509 F.2d 975 (5th Cir. 1975), 73--2236, United States v. Winter

Docket Nº:73--2236.
Citation:509 F.2d 975
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Aston WINTER, Howard Charles Towne, Stanton Davis and William Michael Parks, Defendants-Appellants.
Case Date:March 13, 1975
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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509 F.2d 975 (5th Cir. 1975)

UNITED STATES of America, Plaintiff-Appellee,

v.

Aston WINTER, Howard Charles Towne, Stanton Davis and

William Michael Parks, Defendants-Appellants.

No. 73--2236.

United States Court of Appeals, Fifth Circuit

March 13, 1975

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[Copyrighted Material Omitted]

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Robert W. Rust, U.S. Atty., Jerome B. Ullman, Jr., Don R. Boswell, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Jack V. Eskenazi, Federal Public Defender, Michael Doddo, Asst. Federal Public Defender, Miami, Fla. (Court-appointed not under ACT), for Winter.

David B. Javits, Max P. Engel, Miami, Fla., for Towne.

George D. Gold, Miami, Fla. (Court-appointed), for Davis.

Melvyn Kessler, Miami, Fla., for Parks.

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

Before BROWN, Chief Judge, and GODBOLD and SIMPSON, Circuit Judges.

JOHN R. BROWN, Chief Judge:

On March 8, 1973, at a point on the high seas approximately 35 miles from the coast of Florida and 11.9 miles from the nearest island of the Bahamas, 1 United States Coast Guard officers boarded the American owned M/V Big L which at the time was being towed by the American owned M/V Adventurer III and promptly located over a half a ton of marijuana which they knew to be aboard. The four members of the M/V Big L's crew, appellants Winter and Davis (both Jamaican nationals), appellant Towne (an American citizen) and co-defendant Saunders 2 (a Bahamian national) were immediately arrested and brought into the Southern District of Florida. Appellant Parks (an American citizen) was arrested the following morning when he was found concealed aboard M/V Adventurer III in Miami.

Appellants entered pleas of nolo contendere to an indictment pursuant to 21 U.S.C.A. §§ 952(a) 3 and 963 4 charging them with conspiring to import 1,130 pounds of marijuana, a schedule I controlled substance, into the United States. 5

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Appellants are before us challenging alleged defects in the trial court's jurisdiction over their persons and over the crime. 6 Through separate briefs and oral argument, appellants raise a variety of theories each incorporated by reference by the rest. 7

Essentially, however, the following challenges of significance are presented.

(1) Were the Jamaican nationals, Winter and Davis, charged with a crime over which the District Court had jurisdiction assuming that they were arrested beyond the territory of the United States, were not alleged to have been within the United States during the pendency of the conspiracy and all the overt acts alleged in the indictment related solely to the conduct within the United States of appellant Parks, an American citizen?

(2) May either the Jamaican appellants or the Americans challenge the District Court's jurisdiction over their persons on the ground that they were unlawfully brought within the Court's territorial jurisdiction following an illegal arrest by the Coast Guard?

(3) Were any of the appellants, most particularly Parks, misled into believing that they would be permitted to appeal non-jurisdictional aspects of the District Court's denial of the motion to suppress in contradiction to our decisions in United States v. Sepe, 5 Cir., 1973, 486 F.2d 1044 (en banc) affirming 474 F.2d 784; United States v. Mizell, 5 Cir., 1973, 488 F.2d 97? 8

After indictment, appellants entered pleas of not guilty and moved to dismiss the indictment for a lack of jurisdiction over their persons and the crime and to suppress the contraband seized aboard M/V Big L. The facts we set out were adduced by stipulation and testimony at the hearings before the District Court on the motions to dismiss for want of jurisdiction and to suppress and upon the entry of the pleas.

Smuggling By The High Seas

On January 3, 1973 an individual named 'Dave' and Michael Force (aka Michael Parks) approached Roy Warren in Miami and offered to pay him $15,000.00, $2,500.00 in advance, for the use of his boat M/V Adventurer III to import a load of marijuana into the United States from Jamaica Shortly thereafter, Warren contacted the Bureau of Narcotics and Dangerous Drugs (BNDD) and informed them of the offer. The BNDD advised Warren to cooperate, assisted him in making necessary alterations 9 to his boat and provided him with certain navigational equipment required by the enterprise. Not content with assisting in the role of one who victuals and supplies, the Government engaged in manning,

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cf. 46 U.S.C.A. § 186, by supplying two BNDD undercover agents to accompany Warren on the voyage as members of the crew.

The Scene Shifts To Land

Once in Jamaica, Warren met Parks and accompanied him into the hills where he was introduced to a number of Jamaicans, including an individual known as 'Louis' (aka Stanton Davis), who was allegedly involved in 'putting the load together.' During the course of the enterprise, Warren kept in close contact with supervisory officials of the BNDD. Warren relayed the message that the boat was loaded and ready to go. 10

Back To The High Seas

On Monday, March 5, BNDD agent Cooke received another call from Warren from Grand Cayman in the Bahamas, informing him that they were proceeding with one and one-half to two tons of marijuana on board as well as with 'Louis' and another Jamaican who were returning with them to the United States. 11 Warren further informed Cooke that after refueling on Wednes day or Thursday, M/V Adventurer III would rendezvous at dusk with a 38 foot fishing vessel from Ft. Lauderdale called M/V Big L in the vicinity of Riding Rocks 12 and that the marijuana would be transferred to that vessel. 13

Seagoing Surveillance And Boarding

From time to time on the 7th and the 8th, the BNDD maintained aerial surveillance of both vessels while they were tracked by radar from C/G cutter Dauntless. Between 7:30 and 9:30 on the 8th, Warren informed the BNDD agents aboard C/G Dauntless by radio that the contraband and the two Jamaicans had been transferred to M/V Big L. Approximately 30 minutes later, Warren radioed that M/V Big L had developed engine trouble and had been taken under two by M/V Adventurer III.

Shortly thereafter the C/G Dauntless accosted the vessels. By stipulation, the position of the vessels at the time of the encounter was 35 miles from the closest point on the Florida coast and 11.9 miles from North Cat Cay, the closest point in the Bahamas. 14

Upon boarding M/V Big L, the Coast Guard officers and BNDD agents ordered the four individuals aboard to move toward the afterend of the boat. In the process of checking the hold for further crew members, a BNDD agent, to no one's great surprise, located the contraband.

The Conspiracy Terminates

The four individuals found aboard M/V Big L were immediately placed under arrest, 15 Parks was arrested the following morning aboard M/V Adventurer III, and all were thereafter indicted in the Southern District of Florida. The enterprise was ended.

Plea Bargaining

Defendants' motions to dismiss and suppress were denied. The government disclosed that it intended to use three confidential informers and agreed to make them available to defense counsel for questioning. Apparently after having

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interviewed at least one of these informers, defense counsel entered into plea negotiations with the government.

At a hearing before the Court on April 23, 1973 all defendants agreed to enter pleas of nolo contendere. In exchange the government promised to make specific sentencing recommendations to the Court. Before accepting the pleas, the District Court carefully instructed the defendants that while a plea of nolo contendere would constitute a waiver of all non-jurisdictional defects, challenges to the Court's jurisdiction could still be pursued on appeal. 16 After accepting the pleas, the Court sentenced Parks to three years, Davis to 18 months, Towne to 9 months, Winter to 6 months, and Saunders to 18 months. 17

Jurisdiction Over The Crime

The Jamaican appellants, Winter and Davis, were arrested on the high seas 35 miles from the coast of Florida aboard a small vessel carrying over a half ton of marijuana. We will assume, as contended by these appellants, that the boarding and arrests occurred beyond the territorial boundaries of the United States. 18 There has been no contention that either the contraband or the alien defendants were present within the territorial limits of the United States prior to the involuntary termination of the conspiracy. All three overt acts alleged in the indictment related solely to the conduct of American appellant Parks within the state of Florida which took place prior to the events on the high seas. 19

Under these circumstances did the indictment and stipulated facts state a crime against the United States over which the District Court had jurisdiction in regard to Jamaican nationals Winter and Davis? A survey of the precedent compels us to answer affirmatively.

In Strassheim v. Daily, 1910, 221 U.S. 280, 31 S.Ct. 558, 55 L.Ed. 735, the Court was faced with the question of whether Daily of Chicago, Illinois was properly extraditable to Michigan as a fugitive from justice, having been indicted in Michigan for bribery and obtaining money from the state on false pretenses. Acting in concert with Michigan state officials, Daily was alleged to have sold old machinery to the state, while willfully misrepresenting it was new. Assuming at the outset that Daily had not personally committed any pertinent act within the territory of Michigan, Justice Holmes, writing for a unanimous court, observed that:

If a jury should believe the evidence, and find that Daily did the acts that led Armstrong to betray his trust, deceived...

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