U.S. v. Baker, No. 79-5006

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore WISDOM, AINSWORTH and RONEY; RONEY; In a case involving interstate extradition of a criminal suspect
Citation609 F.2d 134
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Abraham Leroy BAKER and James Osborne, Jr., Defendants-Appellants.
Docket NumberNo. 79-5006
Decision Date02 January 1980

Page 134

609 F.2d 134
UNITED STATES of America, Plaintiff-Appellee,
v.
Abraham Leroy BAKER and James Osborne, Jr., Defendants-Appellants.
No. 79-5006.
United States Court of Appeals,
Fifth Circuit.
Jan. 2, 1980.

Page 135

Manuel W. James, Key West, Fla., Alvin E. Entin, Ronald A. Dion, North Miami Beach, Fla., for defendants-appellants.

Jack V. Eskenazi, U. S. Atty., Paul D. Lazarus, Caridad P. Matthews, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before WISDOM, AINSWORTH and RONEY, Circuit Judges.

RONEY, Circuit Judge:

The most serious question in this case is whether the possession of 51,280 pounds of marijuana on an American flag vessel well outside the three-mile territorial jurisdiction of the United States, but within the twelve-mile "customs waters," is a crime under 21 U.S.C.A. § 841(a)(1), which proscribes the possession of marijuana with the intent to distribute. Although not without some conceptual difficulty, we hold the

Page 136

statute does prohibit such conduct, and affirm the convictions.

On a routine patrol making random administrative, documentation and safety checks, a U.S. Coast Guard cutter stopped and its officers boarded the CAPTAIN OTIS II, a shrimp boat, near Marquesas Key nine miles off the southern coast of Florida. 14 U.S.C.A. § 89(a). While being escorted through the engine room for the purpose of inspecting the bilges, fire extinguishers and oil pollution placard, a Coast Guard officer discovered some bales of marijuana. A subsequent warrantless search revealed 51,280 pounds of the forbidden substance aboard. The ship and its cargo were seized and the two crew members were arrested.

Defendant Baker was convicted on both a conspiracy count (21 U.S.C.A. § 846) and a substantive count for illegal possession with intent to distribute (21 U.S.C.A. § 841(a)(1)). Defendant Osborne was convicted only for possession with intent to distribute.

The controlling issue in the case is whether the possession with intent to distribute statute reaches beyond the three-mile limit of the "territorial sea," See United States v. Warren, 578 F.2d 1058, 1064 n.4 (5th Cir. 1978) (En banc ), into the so-called "contiguous zone," between three miles and twelve miles from the coast, an area sometimes described as the "marginal sea." United States v. Louisiana, 394 U.S. 11, 22, 89 S.Ct. 773, 22 L.Ed.2d 44 (1969); United States v. Postal, 589 F.2d 862, 869 (5th Cir. 1979), Cert. denied, --- U.S. ----, 100 S.Ct. 61, 62 L.Ed.2d 40 (1979); United States v. Warren, 578 F.2d at 1064 n.4; Restatement (Second) of Foreign Relations Law § 15, Note 1 (1965). See Ficken, The 1935 Anti-Smuggling Act Applied to Hovering Narcotics Smugglers Beyond the Contiguous Zone: An Assessment Under International Law, 29 U.Miami L.Rev. 700, 701 n.5 (1975). In this decision we accept the Government's concession that this area is regarded as part of the high seas for purposes of criminal jurisdiction. See Article 24(1) of the Convention on the Territorial Sea and the Contiguous Zone, T.I.A.S. No. 5639, 15 U.S.T. 1607, 1612, to which the United States is a party.

The issue would appear to have no constitutional implications, but rather depends on congressional intent and the statutes involved. See Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375 (1932). Since an early date, it has been recognized that Congress may attach extraterritorial effect to its penal enactments. Chief Justice Marshall noted that a nation's "power to secure itself from injury may certainly be exercised beyond the limits of its territory." Church v. Hubbart, 6 U.S. (2 Cranch) 187, 234, 2 L.Ed. 249 (1804).

The statutes in the present case are silent as to their extraterritorial application. Clearly, however, such statutes may be given extraterritorial application if the nature of the law permits it and Congress intends it. United States v. Mitchell, 553 F.2d 996, 1002 (5th Cir. 1977). Absent an express intention on the face of the statutes to do so, the exercise of that power may be inferred from the nature of the offenses and Congress' other legislative efforts to eliminate the type of crime involved.

The necessary Locus, when not specially defined, depends upon the purpose of Congress as evinced by the description and nature of the crime and upon the territorial limitations upon the power and jurisdiction of a government to punish crime under the law of nations. Crimes against private individuals or their property, like assaults, murder, burglary, larceny, robbery, arson, embezzlement and frauds of all kinds, which affect the peace and good order of the community, must of course be committed within the territorial jurisdiction of the government where it may properly exercise it. If punishment of them is to be extended to include those committed outside of the strict territorial jurisdiction, it is natural for Congress to say so in the statute, and failure to do so will negative the purpose of Congress in this regard.

Page 137

But the same rule of interpretation should not be applied to criminal statutes which are, as a class, not logically dependent on their locality for the Government's jurisdiction, but are enacted because of the right of the Government to defend itself against obstruction, or fraud wherever perpetrated, especially if committed by its own citizens, officers or agents. Some such offenses can only be committed within the territorial jurisdiction of the Government because of the local acts required to constitute them. Others are such that to limit their Locus to the strictly territorial jurisdiction would be greatly to curtail the scope and usefulness of the statute and leave open a large immunity for frauds as easily committed by citizens on the high seas and in foreign countries as at home. In such cases, Congress has not thought it necessary to make specific provision in the law that the Locus shall include the high seas and foreign countries, but allows it to be inferred from the nature of the offense.

United States v. Bowman, 260 U.S. 94, 97-98, 43 S.Ct. 39, 41, 67 L.Ed. 149 (1922).

The nature of the enactment here in question mandates an extraterritorial application under the second category described in Bowman. These two statutes are part of a comprehensive legislative scheme designed to halt drug abuse in the United States by exercising effective control over the various domestic and foreign sources of illegal drugs. Comprehensive Drug Abuse Prevention and Control Act of 1970 § 101, 21 U.S.C.A. § 801; H.R.Rep.No.1444, 91st Cong., 2d Sess. Reprinted in (1970) U.S.Code Cong. & Admin.News, pp. 4566, 4567. The power to control efforts to introduce illicit drugs into the United States from the high seas and foreign nations is a necessary incident to Congress' efforts to eradicate all illegal drug trafficking. In other instances, courts have upheld extraterritorial applications of United States law where the nature of the activities warranted a broad sweep of power. See, e. g., IIT v. Vencap,...

To continue reading

Request your trial
80 practice notes
  • United States v. Layton, No. CR-80-416 RFP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 6, 1981
    ...850-51 (9th Cir. 1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977), and cases cited therein; United States v. Baker, 609 F.2d 134, 136 (5th Cir. There are five principles under which the law of nations permits the exercise of criminal jurisdiction by a nation: territor......
  • United States v. Kaluza, No. 14–30122.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 11, 2015
    ...offense had been stated against them, did not deprive the district court of subject matter jurisdiction); see also United States v. Baker, 609 F.2d 134, 135 (5th Cir.1980) (in case hinging on whether possession with intent to distribute statute applied outside the territorial United States,......
  • United States v. Kaluza, No. 14–30122.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 11, 2015
    ...offense had been stated against them, did not deprive the district court of subject matter jurisdiction); see also United States v. Baker, 609 F.2d 134, 135 (5th Cir.1980) (in case hinging on whether possession with intent to distribute statute applied outside the territorial United States,......
  • U.S. v. Williams, No. 78-5413
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 12, 1980
    ...U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1979); United States v. Vicknair, 610 F.2d 372, 379-81 (5th Cir. 1980). 13 United States v. Baker, 609 F.2d 134, 140 (5th Cir. 1980); United States v. Warren, 578 F.2d 1058, 1065 (5th Cir. 1978) (en banc ); United States v. Odom, 526 F.2d 339, 342 (5t......
  • Request a trial to view additional results
81 cases
  • United States v. Layton, No. CR-80-416 RFP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 6, 1981
    ...850-51 (9th Cir. 1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977), and cases cited therein; United States v. Baker, 609 F.2d 134, 136 (5th Cir. There are five principles under which the law of nations permits the exercise of criminal jurisdiction by a nation: territor......
  • United States v. Kaluza, No. 14–30122.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 11, 2015
    ...offense had been stated against them, did not deprive the district court of subject matter jurisdiction); see also United States v. Baker, 609 F.2d 134, 135 (5th Cir.1980) (in case hinging on whether possession with intent to distribute statute applied outside the territorial United States,......
  • United States v. Kaluza, No. 14–30122.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 11, 2015
    ...offense had been stated against them, did not deprive the district court of subject matter jurisdiction); see also United States v. Baker, 609 F.2d 134, 135 (5th Cir.1980) (in case hinging on whether possession with intent to distribute statute applied outside the territorial United States,......
  • U.S. v. Williams, No. 78-5413
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 12, 1980
    ...U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1979); United States v. Vicknair, 610 F.2d 372, 379-81 (5th Cir. 1980). 13 United States v. Baker, 609 F.2d 134, 140 (5th Cir. 1980); United States v. Warren, 578 F.2d 1058, 1065 (5th Cir. 1978) (en banc ); United States v. Odom, 526 F.2d 339, 342 (5t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT