793 F.2d 1252 (11th Cir. 1986), 85-5041, United States v. Borrero-Gonzalez

Docket Nº:85-5041.
Citation:793 F.2d 1252
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Carlos BORRERO-GONZALEZ, Jesus Granja-Salazar, Jose Vallecilla-Meza, Alcides Parra-Castano, Henry Cortez-Perez, and Angel Calimeno-Gomez, Defendants-Appellees.
Case Date:July 18, 1986
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1252

793 F.2d 1252 (11th Cir. 1986)

UNITED STATES of America, Plaintiff-Appellant,

v.

Carlos BORRERO-GONZALEZ, Jesus Granja-Salazar, Jose

Vallecilla-Meza, Alcides Parra-Castano, Henry

Cortez-Perez, and Angel Calimeno-Gomez,

Defendants-Appellees.

No. 85-5041.

United States Court of Appeals, Eleventh Circuit

July 18, 1986

        Stanley Marcus, U.S. Atty., Linda Collins-Hertz, Andrea Simonton, Sonia O'Donnell, Asst. U.S. Attys., Miami, Fla., for U.S.

Page 1253

        Theodore J. Sakowitz, Federal Public Defender, Miguel Caridad, Asst. Federal Public Defender, for Borrero-Gonz.

        Appeal from the United States District Court for the Southern District of Florida; Alcee L. Hastings, Judge.

        Before GODBOLD, Chief Judge, HILL and ANDERSON, Circuit Judges.

        PER CURIAM:

        The government appeals from the dismissal of a marijuana indictment. The only issue is whether the district court erred in concluding it lacked subject matter jurisdiction because the vessel was not apprehended in United States custom waters. This circuit has addressed this issue several times since the dismissal of this action. Our decisions indicate the district court applied incorrect law.

        We therefore vacate and remand for further proceedings in light of United States v. Romero-Galue, 757 F.2d 1147 (11th Cir.1985) and United States v. Gonzalez, 776 F.2d 931 (11th Cir.1985).

        VACATED and REMANDED.

        HILL, Circuit Judge, specially concurring:

        I concur only because our panel is bound by United States v. Santa-Lara, 783 F.2d 989 (11th Cir.1986); United States v. Gonzalez, 776 F.2d 931 (11th Cir.1985); United States v. Bent-Santana, 774 F.2d 1545 (11th Cir.1985); United States v. Romero-Galue, 757 F.2d 1147 (11th Cir.1985). Our court has voted not to re-hear Santa Lara en banc.

        I am troubled by the rule of law established in these cases, which seems to me repugnant to our fundamental concepts of criminal law. This rule has the appearance of law enforcement practices in nations less sensitive to the rights of its citizens than the United States. In these cases, we approve of finding conduct to be criminal which transgresses no law until the executive elects to make it criminal and takes action toward that end. In this country, Congress has the power and duty to define what conduct is criminal. An individual is free to act, though perhaps contrary to the wishes of the government and the overwhelming but unlegislated wishes of the people, unless and until Congress has proscribed the conduct.

        The defendants in this case--and in the cases which control our decision--were charged with utterly reprehensible conduct. They were in possession of a large quantity of contraband drugs aboard a vessel in international waters near our coast and our customs waters. The quantity of contraband suffices to prove intent to distribute it. See, e.g., United States v. Ceballos, 706 F.2d 1198, 1202 (11th Cir.1983). One yearns to put a stop to their conduct in order to protect our people. Yet, the defendants' acts, by themselves, did not transgress the law for which they were indicted, 21 U.S.C. Sec. 955a(c). That statute provides that "[i]t is unlawful for any person on board any vessel within the customs waters of the United States to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance." 21 U.S.C. Sec. 955a(c) (1982) (emphasis added). The definition of "customs waters" is found in 19 U.S.C. Sec. 1401(j) (1982):

The term "customs waters" means, in the case of a foreign vessel subject to a treaty or other arrangement between a foreign government and the United States enabling or permitting the authorities of the United States to board, examine, search,...

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