U.S. v. Ahumedo-Avendano, AHUMEDO-AVENDAN
| Decision Date | 03 May 1989 |
| Docket Number | AHUMEDO-AVENDAN,No. 87-5742,W,87-5742 |
| Citation | 872 F.2d 367 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Terencioynford Taylor-Walton, Henner Saktarriago Holgin, Emiro Jose Cueto-Gazabon, Gustavo Garcia-Patron, Alvaro Posada-Naves, Gabriel Mena Chaverra, Federico Segundo Cantillo-Obispo, Eduardo Flores Dominguez, Luis Vicente Suarez-De Armas, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Kathy Hamilton, Coconut Grove, Fla., for Avendano.
Blas E. Padrino, Miami, Fla., for Holgin.
Michael G. Smith, Ft. Lauderdale, Fla., for Cueto-Gazabon.
Mario S. Cano, Coral Gables, Fla., for Garcia-Patron.
Dexter W. Lehtinen, U.S. Atty., William T. Shockley, Linda Collins Hertz, and Harriett R. Galvin, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.
Fernando E. Heria, Hialeah, Fla. (court appointed), for Posada-Naves.
Jose R.E. Batista, Diaz & Batista, P.A., Hialeah, Fla. (court appointed), for Chaverra.
Yolanda Morales, P.A., Miami, Fla. (court appointed), for Cantillo-Obispo.
Ellen L. Leesfield, P.A., Coral Gables, Fla. (court appointed), for Dominguez.
Leon E. Tozo, Coconut Grove, Fla. (court appointed), for Suarez DeArmas.
Milton Hirsch, Miami, Fla. (court appointed), and Mark H. Hilde Brandt, P.A., Coral Gables, Fla., for Taylor-Walton.
Appeal from the United States District Court for the Southern District of Florida.
Before TJOFLAT and EDMONDSON, Circuit Judges, and GIBSON *, Senior Circuit Judge.
In this appeal, the defendants below challenge their convictions under 46 U.S.C. app. Sec. 1903(a), (g) & (j) (Supp. IV 1986) for possession of and conspiracy to possess on board a vessel subject to the jurisdiction of the United States more than one thousand kilograms of marijuana with intent to distribute. We affirm.
On April 1, 1987, at approximately 8:00 p.m., the U.S.S. McCloy, a United States Navy frigate, detected a vessel six to eight miles off the western coast of Jamaica in Jamaican territorial waters. The vessel was heading in a northerly direction toward the coast of Cuba, crossing at the closest point between Jamaican and Cuban territorial waters in order to minimize the length of its passage through international waters. The McCloy followed the vessel at a distance of six to ten nautical miles for the next five and one-half hours.
In the early morning hours of April 2, 1987, the vessel left Jamaican waters and entered the high seas. The waters were rough with six- to eight-foot waves. The McCloy closed to within one nautical mile of the vessel and observed that the vessel was moving too fast for the rough sea conditions and was beating heavily into the waves. Coast Guard officers stationed aboard the McCloy attempted to establish radio communication with the vessel in English, Spanish, and French. The vessel, however, failed to respond to these communications, and the McCloy closed to within one hundred yards.
The McCloy directed a spotlight at the vessel and observed that it was a fishing trawler approximately fifty to fifty-five feet in length with the name Orion I on its superstructure. Contrary to international custom, the vessel had no name or home port on its stern. No flags were being flown aboard the Orion I, even though a nation's flag is customarily flown, even at night, when a vessel is underway. Officers aboard the McCloy continued their efforts to establish communication by employing the ship's radio and loudhailer, as well as using signal flags and flashing signal lights. There was still no response from the Orion I.
Eventually, a light was turned on inside the vessel's pilothouse, revealing the presence of three men. One of these men came out of the cabin and raised a Bahamian courtesy flag. At this point, the Coast Guard officers contacted Bahamian officials to request a "Statement of No Objection," authorizing the McCloy to enforce United States laws aboard the Orion I. At approximately 4:45 a.m., after a wait of approximately one and one-half hours, the Bahamian government advised that the Orion I was not of Bahamian registry and that there was no objection to the enforcement of United States laws on board the vessel.
Coast Guard officers, using the radio and the loudhailer from a distance of approximately fifty yards and communicating in English and Spanish, then ordered the Orion I to stop and prepare to be boarded. The Orion I did not stop and bumped into the port quarter of the McCloy as the two ships proceeded parallel to each other. The Orion I then made a sharp ninety degree turn to starboard and proceeded on a course which would have caused it to collide with the port bow of the McCloy. The McCloy reversed its engines and the Orion I narrowly missed hitting the McCloy 's bow; the bow of the McCloy, however, struck the starboard quarter of the Orion I, causing minor damage to the Orion I. Immediately after this collision, one of the individuals in the pilothouse on the Orion I came outside, began putting on a life jacket, and proceeded toward the stern of the Orion I.
Coast Guard officers, using the radio and the loudhailer and communicating in English and Spanish, then informed the Orion I that if it failed to stop, shots would be fired into the vessel to force it to stop. The Orion I did not stop. The McCloy therefore proceeded to fire three short bursts of .50 caliber machine gun fire across the Orion I 's bow. The Orion I was warned to stop before and after each burst of machine gun fire and there were intervals of five minutes between each firing. Finally, after over twenty-five rounds of ammunition had been fired, the Orion I stopped its engines. The Orion I was stopped at approximately 5:30 a.m. in international waters, fifty nautical miles from Jamaica and twenty nautical miles from Cuba.
A boarding party of Coast Guard officers subsequently boarded the Orion I to check its registration and documentation. At that point, twelve men came out of the vessel's cabin, and Petty Officer Fernando Torres directed them in Spanish to assemble at the stern of the vessel. The ten appellants in this case were among these twelve individuals.
Appellant Wynford Taylor-Walton questioned Officer Torres concerning the purpose of the boarding. Officer Torres responded that the Coast Guard was there to check the documentation and registration of the vessel. Officer Torres asked to see the master of the Orion I, but none of the crew would identify the master of the vessel. The Coast Guard officers then informed the crew that they were being temporarily detained, not arrested.
Immediately after boarding the Orion I, the Coast Guard officers performed a personnel sweep, checking all man-size compartments for weapons and additional men who could pose a danger to the boarding party or the crew of the Orion I. After checking the pilothouse, captain's cabin, crew's quarters, galley and mess, the sweep team went to the hatch on the main deck to check the main hold for additional persons. They cut a rope securing a tarp over the hatch, removed one of the three unsecured hatch covers and discovered 289 bales of marijuana weighing over 21,000 pounds. The marijuana was later valued at $300 to $350 per pound for a total value in excess of $6 million.
The Orion I was then seized and its crew was arrested and transported to the McCloy. A more thorough search of the Orion I revealed what appeared to be a Honduran registration document in a chart drawer in the pilothouse. Officer Torres had not asked for the documentation because the identity of the captain had not been determined and the marijuana had been found shortly after boarding. Although Officer Torres had told Taylor-Walton that the purpose of the boarding was to check the vessel's documentation, no claim of nationality was made by the crew and none of the crew members produced any registration documents. No Honduran flag was found aboard the vessel. A torn flag which could have been the flag of Colombia, Venezuela or Ecuador was found in the pilothouse.
The McCloy transported the crew of the Orion I to the United States Naval Base at Guantanamo Bay, Cuba. A crew of Coast Guard and Navy officers were placed on board the Orion I, which followed the McCloy to Guantanamo Bay. The Coast Guard then flew the appellants from Guantanamo Bay to Opa Locka, Florida; there, they were turned over to the custody of Drug Enforcement Administration agents. The Orion I, still carrying the marijuana, was later towed by a Coast Guard cutter to the Coast Guard Base in Miami Beach, Florida.
On appeal, appellants raise two issues that we find worthy of discussion. 1
Appellants first argue that the trial court erred in refusing to dismiss their indictment for want of proper venue. The appellants in this case were convicted for violations of the Maritime Drug Law Enforcement Act, 46 U.S.C. app. Secs. 1901-1904 (Supp. IV 1986) (the MDLEA). The MDLEA contains the following venue provision:
Any person who violates this section shall be tried in the United States district court at the point of entry where that person enters the United States, or in the United States District Court of the District of Columbia.
Id. Sec. 1903(f). The parties' dispute centers on the proper definition that should be given to the term "the United States." Appellants argue that the term "the United States" encompasses the naval installation at Guantanamo Bay, which therefore was the point at which they first entered the United States; because Guantanamo Bay lies outside any judicial district, they contend that venue was proper only in the District of Columbia. The United States, on the other side, argues that Guantanamo Bay is not within the scope of the term "the United States," as used in the context of section 1903(f).
If a disputed word or phrase has no statutory definition, 2 we will look to the term's plain and ordinary meaning. See United States v. Porter, 591 F.2d 1048, 1053 (5th Cir.1...
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