U.S. v. Smith

• Decision Date: 29 June 1982
• Docket Number: No. 81-1273,81-1273
• Citation: 680 F.2d 255
• Parties: UNITED STATES of America, Appellee, v. John M. SMITH, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 255

680 F.2d 255

UNITED STATES of America, Appellee, v. John M. SMITH, Defendant, Appellant.

No. 81-1273.

United States Court of Appeals First Circuit.

Argued Feb. 10, 1982.

Decided June 8, 1982.

Rehearing Denied June 29, 1982.

Ellen K. Wade, Boston, Mass., with whom Henry F. Owens, III., David C. Casey, and Owens & Associates, Boston, Mass., were on brief, for defendant, appellant.

John H. LaChance, Asst. U. S. Atty., Boston, Mass., with whom William F. Weld, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before ALDRICH and BREYER, Circuit Judges, and TORRUELLA, ^* District Judge.

TORRUELLA, District Judge.

On October 31, 1980, while on the high seas approximately one hundred miles off the Massachusetts coast, the United States Coast Guard cutter ALERT intercepted, boarded and seized the JUDITH LEE ROSE, a United States vessel, and the DIANA CECILIA, an unregistered flagless vessel, while persons aboard them were in the process of transferring a cargo of marihuana from the DIANA CECILIA to the JUDITH LEE ROSE. All persons aboard both vessels were arrested, among them Appellant John Smith (Smith), who was found on the DIANA CECILIA together with another United States citizen, Joseph Baxley (Baxley), and ten nationals of the Republic of Colombia. All ten persons arrested aboard the JUDITH LEE ROSE were citizens of the United States. Thereafter, Smith was charged with possession of marihuana with the intent to distribute (21 U.S.C. § 955a and 18 U.S.C. § 2) and conspiracy to do the same (21 U.S.C. §§ 955a and 963), and upon his trial and conviction filed the present appeal.

To begin with Smith claims that the charges against him should have been dismissed because Congress in enacting 21 U.S.C. § 955a, lacked the power to extend its criminal jurisdiction to acts committed outside the territorial waters of the United States, on non-United States vessels. In its pertinent parts, 21 U.S.C. § 955a, reads as follows:

"(a) It is unlawful for any person ... on board a vessel subject to the jurisdiction of the United States on the high seas, to knowingly or intentionally ... possess with intent to ... distribute a controlled substance." ¹

Although courts have been reluctant to give extraterritorial effect to penal statutes, United States v. Bowman, 260 U.S. 94, 98, 43 S.Ct. 39, 41, 67 L.Ed. 149 (1922), the statute presently in question clearly demonstrates that such application was intended by Congress. Not only does Subsection (a) define the offense in terms of "the high seas", but section 955a(h) provides that said statute "is intended to reach acts of possession, manufacture or distribution committed outside the territorial jurisdiction of the United States" (emphasis supplied). See also S.Rep.No. 96-855, 96th Cong. 2d Sess. (1980); H.Rep.No. 96-323, 96th Cong. 1st Sess. (1979), U.S.Code Cong. & Admin.News 1980, p. 2785. There is thus no question as to Congress' extraterritorial intentions in the enactment of Section 955a. The issue is one regarding the power to so act, in the light of recognized principles of constitutional and international law.

In the present setting Congress exercises jurisdiction over offenses committed beyond the territorial boundaries of the United States pursuant to Article I, Section 8, Clause 10 of the Constitution, which authorizes Congress "to define and punish Piracies and Felonies committed on the high seas, and offenses against the Law of Nations", and under Article III, Section 2 whereby the judiciary is invested with authority over "all cases of admiralty and maritime jurisdiction."

Under international law a state does not have jurisdiction to enforce a rule of law enacted by it unless it has jurisdiction to prescribe the conduct in question. Rivard v. United States, 375 F.2d 882 (5th Cir. 1967), cert. den. sub nom. Groleau et al. v. United States, 389 U.S. 884, 88 S.Ct. 151, 19 L.Ed.2d 181 (1967). International law recognizes five general principles whereby a sovereign may exercise this prescriptive jurisdiction: (1) territorial, wherein jurisdiction is based on the place where the offense is committed; (2) national, wherein jurisdiction is based on the nationality or national character of the offender; ² (3) protective, wherein jurisdiction is based on whether the national interest is injured; (4) universal, which amounts to physical custody of the offender; and (5) passive personal, wherein jurisdiction is based on the nationality or national character of the victim. See Rivard v. United States, supra; United States v. Pizzarusso, 388 F.2d 8, 10-11 (2nd Cir. 1968), cert. den., 392 U.S. 936, 88 S.Ct. 2306, 20 L.Ed.2d 1395 (1968); Rocha v. United States, 288 F.2d 545 (9th Cir. 1961). Our courts have also developed a sixth basis for prescriptive jurisdiction which is referred to as the objective territorial principle. United States v. Pizzarusso, supra. This principle has been defined as including acts done outside a geographic jurisdiction, but which produce detrimental effects within it. Those circumstances support the proscription and punishment of the cause of the harm as if it had been physically present where the effect takes place. Strassheim v. Daily, 221 U.S. 280, 285, 31 S.Ct. 558, 560, 55 L.Ed. 735 (1911). The objective territorial principle is distinct from the protective theory in that in the latter all the elements of the crime occur in the foreign country, and jurisdiction exists because these actions have a potentially adverse effect upon security or governmental functions, with no actual effect taking place in the country as would be required under the objective territorial principle.

Although to some extent all of the above are applicable in some degree to the present circumstances, the objective territorial principle is most in point. ³ As used in Section 955a(a) the term "vessel subject to the jurisdiction of the United States" includes "(any) vessel without nationality or (any) vessel assimilated to a vessel without nationality, in accordance with paragraph (2) of article 6 of the Convention on the High Seas, 1958." See 21 U.S.C. § 955b(d). International law, as recognized by the 1958 Convention on the High Seas (Convention) allows any state to extend its authority over a stateless ship. 13 U.S.T. 2313, T.I.A.S. No. 5200, 1958. ⁴ Since the United States has enacted the customary law of the sea by ratifying the Convention, it has authority to treat stateless vessels as if they were its own, particularly when engaged in conduct affecting United States vessels and having an effect within the jurisdiction of the United States. ⁵ United States v. CortEes, 588 F.2d 106 (5th Cir. 1979). On this last point, the facts of this case cannot be seen out of context: the marihuana was off-loaded onto a United States vessel whose crew was composed of citizens of the United States, in relatively close proximity to the coast of the United States. Although the cause of the harm is outside the territorial jurisdiction of the United States, its impact within is clear. We thus conclude that 21 U.S.C. § 955a is within the proscriptive power of the United States, as applied in the present case.

Appellant next challenges this statute on the grounds that it is "vague and overbroad and fails under the Fifth and Fourteenth Amendment." As Appellant states in his brief, "(v)oid for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed." United States v. National Dairy Corp., 372 U.S. 29, 32-33, 83 S.Ct. 594, 597-98, 9 L.Ed.2d 561 (1962). Put differently, if a statute "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden," the statute is void for vagueness. United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954).

The statute in question could hardly be more specific as to the prohibited conduct: it emphatically proscribes knowing or intentional possession of defined controlled substances aboard vessels subject to the jurisdiction of the United States with the intention of distributing the same. 21 U.S.C. § 955a. Although we are unaware of any cases deciding this issue regarding Section 955a, various courts have considered and rejected this challenge as applied to similar language in 21 U.S.C. § 841(a)(1). ⁶ United States v. Gomez-Tostado, 597 F.2d 170 (9th Cir. 1979); United States v. Martinez, 507 F.2d 58 (10th Cir. 1974); United States v. Wilkerson, 478 F.2d 813, 815-16 (8th Cir. 1973); United States v. Rodriguez-Camacho, 468 F.2d 1220, 1221 (9th Cir. 1972); United States v. Herrmann, 371 F.Supp. 343 (E.D.Wis.1974); United States v. Moses, 360 F.Supp. 301, 304 (W.D.Pa.1973). Nevertheless, Appellant contends that Section 955a infringes on his right to travel because it fails to give him notice of when "his mere presence on board the DIANA CECELIA (sic) made him criminally liable for possessing, in some constructive fashion, marijuana thereon with intent to distribute it." Put differently, Appellant contends that the statute had to specify the different kinds of possession to which Appellant could be held accountable before he could be charged for any of its different variations (i.e., actual, constructive, sole or joint). Of course this type of specificity is not required any more than it is required of the other language used in the statute, provided it is used in its commonly accepted parlance. From reading the statute in question a person of ordinary intelligence would receive fair notice that since the all-inclusive term "possession" is used, it encompasses all of the various forms whereby possession can be had of an object. See United States v. PATCO, Local 202, 678 F.2d 1 (1st Cir. 1982).

This "innocent by-stander" stance is closely related to Appellant's next bone of contention, the alleged insufficiency of the evidence and the failure of the trial court to direct a...