U.S. v. Doe

• Decision Date: 27 February 1989
• Docket Number: Nos. 87-1620,87-1621,87-1666 and 87-1667,s. 87-1620
• Citation: 878 F.2d 1546
• Parties: UNITED STATES of America, Appellee, v. John DOE, a/k/a Lynn M. O'Brien, Defendant, Appellant. UNITED STATES of America, Appellee, v. John DOE, a/k/a Randy S. Parmeter, Defendant, Appellant. UNITED STATES of America, Appellee, v. John DOE, a/k/a Ralph Rios, Defendant, Appellant. UNITED STATES of America, Appellee, v. John DOE, a/k/a Dominic Santini, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1546

878 F.2d 1546

UNITED STATES of America, Appellee, v. John DOE, a/k/a Lynn M. O'Brien, Defendant, Appellant.

UNITED STATES of America, Appellee, v. John DOE, a/k/a Randy S. Parmeter, Defendant, Appellant.

UNITED STATES of America, Appellee, v. John DOE, a/k/a Ralph Rios, Defendant, Appellant.

UNITED STATES of America, Appellee, v. John DOE, a/k/a Dominic Santini, Defendant, Appellant.

Nos. 87-1620, 87-1621, 87-1666 and 87-1667.

United States Court of Appeals, First Circuit.

Heard Feb. 27, 1989.

Decided June 30, 1989.

Carolyn Grace, by Appointment of the Court, with whom Richard L. Nahigian, Boston, Mass., Michelle H. Blauner and Shapiro Grace & Haber, Boston, Mass., were on brief, for defendant, appellant Dominic Santini.

Jose Antonio Pagan Nieves, Rio Piedras, P.R. by Appointment of the Court, for defendant, appellant Ralph Rios.

Martha R. Reeves, by Appointment of the Court, with whom Law Office of Martha R. Reeves, Boston, Mass. was on brief, for defendant, appellant Lynn M. O'Brien.

David R. Rogers, Decatur, Ga., on brief, for defendant, appellant Randy S. Parmeter.

Antonio R. Bazan, Asst. U.S. Atty., Criminal Div., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief, for U.S.

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

BREYER, Circuit Judge.

Dominic Santini, Lynn O'Brien, Ralph Rios, and Randy Parmeter appeal their convictions for unlawfully possessing marijuana with intent to distribute it (Counts I and II). Santini also appeals his conviction for using a social security number not assigned to him (Count III). The evidence in the record indicates that on November 14, 1986, all four appellants were sailing a British-registered sailboat called the Cirrus in the Caribbean, that a U.S. Navy destroyer with Coast Guard officers aboard stopped them, that the Coast Guard sought Britain's permission to board the Cirrus, that the Cirrus maneuvered dangerously close to the destroyer, that the Cirrus caught fire and sank, that several bales of marijuana rose to the surface, and that the Coast Guard rescued and arrested the four appellants. Despite this evidence, we must reverse the convictions of these four appellants. The Government based Count I of its indictment on the wrong statute, charging the appellants with a crime they did not commit. The Government failed to prove an essential element of Count II of its indictment--American citizenship--with legally competent evidence (the only evidence presented being statements obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). And, the Government similarly failed to present sufficient evidence in respect to essential elements of the specific crime it charged in Count III.

I.

Count I

Count I of the indictment reads as follows:

On or about November 14, 1986, on board a vessel subject to the jurisdiction of the United States on the high seas, the S/V Cirrus, and within the jurisdiction of this court, ... Dominic Santini, ... Randy Parmeter, ... Ralph Rios, ... and Lynn O'Brien, the defendants herein, aiding and abetting each other did knowingly, willfully, intentionally and unlawfully possess with intent to distribute approximately 8,000 pounds of marihuana ... The district of Puerto Rico was the point of entry where said defendants entered the United States following the commission of the aforesaid offense, all in violation of Title 18 United States Code, Section 2 and Title 21 United States Code, Section 955a(a) and 955a(f).

Since 18 U.S.C. Sec. 2 (1982) simply makes those who help commit a crime (e.g., those who aid or abet) guilty as principals, and 21 U.S.C. Sec. 955a(f) (1982) says only that a person violating Sec. 955a "shall be tried in the United States district court at the point of entry," Count I, insofar as it charges a crime, charges a violation of 21 U.S.C. Sec. 955a(a) (1982).

The relevant statute, 21 U.S.C. Sec. 955a(a), reads as follows:

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

This statute makes it a crime knowingly to possess drugs with intent to distribute them on board (a) "a vessel of the United States," or (b) "a vessel subject to the jurisdiction of the United States."

The Government concedes that the Cirrus was not "a vessel of the United States." Neither is it "a vessel subject to the jurisdiction of the United States," for that phrase, as specifically defined in 21 U.S.C. Sec. 955b(d) (1982), refers only to stateless vessels and the equivalent. Since the record contains no evidence that the Cirrus falls within the statutory language setting forth the elements of the crime that the indictment charges, the district court should have granted the appellants' motion for a directed verdict of acquittal. United States v. Miller, 471 U.S. 130, 138, 105 S.Ct. 1811, 1816, 85 L.Ed.2d 99 (1985) (defendant cannot be convicted of an offense not contained in the indictment); Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); United States v. Young, 730 F.2d 221, 224 (5th Cir.1984) ("if a federal offense may be predicated upon alternative bases of jurisdiction, a defendant's conviction cannot rest upon a basis of jurisdiction different from that charged in the indictment"). United States v. Molinares-Charris, 822 F.2d 1213, 1216 (1st Cir.1987) ("Each of the four offenses in section 955a focuses on a different jurisdictional basis: the vessel's nationality, the citizenship of those on board, the waters in which the vessel sails, or that it is the United States to which the illegal cargo is intended to be imported"); United States v. Christensen, 732 F.2d 20, 23 (1st Cir.1984) ("21 U.S.C. Sec. 955a(a)-(d) state separate offenses because each section requires some factual proof not required by another").

The Government, in essence, admits it made a mistake. But, it asks us to uphold the conviction anyway on the ground that the indictment would have charged the crime it proved had the indictment referred to a new and different statute, 46 U.S.C.App. Sec. 1903(a) (Supp.1989). This new statute, using the similar words "vessel subject to the jurisdiction of the United States," defines those words differently so that they now include a "vessel registered in a foreign nation where the flag nation has consented or waived objection to the enforcement of United States law." 46 U.S.C.App. Sec. 1903(c)(1)(C). The government says that it proved this latter condition satisfied; and that its failure to refer to the correct statute is therefore "harmless error." It points to Fed.R.Crim.P. 7(c)(3) which says that

Error in the citation or its omission shall not be ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to the defendant's prejudice.

The problem with the Government's argument is that it fails to recognize that the Government made not one, but two, errors of citation. The first of these errors consists of its citation to the provision of Sec. 955a that makes it a crime to possess drugs on an American or stateless vessel, instead of referring to a different part of Sec. 955a, namely Sec. 955a(c), which (through a complicated cross-reference to an unusual definition of the words "customs waters") makes it a crime to possess drugs on a foreign vessel where the foreign nation permits U.S. prosecution. See United States v. Robinson, 843 F.2d 1, 2 (1st Cir.) ("if a foreign government 'by treaty or other arrangement' permits the United States 'to enforce [its laws] upon ... [a] vessel upon the high seas' the waters around the vessel become 'customs waters,' and 21 U.S.C. Sec. 955a(c) then forbids drug possession"), cert. denied, --- U.S. ----, 109 S.Ct. 93, 102 L.Ed.2d 69 (1988). This error is not simply an error of miscitation; it is not as if the indictment set forth a crime, but then, independently, referred to the wrong statute. Rather, the indictment charges a complete crime only through its reference to the statute. One reading it would simply think the indictment charged the crime of possessing drugs on an American or stateless vessel, not on a foreign vessel. And, as we have specifically held the two crimes are different. United States v. Molinares-Charris, supra; United States v. Christensen, supra. Thus, Rule 7(c)(3)'s "harmless error" rule does not apply. Regardless, given the fact that a defendant reading the indictment would find it impossible to know that the Government was charging a "foreign vessel/with permission" drug crime, we cannot say this mistake was "harmless," or that defendants were not "misled to their prejudice." See United States v. Miller, 471 U.S. at 138-39, 105 S.Ct. at 1816 (1984); Stirone v. United States, 361 U.S. at 217, 80 S.Ct. at 273; United States v. Santa-Manzano, 842 F.2d 1, 2-3 (1st Cir.1988).

The Government made a second error when it charged violations of 21 U.S.C. Sec. 955a itself. At the time the crime was committed, November 14, 1986, the cited statute was no longer law. Congress had amended it, and it was recodified at 46 U.S.C.App. Sec. 1903, effective November 10, 1986. Were only this second error involved, had the Government charged the correct crime but simply referred to the then amended and recodified statute making criminal the same thing, perhaps the Government could invoke Rule 7. Cf. United States v. Mena, 863 F.2d 1522, 1527 (11th Cir.1989) (although at time of indictment and of the commission of the crime, 21 U.S.C. Sec. 955a had been amended, defendants could be charged with violations of these statutes). But, Rule 7 does not apply to the more serious error we have discussed in the previous paragraph, the error of...