Petition for Writ of Certiorari — Aurand v. United States

lo Supreme . : |

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Q5-993° JUN 19 1y85

JOSEPH F. SPANIOL. JR,

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1985

RICHARD S. AURAND,

JOHN WEBB McPHERSON,

Petitioners,

UNITED STATES OF AMERICA -

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

RICHARD K. RENN, ESQUIRE

52 South Duke Street

York, Pennsylvania 17401

Telephone: (717) 854-3871

Counsel for Petitioners

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)\\

i

QUESTIONS PRESENTED FOR REVIEW

1. DID THE COURT ERR IN NOT OBTAINING

A SEARCH WARRANT FOR AN AIRCRAFT THAT HAD

LANDED IN PENNSYLVANIA FROM WITHOUT THE TERR-

ITORIAL LIMITS OF THE UNITED STATES, THE CARGO

OF WHICH HAD BEEN UNLOADED AND TAKEN AWAY FROM

THE AREA, AND WHICH AIRCRAFT HAD BEEN SECURED

BY GOVERNMENT OFFICIALS?

ANSWERED IN THE NEGATIVE BY THE DISTRICT

COURT AND THE COURT OF APPEALS.

II. WERE THE DEFENDANTS DEPRIVEDOF DUE

PROCESS OF LAW WHEN THEY WERE ADJUDGED GUILTY

OF IMPORTATION OF MARIJUANA ON THE BASIS OF THE

PRESENCE OF RESIDUE OF 2 1/2 TO 5 YEAR OLD

MARIJUANA IN AN AIRCRAFT WHICH HAD BEEN PREVIOUS-

LY OWNED AND OPERATED AS A COMMUTER AIRLINER?

ANSWERED IN THE NEGATIVE BY THE DISTRICT

COURT AND THE COURT OF APPEALS.

eet Hhail Dorota

ii

TABLE OF CONTENTS

DPEMEONS BELOW... crassa sscscccsence

JURISDICTION ........... WPERER Ce weess

CONSTITUTIONAL AND STATUTORY

PU RRM BEV ULVEDs wesc cc ccenescces

er EY GU OL EON wc ccc ccs cccvesecs

STATEMENT OF THE FACTS ....ceseseve

REASONS RELIED UPON FOR ISSUANCE

fo - (¢ CAPT e Ter ere eee eee

i. THE SEARCH OF THE AIRCRAFT WAS

UNREASONABLE AND NOT JUSTIFIED

BY ANY EXIGENT CIRCUMSTANCES NOR

WAS IT A LEGITIMATE BORDER SEARCH.

THE JUSTIFICATION FOR BORDER

SEARCHES HAS BEEN VARIOUSLY AND

CONFLICTINGLY DEFINED BY THE

UNITED STATES SUPREME COURT AND

THE FEDERAL COURTS OF APPEALS

THUS CREATING A NEED FOR SUPER-

VISION AND UNIFORMITY...........

II. THE DEFENDANTS WERE DENIED DUE

PROCESS OF LAW AS A RESULT OF

BEING CONVICTED OF IMPORTATION

OF MARIJUANA BY EVIDENCE OF THE

PRESENCE OF RESIDUE OF MARIJUANA

IN THE AIRCRAFT, WHICH RESIDUE

WAS OPINED TO BE 2 TO S YEARS

ee eT

iil

TABLE OF CONTENTS

Page

CI ok ug 0s ao 5c kee ae es 34

RPE ew ck kw 5 bk Un Oe COA ake cde es Al

Sur Petition For Rehearing of the

United States Court of Appeals For

The Third Dircuit dated April 22,

1985. United States of America vs.

Aurand, Richard S. and McPherson,

John Webb. No. 84-5654 and No. 84-

| php par A TERRES ieee eke Nae Al

Judgment of the United States Court

of Appeais For The Third Circuit

GAGGE FORTGR 2B 4 BOOS s ono hsb eensenss A3

Memorandum Opinion of the United

States District Court For The

Middle District of Pennsylvania

dated August 31, 1984, United States

of America vs. Richard S. Aurand

and John Webb McPherson Nos. 83-

GOL9E-OL and B4-CO0US. on ccc scevcccs AS

OOO + et Ee AO i Bit SLO MAE Ne MA AE NRE RO Sa eh

lv

TABLE OF CITATIONS

Page

Almeida Sanches v. United States,

413 U.S. 266, 37 L.Ed.2d 596 7

Clie) Peay rere re Tee eee eT eee

Arkansas v. Sanders,

442 US 753, 761 61 L.Ed.2d 235, 16

Oe BcGe. SHO. LEOTE) Ws ceieceeveacice

Betts V. Brady,

wa Wale WEE CODER cic sc ccnsccsas. 235-24

Boyd v. United States,

1886, 116 U.S. 616, 625, 6 S.Ct. 1S

S26, 2D Wc s FEB ck ccccceceececnsecs

Burks v. United States,

G37 Wiss be 275 Ba BS.CR 214i 3]

(S7 £. BG. 26 1) CAOTS) wc crccccasecss

Carroll v. United States,

267 US 132 69 L.Ed 543, 45 S.Ct. 12

BOO CEPOEN a C5 cK ae C eR ee ee ee eeeeKe

Chambers v. Maroney,

399 US 42, 26 L.Ed.2d 419, 90 S.Ct. 12

BOTS CABO daa wd de cece wceccvecanceacs

Coffin v. United States

oo ear me mel.) ee 24

Commonwealth v. Lane: 27

470 Pa. 204, S Ree COOLEST hence '

Commonwealth v. Mayhugh, 24

255 Pa. Super. 24 (1975) .....ceeees

V

TABLE OF CITATIONS

Glasser v. United States,

[sad Uebe OU, BU,) SEA BG. 457

( ess A jee ft Pepe ree err ee

Johnson v. United States,

Supra, at 15-14, 92 L.Ed. 436,

GB S.Ct. SG7. cc ccc cecccccccccveveces

Katz v. United States,

389 U.S. 347, 357, 19 L.Ed.2d

Soin. BO Mele Bee CAMO Di ccna ceedeace

Marshall v. Barlow's, Inc.,

436 U.S. 307, 325, 56 L.Ed.2d 305,

OS BiGen Rene CAI) 6 wc cca tcc eweccess

Massey v. Moore,

348 U.S. 105 (1954)... cee eee ew eee.

Mincey v. Arizona,

437 U.S. 385, 390, 57 L.Ed.2d 290,

Be Wales BOD LEME en cacaecescesezes

Morales v. United States,

S Cir. 1967, 378 F.2d 187............

Palko v. Connecticut,

302 U.S. 319, 325 (1937).......-00ee

Rivas v. United States,

368 F.2d 703 (CA 9 CAL 1966) cert.

den. 386 U.S. 945 17 L.Ed.2d 875....

Page

at’

ron Jae pe rel R

Rochin v. California,

Pee Wee FOP PEPOE) oc oh ee eects haces

Snyder v. Massachusetts,

CHE Was Wi RUS CEPOS D6 i ce see wees

Terry v. Ohio,

s¥z U.S. 1, 20 L.Ed.2d 889 (1968)..

Tot v. United States,

919 U.S. $65, 65. S.Ct. 1241, 1244,

OT Dees BEEW TEPCS) cnc en ewe wee ens

United States v. Aulet,

(1980, CA 2 NY) 618 F.2d 182.......

United States v. Bachner,

(i305, GA £2 Pas) 706 F.4d Bizl,

Gert. Gen. (U5? 7S bL.66.26 £535... 0¢

United States v. Beck,

CGR @ OO. Zered See Fs 46 £03.20 000%

United States v. Burkeen,

(CA 6 Ténh. i96a) 550 F.2d 261.....

United States v. Bycer,

B¥s F.aG@ 249 (oe Gir. 1979).....+6.

United States v. Caraway,

Ve OS ee” Gs ae et 5 2) Pree

United States v. Cockerill,

306 F.cupp. 896 (5.0. [11. 1983)...

United States v. Cooper,

207 €140 fon, 208 (50 Cit. 1977)...

20

32

nat m

vil

TABLE OF CITATIONS

United States v. Cortez.,

US oe Se 7s eee

United States v. Grayson,

io RE Boy Gi a0 eC Saar

United States v. Hamilton,

any 6.2m Oe cee -ct. 1972)........

United States v. Heithaus,

Jen ©.ee Bae toe Gar. 1968).......

United States v. Hill,

[LA ew eee, were) Sou F.2d 129.....

United States v. King,

eB ee ee

United States v. La Froscia,

coe wae Sen Gee eae 19735).......

United States v. Miller,

359 ae bea? tome 2 We 1978).......

United States v. Munoz,

681 Fla. 1372 (CA 11 Fla, 1982).

United States v. Ogle,

587 Fla 938 (CA 8 Minn 1978)......

United States v. Place,

462 U.S. lot? Mebes 66 110

Bh eS eee eee

United States v. Ramsey,

San Ue Gee, v2 &.oea.20 617 (1972)..

Page

32

18

18

26

26

25

V1iil

TABLE OF CITATIONS

Page

United States v. Restrepo Grande,

ioe me * is ) Perr rere 26

United States v. Saenz,

(CAS Tex) 578 F.2d 643, cert.

Gen. #39 U.S. 10735, 39 L.Ed.2

Pe A ee | PT ee eee eee 19

United States v. Scarborough,

496 F. Supp. 12935 (Dist. Ct. ED

PO 5 Pre ee ee eee ee 31

United States v. Seni,

SOL Fis £277 COR 4 AC 1961)... ees 26

United States v. Stornini,

(CA 1 Puerto Rico 1971) 443 F.2d

B3S6 cs ee ee ou Poe ieee see ew eee 18

United States v. Tussell,

44] F.Supp. 1092 (CA 3 WDPa 1977) 26

Statutes

ek a a a a a es

Pe i is ay a a

ee eae ee ee

28 U.S.C. 81291.

28 U.S.C. 81254.

WwW wo WwW Ww

'@)

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1985

* RICHARD S. AURAND,

JOHN WEBB McPHERSON,

Petitioners,

vs.

COMMONWEALTH OF PENNSYLVANIA,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

: OPINIONS BELOW

The Sur Petition For Rehearing of the

United States Court of Appeals For The Third

Circuit is contained in the appendix to this

Petition (Pet. App. Al). The Judgment Order

of the United States Court of Appeals for The

a Me a0 TREN PPA ILI acto tt RN tseitoe hed,

See ee en ee Or ee

Aah RUA AB 9h

Third Circuit is unreported. It is contained

in the Appendix to this Petition (Pet. App.

A2-A3). The Memorandum Opinion and Order of

the United States District Court For The Middle

District of Pennsylvania is also unreported,

but is contained in the Appendix to this Peti-

tion (Pet. App. A4-Al6).

STATEMENT OF JURISDICTION

I. The United States District Court

for the Middle District of Pennsylvania has

Original jurisdiction of the subject matter

(21 U.S.C. §952 and 963) of the within appeal

pursuant to Section 3231 of Title 18 of the

United States Code.

II, It is hereby certified that the

instant appeal is from a final judgment of

the United States District Court for the

Middle District of Pennsylvania. The Court

of Appeals for the Third Circuit has juris-

diction pursuant to Section 1291 of Title 28

of the United States Code.

III. The United States Supreme Court has

jurisdiction pursuant to Section 1254 of

Title 28 of the United States Code.

CONSTITUTIONAL AND STATUTORY

PROVISIGNS INVOLVED

1. "The right of the people to be

secure in their persons, houses, papers and

effects, against unreasonable searches and

seizures shall not be violated and no warrants

shall issue, but upon probable cause, suppor-

ted by Oath or affirmation, and particularly

describing the place to be searched, and the

persons or things to be seized." United

States Constitution, Fourth Amendment.

2. “All persons born or naturalized in

the United States, and subject to the juris-

diction thereof, are citizens of the United

States and of the State wherein they reside.

No State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any

State deprive any person of life, liberty or

property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws." United States Con-

stitution, Fourteenth Amendment.

ORDERS IN QUESTION

1. “AND NOW, this 3lst day of August,

1984, in accordance with the accompanying

memorandum, IT IS HEREBY ORDERED that Defen-

dants' post-trial motion for a new trial is

denied" per the Honorable R. Dixon Herman

captioned in the United States District Court

for the Middle District of Pennsylvania at

Nos. 83-00198-01 (Richard S. Aurand) and

84-0°.02 (John Webb McPherson).

2. "™...the petition for rehearing

is denied,'' by the United States Court of

Appeals for the Third Circuit on April 22,

1985, captioned at No. 84-5654 (Richard S.

Aurand) and No. 85-5655 (John Webb McPherson).

STATEMENT OF THE FACTS

On October 21, 1983, a twin engine

Piper Seneca allegedly belonging to the

Defendant, McPherson, and piloted by the

Defendant, Aurand, was observed some 75 miles

Northeast of Great Inauga, without the ter-

ritorial borders of the United States.

Except for a 25 minute hiatus in observation

in the area of the Bahamas, the Seneca was

kept under constant surveillance by two

Customs Citations jets untjl it landed in

Brogue, Pennsylvania. The Seneca had seither

filed a flight plan nor cleared Customs when

it crossed the United States border, nowever,

there was no evidence as to the point of de-

parture or that the aircraft had landed out-

Side the United States. While cbserving

activity on the ground, the occupants of the

Citations indicated that they observed the

Seneca being unloaded and that there were

three to four individuals at the scene and

two vehicles. The vehicles departed and

one of the Citations attempted to follow

one - a van. The van was later lost by the

aircrafts' observers in some woods. A State

Police trooper arrived shortly thereafter

and secured the aircraft. Customs officials

then arrived and conducted a search of the

aircraft which eventually netted, inter alia,

small amounts of marijuana debris from the

cabin and the nose cone. marijuana residue

which later proved to be 2 to 5S years old.

No warrant was obtained for the search.

Both McPherson and Aurand were seen by wit-

nesses at the time the Seneca landed at

Baublitz but there was no testimony as to

what the cargo consisted of.

The Seneca had been purchased some five

months before by the Defendant, McPherson

from one Henry Weber. Mr. weber indicated

that the plane had been a commuter airplane,

had not been cleaned prior to the sale and

had had previous owners. The sale to McPherson

was completed almost immediately after Weber

had obtained the aircraft from Tischel Air

Services.

The Defendants were charged with vio-

lations of federal law and prosecuted pursuant

to Section 3231 of Title 18 of the United

States Code. Based on the foregoing facts,

the District Court held that the search of

the aircraft without a warrant was legal and

a jury determined that the evidence was suf-

ficient to prove the Defendants guilty beyond

a reasonable doubt of importation of marij-

uana.

10

REASONS RELIED UPON FOR ISSUANCE OF THE WRIT

I. THE SEARCH OF THE AIRCRAFT WAS UNREASON -

ABLE AND NOT JUSTIFIED BY ANYEXIGENT CIRCUM-

STANCES NOR WAS IT A LEGITIMATE BORDER SEARCH.

THE JUSTIFICATION FOR BORDER SEARCHES HAS BEEN

VARIOUSLY AND CONFLICTINGLY DEFINED BY THE

UNITED STATES SUPREME COURT AND THE FEDERAL

COURTS OF APPEALS THUS CREATING A NEED FOR

SUPERVISION AND UNIFORMITY.

It is a cardinal principle that searches

conducted outside the judicial process, without

prior approval by judge or magistrate, are per

se unreasonable under the Fourth Amendment--

subject only to a few specifically established

and well-delineated exceptions. Mincey v.

Arizona, 437 US 385, 390, 57 L.Ed.2d 290, 98

S.Ct. 2408 (1978), citing Katz v. United States,

389 US 347, 357, 19 L.Ed.2d 576, 88 S.Ct. 507

(1967). The warrant requirement is crucial to

ll

protecting Fourth Amendment rights because

of the importance of having the probable-

cause determination made in the first instance

by a neutral and detached magistrate.

"The point of the Fourth Amendemnt,

which often is not grasped by zealous

officers, is not that it denied law

enforcement the support of the usual

inferences which reasonable men draw

from evidence. Its protection consists

in requiring that those inferences be

drawn by a neutral and detached magis-

trate instead of being judged by the

officer engaged in the often competitive

enterprise of ferreting out crime.

Johnson v. United States, supra. at

13-14, 92L.Ed. 436, 68 S.Ct. 367. See

also Marshall v. Barlow’ s Inc., 436 US

307, 323, 56 L.Ed.2d 305, 98 S.ct. 1816

(1978); United States v. United States

District coer. Supra, at 321, 32 L.Ed.2d

2125. The safeguards em -

bodied in ye warrant requirement apply

as forcefully to automebile searches as

to any other."

The cases do recognize a narrow exception

to the warrant requirement for certain auto-

mobile searches. Two major considerations

have been advanced to justify the automobile

exception to the warrant requirement. First,

these searches have been justified on the

basis of the exigency of the mobility of the

automobile. See e.g., Chambers v. Maroney,

399 US 42, 26 L.Ed.2d 419, 90 S.Ct. 1975

(1970); Carroll v. United States, 267 US 132

69 L.Ed 543, 45 S.Ct. 280 (1925). The in-

herent mobility of the vehicle often creates

Situations in which the police's only alter-

native to an immediate search may be to re-

lease the automobile from their possession.

This alternative creates an unacceptably high

risk of losing the contents of the vehicle,

and is a principal basis for the Court's

automobile exception to the warrant require-

ment. See Chambers, supra, at 51 n 9, 26

L.Ed.2d 419, 90 S.Ct. (1975). The second

major justification for the automobile

exception is the diminished expectation of

privacy in an automobile.

he

Because an automobile presents much

of its contents in open view to police officers

who legitimately stop it on a public way, is

used for travel, and is subject to significant

government regulation, this Court has deter-

mined that the intrusion of a warrantless

search of an automobile is constitutionally

less significant than a warrantless search of

more private areas. See Arkansas v. Sanders,

442 US 753, 761 61 L.Ed.2d 235, 99 S.Ct. 2586

(1979).

The case law with respect to automobiles

is instructive in the instant situation. An

aircraft possesses the mobility of a vehicle,

but not to so great an extent. Nor is the

reasonable expectation of privacy sacrificed

to public scrutiny in an aircraft to the ex-

tent it is in a vehicle. As in all cases, a

full examination of the facts will be required

14

to determine whether or not probable cause

existed and whether or not the situation was

such as to do away with the necessity of ob-

taining a search warrant. Viewed in a light

‘most favorable to the government, the officers

knew that a plan had been traced from without

the borders of the United States and tracked

via ground radar and air surveillance to an

airfield in Pennsylvania. Government officials

from federal, county and state offices responded

to the airfield a short time after it landed to

find no one present. The plane was secure and

numerous officers were on hand to rrevent its

departure. Observations made from the air in-

dicated that the cargo had been removed and

there was, therefore, no possibility of evidence

being destroyed. Under the totality of the

circumstances, there was nothing to justify

the immediate search of the aircraft and any

evidence discovered as a result thereof must

be suppressed.

The government might argue that this was

a "border search" and, as such, not subject

to the restrictions of the Fourth Amendment.

A similar factual situation was addressed in

United States v. Caraway, 474 F.2d 25 (1973),

in which the Court held that:

"That power held by customs officials,

although enabling ‘mere suspicion'--based

searches, does not obviate the necessity

of compliance with the constitutional

standard of reasonableness. Boyd v. United

states, 1886, 116 U.S. 616, 625, 6 S.Ct.

524, 29 L.Ed. 746; Morales v. United States,

» Gam 2967, 378 F.2d i87.“

The Court further held that customs officials

cannot give unreasonable elasticity to the

border concept and reiterated the requirements

of the Fourth Amendment. The factual circum-

Stances in Caraway are virtually on all fours

with the instant case as noted by the Court:

>...-Customs officials made a full explor-

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search of Scales' boat without a warrant.

Yet there was no danger that the suspect

. vehicle would escape from the jurisdiction.

Chambers v. Maroney, 399 U.S. 42, 26 L.Ed.

2d 419 (1970). Nor did customs agents

possess any reliable information suggest-

ing the necessity of an immediate search

1?

o

The United States Supreme Court has

variously defined the circumstances and justi-

fication for permitting a warrantless search

in border search situations. To use only

several examples, it was held in Arkansas v.

Sanders, 442 US 753, 61 L.Ed.2d 253, that

personal property brought into the United

States may be searched at the border under cir-

cumstances that would not otherwise justify a

warrantless search. In United States v. Ramsey,

431 US 606, 52 L.Ed.2d 617 (1972), the Court

held that a customs official was justified in

conducting a search without a warrant where he

had "reasonable cause to suspect." And in

United States v. Cortez, US , 66

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17

L.Ed.2d 621, a totality of the circumstances

standard was used to determine if the Border

Patrol Agent had a "particularized objective

bases" for suspecting the Defendant of criminal

activity. Finally, in Almeida Sanchez v. United

States, 413 U.S. 266, 37 L.Ed.2d 596 (1973),

the Court held that neither warrant nor any

level of suspicion is required to search ve-

hicles, persons or goods arriving in the United

States. Since the aforementioned cases are

Simply a random sampling of decisions of the

United States Supreme Court on this issue, it

becomes patently obvious that consideration by

the Court is necessary to secure and maintain

uniformity.

So, too, are the various Courts of Appeals

in conflict. The instant decision is contrary

to the decisions in United States v. Bachner,

(1983, CA 11 Fla) 706 F.2d 1121, cert. den. (US)

ee ee ae a eo

18

78 L.Ed.2d 235 (nether a warrant nor any level

of suspicion is required); United States v.

King, (CA 10 NM) 485 F.2d 353 (not dependent

upon probable cause); United States v. Grayson,

(CA 9 CAL) 597 F.2d (search reasonable under a

"no suspicion" standard, or a “mere suspicion"

standard); United States v. Burkeen, (CA 6 Tenn.

1965) 350 F.2d 261 (all persons coming into the

United States liable to detention and search

by authorized governmental officers); United

States v. Hill, (CA 5 Fla. 1970) 430 F.2d 129

(reasonable suspicion of a customs agent);

United States v. Harper, (1980, CA 4 NC) 617

F.2d 35 (searches at established border check-

point are reasonable per se); United States v.

Stornini, (CA 1 Puerto Rico 1971) 443 F.2d 833

(customs officer may search on a random basis);

United States v. Beck, (CA 3 Pa. 1973) 483 F.2d

203 (determination dependent upon the particular

Pea eee

facts of each case); United States v. Aulet,

(1980, CA 1 NY) 618 F.2d 182 (reasonableness

determined by weighing the warranted suspicion

of the border official against the offensive-

ness of the intrusion); United States v. Walters,

(CA S Fla. 1979) 591 F.2d 1195 (border search

require a less demanding degree of justifica-

tion than domestic search). Totality of the

circumstances, consent, and probable cause

standards also abound in Court of Appeals cases.

For example, although reasonable suspicion is

sufficient to justify stop by roving border

patrol officers, any further detention or search

must be based on consent or probable cause.

United States v. Saenz, (CAS Tex) 578 F.2d 643,

cert. den. 439 U.S. 1075, 59 L.Ed.2d 42, 99

S.Ct. 850. Thus, there is a plethora of con-

flicting standards, which your Honorable Court,

in its supervisory powers, must resolve.

ee Oe ee)

20

Assuming, arguendo, that the airport in

Brogue was the functional equivalent of a border,

a seizure lawful at its inception can neverthe-

less violate the Fourth Amendment because its

j} manner of execution unreasonably infringes pos-

sessory interests protected by the Fourth Amend-

ment's prohibition on "unreasonable seizures".

7 United States v. Place, 462 U.S. 77. be ba.

2d 110 (1983). There the Court examines the

exception to the probable case requirement for

limited seizures of the person recognized in

Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889 (1968),

and held that the principles of Terryapply to

seizures of property and tha the prolonged

seizure of Defendant's baggage went far beyond

a mere investigative stop and amounted to a

violation of his Fourth Amendment rights. United

States v. Place, supra. As in all exceptions

to the probable cause requirement recognized in

Terry, it rests on a balancing of the competing

21

interests to determine the reasonableness of

the ty e of seizure involved within the mean-

ing of the Fourth Amendment's general pre-

scription against unreasonable searches and

seizures. As the Court stated:

"We must balance the nature and quality

of the intrusion on the individual's Fourth

Amendment's interests against the importance

of the governmental interests alleged to

justify the intrusion. When the nature

and extent of the detention are minimally

intrusive of the individual's Fourth Amend-

ment's interest, the opposing law enforce-

ment interests can support a seizure based

on less than probable cause."

As in Place, in bgrder searches, we are

also dealing with a balancing of interests.

A distinction must also be noted between the

right to make a search and the nature and ex-

tent of the search that may be made under the

circumstances. Although the authorities are

relatively unclear as to what was the basis

for a border search, if the search of a perons's

vehicle or baggage leads to the search of his

person, it seems that something more is required.

ae

t

It has been held that to justify a search of

body cavities there must be a "clear indication"

or "plain suggestion" of smuggling and that

mere suspicion is not enough. Rivas vs. United

|states, 368 F.2d.703 (CA 9 CAL 1966) cert. den.

1386 U.S. 945 17 L.Ed2d 875. Thus, yet another

standard of proof for searches lawful at the

joutset. In the instant case, it is respectfully

submitted that, even assuming the validity of

} the border search concept, the search in this

case extended beyond permissible limits.

23

II. THE DEFENDANTS WERE DENIED DUE PROCESS

OF LAW AS A RESULT OF BEING CONVICTED OF IM-

! PORTATION OFMARIJUANA BY EVIDENCE OF THE

PRESENCE OF RESIDUE OF MARIJUANA IN THE AIR-

CRAFT, WHICH RESIDUE WAS OPINED TO BE 2 TO 5

YEARS OLD.

Due process of law guarantees respect

for those personal immunities which are "so

rooted in the traditions and conscience of

| our people as to be ranked as fundamental,"

Snyder v. Massachusetts, 291 U.S. 97, 105

(1934) or are “implicit in the concept of

ordered liberty." Palko v. Connecticut, 302

U.S. 319, 325 (1937). See Rochin v. California,

342 U.S. 165 (1952). Fundamental to the con-

cept of due process is the principle that

every person who stands accused of a crime is

entitled to a fair and impartial trial.

Massey v. Moore, 348 U.S. 105 (1954); Betts

24

v. Brady, 316 U.S. 455 (1942). Our Courts

long ago recognized that an essential ingredient

of a fair trial is the presumption of innocence

with which an accused is clothed. "The prin-

ciple that there is a presumption of innocence

in favor of the accused is the undoubted law,

axiomatic and elementary, and its enforcement

lies at the foundation of the administration

of our criminal law." Coffin v. United States,

156 U.S. 432, 453 (1895); Comm. v. Mayhugh, 2533

Pa. Super. 24 (1975).

It is respectfully submitted that the

finding of a small amount of marijuana by govern-

ment officials is not sufficient evidence to

convict the defendants of the violations spec:-

fied herein or to support the indictment. The

government must admit that, although the plane

was observed being unloaded, the only evidence

of the aircraft containing an illicit substance

it Dab & Py

25

was some marijuana residue "no bigger, in terms

of volume, than a ball point pen" in the words

of Officer Craven at the preliminary hearing.

The government would bootstrap the presence of

marijuana residue, admittedly no more than that

used for personal consumption, into the basis of

a prosecution for importation and conspiracy:

Surely this "giant leap" is without precedent.

Your writer has reviewed that case law dealing

with the sufficiency of the evidence in such

cases and has had little success in finding

Similar factual situatic»s. Suffice it to say

that there were universally present such addition-

al facts as would warrant prosecution and/or

conviction such as a ship heavily laden with

marijuana, United States v. Munoz, 681 Fla. 1372

(CA 11 Fla, 1982); letter regarding shipment of

heroin in defendant's handwriting along with

package containing heroin, United States v.Ogle,

26

587 Fla 938 (CA 8 Minn 1978); implausible

itinerary and large amount of marijuana,

United States v. La Froscia, 485 F.2d 451

(CA 2 NY 1973); Defendant entered United States

with round trip ticket from Panama and four

and one-half (4 1/2) pounds of cocaine, United

States v. Restrepo Grande, (CA 5 La 1978);

defendant in possession of Columbian-packaged

marijuana, United States v. Miller, 589 Fia

1117 (CA 1 Me 1978); fifteen (15) tons of

marijuana in bales bearing Spanish markings,

United States v. Seni, 662 Fla 277 (CA 4 NC

1981); and eight (8) tons of marijuana, United

States v. Tussell, 441 F. Supp. 1092 (CA 3 WDPa

1977).

One might suspect that a plane containing

material entered United States territory and

landed in Pennsylvania. One might suspect that

the Defendant was piloting the aircraft which

27

was subsequently unloaded. One might suspect

that the material was subject to duty. How-

ever, on the issue of what the material was

and where it came from, one is left to specu-

late. While it is true that circumstantial

evidence, in itself, may be sufficient to

establish the commission of a crime and the

accused's connection therewith, if the con-

viction is based wholly on inferences, sus-

picion and conjecture, it cannot stand. As

the Pennsylvania Supreme Court stated in Comn.

v. Lang, 470 Pa. 204, 368 A.2d 265 (1977):

"On the basis of the evidence presented,

the jury would have had to guess whether

the Defendant committed the crime. As

we said in Comm. v. Crews, 436 Pa. 346

260 A.2d 771 (1970): “Our system recoils

at sending a man to prison...on a guess.'"

In the instant case, the government's

evidence was wholly circumstantial. While the

law makes no distinction between direct and

Circumstantial evidence, this does not do away

28

with the requirement that the proof be beyond

a reasonable doubt. There was no direct testi-

mony that the airplane left U.S. territory,

landed in foreign country, picked up an illicit

substance and flew back to Brogue, Pennsylvania.

Despite references to prior trips to Jamaica and

the landing conditions there, there were not

witnesses to any such activity. Rather the gov-

ernment rested its case on the Defendants' air-

craft having been picked up on radar fifty-seven

(57) miles northeast of Great Inagua and having

been followed to the destination in York County.

While on the ground, certain persons were seen

carrying boxes from the plane to other vehicles

whereupon the vehicles left the scene and could

not be traced. Finally, the government dis-

covered what appeared to be marijuana residue

on the floor of the cargo area, in the nose cone

and on one wing. Based on this evidence, the

29

Court allowed the case to go to the jury ad-

judged the defendants guilty.

ARR ONE Se Neat man Soutien el To ane Neapanierrtsccits

Interestingly enough, in the midst of

their deliberatons, the jury requested the

Court to reinstruct on the issues of direct

and circumstantial evidence and asked that the

SADR RNS. leet ialMik AA RAF deal Loch te AA Oe ES

Court again define the "circumstantial ladder".

0 a eis oleae

It was, therefore, quite obvious that the jury

Sebsikesse5

had honed in on the crucial issue of whether

the presence of the marijuana found in the

aircraft was sufficient circumstantial evidence

to convince them beyond a reasonable doubt that

Renn eane s Wnmstiescer MEY ems

that material was also the material in the boxes

that had been removed. It is respectfully sub-

ll Bl SES TY Ras BH SS

mitted that, under the peculiar circumstances

' of the instant case, it was not sufficient.

a

=

y

£

The government's own witness, Janice

Holley, admittedly the leading authority on

marijuana under government contract at the

University of Mississippi for the study of same,

30

testified that the residue found on the air-

plane could have been grown in the United

States and was two to five years old. It

was further established without question that

the Defendant, Webb McPherson, had obtained

the uncleaned 1973 aircraft from a commuter

: airline some four months before. Therefore,

' despite the lengthy and complex trial of the

case, the issue is very simple: Is the presence

of a small amount of marijuana which is two to

five years old on a 1973 aircraft purchased by

one of the defendants only four months before

sufficient circumstantial evidence to prove

beyond a reasonable doubt that the boxes re-

moved from the aircraft also contained marijuana?

A careful analysis of circumstantial evidence

cases will demonstrate that it is not.

The standard has been stated by our

Third Circuit Court of Appeals in United States

v. United States Gypsum Co., 600 F.2d 414,

416-17(3rd Cir.), cert. denied, 444 U.S. 884,

100 S.Ct. 173, 62 L.Ed.2@d 114 (1979):

"We must sustain the verdict if there

is substantial evidence, viewed in the

light most favorable to the Government,

to uphold the...decision. Burks v. United

States, (4357 U.S. 1, 17,) 98 S.Ct. Za4a

(57 L.Ed.2d 1) (1978); Glasser v. United

States, (315 U.S. 60, 80,) 62 S.Ct. 457

(86 L.Ed. 680) (1942). ¥

In applying this standard, the appellate court

does not weight the evidence or determine the

' credibility of witnesses. United States v.

Bycer, 593 F.2d 549 (3d Cir. 1979); United States

v. Scarborough, 496 F.Supp. 1293 (Dist. Ct. ED

Pa. 1980).

As stated by our Third Circuit, the evidence

presented in a criminal trial, whether direct

or circumstantial,

does not need to be inconsistent with

every conclusion save that of guilt if

it does establish a case from which the

.(fact finder) can find the defendant

32

guilty beyond a reasonable doubt.

United States v. Cooper, 567 F.2d

252, 294 (3d Cir =Tob75: United States

v. Hamilton, 457 EF. 2d 95 (3d Cir. 1972).

Inferences from established facts are

accepted methods of proof when no direct evidence

is available. It is essential, however, that

there be a logical and convincing connection bet-

ween the facts established and the conclusion

inferred. United States v. Bycer, supra. And

although "the jury is permitted to infer from

one fact the existence of another essential to

guilty, if reason and experience support the

inference", Tot v. United States,319 U.S. 463,

63 S.Ct. 1241, 1244, 87 L.Ed. 1519 (1943), it

is well -settled that the Court cannot permit

the jury to rely on conjecture or speculation

in arriving at its verdict. United States v.

Heithaus, 391 F.2d 810 (3d Cir. 1968); United

States v. Cockerill, 366 F.Supp. 856 (S.D.I11.

1973).

I Me SOe. oe ae tee ee Sm Bis OE ol I eb

As the Court stated in Bycer:

"Our careful review of the record in

this case fails to disclose any sub-

stantial connection between the proved,

non-exclusive psossession and the

charged distribution. We are all too

aware of the seriousness of the illegal

drug traffic problem and the difficulty

of prosecution in many cases. But we

are not willing to abandon the protec-

tion designed to aid the innocent--

requiring proof beyond a reasonable

doubt, not simply suspicion--to sustain

a conviction."

Thus, there is little question that cir-

Cumstantial evidence may be the basis for a

conviction and need not be inconsistent with

every conclusion save that of guilt. However,

it still must be sufficient to prove the guilt

of the Defendant beyond a reasonable doubt.

The government might argue that the marijuana

found on the wing of the airplane undermines

the defense theory that the marijuana had been

in the plane for some time. In actuality, it

is perfectly consistent with the boxes having

- -

ce es

OPN he

34

been unloaded from the nose cone and the in-

terior of the aircraft. Obviously, if the

marijuana was already there, some would have

gotten on the boxes and have been left on the

wing had the boxes been placed there momentarily.

It is, therefore, respectfully submitted that

the established fact of the presence of mari-

juana does not support the inference that there

was marijuana present in the unloaded boxes.

There is no "logical and convincing connection

between the facts established and the conclu-

Sion inferred." Under the instant circumstances,

the conviction of your petitioners constituted

a denial of due process of law.

CONCLUSION

In this case, the aircraft may have in-

deed come from without the territorial limits

of the United States. However, the cargo had

been unloaded and the state police had secured

the aircraft. Under the facts, there was no

danger of evidence being destroyed or moved.

Thus there were no exigent circumstances re-

quiring an immediate search. Nor is there a

common standard or just cause for classifying

this as a border search.

As to the presence of the marijuana, it is

not being facetious to liken this to the pur-

chase of any used vehicle or other means of

transportation. If this conviction were to

stand, one could be convicted of this offense

if the previous owner or occupant had dropped

some marijuana on the floor or some had spilled

out in the luggage compartment. Surely to

permit this judgment to stand constitutes denial

Respectfully

Dre

H. STANLEY R

Counsel for Richard S. Aura

With | tL Ald. |

HAROLD N. HITZKEE, JR., ES

Counsel for John Webb

McPherson

of due process of law.

ubmitted,

Al

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 84-5654

No. 84-5655

UNITED STATES OF AMERICA

V.

AURAND, RICHARD S.,

McPHERSON, JOHN WEBB,

Appellants

SUR PETITION FOR REHEARING

Before: ALDISERT, Chief Judge, SEITZ, ADAMS,

GIBBONS, HUNTER, WEIS, GARTH,

HIGGINBOTHAM, SLOVITER and BECKER,

Circuit Judges.

The petition filed ty Appellants in the

above-entitled case having been submitted to

the judges who participated in the decision

of this court and to all the other available

circuit judges of the circuit in regular active

service, and no judge who concurred in the

A2

decision having asked for rehearing, and a

majority of the circuit judges of the circuit

in regular active service not having voted

for rehearing before the Court in banc, the

petition for rehearing is denied.

BY THE COURT,

/s/ A. Leon Higgenbothom

Circuit Judge

Dated: April 22, 1985

A3

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 84-5654

No. 84-5655

UNITED STATES OF AMERICA

Vv.

AURAND, RICHARD S.,

McPHERSON, JOHN WEBB,

Appellants

Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Criminal Nos. 83-00198-01 and 84-00002-01)

District Judge: Honorable R. Dixon Herman

Submitted Under Third Circuit Rule 12(6)

March 18, 1985

Before: SEITZ and HIGGINBOTHAM, Circuit Judges,

and GILES, District Judge*

JUDGMENT ORDER

This cause came on to be heard on the record

*Honorable James T. Giles, United States District

Court for the Eastern District of Pennsylvania,

sitting by designation.

A4

from the United States District Court for the

Middle District of Pennsylvania and was sub-

mitted under Third Circuit Rule 12(6) on

March 18th, 1985.

After considering the contentions raised

by appellants, Richard S. Aurand and John

Webb McPherson, to-wit, that the Court erred:

(1) in denying appellants' pretrial motions;

(2) in not directing a verdict of acquittal

at the conclusion of the government's case on

the theory of insufficiency of evidence to

warrant conviction of importation and con-

spiracy; (3) in admitting hearsay statements

implicating appellant McPherson, and (4) in

not granting a mistrial when a witness responded

to a question previously stricken by the court;

at is

ADJUDGED AND ORDERED that the judgment of

the district court be and is hereby affirmed.

BY THE COURT,

/s/ A. LEON HIGGENBOTHAM _

Attest:

/s/ Sally Mrvos

Clerk

DATED: March 25, 1985

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : Criminal Nos. 83-00198-01

: 84-00002

VS

RICHARD S. AURAND and

JOHN WEBB McPHERSON

MEMORANDUM

On April 10, 1984, a jury found Defendants

Richard S. Aurand and John Webb McPherson, guilty

of importing marijuana and conspiring to import

marijuana pursuant to 21 U.S.C. 88952, 963.

| Timely post-trial motions for a new trial were

filed by Defendants, which the parties have briefed

and we will now address.

I. SUFFICIENCY OF THE EVIDENCE

A. Legal Standard

Defendants assert that the Court erred in

denying their motion for acquittal and that the

verdict is not supported by substantial evidence.

We agree with the Government that the same standard

\ A6

|

of review governs both of these claims. This

Standard is expressed fully in a recent Third

Circuit opinion, which is as follows:

In reviewing the sufficiency of the

evidence to support the convictions of (Defen-

dants), we are mindful of the Supreme Court's

decision in GLASSER v. UNITED STATES, 315 U.S.

60, 80 (1942). In GLASSER, the Court stated:

"It is not for us to weigh the evidence

or to determine the credibility of wit-

nesses, The verdict of a jury must be

sustained if there is substantial evidence,

taking the view most favorable to the Gov-

ernment, to support it."

Id. (citation omitted) Recently, the Court re-

affirmed this holding. In BURKS v. UNITED STATES,

437 U.S. 1, 17 (1978), the Court stated:

"The prevailing rule has long been that

a district judge is to submit a case to the

jury if the evidence and inferences therefrom

most favorable to the prosecution would warrant

the jury's finding the defendant guilty beyond

a reasonable doubt. . . . Obviously a federal

appellate court applies no higher a standard;

rather, it must sustain the verdict if there is

substantial evidence, viewed in the light most

favorable to the Government, to uphold the jury's

decision. . . .While this is not the appro-

priate occasion to re-examine in detail the

standards for appellate reversal on grounds of

insufficient evidence, it is apparent that such

a decision will be confined to cases where the

prosecution's failure is clear."

A?

Id.(citations omitted). Moreover, "(t)he

evidence does not need to be inconsistent with

every conclusion save that of guilt if it does

establish a case from which the jury can find

the defendant guilty beyond a reasonable doubt.

UNITED STATES v. ALLARD, 240 F.2d 840, 841 (3d

Cir.), cert. denied, 353 U.S. 939 (1957). See

also UNITED STATES v. COOPER, 567 F.2d 252, 253

(3d Cir. 1977) (recognizing the GLASSER and

ALLARD standards). Finally, when examining the

sufficiency of the evidence, the Court reviews

the totality of the circumstances. See GOVERN-

MENT OF THE VIRGIN ISLANDS v. GREENE, 708 F.2d

115,115 (3d Cir. 1963). cert. denied, U.S.

, 104 S.Ct. 1004 (1984); UNITED STATES v.

BLASCO, 702 F.2d 1315, 1332 (llth Cir. 1983),

cert. denied, U.S. Bee BaGes Bee

(1984).

Al

UNITE STATES v. LEON, No. 83-5208, slip op. at

11-12 (3d Cir. July 12, 1984) (emphasis added)l

In short, the question is whether the record

evidence can reasonabl¥ support a finding of

guilt beyond a reasonable doubt. As the Supreme

Court stated:

this inquiry does not require a court to

"ask itself whether it believes that the

evidence at the trial established guilt

beyond a reasonable doubt.'' WOODBY v. INS,

oG3 U.S. at 282, 17 &.8d. 34 364, 87 S.Ct.

483 (emphasis added). Instead, the rele-

vant question is whether, after viewing

the evidnece in the light most favorable

to the prosecution, any rational trier of

A8

fact could have found the essential

elements of the crime beyond a reason-

able doubt. See JOHNSON v. LOUISIANA,

406 U.S. at 362, 32 L.Ed. 2d 152, 92

S.Ct. 1620. This familiar standard

gives full play to the responsibility

of the trier of fact fairly to resolve

conficts in the testimony, to weigh the

evidence, and to draw reasonable infer-

ences from basic facts to ultimate facts.

Once a defendant has been found guilty

of the crimecharged, the factfinder's

role as weigher of the evidence is pre-

served through a legal conclusion that

upon judicial review all of the evidence

is to be considered in the light most

favorable to the prosecution. The cri-

terion thus impinges upon "jury" discretion

only to the extent necessary to guarantee

the fundamental protection of due process

of law.

TJn reviewing the evidence, we recognize,

as we so charged the jury, that the law makes

no distinction between direct and circumstantial

evidence. Notes of Testimony (N.T.) 8:54.

JACKSON v. VIRGINIA, 443 U.S. 307, 318-19 (1979)

(emphasis in original) (footnotes omitted).

Examining the sufficiency of the evidence in

this case, we find that the jury could have found

the essential elements of importation of mariju-

ana and conspiring to import marijuana beyond a

AQ

reasonable doubt.

B. The Facts

Aurand was the employee of McPherson.

As McPherson's employee, Aurand piloted a

Piper Seneca N1073U aircraft, which McPherson

owned. N.T. 4:148-49, 2:33, Government's

Exhibit 17. On October 21, 1983, Aurand and

McPherson were observed at Baublitz Airport

in Brogue, Pennsylvania, equipping the Piper

for long distance travel. In particular,

Defendants had removed the rear seats in the

plane and were installing two fifty-five gal-

lon drums, known as long-range fuel tanks.

In the afternoon, Aurand and a co-pilot were

observed departing the Baublitz airfield, with

McPherson remaining behind. N.T. 4:85-91.

The plane was next sighted fifty-seven

miles off the northwest coast of the Creat

Inagua island in the Bahamas, which is outside

the waters or territory of the United States.

Al10

N.T. 2:46. From that point, the plane was

followed nonstop for ten to twelve hours by

United States Custom pilots, both visually

and by radar, until the plane landed at the

Baublitz Airport in Pennsylvania.

During this period, the plane did not

land in the United States. N.T. 2:64-123.

Testimony revealed that the plane had to have

landed outside the United States, but before

it was sighted off of Great Inagua, to refuel.

N.T. 6:17-19. As the plane traveled, it flew

over the water until it broke the coastline

of South Carolina, N.T. 2:51-52. No flight

plan had been filed previously. N.T, 2:48.

These conditions were noted to be uncommon

and more dangerous N.T. 2:64,

Another unusual activity occurred when

Aurand failed to land at a designated airport

and clear customs. A plane must clear customs,

i.e., be checked for importation violations,

All

in Florida if the plane has been south of a

certain latitude. N.T. 2:72-73. The Piper

met this criteria but did not land at any

airport to be inspected. Id.

Ultimately, Aurand filed a flight plan

to land at the Glenn L. Martin Airport in

Baltimore, Maryland. N.T. 2:51. Although

the plane appeared to be descending to land,

the landing was aborted and the plane con-

tinued to Baublitz Airport, a more remote and

less safe airstrip. N.T. 2:54, 2:145-47, 2:157.

As the Piper approached Baublitz, the

airfield lights were activated. At the time,

it was dusk or dark. N.T. 2:147. As soon as

the plane landed on the grassy strip, however,

the airfield's and the plane's lights were ex-

tinguished. As the aircraft taxied to a build-

ing, its lights were blinked on and off a few

times. N.T. 2:148-49. In the meantime, a

customs plane attempted to land on the field;

Al2

unfortunately, the lights were turned off by

someone on the airfield's lights but was pre-

vented from doing so by manual control on the

ground. N.T. 2:148-49, 4:97-102.

The plane was met by a few individuals,

one individual being McPherson, N.T. 2:126-27,

4:54-55. The Piper was quickly unloaded.

Witnesses on the ground observed numerous white

packages being removed from the passenger, rear

compartment, and nose locker storage area and

being placed in nearby v:' hicles. N.T. 3:15, 17;

3:54-55. The packages did not appear to be dif-

ficult to carry. N.T. 3:15-16.

As the plane was being unloaded, the son

of the owner of the airfiéli, with his two com-

panions, stopped to check on the airfield.

N.T. 4:50. The youth observed Aurand and stopped

to talk- with McPherson. N.T. 4:54-55. When he

returned to his car, he appeared visibly upset

and exclaimed, "Let's get the fuck out of here."

13

N.T. 3:21, 57. They then promptly left the

scene. McPherson, Aurand, and the other in-

dividuals completed unloading the plane and

immediately left Baublitz Airport. N.T. 2:128.

The Piper was left at the spot, unattended,

partially open, and not tied down. N.T. 2:

138-Si, 4:62, 97;

A subsequent search of the plane revealed

the presence of small amounts of marijuana

in the rear passenger area, and the nose locker

and on the wing of the plane. N.T. 3:71, 7:

25-26; Government's Exhibits 36 §& 37. Janis

Holley, the Project Coordinator and Laboratory

Supervisor for a project concerning the growth

and analysis of marijuana, testified that

the marijuana found in the nose locker was

not native to the United States and that the

marijuana found in the passenger compartment

area probably had the same origin as the nose

locker marijuana sample. N.T. 6:81-82. Other

Al4

evidence recovered in the Piper plane in-

cluded a flight plan dated October 22, 1983,

which noted Aurand as the pilot; a map of the

Caribbean-Puerto Rico-Jamaica-Bahama area;

and handwritten notes with weight and balance

calculations for the plane. See Government's

Exhibits 7, 9, & 11; N.T. 3:90. Subsequent

processing revealed that Aurand's and McPherson's

fingerprints were on these items, N.T. 4:12-13.

Further testimony established that Wendy

Ludwick, Aurand's fiancee at the time, tele-

phonically assisted McPherson and Aurand in

arranging the October 1983 weekend flight from

Baublitz Airport.? McPherson told Aurand through

Ludwick that Aurand was to have the plan ready

for Friday (October 21, 1983) with the long-

range fule tanks installed. N.T. 4:154-55.

ZAurand had a hearing disability and, con-

sequently, when he used Ludwick's telephone, he

needed her assistance to hear the caller.

Al5

In the days following Aurand's return,

Aurand told Ludwick that he had been to Jamaica

the weekend of October 21-22, 1983, as part of

his job. When previously explaining his em-

ployment to her, Aurand had told Ludwick that

he worked for McPherson in the company Counter-

Intelligence, Inc. His task was to pilot

McPherson's Piper Seneca to Jamaica to catch

drug smugglers.° eau Gtaeey 2077°S5227. Can-

cerning the October 1983 flight, Aurand told

Ludwick that he had piloted the plane to and

back from Jamaica in an attempt to appear like

he was smuggling drugs. He had committed this

"ruse", he explained to her, to try to catch

custom officials taking bribes. N.T. 4:163-64.

Aurand further told Ludwick that another

plane had followed him to the Baublitz Airport

upon his return on October 22, 1983. This other

plane could not land, he claimed, due to its

SKurand also told others that he worked for

Counter-Intelligence, Inc.; that McPherson was

his employer; and that he piloted an aircraft in

his job, which was to catch drug smugglers. N.T.

9°:93-94, 5:115, 6:36-37, 7:62, 7:64, 7:65-66,7:68.

Alo

Size. N.T. 4:164-65. He and others unloaded

radio equipment from the plane, split up, then

rejoined on a hearby hill and watched aircrafts

circle over the air field. N.T. 4:166, 171.

Aurand also told Ludwick that government

agents had questioned him about his actions for

the two days (October 21-22, 1983). Aurand then

tried to reach McPherson, and succeeded in ar-

ranging a meeting. N.T. 4:161. Aurand later

asked Ludwick if he could stay with her. He said

he could not go home because he would be questioned

and he could not answer their questions. N.T.

4:162-63. When Ludwick subsequently told Aurand

that agents had questioned her about him, Aurand

told her to be careful what she said or she could

send him to jail. N.T. 4:169.

Finally, the Government presented Customs

and FBI Agents who testified that Aurand claimed

the last time he had flown McPherson's plane was

Thursday, October 20, 1983. N.T. 3:68. Never-

Al7

the less, in addition to other evidence, the

Government produced Federal Aviation Admini-

Stration (FAA) tapes from October 22, 1983,

which contained Aurand's voice and his acknow-

ledgment that he was piloting the Piper Seneca

N1073U. See Government's Exhibits 28, 30;

5:97. Additionally, the Government pro-

duced an exculpatory statement made by McPherson.

McPherson had told an individual, upon being

queried about the events of October 21 and 22,

1983, that he did not know the pilot, Aurand.

N.T. 6:60-61.

We concur with the Government that this

evidence and the inferences therefrom support

the jury's finding of guilt beyond a reasonable

doubt. Defendants argue that while the evidence

supports a finding that some illegal activity

occurred, the evidence is insufficient to sup-

port a conviction of importation, which requires

proof beyond a reasonable doubt that Defendants

Als

possessed marijuana that emanated from out-

Side the United States and that Defendants

brought it into the United States. UNITED

STATES v. WATKINS, vo2 F.2d 1090 (4th Cir.

1981). In particular, Defendants claim that

the finding of a small amount of marijuana

residue in the plane and on the wing of the

plane does not establish that the white boxes

which were unloaded on October 22, 1983, con-

tained marijuana.

We disagree. Although the Government's

case was established wholly upon circunm-

Stantial evidence, the evidence and logical

inferences support a finding that Defendants

had imported a planeload of marijuana from

outside the country. We believe the evidence

establishes the essential elements of the

crime beyond a reasonable doubt: that Aurand

and McPherson conspired to import marijuana,

that Aurand flew to Jamaica and picked up

numerous boxes of foreign marijuana, that

Al9

Aurand flew back to the United States via

a more dangerous route to evade Customs

officials, that Aurand landed covertly at

Baublitz Airport and waSmet by McPherson,

and that the Defendants unloaded the mari-

juana cargo quickly and in the dark to avoid

detection, leaving traces of marijuana behind.

We thus deny Defendants' post-trial motion on

the basis of the sufficiency of the evidence.

[I. PRETRIAL MOTIONS

A. Search of the Piper Seneca Plane

Prior to trial, Defendants moved to sup-

press any evidence obtained inthe searches

of McPherson's abandoned Piper Seneca because

government agents had not obtained search

warrants. The Government countered that no

warrants were necessary since the search was

a "border search." In our February 23, 1984,

memorandum, we observed that border searches

were a valid exception to the Fourth Amend-

ment's warrant requirement. UNITED STATES v.

RAMSEY, 431 U.S. 606, 622 (1977); ALMEIDA-SANCHEZ

v. UNITED STATES, 413 U.S. 266, 273(1973) (war-

rantless search extends to the functional

equivalent of a border search); UNITED STATES

v. NIVER, 689 F.2d 520 (Sth Cir. 1982). An

evidentiary hearing was held to determine if

the search constituted the functional equivalent

of a border search. We subsequently held the

search valid.

Defendants now contend that the denial of

their suppression motion was error. Defendants

do net offer any reason why the decision was

error, other than Defendants' irrelevant dis-

cussion of warrantless automobile searches.

They do note, however, that the Government

"might argue that this was a ‘border search'..."

Defendants' Brief, at 14. The Government does,

and always has, contended the search was the

functional equivalent of a border search. The

A21

pretrial evidentiary hearing expressly addres-

sed that issue. The evidence overwhelmingly

established that the Piper Seneca N1C073U was

observed outside the United States territory,

followed non-stop from the Carribean, and

first landed in the United States at Baublitz

Airport. This is a prime example of the

functional equivalent of a border search.

UNITED STATES v. GARCIA, 672 F.2d 1349, 1363-

64 (llth Cir. 1982).4 Accordingly, we find

no error in our refusal to suppress evidence.

B. Severance of McPherson

McPherson alleges error in the Court's

refusal to grant his motion for “everance.

We find no error.

As we previously held:

(a) defendant must make a strong showing

of compelling or substantial prejudice to

*Defendants’ reliance upon UNITED STATES

v. CARAWAY, 474 F.2d 25 (Sth Cir. 1974), is

totally misplaced for the reasons set forth

in the Government's Opposing Brief, at 10.

obtain relief. UNITED STATES v. WERNER

620 F.2d 922, 928 (2d Cir.1980); UNITED

STATES v. STALLER, 616 F.2d 1284, 1294

(Sth Cir.), cert. denied, 449 U.S. 369

(1980). A showing that a defendant may

have a better chance of acquittal in

separate trials does not establish

prejudice requiring severance. UNITED

STATES v. THOMAS, 676 F.2d 239, 243

(7th Cir. 1980); PETERSEN, supra. See

also UNITED STATES v. FUEL, 583 F.2d 978,

988 (8th Cir. 1978), cert. denied, 439

U.S. 1127 (1979). Severance should not

be granted if the jury is able to make

individual determinations about guilt

for each defendant based upon the evidence.

UNITED STATES v. BRIGHT, 630 F.2d 804,

813 (Sth Cir. 1980). The Third Circuit

has also observed that severance should

not be granted merely because the Govern-

ment's case is stronger against a co-

defendant, UNITED STATES v. DANSKER,

537 F.2d 40 (3d Cir. 1976), cert. denied,

429 U.S. 1038 (1977).

UNITED STATES v. AURAND, No. 83-00198-01,

Slip op. at 7 (M.D. Pa. February 23, 1984).

McPherson contends that he suffered "great

prejudice" in not being severed from Aurand.

In support thereof, McPherson merely claims

that statements made by Aurand suggested

McPherson's prominence in the matter. McPherson

A23

does not detail which statements prejudiced

him or the manner of the prejudice. Neverthe-

less, any statements that implicated McPherson

were properly admitted under appropriate

evidentiary standards. Therefore, we find that

McPherson has not made the necessary showing of

substantial prejudice.

III. WENDY LUDWICK'S HEARSAY TESTIMONY

McPherson also argues that the Court erred

in admitting Ludwick's testim.ny concerning

statements made by Aurand that implicated

McPherson. McPherson again fails to specify

the statements made by Ludwick which allegedly

prejudiced him.

The law is clear that hearsay is inadmis-

sible if it does not fall within one of the

exceptions to the hearsay rule. UNITED STATES

v. REYNOLDS, 715 F.2d 99 (3d Cir. 1983); Fed.

R. Evid. 802, 805. In the case at bar, Ludwick

A24

repeated statements made by Aurand that im-

plicated McPherson. These statements were

properly admitted under Fed. R. Evid. 801(d)

(2)(D) and (E). These rules of evidence pro-

vide that statements by a co-conspirator of a

party during the course and in futherance of

a conspiracy and statements by an agent within

the scope of his agency or employment made

during the existence of the relationship are

not hearsay and are admissible.

During the trial, Ludwick testified that

Aurand had told her and others that he was

employed by McPherson as a pilot. He said he

flew for McPherson to chase drug smugglers off

the coast of Jamaica in conjunction with the

Drug Enforcement Agency (DEA). N.T. 4:149, 167;

5:27. His salary for this work was $35,000.00

to $45,000.00 per year in July 1983, which

Aurand said increased to $70,000.00 per year

a25

in September 1983. N.T. 1:152. Prior to the

weekend of October 21 and 22, 1983, Aurand said

he would be taking a trip for his boss, McPherson.

N.T. 4:153. Aurand and McPherson discussed

and arranged the trip by telephone in Ludwick's

presence. Indeed, Ludwick was a party to these

conversations due to Aurand's hearing disability.

N.T. 4:154-55. McPherson told Aurand to be at

the Baublitz Airport Friday morning (October 2l,

1983), to take out the seats in the plane, and

to install the long-range fuel tanks. N.T. 4:156-

BT

After being questioned by government agents

on October 23, 1983, Aurand told Ludwick that he

was going to meet with McPherson at Hunt Valley.

N.T. 4:161-62. Later, Aurand said the reason

for his trip to Jamaica was to catch custom of-

ficials accepting bribes. N.T. 4:163-64.

Reviewing these statements, we believe all

were properly admitted either as co-conspirator

statements made in furtherance of the con-

Spiracy, statements of an agent within the

scope of his employment, or admissions. In

part, Aurand explained his employment to

Ludwick. Other statements demonstrated the

conspiracy between Aurand and McPherson and

their attempts to conceal it, Finally, other

Statements were admissions by McPherson made

directly to Ludwick. Therefore, no error re-

sulted in the admission of Ludwick's testimony.

IV. THE CHARGE TO THE JURY

Defendants assert that the Court erred

in rejecting Defendants' proferred points for

charge. Once again, Defendants have failed to

articulate their position other than a general

Statement concerning whether the marijuana

found in the plane was sufficient evidence upon

which to convict. Thus, wee focus on only that

part of the charge.

A27

Defendants’ requested points 3 and 4,

which concerned the discovered marijuana, were

the equivalent of asking for a directed verdict

and we, thus, properly, denied these points.°

The remaining points concerning the marijuana,

requested points 2, 5, and 6, were given to the

jury, although not in the exact wording suggested

by Defendants. Such is not error. In its charge,

the Court reviewed the elements of the crime.

N.T. 8:54-55. The Court further charged that it

was the jury's role to determine by circumstan-

tial evidence whether the boxes contained mari-

juana. N.T. 8:73. Accordingly, we find Defen-

dants' protestations to be without merit.

3The requested points were as follow:

3. A small amount of residue of marijuana

which is very old or has been subjected to

harsh storage conditions is insufficient to

establish beyond a reasonable doubt that the

defendants engaged in the importation of

marijuana on October 21, 1983.

4. A small amount of residue of marijuana

which is very old or has been subjected to

harsh storage conditions is insufficient to

establish the corpus delicti of importation

of marijuana.

— A28

V. MISTRIAL MOTION

Prior to Wendy Ludwick's testimony, a side-

bar occurred. During this sidebar, the Court

held that Ludwick could not testify as to

specific large amounts of cash she had seen

Aurand possessing, although she could testify

as to his salary. N.T. 4:145-46. The prosecu-

tor followed the Court's direction on this point

during direct examination.

The following day during redirect exemination

the prosecutor requested a sidebar and asked

permission to question Ludwick as to whetner

she had ever seen Aurand possessing large amounts

of cash. N.T. 5:29. Following a discussion,

the Court permitted the questioning. N.T. 5:29-30.

The following exchange occurred:

Q: Miss Ludwick, did you ever see the

defendant (Aurand) in possession of

large amounts of cash?

Az - 28;

On how many occasions?

A: Twice

A29

Do you recall how much money you saw?

I never counted, one time he said it

was five thousand dollars and one oc-

casion he said it was ten thousand

dollars.

Do you recall when those occasions were?

Mr. McPherson, the other time I don't

remember exactly when it was.

A: The one time was just when I met

MR. FITZKEE: Your Honor, I object...

N.T. 5:30-31. The Court immediately struck the

references to specific amounts because Ludwick

did not personally know the amount of money. Id.

Shortly thereafter in chambers, McPherson's

counsel renewed his motion for a mistrial on

the basis that the prosecutor had violated the

court's prior direction that the Government not

elicit the exact sums of cash. N.T. 5:35. The

prosecutor stated that she believed the prior

day's restriction had concerned only the fact

that Aurand had told Ludwick that he had re-

ceived $5,000 and $10,000 in cash from McPherson.

N.T. 5:36. While hindsight reveals that the

A30

prosecutor's recollection was faulty, we do not

find her actions intentional. We find no mis-

conduct and no basis to support a mistrial.

VI. GOVERNMENT'S EXHIBITS

In an absolutely frivolous post-trial motion,

Defendants maintain that it was error for the

Court to submit the Government's exhibits to the

jury. The sum total of their claim is: "Although

the admission of evidence and exhibits is within

the sound discretion of the trial judge, objec-

tions were timely filed and overruled. Such was

error." Defendants' Brief, at 23.

The Government's response, which is not

Surprising, is that it is at a loss to respond

to this argument without any supporting authority

or reasoning. We share the Government's position.

We see no error or prejudice in submitting prop-

erly admitted evidence to the jury. Accordingly,

Defendants' claim of error is soundly rejected.

R. DIXON HERMAN

UNITED STATES DISTRICT JUDGE

Dated: August 31, 1984

A31l

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA \

UNITED STATES OF AMERICA

vs. : Criminal Nos. 83-

: 00198-01

84-00002

RICHARD S. AURAND and

JOHN WEBB McPHERSON

ORDER

AND NOW, this 3lst day of August, 1984, in

accordance with the accompanying memorandwm, IT

IS WEREBY ORDERED that Defendants' post-trial

motion for a new trial is denied.

IT IS FURTHER ORDERED that Defendants,

Richard S. Aurand and John Webb McPherson, will

be sentenced on September 14, 1984, at 10:00 a.m.

in Courtroom 1, Ninth Floor, Federal Building,

Harrisburg, Pennsylvania.

R. DIXON HERMAN

UNITED STATES DISTRICT JUDGE