U.S. v. Juda
| Decision Date | 02 February 1995 |
| Docket Number | Nos. 93-10439,93-10729 and 93-10730,93-10721,93-10724,s. 93-10439 |
| Citation | 46 F.3d 961 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Olaf Peter JUDA; Raymond Edward Missell; Anthony Burg; Frans Gustaaf Van Der Hoeven; and Christopher Dean Paris, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Diane Marie Amann, San Francisco, CA, for defendant-appellant Juda.
Judd C. Iversen & Julie A. Berliner, San Francisco, CA, for defendant-appellant Burg.
Sanford Svetcov & Melinda L. Haag, Landels, Ripley & Diamond, San Francisco, CA, for defendant-appellant Missell.
Benson B. Weintraub, South Beach, FL, for defendant-appellant Van Der Hoeven.
Carl A. Gonzer, San Rafael, CA, for defendant-appellant Paris.
Dennis Michael Nerney, Asst. U.S. Atty., San Francisco, CA & Sara Criscitelli, U.S. Dept. of Justice, for plaintiff-appellee U.S.
On Appeal from the United States District Court for the Northern District of California.
Before: SKOPIL, SCHROEDER, and RYMER, Circuit Judges.
These appeals address the authority of the United States to apprehend individuals on the high seas and the jurisdiction to prosecute them for violations of the Maritime Drug Law Enforcement Act (MDLEA), 46 U.S.C.App. Secs. 1901-04. Defendants entered conditional guilty pleas to charges of possession of drugs with intent to distribute, 46 U.S.C. Sec. 1903(a), and arson, 18 U.S.C. Sec. 81. All reserved the right to seek appellate review of the district court's refusal to dismiss the prosecutions for lack of subject matter jurisdiction, and the district court's rejection of their Fourth Amendment claims.
We conclude that there is no statutory or constitutional bar to exercising jurisdiction over these five defendants. We reject defendants' claims that the investigation of their activities and the subsequent stop and seizure of their vessel violated the Fourth Amendment. Finally, we reject the claim of one defendant that he was improperly sentenced.
United States Customs learned in 1989 that defendant Olaf Juda was the captain of a ship that had off-loaded marijuana on the Oregon coast in 1987. Customs began investigating Juda's current activities and attempted to infiltrate his drug importation business. The investigation tracked Juda to Australia in 1990, where he arranged for the purchase of the vessel Elevation, later renamed the "Malekula." The purchase money came from Switzerland. The bill of sale indicated that the owner was an American ship broker from Miami.
Because the ship had been sold to an American, British ports refused to register it. Attempts were made to obtain a foreign registry for the ship. Several sales transactions were made to give the ship a British owner, reflected by various port records that list the owner as "Leburn Holding Ltd." of Tortola, British Virgin Islands, and "Marine Investments Ltd." of the British Island of Gibralter. Nevertheless, both the Port of Hong Kong and the Port of Guernsey refused to acknowledge these transactions and to register the ship. The Port of Southampton was then selected for registry, but the registration was never completed. According to Customs, the vessel was eventually listed as belonging to the Leburn Holding Company, which is British. Records from both Australia and Singapore show that the Malekula claimed Guernesy as its port of registry.
Juda left the Malekula with a caretaker in Darwin, Australia and returned to the United States. A DEA narcotics attache at the United States Embassy in Australia approached the Australian Federal Police and asked if a transmitter could be placed on board the vessel. An Australian police superintendent informed the DEA attache that under Australian law the transmitter could be placed on board without a search warrant or court order. An Australian Customs officer lured the caretaker away, and DEA agents and an Australian Federal Police officer boarded the ship and placed a transmitter in an interior wall of the navigation room. The officers later repeated this process to replace the batteries.
Juda began organizing his drug smuggling operation while in the United States, closely monitored by undercover agents. He returned to Australia in February 1991, and he The Malekula met with a supply vessel or "mother ship" on the high seas, and loaded sixteen tons of hashish. Agents tracked the Malekula through the transmitter. In the early morning hours of July 16, 1991, the Coast Guard cutter Acushnet intercepted the Malekula on the high seas, approximately 530 miles west of Vancouver, British Columbia. On board the Acushnet were Customs and DEA agents.
and defendant Van Der Hoeven sailed the Malekula to Singapore, where defendants Missell, Paris, and Burg boarded the ship. All defendants are United States citizens except Van Der Hoeven, who is a resident alien of the United States.
A small boat was launched from the Acushnet with a Coast Guard lieutenant and crew, two Customs agents, and a DEA agent on board. Radio communication was established between the Acushnet and the Malekula. Juda identified himself as the Malekula's master, and claimed Great Britain as the country of registry. The Acushnet identified itself as the U.S. Coast Guard, and informed the Malekula that a small boat was coming alongside to ask further questions. Juda threatened to shoot if the boat came any closer. The Acushnet promptly ordered the small boat to return. Moments later Van Der Hoeven, instituting a plan agreed to by all defendants, ignited fuel and the Malekula exploded and caught fire. Defendants abandoned ship, and were rescued and taken on board the Acushnet. Coast Guard members boarded the Malekula to fight the fire. Some hashish was retrieved before the ship sank.
The Acushnet radioed a request for a "statement of no objection" from Great Britain to arrest the crew. Great Britain denied the registry claim, and the Acushnet was advised that the Malekula was stateless and therefore subject to the jurisdiction of the United States. Defendants were arrested and transported to San Francisco.
All defendants were charged with possession of hashish on the high seas with intent to distribute, 46 U.S.C.App. Sec. 1903(a); conspiracy to possess hashish, 46 U.S.C. Sec. 1903(j); assault of a federal officer with a dangerous weapon, 18 U.S.C. Secs. 111, 1114; and commission of arson on a vessel within the special maritime jurisdiction of the United States, 18 U.S.C. Sec. 81. Defendants sought to dismiss the charges on the ground that the district court lacked subject matter jurisdiction, and alternatively, to suppress evidence based on the installation and tracking of the transmitter and the nighttime stop and seizure of the Malekula. The district court denied both motions. United States v. Juda, 797 F.Supp. 774, 785 (N.D.Cal.1992). Defendants pleaded guilty to possession of hashish on the high seas with intent to distribute, 46 U.S.C.App. Sec. 1903(a), and arson on the high seas, 18 U.S.C. Sec. 81, reserving their rights to appeal the denial of the motions to dismiss and to suppress evidence.
Defendants challenge the subject matter jurisdiction of the district court. They contend that their prosecutions are not authorized by the MDLEA and violate the due process clause of the Fifth Amendment because there was no showing of defendants' intent to import the hashish into the United States. Missell and Van Der Hoeven also argue that the court lacks jurisdiction over the arson charges.
The MDLEA prohibits drug activity by "any person on board a vessel of the United States, or on board a vessel subject to the jurisdiction of the United States, or who is a citizen of the United States or a resident alien of the United States on board any vessel." 46 U.S.C.App. Sec. 1903(a). A "vessel subject to the jurisdiction of the United States" includes a stateless vessel, e.g., "a vessel without nationality." Id. at Sec. 1903(c)(1)(A).
Under the plain meaning of the statute, "the Maritime Drug Enforcement Act clearly allows for ... prosecution in the United States regardless of the destination of the drugs." United States v. Martinez-Hidalgo, 993 F.2d 1052, 1055 (3d Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 699, 126 L.Ed.2d 666 (1994). Nothing in the language of the statute limits its application to defendants who possess drugs intended for distribution in the United States. See United States v. Howard-Arias, 679 F.2d 363, 369-72 (4th Cir.) ( that such a limitation was eliminated by a predecessor statute, 21 U.S.C. Sec. 955a), cert. denied, 459 U.S. 874, 103 S.Ct. 165, 74 L.Ed.2d 136 (1982).
The United States contends that MDLEA's jurisdictional requirements are satisfied because defendants are all citizens or resident aliens of the United States on board a "vessel without nationality" subject to the jurisdiction of the United States. Defendants do not dispute their respective nationality, but argue that the Malekula was not "stateless."
The district court found that the Malekula, "[d]uring its voyage to Canada and at the time of its interception, ... was a 'stateless' vessel." Juda, 797 F.Supp. at 778. We agree. The record shows that the vessel was not in fact registered. Juda's assertion to the contrary was apparently rejected as incredible by the district court. The court was entitled, of course, to discredit Juda's self-serving testimony, and to rely on testimony regarding Great Britain's denial of registration and the evidence showing that proper registry was never obtained.
Citing United States v. Maynard, 888 F.2d 918 (1st Cir.1989), defendants argue that because they claimed British registry, the Malekula was not "stateless" until the Coast Guard received word from Britain denying registration. Maynard held that when a shipmaster makes a claim of...
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