United States v. Desmond Alexander

713 F. App'x 919
CourtCourt of Appeals for the Eleventh Circuit
DecidedNovember 14, 2017
Docket16-16921 Non-Argument Calendar
StatusUnpublished

This text of 713 F. App'x 919 (United States v. Desmond Alexander) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Desmond Alexander, 713 F. App'x 919 (11th Cir. 2017).

Opinion

PER CURIAM:

Desmond Alexander appeals his convictions under the Maritime Drug Law Enforcement Act (“MDLEA”) for conspiring to possess and possessing with intent distribute 1,000 kilograms or more of marijuana on board a vessel subject to the jurisdiction of the United States. Alexander argues that insufficient evidence supported the jury’s finding that the offense involved 1,000 kilograms or more of marijuana, that the district court abused its discretion in admitting evidence of his post-arrest, pre-Mimnda 1 silence, and that the MDLEA is unconstitutional as applied to him. Alexander also challenges his 120-month sentence of imprisonment, which is the statutory minimum under the MDLEA for an offense involving 1,000 kilograms or more of marijuana. He argues that excluding MDLEA defendants from relief under the so-called “safety valve,” 18 U.S.C. § 3553(f), violates equal protection. After careful review, we affirm.

I.

In the light most favorable to the verdict, the relevant facts, are these. 2 On the night of September 19, 2015, a marine patrol aircraft spotted a suspicious vessel traveling east in international waters about 70 nautical miles south of the Dominican Republic. The aircraft notified the U.S. Coast Guard cutter Richard Dixon, which moved to intercept. Approximately three hours later, in the early morning hours of September 20, the Richard Dixon arrived in the area of the suspect vessel, which was still in international waters, and then launched a small chase boat with a crew of four.

The chase boat, commanded by Boatswain’s Mate Travis Mills, approached the vessel and turned on its blue lights, which is an international sign for law enforcement. Using a megaphone, Mills identified himself as a Coast Guard officer and commanded the vessel to stop. Instead of stopping, the vessel made a 180-degree turn and fled, maneuvering erratically. Mills observed three men on board the vessel, including one who fell or jumped overboard during the pursuit. The vessel eventually stopped when the chase boat fired a warning shot across its bow.

Once the suspect vessel had stopped, the -chase boat went to rescue the overboard man, later identified as Alexander, from the water. Meanwhile, the two men who remained on the vessel began throwing packages, or “bales,” into the water. The chase boat made its way back to the vessel and recovered three of the bales, which smelled of marijuana..

Because the vessel did not identify its nationality, Mills began asking a series of “right of approach” questions to determine the master of the vessel, the nationality of the vessel, and its destination, among other things. According to the vessel’s master, the vessel was of Jamaican origin and was bound for Antigua to deliver the packages in the bow of the boat. Mills observed that these packages were wrapped similarly to the bales recovered from the water. Mills relayed this information to the Richard Dixon, which used the information to contact Jamaican authorities about the suspect vessel.

While the chase-boat crew waited for permission from the Richard Dixon to board, the vessel began to take on water. The chase-boat crew received orders to remove some of the packages from the vessel and to bring its three crewmembers to the cutter. The chase-boat crew transferred eleven or twelve bales from the vessel to the chase boat and then returned to the cutter with Alexander and the other two men. The crew also brought the vessel and attached it to the cutter. After about an hour, however, the vessel again began to take on water, so the remaining bales were removed and brought on board the Richard Dixon. Some of the bales slid into the water during this recovery effort.

Chief Petty Officer Wesley Stigsell testified that he conducted an inventory of the items recovered from the vessel. Stigsell counted a total of 49 bales of suspected marijuana. Mills estimated that each bale he lifted weighed around 50 pounds. Another member of the chase-boat crew, Engineering Officer of the Watch Michael Lagasca, estimated that each bale weighed around 40 to 50 pounds. Thereafter, the contraband and vessel crewmembers were transferred to the United States Coast Guard cutter Resolute.

On September 29, 2015, the Coast Guard delivered a shipment of marijuana to the DEA in Miami, Florida. DEA Special Agent Peter David Yates testified that he received 49 bales of marijuana from the Coast Guard and then weighed them on an electronic scale. He recorded a total weight of 1,251 kilograms, which included the weight of the packaging. After he had weighed the bales, Yates took what he described as a “representative sample” from the bales for testing by the DEA laboratory.

According to Yates, each bale was composed of multiple compressed “bricks” of marijuana that were wrapped in a black trash bag and then taped with “packing tape.” The stacked bricks were then wrapped in a white “burlap plastic sack.” Yates testified that the white sacks encasing the bales were “very, very light” and did not weigh more than a “Publix trash bag,” and that the black bags and tape encasing each brick were “very light” and weighed only “slightly more” than the white sacks. Yates’s description of the packaging was consistent with the descriptions provided by other witnesses, including Peter Imbriale, the Executive Officer of the Richard Dixon. The jury also saw several pictures of the bales. Yates did not weigh the packaging materials separately.

II.

After his arrest, Alexander and two co-defendants, Garth Forrest and Derrick Findely, were indicted on one count of conspiracy to possess with-intent to distribute 1,000 kilograms or more of marijuana while on board a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. §§ 70503(a)(1) and 70506(a) and (b), and 21 U.S.C. § 960(b)(1)(G), and one count of possession with intent to distribute 1,000 kilograms or more of marijuana while on board a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. §§ 70503(a)(1) and 70506(a), 21 U.S.C. § 960(b)(1)(G), and 18 U.S.C. § 2. Forrest, who was identified as the master of the vessel, was also charged with failure to heave to, in violation of 18 U.S.C. § 2237(a)(1). Forrest pled guilty to the conspiracy charge and agreed to cooperate with the government by testifying at Alexander’s trial. Findely pled guilty but did not testify at trial.

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713 F. App'x 919, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-desmond-alexander-ca11-2017.