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United States v. Velarde-Gavarrete

filed: September 22, 1992.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT,
v.
HORACIO VELARDE-GAVARRETE; BOLIVAR WILSON GUERRERO-MOSQUEDA, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Southern District of California. D.C. No. CR-90-1131-B. Rudi M. Brewster, District Judge, Presiding.

Before: Jerome Farris, Charles Wiggins, and Ferdinand F. Fernandez, Circuit Judges. Opinion by Judge Farris; Dissent by Judge Wiggins.

Author: Farris

FARRIS, Circuit Judge:

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 midafternoon, the Nordcapp had sunk in 11,000 feet of water. Efforts to dislodge the contents of the ship's hold were unavailing.

Ten Nordcapp crewmembers were taken aboard the Arkansas. Because of the suspicious nature of the Nordcapp's burning, the Arkansas was ordered to transport the crew to San Diego for interviews and debriefing. The crew, however, was not placed under arrest.

While the Arkansas was en route to San Diego, the Coast Guard team received information from Interpol that Velarde, the Nordcapp's captain, was a fugitive from Belgium, where he had been convicted in absentia for smuggling cocaine by ship. The Belgian government requested Velarde's provisional arrest and extradition.

The Coast Guard team interviewed Velarde. They did not inform Velarde that they were aware of his Belgian conviction. Velarde stated that the Nordcapp was carrying a cargo of clothing when it sank. Other crewmembers were also interviewed about the Nordcapp's sinking. Several of them indicated that they did not know what the Nordcapp was carrying.

The Arkansas arrived at San Diego on September 15. Upon arrival, it was met by representatives of the Coast Guard, the Immigration and Naturalization Service, the Drug Enforcement Agency and United States Customs. All crewmembers were interviewed by law enforcement officers on the day they arrived in port.

Velarde was informed that he had been identified as a fugitive. He then admitted that the Nordcapp was carrying fifteen tons of cocaine. He denied ordering the Nordcapp fired or scuttled. This interview was not taped, but written notes were made soon after. As a result of the interview, Velarde was classified as a Class I drug violator.

Ingmar Gomez-Nieva claimed during his interview that he was a stowaway aboard the Nordcapp, but he later admitted that he was aboard the ship to guard the cocaine. He stated that Velarde knew about the cargo, and that the crew had assisted in loading the cocaine on board. Gomez denied any role in firing or scuttling the ship. This interview was not memorialized until September 28, 1990. As a result of the interview, Gomez was also classified as a Class I drug violator.

The remaining crewmembers were also interviewed, including Guerrero-Mosqueda. All of them denied knowledge of drugs aboard the Nordcapp. All of ...


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