United States v. Nina Helene Fogelman, Mark Knight Odiorne, Peter Michael Davis, Harold E. Olson and Eldon Thompson , 586 F.2d 337 ( 1978 )

MEHRTENS, District Judge.

Harold E. Olson, Peter Michael Davis and Eldon Thompson appeal from a conviction by a jury of importing, conspiracy to import, possessing with intent to distribute, and conspiracy to possess with intent to distribute marihuana, in violation of 21 U.S.C., §§ 952, 960, 812 and 18 U.S.C. § 2. We affirm those convictions.

Since the Court is not unanimous in its disposition, the opinion is constructed in subparts to indicate our action more clearly. All are in agreement in Part I. The Chief Judge and Judge Godbold are in agreement with Part II as to which Judge Mehrtens files a dissent. The Chief Judge and Judge Mehrtens joins in Part III, to which Judge Godbold files a dissent.¹

I

In preparation for later importation of marihuana, Olson and Odiorne came to the Savannah, Georgia area, seeking to buy waterfront property which would accommodate a boat approximately 42 feet in length. On February 24, 1975, Olson agreed to purchase land on Schley Avenue, fronting on deep water. On March 13, 1975, Olson signed a sales contract for the purchase of a 30-acre farm in Georgia, allegedly for the purpose of storing excess marihuana. Later Davis picked up the keys to the farm property. In mid-March a neighbor who lived next door to the Schley Avenue property met Olson and Davis. Olson introduced Davis as his partner.

On April 13,1975, Odiorne, Fogelman and Cuschieri brought a boatload of marihuana to the Schley Avenue property in the boat “ODESSA” owned by Davis. The marihuana was taken from the boat and loaded on two pickup trucks by Odiorne, Fogelman, Cuschieri, Davis, Olson, Eldon Thompson, his brother Denver Thompson, and a government informant. After it was loaded, it was transported to Atlanta by Olson, Davis, the Thompsons and the informant.

A few months later, on June 18, 1975, Georgia narcotics agent James T. Hallman met Denver and Eldon Thompson at the Schley Avenue property. Denver stated that his boss owned the property at Schley Avenue and that they were waiting for him.

Because of information obtained through its investigation, the Government believed that the ODESSA would again be coming into the United States with an illegal cargo. Based on multiple charts and the ODESSA’S log book found later, the Government was able to show that beginning on June 6, 1975, the ODESSA had traveled from off the coast of Curacao, Netherlands Antilles to Columbia, South America and back through the Caribbean area to the Georgia coast.

On June 20,1975, at 1:00 P.M. the ODESSA docked at the boat house at Schley Avenue. Three persons were on board: Fogelman, Cuschieri and Odiorne. The informant observed that the entire bottom of the boat was completely full of marijuana and reported this to the federal agents. That day, between 9:00 and 11:00 P.M., the marijuana was taken from the boat by the Thompsons, Odiorne, Fogelman, and the informant, and loaded on to four trucks. The trucks were then driven to the Days Inn Motel in Savannah. Early in the morning of June 21, 1975, two of the trucks were driven from the Days Inn Motel in Savannah to the Motel One in Atlanta, Georgia by the Thompsons.

Government agents observed the unloading of the ODESSA and the loading of the trucks. This surveillance and the informant’s reports provided the government, beyond any doubt, with reasonable cause to suspect that the trucks were loaded with marijuana from the ship. And from the loading at Schley Avenue on, through to the Days Inn in Savannah and finally to the Motel One in Atlanta, the trucks were kept under constant observation by various government agents.

At 1:00 A.M. on the twenty-first, agents of Customs, the Drug Enforcement Administration and the State of Georgia boarded the ODESSA and placed Cuschieri under arrest. Customs agents observed marijuana residue all over the vessel, and seized the boat. Cuschieri stated the agents had just missed $5,000,000 worth of “grass.”

At 2:00 A.M. an agent examined the contents of the two other trucks not driven by the Thompsons at the Days Inn in Savannah and found bales of marihuana.

At 5:30 P.M. the informant received a call from Olson which was recorded with the informant’s consent. Olson indicated surprise that the boat was early. He was then arrested in his hotel room. After obtaining Olson’s consent, the arresting officers opened his briefcase, finding money and other documents of evidentiary value.

At 8:30 P.M. as the Thompsons left the Motel One in Atlanta, they turned and waved at one of the surveillance agents. Because of this believed-to-be gesture of recognition, the Customs, state and federal personnel who had followed the two trucks to Atlanta in an attempt to discover where the marijuana would be delivered proceeded to arrest the Thompsons. By the time of the arrest of Eldon and Denver Thompson, the Customs agents had learned of the seizure of the other trucks which revealed marijuana. With this information, a Customs agent seized and opened the two trucks in Atlanta and verified that they contained marijuana.

All the defendants were found guilty on all four counts of the indictment. Olson, Davis and Eldon Thompson appealed.

Olson’s primary allegation of error is that his constitutional rights were violated by the admission into evidence of portions of the recorded conversation between himself and the government’s confidential informant.

A motion for discovery was filed by Olson’s attorney, seeking, among other evidence, the inspection and production of any written or recorded statements or confessions of Olson.

At a hearing the United States Attorney stated to the court that there were some incriminating statements (meaning the tape) that he would use at trial, that had not been produced. The judge stated that Olson’s attorney was entitled to see them and that they should be delivered to the judge for inspection in camera. The United States Attorney replied that he had no objection. No formal order, however, requiring delivery of the tape is in the record.

The trial extended from Wednesday, September 10, to Thursday, September 18, 1975. On the first day of the trial, the court asked the government to give the defense a list of witnesses it intended to call. The United States Attorney did so and included the name of the informant, stating that he would testify and that the government had a tape of his conversation with Olson.

One of the defense attorneys then asked the court to instruct the United States Attorney to deliver a copy of the statement and tape of the informant he had just included in the witness list. It is unclear when the defense first learned of the existence of the tape. It is clear, however, that up until that point the government had not complied with the motion for discovery and had not produced it.

On the second day of trial, the court directed the government to allow the defense to listen to the tape.

On Friday, the next day, in chambers, the United States Attorney admitted he had withheld the tape and the identity of the informant because of a threat on the life of the informant, who had been placed in protective custody. The tape was suppressed by the court for use in the case in chief.

During his direct examination, Olson imparted a definite impression that his relationship with the informant was of a superficial nature, wholly unrelated to any marihuana. To contradict this, the court admitted an edited transcript of the tape for impeachment purposes only. Through editing, all references to the other defendants were excluded.

Such impeachment evidence was properly admitted. Even if there was no disclosure of the Olson tape as required by Rule 16 of the Federal Rules of Criminal Procedure, any error was corrected by the trial judge’s ruling that the contents of the tape would not be admissible in the government’s case in chief.

The language of Judge Ingraham in United States v. James, 5 Cir., 1974, 495 F.2d 434, 436, a case in which the United States Attorney failed to produce a tape recording under a discovery order, is significant in the present case:

“Our distaste for the government’s conduct does not, however, warrant a reversal of the case at bar. We have previously held that ‘an error in administering the discovery rules is not reversible absent a showing that the error was prejudicial to the substantial rights of the defendant.’ United States v. Saitta, 443 F.2d 830, 831 (5th Cir., 1971), cert, den., 404 U.S. 938, 92 S.Ct. 269, 30 L.Ed.2d 250; United States v. DeSimone, 452 F.2d 554, 557 (5th Cir., 1971); accord United States v. Dowdy, 455 F.2d 1253, 1255 (10th Cir., 1972); United States v. Cole, 453 F.2d 902, 904 (8th Cir., 1972); United States v. Allsenberrie, 424 F.2d 1209, 1215 (7th Cir., 1970). See also Pierce v. United States, 414 F.2d 163, 169 (5th Cir., 1969), cert, den., 396 U.S. 960, 90 S.Ct. 435, 24 L.Ed.2d 425. A thorough review of the record in this case leaves us convinced that the prejudice, if any, flowing from the government’s failure to produce the tapes until the time of trial was insubstantial.”

The tape contained nothing exculpatory, but the remarks were relevant, incriminating, and impeached the testimony given by Olson on direct examination. At the trial Olson identified the conversation as one which he had with the informant. Each of the other defendants had the opportunity to cross-examine Olson on the contents of the admitted conversation. Further, the informant was available for cross-examination regarding the tape; yet none of the defendants elected to do so.

In Harris v. New York, 1971, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, the Supreme Court noted that it does not follow from Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, that evidence inadmissible against an accused in the prosecution’s ease in chief is barred for all purposes, provided that the trustworthiness of the evidence satisfies legal standards.

“The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. We hold, therefore, that petitioner’s credibility was appropriately impeached by use of his earlier conflicting statements.”

401 U.S. at 226, 91 S.Ct. at 646.

Olson also contends that the search and seizure of his briefcase in his hotel room upon arrest was unreasonable and in violation of his Fourth Amendment rights.

After the agents identified themselves and stated that Olson was under arrest, one of the agents asked Olson if he had any valuables or large sums of money that could present problems later, if seized by them. Olson replied that he had a large amount of money in his briefcase, and said he did not have any objections to the agent searching the case and verifying the amount. Money and documentary evidence were found.

After weighing conflicting evidence, the District Court found that this search was done by consent. The appellant has not demonstrated that this fact finding was plainly erroneous. United States v. Resnick, 5 Cir., 1972, 455 F.2d 1127, 1133.

Defendant Davis asserts that the trial court erred in failing to grant his motion for severance. Davis was charged with the same offenses as the other defendants. It is within the sound discretion of the trial judge as to whether the defendants should be tried together or severally, and there is nothing in the record to indicate an abuse of such discretion when Davis’ motion for severance was overruled. Opper v. United States, 1954, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101. See also Peterson v. United States, 5 Cir., 1965, 344 F.2d 419; West v. United States, 5 Cir., 1962, 311 F.2d 69; Davis v. United States, 5 Cir., 1945, 148 F.2d 203, cert, denied, 1945, 325 U.S. 888, 65 S.Ct. 1570, 89 L.Ed. 2001.

II ^*

Eldon Thompson is the only defendant in this action with standing to challenge the seizure and search of the parked trucks, one of which he had driven to the Motel One in Atlanta.

The government argues that the search was based on probable cause and that exigent circumstances justified the warrant-less intrusion.

Probable Cause

After being under surveillance all day at the motel, the Thompsons while walking to an adjacent shopping center waved to one of the surveying agents. The agents, believing that this indicated recognition, arrested the men. One of the agents then walked over to the trucks, took the key out of the ignition, and opened the locked truck body. He instructed another agent to do the same with the other truck. It was then determined that the bales which the government agents had previously watched being taken from the ODESSA and placed into these trucks contained marijuana. Each truck contained at least 1,500 pounds of this erstwhile weed.

Based on the record in this case, ample probable cause existed. Consequently, our attention must focus on whether a warrant was unnecessary under either the exigent circumstances exception or the extended border search rationale.

Exigent Circumstances

For exigency purposes, this Court’s decision in United States v. Mitchell, 5 Cir., 1976, 538 F.2d 1230 (en banc) represents the outermost limits to which this Circuit has gone in searches like this one. Many of the facts are common to both cases — surveillance of the vehicles from border to a motel parking lot; operators of the vehicles checked into the motel; surveyance was continued because the agents were waiting for future developments. In both cases there were numerous agents.

Mitchell recognized that there is no general automobile exception to Fourth Amendment requirements. The movable nature of an automobile is not enough. There must be exigent circumstances as well. 538 F.2d at 1233-34.

The exigency in Mitchell arose from the following facts. The truck had been driven from the border to the motel at San Antonio by Mancuso, whose instructions were to leave it parked in the parking lot of the particular motel. He parked it, locked it, disposed of his keys and left. Thereafter, Mitchell appeared in a rented automobile, parked alongside the truck, unlocked it, and transferred his dog and gear from the car to the truck. He relocked the truck and left. About a half an hour later he returned in a taxi, re-entered the truck cab and seated himself. “It appeared imminent that he was going to drive the truck away.” Id. at 1232. Customs agents converged on the truck and arrested him.

Plainly, a seizure was not only authorized, but mandated. The delivery had been made and the recipient was about to leave with the truck and the marihuana. Such exigency did not exist in the case at hand. With numerous officers around the premises and the two drivers in custody, there was no threat that the trucks were likely to be moved or their contents lost.

The Supreme Court in Chambers v. Maroney, 1969, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, stated:

“Only in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a search. Carroll [Carroll v. United States, 1925, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543] holds a search warrant unnecessary where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained. Hence an immediate search is constitutionally permissible.”

399 U.S. at 51, 90 S.Ct. at 1981.

This Circuit has recognized that Chambers is limited to highway stops. See United States v. Chapman, 5 Cir., 1973, 474 F.2d 300; United States v. Ragsdale, 5 Cir., 1972, 470 F.2d 24.

The Court finds that the warrantless search and seizure of Thompson’s truck in the motel parking lot, without exigent circumstances, were violative of his Fourth Amendment rights unless otherwise valid as an extended border search and seizure.

III ^*

Extended Border Search

To escape the consequences of the Court’s holding the government argues that the warrantless search of the trucks was justified as a border search despite the substantial distance between Savannah and Atlanta.

It is true that the trucks had not crossed a border, but this Circuit has decided that a border crossing is not the sine qua non of a valid border search. United States v. Steinkoenig, 5 Cir., 1973, 487 F.2d 225; United States v. Hill, 5 Cir., 1970, 430 F.2d 129. This, however, does not grant freewheeling discretion for determining the cutoff between a border search and a non-border search. In all instances where a search has been called a border search, a reasonable suspicion that the vehicle had crossed the border or had been in contact with those who have done so has been and is required. United States v. Woodard, 5 Cir., 1976, 531 F.2d 741; United States v. Storm, 5 Cir., 1973, 480 F.2d 701.

This is not a case where a motor vehicle has crossed the border. Rather, it is a vessel coming from international waters and unloading in view of the government agents who watched the entire operation. The border in this instance is the dock where the ODESSA was unloaded just as it would be in the arrival of an ordinary merchant vessel.

The legality as a “border search” not made in the vicinity of the border is tested by the totality of the surrounding circumstances, including the elapsed time and distance as well as the manner and extent of surveyance. These factors must be such as to convince the fact-finder with reasonable certainty that there has been no change of condition of the trucks from the time they were loaded at the border until they were stopped, and that whatever was in the trucks when they were searched was in them when they left the border. See United States v. Brom, 5 Cir., 1976, 542 F.2d 281; United States v. Flores, 5 Cir., 1976, 531 F.2d 222.

The facts of this case are strikingly parallel to those of United States v. Martinez, 5 Cir., 1973, 481 F.2d 214, reh. den. 481 F.2d 1404 (5 Cir.), cert. den. 1974, 415 U.S. 931, 94 S.Ct. 1444, 39 L.Ed.2d 489, in which this Court upheld a similar warrantless extended border search.

Martinez involved the search and seizure of marihuana from a truck which had entered the United States from Mexico. Agents followed the truck 300 miles throughout South Texas, for a period of 142 hours, until they stopped it in San Antonio, 150 miles from the border. The truck had been constantly surveilled, except for 35 minutes, and the agents had reasonable suspicion to believe it contained contraband. It was searched without a warrant and 628 pounds of marihuana were found.

The Court did not find this to be a violation of the defendant’s Fourth Amendment rights, pointing out that border searches, absent search warrants or probable cause, have been uniformly upheld by the courts as long as the Customs agents have had a reasonable suspicion of violations of the Customs laws. 481 F.2d at 217.

“Although proximity to the border and the lapse of time since the crossing are proper factors for consideration, no specific temporal or spatial limitations on the authority to conduct a border search have been imposed either by statute or by judicial decisions. Thus to reiterate, the appropriate constitutional test is a reasonableness standard, which requires a full evaluation of the circumstances leading to the search as a basis for determining its propriety.”

Id. at 217-18.

This standard in the border search context is less rigorous than the probable cause requirement which normally obtains under the Fourth Amendment. Id. at 218 n.7; United States v. Garcia, 5 Cir., 1971, 452 F.2d 419, 421.

As the Court indicates, the wisdom of the concept of an “elastic” border is illustrated by the circumstances of Martinez.

“In order to enforce the customs laws, particularly those dealing with the illegal importation of drugs, law enforcement officials must do more than arrest the street level operative; they must, if at all possible, apprehend the ringleaders as well. This objective would not be easily attainable if the authority of customs agents to search was strictly limited to the physical border. By following the truck inland the customs agents obviously hoped to apprehend others involved in the smuggling of a large quantity of marijuana. In view of their purpose we think they used a legitimate law enforcement technique which did not undermine their authority.”

481 F.2d at 218. (Emphasis added).

The court also found the time and distance of the search from the border to be reasonable under the circumstances, and refused to formulate a per se rule.

Similarly, the Customs agents in the instant case had probable cause to believe Thompson’s truck was carrying contraband. They had seen him unload the ODESSA and load his truck with the marihuana. They had surveilled him constantly from Savannah, where he loaded the truck, until he was arrested 20 hours later in Atlanta — approximately 254 miles away. The time factor here was far less than the 142 hours in Martinez, and there was no 35-minute gap in surveillance, as there was in that case. Customs agents were involved in every important stage of the operation — observing the loading of the truck, surveilling, making the arrest, and searching the truck. Any pretext or bad faith on the party of local officers in having the Customs agents participate as a “portable search warrant” has not been shown.

It was the Customs agents who were acknowledged by the Thompsons when they waved at the surveillance car in the parking lot. At that point prudent police work dictated that they be arrested, as knowledge that they were being followed could have resulted in loss of them or of the evidence.

The most significant similarity between the two cases is the use of the legitimate police tactic of following the trucks to an unknown destination where the contraband is to be ultimately distributed. This public policy was recognized as valid in Martinez and we uphold its validity under the facts presented here.

Although Martinez was distinguished by the panel opinion in United States v. Mitchell, 5 Cir., 1976, 525 F.2d 1275, because there the government agents had (i) a detailed and reliable itinerary, (ii) knew the destination of the vehicle, and (iii) were prepared to search the vehicle at its known destination, that simply is not the case here. In both Martinez and this case, the journey was to an unknown destination. We need not expend great effort in further attempts to distinguish any tarnish that the Mitchell panel opinion may have placed on the Martinez continuous surveyance rationale because this Court subsequently in its en banc Mitchell opinion, 538 F.2d 1230, 1234 n.4, vacated that portion of the Mitchell panel’s opinion discussing this facet of Martinez. Thus, Martinez remains the law of this Circuit for continuance surveyance-border search situations of the sort presented in this case.

Neither is United States v. Brennan, 5 Cir., 1976, 538 F.2d 711, of any help to Thompson because the facts and circumstances are crucially different in that case. In holding that a warrantless search of an airplane at Melbourne, Florida Regional Airport was not a valid border search because made without probable cause or a warrant, the court pointed out that international flights were only a small percentage of the traffic and there was no differentiation by officials between international and domestic flights, finding that the assumed international origin was too attenuated and that the search more closely resembled a common non-border search which must be prefaced by the usual probable cause and warrants standards.

Considering the totality of the surrounding circumstances, including the time and distance elapsed as well as the manner and extent of surveillance, and the total absence of any evidence indicating any likelihood that the marijuana had been unloaded in the interim, we are convinced that the officers could conclude that any contraband found in the truck at the time of search was in the truck from the time it was loaded with marijuana from the ODESSA at the port of entry. Consequently, both the search and the seizure were reasonable and hence lawful.

AFFIRMED.

1 . For historical precedent for this appellate opinion procedure, see United States v. Register, 5 Cir., 1974, 496 F.2d 1072; Stanga v. McCormick Shipping Corp., 5 Cir., 1959, 268 F.2d 544. Cf. Grigsby v. Coastal Marine Serv. of Texas, Inc., 5 Cir., 1969, 412 F.2d 1011, 1023.

* The Chief Judge and Judge Godbold concur in Part II. Judge Mehrtens dissents.

* The Chief Judge and Judge Mehrtens concur in Part III. Judge Godbold dissents.