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UNITED STATES v. ABDEL ELTAYIB

December 3, 1992

UNITED STATES OF AMERICA,
v.
ABDEL ELTAYIB, JORGE PENA, JAIME MONSALVO-PADILLA, WILLIAM MORALES, HONORATO PARCO, JUAN NAVARETTE, CARLOS NEIRA, SEGUNDO AZAHUANCHE, JESUS AMAYA, Defendants.



The opinion of the court was delivered by: EUGENE H. NICKERSON

MEMORANDUM AND ORDER

 NICKERSON, District Judge

 The nine remaining defendants in this case have made motions which were the subject of hearings on November 16, 17, and 18, 1992. The indictment charges two conspiracies, one to import into the United States more than five kilograms of cocaine, and the other to distribute and possess with intent to distribute that cocaine.

 In a memorandum and order dated April 16, 1992, (familiarity with which is assumed), this court held that if the government proved the facts it proffered, the court would have subject matter jurisdiction and the venue would lie in this district. The facts established at the hearing fully satisfy both subject matter jurisdiction and venue.

 The court now has before it motions raising four issues, namely, whether (1) items of evidence taken from the vessel on which defendants were captain and crew were seized in violation of one or more defendants' Fourth Amendment rights, (2) statements by the captain, defendant Eltayib, to government agents were taken in violation of his rights under the Fifth Amendment and 18 U.S.C. ยง 3501, (3) identifications of three defendants were made from improperly suggestive photograph arrays, and (4) the defendants other than Eltayib are entitled to a severance in the event his statements are admitted in evidence.

 I. Motion to Suppress Evidence Seized from the Vessel

 The court finds from the evidence that the following facts were known to government agents prior to the search of the vessel.

 On July 19, 1991 a confidential informant, a crew member on the fishing vessel Hunter, informed the Coast Guard that the Hunter was going out to meet a freighter and pick up a load of cocaine in the vicinity of Hudson Canyon offshore in the Atlantic Ocean. At 2:05 A.M. on Saturday, July 20, 1991, the Hunter departed the Jamaica Bay area, passed by the Coast Guard Air Station in Brooklyn, and then exited the Rockaway Inlet heading offshore in a southerly direction towards the vicinity of Hudson Canyon.

 At 4:05 P.M. on the same day, the Hunter was 15 nautical miles north of the suspected off-load site in Hudson Canyon, about 100 miles south of Long Island and 80 miles off the coast of New Jersey. The following day, Sunday, July 21, 1991, at 2:20 P.M., the Hunter was about six nautical miles south of Fire Island on Long Island heading in a westerly direction towards its moorings in Brooklyn.

 Later that afternoon the Coast Guard stopped the Hunter, boarded it, and searched it. The boarding party found 210 bales of kilo brick sizes of cocaine. The confidential informant, who had been aboard the Hunter, told the Coast Guard officers that it had received the cocaine from a 200 foot, blue hulled, white superstructured Panamanian registered freighter, with a red bottom and having four containers on deck. He also identified the cargo's booms as being yellow and described numerous persons on the deck.

 He said the off-load to the Hunter from the freighter had occurred around midnight on July 20, 1991 and at the place the government had suspected. He also said that the Hunter collided with the freighter, causing a scratch or dent in the freighter's hull.

 The nautical chart on the Hunter showed a blue mark at the suspected off-load site. In addition, another Hunter crew member told one of the agents that of the freighter's two-word name the second word was Crown.

 On Tuesday, July 23, at about 5:00 P.M., the Coast Guard agents learned that a vessel bearing the name the Blue Crown and matching the previous description of the freighter had been located at Reedy Anchorage in Delaware Bay, about 42 nautical miles inland from the entrance to the Atlantic Ocean and about 10 nautical miles south from Wilmington, Delaware. The agents then decided to establish surveillance on the vessel through the night and to board it on the morning of Wednesday, July 24, 1991.

 On that day agents boarded the Blue Crown at about 8:28 A.M. They conducted a security sweep which was concluded at about 9:35 A.M. The vessel was then taken to the dock in Salem, New Jersey, arriving about 1:18 P.M.

 A special agent of the Coast Guard, Patrick Maher, then went from New York to Salem, arriving about 4:00 P.M., and confirmed that the Blue Crown matched the description given by the confidential informant. He determined from the log and other documents on the Blue Crown that it had proceeded northward in the vicinity of the off-load site and on the night of July 20, 1991 had come within a few miles of a place indicated by a blue dot on a chart on the Hunter, marking the approximate site of the off-load.

 The agents thus had more than reasonable suspicion, indeed had probable cause to believe, that the crew members on the Blue Crown had been engaged in an attempt to import cocaine into the United States. The agents therefore had ample authority to conduct a thorough border search of the vessel and of the personnel on board. The port at Salem, New Jersey, was the functional equivalent of the border. See United States v. Alfonso, 759 F.2d 728, 733-37 (9th Cir. 1985) and cases cited. The court ...


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