United States v. Thomas Peter Vallejo Appeal of Edson L. Whipple

OPINION OF THE COURT

ADAMS, Circuit Judge.

In this case arising from an abortive attempt to smuggle one ton of marijuana from Mexico by way of Texas to Philadelphia, appellant Whipple was convicted of dealing in and conspiring to import marijuana. 21 U.S.C. § 176(a); 26 U.S.C. § 4755. The district court denied a suppression petition, and Whipple has appealed.

Richard Esch and John Schenck went to Mexico in early 1971 to discuss with David Miller the possibility of flying “illicit” drugs into the United States. After agreeing to work together in upcoming drug ventures, Esch and Schenck returned to the United States while Miller remained in Mexico.

Thereafter, Leonard Glassberg flew to Mexico and met with Miller in January, 1971, to discuss the plans for smuggling the marijuana into the United States. In February, 1971, Whipple came to see Glassberg in his hotel room and indicated that he, Whipple, was “fully capable of procuring an airplane and pilot, and asked if it were possible for him to enter into some sort of contractual agreement with [Glassberg] and David Miller in relationship to smuggling marijuana.” Glassberg’s girl friend, Maria Kirby, who was present at the meeting, confirmed this story.

Celcer, the pilot of the plane, testified that Whipple hired him with instructions to pick up a load of marijuana in Vera Cruz, Mexico. Celcer received the marijuana, landed in Texas, and, after obtaining further instructions from Whipple, flew the marijuana to Philadelphia. Whipple’s conversations with Cel-cer were intercepted electronically by government agents with the pilot’s permission.

Under these circumstances there was probable cause to issue an arrest warrant, which was properly executed upon Whipple in a public airport lobby in Harlington, Texas on April 12,1971.

When taken into custody, Whipple was carrying a large clothes bag and some carry-on luggage that were taken from him by the arresting authorities. He was immediately driven to the United States Customs House in Brownsville, Texas. Upon arrival in Brownsville, approximately one hour after his arrest in Harlington, the authorities examined Whipple’s baggage and retained certain documents later used at trial. They had no search warrant.

Whipple contends, among other things,¹ that the warrantless search of his luggage at the Brownsville Customs House following his arrest at the airport nearly one hour earlier violated his Fourth Amendment rights.

Having carefully examined all the evidence in this case, this Court is of the opinion that it is unnecessary to determine the legality of the search of appellant’s baggage. Even assuming that the search was unlawful, the mass of remaining evidence against Whipple was overwhelming. Glassberg and Miller both changed their pleas to guilty and testified on behalf of the government. Maria Kirby confirmed Glassberg’s trial testimony. Celcer, the pilot, also testified against Whipple, and the conversations between Whipple and him, which had been tape recorded with Celcer’s permission, were played to the jury. In addition, U. S. Customs Agents testified to having seen Whipple meet with Miller and to having heard Whipple planning the touchdown of the plane in Philadelphia. Under these circumstances, the admission of the “fruit” of the allegedly unlawful search was harmless beyond a reasonable doubt. Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L. Ed.2d 705 (1967); Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963).

As intellectually alluring as it might be to address ourselves to the intriguing question whether the examination of the luggage at the Customs House constitutes a “search” for Fourth Amendment purposes, in view of the conclusion that any error committed by the admission of the fruits of that activity was harmless beyond a reasonable doubt, we eschew, as unnecessary and thus inappropriate, that attractive assignment.

The judgment of the district court will be affirmed.

1 . Appellant also contends: (1) adverse trial publicity denied him a fair trial; (2) the court erred in admitting evidence of conspiracies other than the one charged in the indictment and in failing to give a cautionary instruction; (3) the court erred in not dismissing the indictment because government agents failed to make an inventory of personal property seized from appellant and failed to return all of appellant’s property; (4) the court erred in not warning appellant that if he jumped bail, trial would proceed in his absence; (5) the court erred in failing to charge on entrapment; (6) the court charged improperly on unexplained possession of marijuana; and (7) his rights under Rule 32(a) of the Federal Rules of Criminal Procedure and the Sixth Amendment were violated by the court’s refusal to sentence appellant on all counts for which he was convicted. We have concluded that these arguments are without merit.