U.S. v. McPhee

Decision Date08 July 2003
Docket NumberNo. 02-12797.,02-12797.
Citation336 F.3d 1269
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Rodcliffe Hugh McPHEE, Defendant-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

Mr. Stuart Adelstein (Court-Appointed), Adelstein & Matters, David Michael Tarlow, Spencer & Klein, P.A., Miami, FL, for Defendant-Appellant.

Phillip DiRosa, Anne R. Schultz, Miami, FL, Robert B. Cornell, Fort Lauderdale, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before CARNES, MARCUS and SUHRHEINRICH*, Circuit Judges.

MARCUS, Circuit Judge:

Rodcliffe Hugh McPhee ("McPhee") appeals his 57-month sentence imposed upon his conviction for conspiracy to possess with intent to distribute 100 kilograms or more of marijuana, while on board a vessel subject to the jurisdiction of the United States, in violation of the Maritime Drug Law Enforcement Act ("MDLEA"), 46 U.S.C. app. § 1903(j). McPhee entered a conditional plea of guilty to Count One of a two-count indictment, expressly reserving the right to appeal the district court's denial of his motion to dismiss the indictment under Fed.R.Crim.P. 11(a)(2).1 On appeal, McPhee raises only the issue of whether the district court erred in finding that the vessel Notty was subject to the jurisdiction of the United States under § 1903. After thoroughly reviewing the record and the parties' briefs, we conclude that the district court did not err in finding that the Notty was a vessel subject to the jurisdiction of the United States, and accordingly affirm.

Generally, the district court's denial of a motion to dismiss an indictment is reviewed only for an abuse of discretion. See United States v. Noriega, 117 F.3d 1206, 1211 (11th Cir.1997). However, we review de novo the district court's interpretation and application of the statutory provisions concerning the court's subject matter jurisdiction, and review for clear error the district court's factual findings with respect to jurisdiction. See United States v. Tinoco, 304 F.3d 1088, 1114 (11th Cir.2002), cert. denied sub nom., Hernandez v. United States, ___ U.S. ___, 123 S.Ct. 1484, 155 L.Ed.2d 231 (2003).

The relevant facts are straightforward. On May 1, 2001, the United States Coast Guard Cutters Bear and Tampa, which had been conducting law enforcement surveillance in an area of the Caribbean Sea between eastern Cuba and the Bahamas, maneuvered into position to intercept a go-fast vessel named the Notty. When the Bear directed the Notty to heave to, the Notty increased speed and attempted to evade the Coast Guard Cutters and air surveillance. During the high-speed chase that followed, Coast Guard personnel observed the crew of the Notty throwing packages overboard as the Notty maneuvered in a zig-zag pattern. The Tampa moved into position and fired warning shots in front of the Notty, but the Notty proceeded to use evasive maneuvers for approximately twenty more minutes. Eventually, the Notty stopped and a Coast Guard party from the Bear boarded the vessel.

McPhee and two other co-defendants, Darron Lloyd Rolle and Dave Mario Williams, were found aboard the Notty. Although all three claimed Bahamian nationality and the master of the Notty claimed that the vessel was registered in the Bahamas, no registration was found on board the vessel. When inquiry directed at Bahamian authorities did not result in an affirmative and unequivocal assertion that the vessel was registered in the Bahamas, the Coast Guard deemed the vessel stateless, arrested the defendants, and brought them to Key West, Florida. The Coast Guard recovered a total of ninety-four bales of marijuana (weighing 2,092 pounds) which had been thrown overboard during the hot pursuit.

McPhee was indicted, along with the other two crew members, for conspiracy to possess marijuana with intent to distribute (Count One) and possession of marijuana with intent to distribute (Count Two) while on board a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. app. §§ 1903(j) and 1903(a).2 On October 30, 2001, McPhee and the co-defendants filed a joint motion to dismiss the indictment, challenging the government's assertion that the vessel upon which they had been apprehended was subject to the jurisdiction of the United States. They claimed, in essence, that the Notty had never left the territorial waters of the Bahamas and, therefore, that the United States did not have authority to arrest them. (McPhee and his co-defendants did not dispute that the Bahamian government could not verify that their vessel was registered in the Bahamas.) The government responded, however, that the Notty was subject to American jurisdiction because it was "without nationality," that is, it was a "stateless vessel" that had been intercepted in international waters, and, that even if the vessel had been intercepted in Bahamian waters, the Bahamas and the United States had entered into an agreement that allowed the United States to exercise jurisdiction over stateless vessels located more than three miles from Bahamian land.

Soon thereafter, on November 30, 2001, the district court conducted an evidentiary hearing on the motion to dismiss and, at the conclusion of the hearing, invited the parties to supplement their pleadings in support of their positions. On December 26, 2001, the district court denied the defendants' motion, finding that the Notty was indeed subject to the jurisdiction of the United States because it was a vessel without nationality seized in international waters, and that, in any event, the Bahamian Government consented to enforcement of American law by the United States in Bahamian territorial waters. See 46 U.S.C. app. § 1903(f) ("All jurisdictional issues arising under this chapter are preliminary questions of law to be determined solely by the trial judge."); see also Tinoco, 304 F.3d at 1111-12 (holding that 46 U.S.C. app. § 1903, which allows the court to decide whether the MDLEA's jurisdiction and venue requirements are met as a matter of law, does not violate defendant's due process or jury trial rights). After the denial of this motion, as noted, McPhee entered a conditional plea of guilty to Count One. This appeal ensued.

McPhee urges that the statutory requirements for subject matter jurisdiction imposed by 46 U.S.C. app. § 1903(c)(1)(E)3 were not met because, at the time of the seizure, the Notty was located within the territorial of waters of the Bahamas, and, the Bahamian Government had not consented to the enforcement of American law by the United States in its territorial waters. We need only decide one issue today — whether, at the time of seizure, the Notty was a stateless vessel located within international waters. Because we are satisfied that it was, the Notty was a vessel subject to the jurisdiction of the United States, and accordingly, we need not answer the more difficult questions of whether the Bahamian Government consented to the enforcement of American law by the United States in the territorial waters of the Bahamas, or whether the United States had jurisdiction to seize a stateless vessel without consent, within Bahamian territorial waters.4

In United States v. Marino-Garcia, we concluded that "international law permits any nation to subject stateless vessels on the high seas to its jurisdiction," and, consequently, that "all persons aboard vessels engaged in drug trafficking that [fail] to unmistakably accede to the authority of a single sovereign while traversing the high seas [are] subject to the criminal jurisdiction of the United States."5 679 F.2d 1373, 1383-84 (11th Cir.1982); see also 33 C.F.R. § 2.05-1 (defining "high seas" (with exceptions not relevant here) as "all waters which are neither territorial seas nor internal waters of the United States or of any foreign country"); 33 C.F.R. § 2.05-5(b) (defining "territorial seas" of foreign countries as "waters within the belt that is adjacent to its coast and whose breadth and baseline are recognized by the United States"). The United States generally recognizes the territorial seas of foreign nations up to twelve nautical miles adjacent to recognized foreign coasts. See United States: Proclamation on an Exclusive Economic Zone, 22 I.L.M. 461, 462 (March 10, 1983) ("The United States will respect only those territorial sea claims of others in excess of 3 nautical miles, to a maximum of 12 nautical miles, which accord to the U.S. its full rights under international law in the territorial sea."); United States Ocean Policy, Statement by President Reagan, 22 I.L.M. 464, 464 (March 10, 1983) ("[T]he United States will recognize the rights of other states in the waters off their coasts, as reflected in the [United Nations Convention on the Law of the Sea], so long as the rights and freedoms of the United States and others under international law are recognized by such coastal states."); see also United Nations Convention on the Law of the Sea, Dec. 10, 1982, 21 I.L.M. 1245, 1272, Part II § 2, Art. 3 ("Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.").6

McPhee offers two arguments in support of his claim that the Notty was in Bahamian territorial waters at the time of its seizure and his arrest. First, he says that the district court clearly erred in finding the coordinates plotted by Lieutenant Thomas F. Walsh on the Tampa's navigation chart, Government Exhibit 1, to be the most accurate source of information regarding the position of the Tampa at the time the Notty was boarded. He suggests that the district court wrongly accepted the chart, which placed the Notty approximately 17 miles east of Cay Santo Domingo and in international waters at the time it was boarded, over two other sources of information about the Notty's location: the Law Enforcement...

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