U.S. v. Matute, 84-5701
| Citation | 767 F.2d 1511 |
| Decision Date | 12 August 1985 |
| Docket Number | No. 84-5701,84-5701 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Pleno MATUTE, Hernan Estrada, Carlos Martinez, Juan Guerreoro, Jose Saavedra, Eric Prentt and Thomas Herrera, Defendants-Appellants. Non-Argument Calendar. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Jose J. Larraz, Jr., Larraz & Larraz, PA, Miami, Fla., for matute/estrada.
Elias B. Rudnikas, Miami, Fla., for Martinez/Guerreoro.
Theodore J. Sakowitz, Federal Public Defender, Glenn Feldman, Asst. Federal Public Defender, Miami, Fla., for Saavedra & Herrera.
Henry Volpe, Miami, Fla., for Prentt.
Stanley Marcus, U.S. Atty., Andrea M. Simonton, Linda Collins-Hertz, Sonia Escobio O'Donnell, Asst. U.S. Attys., for plaintiff-appellee.
Appeals from the United States District Court for the Southern District of Florida.
Before TJOFLAT, HILL and ANDERSON, Circuit Judges.
Appellants Matute, Estrada, Martinez, Guerreoro, Saavedra, Prentt and Herrera were found in international waters by the United States Coast Guard on a boat containing 60,000 pounds of marijuana. Appellants were indicted for conspiracy to possess and possession with intent to distribute marijuana under 21 U.S.C.A. Secs. 955a(a), 955c and 18 U.S.C.A. Sec. 2. Prior to entering their pleas, all appellants joined in a motion to dismiss the indictments, asserting that the boat was not subject to the jurisdiction of the United States within the meaning of 21 U.S.C.A. Sec. 955b(d) because the boat was validly registered in Venezuela. The district court held an evidentiary hearing on appellants' motion and thereafter denied the motion, holding that the appellants' boat was "stateless" and, thus, subject to United States jurisdiction under Sec. 955b(d).
Record, vol. 2 at 73-77. Then, pursuant to a plea agreement, appellants pleaded guilty to the conspiracy count and the government agreed to dismiss the substantive count, subject to appellants' rights to appeal the district court's denial of their motion to dismiss. Id. at 78-79. This appeal ensued.
At the evidentiary hearing on appellants' motion to dismiss, Coast Guard Seaman Eddie Rolon testified on behalf of the government and appellant Jose Saavedra testified on behalf of the appellants. The facts which follow are taken from the district court's findings of fact which are not challenged on appeal. 1
On May 19, 1984, the Coast Guard cutter DILIGENCE approached the BISMARK, the ship occupied by appellants. A conversation occurred over the ships' radios between Rolon and an individual who identified himself as the acting captain of the BISMARK. The acting captain's responses to specific questions from Rolon indicated that all the members of the crew were Colombian and that the ship was of Colombian registry. After receiving these answers, Rolon asked the acting captain to display a flag or some evidence of the nationality of the vessel. At this point, the acting captain directed that a Colombian flag be displayed from the bridge of the vessel, and a flag was displayed. The district court received the flag in evidence and determined that it was in fact a Colombian flag. Id. at 74-75. After the Coast Guard boarded the BISMARK, a "hybrid" flag was found in the crew's quarters. The flag incorporated characteristics of both the Venezuelan flag and the Colombian flag. The district court also found that the BISMARK did not have a registry vessel number, a home port, or its name painted on its hull. Rather, "[t]here was a nameplate that was portable and/or removable that was hung over the side or some prominent portion of the vessel." Id. at 74.
Appellants argue, as they did in the district court, that the BISMARK was not subject to United States jurisdiction and, therefore, their convictions are invalid. It is illegal for persons "on board a vessel subject to the jurisdiction of the United States on the high seas" to possess or to conspire to possess with intent to distribute marijuana. See 21 U.S.C.A. Secs. 955a(a), 955c. "Vessel subject to the jurisdiction of the United States" is defined by statute as follows:
"Vessel subject to the jurisdiction of the United States" includes a vessel without nationality or a vessel assimilated to a vessel without nationality, in accordance with paragraph (2) of article 6 of the Convention on the High Seas, 1958.
21 U.S.C.A. Sec. 955b(d). The above-quoted statutory language permits the exercise of jurisdiction over vessels which are "stateless." The question in this case, then, is whether the BISMARK was "stateless" within the meaning of the statute and relevant case law.
There is no question that the BISMARK was not "a vessel without nationality" because it is undisputed that the BISMARK was validly registered in Venezuela. See Record, vol. 2 at 6. We must determine, however, whether the BISMARK was "a vessel assimilated to a vessel without nationality" within the meaning of the relevant portions of the Convention on the High Seas. Article 6, paragraph 2 of the Convention on the High Seas of 1958 reads as follows:
A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality.
Reprinted in 13 U.S.T. at 2315. In United States v. Batista, 731 F.2d 765 (11th Cir.1984), this court interpreted the above-quoted language as follows:
A vessel which sails under the authority of two or more states, and uses them according to convenience, such as in this case flying one flag and claiming nationality under another, will be deemed a stateless vessel.
Id. at 767; see also United States v. Marino-Garcia, 679 F.2d 1373 (11th Cir.1982), cert. denied sub nom., Pauth-Arzuza v. United States, 459 U.S. 1114, 103 S.Ct. 748, 74 L.Ed.2d 967 (1983). A brief examination of the facts as found by the district court lead us inescapably to the conclusion that the BISMARK was sailing under the authority of two nations. The BISMARK's acting captain stated that the crewmembers were Colombians and the crew presented a valid...
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