U.S. v. Greer

• Decision Date: 19 February 1997
• Docket Number: No. 2:95-CR-72.,2:95-CR-72.
• Citation: 956 F.Supp. 531
• Parties: UNITED STATES of America v. William GREER, a/k/a "Thomas William Dodds," Stephen Hutchins, Michael Maple, Thomas Cook, a/k/a "George Wright," Gregory Stevens, Martin Scott, and Glen Koski, Defendants.
• Court: U.S. District Court — District of Vermont

Page 531

956 F.Supp. 531

UNITED STATES of America v. William GREER, a/k/a "Thomas William Dodds," Stephen Hutchins, Michael Maple, Thomas Cook, a/k/a "George Wright," Gregory Stevens, Martin Scott, and Glen Koski, Defendants.

No. 2:95-CR-72.

United States District Court, D. Vermont.

February 19, 1997.

Robert Francis O'Neill, Gravel & Shea, Paul S. Volk, Blodgett, Watts & Volk, Burlington, VT, Robert Kalina, Rubin & Bailin, New York City, for William Greer aka Thomas Williams Dodds.

Mark Alan Kaplan, Jarvis & Kaplan, Burlington, VT, Barry Edward Griffith, Griffith & Lundeen, P.C., Rutland, VT, Theodore Frederic Robare, Theodore Robare, P.C., Rutland, VT, for Stephen Brent Hutchins.

Bradley Specht Stetler, Stetler & Allen, Burlington, VT, for Thomas Cook aka George Wright.

Mark John Keller, Cain & Keller, Burlington, VT, for Gregory Stevens.

Richard C. Bothfeld, Bothfeld & Volk, P.C., L. Randolph Amis, III, L. Randolph Amis, P.C., Burlington, VT, for Gary Norman Peryea.

Robert Andres, Burlington, VT, for William Carr.

David J. Williams, Sleigh & Williams, St. Johnsbury, VT, for Martin Scott.

Barry Edward Griffith, Griffith & Lundeen, P.C., Rutland, VT, for Claire Cunningham.

Paul S. Volk, Blodgett, Watts & Volk, Burlington, VT, for Joseph Desautel.

Martin A. Maley, Kissane Associates, St. Albans, VT, for Glen Koski.

Thomas D. Anderson, David V. Kirby, Asst. U.S. Attys., Office of U.S. Attorney, District of Vermont, Burlington, VT, for U.S.

OPINION AND ORDER: MARITIME DRUG LAW ENFORCEMENT ACT

SESSIONS, District Judge.

Defendants Greer, Hutchins, Cook, Scott and Koski have variously moved to dismiss Count 4 of the superseding indictment on due process grounds and for improper venue (papers 209, 216, 221, 224, 237, 240). In addition, Greer moves for a change of venue to the United States District Court for the District of Columbia (paper 237). For the reasons that follow, Defendants' motions to dismiss are denied. Greer's motion for change of venue is denied.

Count 4 charges that the defendants conspired to commit offenses against the United States in violation of the Maritime Drug Law Enforcement Act ("MDLEA"), 46 U.S.C.App. § 1903. Under the MDLEA, it is unlawful for any citizen of the United States on board any vessel to knowingly or intentionally distribute, or possess with intent to distribute, a controlled substance. 46 U.S.C.App. § 1903(a) (Supp.1996). It is also unlawful for any person on board a vessel subject to the jurisdiction of the United States to knowingly or intentionally distribute, or possess with intent to distribute, a controlled substance. Id. A conspiracy to commit this offense is subject to the same penalties as those prescribed for the offense. 46 U.S.C.App. § 1903(j).

BACKGROUND

According to the superseding indictment, Greer and his co-defendants conspired to import and export large quantities of hashish and marijuana, beginning in approximately 1980, and continuing until February, 1993. As organizers of the conspiracy, Greer and Hutchins recruited and worked with various individuals in the United States, Canada and the Netherlands. Greer and Hutchins established various smuggling routes along the border between Vermont and Quebec to transport money and drugs without going through customs.

Between 1989 and 1991, multi-ton quantities of hashish were imported into Canada for distribution in Canada and the United States. In 1989, hashish was obtained in Pakistan and shipped to Europe. In the vessel LUKAS, approximately 30 tons of hashish was then shipped across the Atlantic and up the St. Lawrence Seaway, where it was off-loaded and transported to a location in Canada near the Ontario/Quebec border. In July 1991, a similar smuggling scheme was attempted, this time with approximately 55 tons of hashish on the vessel GIANT 4. The plan went awry, and only a fraction of the shipment was off-loaded. The remainder was abandoned in the St. Lawrence Seaway, in Canadian territorial waters, where it was seized by members of the Quebec Provincial Police and Canadian Customs.

The defendants in this case were arrested on Canadian warrants shortly thereafter. After completing sentences in Canada, an eight count indictment was brought in this district in August, 1995. In Count 4 of a superseding indictment filed July 24, 1996, the defendants were charged with conspiring to have a United States citizen on board a vessel distribute and possess with intent to distribute hashish.

The defendants claim that the count should be dismissed because prosecution on this count would violate the due process clause of the Fifth Amendment to the United States Constitution, and because venue in the District of Vermont is improper. Defendant Greer also argues that the statute does not reach the conduct of the defendants, that if it does, it is unconstitutionally vague as applied to them, and that the statute violates equal protection as well. Finally, Greer requests that venue on Count 4 be transferred to the United States District Court for the District of Columbia.

DISCUSSION

I. Jurisdiction

Title 46, U.S.C.App. § 1903(a) provides in relevant part:

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

A "vessel subject to the jurisdiction of the United States" includes "a vessel located in the territorial waters of another nation, where the nation consents to the enforcement of United States law by the United States." 46 U.S.C.App. § 1903(c)(1)(E).

The Defendants contend that the United States lacks jurisdiction over criminal acts committed outside its territory, absent some nexus between the conduct and the United States. The government responds that it is not required to establish a nexus between the defendants' conduct and the United States, but that if nexus is required, it will produce evidence sufficient to establish one.

The question of whether the United States may assert jurisdiction over the Defendants' conduct involves three issues: 1) whether Congress has the authority to give extraterritorial effect to the MDLEA; 2) if it does, did Congress intend for the MDLEA to reach the Defendants' conduct; and 3) would prosecuting the Defendants under the MDLEA offend due process? See United States v. Davis, 905 F.2d 245, 248 (9th Cir. 1990).

Congress has the power to control the conduct of United States citizens abroad, whether on the high seas or within the territory of other sovereigns. United States v. Mitchell, 553 F.2d 996, 1001 (5th Cir.1977); United States v. Black, 291 F.Supp. 262, 266 (S.D.N.Y.1968). See Skiriotes v. State of Florida, 313 U.S. 69, 73, 61 S.Ct. 924, 927-28, 85 L.Ed. 1193 (1941) (United States is not debarred by any rule of international law from governing conduct of its own citizens upon the high seas or even in foreign countries when the rights of other nations or their nationals are not infringed); Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375 (1932) (for disobedience to United States law United States citizen living in France was subject to punishment in United States court); Restatement (Third) of the Foreign Relations Law of the United States § 402 (1987) (state has jurisdiction to prescribe law with respect to activities of its nationals outside as well as within its territory). Thus Congress had the authority to give extraterritorial effect to the MDLEA with respect to citizens of the United States.

Congress has the power under Article I, Section 8, Clause 10 of the United States Constitution to define and punish felonies committed on the high seas. The Constitution thus authorized Congress to give extraterritorial effect to the MDLEA with respect to conduct taking place upon the high seas. See United States v. Davis, 905 F.2d at 248.

Congress made its extraterritorial intentions explicit when it enacted the MDLEA: "[section 1903] is intended to reach acts of possession, manufacture, or distribution committed outside the territorial jurisdiction of the United States." 46 U.S.C.App. § 1903(h). The only question remaining is whether the due process clause limits the application of the statute to the Defendants' conduct. "As long as Congress has expressly indicated its intent to reach such conduct, a `United States court would be bound to follow the Congressional direction unless this would violate the due process clause of the Fifth Amendment.'" United States v. Pinto-Mejia, 720 F.2d 248, 259 (2d Cir.1983) (quoting Leasco Data Processing Equip. Corp. v. Maxwell, 468 F.2d 1326, 1334 (2d Cir.1972)).

A panel of the Ninth Circuit Court of Appeals held that in order to apply the MDLEA extraterritorially, due process required that there be a sufficient nexus between a defendant and the United States, so that such application would not be arbitrary or fundamentally unfair, in United States v. Davis, 905 F.2d at 248-49. Davis involved a British vessel intercepted by the Coast Guard on the high seas off the coast of California. The defendant was not a United States citizen. In that case, the Court found a sufficient nexus in facts supporting a conclusion that the defendant intended to smuggle marijuana into the United States.

The 9th Circuit reiterated its nexus requirement in cases involving foreign vessels and foreign crew members intercepted in international waters, in United States v. Khan, 35 F.3d 426, 429 (9th Cir.1994). In United States v. Juda, 46 F.3d 961, 966-67 (9th Cir.), cert. denied sub nom. Paris v. United States, ___ U.S. ___, 115 S.Ct. 1811, 131 L.Ed.2d 735, and cert. denied, ___ U.S. ___, 115 S.Ct. 2632, 132 L.Ed.2d 872 (1995), however, the Court distinguished a case involving United States citizens on board a stateless vessel intercepted on the high seas. In Juda, the Court...