Arrest Revives Drug-Smuggling Case : Prosecutor Cites New Evidence as Suspect Surrenders After 4 Years

After years of adverse court rulings, prosecutors indicated Wednesday that with the arrest of a fourth suspect they again will try to prosecute a drug-smuggling case involving the seizure of 5 tons of marijuana from a boat in Newport Beach.

The huge 1985 drug haul, estimated to be worth $13 million, did not result in criminal prosecution because the police search that turned up the drugs was ruled unconstitutional. As a result of a series of controversial court rulings, charges against three defendants were permanently barred.

The final defendant, Bruce Patrick Malley, surrendered Wednesday after evading arrest for almost 4 years.

Although his lawyer expected charges to be dropped, Deputy Dist. Atty. Thomas J. Borris instead cited unspecified new evidence when he announced Wednesday in a Newport Beach courtroom that Malley would be prosecuted.

The boat, the Sea Dolphin, made an unscheduled stop for fuel in Newport Beach while en route with the load of marijuana from Colombia to Santa Cruz, authorities alleged. A police officer first cited one of the defendants for keeping the vessel too long at a municipal slip, then discovered that he was wanted for drunk driving. Police then searched the boat and discovered the marijuana. The defense had argued, in part, that the 20-minute limit for use of municipal slips was not clearly posted.

A series of judges have ruled that the search violated constitutional guarantees against unreasonable searches. Most recently, an appellate court concluded in August that the police conduct “made a mockery of the Fourth Amendment.” With prosecutors prohibited from using the drugs as evidence, the case was dismissed.

Malley’s lawyer, Robert Weinberg, said successful prosecution is a virtual impossibility.

“I think they resent the specter of this fugitive walking away from the case,” Weinberg said. “I think that’s natural. But the law is the law, and it would be subverting the law to have a mockery of a prosecution where the evidence has already been suppressed.

“Any reference to marijuana is gone; it can’t be talked about. That boat full of marijuana is gone, and, in a sense, the case sinks with it.”

Borris disagreed. “Let’s put it this way: The length of time that the other case has taken has made available to the prosecution new evidence.”

Harbor Municipal Court Judge Selim Franklin rejected Borris’ claim that Malley, a fugitive for years, should be held without bail, and instead allowed him released on his own recognizance.

Malley, 32, of Santa Cruz, faces up to 7 years in prison if convicted on conspiracy and drug import charges. He is alleged to have been a crew member on the boat.

The three previous defendants are Richard W. Nelson, 29; Victor Paul Lucini, 38, and David Paul Choy, 31.

Borris said Malley was sought intensively for several years, but authorities were hampered by the fact that he was not a registered driver, nor were his fingerprints on file.

Weinberg said Malley “contacted me through an intermediary to seek the dismissal of the case against him and the withdrawal of the bench warrant, which has been pending against him for almost 4 years.”

Weinberg said Malley will appear for his scheduled Jan. 17 arraignment. “He is very relieved that now he has an opportunity to address these charges from an advantageous position.”