Rivard v. United States

• Decision Date: 18 April 1967
• Docket Number: No. 23283.,23283.
• Citation: 375 F.2d 882
• Parties: Lucien RIVARD, Charles Emile Groleau, Julien Gagnon and Joseph Raymond Jones, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

375 F.2d 882 (1967)

Lucien RIVARD, Charles Emile Groleau, Julien Gagnon and Joseph Raymond Jones, Appellants, v. UNITED STATES of America, Appellee.

No. 23283.

United States Court of Appeals Fifth Circuit.

April 18, 1967.

C. N. Fansler, Jr., Lawrence A. Mann, Tom N. Goodwin, William C. Wright, Laredo, Tex., for appellant.

James R. Gough, Asst. U. S. Atty., William B. Butler, Asst. U. S. Atty., Woodrow Seals, U. S. Atty., Houston, Tex., for appellee.

Before TUTTLE, Chief Judge, and AINSWORTH and DYER, Circuit Judges.

DYER, Circuit Judge:

The four appellants, Rivard, Groleau, Gagnon (alias Massey) and Jones, all Canadian nationals, were indicted with three other defendants¹ and two co-conspirators not named as defendants for conspiracy to smuggle heroin into the United States in violation of 21 U.S.C.A. § 174.² Rivard was also indicted for the substantive offense of smuggling and causing to be smuggled seventy-six pounds of heroin into the United States.

Appellants raise three principal questions on this appeal. They challenge the jurisdiction of the District Court; contend that venue was improperly laid in the Southern District of Texas; and complain that there were several conspiracies rather than a single one as alleged in the indictment. We resolve all questions against the appellants and affirm all convictions.

John Michael Caron, a Canadian national named as a co-conspirator but not as a defendant in the indictment, was arrested in Laredo, Texas, in the process of smuggling seventy-six pounds of heroin into the United States from Mexico. He was indicted, arraigned and pleaded guilty to smuggling the heroin. After entering his plea Caron elected to cooperate with the United States authorities. As a result of his testimony before a Grand Jury, appellants were indicted in the Laredo division of the Southern District of Texas, extradited from Canada, and tried and convicted in the Southern District of Texas.

Since the jury has returned a verdict of guilty we must view the evidence together with all inferences reasonably and logically deducible therefrom in the light most favorable to the Government. Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Cohen v. United States, 5 Cir., 1966, 363 F.2d 321; Ruiz et al. v. United States, 5 Cir., No. 23,602, 3-24-67. A rather complete resume of the facts is necessary. At the trial Caron testified that, beginning in the spring of 1963, Massey and Jones shared an apartment in Montreal. The three of them met quite often that spring at a local underworld tavern. At one of these meetings, Massey told Caron, a well-known thief, to prepare to go to France to pick up some narcotics. Groleau met with these three in the apartment and paid Caron to go to Ottawa to get a passport. The plans were changed, however, and Rivard paid Massey and Jones to go to France instead. As Caron put Jones and his wife on board ship, Jones said that Groleau would call Caron soon and that Caron would be making a trip shortly himself.

Weeks later Groleau finally called Caron and told him to go down to the pier in Montreal, greet the returning Massey and drive to North Montreal. Massey, with sixty eight pounds of heroin, followed Caron from the pier to North Montreal where they rendezvoused with Rivard.

A week or so later Rivard sent Caron to Bridgeport, Connecticut, with the heroin where he delivered it to co-defendant Miller, a resident of Connecticut.³ Massey paid Caron $788 in advance for the trip. A week after Caron had returned to Montreal he went to Massey and Jones' apartment and met with Groleau who asked Caron if he had had a nice trip, instructed him to meet Jones who was now also returning from France and bring him to Groleau at a certain parking lot. As Jones followed Caron from the pier in the car Jones brought back from Europe, his car caught fire. Caron left the burning car and went to the designated parking lot, where Groleau was waiting, and told Groleau of the fire. Groleau contacted Rivard who immediately joined them, and the three of them drove back to the burning car and watched the fire department extinguish the blaze. Massey and Jones' wife later joined them there. As the fire burned, Jones told Caron that there was 84 pounds of heroin in the car. The fire did not destroy the heroin and a week later Massey told Caron that Rivard would contact Caron soon about making another trip to Bridgeport to take "the stuff" Jones had brought back from France. After meeting with Rivard and Massey, who told him to proceed the same way he had when taking Massey's load to Bridgeport, Caron left Montreal with his wife and four children and made the delivery in Bridgeport at the same motel to the same co-defendant Miller. Caron returned to Montreal safely, where Rivard paid him $1100 for the trip and selected Caron to make a trip to Mexico.

In October, 1963, after Jones, Massey and Caron had discussed the plans for the three of them to make trips to Europe and Mexico for Rivard in the future, Rivard sent Caron on the fateful trip to Mexico. The night before Caron left, Rivard told Caron to go to El Diplomatico Hotel in Mexico City and call someone named George, who would give Caron the heroin. The next day Rivard gave Caron some tools and tape and showed him how to place the heroin in the car by taking the front seat apart and putting the heroin into the backrest. Rivard then gave him $1500 expenses for the trip and Massey gave him maps.

When Caron reached Mexico City he registered at the hotel and contacted George, but he could not recall the password so George called Rivard in Montreal and put Caron on the line. Satisfied that he had the right man, George loaded Caron's car with the 76 pounds of heroin introduced at the trial and sent him on his way to deliver it in Connecticut at the same Bridgeport motel. Caron was apprehended when crossing the border at Laredo, Texas.

I. JURISDICTION

Under international law a state does not have jurisdiction to enforce a rule of law prescribed by it, unless it had jurisdiction to prescribe the rule. Restatement, Second, Foreign Relations Law of the United States § 7(2).⁴

It is for this reason that the mere physical presence of the four alien appellants before the court did not give the District Court jurisdiction. The question remains whether their conduct without the United States had such a deleterious effect within the United States to justify this country in prohibiting the conduct. Restatement, Second, supra § 18.

The law of nations permits the exercise of criminal jurisdiction by a nation under five general principles. They are the territorial,⁵ national,⁶ protective,⁷ universality,⁸ and passive personality⁹ principles. Rocha v. United States, 9 Cir., 1961, 288 F.2d 545; cert. den. 366 U.S. 948, 81 S.Ct. 1902, 6 L.Ed.2d 1241; United States v. Rodriquez, D.C., 182 F. Supp. 479, 487, citing Harvard Research on International Law, Part III, Jurisdiction with Respect to Crime, 1935, 29 Am. J. Int'l L. Supp. 435 at 445. All nations utilize the territorial principle, and it is under this principle that the District Court had jurisdiction over appellants. There are, however, two views as to the scope of the territorial principle. Under the subjective view, jurisdiction extends over all persons in the state and there violating its laws. Under the objective view, jurisdiction extends over all acts which take effect within the sovereign even though the author is elsewhere. Moore, Report on Extraterritorial Crime and the Cutting Case, U. S. For. Rel. 757, 770 (1887); Berge, Criminal Jurisdiction and the Territorial Principle, 30 Mich.L.Rev. 238 (1931).

A. As to the Conspiracy

The first question we are called upon to decide is whether the District Court had jurisdiction to try an alien for a conspiracy to commit a crime against the United States, formed without the United States, several of the overt acts having been committed in furtherance of the conspiracy within the United States by a co-conspirator.

In Ford v. United States, 273 U.S. 593, 47 S.Ct. 531, 71 L.Ed. 793 (1927) the Supreme Court clearly put the United States in the camp of those nations adopting the objective view of the territorial principle. In that case the defendants were also Canadian nationals. They were arrested on a British vessel outside the three mile limit of the United States and charged with conspiracy to violate the prohibition and revenue laws of the United States. At all times during the alleged conspiracy they were corporeally outside the United States. Their arrest was upheld on the basis of a treaty, and the Court's jurisdiction to try them for conspiracy was upheld on the basis that overt acts were committed within the United States by co-conspirators and the conspiracy "had for its object crime in the United States, and was carried on partly in and partly out of this country * * *." 273 U.S. at 624, 47 S.Ct. at 541.

This case presents the same situation. Rivard twice sent co-conspirator Caron across the Canadian border to deliver caches of heroin brought back from Europe by Massey and Jones to another co-conspirator, Miller, in Connecticut. Caron also travelled by automobile from Quebec to Mexico through the United States and was on his way back through the United States with yet another load of heroin to be delivered in Connecticut when he was apprehended in Texas. There is thus no doubt that the object of the conspiracy was to violate the narcotics laws of the United States; that the conspiracy was carried on partly in and partly out of this country; and that overt acts were committed within the United States by co-conspirators. In the words of Mr. Chief Justice Taft:

"* * * The conspiring was directed to violation of the United States law within the United States, by men within and without it, and everything done was at the procuration and by the agency of each for the other in pursuance of the conspiracy and the intended

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