U.S. v. Chen, 92-50210
| Decision Date | 23 August 1993 |
| Docket Number | No. 92-50210,92-50210 |
| Citation | 2 F.3d 330 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Chong-Biao CHEN; Ok Son Chen, aka Debbie Chin; Xue Duan Chen; Guan Chong Chen; Rong Hua Chen; Kan Chong Chen; Kong Gian Chen; Jia Zhun Chen, aka Chong Tia Chen; Ping Xae Chen, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
George S. Cardona, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellant.
William J. Genego, Santa Monica, CA, Alan I. Rubin, Epstein, Adelson & Rubin, Morton H. Boren, Hauptman & Boren, Los Angeles, CA, argued and on the briefs; Vicki I. Podberesky, Nasatir & Hirsch, Santa Monica, CA, Marvin W. Granger and Hari S. Lal, Lal & Brahmbhatt, Anaheim, CA, Michael Artan, Los Angeles, CA, Anna Ho, Torrance, CA, David R. Reed, Beverly Hills, CA, on the brief for the defendants-appellees.
Appeal from the United States District Court for the Central District of California, Terry J. Hatter, Jr., District Judge, Presiding.
Before: WALLACE, Chief Judge, SNEED and HALL, Circuit Judges.
The government appeals from the district court's judgment dismissing the indictment charging nine defendants with conspiracy to smuggle aliens into the United States in violation of 18 U.S.C. Sec. 371 and 8 U.S.C. Sec. 1324(a)(1). The district court claimed authority to dismiss the indictment pursuant to its supervisory powers because it determined that agents of the Immigration and Naturalization Service (INS) acted outside their statutory authority by conducting an undercover investigation in international waters. The district court exercised jurisdiction pursuant to 18 U.S.C. Sec. 3231. We have jurisdiction over the government's timely appeal under 18 U.S.C. Sec. 3731, and we reverse and remand.
In July 1991, a confidential informant contacted the INS regarding two persons--Chong-Biao Chen and Ok Son Chen, both defendants in this case--who had asked the informant about renting a boat for the purpose of meeting a Chinese ship, the Li Munn, off the coast of California and transporting 20 Chinese persons from the Li Munn to the United States mainland. The INS then began an undercover investigation into possible violations of the immigration laws.
With INS approval, the informant twice met with Chong-Biao and Ok Son and settled on a price of $50,000 for a captain and a boat capable of transporting 80 Chinese persons from a point about 100 miles offshore. Chong-Biao and Ok Son gave the informant a New York telephone pager number and told him to contact them when he located a boat suitable for the charter; they then returned to New York.
On instructions from the INS, the informant located a suitable boat, the Corinthian. The informant contacted Chong-Biao and Ok Son, and during a series of telephone conversations it was agreed that they would charter the Corinthian along with her captain and crew. The INS intended to include undercover agents posing as crew members.
On August 21, 1991, the Undercover Operations Review Committee of the United States Department of Justice (Review Committee) authorized the INS agents to proceed with the proposed undercover operation involving the use of the Corinthian in international waters.
On August 23, three defendants met on the Corinthian with the informant and an undercover INS agent posing as the boat's owner. Several other INS agents were present in the guise of crew members. These defendants informed the INS agents that they were to meet with a Chinese ship approximately 240 miles off the California coast, and 130 Chinese persons would be transferred to the Corinthian. The defendants and the agents also discussed how to transport the aliens to New York after their arrival in the United States.
On August 27, the Review Committee considered a revised plan for the INS's proposed undercover operation, which had been modified in light of the August 23 meeting. The Review Committee was aware that the INS agents would conduct the undercover investigation in international waters when approval was given. The Review Committee guidelines specifically contemplate an INS "undercover operation [that] will be conducted substantially outside the United States." INS Undercover Operation Guidelines at IV.A. (2). The operation was also approved by the United States Attorney for the Central District of California and an Assistant Attorney General in the Department of Justice, both of whom knew that the operation would be conducted in international waters.
When the Corinthian set out from the harbor at San Pedro, California on August 29, seven INS agents and two United States Coast Guard officers, all operating undercover, as well as two of the defendants were on board. The Coast Guard officers were present only to provide assistance if necessary; they had no supervisory responsibility for the investigation, which was under the sole control of the INS. The next day the Corinthian met the Li Munn in international waters approximately 320 miles from the California coast. As the INS agents watched and videotaped, approximately 132 Chinese persons, including four of the defendants in this case, transferred from the Li Munn to the Corinthian. Upon the Corinthian's return to San Pedro harbor on September 1, the aliens were transported to a house in Garden Grove, California, which was kept under INS surveillance.
On September 19, a federal grand jury returned a five count indictment charging the nine defendants with crimes relating to the smuggling of the Chinese aliens into the United States. Count one charged all nine defendants with conspiring in violation of 18 U.S.C. Sec. 371 to smuggle aliens into the United States in violation of various provisions of 8 U.S.C. Sec. 1324(a)(1). Counts two through five, which charged individual defendants with specific acts of alien smuggling in violation of section 1324(a)(1), were dismissed by the district court upon motions filed by defendants. The government has not appealed from these dismissals.
On January 29, 1992, the district court granted the defendants' joint motion to dismiss the indictment, which only had count one remaining, based on its conclusion that the INS agents had no legal authority to conduct an undercover investigation more than 100 miles offshore. The district court relied on 8 U.S.C. Sec. 1357(a)(3) and its implementing regulation, 8 C.F.R. Sec. 287.1(a)(2) (1991), which limit warrantless searches by INS agents to the area within 100 miles of the United States border. The district court held that this is the only provision in the INS's governing laws that authorizes extraterritorial activity. The court concluded that because the operation in question exceeded the 100 mile limit, it was unauthorized.
We review de novo the district court's legal conclusion that the INS agents acted outside their statutory and regulatory authority in conducting the offshore undercover investigation at issue in this case. See United States v. Gomez-Osorio, 957 F.2d 636, 639 (9th Cir.1992).
The specific authority of INS agents, acting without a warrant, to board and search vessels for aliens is conferred by 8 U.S.C. Sec. 1357:
(a) Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant--
. . . . .
(3) within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States....
Immigration regulations define the term "reasonable distance" to mean "within 100 air miles from any external boundary of the United States." 8 C.F.R. Sec. 287.1(a)(2) (1991).
On its face, section 1357(a)(3) places no general territorial restrictions on the exercise of INS authority. Rather, the section confers on INS agents broad powers to conduct warrantless searches without probable cause, and places a territorial restriction on the exercise of that broad power. The district court, however, concluded that because no other statutory provision or regulation specifically gives the INS authority to operate outside of United States territory, the INS is as a matter of law without such authority except as provided by section 1357(a)(3). Cf. United States v. Leyba, 627 F.2d 1059, 1065 (10th Cir.) ( to read section 1357(a)(3) as imposing general territorial limit on INS authority to conduct otherwise constitutional searches), cert. denied, 449 U.S. 987, 101 S.Ct. 406, 66 L.Ed.2d 250 (1980).
The defendants concede that the criminal immigration laws apply extraterritorially and that the Coast Guard may enforce those laws extraterritorially. As the defendants correctly recognize, the sole issue before us is thus whether Congress gave the INS authority to conduct law enforcement...
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