U.S. v. Ayo-Gonzalez

• Decision Date: 06 August 1976
• Docket Number: E-82HB,AYO-GONZALE,F-V,D,Nos. 75-3297 and 75-3873,s. 75-3297 and 75-3873
• Citation: 536 F.2d 652
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robertoefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. CUBAN VESSEL, her engines, etc., in rem., et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 652

536 F.2d 652

UNITED STATES of America, Plaintiff-Appellee, v. Roberto AYO-GONZALEZ, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

CUBAN VESSEL F-V E-82HB, her engines, etc., in rem., et al.,

Defendants-Appellants.

Nos. 75-3297 and 75-3873.

United States Court of Appeals Fifth Circuit.

Aug. 6, 1976.

Michael Krinsky, Eric Lieberman, New York City, G. Rudolph Garza, Jr., Corpus Christi, Tex. (Court-appointed), for defendants-appellants.

Edward B. McDonough, Jr., U.S. Atty., Jack Shepherd and James R. Gough, Asst. U.S. Attys., Houston, Tex., Peter R. Taft, Asst. Atty. Gen., Bruce C. Rashkow, Ralph J. Gillis, U.S. Dept. of Justice, Washington, D.C., Robert Darden, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Texas.

Before GEWIN, GODBOLD and SIMPSON, Circuit Judges.

GEWIN, Circuit Judge:

These consolidated cases present for our review the conviction of Roberto Ayo-Gonzalez, as master of the Cuban fishing vessel E-82HB, for illegally fishing in the contiguous fishing zone of the United States; and the judgment of forfeiture awarded the United States on a libel in rem charging the vessel with the same illegal act, ¹ in violation of 16 U.S.C. §§ 1081, 1082, 1091, 1092.

Section 1081 provides in pertinent part:

It is unlawful for any vessel, except a vessel of the United States, or for any master or other person in charge of such a vessel, to engage in the fisheries within the territorial waters of the United States . . . or within any waters in which the United States has the same rights in respect to fisheries as it has in its territorial waters . . . .

By sections 1091 and 1092, the United States established a fishing zone nine nautical miles in breadth, contiguous to the traditional three-mile territorial sea, in which zone it asserts "the same exclusive rights" to fishing as in the territorial sea. ² Section 1082 establishes penalties for violations. ³

In the district court, Ayo waived trial by jury, and the criminal and in rem actions were consolidated for a bench trial. The judge overruled a defense suppression motion based on alleged violation of Miranda ⁴ rights, and rejected the contention that some form of mens rea ⁵ must be proved to sustain a conviction. He ordered the vessel forfeited and found defendant Ayo guilty, sentencing him to one year unsupervised probation, with the conditions that during his probation Ayo not engage in commercial fishing and that he not enter the territorial limits of the United States. Before this court, appellant Ayo contends that the trial court committed reversible error in denying his suppression motion. It is argued on behalf of both Ayo and the vessel that mens rea is required to establish liability, or, if not, that section 1081 is unconstitutional. We affirm.

I

In the pre-dawn hours of August 2, 1975, crewmen aboard the United States Coast Guard Cutter Point Baker, which was on fisheries patrol out of Port Aransas, Texas, sighted the Cuban vessel E-82HB, an 82-foot shrimp trawler, fishing within the twelve-mile limit. Special Agent Velasco of the National Marine Fishery Service, who was on the Point Baker, directed the officer in charge to attempt to stop the Cuban vessel by using the cutter's flashing blue light, spotlight, and siren, and finally by cutting in front of her, but the vessel continued to trawl. Velasco then obtained a loud hailer and informed the Cubans in Spanish that they were fishing in United States waters in violation of the law and that they must stop engines and drop anchor. Still the vessel continued trawling, so Velasco repeated the above warning a second and a third time, whereupon a man appeared at the side of the Cuban boat and called out that he could not stop because his fishing gear was in the water. After the gear was pulled in, the vessel dropped anchor.

An attempt was made to board the Cuban vessel by jumping from the bow of the Point Baker to the stern of the E-82. At this point, defendant Ayo appeared at the rail of the Cuban vessel and requested that agent Velasco speak to his flotilla commander. Velasco told Ayo that the cutter did not have the necessary frequency, and that if Velasco were to talk to the flotilla commander, he would have to use Ayo's radio; Ayo indicated that that would be acceptable. Velasco then asked Ayo if he was the captain, and Ayo answered affirmatively. ⁶

Because of rough seas, this method of boarding proved too dangerous, so a small boat was launched from the Point Baker with a boarding party of four, and the Cuban boat was boarded at 7:00 a. m. The crew was already gathered at the stern of the trawler, and Velasco said to them, in Spanish, "I want to speak to your captain," at which point Ayo stepped forward and said he was the captain; two crew members nodded in agreement. When Velasco asked Ayo for identification, he explained that he usually served as captain of a different vessel; he had been transferred to the E-82 at sea, and had left his identification on the other ship.

Velasco and Ayo proceeded to the pilot house, where Velasco again identified himself and the boarding party, and read Ayo his Miranda rights. Ayo said that he understood his rights and wanted to speak. He told Velasco that he had very poor navigational equipment, and that he depended for navigation on a larger boat, which had radar; the E-82 had no radar, but it did have a chronometer, fathometer, sextant, compass, tables, and charts. Velasco examined Ayo's navigational aids, and then allowed Ayo to radio his flotilla commander. The commander requested that Velasco speak with him to try to reconcile the situation, but Velasco declined.

At the trial, Ayo testified that he had followed his "mother ship," which had radar, until about 1:00 a. m. on August 2, and then had separated from her and followed a course that he thought would keep him beyond the twelve-mile limit; he stated that he knew it was illegal to fish within twelve miles of the coastline. When Ayo radioed the mother ship after the boarding, he was informed that his position was 14.2 miles from the coast. ⁷

The position of the Cuban vessel was checked through numerous fixes taken by the Point Baker 's navigator. In addition, a Coast Guard aircraft confirmed the position. All checks indicated that the vessel was approximately eight miles from St. Joseph Island on the Texas coast. In addition to the catch of marine life in the trawl nets, which were pulled in just before the boat dropped anchor, the boarding party found seven baskets of headed shrimp on board.

II

For purposes of a section 1082(a) criminal prosecution, there are four elements of the offense created by section 1081: (1) that the defendant be the "master or other person in charge of" (2) a foreign vessel; and (3) that the vessel be "engag(ing) in the fisheries" (4) within the territorial waters of the United States or the nine-mile contiguous fisheries zone. ⁸ At the consolidated trial below, it was undisputed that the Cuban boat was a foreign vessel and that it was fishing, and the location of the vessel within the twelve-mile limit, although contested, was clearly established by the prosecution. As to the remaining element, the identity of Ayo as the "master," appellant contends that this was proved only by means of a statement obtained in violation of Ayo's Miranda rights.

Velasco testified that after the ship was boarded, he addressed the assembled crewmen, of whom there were nine, and stated that he wanted to speak to the captain. In response, Ayo stepped forward, two of the crew members nodded in agreement, and Ayo then affirmed verbally that he was the captain. Concededly, Velasco did not read the Miranda warnings to all of the crew before asking for the captain. Therefore, appellant argues, this evidence was impermissibly obtained and may not be considered on the question of identity. It is asserted that without this testimony, the government failed to prove an essential element. The argument is that the first statement by Ayo that he was the captain, made at the time of the unsuccessful boarding attempt, was not sufficiently trustworthy in and of itself, and that any incriminating actions or statements made by Ayo after receiving his Miranda rights were fatally tainted by the impermissibly obtained admission. We disagree.

Obviously, this case does not present the typical Miranda situation. Under ordinary circumstances, no Miranda question would arise concerning the propriety of an investigating officer establishing the identity of a suspect. The distinguishing factor here, of course, is that the identity of the defendant as master of the offending vessel is itself an essential element of the crime. Were we to find a Miranda violation here, the inevitable result would be that the Coast Guard (or other appropriate law enforcement agency) would be required, upon stopping a foreign vessel suspected of violating section 1081, to assemble all those on board the ship, read to them the Miranda warnings, and determine that all understand their rights, before attempting to ascertain who is in charge of the vessel. Perhaps it may be argued that such a result is dictated by the rationale of Miranda and subsequent cases. On the other hand, in charting a course designed to reflect constitutional policy, the courts are well-advised to accord due regard to the twin moorings of common sense and realism. Cf. United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684, 689 (1965).

We have determined that a resolution of this particular point is unnecessary on the facts of this case. In a recent decision of this Circuit, Chief Judge Brown examined "(t)he distinction between the genus of unlawful confessions and the species of involuntary or coerced unlawful confessions . . . ." Smith v. Estelle, 527 F.2d 430, 431 (5th Cir. 1976) (on petition for rehearing ...