U.S. v. Cadena, 77-5395

Citation585 F.2d 1252
Decision Date14 November 1978
Docket NumberNo. 77-5395,77-5395
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Nino Rinsi CADENA, Pedro A. Ballesteros Esquebel, Gilberto Yepes Borjas, Cesar Dela Rosa, Narciso Barba Cadena, Daniel Garcia Gomez, Efrain Carreazo Cardales, Pedro Ruiz Arrieta, Jorge Lopez Wagner, Nicanor Rivera Diaz, Alajandro Valle Mantaress, Andres Gomez Ortega, and Francisco M. Ceba Bruno, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Philip Carlton, Jr., Thomas A. Wills, Miami, Fla., for defendants-appellants.

Jack V. Eskenazi, U. S. Atty., Miami, Fla., Michael P. Sullivan, Asst. U. S. Atty., Mervyn Hamburg, Atty., Appellate Section, Crim. Div., U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellee.

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

Before SKELTON, * Senior Judge, and FAY and RUBIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

At the heart of this case lies the question: May the United States Coast Guard validly board a foreign vessel carrying contraband intended for delivery to this country while the vessel is in international waters, arrest its crew for conspiracy to violate the laws of the United States, and seize its cargo? Like the seas where the vessel was boarded, the problem is deep and shark-infested. Unlike them, the answer is not clearly charted. We voyage toward a conclusion:

I.

The United States Coast Guard boarded a freighter carrying a cargo of marijuana in international waters and arrested the thirteen Colombian crew members aboard. Their arrest was the culmination of an investigation that began two months before, when federal agents in Florida received a tip that Thomas Albernaz was seeking a vessel to rendezvous with a freighter on the high seas, to receive a large quantity of marijuana from it, and to deliver the shipment to shore in Florida. During the following weeks, Drug Enforcement Administration agents plotted with Albernaz and others to supply such a vessel. The trial of Albernaz and his co-defendants and the on-shore facts of this case are considered in a separate opinion, United States v. Rodriguez, 5 Cir. 1978, 585 F.2d 1234.

After some difficulty, the vessel, Catchalot II, which was secretly provided by the government, found the freighter, the Labrador, on the high seas, about 200 miles off the Florida coast, and signaled a pre-arranged code to it. Appellant Cadena, the master of the Labrador, and the only English-speaking person aboard, declared that he had 1000 bales of marijuana (containing 50 pounds each) to deliver and requested payment of $1000 in cash. Cadena permitted his crew members, who are also appellants herein, to unload 150 bales of the marijuana during daylight hours after protesting that he had "never done anything like this before in daylight."

The Coast Guard vessel, Dauntless, was summoned by the Catchalot II, and arrived on the scene that evening. It hailed the freighter in Spanish and English. Cadena immediately called to the Catchalot II on the Labrador's citizen band radio "Shark! Shark!", a pre-arranged warning signal indicating the presence of law enforcement officers in the vicinity. The Labrador ignored the Dauntless' signals and continued to sail away. Only after the Dauntless resorted to two three-round bursts of machine gun fire and a volley from its cannon did the freighter stop and permit the Coast Guard to board.

The boarding party found plastic and burlap sacks in the holds containing about 54 tons of marijuana. They found a 1975 Canadian registration certificate and a 1976 Colombian certificate indicating that the ship had been inspected for rats. The freighter was sailing without lights; it had shown no flag by day and it was flying none when it hove to. During the chase its crew members had been seen discarding papers and small packages into the ocean.

Appellants were convicted of both counts of a two count indictment charging a conspiracy to import marijuana into the United States in violation of 21 U.S.C. § 963 and a conspiracy to distribute marijuana within the United States in violation of 21 U.S.C. § 846. Appellants challenge those convictions on a number of grounds but focus their fire on the legality of the search and seizure of the vessel. Appellants in the companion case, United States v. Rodriguez, supra, also challenge the search.

II.

Appellants' manifold objections to the search and seizure reduce to several contentions: there was no authority, statutory or otherwise, for seizing, boarding and searching a foreign vessel in international waters; if authority existed, the search and seizure nonetheless violated the Convention on the High Seas 1 which overrides any domestic law to the contrary; the Fourth Amendment was violated because no warrant was obtained and because the lack of authority for the search and the violation of the Treaty rendered the search unreasonable for Fourth Amendment purposes. We separately consider and reject each of these theories.

A. Authority for Searching Vessels

The Coast Guard 2 is empowered to search and seize any vessel on the high seas that is subject to the jurisdiction or operation of any law of the United States. 14 U.S.C. § 89(a). 3 This provision authorizes seizures and searches of domestic vessels on the high seas. 4 United States v. Warren, 5 Cir. en banc 1978, 578 F.2d 1058; United States v. Odom, 5 Cir. 1976, 526 F.2d 339; United States v. One (1) 43 Foot Sailing Vessel "Winds Will", 5 Cir. 1976, 538 F.2d 694; United States v. Hillstrom, 5 Cir. 1976, 533 F.2d 209, Cert. denied, 1977, 429 U.S. 1038, 97 S.Ct. 734, 50 L.Ed.2d 749; Cf. United States v. Winter, 5 Cir. 1975, 509 F.2d 975, 983-984 n. 30. The Constitution does not forbid such action. See, e. g., United States v. Lee, 1927, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202; Maul v. United States, 1927, 274 U.S. 501, 47 S.Ct. 735, 71 L.Ed. 1171.

The statute is not, on its face, limited to domestic vessels or domestic waters. It contemplates that vessels on the high seas will, under some circumstances, be subject to the "jurisdiction, or to the operation of any law, of the United States," for it specifically provides for "searches, seizures, and arrests upon the high seas And waters over which the United States has jurisdiction" (emphasis added). 5 Because the Act does not further define those vessels that may be seized and searched, we must determine the scope of that clause. This requires a brief excursus into the waters of jurisdiction over the Offense, an issue that is relevant to the authority, Vel non, for the Search.

B. Jurisdiction Over the Offense

That the vessel was outside the territorial waters does not, of course, mean that it was beyond United States jurisdictional limits or the operation of domestic law. Jurisdictional and territorial limits are not co-terminous. The nation has long asserted the objective view, under which its jurisdiction extends to persons whose acts have an effect within the sovereign territory even though the acts themselves occur outside it. Ford v. United States, 1927, 273 U.S. 593, 620, 47 S.Ct. 531, 540, 71 L.Ed. 793, 805; United States v. Winter, supra, 509 F.2d at 980-982; United States v. Fernandez, 5 Cir. 1974, 496 F.2d 1294; Rivard v United States, 5 Cir. 1967, 375 F.2d 882, 886, Cert. denied, 1967, 389 U.S. 884, 88 S.Ct. 151, 19 L.Ed.2d 181; Marin v. United States, 5 Cir. 1965, 352 F.2d 174; Carmichael, At Sea with the Fourth Amendment, 32 U. Miami L. Rev. 51, 64 (1977). 6

In United States v. Winter, supra, therefore, we sustained jurisdiction over a conspiracy involving two non-resident aliens who were arrested on the high seas, had never entered the United States or its territorial limits, but had participated in a conspiracy to import marijuana into the United States by serving as crew members. 509 F.2d at 983. See also Rivard, supra. In Winter, as here, there was proof of overt acts committed within the territorial United States by at least one co-conspirator. 7 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) on whether crimes defined in the Comprehensive Drug Abuse Prevention and Control Act of 1970 8 fall within the United States special maritime and territorial jurisdiction.

C. Authority for the Search

However, because the court did not determine the validity of the search of a foreign vessel on the high seas, Winter does not sound bottom for us. Jurisdiction over the crime does not necessarily imply jurisdiction over the vessel that is being used to accomplish it.

No statute has been cited to us by the United States, despite an opportunity for reconsidering the issue, and we have found none, expressly asserting "jurisdiction" over the vessel by the United States, to be enforced either by the Coast Guard or any other domestic force. The anti-smuggling statute, 19 U.S.C. § 1701 permits the President to declare portions of the high seas to be customs enforcement areas. 9 See Ficken, Supra. Customs enforcement under 19 U.S.C. § 1581 10 extends to jurisdictional limits defined in 19 U.S.C. § 1401(j) (12 miles or as permitted by treaty). See Carmichael, Supra, at 53, n. 9, 60-61, 65-75. The "special maritime and territorial jurisdiction of the United States" set forth in 18 U.S.C. § 7 extends to the high seas, but does not cover foreign vessels. United States v. Holmes, 1820, 18 U.S. (5 Wheat.) 412, 5 L.Ed. 122. See also, United States v. Davis, 1837, C.C.D.Mass. 25 F. Cas. 786 (No. 14,932); United States v. Jackson, 1843, C.C.S.D.N.Y., 26 F. Cas. 558 (No. 15,457). None of these extends jurisdiction to a foreign vessel in the area where the Labrador was boarded, which was over 200 miles from shore.

Without aid from any other jurisdictional statute, then, the authority of the Coast Guard...

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