EA Shipping Co. v. Bazemore
EA Shipping Co. v. Bazemore
Opinion of the Court
This is an appeal from a judgment of forfeiture of the M/V EA after a bench trial in the district court. The judge below concluded that there was probable cause for seizure of the vessel, that it was not a common carrier, and that if it was a common carrier, the government established that the master was a consenting party or privy to the illegal importation of cocaine because he had actual knowledge of its presence aboard the ship. United States v. One (1) Liberian Refrigerator Vessel, 447 F.Supp. 1053 (M.D.Fla. 1977). After reviewing the record we are unable to say that the lower court was clearly erroneous in finding that the master of the ship had actual knowledge of the presence of cocaine on board; consequently, we affirm.
In the early morning hours on June 17, 1976, Customs authorities converged on individuals who were observed covertly passing dark packages out of a porthole on the M/V EA in Tampa, Florida. The vessel had been on round trip voyages between Turbo, Colombia, and Tampa, Florida, for at least two years. The participants fled upon approach of officials, but searches that day and the days that followed netted large quantities of cocaine. The contraband was eventually discovered on the vessel, in the water in the vicinity of the ship, and in nearby fields. The government thereafter seized the vessel and brought a forfeiture suit pursuant to 49 U.S.C. § 782 (1976), 21 U.S.C. § 881 (1976), and 19 U.S.C. § 1594 (1976), alleging that the ship had
EASC does not contest the fact that the government established probable cause for bringing this forfeiture action. See generally United States v. One 1978 Chevrolet Impala, 614 F.2d 983 (5th Cir. 1980). Thereafter, the burden shifted to EASC under the forfeiture provisions to establish by a preponderance of the evidence that the conveyance was being operated as a common carrier. Cf. United States v. One 1975 Ford Pickup Truck, 558 F.2d 755, 756 (5th Cir. 1977) (per curiam); United States v. One 1972 Toyota Mark II, 505 F.2d 1162, 1164 (8th Cir. 1974) (both cases construe the parallel exception in the forfeiture statutes for violations committed by a person who unlawfully acquires possession of the vehicle).
In this case, however, the common carrier exception is unavailing because the government produced sufficient proof that the master of the M/V EA had actual knowledge of the presence of cocaine aboard the ship. Boatswain Felita testified that he observed Captain Maarleveld standing in the doorway of the cabin shared by crewmen Rodolpho L. Sarco Laurido and Ortega Ospina for approximately five minutes at a time when large packages of cocaine were strewn about the room. EASC emphasizes what it contends are inconsistencies in Felita’s testimony regarding whether the Captain was standing by, coming from, or remained in the doorway. The incompatibility of various segments of Feli-ta’s testimony is exaggerated. The witness is a native of Caracao who was trilingual; Dutch is his native tongue. His comprehension of English was good but it is apparent that his facility with the language was somewhat impaired. Nevertheless, the clear thrust of his testimony was that the master stood in the cabin or its doorway for about five minutes while packages of cocaine were littered about the crewmembers’ quarters.
EASC argues that the lower court should not have credited Felita’s testimony because he was a convicted felon who had on previous occasions given sworn statements that he had no knowledge of cocaine aboard the M/V EA. EASC also points out that Felita apparently stated to a government attorney that he overheard the Captain ask a crewman why he was leaving service on board the M/V EA when the crewmember could make more money smuggling cocaine while working on the ship. At trial, Felita testified that the Captain’s words were related to him by another crewman. Finally, EASC accentuates the fact that Captain Maarleveld denied ever being in the presence of cocaine and that the depositions of the officers and crew, to the effect that they did not bring cocaine aboard and they did not observe any on the final voyage, were introduced into evidence.
The lower court acknowledged the fact that Felita had pleaded guilty to a charge of possession of cocaine with intent to deliver. However, since the episode resulting in the conviction was unrelated to the activities of the M/V EA, he considered it not to be of dispositive significance in relation to Felita’s veracity. One (1) Liberian Refrigeration Vessel, 447 F.Supp. at 1066 n.12.
Giving due regard to the district court’s credibility choice, Edwards v. Gladewater Independent School District, 572 F.2d 496, 497 (5th Cir. 1978), we cannot say that it was clearly erroneous in concluding that the master had actual notice of the presence of the cocaine. The ship became subject to forfeiture because he countenanced this condition.
AFFIRMED.
Reference
- Full Case Name
- EA SHIPPING COMPANY, INC. v. Albert F. BAZEMORE, Defendants-Appellees UNITED STATES of America v. ONE (1) LIBERIAN REFRIGERATOR VESSEL, M/V EA, Official No. 3524, approximately 100.41 meters in length, Defendant BANQUE FRANCAISE DU COMMERCE EXTERIEUR, Intervening v. M/V, her engines, tackle, apparel, appurtenances, etc., in rem, and Ea Shipping Co., Inc., her owner, in personam
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- 5 cases
- Status
- Published