U.S. v. Marino-Garcia

• Decision Date: 09 July 1982
• Docket Number: Nos. 81-5551,82-5284,CASSALINS-GUZMA,MARINO-GARCIA and O,C,s. 81-5551
• Citation: 679 F.2d 1373
• Parties: , 1985 A.M.C. 1815 UNITED STATES of America, Plaintiff-Appellee, v. Estebanmar Chaverra, Hernan Ardila-Boyona, William G. Suarez, Valentin Torres-Camargo, Ernesto Segundo Torres-Riasco, Evelio Pauth-Arzuza, Fabian Perdoma-Cardona, Ramon Elias Reales-Morales, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellant, v. Pablo Emilioasimiro Diaz-Castillo, Carlos Espana, Alfredo Pupo-Bolano, David Rene Olaya-Betancur, Nemecia Hidalgo-Castillo, Jaime Pimienta-Perez, and Luis Estanislao Perea-Ulloa, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1373

679 F.2d 1373

73 A.L.R.Fed. 144, 1985 A.M.C. 1815

UNITED STATES of America, Plaintiff-Appellee, v. Esteban MARINO-GARCIA and Omar Chaverra, Hernan

Ardila-Boyona, William G. Suarez, Valentin Torres-Camargo,

Ernesto Segundo Torres-Riasco, Evelio Pauth-Arzuza, Fabian

Perdoma-Cardona, Ramon Elias Reales-Morales, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellant, v. Pablo Emilio CASSALINS-GUZMAN, Casimiro Diaz-Castillo, Carlos Espana, Alfredo Pupo-Bolano, David Rene

Olaya-Betancur, Nemecia Hidalgo-Castillo, Jaime

Pimienta-Perez, and Luis Estanislao Perea-Ulloa, Defendants-Appellees.

Nos. 81-5551, 82-5284.

United States Court of Appeals Eleventh Circuit.

July 9, 1982.

G. David O'Leary, Miami, Fla. (Court-Appointed), for Marino-Garcia.

Sophie Demayo, Coconut Grove, Fla., for Suarez.

Dennis N. Urbano, Coral Gables, Fla., for Torres-Camargo.

Steven H. Haguel, Miami, Fla., for Torres-Riasco.

William M. Norris, Sonia Escobio O'Donnell, Asst. U. S. Attys., Miami, Fla., for the U. S.

Kathleen A. Hamilton, Carres, Gamble & Hamilton, Coral Gables, Fla., for Pauth-Arzuza.

John Lazarus, Miami, Fla. (Court-Appointed), for Perdoma-Cardona.

Marc Cooper, Greene & Cooper, P. A., Miami, Fla., for amicus curiae (NACDL).

Flynn, Rubio & Tarkoff, Vincent Flynn, Michael H. Tarkoff, Miami, Fla., for defendants-appellees.

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

Before VANCE, JOHNSON and HENDERSON, Circuit Judges.

JOHNSON, Circuit Judge:

We are faced today with an issue of first impression. We must determine whether 21 U.S.C.A. § 955a extends the criminal jurisdiction of the United States to all stateless vessels on the high seas engaged in the distribution of controlled substances. ¹ We conclude that it does.

I.

Two cases have been consolidated for the purposes of this appeal; the facts in each are substantially identical. In United States v. Marino-Garcia, No. 81-5551, the Coast Guard cutter DEPENDABLE ² approached the vessel FOUR ROSES on the high seas 65 miles off the west coast of Cuba and 300 miles from Florida. Coast Guard officials boarded the vessel and discovered approximately 57,000 pounds of marijuana. No evidence reflected that the contraband was intended for the United States. Moreover, the FOUR ROSES was not an American ship but was instead a vessel without nationality. ³ Finally, the nine crewmen were all foreign nationals.

Coast Guard officials seized the vessel and arrested the crewmen. The crewmen were indicted for conspiracy to possess and possession of marijuana with an intent to distribute in violation of 21 U.S.C.A. § 955a. Defendants sought dismissal of the indictment. They argued that the court had no subject matter jurisdiction over stateless vessels absent proof of a nexus between the vessel and the United States. They further contended that the Government failed to allege sufficient facts necessary to establish the requisite nexus. The district court denied the motion. ⁴ After a jury trial, defendants were convicted on both counts and sentenced to varying terms of incarceration. ⁵ Defendants appeal.

In the companion case, United States v. Cassalins-Guzman, No. 82-5284, the Coast Guard cutter LIPAN encountered the vessel LADY MARK on the high seas in the vicinity of Cuba. The LIPAN forced the vessel to heave to and attempted to ascertain the LADY MARK's nationality. Crewmen on board informed personnel on the LIPAN that the vessel was registered in Colombia and that the next port of call was El Salvador. Coast Guard officials nonetheless boarded the LADY MARK to verify the nationality. The boarding party discovered approximately 20,000 pounds of marijuana on the vessel. The party also located four different national flags and $1,000 in United States currency. The boarding party did not, however, discover any evidence establishing that the crewmen of the LADY MARK intended to bring the illicit substance into the United States.

The LADY MARK defendants were all charged with conspiring to violate and violation of Section 955a. Defendants successfully moved to have the indictment dismissed. The district court assumed for purposes of the motion that the LADY MARK was a stateless vessel. ⁶ The district court concluded that the Government's failure to establish a nexus between the United States and the stateless vessel deprived the court of jurisdiction. ⁷ The Government appeals the dismissal.

II.

(a)

We consider first defendants' contention that the United States may not assert jurisdiction over stateless vessels on the high seas ⁸ under Section 955a absent proof of a nexus between this country and the vessel. Section 955a prohibits any person on board a "vessel subject to the jurisdiction of the United States" from possessing a controlled substance with the intent to distribute. ⁹ The definition of "vessel subject to the jurisdiction of the United States" specifically includes vessels without nationality. 21 U.S.C.A. § 955b(d). ¹⁰ Thus, on its face, the statute does not require that there be a nexus between stateless vessels and the United States but instead extends this country's jurisdiction to all such vessels.

The legislative history of Section 955a indicates, however, that Congress intended to extend jurisdiction only to the "maximum ... permitted under international law." S.Rep. No. 855, 96th Cong., 2d Sess. 2 (1980), U.S.Code Cong. & Admin.News 1980, p. 2785. See also H.R. 323, 96th Cong., 1st Sess. 11 (1979) (Section 955a "is designed to prohibit all acts of illicit trafficking in controlled substances on the high seas which the United States can reach under international law.") (emphasis added); 125 Cong.Rec.H. 6380 (daily ed. July 23, 1979) (statement by Congressman McCloskey) (Section 955a "provides a sound basis for the prosecution of every person and vessel ... engaged in international traffic in drugs and to the broadest extent possible under international law.") (emphasis added). Jurisdiction under Section 955a may not therefore exceed the bounds of international law. Moreover, even had the intent of Congress been less than pellucid, the Supreme Court has long admonished that "an act of congress ought never to be construed to violate the law of nations, if any other possible construction remains...." Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 117-18, 2 L.Ed. 208 (1804); accord, Weinberger v. Rossi, --- U.S. ----, ----, 102 S.Ct. 1510, 1515, 71 L.Ed. 715, 721-22 (1982). As a result we must endeavor to interpret Section 955a in a manner consistent with international law. Accordingly, we must determine whether international law imposes any substantive restrictions upon this country's right to extend jurisdiction to all stateless vessels on the high seas.

(b)

Under international law, all nations have an equal and untrammelled right to navigate on the high seas. Convention on the High Seas Art. 2, opened for signature April 29, 1958, 13 U.S.T. 2312, T.I.A.S. No. 520 (entered into force September 30, 1962); The Marianna Flora, 24 U.S. (11 Wheat) 1, 43, 6 L.Ed. 405 (1826) ("Upon the ocean, then, in time of peace, all possess an entire equality. It is the common highway of all, appropriate to the use of all; and no one can vindicate to himself a superior or exclusive prerogative there."); Le Louis, (1817) 2 Dods 210, 243-44, Eng.Rep. 1464, 1475 (1923); see also G. Mangone, The Elements of International Law 163 (1967); H. Briggs, The Law of Nations 329 (rev.ed. 1952); H. Grotius, Mare Librum (1661). To insure the principle of freedom of the seas, international law generally prohibits any country from asserting jurisdiction over foreign vessels on the high seas. ¹¹ The S.S. Lotus, (1927) P.C.I.J. ser. A, No. 10 at 25; see also G. Mangone, supra at 163; A. Higgens & C. Colombos, The International Law of the Sea § 270 at 206 (1945). Indeed, such vessels are normally considered within the exclusive jurisdiction of the country whose flag they fly. Convention on the High Seas, supra, Art. 6; United States v. Williams, 617 F.2d 1063, 1091 n.6 (5th Cir. 1980) (Roney, J. concurring); A. Higgens & C. Colombos, supra, § 255 at 194 (1945); see also United States v. Arra, 630 F.2d 836, 840 (1st Cir. 1980). ¹²

This principle is, however, subject to recognized exceptions. Jurisdiction will lie where a nexus exists between a foreign vessel and the nation seeking to assert jurisdiction. See United States v. Petrulla, 457 F.Supp. 1367, 1371 (M.D.Fla.1978). Thus, under the objective principle, a vessel engaged in illegal activity intended to have an effect in a country is amenable to that country's jurisdiction. ¹³ Similarly, the protective principle allows nations to assert jurisdiction over foreign vessels on the high seas that threaten their security or governmental functions. ¹⁴ Jurisdiction may also be obtained under the passive personality principle over persons or vessels that injure the citizens of another country. ¹⁵ Finally, all nations have jurisdiction to board and seize vessels engaged in universally prohibited activities such as the slave trade or piracy. ¹⁶

These restrictions on the right to assert jurisdiction over foreign vessels on the high seas and the concomitant exceptions have no applicability in connection with stateless vessels. Vessels without nationality are international pariahs. They have no internationally recognized right to navigate freely on the high seas. Convention on the High Seas, supra, Art. 6; United States v. Cortes, 588 F.2d 106, 109 (5th Cir. 1979); United States v. Monroy, 614 F.2d 61, 64 (5th Cir.), cert. denied, 449 U.S. 892, 101 S.Ct. 250, 66 L.Ed.2d 117 (1980); United States v. May-May, 470 F.Supp. 384, 398 (S.D.Tex.1979). Moreover, flagless vessels are frequently not subject to the laws of a flag-state. As such, they represent "floating sanctuaries from authority" and constitute a potential threat to the order and stability of navigation on the high seas. H. Meyers, The...