United States v. Horacio Velarde-Gavarrete Bolivar Wilson Guerrero-Mosqueda

975 F.2d 672 UNITED STATES of America, Plaintiff-Appellant, v. Horacio VELARDE-GAVARRETE; Bolivar Wilson Guerrero-Mosqueda, Defendants-Appellees. No. 91-50836. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 6, 1992. Decided Sept. 22, 1992. David P. Curnow, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellant. Frank J. Ragen, II, San Diego, Cal., Steven J. Riggs, Federal Defenders of San Diego, Inc., San Diego, Cal., for defendants-appellees. Appeal from the United States District Court for the Southern District of California. Before: FARRIS, WIGGINS, and FERNANDEZ, Circuit Judges. FARRIS, Circuit Judge: 1 The United States appeals the district court's order dismissing the indictment against Horacio Velarde-Gavarrete and Bolivar Wilson Guerrero-Mosqueda. We reverse. 2 * At approximately 7:30 a.m. on September 11, 1990, the USS Arkansas, acting on classified information, encountered the M/V Nordcapp, a Honduran-flag freighter. The Nordcapp was dead in the water near the Clipperton Islands, approximately 1400 miles west of Costa Rica. A United States Coast Guard law enforcement team aboard the Arkansas radioed for permission to come aboard the…

The United States appeals the district court’s order dismissing the indictment against Horacio Velarde-Gavarrete and Bolivar Wilson Guerrero-Mosqueda. We reverse.

I

At approximately 7:30 a.m. on September 11, 1990, the USS Arkansas, acting on classified information, encountered the M/V Nordcapp, a Honduran-flag freighter. The Nordcapp was dead in the water near the Clipperton Islands, approximately 1400 miles west of Costa Rica. A United States Coast Guard law enforcement team aboard the Arkansas radioed for permission to come aboard the Nordcapp. The Nordcapp denied the request. Minutes later, the request was repeated. This time, permission was granted.

By this time, the Coast Guard team noticed heavy non-engineering smoke coming from the Nordcapp, indicating a fire on board. The team arrived at the Nordcapp and found most of her crew mustered on deck. Because of the fire, the team advised the Nordcapp crew to prepare to abandon ship. The team’s efforts to locate the source of fire were hampered by heat and smoke, and no observations were made of the contents of the ship’s cargo hold. The team seized some documents and evacuated the Nordcapp crew. By midafter-noon, the…

dissenting.

The case against these defendants is dependent upon proof that there was cocaine in the hold of the M/V Nordcapp. No cocaine was found. All crew members were interrogated after they abandoned ship and were aboard the USS Arkansas. They were interrogated again after arriving in San Diego. The crew members denied knowledge of the presence of any cocaine aboard the Nordcapp. The government promptly deported the crew members, excepting these defendants, within a week after their arrival in San Diego. The defendants were held in custody based upon an extradition request from Belgium, in the case of the captain, and an alleged parole violation, in the case of Guerrero. These defendants were not charged with the present offense until nearly two months later.

Pending trial, investigators employed by the defendants discovered three of the crew members abroad. Each denied that the ship was carrying cocaine. The defendants thereupon made a motion to dismiss the indictment. After full consideration, the trial court granted the motion. On this record, the trial court should be affirmed.

The law to be applied in this case seems relatively clear. The defendants are entitled to…