent to distribute may be established by possession

of two tons of marijuana. United States v. Laughman

618 F.2d 1067, 1074-75 n.7 (4th Cir.), cert. denied,

447 U.S. 925 (1980). Laughman states that an individual!

defendant must be shown to have known of the conspiracy's

purpose and to have taken some action indicating

his participation. 618 F.2d at 1075. Those prerequisites,

in my view, are met here by the sea-based defendants’

obvious realization that the marijuana was to be

distributed, and by their possession of the marijuana

and transfer of it to the land-based defendants who

were to perform the actual distribution. See also

United States v. Watkins, 662 F.2d 1090, 1097-98

(4th Cir. 1981), cert. denied, 455 U.S. 989 (1982),

which treated the quantity of marijuana involved

as relevant to possession with intent to distribute.

For the reasons stated, I would affirm the convictions

of the defendants for possession of marijuana with

intent to distribute on Count Two, as well! as affirming

the defendants’ remaining convictions.

Footnotes

Defendants' proof of discrimination was based on a

study of nine grand juries selected in an eight year

span from 1974-1981. Of those nine grand juries, no

blacks or women were chosen as forepersons, and only

three women were appointed deputy forepersons.

While the Court expressed "serious doubts" as to the

validity of conclusions that may be drawn from only

nine grand juries, it nevertheless assumed that this

constituted a “significant period" for the purpose of

establishing a discriminatory practice. United States

v. Manbeck, 514 F.Supp. at 148 n.10. The trial! court

found that women and blacks were distinct and

identifiable classes; that the selection procedure for

forepersons was susceptible to discriminatory

application; and that there was underrepresentation

for a signficant period of time. Id.

ce a prima facie case of discrimination is

established the burden shifts to the government to

show an absence of discriminatory intent. Duren v.

Missouri, 439 U.S. 357, 368 (1979); Rose v. Mitchell,

443 U.S. 545, 565 (1979). In fulfilling this burden the

government relied solely upon the testimony of two

judges who presided over three of the nine grand juries

implicated, Judge Robert W. Hemphill and Judge

Robert F. Chapman. Both judges recited the various

criteria used by them for the selection of forepersons,

that included, inter alia, the age, employment,

education, and leadership capacity of the jurors; and

both judges denied that sex or race was ever

considered against prospective grand jury forepersons.

Although the Supreme Court has expressed concern

that "simple protestations" may not be sufficient to

rebut the presumption of discrimination, see

Castaneda v. Partida, 430 U.S. 482, 498 n.19 (1977),

consistent with our resolution of this issue, this Court

makes no finding as to either the prima facie showing

of discrimination or the sufficiency of the rebuttal

evidence. :

3 Code of South Carolina Laws Section 44-53-410

(1976) provides as follows:

If a violation of this article

is a violation of a federal law or

the law of another state, the

conviction or acquittal under the

federal law or the law of another

state for the same act is a bar

to prosecution in this state.

, Count Four of the indictment was not dismissed as

to defendant Gallopo, and he does not join in this issue.

, Dismissa! in this case was sought by the government

and granted by the trial court under the authority of

Federal rules of Criminal Procedure Rule 48(a), which

reads: “The Attorney General or the United States

Attorney may by leave of court file a dismissal of an

indictment, information or complaint and_ the

prosecution shall thereupon terminate. such dismissal

may not be filed during the trial wihtout the consent

of the defendant."

¢ While the supreme Court has never authoritatively

stated what “leave of court" was intended to

encompass, the Court has endorsed the "public

interest" consideration set out in Cowan. See Rinaldi

v. United States, 434 U.S. 22, 29-30 (1977). In

addition, the Court did state that "(t)he principal

object of the ‘leave of court' requirement is apparently

to protect a defendant against prosecutorial

harassment, e.g., charging, dismissing, and recharging,

when the Government moves to dismiss an indictment

over the defendants' objection." (citations omitted) Id.

at 29 n.15.

The Supreme Court has made it clear that the

double jeopardy clause does not prohibit state and

federal authorities from each prosecuting a defendant

for the same act. Bartkus v. Illinois, 359 U.S. 121

(1959); Abbate v. United States, 359 U.S. 187 (1959);

See also Rinaldi v. United States, 434 U.S. at 28. Thus

defendants must rely upon other sources to show that

dismissal here was against public policy. In addition to

the South Carolina Code provision, defendants raise

the Petite policy followed by the Justice Department

with regard to duplicative state and federal charges.

The Petite policy is an internal rule promulgated by

the Justice Department that requires prior approval

from a supervising Assistant Attorney Genera! before

a federal prosecution may follow a state prosecution

for the same act, or acts. See Rinaldi v. United

States, 434 U.S. at 24. The Petite policy was not

directly implicated in this case since no state

prosecution preceded the federal action. See also

United States v. Hadley, 671 F.2d 1112, 1116 (8th Cir.

1982) (Petite policy is an interna! rule that does not

confer any substantive rights of enforcement on the

defendants).

8 The second sentence in Fed. R. Crim. P. Rule 4&(a)

states: "Such a dismissal may not be filed during the

trial without consent of the defendant."

7 It must also be remembered that only South

Carolina tried defendants for a crime of distribution of

marijuana. Technically speaking, then, defendants

were not successively tried for the same crimes.

However, the South Carolina statute speaks in terms

of “same act", not "same crime". See supra, note 3.

100

a0 In fact, evidence that this procedure did not

violate South Carolina public policy against successive

prosecutions comes from the fact that defendants

were ultimately indicted and sentenced on a charge of

intent to distribute marijuana in South Carolina. If

defendants argument is correct, presumably, South

Carolina authorities would have been precluded from

bringing the subsequent charges.

sh Other courts have refused to second-guess the

Justice Department's application of its Petite policy,

"(ijt might be otherwise if the Attorney General's

policy were something more than in-house rules, and

had reached the stage of publication in the Code of

Federal Regulations or some equivalent publication."

United States v. Chavez, 566 F.2d 81 (9th cir. 1977).

"We will not interfere with the Attorney General's

prosecutorial discretion unless it is abused to such an

extent as to be arbitrary and capricious and violative

of due process." United States v. Welch, 512 F.2d

1359, 1360 (9th cir.) cert. denied, 439 U.S. 842 (1978).

12 For the purposes of this analysis, this court will

assume that a trial has begun within the meaning of

Rule 48(a), when jeopardy attaches to the proceedings.

See generally, United States v. Jorn, 400 U.S. 470

(1971).

3 Defendants claim that they waived the right to a

jury trial because of an agreement that limited their

maximum exposure to 10 years imprisonment if

convicted. Permitting state prosecution would thus

101

result in potentially greater penalties than the

agreement specified. In response to these objections,

the trial court voided defendants' waivers and

scheduled the beginning of jury selection procedures.

Defendants then rewaived their right to a jury trial,

and preserved their objections to the government's

requested dismissal. This sequence of events precludes

defendants from linking their agreement to stipulate

the facts to the Government's disposition of Count

Four.

Courts have held that under 48(a) a count may be

dismissed from an indictment without destroying the

entire indictment or affecting other charges contained

therein. See united States v. Delagarza, 650 F.2d

1166, 1167 (0th Cir.) cert. “Tenied 452 452 U.S. 917

(1981). Thus, even if the dismissal was in error it

would have no impact on the validity of the counts on

which defendants were actually tried.

Defendants’ proper remedy, if any was merited,

would have been to challenge the institution of state

charges on the distribution of marijuana.

8 This error was made in favor of defendants and

causes them no prejudice. See Street v. Surdyka, 492

F.2d 368 (4th Cir. 1974) (cannot complain where error

in favor of appellant). Nevertheless, this Court feels

compelled to address this issue in order to avoid an

unwarranted extension of the rules on standing.

15 In Salvucci, the Supreme Court unequivocally

establishes this very proposition: "We simply decline

to use possession of a seized good as a substitute for a

factual finding that the owner of the good had a

102

legitimate expectation of privacy in the area

searched." 448 U.S. at 92.

16 Furthermore, there is some doubt concerning the

extent to which one may claim a property interest in

contraband, the possession of which is per se illegal.

See United States v. Parks, 684 F.2d 1078, 1083 N.7

Gth Cir. 1982). But see United States v. Jeffers, 342

U.S. 48, 52-54 (1952) (While there are no property

rights in contraband, the contraband is still property

for the purposes of the exclusionary rule.) Defendants’

claimed interest in this case is even more tenuous than

a possessory interest in the marijuana. Here,

defendants claim an undivided interest in the profits to

be made from the sale of the marijuana. Thus,

defendants base their standing on an unenforceable,

incorporeal interest in the prospective gains from an

illegal venture.

” Where a constitutional violation is alieged, the

party claiming this violation carries the burden to

establish the standing required to raise that claim.

Rakas v. Illinois , 439 U.S. at 130 n.1; United States v.

Dickerson, 655 F.2d 559, 56! (4th Cir. 1981).

7 Law enforcement officers may stop moving

vehicles with less than probable cause where they have

objective facts that support an articulable and

reasonable suspicion that the vehicle or any of its

occupants is subject to seizure for violation of law.

Delaware v. Prouse,

440 U.S. 648, 663 (1979); see also United States

v. Cortez,449 U.S. 411, 417 (1981). There is ample

103

articulable support for a reasonable _ suspicion

justifying the initial stop, specifically the anonymous

tip that marijuana was being loaded at Bennett's Point

Landing; the subsequent observation of the tractor-

trailer with Georgia plates at Bennett's Point; the

movement of the tractor-trailer at night; the

reputation of the area as a place used to smuggle

illegal drugs; and the fact that the officers had never

seen a tractor-trailer in the area before the night in

question. See, United States v. Manbeck,526 F. supp.

at 1103. Defendants do not seriously contest that

these facts are sufficient to provide the officers with

a reasonable suspicion of iliega! activity.

19 It is by no means certain that the brevity

limitation of Terry and sharpe was, in fact, exceeded

in this case by the hour-long detention. Relying

heavily on Dunaway v. New York, 442 U.S. 200 (1979),

this Court emphasized in sharpe that investigatory

stops must be brief. However, Sharpe stopped short of

delimiting brevity by adopting some arbitrary bright-

line time span. United Statesv. Poole ,718 F.2d 671

(4th Cir. 1983). Brevity can only be defined in the

context of each particular case. See United States v.

Place,__—*U.S.__, 103 S.Ct. 2637, 2646 n. 10 (1983)

(Nevertheless, we question the wisdom of a_ rigid

time limitation. Such a limit would undermine the

equally important need to allow authorities to

graduate their responses to the demands of any

particular situation.") Interpreting the brevity

requirement, the Supreme Court emphasized that "(i)f

the purpose underlying a Terry stop—investigating

possible criminal activity--is to be served, the police

must under certain circumstances be able to detain the

104

individual for longer than the brief time period

involved in Terry and Adams." Michigan v. Summers

, 452 U.S. 692, 700 n.12 (1981). Thus, an investigatory

stop may be characterized as brief if the investigation

into the reasonable suspicions that provided the basis

for the stop is diligently pursued by the officers, and

as long as the stop is not a pretext for an illegal de

facto arrest as in Dunaway. See United States v.

lace,.103 S.Ct. at 2645. Because this Court finds

that, in any event,probable cause arose early on in this

case, there is no need to decide whether the almost

hour-long detention of Brogden violated the brevity

requirement.

20 Officer Canady testified during the suppression

hearing that:

"We asked him where his truck was parked, and he

told us where he had his truck parked, which was not

where we had observed the truck. We asked him when

he had loaded out of Charleston, and he told us a

couple of days before is when he actually ioaded, and

we asked why it took two days to get there, and he

said he had been sick at a motel! room."

Record, Vol. XXIV, at 41.

21 There is no allegation that Sheriff Seigler was

dilatory in his efforts to ascertain the existence of

"Central Soya", or in his efforts to convey his findings

to the officers at the scene.

as Although there is a distinction between the length

of a detention and the quality of a detention when

105

finding a de facto arrest, their inquiries often overlap.

For example, in Dunaway v. New York, supra, the

court took the length of the detention into account

when finding that the seizure was in the nature of an

arrest.

23 393 U.S. 1 (1968).

24 442 U.S. 200 (1979).

23 Defendants submit that because one of the officers

admitted Brogden was not free to leave, he was

effectively under arrest. The expressed intentions of

the officer is not controlling on whether Brogden was

in fact arrested. As was discussed earlier, a Terry

stop authorizes temporary detentions, so _ this

statement alone provides no basis for a distinction

between a Terry stop and an arrest. Furthermore, this

court recently considered a more. affirmative

that car he was under arrest," and, f..ding no arrest

had occurred, held that statement of intent merely a

factor to be considered. United States v. Perate,

supra.

26 Compare the analysis in this case with that of the

Ninth Circuit in United States v. Chamberlin, 644 F.2d

1262 (9th cir. 1980) cert. denied, 453 U.S. 914 (1981).

In Chamberlin, the Ninth Circuit held that the placing

of a suspect in the back of a police car for twenty

minutes while the officer pursued another suspect

exceeded the limits of a Terry stop. The court

reached this conclusion, relying largely on Dunaway,

because it refused to adopt a balancing approach and

106

did not take into account the exigencies of the

circumstances. However, subsequent to both Dunaway

and Chamberlin, the Supreme Court has expressly

allowed a "balancing of the competing interests to

determine the reasonableness of the type of seizure

involved." Florida v. Royer, 103 S.Ct. at 1325. For

these reasons, this Court does not feel its analysis is

directly contrary to that of the Ninth Circuit.

27 See also, Michigan v. Summers, 452 U.S. at 702-703

(three law enforcement interests justifying detention

are "preventing flight in the event that incriminating

evidence is found," "minimizing the risk of harm to the

officers" and “orderly completion of the search"). All

three of the interests described in Summers were to

some extent motivating factors for the officers in the

case at hand.

28 The trial court held that only Brogden had standing

to raise this objection because the right against self-

incrimination is personal and may not be vicariously

asserted, citing United States v. Dowdy, 486 F.2d

1042, 1043 (Sth Cir. 1973) cert. denied, 415 U.S. 992

(1974); Hall v. United States, 413 F.2d 45, 4& (5th Cir.

1969). Defendants have not specifically appealed this

determination and, in any event, the Fifth Amendment

claim is ultimately resolved against Brogden.

Therefore, this Court ventures no opinion on whether

defendants have standing to claim an alleged violation

of Brogden's Fifth Amendment rights. Nevertheless,

this Court does note in passing that the few cases

discussing this issue support the conclusion of the trial!

court. See United States v. Fredericks, 586 F.2d 470,

480-481 (5th Cir. 1978), cert. denied, 440 U.S. 962

(1979); Bryson v. United States, 419 F.2d 695, 698-699

107

(D.C. Cir. 1969); United States v. Hensel, 509 F.Supp.

1376, 1384-1385 (D. Me. 1981); affirmed, 699 F.2d 18

(ist Cir. 1983).

29 Of course, Miranda concerns aside, "statements

given during a period of illegal detention are

inadmissible even though voluntarily given if they are

the product of the illegal detention and not the result

of an independent act of free will." Florida v. Royer,

103 S.Ct. at 1326 (citations omitted). See also, Taylor

v. Alabama, 457 U.S. 687 (1982). This Court Re ieend

that the nature of Brogden's detention was not illegal

and that probable cause arose before the length of the

detention would have rendered it illegal. Therefore,

the statements were not given during a period of

illegal detention and the concerns expressed in Royer

need not be addressed.

30 See also, California y. Beheler, _U.S._, 103

S.Ct. 3517, 3519-3520 (1983) ("Although the

circumstances of each case must certainly influence a

determination of whether a suspect is 'in custody' for

the purposes of receiving of Miranda protection, the

ultimate inquiry is simply whether there is a ‘formal

arrest or restraint on freedom of movement' of the

degree associated with a forma! arrest.") (citation

omitted).

Again, there are two types of seizures, one a

permissible investigative stop, the second a detention

equivalent to arrest. The Supreme Court has implied

that custodial interrogations and Terry stops are

mutually exclusive, i.e., if one is interrogated in a

Custodial situation the limits of Terry have necessarily

been exceeded. See Dunaway v. New York, 442 U.S. at

216 ("These passages from Davis and Brown reflect the

108

ee Te

conclusion that detention for custodial interrogation--

regardless of its label--intrudes so severely on

interests protected by the Fourth Amendment as

necessarily to trigger the traditional safeguards

against illegal arrest.") The type of “seizure” that is

similar to "custody", then, is seizure equivalent to

arrest. Also, if this Court were to find that Brogden

was subjected to custodial interrogation, which we

emphatically do not, then we could not have

concluded, as we did, that Brogden's detention was a

proper Terry stop.

31 in United States v. Seni, 662 F.2d at 281, this

Court stated that the use of handcuffs does not

establish involuntariness. Here, the officers did not

even go that far.

32 See Moore v. Ballone, 658 F.2d at 227 (Fourth

Circuit adopts the objective standard for whether one

is in custody for the purposes of Miranda).

a3 In addition to finding that Brogden was not in

custody, the trial court also found that he was not

subjected to interrogation. United States v. Manbeck,

526 F.Supp. at 1104-1105. Miranda specifically linked

"interrogation" to the status of custody, "(b)y custodial

interrogation, we mean questioning initiated by law

enforcement officers after a person has been taken

into custody or otherwise deprived of his freedom of

action in any significant way." 440 U.S. at 444.

Subsequent Supreme Court decisions have "stressed

that it was the custodial nature of the interrogation

which triggered the necessity of its Miranda holding."

Beckwith v. United States, 425 U.S. 341, 346 (1976)

109

(citations omitted) (emphasis in original). Since this

Court has found that Brogden was not in custody

amounting to an arrest, and that the coercive aspects

of his detention did not rise to the level of custody

sufficient to trigger the need for a Miranda warning, it

is not necessary to examine whether Brogden's state-

ments were given in response to an “interrogation",.

However, it is informative to note that

“interrogation’, as conceptualized in the Miranda

opinion, must reflect a measure of compulsion above

and beyond that inherent in custody itself." Rhode

Island v. Innis, 446 U.S. 291, 300 (1980).

As a consequence of upholding the validity of the

prolonged detention of Brogden, it follows that the

discovery of the odor of marijuana itself was not

tainted. In the absence of any illegality, the officers

were fully entitled to examine the exterior of the

tractor-trailer in the course of their investigation. A

strong, emanating odor of marijuana comes withi ‘he

"plain view" doctrine and need not be ignoree dy

officers. See United States v. Haynie, 637 F.2d «27,

233 (4th Cir. 1980), cert denied sub nom., Fletcher v.

United States, 451 U.S. 972 (198 1); United States v.

Sifuentes, 504 F.2d 845, 848 (4th Cir. 1974).

33 The government argues that the respective

captains consented to follow the customs officers back

to Bennett's Point Landing, and defendants should

therefore not be allowed to contest the validity of that

action. The trial court made no mention of a consent,

and this Court declines to do so in the absence thereof.

110

Defendants also argue that the presence of local

law enforcement officers and the fact that these

officers participated in the boarding exceeded the

authority granted to Customs Officers under 1581(a).

This argument has already been addressed and refuted

by the Supreme Court:

"Respondents however contend in the

alternative that because the Customs Officers

were accompanied by a Louisiana _ state

policeman, and were following an informant's

tip that a vessel in the ship channel was

thought to be carrying marijuana, they may

not rely on the statute authorizing boarding

for inspection of the vessells documentation.

This line of reasoning was rejected in a similar

situation in Scott v. United States (citation

omitted), and we again reject it. Acceptance

of respondent's argument would lead to the

incongruous result criticized by Judge

Campbell in his opinion in United States v.

Arra (citation omitted): ‘We see little logic in

sanctioning such examination of ordinary,

unsuspect vessels but forbidding them in the

case of suspected smugglers.”

United States v. Vilamontez-Marquez, 103 S.Ct. at

2577 Neds

37 The trial court held that the captains could not

claim a privacy interest in the fishold area of the

vessels. United States v. Menbeck, 526 F. Supp. at

1102. Thus, Customs officials were entitled to enter

the fishhold area while conducting their investigatory

111

stop without infringing on Fourth Amendment

interests. See, United States v. Freeman, 660 F.2d

1030, 1034 (th Cir. 1981), cert. denied, 459 U.S. 823

(1982); United States v. Willis, 639 F.2d 1335, 1337

(5th Cir. 1981). This Court agrees with the trial

court's determination. However, the issue has not

been specifically addressed because this Court has

found, as did the trial court, that in any event probable

cause for a search arose before the fishold area was

entered.

3 8The land-based defendants who received the

marijuana will largely be ignored in the following

discussion because it is well settled that they may be

held responsible for both importation and distribution

-by virtue of their participation. The treatment of

crew members is less clear. Thus, the trial court's

opinion sufficiently addresses the former group and

nothing need be added by this Court. Defendant

Gallopo, because of his different position, will be

addressed separately in Section VI.

7” Defendants argue that the testimony of a co-

conspirator is insufficient to support their conviction.

This objection is meritless. Other courts have held

that the testimony of a co-conspirator may be relied

upon to support a conviction. See e.g., United States

v. Scholle, 553 F.2d 1109 (&th A pk denied, 434

U.S. 940 (19777). Moreover, in this case, the

government has introduced considerable evidence

corroborative of Michael's and Bohanon's testimony.

112

, The sentences imposed on defendants on Counts

One and Two ran concurrently with another. Under

the "concurrent sentence doctrine", where one of the

convictions is affirmed both may be upheld without a

review of the second. United States v. Walker, 677

F.2d 1014 (4th Cir. 1982); United States v. Webster,

639 F.2d 174 (4th Cir.) cert. denied, 454 U.S. 857

(1981); see also Benton v. Maryland , 395 U.S. 784

(1969); but see United States v. deBright , 703 F.2d

1255 (9th cir. 1984) (en banc) (repudiates concurrent

sentence doctrine, raising question as to its continued

vitality). The government has not asked this Court to

invoke the “concurrent sentence doctrine", but the

power is one that resides in the court and may be

exercised if it is deemed appropriate without regard to

request by the parties. This court chooses, however,

to review the sufficiency of the evidence as to Count

Two due to the significance of the issue, and, more

important, because the conspiracy to distribute

conviction poses a_ substantial risk of adverse

consequences to defendants. Courts have held that

where such risk exists, it would be inappropriate to

avoid reviewing the conviction. See United States v.

Walker, 677 F.2d at 1016; United States v. Webster,

639 F.2d at 183. Cognizable consequences include

possible stigma, id. at 183, and impact on release

dates. United States v. Walker, 677 F.2d at 1016. This

Court cannot conclude that the conviction of

defendants on the charge of conspiracy to possess

marijuana with intent to distribute exposed them to no

risk of adverse consequences.

113

For example, Michelena-Orovio cites United States

v. Ceballos, 706 F.2d 1198, 1201-1203 (1ith cir. 1983),

for the proposition that intent to distribute may be

inferred from the size of the cache. Itself a vessel

case, Ceballos cites, among others, United States

v.Shelnut, 625 F.2d 59, 62 (5th Cir. 1980), cert. denied

450 U.S. 983 (1981), also a vessel case, for the same

proposition. Shelnut cites United States v. Love, 599

F.2d 107, 109 (5th cir.) cert. denied, 444 U.S. 944

(1979), in support. Love, in contrast to the previous

cases, was not a vessel case; it was a situation where

the defendant's van was filled with marijuana, and the

inference was used to distinguish mere possession from

possession with intent to distribute. Love, cites

United States v. Johnson, 469 F.2d 973 (5th Cir. 1972),

for the proposition that possession of a large quantity

Supports an inference of intent to distribute. Johnson

involved a situation where the defendant's footlocker

was loaded with marijuana. Again, the inference was

used to distinguish between mere possession and

possession with intent to distribute. Finally, Johnson

cites United States v. Ortiz, 445 F.2d 1100, 1104-1105

(10th Cir.) cert. denied, 404 U.S. 993 (1971), for the

same proposition. In fact, a vast majority of cases

that support the inference of intent to distribute from

quantity can ultimately be linked to Ortiz, or a similar

case, United States v. Cerrito, 413 F.2d 1270 (7th Or.

1969), cert. denied, 396 U.S. 1004 (1970).

In Ortiz, the court arrived at the inference by the

following reasoning:

There was no proof of an actual sale by Ortiz

so admittedly the sufficiency of the evidence

in this respect rises or falls on whether the

114

two containers of metaphetamine were of

such quantity that it is proper to conclude that

Ortiz was going to sell, deliver or dispose of

the speed to another rather than keep it for

himself. Case law is practically non-existent

on this proposition....The legislative history of

the statutory proposition against trafficking in

drugs reveals that Congress believed that the

quantity of drugs found in the possession of a

person should bear directly upon the question

of whether or not his possession is for his own

use or is for the purpose of illicit transactions

involving others. Sretisns omitted)

United States v. Ortiz, 445 F.2d at 1104-1105

(emphasis added).

we There is some question as to whether the captain

of a ship is in a position different from that of his

crew with respect to a conspiracy to distribute. It is

definitely conceivable that a captain would join a

conspiracy to distribute in circumstances where the

crew does not. For example, if it is shown that the

captain had an ongoing relationship with those involved

in the distribution scheme, whereas, in contrast, crew

members were merely hired on a trip-by-trip basis, a

strong inference can be drawn that the captain

participates and has a stake in the overall conspiracy

to distribute, while the crew does not. Or, if the

captain was paid in an amount or manner that

depended upon the successful outcome of the

distribution scheme, while the crew received a flat

rate upon completion of the act of importation, again,

a distinction could be drawn between the captain and

crew as to the extent and object of the conspiracies

115

inindecomtaae

joined by each. A number of similar distinctions

between a captain and the crew can be posited,

however, no such evidence was presented in this case,

and we are therefore precluded from considering guilt

of the captain on such grounds.

116

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.