U.S. v. Loalza-Vasquez
| Decision Date | 14 June 1984 |
| Docket Number | No. 83-3053,J,LOALZA-VASQUE,83-3053 |
| Citation | 735 F.2d 153 |
| Parties | 15 Fed. R. Evid. Serv. 1699 UNITED STATES of America, Plaintiff-Appellee, v. Osvaldoairo Perez-Ricardo, Miguel Maldonado-Toro, Rodolfo Manjarres-Valest, Felipo Ibarra-Estrgryn, Raul Rivas, Herberto Keheda, Hernando Riascos-Torres, Roberto Ariza-Vargas, Juan Carrasquilla-Lombana, and Guillermo Saldana, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Before RANDALL, TATE, and WILLIAMS, Circuit Judges.
Eleven defendants appeal from their conviction after jury trial on three drug-importation related charges. On appeal, they contend, inter alia, that United States jurisdiction of the charges was not shown where the vessel was seized in the Gulf of Mexico some 250 miles from the United States coast, and that their convictions should be reversed because the district court abused its discretion in refusing to grant their request for a severance and because their sixth amendment right to counsel was abridged by the unconsented-to conflicts of interest created by the representation scheme used at trial by their two trial counsel. Finding no reversible merit to any of the defendants' contentions, we affirm.
In August, 1982 the Coast Guard cutter Valiant, Commanded by James White, was patrolling in the waters of the Gulf of Mexico. One evening while on that patrol approximately 250-300 miles off the coast of the United States, the Valiant spotted a 75-80 foot shrimping vessel whose name they later determined to be the Carabella Negra. At the time of the initial spotting, the shrimper was traveling in a northeasterly direction toward the United States.
When the Valiant neared the Carabella Negra, the shrimper made a radical turn and proceeded in a southerly direction, away from the United States. Although the shrimper was flying no flag initially, the guardsmen aboard the Valiant were soon able to determine that the shrimper was of Panamanian registry. The Valiant pursued the shrimper throughout the night. Meanwhile, permission to board the shrimper was obtained by the United States authorities from the Panamanian authorities and communicated the following afternoon to Commander White. The Coast Guard then boarded the shrimper.
Twelve crew members were found aboard the shrimper, none of whom spoke English. The shrimper's crew indicated to the Coast Guard that, inter alia, 1) the shrimper's captain had left the night before, 2) they did not know where the vessel's papers were located, and 3) the shrimper had departed from Columbia but they had no knowledge of their destination. Upon discovering from the crew that there was cargo aboard, the Coast guard searched the hold of the ship wherein they found numerous bales of marijuana totaling 35,937 pounds, worth between nine and sixteen million dollars. No other cargo was found on board. The vessel was not equipped for fishing.
All crew members were placed under arrest. On September 24, 1982, all crew members were charged in a four count indictment with I) conspiracy to possess with intent to distribute marijuana, II) conspiracy to import marijuana into the United States, III) possession with intent to distribute marijuana, and IV) possession with intent to distribute marijuana, and IV) possession with intent to distribute marijuana on board a vessel within the "customs waters" of the United States. The possession with intent to distribute count (III) was dismissed on the government's motion prior to trial. After a two day trial, a guilty verdict as to all counts (I, II, IV) was returned by the jury.
On appeal, the defendants raise as contentions of error a) the district court's assertion of extraterritorial jurisdiction with regard to each count in the indictment, b) the insufficiency of the evidence to support the convictions, c) the district court's abuse of discretion in denial of the request for a severance, and d) the unconsented-to conflict of interest created by the representation scheme used at trial by the defendants' two trial counsel.
The United States has long exercised jurisdiction to attach criminal consequences to extraterritorial acts that are intended to have effect "within the sovereign territory," see United States v. Cadena, 585 F.2d 1252, 1257-58 (5th Cir.1978), "at least where overt acts within the United States can be proved." United States v. Postal, 589 F.2d 862, 885-87 (5th Cir.), cert. denied, 444 U.S. 832, 100 S.Ct. 61, 62 L.Ed.2d 40 (1979). In this circuit, furthermore, when the statute pursuant to which the United States is attempting to attach criminal consequences does not require proof of an overt act, "jurisdiction attaches [to extraterritorial acts] upon a mere showing of intended territorial effects." United States v. Ricardo, 619 F.2d 1124, 1129 (5th Cir.), cert. denied, 449 U.S. 1063, 101 S.Ct. 789, 66 L.Ed.2d 607 (1980).
The defendants in this case were charged in Counts I and II of the indictment with controlled-substance conspiracies; in Count I of the indictment, the defendants were charged with conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. Secs. 841, 846, and in Count II of the indictment the defendants were charged with conspiracy to import marijuana into the United States in violation of 21 U.S.C. Secs. 960, 963. Proof of an overt act is not necessary in order to obtain a conviction under either of the above conspiracy statutes. See United States v. Mann, 615 F.2d 668, 671 (5th Cir.1980), cert. denied, 450 U.S. 944, 101 S.Ct. 1694, 68 L.Ed.2d 193 (1981); United States v. Rodriguez, 612 F.2d 906, 919 n. 37 (5th Cir.1980) (en banc), aff'd, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). Thus, in this case, the jurisdictional requisites with regard to the controlled-substance conspiracy counts may be satisfied merely by proof of intended territorial effects within the sovereign territory of the United States.
The United States offered as proof of the intended territorial effects in the United States of the charged conspiracies the testimony of Commander White that, based upon his initial sighting in the Gulf of Mexico of the then northeasterly bound shrimper, the shrimper would have landed in the United States. The defendants argue that from the point of the initial sighting of the shrimper in the Gulf of Mexico, the shrimper could have turned and proceeded to any number of other destinations other than the United States, and that such proof standing alone is therefore insufficient to support a conclusion that the defendants intended territorial effects in the United States. Thus, they argue that the evidence in the record was insufficient to support the district court's assertion of jurisdiction with regard to counts I and II, and, accordingly, that the convictions on those counts must be reversed.
We find, however, that the evidence was sufficient to support the assertion of jurisdiction. Here, for instance, the destination, for an illegal purpose, in the United States is somewhat corroborated by the immediate change of the United States-bound vessel to an opposite direction upon sighting of the Coast Guard cutter. Further, this court upheld in United States v. DeWeese, 632 F.2d 1267, 1271-72 (5th Cir.1980), cert. denied, 454 U.S. 878, 102 S.Ct. 358, 70 L.Ed.2d 188 (1981), as sufficient to establish the requisite intended territorial effects of an extraterritorial act, an evidentiary showing similar to that set forth by the government herein, i.e., the testimony of a Coast Guard Commander. Although the testimony in DeWeese was based upon evidence in addition to the sighting of a suspect vessel, 1 we find that the evidence in this case was likewise sufficient for a reasonable-minded juror to conclude that the intended destination was the United States, United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc), aff'd, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983).
We therefore uphold the assertion of jurisdiction as to those counts.
The defendants were charged in Count IV of the indictment with possession of marijuana with intent to distribute, on board a vessel within the "customs waters" of the United States, in violation of 21 U.S.C. Sec. 955a. As is not disputed, United States authorities may enforce the laws of the United States in the customs waters as to the ship of another nation only as permitted by treaty or other arrangement with the foreign government. See 19 U.S.C. Sec. 1401(j); United States v. Marino-Garcia, 679 F.2d 1373, 1379-83 (11th Cir.1982), cert. denied, 459 U.S. 1114, 103 S.Ct. 748, 74 L.Ed.2d 967 (1983).
The shrimper in this case was of Panamanian registry. Further, the shrimper was boarded by the Coast Guard on the high seas approximately 250-300 miles off the coast of the United States. Thus, the shrimper was subject to the laws of the United States only as permitted by a treaty or arrangement between the United States and the Panamanian government.
The United States sought to prove that such an arrangement existed between the United States and the Panamanian government with regard to the shrimper in this case. Essentially the government's proof as to the arrangement consisted of Commander White's testimony as to how he was advised by a series of teletype messages that the government of Panama had authorized his crew to board the shrimper, 2 plus certified copies of two of the messages. The defendants contend that the above evidence was hearsay, subjected to a timely objection, and that the erroneous admission of that evidence, being the only evidence submitted in proof of the "arrangement," was an abuse of discretion. The United States in its brief concedes that the evidence introduced to prove...
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