U.S. v. Alvarez-Mena, ALVAREZ-MEN
| Decision Date | 08 July 1985 |
| Docket Number | D,No. 84-2473,ALVAREZ-MEN,84-2473 |
| Citation | 765 F.2d 1259 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Eladioefendant-Appellant. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
E. Dale Robertson, Brownsville, Tex., for defendant-appellant.
Daniel K. Hedges, U.S. Atty., Susan L. Yarbrough and James R. Gough, Asst. U.S. Attys., Houston, Tex., Mervyn Hamburg, Atty., Dept. of Justice, Washington, D.C., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before CLARK, Chief Judge, GARWOOD and DAVIS, Circuit Judges.
This appeal concerns the seizure and search by the U.S. Coast Guard of a stateless vessel on the high seas, and the arrest and subsequent prosecution of her alien crew, for violation of 21 U.S.C. section 955a(a). Appellant, one of the crew members who was neither a citizen nor resident of the United States, moved below to dismiss for lack of subject matter jurisdiction and to suppress evidence allegedly illegally obtained during the high seas search and seizure. The denial of those two motions forms the entire basis of this appeal. We determine that the motions were properly denied, and accordingly affirm.
On the morning of February 4, 1984, the United States Coast Guard cutter DURABLE was patrolling in the Yucatan channel between Mexico and Cuba. This channel is a well-known and recognized route for the transportation of illegal drugs into the United States from South and Central America. At approximately 7:00 a.m., Lieutenant George Wood, operations officer aboard the DURABLE, observed a vessel approximately seventy-five feet in length, heading in a generally northwesterly direction into the Gulf of Mexico. As the DURABLE approached the vessel, Lt. Wood noticed that it was riding low in the water, and that it had a false waterline painted on the hull. No name or home port was visible on the stern; the vessel flew no flag. There were no people visible on deck, nor any fishing gear or equipment. The vessel was equipped with several long-range radio antennas, and numerous fifty-five gallon drums were stacked on the stern. The name "LADY MAR" appeared on the bow and on the pilothouse.
Wood contacted the LADY MAR by VHF radio. The individual who replied identified himself as the navigator. He indicated that the LADY MAR's registration was Honduran, number "453"; that there were five people on board, all Honduran; that their last port of call had been Jamaica; and that the LADY MAR was destined for Tampico, Mexico. He identified the captain as "Jim Howard", and the owner as "John Smith". He claimed that the vessel carried no cargo and was traveling "in ballast". 1 However, Wood noticed that the LADY MAR was traveling low in the bow, instead of on an even keel as she would have were she actually traveling in ballast. Wood was also suspicious of the three-digit registration number, because in his experience international merchant vessels had registration numbers containing from five to eight digits or letters. He requested a verification of the registration number; the response from the LADY MAR was "543." (On a subsequent identification check, "453" was again claimed as the registration number.) During this initial radio contact, and following the LADY MAR's claim to be a Honduran vessel, Wood asked that a Honduran flag be displayed. A crewman appeared on deck and hoisted a Honduran flag on the ship's flagpole, but he attached it upside down.
A plot of the LADY MAR's path after she rounded the Yucatan peninsula showed her to be heading on a course of approximately 295 degrees true, by which she would reach landfall somewhere between Corpus Christi, Texas, and a point just south of the Rio Grande River, contradicting At approximately 10:30 a.m., the LADY MAR entered Mexican territorial waters, on a southwesterly course, away from its stated destination. The DURABLE remained outside Mexican waters, but continued tracking the LADY MAR, maintaining visual and radar contact.
the claim that her destination was Tampico. 2 Similarly, her previous course was inconsistent with the assertion that she was outbound from Jamaica. During the morning of February 4, the DURABLE requested by radio teletype that the Drug Enforcement Administration's El Paso Intelligence Center provide any available information on the LADY MAR. The response indicated that the LADY MAR was on a DEA lookout list, suspected of drug smuggling activity
During the afternoon of February 4, in response to inquiries directed through Coast Guard headquarters, the DURABLE received a communication from Coast Guard regional command indicating that the LADY MAR's claimed registration could not yet be confirmed by the Honduran government. The Honduran government granted the Coast Guard permission to board and search the LADY MAR.
By about 8:00 p.m., the LADY MAR had reentered international waters, and the DURABLE made a second approach, during which Lt. Wood observed someone inside the LADY MAR's pilothouse attempting to hold a blanket or cloth of some kind over the portholes, as if to hide something from view. Ensign Robert Birthisel smelled the odor of marihuana from his position on the bridge wing when the DURABLE was within about thirty-five feet of the LADY MAR. The DURABLE notified the LADY MAR by radio that the Honduran government had granted the Coast Guard permission to board her, whereupon the LADY MAR altered course drastically and again went into Mexican waters. Further radio communications were attempted, but the LADY MAR's responses were evasive; the same person that had previously identified himself to be the navigator, but now claimed to be the captain, indicated that permission from the Honduran government was not sufficient to permit a boarding while the LADY MAR was in Mexican waters. The DURABLE continued to track and to maintain radar contact with the LADY MAR from outside Mexican waters. During this time Wood observed white objects, which appeared to be papers, being thrown overboard from the LADY MAR; none of these were recovered.
At about 1:00 a.m. on February 5, the LADY MAR again exited Mexican waters, heading on a generally northerly course consistent with her earlier heading of 295 degrees. The DURABLE made a third approach at about 3:00 a.m., approaching the LADY MAR from her stern in darkened condition to avoid being seen. When she was very close, approximately ten yards away, the DURABLE illuminated the LADY MAR with a spotlight. The LADY MAR began making erratic movements in an attempt to evade the DURABLE, which she could not outrun. This continued for from fifteen to thirty minutes, during which time the DURABLE maintained close proximity to her, and sprayed her with water and her pilothouse windows with paint in an attempt to force her to stop. During these maneuvers, the LADY MAR deliberately rammed the DURABLE, creating an approximately ten-inch-by-ten-inch hole in DURABLE's bow. 3 The DURABLE finally threatened to use force if necessary, and ordered the LADY MAR to heave-to for boarding. Eventually, the LADY MAR complied, and her crew were ordered to the bow of the vessel. Fourteen crewmembers assembled, not the five originally indicated.
A seven-member boarding party, including Ensign Birthisel, boarded the LADY At no time during radio communications--or at any other time--did any crewmember aboard the LADY MAR claim ownership of the vessel or the cargo. The crewmembers were read their rights and placed under arrest. No registration papers, Honduran or otherwise, were found aboard the LADY MAR.
MAR 4 and conducted a "personnel sweep." 5 Birthisel entered the pilothouse of the LADY MAR, and, during a flashlight investigation, he observed in plain view objects in the hold that appeared to be bales of marihuana, visible through an open hatch situated in the space just aft of the pilothouse. He again smelled the heavy odor of marihuana. Upon subsequent inspection and testing, the bales were determined to contain marihuana, some nineteen tons in all
The United States was subsequently informed by the Honduran government that the LADY MAR was not registered in Honduras. Nor was there evidence that the LADY MAR was registered in any other country. The seizure of the LADY MAR occurred in international waters approximately five hundred to five hundred fifty miles south of Brownsville, Texas.
The fourteen crewmembers arrested aboard the LADY MAR were named in various counts of a six-count indictment, which included charges of conspiracy to possess and possession with intent to distribute approximately nineteen tons of marihuana in violation of 21 U.S.C. section 955a and 955c, and 18 U.S.C. section 2; with conspiracy to make and with making false statements in violation of 18 U.S.C. sections 2, 371, and 1001; and with willfully injuring a vessel of the United States in violation of 18 U.S.C. sections 2 and 1363. Appellant and two other defendants filed a motion to dismiss the indictment, contending that the offenses as alleged did not occur within the criminal jurisdiction of the United States. Each of these also filed a motion to suppress use of the marihuana as evidence, claiming that the search of the LADY MAR violated the Fourth Amendment, and that any evidence seized must therefore be excluded. Appellant neither is nor was a resident or citizen of the United States.
After jury selection, but before trial, appellant, among others, indicated that he wished to plead guilty. Pursuant to a plea bargain agreement, appellant pleaded guilty to a superseding criminal information that charged misprision of felony (possession of marihuana with intent to distribute in violation of section 955a) in violation of 18 U.S.C. section 4, although, pursuant to Fed.R.Crim.P. 11(a)(2) and 11(e)(1)(A), he reserved the right to appeal the court's ruling on his motions to dismiss for...
To continue reading
Request your trial
-
Singleton v. US, Civ. No. 92-1277 (JAF). Crim. No. 88-014.
...trafficking of the high seas is driven by the effect of such trafficking on the United States.1 But see, United States v. Alvarez-Mena, 765 F.2d 1259, 1267, n. 11 (5th Cir.1985) (suggestion that Congress did not intend section 955a(a) to reach a "situation where the interests of the United ......
-
U.S. v. Hsin-Yung
...of jurisdiction is valid even in the absence of a nexus between the stateless vessel and the country asserting jurisdiction. See Alvarez-Mena, 765 F.2d at 1265; United States v. Marino-Garcia, 679 F.2d 1373, 1383 (11th Cir.1982). Because the U.S. "has authority to treat stateless vessels as......
-
U.S. v. Mena
..." (emphasis in original)). See also United States v. Bent-Santana, 774 F.2d 1545, 1548-49 (11th Cir.1985); United States v. Alvarez-Mena, 765 F.2d 1259, 1264 (5th Cir.1985).In Ayarza-Garcia, however, we reached a contrary result after construing language making it "unlawful for any person .......
-
US v. Juda, CR-91-0324-CAL.
...States Constitution was not raised. Accord, United States v. Marino-Garcia, 679 F.2d 1373 (11th Cir.1982). In United States v. Alvarez-Mena, 765 F.2d 1259 (5th Cir.1985), the Fifth Circuit held that no nexus was required by statute or international law. The court discussed only internationa......