Ronald A. Dion, Miami, Fla. (Court-appointed), for defendant-appellant.
W. Christian Hoyer, Asst. U.S. Atty., Tampa, Fla., for the United States.
Appeal from the United States District Court for the Middle District of Florida.
Before KRAVITCH, HENDERSON and REAVLEY, Circuit Judges.
REAVLEY, Circuit Judge:
Appellant Alberto Espinosa-Cerpa was arrested along with his fellow crewmen on the shrimp boat, MISS PHYLLIS, when Coast Guard officers boarded that vessel in the Gulf of Mexico and found her to be carrying over 35,000 pounds of marijuana and to be bound for Key West, Florida. Espinosa-Cerpa subsequently was convicted in a jury trial of conspiracy to import marijuana into the United States, with intent to distribute same, in violation of 21 U.S.C. §§ 846, 963. He now attacks that conviction on three grounds, arguing: (1) that the prior acquittal in a separate trial of all his named alleged coconspirators (his three fellow crew members) should, as a matter of law, have precluded his conviction on the conspiracy charge; (2) that the trial court erred in refusing to suppress all evidence obtained from the Coast Guard's stop, boarding, and search of the MISS PHYLLIS, since that entire procedure had been accomplished without a warrant or even a reasonable suspicion that the MISS PHYLLIS or anyone on board was transgressing any United States law; and (3) that he was denied a fair trial and that his Miranda rights were infringed by a prosecution witness' comment on his post-arrest silence. We affirm the conviction.
I. Background
On the morning of May 13, 1979 a helicopter launched from the United States Coast Guard cutter DEPENDABLE, on patrol in the Gulf of Mexico, sighted the MISS PHYLLIS along with some other vessels in the Yucatan Straits about 150 miles outside United States territorial waters. For reasons not made clear below, the DEPENDABLE then began covertly following the MISS PHYLLIS, tracking her by radar. At about 5:30 p. m. the DEPENDABLE intercepted the MISS PHYLLIS for a "standard boarding" under the authority of 14 U.S.C. § 89(a) "to ensure [the vessel's] compliance with all applicable U.S. laws." R. Supp. vol., pp. 10, 11, 28. Just prior to the boarding the captain of the DEPENDABLE ascertained by radio communication with the MISS PHYLLIS that she was of United States registry and that her next port of call was to be Key West, Florida.
While conducting a walking tour of the deck of the MISS PHYLLIS, the ensign leading the boarding party detected the odor of marijuana. Upon further investigation, the ensign discovered 839 bales of the substance, weighing 35,371 pounds and having a street value of about 14 million dollars. R. vol. 3, pp. 190, 192. The Coast Guard officers then arrested appellant, along with his cohorts, and seized and escorted the MISS PHYLLIS to port at St. Petersburg, Florida.
The four men captured on board the MISS PHYLLIS were all indicted for allegedly conspiring together and with other persons unknown to import and distribute the cargo of marijuana in the United States. All four originally were scheduled to be tried together. When however - as both parties have euphemistically labelled it - Espinosa-Cerpa "voluntarily absented himself" just prior to trial, the prosecution of the three remaining defendants proceeded. All three were acquitted of the conspiracy charge. After appellant was apprehended and returned to custody, he was tried individually and found guilty of conspiracy by a jury, despite the prior acquittal of his named alleged coconspirators.
II. Effect of Prior Acquittal of Coconspirators
Appellant's foremost contention is that his conspiracy conviction should have been foreclosed as a matter of law after all of his named alleged coconspirators were acquitted. This contention may rest on either of two theories.
First, under the construct of non-mutual collateral estoppel, see Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation,
402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971), it might be argued that the prior acquittal of all three other crewmen alleged to have taken part in the conspiracy should bar the government's subsequent relitigation in appellant's trial of the issue of their complicity in that conspiracy. This elimination of all those with whom appellant might have conspired would, of course, have precluded his conviction for conspiracy. See Iannelli v. United States,
420 U.S. 770, 777, 95 S.Ct. 1284, 1289, 43 L.Ed.2d 616 (1975) (essence of conspiracy is agreement between two or more individuals).
In Standefer v. United States, ___ U.S. ___, ___-___, 100 S.Ct. 1999, 2006-09, 64 L.Ed.2d 689 (1980), however, the Supreme Court very recently rejected the applicability of nonmutual collateral estoppel to criminal cases, specifically holding that the prior acquittal of one party could not be invoked to bar the government's subsequent relitigation of the fact of that party's criminal conduct as an element in the prosecution of a second defendant. See also, United States v. Musgrave,
483 F.2d 327, 332 (5th Cir.), cert. denied,
414 U.S. 1023 , 94 S.Ct. 447, 38 L.Ed.2d 315 (1973). Consequently, the avenue of collateral estoppel is not open to appellant.
The second theory, upon which defendant places his principal reliance, is that his prosecution and conviction for conspiracy should have been precluded by an extrapolation from the traditional tenet that a single conspirator may not be convicted in the same proceeding or prosecution in which all of his alleged fellows are acquitted. Herman v. United States,
289 F.2d 362, 368 (5th Cir.), cert. denied,
368 U.S. 897 , 82 S.Ct. 174, 7 L.Ed.2d 93 (1961) (applying traditional rule). Accord, e.g., United States v. Shuford,
454 F.2d 772, 779 (4th Cir. 1971); Romontio v. United States,
400 F.2d 618 (10th Cir. 1968), cert. dismissed,
402 U.S. 903 , 91 S.Ct. 1384, 28 L.Ed.2d 644 (1971). See generally, Annot., 91 A.L.R.2d 700, 703-08 (1963) (and cases cited therein). The apparent basis for the traditional rule is the notion that the acquittal of all but one potential conspirator negates the possibility of an agreement between the sole remaining defendant and one of those acquitted of the conspiracy and thereby denies, by definition, the existence of any conspiracy at all. See, e.g., United States v. Goodwin,
492 F.2d 1141, 1144 (5th Cir. 1974); Farnsworth v. Zerbst,
98 F.2d 541, 544 (5th Cir. 1938), cert. denied,
307 U.S. 642 , 59 S.Ct. 1046, 83 L.Ed. 1523 (1939) ("such judgments prove that there was in fact no criminal agreement"); United States v. Austin-Bagley Corp.,
31 F.2d 229, 233 (2d Cir.) cert. denied,
279 U.S. 863 , 49 S.Ct. 479, 73 L.Ed. 1002 (1929) (per L. Hand, J.; "verdict must not itself deny the existence of the essential facts" of conspiracy); Feder v. United States, 257 F. 694, 697 (2d Cir. 1919) ("reason for the rule is . . . the indivisibility of the crime"). Appellant argues, therefore, that it is a natural extrapolation from this principle that a lone alleged conspirators. should also not be susceptible to conviction in a separate prosecution following the acquittal of all of his alleged coconspirators. United States v. Bruno, 333 F.Supp. 570, 577-78 & n. 10 (E.D.Pa. 1971) (adopting extension urged here by appellant).
Aside from any potential flaws in such an extrapolation itself, however, we have some difficulty with the notion, recited above, upon which the basic rule is premised and, therefore, with the soundness even of that traditional rule. The notion that the acquittal of one's alleged coconspirators concludes the fact of their noncomplicity misapprehends the true nature of an acquittal in the scheme of trial by jury in the American criminal justice system. It has long been recognized that criminal juries in the United States are free to render "not guilty" verdicts resulting from compromise, confusion, mistake, leniency or other legally and logically irrelevant factors. Dunn v. United States, 284 U.S. 390, 393-94, 52 S.Ct. 189, 190-191, 76 L.Ed. 356 (1932). Consequently, an acquittal is not to be taken as the equivalent of a finding of the fact of innocence; nor does it necessarily even reflect a failure of proof on the part of the prosecution. Thus, contrary to the notion underlying the rule in question, a jury's acquittal of some coconspirators should not be taken to negate the fact of their possible criminal complicity with any remaining alleged coconspirators.
Moreover, the premise and resultant rule are antithetical to the general understanding, deriving from the principle of jury prerogative recognized in Dunn, that the apparent logical inconsistency of jury verdicts, even among multiple defendants tried together on essentially the same evidence and charges, provides no basis for attacking an otherwise valid guilty verdict adequately supported by the evidence; rather, each such verdict or conviction is to be reviewed wholly independently of the others. See, e. g., United States v. Dotterweich,
320 U.S. 277, 279, 64 S.Ct. 134, 135, 88 L.Ed. 48 (1943); Odom v. United States,
377 F.2d 853, 857 (5th Cir. 1967), cert. dismissed,
400 U.S. 23, 91 S.Ct. 112, 27 L.Ed.2d 122 (1970). Accord, e. g., United States v. Dunn,
564 F.2d 348, 360 & n. 24 (9th Cir. 1977) (noting joint conspiracy trials as exception to general rule); United States v. Martorano,
557 F.2d 1, 8-9 (1st Cir. 1977), cert. denied,
435 U.S. 922 , 98 S.Ct. 1484, 55 L.Ed.2d 515 (1978); Annot., 22 A.L.R.3d 717 (1968) (and cases cited therein). "While symmetry of results may be intellectually satisfying, it is not required." Standefer v. United States, ___ U.S. at ___, 100 S.Ct. at 2009. Thus, there is serious question as to the logical foundation for the continued application of the basic rule upon which appellant relies and which he seeks here to extend.
While we are not at liberty in this case to rule upon the continued vitality of that tenet in its original form, we certainly are not disposed to extend its scope to overturn an otherwise valid conviction rendered in a proceeding subsequent to that in which appellant's alleged conspirators were acquitted. In addition to the criticisms that may be levelled at the rule itself, such an extension would also ignore the fact that different evidence might have been presented in the two proceedings or that the two juries might quite reasonably have taken different views of the same evidence. Finally, the rule that appellant seeks to invoke would be blatantly inconsistent with the Supreme Court's decision in Standefer. Whether or not labelled as nonmutual collateral estoppel, it would operate in an almost identical manner, barring relitigation of the fact of the other crewmen's having engaged in a conspiracy with appellant solely on the basis of their prior acquittal of that charge. Consequently, we hold that the prior acquittal of appellant's named alleged coconspirators did not preclude his later conviction for having conspired with them.
III. Boarding of the MISS PHYLLIS
Appellant argues that the Coast Guard practice of arbitrary, warrantless boardings and inspections of American flag vessels on the high seas under § 89(a), such as the boarding of the MISS PHYLLIS, contravenes the recent Fourth Amendment pronouncements of the Supreme Court in Delaware v. Prouse,
440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) and Marshall v. Barlow's, Inc.,
436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). In Prouse and Barlow's, respectively, the Court held that the Fourth Amendment proscribed random, roving stops of automobiles for license and registration checks and warrantless, administrative safety inspections of business premises.
This court made clear its rejection of appellant's basic position, however, in its recent en banc opinion in United States v. Williams,
617 F.2d 1063, 1075, 1077-78 (5th Cir. 1980). There Judge Rubin in his special concurrence eloquently pleaded the case (urged here by appellant) for application of the land-based principles embodied in Prouse, Barlow's, and other cases of that vein, to Coast Guard stops and boardings under § 89(a). Id. at 1096-98. The majority of the court declined to follow his exhortations, however, and instead reaffirmed the view articulated in United States v. Warren,
578 F.2d 1058, 1064-65 (5th Cir. 1978) (en banc) modified en banc on other grounds,
612 F.2d 887 (5th Cir. 1980), that § 89(a), consistently with the Fourth Amendment, "gives the Coast Guard plenary power to stop and board any American flag vessel anywhere on the high seas [outside the twelve-mile limit] in the complete absence of any suspicion of criminal activity." 617 F.2d at 1075, 1077 (though the facts of that case dealt with the boarding of a foreign flag vessel); United States v. Robbins,
623 F.2d 418, 420 (5th Cir. 1980). See also United States v. Freeman,
579 F.2d 942, 946-47 (5th Cir. 1978) (articulating bases for not applying land-based search and seizure principles to stops at sea).
Although this authority most commonly is invoked to justify stops ostensibly made for the purpose of safety and documentation inspections, e. g., United States v. Robbins, 623 F.2d at 420, this court has also held that the authority permissibly extends to boardings "to look for obvious customs and narcotics violations." United States v. Conroy,
589 F.2d 1258, 1265 (5th Cir.), cert. denied,
444 U.S. 831 , 100 S.Ct. 60, 62 L.Ed.2d 40 (1979), quoting United States v. Warren, 578 F.2d at 1065. Thus, the "standard boarding" of the MISS PHYLLIS "to ensure compliance with all applicable U.S. laws" was consistent with the law as interpreted by this court.
Once on board, the odor of marijuana, detected by the ensign in the boat's pilothouse while he was being conducted around the vessel by its master, R. vol. 3, p. 174, justified the further investigation that revealed the marijuana in the ship's hold and stacked in the crew's quarters. United States v. Williams, 617 F.2d at 1086-87. See e. g., United States v. Hicks,
624 F.2d 32, 33-34 & n.2 (5th Cir. 1980); United States v. Mann,
615 F.2d 668, 670 (5th Cir. 1980). Consequently, no Fourth Amendment violation occurred.
IV. Comment on Defendant's Silence
Finally, Espinosa-Cerpa contends that his Miranda rights and his right to a fair trial were breached by the testimony of the arresting officer, given during the prosecution's case-in-chief, in which he twice commented on the MISS PHYLLIS crew's silence following their being arrested and given Miranda warnings. The offensive exchange between court, counsel and witness is reproduced in the margin.
Appellant is correct in asserting that the witness' comments were in derogation of appellant's Miranda and Fourteenth Amendment due process rights. Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S.Ct. 1602, 1624 n. 37, 16 L.Ed.2d 694 (1966) (prosecution may not use defendant's silence at trial); United States v. Edwards,
576 F.2d 1152 (5th Cir. 1978); Chapman v. United States,
547 F.2d 1240, 1242-43 (5th Cir.), cert. denied,
431 U.S. 908 , 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977) (comment is violation of due process). See Doyle v. Ohio,
426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (reference to defendant's silence in cross-examination for impeachment purposes violates due process). That the prosecution may not have intended that the witness make such a comment neither absolves the sin nor eliminates any potential prejudice. United States v. Staller,
616 F.2d 1284, 1291 (5th Cir. 1980); United States v. Matos,
444 F.2d 1071, 1072 (7th Cir. 1971).
Nonetheless, we are convinced that the error in this case was harmless beyond a reasonable doubt. Chapman v. California,
386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). The potential for real prejudice from the comments was virtually nil. The witness' statements were isolated and unsolicited, never "highlighted" by repeated questioning or subsequent reference by the prosecutor. See United States v. Davis,
546 F.2d 583, 594-95 (5th Cir.), cert. denied,
431 U.S. 906 , 97 S.Ct. 1701, 52 L.Ed.2d 391 (1977). The comments in no way undermined any exculpatory defense. Cf. United States v. Harp,
536 F.2d 601, 603 (5th Cir. 1976) (court condemned comments on silence that "struck at the jugular" of the accused's defense). Finally, in light of the court's curative instruction and the other wise overwhelming evidence of guilt deriving from the mere circumstances of appellant's arrest, the conclusion that the error was harmless is virtually inescapable. United States v. Staller, 616 F.2d at 1292; Chapman v. United States, 547 F.2d at 1247-50.
For the reasons stated above we affirm appellant's conviction.
AFFIRMED.
KRAVITCH, Circuit Judge.
I concur in the result.
RSS