U.S. v. Ayarza-Garcia, AYARZA-GARCI
| Decision Date | 22 June 1987 |
| Docket Number | No. 86-5277,AYARZA-GARCI,E,86-5277 |
| Citation | 819 F.2d 1043 |
| Parties | 23 Fed. R. Evid. Serv. 456 UNITED STATES of America, Plaintiff-Appellee, v. Carmelonrique Zuarez-Calderon, Alcadio Rafael Perez-Cardona, Jorge Ariza-Cotex, Alberto Gabriel-Lopez, Jorge Curvelo-Fuentes, Cristobal Caicedo-Angulo, Domingo Guerra-Villarreal, Daniel Montano-Ocampo, Defendants- Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
John D. Lazarus, Peggy Fisher, Miami, Fla., for Carmelo Ayarza-garcia.
Dennis G. Kainen, Miami, Fla., for Enrique Zuarez-Calderon.
Jeffrey A. Rynor, Miami, Fla., for Jorge Ariza-Cortex.
Leon E. Tozo, Coconut Grove, Fla., for Alberto Gabriel Lopez.
Jorge A. Sibila, Miami, Fla., for Jorge Curvelo-Fuentes.
Kathy Hamilton, Miami, Fla., for Cristobal Caicedo-Angulo.
Sheryl J. Lowenthal, Coral Gables, Fla., for Perez-Cardona.
Ellen L. Leesfield, Coral Gables, Fla., for Montano-Ocampo.
Jose R.E. Batista, Hialeah, Fla., for Domingo Guerra-Villareal.
Leon B. Kellner, U.S. Atty., Charles V. Senatore, David O. Leiwant, Linda C. Hertz, Asst. U.S. Attys., Miami, Fla., for the U.S.
Appeals from the United States District Court for the Southern District of Florida.
Before JOHNSON and CLARK, Circuit Judges, and MORGAN, Senior Circuit Judge.
Appellants seek reversal of their convictions for conspiracy to possess marijuana on the high seas with intent to distribute and possession of marijuana on the high seas with intent to distribute in violation of 21 U.S.C.A. Secs. 955a(a), 955c and 18 U.S.C.A. Sec. 2. Appellants assert that the district court erred in denying their motions for judgment of acquittal, in determining that the issue of the sufficiency of the evidence to establish subject matter jurisdiction was not appropriate for decision by pretrial motion to dismiss, in failing to grant Appellants' motions for severance and in denying Appellants' post-trial motions based on alleged jury impropriety without conducting an evidentiary hearing. Because we find no error in the district court's rulings on these issues, we affirm Appellants' convictions.
Appellants were nine of the ten members of the crew of the vessel Somape IV. 1 On or about December 28, 1985, the Coast Guard cutter Diligence, on routine patrol in the Yucatan Channel, picked up the Somape IV on its radar. The Somape IV was traveling in a northwesterly direction on a heading which, if continued, would cause it to come ashore at a point along the Louisiana coastline. Upon interception of the Somape IV by the Diligence approximately two hours later, the Coast Guard determined that the Somape IV was a converted fishing vessel. The vessel's name was displayed on the bow and stern, but the vessel flew no flag and bore no home port designation.
After unsuccessful attempts to hail the Somape IV by radio in both English and Spanish, the Coast Guard cutter moved closer to the vessel and contact with the vessel was attempted through use of a loudhailer, again in both English and Spanish, and by means of short blasts on the ship's whistle. Appellant Ariza-Cotex, after making one initial appearance and disappearing into the pilothouse, returned and responded to questions by the Coast Guard. According to the government's evidence, one of these questions was the nationality of the vessel, to which Ariza-Cotex responded "Colombiano." Ariza-Cotex also gave the Coast Guard permission to board the Somape IV where a subsequent search by Coast Guard officers revealed papers showing the vessel was in fact of Panamanian registry and 18,000 pounds of marijuana.
Appellants were indicted for conspiracy on the high seas to possess marijuana with intent to distribute and possession of marijuana on the high seas with intent to distribute. Appellants filed pretrial motions for severance and to dismiss for lack of subject matter jurisdiction. The district court denied the motion to sever and reserved ruling on the motion to dismiss because it determined that the jurisdictional issue was inappropriate for determination by pretrial motion. At the close of the government's case, Appellants made a motion for judgment of acquittal pursuant to Fed.R.Crim.P. 29, arguing that there was insufficient evidence to establish subject matter jurisdiction over the Somape IV, which motion was denied. Appellants did not present any evidence. The jury returned a verdict against Appellants on both counts and each Appellant was sentenced to a term of imprisonment and fined.
After the trial, one of the jurors, Charles Whited, who was a columnist for the Miami Herald, wrote a newspaper article describing the jury deliberations in Appellants' case and indicating that one juror, Robert S. Leeds, had voted for conviction "under duress." Appellants filed post-trial motions alleging, inter alia, possible jury impropriety. The district court denied these motions without an evidentiary hearing. This appeal followed.
Section 955a(a) provides in pertinent part that "[i]t is unlawful for any person on board ... a vessel subject to the jurisdiction of the United States on the high seas, ... to possess with intent to ... distribute a controlled substance." 21 U.S.C.A. Sec. 955a(a). The term "vessel subject to the jurisdiction of the United States" includes "a vessel without nationality or a vessel assimilated to a vessel without nationality, in accordance with paragraph (2) of article 6 of the Convention on the High Seas, 1958." Id. Sec. 955b(d). The Somape IV was validly registered in Panama and thus was not a vessel without nationality. Assertion of jurisdiction over the Somape IV was based on the vessel being one "assimilated to a vessel without nationality."
Under the Convention on the High Seas, a ship is required to sail under the flag of only one state and is subject to the exclusive jurisdiction of that state while on the high seas. Convention on the High Seas, Art. 6(1), opened for signature, April 29, 1958, 13 U.S.T. 2312, T.I.A.S. No. 5200. However, Article 6(2) of the Convention, incorporated into section 955b(d) as the definition of a vessel assimilated to statelessness, provides that "[a] ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality." Id. Art. 6(2). Thus, a vessel is subject to the jurisdiction of the United States under section 955b(d) even if validly registered in another country if it "sails under the authority of two or more states, and uses them according to convenience" or falsely claims a nationality other than that of the country in which it is registered. United States v. Gonzalez, 810 F.2d 1538, 1541 (11th Cir.1987) (quoting United States v. Batista, 731 F.2d 765, 767 (11th Cir.1984)); accord, United States v. Martinez, 700 F.2d 1358, 1362 (11th Cir.1983) ().
In determining whether there was sufficient evidence to establish that the Somape IV was a vessel assimilated to statelessness, the standard of review is whether, viewing the evidence in the light most favorable to the government, a reasonable trier of fact could find that the evidence established this element beyond a reasonable doubt as to each appellant. See United States v. Cole, 755 F.2d 748, 755 (11th Cir.1985). All reasonable inferences must be drawn in favor of the jury's verdict. Id.
Appellants assert that the evidence regarding Ariza-Cotex's statement that the vessel was Colombian had been substantially impeached. Appellants argue that the question to which Ariza-Cotex replied "Colombiano" had in fact been (or at least had been understood to be) "what is your nationality?" Ariza-Cotex is Colombian. In support of this theory, Appellants point to the entry from the Diligence's log relating to this conversation, which was made contemporaneously with the conversation by Petty Officer Amador, who was serving as Spanish translator in questioning Ariza-Cotex. The entry originally had stated that the person on the vessel said Colombia was his nationality, but the "his" had been crossed out by Amador's superior officer and replaced with "its" to indicate that the response referred not to Ariza-Cotex but to the vessel. Appellants also point to testimony indicating that the statement was made at a distance of 30 yards, that Ariza-Cotex spoke without amplification, and that there was engine noise from the Coast Guard cutter. There also was somewhat conflicting testimony as to whether the Coast Guard had sought a non-objection statement from Panama or from Colombia before arresting Appellants. Appellants further argue that, even assuming Ariza-Cotex did say the vessel was Colombian, this statement was insufficient to establish an intent to sail under the authority of two states, using them for convenience, particularly when made by a mere crew member rather than the captain of the vessel.
We find that there was sufficient evidence from which a reasonable jury could conclude that the Somape IV was a vessel assimilated to statelessness. Credibility choices in deciding which version of a story to believe are a matter for the jury. Cole, 755 F.2d at 755. The government need not prove that the facts of the case are inconsistent with the defense's theory of the case; the jury is free to choose among alternative reasonable constructions of the evidence. Id. The government introduced evidence that the alteration in the ship's log was to correct a grammatical error, that the log entry had been altered in other respects to correct grammatical errors, that the Coast Guard officers could hear Ariza-Cotex clearly and that the word used by Amador in asking the question regarding nationality of the vessel was "barco,"...
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