U.S. v. Khan, s. 93-10055

Citation35 F.3d 426
Decision Date17 November 1994
Docket NumberNos. 93-10055,93-10081 and 93-10645,93-10080,s. 93-10055
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Mohammad Waheedullah KHAN; Muhammad Hanif; Abdul Karim; Abdul Rasheed, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Glen D. Choy, Honolulu, HI, for defendant-appellant Khan.

Richard S. Kawana, Honolulu, HI, for defendants-appellants Hanif and Karim.

James Bustamante, San Francisco, CA, for defendant-appellant Rasheed.

Sharon Burnham, Asst. U.S. Atty., Honolulu, HI, for plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before: HUG, FARRIS, and O'SCANNLAIN, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We must determine whether the United States has jurisdiction over foreign nationals smuggling hashish on a foreign ship seized by the Coast Guard in international waters.

I

In May and June 1991, undercover agents of the United States Customs Service and the Federal Bureau of Investigation arranged to help a ship, the LUCKY STAR, smuggle its 70 ton load of hashish. The LUCKY STAR was registered in St. Vincent, a sovereign island nation in the British West Indies, and carried a crew from Pakistan. The agents met with the Americans in charge of the drug deal in Hawaii, San Francisco, and New York to plan the operation. They agreed to ship the drugs into Eastern Canada, for distribution in New York, Montreal, and Toronto. The back-up plan provided for shipment to California or Alaska.

On July 1, 1991, a Coast Guard detachment aboard two Navy ships intercepted the LUCKY STAR in international waters. Upon request, the LUCKY STAR's master gave the Coast Guard permission to board. The Coast Guard and a contingent of Navy personnel under Coast Guard command boarded and searched the ship, eventually finding the hashish. The Coast Guard then sought consent from St. Vincent through diplomatic channels to apply American law to the ship and crew. The Coast Guard and Navy boarding party remained on board to secure the ship while waiting for St. Vincent's response. With the master's permission, the Coast Guard directed the ship to sail toward Hawaii.

St. Vincent gave its consent on July 11, 1991. At that point, the Coast Guard arrested the crew, seized the ship, and escorted it to Hawaii.

Appellants are crew members who were charged with possession of hashish while aboard a ship subject to United States jurisdiction, pursuant to 46 App.U.S.C. Sec. 1903. On June 10, 1992, the crew members entered conditional guilty pleas preserving the right to appeal the jurisdictional issue.

II

The crew members argue that the United States did not have jurisdiction over the LUCKY STAR under 46 App.U.S.C. Sec. 1903 when the Coast Guard interdicted, boarded, and searched the ship, arrested the crew, and redirected the ship's route to Hawaii.

Section 1903(a) provides that "[i]t is unlawful for any person on board ... a vessel subject to the jurisdiction of the United States ... to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance." 46 App.U.S.C. Sec. 1903(a). A vessel subject to the United States jurisdiction includes "a vessel registered in a foreign nation where the flag nation has consented or waived objection to the enforcement of the United States law by the United States." 46 App.U.S.C. Sec. 1903(c)(1)(C). The United States does not have jurisdiction under this law unless the application of section 1903 meets the test articulated in United States v. Davis, 905 F.2d 245 (9th Cir.1990), cert. denied, 498 U.S. 1047, 111 S.Ct. 753, 112 L.Ed.2d 773 (1991). First, Congress must "make clear its intent to give extraterritorial effect to its statutes." Id. at 248. 1 Second, application of the statute must not violate due process, meaning that "there must be a sufficient nexus between the [crew members] and the United States so that such application would not be arbitrary or fundamentally unfair." Id. at 248-49. 2

A

To meet the nexus requirement, the government must show that the plan for shipping the drugs was likely to have effects in the United States. For instance, "[w]here an attempted transaction is aimed at causing criminal acts within the United States, there is a sufficient basis for the United States to exercise its jurisdiction." Id. at 249 (citation omitted). Further, "[a] sufficient nexus exists where the ship with drugs is bound ultimately for the United States." United States v. Aikins, 946 F.2d 608, 613-14 (9th Cir.1990); United States v. Gonzalez, 810 F.2d 1538, 1542 (11th Cir.1987) (sufficient nexus under section 1903's predecessor, 21 U.S.C. Sec. 955(a), requires "that the [ship's] intended destination was the United States or that the crew members' purpose was to send [the drugs] into this country") (citation omitted).

Here, the district court found that Americans controlled the movements and actions of the LUCKY STAR, that the LUCKY STAR's backup landing sites were Alaska and California, and that the primary plan called for landing in Canada and transporting the drugs overland to Montreal, Toronto, and New York. The court also found that the coordination and control of the conspiracy occurred in the United States.

These facts--most importantly, the alternative plan to land in the United States and the primary plan to transport drugs overland to New York--support a holding that there was a sufficient nexus between the LUCKY STAR and the United States. Whether the LUCKY STAR itself was to dock in the United States or whether the drugs were to be shipped overland from Canada, the purpose of the smuggling operation was to bring drugs into the United States. See Aikins, 946 F.2d at 614 ("[A]lthough the [ship] was not headed in the direction of the United States, the entire operation of off-loading was set up by an agreement that was designed to bring the off-loaded [drugs] into the United States. A sufficient nexus existed."); United States v. Peterson, 812 F.2d 486, 493 (9th Cir.1987) ("substantial evidence that the drugs were bound ultimately for the United States" supports conclusion of sufficient nexus).

The crew members contend that the evidence relied upon by the district court is not determinative because contrary evidence exists. Specifically, they maintain that the intended destination of the drugs was Canada and that there was no plan to ship to the alternative sites in the United States. This argument is of no avail. The undercover agents' testimony supports the district court's determination that the LUCKY STAR had alternative landing sites in the United States and that the drugs' final destination was New York. Therefore, the district court's findings of fact are not clearly erroneous and support the holding that a sufficient nexus exists.

B

The crew members argue that because St. Vincent's consent to the United States boarding, searching, and seizing the LUCKY STAR occurred ten days after the Coast Guard first boarded the ship, assertion of United States authority over the LUCKY STAR for those days violated due process.

The crew members offer no support for this argument. They cite no cases in which a court has held that the United States lacked jurisdiction or violated due process because the Coast Guard boarded a ship before receiving the permission of the flag nation. To the contrary, courts have upheld jurisdiction where the Coast Guard boarded first and obtained consent later. See United States v. Mena, 863 F.2d 1522, 1533 (11th Cir.) (upholding United States jurisdiction where Coast Guard boarded and searched foreign ship and arrested crew before receiving flag nation's consent), cert. denied, 493 U.S. 834, 110 S.Ct. 109, 110, 107 L.Ed.2d 72 (1989); United States v. Robinson, 843 F.2d 1, 4 (1st Cir.) (upholding United States jurisdiction under Sec. 955(a) although boarding occurred before consent obtained), cert. denied, 488 U.S. 834, 109 S.Ct. 93, 102 L.Ed.2d 69 (1988); United States v. Gonzalez, 776 F.2d 931, 934 (11th Cir.1985) (same). 3

Although the Ninth Circuit has not directly addressed the issue of the timing of consent, it is logical that the Coast Guard may seize a ship before it receives permission from the flag nation. Obtaining consent can be a lengthy process. If the Coast Guard could not hold a suspected ship while waiting, the ship would have an opportunity to escape or to destroy evidence. In this case, the Coast Guard secured the ship only to eliminate this chance of escape; it did not arrest the crew until St. Vincent consented to United States authority. For these reasons, we hold that the Coast Guard's boarding and searching of the LUCKY STAR, with the ship master's consent, before obtaining consent of the flag nation did not deprive the United States of jurisdiction.

C

Finally, the crew members argue that the United States did not have jurisdiction over the LUCKY STAR under section 1903 because the application of that statute in this case violated the Ex Post Facto Clause of the Constitution. They contend that their possession of hashish in international waters became illegal only when St. Vincent consented to the authority of United States law.

This court already has rejected this argument. Aikins, 946 F.2d at 613 ("The statute is not applied to the defendants ex post facto; although Panama gave its consent after they had set to sea, they took the risk of such consent being given."); see also Mena, 863 F.2d at 1528 ("The conduct prohibited by the statute ... was clearly defined before the defendants embarked on their voyage. Defendants accepted the risk that Honduras would consent."). Therefore, the application of United States law to the crew members was not an ex post facto violation.

III

The crew members argue that the district court should have granted their motion for discovery of the...

To continue reading

Request your trial
42 cases
  • U.S. v. Klimavicius-Viloria
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 29 Mayo 1998
    ...1055, 134 L.Ed.2d 200 (1996). In fact, in all prior cases, the district court has decided the nexus issue. See, e.g., United States v. Khan, 35 F.3d 426, 430 (9th Cir.1994) (conditional guilty plea); Davis, 905 F.2d at 249 (motion to We conclude the district court properly considered the ne......
  • U.S. v. Greer
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 14 Agosto 2000
    ...to activity that occurred prior to consent."), cert. denied, 515 U.S. 1169, 115 S.Ct. 2632, 132 L.Ed.2d 872 (1995); United States v. Khan, 35 F.3d 426, 431 (9th Cir.1994) ("[T]he timing of ... consent is irrelevant."). Cf. United States v. Aikins, 923 F.2d 650, 655 (9th Cir.1990) ("The stat......
  • Alvarez-Machain v. United States of America, 99-56762.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 3 Junio 2003
    ...10 U.S.C. §§ 371-80, we concluded that "these sections impose limits on the use of American armed forces abroad." United States v. Khan, 35 F.3d 426, 431 n.6 (9th Cir. 35. The relevant provision of the Gonzalez Act provides: The remedy against the United States provided by [the FTCA] for da......
  • United States v. Dreyer, 13-30077
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 4 Noviembre 2015
    ...active involvement in the execution of the laws,' and must not 'pervade the activities of civilian authorities.'" United States v. Khan, 35 F.3d 426, 431 (9th Cir. 1994) (quoting United States v. Yunis, 924 F.2d 1086, 1094 (D.C. Cir. 1991)). "If any one of these tests is met, the assistance......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT