U.S. v. Gonzalez
| Decision Date | 01 November 1985 |
| Docket Number | No. 84-5709,84-5709 |
| Citation | 776 F.2d 931 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Angel Rey GONZALEZ, Antonio Barrios, Laureno Antonio Gonzalez, Rafael Salvador Gonzalez, Emilio Reyes Royer and Jose Alejandro Severino, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Jose M. Quinon, P.A., Coral Gables, Fla., for Laureno Antonio Gonzalez, Rafael Salvador Gonzalez, Emilio Reyes Royer and Jose Alejandro Severino.
Roy J. Kahn, Sonnia Escobio O'Donnell, Linda Collins Hertz, Asst. U.S. Attys., Miami, Fla., for U.S.
Appeal from the United States District Court for the Southern District of Florida.
Before KRAVITCH and HATCHETT, Circuit Judges, and THOMAS *, District Judge.
In this case, six defendants appeal the denial of their motion to dismiss an indictment 1 charging them with knowingly and intentionally possessing, with intent to distribute, marijuana on board a vessel within the customs waters of the United States, 21 U.S.C. Sec. 955a(c). They contend that the operation of section 955a(c), under which the United States may extend its customs waters to specific foreign vessels through arrangements with foreign nations violates their constitutional right to due process. They also claim that no "arrangement" within the meaning of the statute existed in this case.
This court already has held that by adopting the term "customs waters," Congress intended section 955a(c) to apply extra-territorially, and that Congress contemplated executive arrangements with foreign nations which would designate specific vessels as within "customs waters." United States v. Romero-Galue, 757 F.2d 1147 (11th Cir.1985). We now hold that designating "customs waters" around a specific vessel on the high seas, thereby subjecting persons on board to United States prosecution, does not violate due process. We also hold that the arrangements regarding specific vessels may be informal, as long as there is a clear indication of consent by the foreign nation. Accordingly we affirm the district court's refusal to dismiss the indictment.
The six defendants, all foreign nationals, were crew members aboard the ROSANGEL, a Honduran vessel. On May 24, 1984, the United States Coast Guard cutter V. LYPAN intercepted the ROSANGEL approximately 125 miles due east of Fort Lauderdale, Florida. A Coast Guard officer observed "bale type objects" on the main deck of the ROSANGEL. Coast Guard personnel boarded and searched the vessel, finding 114 bales of marijuana on the main deck and in the forward hold.
After a documentation check revealed that the vessel was of Honduran registry, the Coast Guard contacted the Honduran government by telephone and, with Captain Barrios' permission, waited on board the ROSANGEL for a response. When the Honduran government subsequently issued a statement of "no objection" to the boarding, search, seizure, and prosecution of the crew members of the ROSANGEL under United States law, the six defendants were arrested and transported to Miami for indictment and prosecution.
The defendants were indicted under the Marijuana on the High Seas Act of 1980, 21 U.S.C. Sec. 955a-955d. 2 Congress adopted the Act in an effort "to prohibit all acts of illicit trafficking in controlled substances on the high seas which the United States can reach under international law." H.R.Rep. No. 323, 96th Cong., 1st Sess. 11 (1979). To achieve this goal, Congress created four different criminal offenses. Congress forbade possession with intent to distribute by any person on board United States vessels or vessels subject to United States jurisdiction, 21 U.S.C. Sec. 955a(a), 3 and on board any vessel by a citizen of the United States. 21 U.S.C. Sec. 955a(b). Neither of these provisions require intent to distribute within the United States. Section 955a(d) proscribed possession with intent to distribute in the United States. These three provisions left a serious gap in Congress' effort to reach "all acts of illicit trafficking": possession with intent to distribute by foreign nationals on board foreign vessels, in cases where intent to distribute within the United States could not be shown. Congress filled the gap with section 955a(c), which states:
It is unlawful for any person on board any vessel within the customs waters of the United States to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance.
"Customs Waters" is defined in 19 U.S.C. Sec. 1401(j):
The term "customs waters" means, in the case of a 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, the waters within such distance of the coast of the United States as the said authorities are or may be so enabled or permitted by such treaty or arrangement and, in the case of every other vessel, the waters within four leagues of the coast of the United States.
Id. (emphasis added).
The appellants' vessel was well beyond four leagues from the coast of the United States, and therefore we must consider whether a "treaty or other arrangement" had expanded this nation's "customs waters" to include those surrounding the vessel.
The appellants contend that the telephonic relay of consent by the Honduran government does not constitute a "treaty or other arrangement" necessary to extend customs waters beyond twelve miles. We disagree. In enacting section 955a(c), Congress contemplated that the Coast Guard would seek permission from foreign governments to prosecute foreign nationals found on foreign vessels on the high seas. Obviously, Congress did not intend that the United States negotiate formal treaties with respect to each vessel; rather Congress contemplated the precise type of consent shown in the present case.
Much of our work already has been done. In United States v. Romero-Galue, 757 F.2d 1147 (11th Cir.1985), we held that Congress intended section 955a(c) to have extra-territorial effect, and that the statute did not violate international law. Romero-Galue also noted that section 955a(c) was based on the Anti-Smuggling Act. 4
In Romero-Galue, the panel discussed the purpose of the Anti-Smuggling Act:
Congress first formulated the definition of "customs waters" when it passed the Anti-Smuggling Act of 1935, 19 U.S.C. Secs. 1701-1711 (1982), to reduce the smuggling of liquor into the United States in contravention of our revenue laws. Prior to the passage of the Anti-Smuggling Act, the government could only prosecute smugglers in vessels seized within the statutory twelve-mile customs waters area; smuggling vessels could hover beyond that twelve-mile limit with impunity. The United States did have liquor treaties with sixteen nations, which allowed it to seize a treaty nation's vessel and to enforce the anti-smuggling laws if the vessel was caught within one hour's sailing distance of the coast of the United States, but these treaties were not self-executing. Absent statutory authority, the United States lacked the power to apply its penal laws to a treaty nation's vessel located outside the twelve-mile limit, yet within one hour's sailing distance from the shore.
Id. at 1152-53 (footnote and citations omitted). Congress therefore defined the term "customs waters" to include "the waters within such distance of the coast of the United States" as identified by "treaty or other arrangement" with a foreign government as an area within which the laws of the United States may be enforced. 19 U.S.C. Sec. 1709(c). In addition to setting forth a definition of "customs waters" that allowed the enforcement of this nation's anti-smuggling laws outward of twelve miles pursuant to a treaty, Congress created the concept of a "customs enforcement area." 19 U.S.C. Sec. 1701. A "customs enforcement area" could be declared for one hundred miles around a particular vessel "hovering" off the coast of the United States and suspected of smuggling. A vessel is "hovering" if "from the history, conduct, character, or location of the vessel, it is reasonable to believe that such vessel is being used or may be used" for smuggling. 19 U.S.C. Sec. 1709(d). There is no requirement that the vessel be within a particular distance of the United States coast.
In Romero-Galue we held that Congress inserted the term "arrangement" in its definition of "customs waters" in the Anti-Smuggling Act to refer to arrangements setting forth a "customs enforcement area." Id. at 1153. The "arrangement" extends "customs waters" to include those within the "customs enforcement area." Accordingly, when Congress adopted the same definition of "customs waters" for the purposes of section 955a(c), it authorized enforcement beyond twelve miles both in waters designated by treaties and pursuant to arrangements concerning specific vessels. 5
Romero-Galue did not address what may constitute an "arrangement" to create "customs waters" around a particular vessel. 6 The appellants contend that a formal, written agreement is necessary. We do not agree. First, requiring a formal agreement would be contrary to the common understanding of the statutory language. Second, the realities of enforcing narcotics laws on the high seas and the limited scope of the consent lead us to conclude that no formal agreement is necessary, and that consent may be relayed by electronic communications such as radio or telephone.
The statute refers to a "treaty or other arrangement." 19 U.S.C. Sec. 1401(j) (...
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