U.S. v. Cardales

• Decision Date: 03 November 1998
• Docket Number: Nos. 97-2383,97-2384 and 97-2385,s. 97-2383
• Citation: 168 F.3d 548
• Parties: UNITED STATES, Appellee, v. Manuel Julio CARDALES, Defendant, Appellant. United States, Appellee, v. Robinson Rafael Hernandez, Defendant, Appellant. United States, Appellee, v. Arkel Hawkins Peterson, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 548

168 F.3d 548

UNITED STATES, Appellee, v. Manuel Julio CARDALES, Defendant, Appellant.

United States, Appellee, v. Robinson Rafael Hernandez, Defendant, Appellant.

United States, Appellee, v. Arkel Hawkins Peterson, Defendant, Appellant.

Nos. 97-2383, 97-2384 and 97-2385.

United States Court of Appeals, First Circuit.

Heard Nov. 3, 1998.

Decided Feb. 26, 1999.

Edgardo Rodrguez-Quilichini, Assistant Federal Public Defender and Vctor P. Miranda-Corrada, by appointment of the Court, with whom Joseph C. Laws, Jr., Federal Public Defender, were on joint brief, for appellants Manuel Julio Cardales and Robinson Rafael Hernandez.

Linda Backiel for Arkel Hawkins Peterson.

Jonathan L. Marcus, Attorney, Department of Justice, with whom Guillermo Gil, United States Attorney, Timothy Faerber, Aixa Maldonado and Jose A. Quiles, Assistant United States Attorneys, were on brief, for appellee.

Before LYNCH, Circuit Judge, HALL, ^* Senior Circuit Judge, and LIPEZ, Circuit Judge.

CYNTHIA HOLCOMB HALL, Senior Circuit Judge.

Manuel Julio Cardales ("Cardales"), Robinson Rafael Hernandez ("Hernandez"), and Arkel Hawkins Peterson ("Peterson") appeal their convictions for aiding and abetting each other in the possession with intent to distribute marijuana on board a vessel subject to the jurisdiction of the United States in violation of 46 U.S.C. app. § 1903(a) and 18 U.S.C. § 2. The district court sentenced Cardales to 120 months in prison, Hernandez to 78 months in prison, and Peterson to 121 months in prison. Peterson appeals his sentence. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.

FACTS

At approximately 5:40 p.m. on May 31, 1996, a helicopter crew from the U.S.S. GROVES spotted a "go-fast" boat, the CORSICA, traveling at a very high rate of speed in waters approximately 150 miles south of Puerto Rico. The helicopter crew attempted to contact the boat by radio and by hand signal, but all efforts to communicate with the CORSICA were unsuccessful even though the CORSICA's radio was working. The defendants evaded the helicopter for over two hours, turning off the CORSICA's navigation lights when it grew dark. Eventually, the helicopter crew was able to steer the CORSICA toward the GROVES. When the defendants spotted the GROVES, they turned the CORSICA in the opposite direction and fled. When the CORSICA was close enough, the crew from the GROVES launched a rigid hull inflatable boat ("RHIB") to approach the CORSICA, but the RHIB's engine failed before it could make contact. While the crew from the GROVES launched a second RHIB, the helicopter returned to the GROVES for refueling. As a result of the first RHIB's breakdown and the helicopter's refueling, the CORSICA was out of sight for approximately fifteen minutes.

When the second boat reached the CORSICA, Peterson identified himself as the captain, and claimed the CORSICA was a Venezuelan vessel that had departed from Colombia to search for a lost boat. Peterson refused to allow the Coast Guard crew to board the CORSICA until the Venezuelan government consented. The Coast Guard crew sought authorization to board the CORSICA from Venezuela, but the Venezuelan government was unable to access the ship registry database at that time. The Shortly after the officers returned to the GROVES, lookouts on board the GROVES noticed over twenty bales floating in the water. The crew from the GROVES recovered seventeen of the bales, which contained over 1080 pounds of marijuana. The marijuana was held in cardboard boxes, wrapped in plastic and tape, and marked with a yellow dye. The officers returned to the CORSICA, reboarded pursuant to the Venezuelan government's previous consent, and conducted a second search.

Coast Guard crew boarded the CORSICA pursuant to a statement of no objection from Coast Guard headquarters, and shortly thereafter the Venezuelan government authorized the Coast Guard to board and search the CORSICA under the unverified assumption that the CORSICA was registered in Venezuela. When the officers searched the CORSICA, they noted that the CORSICA's radio was working, the forward cabin smelled of fuel, the carpet had indentations in it as if heavy objects had been resting on it, and pieces of what appeared to be burlap were woven into the carpet. However, the officers did not find any contraband, and returned to the GROVES.

During the second search, officers found packing material that matched the material found in the bales recovered by the GROVES, yellow dye stains on the carpet that matched the yellow dye markers on the marijuana, and what appeared to be a marijuana stem that tested positive for THC, a chemical found in marijuana. The officers arrested the defendants, and the CORSICA was piloted to Puerto Rico. The officer who piloted the CORSICA noticed that the CORSICA skipped across the water as he drove it, which contrasted sharply to the CORSICA's bow-heavy condition during the chase.

On June 5, 1996, the Venezuelan government notified the State Department that the CORSICA was indeed of Venezuelan registry, reauthorized the boarding and search of the CORSICA, and authorized the arrest of and application of U.S. law to the CORSICA's crew. Cardales, Hernandez, and Peterson were convicted of aiding and abetting each other in possessing with the intent to distribute marijuana while on board a vessel subject to the jurisdiction of the United States in violation of 46 U.S.C. app. § 1903(a). The defendants appealed.

DISCUSSION

I

The Maritime Drug Law Enforcement Act ("MDLEA") makes it "unlawful for any person ... on board a vessel subject to the jurisdiction of the United States ... to possess with intent to manufacture or distribute, a controlled substance." 46 U.S.C. app. § 1903(a). One of the MDLEA's definitions of a vessel subject to the jurisdiction of the United States is "a vessel registered in a foreign nation where the flag nation has consented or waived objection to the enforcement of United States law by the United States." Id. § 1903(c)(1)(C).

In this case, the defendants were convicted of aiding and abetting each other in the possession with intent to distribute marijuana on board a vessel, the CORSICA, subject to the jurisdiction of the United States. The CORSICA was registered in Venezuela, and the government of Venezuela consented to the application of United States law to the defendants. The government therefore satisfied the jurisdictional requirements of the MDLEA.

The defendants contend that the Fifth Amendment Due Process Clause requires the government to prove a nexus between their criminal conduct and the United States in a prosecution for violating the MDLEA. Although the MDLEA does not explicitly contain a domestic nexus requirement, the Ninth Circuit has read into the MDLEA a nexus requirement with respect to foreign-registered vessels. See United States v. Klimavicius-Viloria, 144 F.3d 1249, 1257 (9th Cir.1998) (requiring government to prove that offense conduct is likely to have effects in United States); United States v. Davis, 905 F.2d 245 (9th Cir.1990) (requiring sufficient nexus between criminal conduct and United States such that application of U.S. law would not be arbitrary or unfair). This nexus requirement, however, was specifically rejected by the Third Circuit. See To satisfy due process, our application of the MDLEA must not be arbitrary or fundamentally unfair. See Davis, 905 F.2d at 248-49; see also Martinez-Hidalgo, 993 F.2d at 1056. In determining whether due process is satisfied, we are guided by principles of international law. See Davis, 905 F.2d at 249 n. 2. Under the "territorial principle" of international law, a "state has jurisdiction to prescribe and enforce a rule of law in the territory of another state to the extent provided by international agreement with the other state." United States v. Robinson, 843 F.2d 1, 4 (1st Cir.1988). In Robinson, we decided that the United States had jurisdiction over a Panamanian vessel stopped over 500 miles off shore because the Panamanian government authorized the United States to apply U.S. law to the persons on board the vessel. See id. (recognizing informal authorization as valid agreement for purposes of territorial principle, and affirming conviction under 21 U.S.C. § 955a, statutory precursor to MDLEA). In this case, the Venezuelan government authorized the United States to apply United States law to the persons on board the CORSICA. Therefore, jurisdiction in this case is consistent with the territorial principle of international law.

                United States v. Martinez-Hidalgo, 993 F.2d 1052 (3d Cir.1993) (reasoning that statute does not contain nexus requirement, and that Congress intended MDLEA to override international law to extent nexus might be required). 1  We decide today that due process does not require the government to prove a nexus between a defendant's criminal conduct and the United States in a prosecution under the MDLEA when the flag nation has consented to the application of United States law to the defendants
                

In addition, under the "protective principle" of international law, a nation is permitted "to assert jurisdiction over a person whose conduct outside the nation's territory threatens the nation's security." Robinson, 843 F.2d at 3; see United States v. Romero-Galue, 757 F.2d 1147, 1154 (11th Cir.1985); United States v. Pizzarusso, 388 F.2d 8, 10 (2d Cir.) (characterizing protective principle as applying only to conduct generally recognized among nations as a crime), cert. denied, 392 U.S. 936, 88 S.Ct. 2306, 20 L.Ed.2d 1395 (1968). Consistent with this principle, Congress specifically found in the MDLEA that "trafficking in controlled substances aboard vessels is a serious international problem and is universally condemned[, and] ... presents a specific threat to the security ... of the United States." 46 U.S.C. app. § 1902. Therefore, application of the MDLEA to the defendants is consistent...