U.S. v. Martinez, 81-5529
| Decision Date | 21 March 1983 |
| Docket Number | No. 81-5529,81-5529 |
| Citation | 700 F.2d 1358 |
| Parties | 12 Fed. R. Evid. Serv. 1256 UNITED STATES of America, Plaintiff-Appellee, v. Marino Sanchez MARTINEZ, Dario Cordova Vargas-Blandon, Eldidio Bezerra- Anicatide, Julio Velez-Miranda, Disildo Gallardo Smith, Ausberto Ricar-Sanchez, Adalberto Pedrosa-Caicedo, Sabino Iris Gutierrez, Rafael Ballesteros-Velazquez, Manuel Mesino Pajaro, Rafeal C. Correa, Victor C. Fuentes, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Paul M. Korchin, Miami, Fla., for Gallardo Smith.
Fernando E. Heria, Hialeah, Fla., for Rafael Cordova-Correa.
Mary Catherine Bonner, Fort Lauderdale, Fla., for Velez-Miranda.
G. David O'Leary, Miami, Fla., for Bezerra-Anicatide.
Robin B. Gluck, Miami, Fla., for Sabino Gutierrez.
Thomas D. Sclafani, Ron Dion, Entin, Schwartz, Angert, Dion & Broudy, North Miami Beach, Fla., for Pedrosa-Caicedo.
Steven E. Kreisberg, court-appointed, Miami, Fla., for Ricar-Sanchez.
Juan Ramirez, Jr., Coral Gables, Fla., for Ballesteros-Velazquez.
Thomas F. Almon, Almon & Brodsky, court-appointed, Miami, Fla., for Pajaro.
Glenn Bruce Kritzer, Sonia Escobio O'Donnell, James G. McAdams, III, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.
Appeals from the United States District Court for the Southern District of Florida.
Before FAY and CLARK, Circuit Judges, and MARKEY *, Chief Judge.
Thirteen defendants appeal their convictions of conspiracy to possess with intent to distribute marijuana, 21 U.S.C. Section 955c, and possession with intent to distribute marijuana, 21 U.S.C. Section 955a(a). The appellants present many issues on appeal relating to jurisdiction, admission of a foreign document, cautionary instructions on a prior conviction, the sufficiency of the evidence, jury instruction on stateless vessels, the seizure of the vessel and the impartiality of the trial judge. 1 After careful consideration of the issues raised by Appellants, we affirm the convictions.
On December 24, 1980, the United States Coast Guard cutter "Dependable" encountered a seventy-five foot vessel in the Caribbean Sea, approximately ninety miles south of Cuba and two hundred miles from the nearest point in the United States. The "Dependable's" officers observed that the vessel was headed in a northerly direction, appeared to be heavily loaded and have a false waterline, bore no home port and the name "Ocean Lady" was on a plaque affixed to the vessel's cabin.
From a distance of approximately one hundred feet, Coast Guard Officer Nelson Romeu made contact with persons aboard the "Ocean Lady" by using a cardboard loud-hailer. One of these persons, appellant Marino Sanchez Martin, identified himself as the captain of the vessel and responded to officer Romeu's questions by stating that the vessel's name was Ocean Lady, its country of registration was Costa Rica, there were nine crew members, all the crew members were Costa Ricans, the last port was Aruba, the destination was Tampico, Mexico and the vessel had no cargo.
After this exchange, communication between officer Romeu and the captain resumed by C.B. radio. Romeu asked the same set of questions and the captain responded somewhat differently by stating that the vessel's country of registration was Honduras, there were thirteen crew members, all crew members were Columbians except himself, a Venezuelan, the last port was Barranquilla, Columbia, the destination was Tampico, Mexico and the vessel had no cargo.
Captain Marino Sanchez Martin gave permission to the Coast Guard to board the The Coast Guard initiated contact with the government of Honduras and remained on board the "Ocean Lady" with the captain's permission waiting for word from Honduras. The Coast Guard informed the crew that Honduras denied registration of the "Ocean Lady" and then placed the thirteen appellants under arrest, advised them of their rights, and transported them to the Drug Enforcement Administration office in Key West, Florida. The thirteen appellants were subsequently indicted, tried by a jury and all were found guilty on both counts.
"Ocean Lady." After boarding, the Coast Guard personnel noticed the odor of marijuana. The captain produced documents including a Honduran vessel registration certificate and granted officer Romeu's request to conduct a security sweep of the vessel. The Coast Guard found numerous wrapped packages in the vessel's engine room, which subsequent tests showed to contain marijuana.
Appellants argue that the Coast Guard's stopping and boarding of the "Ocean Lady" in international waters was unconstitutional under the Fourth Amendment. Whether the Fourth Amendment applies to stateless vessels is considered an open issue in this circuit. United States v. Marino-Garcia, 679 F.2d 1373, 1384 n. 21 (11th Cir.1982). Marino-Garcia, suggested that a number of considerations militate against extension of the Fourth Amendment to stateless vessels and that even if the Fourth Amendment applies, a vessel's status as stateless may render any search and seizure reasonable. Id.
However, we need not and do not decide this issue because the stopping and boarding of the "Ocean Lady" can be sustained under existing case law. As stated in Marino-Garcia:
[U]nder international law, the Coast Guard has the authority to approach an unidentified vessel in order to ascertain the vessel's nationality. Consistent with the Fourth Amendment, the Coast Guard may subject the unidentified vessel to a seizure for the limited purposes of a document inspection where there is reasonable suspicion to believe either that the vessel is an American flagship or that the vessel is attempting to conceal its identity.
Id. at 1385. [citations omitted] The Coast Guard approached the "Ocean Lady" to determine its nationality. After receiving inconsistent answers concerning the vessel's country of registration and noting that the name on the vessel's cabin was in the English language, the Coast Guard had "reasonable suspicion to believe" the vessel was "attempting to conceal its identity." Id. Further, the vessel's captain gave permission to the Coast Guard to board the "Ocean Lady."
Once on board, the Coast Guard has "the authority, indeed the duty, to act upon suspicions aroused during the boarding." United States v. Postal, 589 F.2d 862, 889 (5th Cir.1979). When the Coast Guard boarded, the officers noticed the smell of marijuana. The Coast Guard then conducted a security sweep of the vessel, apparently with the captain's consent, and found packages of marijuana.
There was nothing about the Coast Guard's stopping, boarding or seizure of the "Ocean Lady" which violated the Fourth Amendment or would deprive United States federal courts of jurisdiction.
Prior to trial the appellants urged the district court to dismiss the indictment as premised on an unconstitutional statute, 21 U.S.C. Section 955a. 2 Appellants again raise this issue on appeal, contending that Appellants' argument is foreclosed by the recent decision of United States v. Marino-Garcia, 679 F.2d 1373 (11th Cir.1982), which concluded that
the United States does not have jurisdiction to prosecute a foreign crew member on a non-United States vessel for violation of federal controlled substance laws because there is no nexus between the person, vessel or acts and the United States.
[t]here need not be proof of a nexus between the stateless vessel and the country seeking to effectuate jurisdiction. Jurisdiction exists solely as a consequence of the vessel's status as stateless. Such status makes the vessel subject to action by all nations proscribing certain activities aboard stateless vessels and subjects those persons aboard to prosecution for violating the proscriptions.
Id. at 1383. Thus, Marino-Garcia, held that 21 U.S.C. Section 955a "properly extends the criminal jurisdiction of this country to any stateless vessel in international waters engaged in the distribution of controlled substances." 679 F.2d at 1383.
The decision in Marino-Garcia is predicated on the vessel's status as stateless. Appellants, however contend that their convictions must be reversed because the jury instruction on stateless vessels was error.
In accordance with the convention on the High Seas, 3 the trial judge instructed the jury that "a 'vessel subject to jurisdiction of the United States' is a vessel which is not validly registered under the law of any nation; or a vessel which claims two or more nationalities according to its convenience, notwithstanding the validity of any claimed nationality...." Appellants contend that the jury instruction was erroneous because it was not supported by the evidence. Specifically, Appellants contend that the government failed to adduce evidence that Appellants intended to use two flags or nationalities "according to convenience."
The evidence at trial was that the Coast Guard received two different responses to questions concerning the vessel's country of registration (Costa Rica and Honduras), as well as inconsistent answers to other questions. There was testimony that the "Ocean Lady" was flying a Honduran flag and that the vessel was not flying any flag. Under these circumstances, the jury instruction was proper. It was within the jury's province to determine whether Appellants were claiming two nationalities according to convenience. While the jury might have concluded that the vessel's captain did not understand the first set of questions enabling the jury to disregard the inconsistent answers, the jury instruction provided the jury with that opportunity. The jury instruction was therefore not erroneous as unsupported by the evidence.
A vessel may be stateless under the Convention on the High Seas if it claims two or more nationalities according to convenience or if it is a vessel which...
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