IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, ) No. 97-10263 )
Plaintiff-Appellee, D.C. No. Cr. 96-20133 RMW
) & Cr. 96-20104 RMW
vs. ) (Consolidated)
)
) (N.D. Cal., San Jose)
)
XXX XXX, )
)
Defendant-Appellant. )
___________________________________)
_________________________________________________
APPELLANT XXX XXX' OPENING BRIEF
_________________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
THE HONORABLE WILLIAM A. INGRAM,
UNITED STATES DISTRICT JUDGE
BARRY J. PORTMAN
Federal Public Defender
H. DAVID GRUNBAUM
Assistant Federal Public Defender
160 West Santa Clara Street, Suite #575
San Jose, California 95113
(408) 291-7753
Counsel for Defendant-Appellant
XXX XXX
TABLE OF CONTENTS
I. ISSUES PRESENTED FOR REVIEW 1
II. STATEMENT OF JURISDICTION 2
III. STATEMENT OF THE CASE 2
A. NATURE OF THE CASE 2
B. COURSE OF THE PROCEEDINGS 3
C. DISPOSITION OF THE CASE BELOW 5
IV. STATEMENT OF FACTS 6
V. ARGUMENT 10
A. THE EVIDENCE IS INSUFFICIENT AS A MATTER OF LAW TO SUSTAIN A CONVICTION FOR VIOLATIONS OF 16 U.S.C. SECTION 1857 (1)(D) and (1)(E) 10
1. Standard Of Review 10
2. The Evidence Is Insufficient as a Matter of Law to Sustain a Conviction for the Offense of Resisting or Impeding Coast Guard Officers in the Performance of Their Official Duties and for the Offense of Refusing, etc. 11
B. CAPTAIN XXX WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL 13
1. Standard of Review 13
2. Trial Counsel's Failure to Litigate the Integral
Fourth Amendment Issue Impermissibly Prejudiced the Defense 14
a. No Authority Exists Which Would Preclude the Litigation of this Issue 15
b. But for Counsel's Refusal to Present and Argue the Fourth Amendment Issue, the Jury Could Reasonably Have
Acquitted Captain XXX 20
VI. CONCLUSION 23
STATEMENT OF RELATED CASES 24
CERTIFICATE OF COMPLIANCE 21
CERTIFICATE OF SERVICE 22
TABLE OF AUTHORITIES
FEDERAL CASES
Delaware v. Prouse, 440 U.S. 648 (1979) 15, 16
Jackson v. Virginia, 443 U.S. 307 (1979) 10
Strickland v. Washington, 466 U.S. 668 (1984) 14, 20, 22
United States v. Blaylock, 20 F.3d 1458 (9th Cir. 1994) 13
United States v. Kaiyo Maru No. 53, 699 F.2d 989 (9th Cir. 1983) 15, 17, 18
United States v. Mares, 940 F.2d 455 (9th Cir. 1991) 10
United States v. Montoya-Hernandez, 473 U.S. 531 (1985) 16
United States v. Quinn, 18 F.3d 1461 (9th Cir. 1994) 11
United States v. Reed, 15 F.3d 928 (9th Cir. 1993) 16
United States v. Robinson, 967 F.2d 287 (9th Cir. 1992) 13
United States v. VillaMonte-Marquez, 462 U.S. 579 (1983) 15, 16, 19
FEDERAL STATUTES
14 U.S.C. §89 12
16 U.S.C. §1857 12
16 U.S.C. §1857(1)(D) 1, 3, 5, 10, 12, 13
16 U.S.C. §1857(1)(E) 1, 3, 5, 10, 11, 12
16 U.S.C. § 1859 3
18 U.S.C. § 111(a)(1) 3, 4
18 U.S.C. § 3231 2
28 U.S.C. § 1291 2
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, ) No. 97-10263 )
Plaintiff-Appellee, ) D.C. No. Cr. 96-20133 RMW
) & Cr. 96-20104 RMW
vs. ) (Consolidated)
)
) (N.D. Cal., San Jose)
)
XXX XXX, )
)
Defendant-Appellant. )
____________________________________)
I. ISSUES PRESENTED FOR REVIEW
A. Whether the evidence presented at trial was insufficient as a matter of law to sustain the convictions of XXX XXX for the lesser included offenses contained in Counts One and Two of the Indictment, violations of 16 U.S.C. §§ 1857(1)(E) and 1857(1)(D).
B. Whether XXX XXX was denied his Sixth Amendment right to the effective assistance of counsel when trial counsel failed to assert and preserve his Fourth Amendment right to be free from an unreasonable and warrantless search of his fishing vessel by the United States Coast Guard.
II. STATEMENT OF JURISDICTION
The District Court had jurisdiction of this case pursuant to 18 U.S.C § 3231, in that "Captain" XXX XXX, the owner and master of the United States fishing vessel "Helja", was charged with several and various criminal violations of the United States Code. [ER 194-201; 208-212] (1) On November 5, 1996, a jury convicted Captain XXX of two lesser included offenses. [ER 6-10]
This Court has jurisdiction of the case pursuant to 28 U.S.C. § 1291, in that the District Court's judgment and sentence, imposed on April 10, 1997, is a final order. [ER 3-5] Captain XXX timely filed a notice of appeal on April 15, 1997. [ER 1] Captain XXX does not appeal from the sentence imposed.
III. STATEMENT OF THE CASE
A. NATURE OF THE CASE
This appeal is from the jury verdict and conviction in this case. This appeal is brought to review the issues regarding the sufficiency of the evidence and ineffective assistance of counsel.
B. COURSE OF THE PROCEEDINGS
On June 12, 1996, the government filed a criminal complaint charging Appellant, Mr. XXX XXX, the owner, master and captain of the fishing vessel "Helja", in two counts with violations of 18 U.S.C. § 111(a)(1), forcibly resisting a United States Coast Guard official in the performance of his official duties, and 16 U.S.C. § 1859, refusing to permit an inspection and/or search of a fishing vessel in violation of 16 U.S.C. § 1857(1)(D). [ER 208-212] On June 20, 1996, Captain XXX made his initial appearance on the complaint. [ER 215]
On July 11, 1996, Captain XXX was arraigned on an Information, Cr. 96-20104 RMW, charging in one count that he forcibly resisted, opposed or impeded officers of the Coast Guard while engaged in their official duties, in violation of 18 U.S.C. § 111(a)(1). [ER 204-206] At that time Captain XXX waived indictment and pleaded not guilty to the charge. [ER 207]
On September 17, 1996, the government filed additional felony charges by way of an Indictment, No. Cr. 96-20133 RMW, charging Captain XXX with four felony counts. [ER 194-201] Count One charged that on May 19, 1996, Captain XXX forcibly assaulted, resisted and opposed Coast Guard officers, placing such officers in fear of imminent bodily harm, in violation of 16 U.S.C. §§ 1857(1)(E) and 1859(1)(a). Count Two charged Captain XXX with refusing to permit Coast Guard officers to board the fishing vessel Helja to conduct a search and inspection and placed such officers in fear of imminent bodily injury. Count Three charged that Captain XXX did knowingly assault Coast Guard officer Mantel, while engaged in his official duties in violation of 18 U.S.C. § 111(a)(1). Count Four charged Captain XXX with an assault on Coast Guard officer Robert Schaffer while in the performance of his duties in violation of 18 U.S.C. § 111(a)(1). The matter was assigned to the Honorable Ronald M. Whyte for trial. On September 19, 1996, the pretrial conference was held and the two criminal actions were consolidated on the government's motion. [ER 189-193] Thereafter, the matter was assigned to the Honorable William A. Ingram for trial.
On October 17, 1996, the government filed a motion in limine seeking to preclude the defense from making any claim that his Fourth Amendment rights were violated by the Coast Guard's attempt to board and inspect his fishing vessel. [ER 102-107]
On October 29, 1996, a pretrial conference was held. The government's motion in limine was not opposed. [ER 633] On October 30, 1996, the jury trial began. The defense reserved its opening statement. [ER 457] On November 1, 1996, the government rested its case. [ER 369] The defense rested its case without presenting any evidence. [ER 410] Thereafter, on the Appellant's motion for a judgment of acquittal, Counts 3 and 4 of the Indictment were "dismissed". [ER 14; 409]
On November 4, 1996, the jury was instructed. As part of the instructions, the jury was instructed that, as a matter of law, the Coast Guard was entitled to board any vessel in United States waters without a search warrant and without probable cause. [ER 233]
On November 5, 1996, the jury acquitted Captain XXX of Count One of the Information, Cr. 96-20104 RMW, charging him with assault. The jury returned guilty verdicts on lesser included offenses contained in Counts One and Two of the Indictment, violations of 16 U.S.C. §§ 1857(1)(E) and 1857 (1)(D), finding that the government had proved all the elements of the offenses except the element that the Coast Guard officers were in fear of imminent bodily injury.
[ER 222-224]
On February 3, 1997, counsel for Captain XXX was permitted to withdraw as counsel of record and new counsel was appointed. On April 10, 1997, Captain XXX was sentenced. [ER 3-5] On April 15, 1997, Captain XXX timely appealed the judgment. [ER 1] Captain XXX does not appeal the sentence imposed.
C. DISPOSITION OF THE CASE BELOW
On April 10, 1997, Captain XXX was sentenced to a period of supervised probation with the special condition that he complete 100 hours of community service as directed by the U.S. Probation Office. It was further ordered that probation would terminate upon the successful completion of the community service obligation. [ER 5]
IV. STATEMENT OF FACTS
On May 19, 1996, in United States waters near the harbor at Santa Cruz, in the Monterey Bay of California, Captain XXX XXX, the owner, captain and master of the U. S. fishing vessel, "Helja", was approached by three members of the U.S. Coast Guard who advised him that they were about to board his vessel. [ER 480-482] The boarding party consisted of Coast Guard members Mantel, Schaffer, and Williams. [ER 476] The Coast Guard employed two vessels in the exercise. The boarding party was aboard an inflatable powerboat, the "Chico One" which had been launched by the larger Coast Guard Cutter "Point Chico". [ER 475-476] The boarding party were each armed with 9 millimeter semi-automatic pistols. [ER 362, 505] Master Chief Giles was in command of the Coast Guard Cutter Point Chico. [ER 517]
The Coast Guard's decision to board the Helja was made entirely at random. The Coast Guard had finished an inspection of another fishing vessel and the Helja was the next closest vessel. [ER 477-478] The Coast Guard crew had no prior knowledge of either the Helja or of Captain XXX. [ER 470-471, 520, 591] Captain XXX was not suspected of any illegal activity. [ER 555-556] The Coast Guard had observed no violation of any state or federal law or regulation by Captain XXX. [ER 555-556, 596] To the contrary, Coast Guard officers testified that at the time they approached the Helja, Captain XXX had his fishing gear in the water, he was working his gear, and was in the midst of gaffing a salmon when first hailed. [ER 479, 506, 537] Master Chief Giles noted that Captain XXX appeared to be doing "fairly well." [ER 562]
Although an officer testified at trial that the boarding was in order to conduct a safety inspection [ER 481], when first demanding access to the Helja, the officer told Captain XXX only that the officers were "coming on board to conduct a boarding of your vessel." [ER 482] The safety inspection would have entailed the inspection of a checklist of items, including the ship's registration and sailing documents, numerous safety features, environmental and fire systems, emergency gear, the fishing equipment and the "catch" of fish. (2) [ER 463-464, 466, 472, 479, 540] The officer testified that the search could have taken "quite a while." [ER 478] The search and/or inspection would have included the entire vessel, including the engine room. [ER 340, 478, 557]
In response to the demand to "conduct a boarding", Captain XXX asked the officers if they had a search warrant. [ER 482-483] The Coast Guard personnel replied that they had no search warrant. [ER 483] Captain XXX then refused to allow the Coast Guard boarding party aboard the Helja. [ER 483]
After a few minutes and after the boarding party had reported the situation to the cutter Point Chico, Captain XXX was hailed by the Point Chico. [ER 486] A conversation ensued between the Point Chico and Captain XXX which lasted for some time. In order to conduct the boarding, the Coast Guard instructed Captain XXX several times to "heave to" and bring his vessel to a complete stop. [ER 487, 526, 527, 537]
Although Master Chief Giles repeatedly told Captain XXX to "heave to" and "come to a complete stop", the Master Chief testified in court that he did not really mean a complete stop because he recognized that a complete stop would cause all of Captain XXX' lines to "become tangled, they would fall into the propeller of the vessel or fall into other pieces of fishing gear." [ER 539-540] Captain XXX, however, was never instructed to do anything other than come to a complete stop. Contrary to the Master Chief's in-court testimony, tapes played at trial demonstrated that Captain XXX was repeatedly ordered to bring his vessel to a complete stop. [ER 537, 541, 545, 546] As far as Captain XXX was instructed, he was then required to immediately come to a complete stop to permit the boarding party aboard the Helja. There was no consideration or discussion by the Coast Guard of any possible delay in order to permit Captain XXX to remove his lines from the water, to finish the fishing run, or to wait until he approached the dock where all commercial fishermen would be unloading their catch.
Upon the initial hail by the Master Chief, Captain XXX turned his back to the boarding party and went into the cabin of his boat to respond via radio. [ER 491, 569] At that time the boarding crew backed away and was ordered to the portside of the Point Chico, away from the Helja. [ER 492] Captain XXX was seen later with a holster although no firearm was ever seen. [ER 511, 584-585, 566] The holster was noticed well after the time that the Chico One was on the portside of the Point Chico, well away from the Helja. [ER 560] No threat was made by Captain XXX directly against any Coast Guard personnel.
Following his initial refusal to permit the boarding, Captain XXX pointed out that his gear was in the water and he was concerned about the safety of his vessel. [ER 537] This was a legitimate concern. Coast Guard personnel testified that the fishing lines could become fouled in the propeller if the vessel was required to come to a complete stop. [ER 539] Captain Bales also pointed out that he was trying to make a living. [ER 558] Captain XXX also advised the Point Chico that a fish and game officer could board the Helja in order to inspect his catch. [ER 547] A short time later, Captain XXX told the Coast Guard that he would permit a boarding party to board, but only so long as he came aboard unarmed. [ER 547] Captain XXX made this offer several times. [ER 584]
At trial, a Coast Guard officer testified that Captain XXX' offer was refused by the Point Chico because it was contrary to Coast Guard "policy" for a boarding party to board any vessel unarmed. [ER 613] The Helja was never boarded by the Coast Guard during that encounter. [ER 587]
V. ARGUMENT
A. THE EVIDENCE IS INSUFFICIENT AS A MATTER OF LAW TO SUSTAIN A CONVICTION FOR
VIOLATIONS OF 16 U.S.C. SECTION 1857 (1)(D) AND (1)(E).
1. Standard Of Review
The Court reviews the sufficiency of the evidence in the light most favorable to the government to determine whether any
rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319 (1979); United States v. Mares, 940 F.2d 455, 458 (9th Cir. 1991); United States v. Quinn, 18 F.3d
1461, 1465 (9th Cir. 1994).
2. The Evidence Is Insufficient as a Matter of Law to Sustain a Conviction for the Offense of Resisting or Impeding
Coast Guard Officers in the Performance of Their Official Duties and for the Offense of Refusing to Permit Boarding
by an Authorized Officer in Order to Conduct a Search or Inspection of the Fishing Catch.
The jury found defendant guilty of lesser included offenses contained in Count One and Two of the Indictment. In both counts, the jury found that the government had proven all the elements of the offenses except the element that the Coast Guard officers were in fear of imminent bodily injury. [ER 222-223]
In order to be convicted of the lesser included offense in Count One, the jury was instructed that the government was required to prove beyond a reasonable doubt that Captain XXX 1) resisted or impeded officers of the Coast Guard; and 2) while the officers were in the performance of their official duties. See 16 U.S.C. §1857(1)(E). As to the lesser included offense in Count Two of the Indictment, the jury was instructed that the government must prove that Captain XXX 1) refused to permit an officer, authorized to enforce the Magnuson Act, to board his fishing vessel for the purpose of conducting a search or inspection of his fishing catch; and 2) the officers were authorized to enforce the Magnuson Act. (3) See 16 U.S.C. §1857(1)(D).
There was insufficient evidence to find beyond a reasonable doubt that Captain XXX resisted or impeded the officers. Captain XXX offered several times to permit an unarmed boarding party to board his vessel. [ER 584] Neither 14 U.S.C. §89 nor 16 U.S.C. §1857 mandate that the boarding must be with sidearms. That the officers carry sidearms is a Coast Guard administrative policy. [ER 613] It is not prescribed anywhere in the United States Code. Captain XXX acquiesced to Coast Guard authority under the statute and was willing to permit a boarding party to board within the Coast Guard's right to board under both of the respective code sections. [ER 584, 611, 615] The Coast Guard chose not to board the Helja. Coast Guard officers testified at trial that Chief Giles never ordered them to board the Helja. [ER 511] As a result, there is insufficient evidence to find that the reason a boarding did not take place was due to any behavior which could then reasonably constitute resisting or impeding on the part of Captain XXX under 16 U.S.C. §1857(1)(E).
Likewise, in response to the Coast Guard's request to inspect the catch under the Magnuson Act, Captain XXX, in recognition of the Coast Guard's right to do so, offered to permit an unarmed boarding party to come aboard. [ER 584, 611, 615] Captain XXX also invited a fish and game warden to come aboard. [ER 547] Under these circumstances, there is insufficient evidence to find, beyond a reasonable doubt, that Captain XXX refused to permit a boarding of his vessel for the purpose of inspection under 16 U.S.C. §1857(1)(D).
B. CAPTAIN XXX WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF
COUNSEL.
1. Standard of Review
This Court reviews the effective assistance of counsel on a de novo basis. United States v. Blaylock, 20 F.3d 1458, 1464-1465 (9th Cir. 1994). Normally, claims of ineffective assistance of counsel are not considered on direct appeal, but by collateral review. See United States v. Robinson, 967 F.2d 287, 290 (9th Cir. 1992). However, where "the record on appeal is sufficiently developed to permit review and determination of the issue . . .or [] when the legal representation is so inadequate that it obviously denies a defendant his Sixth Amendment right to counsel," the court may review the claim on direct appeal. Ibid.
2. Trial Counsel's Failure to Litigate the Integral Fourth Amendment Issue Impermissibly Prejudiced the Defense.
To constitute ineffective assistance under the Sixth Amendment, "any deficiencies in counsel's performance must be prejudicial to the defense." Strickland v. Washington, 466 U.S. 668, 692 (1984). Thus, on appeal, the defendant must first show that counsel's performance was deficient -- that counsel's performance was not objectively reasonable -- and that counsel's error was serious enough to result in the deprivation of defendant's Sixth Amendment right to counsel. Id. at 689-692. Second, "[t]he defendant must show that there is a reasonable possibility that, but for counsel's unprofessional error, the result of the proceeding would have been different." Id. at 694.
In the instant case, Captain XXX' Fourth Amendment right to be free from unreasonable searches and seizures was violated when the Coast Guard demanded to board his commercial fishing boat where Captain XXX was actively fishing; where the seas were choppy; where the demand to "heave to" and "come to a complete stop" would create a safety hazard; and where a lesser intrusive means to inspect was readily available to the Coast Guard. Captain XXX' trial counsel was ineffective when he: 1) failed to file pretrial motions on this issue; 2) failed to filein limine motions; 3) conceded the government's motion in limine seeking to preclude this all-important issue at trial; 4) failed to preserve the issue by objection at trial; 5) failed to submit jury instructions regarding this issue; and 6) repeatedly stated during closing argument that Captain XXX had broken the law. [ER 290, 296, 298-299, 315]
As a result, the jury was prevented from deliberating and concluding that the boarding, as imposed by the Coast Guard, was unreasonable and that Captain XXX should be acquitted of all the charges.
a. No Authority Exists Which Would Preclude the Litigation of this Issue.
Neither the Ninth Circuit nor the Supreme Court of the United States has ruled that the Coast Guard's demand to board an American commercial fishing vessel within a statutorily demarcated salmon fishing area is reasonable under the Fourth Amendment when the sole occupant -- the vessel's captain -- is actively engaged in fishing in the midst of a fishing fleet of whom it is known will be depositing all fish caught in one of the few canneries available in the area. Compare United States v. VillaMonte-Marquez, 462 U.S. 579 (1983) (court balancing intrusion with governmental need and interest regarding customsinspection of boat in open sea); United States v. Kaiyo Maru No. 53, 699 F.2d 989 (9th Cir. 1983), with Delaware v. Prouse, 440 U.S. 648 (1979) (random auto stops violate the Fourth Amendment when less intrusive means are available).
Where an issue has not been litigated and settled, the Ninth Circuit has ruled that Fourth Amendment issues are best resolved on a case by case basis relying on the consistent application of certain general principles. United States v. Reed, 15 F.3d 928, 931 (9th Cir. 1993)(involving "gray area" of government participation in private party searches). Under this rationale, consistent application of the general principles of any particular law enforcement practice must be judged by "balancing its intrusions on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." United States v. Montoya-Hernandez, 473 U.S. 531, 537 (1985), quoting Villamonte-Marquez, 462 U.S. at 588.
In Delaware v. Prouse, supra, the Supreme Court held that random stops of automobiles to undergo registration and safety inspection was unreasonable under the Fourth Amendment where the practice marginally contributed to finding either unsafe vehicles or unlicensed drivers, and where other less intrusive means existed to achieve the law enforcement goal. The Court found that fixed vehicle inspection checkpoints were less intrusive, created less anxiety for the individual and thus were more reasonable on a delineated roadway. Id. at 1398-1401.
Subsequent to its holding in Prouse, the Supreme Court in Villamonte-Marquez, supra, found that the random stop and subsequent boarding of a sailboat by customs agents to check documentation was not unreasonable in that, unlike automobiles traveling along well-delineated highways, inspection checkpoints are not feasible with vessels which have ready access to the open sea. The Court also noted that, unlike Prouse's fixed checkpoints for automobiles on delineated roadways, there were no less intrusive means to inspect a foreign sailing vessel's documents due to the lack of delineated travel lanes at sea, a sea-going vessel's ability to remain at sea for an indefinite period, and the lack of any external registration/documentation marking on a vessel. The Court held that the government's substantial interest in the deterrence of smuggling outweighed the intrusiveness of a request for documentation and so the customs boarding was reasonable under the Fourth Amendment balancing test.
On facts substantially different from those found here, this Court has held that the Coast Guard's right to board a foreign vessel on the open sea to investigate the size of fish does not violate the Fourth Amendment. United States v. Kaiyo Maru No. 53, supra, 699 F.2d at 995-996. The Court stated that the government's interest in protecting our natural resources outweighs the intrusion of a search to inspect a foreign vessel where the Coast Guard has administratively limited its boardings to foreign fishing vessels actually engaged in fishing and where the same standards provide that such an inspection of these foreign vessels is required to be conducted once every three months. These and other considerations convinced this Court that such a boarding of a foreign fishing vessel is a minimal intrusion as compared to the government's interest. The inspection of the Kayo Maru No. 53 was found to be reasonable under the Fourth Amendment. Id. at 995.
In sharp contrast, the search and seizure of an American commercial fishing vessel, crewed by its sole captain and owner, in a statutorily demarcated salmon fishing zone close to land, while in the midst of a fishing fleet, and clearly engaged in an attempt to catch fish, with more than 35 lines in the water, constitutes an unreasonable search and seizure under the Fourth Amendment. This is so because the Coast Guard, like the police in Prouse, was able to check its computer databases for registration data on the Helja. [ER 592] This computer check was completed before communicating with Captain XXX. [ER 592]
As in Villamonte-Marquez, Prouse and Kaiyo Maru No. 53, the government has a legitimate interest in boarding and inspecting Captain XXX' vessel. Unlike Villamonte-Marquez and Kaiyo Maru No. 53, however, the government's intrusion is not minimal where the Coast Guard's demands to "heave to" and "come to a complete stop" would foul the numerous fishing lines, creating both an economic hardship and a safety hazard. This is especially so where: 1) Captain XXX was the sole person on board the vessel; 2) he was clearly in the middle of a fishing fleet; 3) it was readily apparent to all concerned that Captain XXX was then actively engaged in fishing for salmon within the demarcated area in the Monterey Bay, and 4) less intrusive means existed which would further the government's interest. Just as in Prouse, the government's insistence upon conducting an immediate and all inclusive search of a vessel becomes less reasonable whenever less intrusive and more reasonable alternatives are available and the search/inspection creates an economic hardship and a safety hazard. SeeVillamonte-Marquez, 462 U.S. at 588-590 (no less intrusive alternatives exist where customs officials cannot spot all vessels, round them up in the open sea and then herd them into canals or straits in order to make fixed checkpoint stops).
Here, Captain XXX was fishing within a statutorily demarcated and restricted area for commercial salmon fishing. He had violated no law or regulation. The Coast Guard was able to obtain information from its databases regarding the vessel and the owner. Captain XXX and the commercial fishing fleet could be expected to travel on a direct route from this demarcated and restricted area to canneries or markets nearby. Among the less restrictive and intrusive alternatives available to the Coast Guard is a procedure to inspect at dockside, at the cannery, or at the vessel's destination or home port. Just as any other fishermen caught with an unseasonal or undersized catch, violators could be arrested or cited at that point. Instead, the Coast Guard decided to interrupt and interfere with Captain XXX' livelihood without any suspicion that any violation of any American law had occurred. [ER 556-557]
b. But for Counsel's Refusal to Present and Argue the Fourth Amendment Issue, the Jury Could Reasonably Have
Acquitted Captain XXX.
Counsel's performance was not objectively reasonable; it was grossly deficient. Trial counsel not only failed to present the constitutional issue central to the case but also failed to preserve the issue for appeal, either by way of pretrial motion or a simple objection at trial. (4) By refusing to litigate the integral Fourth Amendment issue of unreasonableness--by ignoring the implications such deficiency would have on any subsequent appeal -- trial counsel deprived Captain XXX of his Sixth Amendment right to the effective assistance of counsel. But for counsel's deficiency, there is a likelihood that the result of the proceeding would have been very different. See Strickland v. Washington, 466 U.S. at 694.
Moreover, trial counsel's deficiency resulted in a failure to properly preserve this issue for appeal. There were no defense objections at trial to the mischaracterizations of the state of the law made by both the government's witness and the judge. A Coast Guard officer testified that the Coast Guard boarding authority does not violate the Fourth Amendment because "Coast Guard operations says they are the exception to the Fourth Amendment." [ER 465] When asked on direct examination whether he was violating the Fourth Amendment, Master Chief Giles responded, "No, sir, I was not." [ER 549] The judge instructed the jurors that, "[t]he Coast Guard's boarding authority, in this instance, is an exception to and is not a violation of the Fourth Amendment." [ER 233] Trial counsel failed to object to the preceding statements.
To compound the error, trial counsel, during closing argument, repeatedly stated that Captain XXX had broken the law . "There is no question that Captain XXX made an illegal refusal to board . . . " [ER 290]; "[h]e broke the law. . ." [ER 296]; "I've stated Captain XXX was wrong. We do not contest that Captain XXX was very wrong in what he did and what he said. . ." [ER 298]; "[a]lso there is no constitutional defense, so we admit from day one that Captain XXX was incorrect on his application of the idea that fishermen, once they leave the dock, are not entitled to protections from searches and seizures because they're the subject of searches and seizures." [ER 298-299]
The Court and the jury, had they been presented with an opportunity to decide the Fourth Amendment issue, could reasonably have found that the Coast Guard's request was unreasonable and that Captain XXX acted reasonably in placing certain restrictions on the Coast Guard's demand to board the Helja. (5) A likelihood exists that the jury would have acquitted Captain XXX had this issue been properly raised and presented. See Strickland, supra at 694. The court and the jury did not reach the preceding conclusions because trial counsel: 1) filed no pretrial motions; 2) failed to brief the issue in limine; 3) conceded the government's motion in limine seeking to preclude this issue from trial; 4) failed to preserve this issue by way of objection at trial; 5) failed to submit any jury instructions on this issue; and 6) repeatedly told the jury that regarding this issue, Captain XXX had "broken the law."
Due to counsel's objectively unreasonable deficiencies, Captain XXX was denied his Sixth Amendment right to the effective assistance of counsel which substantially affected his defense and the outcome of the trial, and this appeal.
VI. CONCLUSION
The government failed to produce evidence which would enable a rational jury to determine beyond a reasonable doubt that Captain XXX XXX resisted or impeded Coast Guard officers in the performance of their official duties as charged in Counts One and Two. Accordingly, this Court should reverse Captain XXX' convictions on Counts One and Two respectively.
Trial counsel failed to raise and/or preserve vital Fourth Amendment issues which denied Captain XXX his Sixth Amendment right to the effective assistance of counsel. Due to the nature of counsel's failures, the trial result is unreliable as a matter of law. This Court should reverse Captain XXX' convictions on Counts One and Two respectively and/or grant a new trial.
Dated: September 2, 1997
Respectfully submitted,
BARRY PORTMAN
Federal Public Defender
H. DAVID GRUNBAUM
Assistant Federal Public Defender
Attorney for Appellant XXX XXX
STATEMENT OF RELATED CASES
There are no other related cases to the knowledge of Appellant's counsel.
Dated:
Respectfully submitted,
BARRY PORTMAN
Federal Public Defender
H. DAVID GRUNBAUM
Assistant Federal Public Defender
Attorney for Appellant XXX XXX
CERTIFICATE OF COMPLIANCE
Pursuant to Ninth Circuit Rule 32(e)(4), the undersigned hereby certifies under penalty of perjury that the foregoing APPELLANT XXX XXX' OPENING BRIEF in this case of United States v. United States, is proportionately spaced, in Times New Roman typeface, point size 14, and the word count is 5476.
DATED: September 2, 1997
________________________________
Assistant Federal Public Defender
H. DAVID GRUNBAUM
CERTIFICATE OF SERVICE
The undersigned hereby certifies under penalty of perjury that a copy of the foregoing Opening Brief and Excerpt of Record in this case of United States v. XXX XXX, No. 97-10263, was hand-delivered on this date to the Office of the U.S. Attorney, 280 South First Street, Suite 371, San Jose, California, 95113, Attention: Carlos Parker Singh, Assistant United States Attorney. A copy
of the Opening Brief was sent to the Appellant, XXX XXX XXX, at his last known address.
Dated: September 2, 1997
______________________________
Legal Secretary for the Office of the
Federal Public Defender
1. All references are to the Excerpt of Record (hereafter "ER"]. The ER is in three volumes with pages numbered consecutively throughout all three volumes. References will be to the page number of the reference point, e.g. [ER 225].
2. As testified to at trial, the Coast Guard enforce the Magnuson Act which covers "the maritime species . . . [f]or instance, your salmon fishing must have a certain kind of hook. Only certain species are prohibited. They must be a certain size. But it's a whole plethora of rules to manage -- to consider to positively manage that living marine resource." [ER 461]
3. At the same time, the jury was instructed that the Coast Guard officers were authorized to enforce the provisions of the Magnuson Act. [ER 238-239]
4. Trial counsel also failed to argue the sufficiency of the evidence at trial. See Argument, Part A, supra.
5. Trial counsel might also have argued that Captain XXX' offers to permit an unarmed boarding should result in an acquittal of the charges.