U.S. v. Davis

• Decision Date: 21 May 1990
• Docket Number: No. 88-1446,88-1446
• Citation: 905 F.2d 245
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Peter Malcolm DAVIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 245

905 F.2d 245

1990 A.M.C. 2289

UNITED STATES of America, Plaintiff-Appellee, v. Peter Malcolm DAVIS, Defendant-Appellant.

No. 88-1446.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 15, 1989.

Decided May 21, 1990.

Michael Stepanian, Law Office of Michael Stepanian, and C. Zadik Shapiro, Law Office of C. Zadik Shapiro, San Francisco, Cal., for defendant-appellant.

Jeffrey W. Lawrence, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before WIGGINS and KOZINSKI, Circuit Judges and STOTLER, District Judge. ^*

WIGGINS, Circuit Judge:

Peter Malcolm Davis appeals his convictions for possession of, and conspiracy to possess, marijuana on a vessel subject to the jurisdiction of the United States with intent to distribute in violation of the Maritime Drug Law Enforcement Act, 46 U.S.C. app. Secs. 1903(a), 1903(j) (Supp.IV 1986). The Coast Guard apprehended Davis on the high seas and he contests application of the Maritime Drug Law Enforcement Act to him. Furthermore, he alleges that the Coast Guard searched and seized his vessel in violation of the fourth amendment.

I. FACTS AND PROCEEDINGS

On June 15, 1987, the Coast Guard cutter Cape Romain encountered the Myth of Ecurie ("Myth "), approximately 35 miles southwest of Point Reyes, California. The Myth is a sailing vessel approximately 58 feet in length. The Myth was headed in the direction of San Francisco. The Cape Romain approached the Myth, and Coast Guard personnel by radio requested permission to board. Peter Davis, the captain of the Myth, denied the request. He stated that the Coast Guard had no authority to board his boat because it was of British registry and was sailing on the high seas having departed from Hong Kong. Captain Davis announced his intention to alter his course for the Caribbean by way of Mexico.

The Coast Guard suspected the Myth of smuggling contraband. Factors leading to that suspicion were that the El Paso Intelligence Center had included the Myth on a list of vessels suspected of drug smuggling; the Myth was sailing in an area in which sailing vessels were infrequently found; and the Myth appeared to be carrying cargo.

The Coast Guard then requested permission from the United Kingdom to board the Myth in accordance with procedures in a 1981 agreement between the United States and the United Kingdom. The Coast Guard informed the British officials of the circumstances which led the Coast Guard to believe the Myth contained contraband material. By telex message, the United Kingdom gave the Coast Guard permission to board the Myth according to the terms of the 1981 Agreement.

On June 16, 1987, crew members from the Cape Romain boarded the Myth. By that time, the Myth had sailed to a location approximately 100 miles west of the California coast. The boarding officer smelled marijuana in the cabin of the Myth. Davis informed the boarding officer that he kept a shotgun below deck, and Davis and the boarding officer went below to obtain it. Below deck, the boarding officer saw numerous bales of material and smelled marijuana. Davis admitted that the bales were marijuana. The Coast Guard then arrested Davis and his crew and brought the Myth to the Coast Guard station on Yerba Buena Island in San Francisco. The Coast Guard there confiscated over 7,000 pounds of marijuana from the Myth.

Davis is not a citizen of the United States.

On September 2, 1987, Davis filed a motion to dismiss for lack of jurisdiction and a motion to suppress evidence obtained from the Myth. The district court denied both motions. United States v. Biermann, 678 F.Supp. 1437 (N.D.Cal.1988). On July 26, 1988, the district court found Davis guilty on stipulated facts. Davis timely appealed. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 (1982).

II. DISCUSSION

A. LEGISLATIVE JURISDICTION

Davis contends that the provisions of the statute under which he was convicted, the Maritime Drug Law Enforcement Act, 46 U.S.C. app. Secs. 1903(a), 1903(j), do not apply to persons on foreign vessels outside the territory of the United States. The question of whether the United States may punish Davis' conduct involves three issues: 1) whether Congress has constitutional authority to give extraterritorial effect to the Maritime Drug Law Enforcement Act; if so, 2) whether the Constitution prohibits the United States from punishing Davis' conduct in this instance; and, if not, 3) does the Maritime Drug Law Enforcement Act apply to Davis' conduct?

Whether Congress may give extraterritorial effect to the statute in question is an issue of law which we review de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). Whether application of a particular statute violates due process is a mixed question of law and fact which we review de novo. Id. at 1202.

1. Congressional Authority to Give Extraterritorial Effect to the Maritime Drug Law Enforcement Act

The Maritime Drug Law Enforcement Act, 46 U.S.C. app. Sec. 1903(a) and (j) state:

(a) It is unlawful for any person on board a vessel of the United States, or on board a vessel subject to the jurisdiction of the United States, to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance.

(j) Any person who attempts or conspires to commit any offense defined in this Act [46 U.S.C. app. Secs. 1904] is punishable by imprisonment or fine, or both, which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt of the conspiracy.

The United States Congress sits as a legislature of enumerated and specific powers. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176, 2 L.Ed. 60 (1803). The Constitution gives Congress the power to "define and punish piracies and felonies on the high seas...." U.S. Const. Art. I, sec. 8, cl. 10. The high seas lie seaward of the territorial sea, defined as the three mile belt of sea measured from the low water mark. United States v. Rubies, 612 F.2d 397, 402 n. 2 (9th Cir.1979). We therefore find that the Constitution authorized Congress to give extraterritorial effect to the Act.

2. Constitutional Restrictions on the United States' Authority to Punish Davis' Conduct

We next examine what limitations exist on the United States' power to exercise that authority.

Contrary to Davis' assertions, compliance with international law does not determine whether the United States may apply the Act to his conduct. ¹ Only two restrictions exist on giving extraterritorial effect to Congress' directives. We require Congress make clear its intent to give extraterritorial effect to its statutes. United States v. Pinto-Mejia, 720 F.2d 248, 259 (2nd Cir.1983). And secondly, as a matter of constitutional law, we require that application of the statute to the acts in question not violate the due process clause of the fifth amendment. Thomas, at 1068.

In this case, Congress explicitly stated that it intended the Maritime Drug Law Enforcement Act to apply extraterritorially. 46 U.S.C. app. Sec. 1903(h) (Supp.IV 1986) ("This section is intended to reach acts of possession, manufacture, or distribution outside the territorial jurisdiction of the United States"). Therefore, the only issue we must consider is whether application of the Maritime Drug Law Enforcement Act to Davis' conduct would violate due process.

In order to apply extraterritorially a federal criminal statute to a defendant consistently with due process, there must be a sufficient nexus between the defendant and the United States, see United States v. Peterson, 812 F.2d 486, 493 (9th Cir.1987), so that such application would not be arbitrary or fundamentally unfair. ²

In the instant case, a sufficient nexus exists so that the application of the Maritime Drug Law Enforcement Act to Davis' extraterritorial conduct does not violate the due process clause. "Where an attempted transaction is aimed at causing criminal acts within the United States, there is a sufficient basis for the United States to exercise its jurisdiction." Id. The facts found by the district court in denying Davis' motion to dismiss for lack of jurisdiction support the reasonable conclusion that Davis intended to smuggle contraband into United States territory. At the time of its first detection, the Myth was 35 miles away from, and headed for, San Francisco. As the Coast Guard approached, the Myth changed its course for the Caribbean by way of Mexico, although the Myth was many miles from the Great Circle route from Hong Kong to Acapulco. The Myth is on a list of boats suspected of drug smuggling. It is unusual for a 58 foot sailing vessel to have sailed from the Myth 's asserted point of departure, Hong Kong. The foregoing evidence is sufficient to establish a nexus between the Myth and the United States. We therefore find that the Constitution does not prohibit the application of the Marijuana Drug Law Enforcement Act to Davis.

3. Application of the Maritime Drug Law Enforcement Act to Davis' Conduct

We must next determine whether the Maritime Drug Law Enforcement Act by its terms applies to Davis' conduct. We hold that it does. Section 1903(a) and (j) proscribe possession and conspiracy to possess marijuana with intent to distribute on board a vessel subject to the jurisdiction of the United States. Section 1903(c)(1)(D) defines vessels subject to the jurisdiction of the United States as vessels "located within the customs waters of the United States." In the case of a foreign vessel, 19 U.S.C. Sec. 1401(j) (1982) defines customs waters as follows:

The term "customs waters" means, in the case of a foreign vessel subject to a treaty or some other arrangement between a foreign government and the United States enabling or permitting the...