U.S. v. Bent-Santana

• Decision Date: 04 November 1985
• Docket Number: BENT-SANTAN,D,No. 84-5445,84-5445
• Citation: 774 F.2d 1545
• Parties: 18 Fed. R. Evid. Serv. 1270 UNITED STATES of America, Plaintiff-Appellee, v. Oscarefendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1545

774 F.2d 1545

18 Fed. R. Evid. Serv. 1270

UNITED STATES of America, Plaintiff-Appellee, v. Oscar BENT-SANTANA, Defendant-Appellant.

No. 84-5445.

United States Court of Appeals Eleventh Circuit.

Nov. 4, 1985.

Keith M. Krasnove, Margate, Fla., for Oscar Bent-Santana.

Stanley Marcus, U.S. Atty., Isaac J. Mitrani, Linda Collins Hertz, Nancy Worthington, Asst. U.S. Attys., Miami, Fla., for U.S.

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

Before JOHNSON and HENDERSON, Circuit Judges, and ALLGOOD ^*, District Judge.

JOHNSON, Circuit Judge:

We are here asked to determine what constitutes a "treaty or other arrangement" between the United States and other governments, for purposes of 19 U.S.C.A. Sec. 1401(j) (1985), sufficient to support a conviction under 21 U.S.C.A. Sec. 955a(c) (1985). We hold that assent to board and search a foreign flag vessel by a duly authorized official of that foreign government, communicated verbally or in writing to appropriate United States Department of State personnel, is adequate to meet the terms of Section 1401(j). From that holding, it follows that the judgment of the United States District Court for the Southern District of Florida must be AFFIRMED.

I. FACTS.

At 10:30 p.m. on January 24, 1984, a United States Coast Guard spotter plane observed the ship ADVENTURA, a Panamanian flag vessel, engaged in off-loading 10 miles from the coast of Great Abaco Island, Bahamas. The Coast Guard observed bales of marijuana being moved from the ADVENTURA to several smaller boats. When one of the smaller boats headed toward the Florida coast, it was kept in constant surveillance by the spotter plane and was intercepted by the Coast Guard cutter SEAHAWK 35 miles east of Florida. The SEAHAWK crew observed the hands on the small boat dumping bales of marijuana into the water. Upon boarding the boat, an American flag vessel, the Coast Guard found 14 to 17 bales of marijuana, arrested the crew and seized the boat.

The cutter then intercepted the ADVENTURA, which was headed in an easterly direction and in international waters approximately 100 miles from the United States coast, at 8:00 a.m. on January 25. The commander of the cutter, Lieutenant Bernard, radioed the captain of the ADVENTURA, the appellant Oscar Bent-Santana, and received permission to board. Bernard also radioed United States Coast Guard Command requesting that it contact the Panamanian government for permission to seize the vessel if investigation found some violation of United States law.

There is no dispute that Bent-Santana gave permission to board and inspect documents showing that the ADVENTURA was cleared by the Colombian government to travel between Baranquilla, Colombia, and Freeport, Bahamas. There is dispute as to whether the appellant also gave permission for Bernard to search the vessel, the appellant saying he authorized Bernard only to board to inspect papers, Bernard claiming the appellant twice gave him permission to "look at whatever you like." During his look around Bernard determined that a portion of the fuel tank was hollow, detected the strong odor of marijuana coming from the ventilation system, and found a marijuana stem on the deck. He thereupon ordered his crew to begin digging with pickaxes an area of "freshly painted cement" deck near the crew members' bunks; he there found a hidden hatch leading to the hollowed out portion of the fuel tank. This niche contained marijuana residue. Bernard apparently did not ask permission to dig up the deck. Upon further investigation the other fuel tank was discovered to contain several tons of marijuana.

At this point, around 9:00 a.m., the crew of the ADVENTURA were read their rights by Bernard. At 1:00 p.m. the Government of Panama communicated to United States officials its assent to the search and seizure of the boat. Bernard was notified of the consent at 5:00 p.m., at which point formal arrests were made. When the boat was one mile off the Florida coast the crew were handcuffed.

The appellant was indicted on two counts by a Grand Jury in the Southern District of Florida on February 7, 1984. The first count was conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C.A. Sec. 955a(c). The second count was for possession with intent to distribute marijuana in violation of Section 955a(c) and 18 U.S.C.A. Sec. 2. Upon appellant's motion, the magistrate dismissed the second count, though not the first, for lack of jurisdiction. The government appealed the dismissal to the district judge, claiming that the appellant did not give them notice.

At an evidentiary hearing on the motion to dismiss and on a separate motion made by appellant to suppress the evidence seized, the district court, Aronovitz, J., admitted over appellant's objection certain documents (denominated Exhibits 4, 5, and 6) regarding Panamanian consent to search and seize the ADVENTURA. These were issued by the Panamanian Office of Consular and Maritime Affairs, dated January 31, 1984, and indicated that Panama consented to the search and seizure of January 25. Judge Aronovitz also ruled that Bent-Santana could move to strike the documents at the close of the trial. During the course of the proceedings, the appellant did not make a motion to strike. He did, however, introduce one of the contested documents into evidence. At the close of the hearing, Judge Aronovitz reversed the magistrate's dismissal of the second count and denied appellant's motions to dismiss and to suppress.

Bent-Santana changed his plea to guilty on April 23, 1984. Shortly thereafter he moved to vacate the plea and dismiss the indictment upon receiving from the government, through an envelope mailed May 8, 1984, a letter from the Panamanian Consul in New York to the Coast Guard. The letter was issued on April 19 (four days before the district court ruled on the motions) but dated for mailing on April 24, (one day after the hearing) setting forth the intergovernmental understanding ¹ on United States boarding of Panamanian flag vessels.

Bent-Santana premised his motion to vacate his plea on grounds of prosecutorial misconduct for failure to turn this letter over under a Brady order that included a request for information on arrangements in effect between the United States and Panama. Officials at the United States State Department and the American Embassy in Panama had previously said that no formal arrangements existed and that cases were handled ad hoc. The appellant's counsel had not attempted to contact the Panamanian consulate. The motion was denied by the district court and on May 23, 1984, Bent-Santana entered a conditional plea agreement as to Count II preserving his right to appeal the motions he tendered below. He was sentenced by Judge Aronovitz to five years' imprisonment at Eglin Air Force Base, followed by a special parole term of ten years. Count I was dismissed on oral motion of the government.

II. JURISDICTION UNDER 21 U.S.C.A. Sec. 955a(a).

The appellant contends first that an American court is not properly seized of jurisdiction over a flag vessel of another nation in international waters under Section 955a(a). The jurisdictional reach under Section 955a is strictly a question of law. Hence it is subject to plenary review. Cathbake Inv. Co. v. Fisk Elect. Co., 700 F.2d 654, 656 (11th Cir.1983).

The statute, in subsection (a), extends jurisdiction to persons "on board a vessel of the United States, or on board a vessel subject to the jurisdiction of the United States on the high seas [if such persons] knowingly or intentionally manufacture or distribute, or ... possess with intent to manufacture or distribute a controlled substance." Subsection (b) extends this proscription to all United States citizens on board any vessel. Subsection (c) covers persons on board "any vessel within the customs waters of the United States...." "Customs waters" is defined by 19 U.S.C.A. Sec. 1401(j) and includes any "foreign vessel subject to a treaty or other arrangement between a foreign government and the United States enabling or permitting the authorities of the United States to board, examine, search, seize, or otherwise to enforce upon such vessel upon the high seas the laws of the United States...."

Bent-Santana argues that this case should be reviewed under subsection (a) rather than subsection (c), claiming that he was charged under the former, rather than the latter. From this he argues that under the terms of subsection (a) an American court would not have jurisdiction over the appellant because the statute by its terms and well-settled principles of international law does not permit jurisdiction by one nation over the flag vessels of other nations on the high seas absent consent. Whatever the merits of this contention, it is clear from the record that Bent-Santana was tried and convicted of violating Section 955a(c). Accordingly, this argument is completely misplaced.

III. JURISDICTION UNDER SECTION 955a(c).

Appellant contends that the search and seizure of the ADVENTURA was improper because it was not within the customs waters of the United States. He premises this on the claim that the consent given by the Panamanian government does not come within that contemplated by the "other arrangement" language of Section 1401(j). This too presents a question of law subject to plenary review. Cathbake, 700 F.2d at 656.

This Circuit has not yet definitively construed the language of Section 1401(j) as to the meaning of "treaty or other arrangement." The only discussion of customs waters in our jurisprudence appears to be United States v. Romero-Galue, 757 F.2d 1147 (11th Cir.1985). There this Court reversed and remanded on the "mixed question of law and fact" whether Panamanian approval conveyed through the United States State Department was sufficient to support seizure of a Panamanian ship used to smuggle marijuana. The Court reserved...