U.S. v. Maynard

• Citation: 888 F.2d 918
• Decision Date: 31 July 1989
• Docket Number: Nos. 88-1804,s. 88-1804
• Parties: UNITED STATES of America, Appellee, v. Errol MAYNARD, Defendant, Appellant. UNITED STATES of America, Appellee, v. Glen PETERSEN, Defendant, Appellant. UNITED STATES of America, Appellee, v. Austin CAINES, Defendant, Appellant. to 88-1806. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 918

888 F.2d 918

112 A.L.R.Fed. 729

UNITED STATES of America, Appellee, v. Errol MAYNARD, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Glen PETERSEN, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Austin CAINES, Defendant, Appellant.

Nos. 88-1804 to 88-1806.

United States Court of Appeals, First Circuit.

Heard July 31, 1989.

Decided Sept. 14, 1989.

Lydia Lizarribar-Masini (argued), by appointment of the Court, for appellant Errol Maynard.

Virginia Chosed, with whom Entin, Schwartz, Margules, and Lazarus, were on brief, for appellant Glen Petersen.

Eric M. Quetglas Jordan, San Juan, P.R., for appellant Austin Caines.

Antonio R. Bazan, Asst. U.S. Atty., Crim. Div., with whom Charles E. Fitzwilliam, Acting U.S. Atty., was on brief, for U.S.

Before BOWNES and SELYA, Circuit Judges, and HARRINGTON, U.S. District Judge, of the District of Massachusetts, sitting by designation.

BOWNES, Circuit Judge.

Defendants-appellants Errol Maynard, Glen Petersen, and Austin Caines, appeal their jury conviction of possession with intent to distribute marijuana, in violation of 46 U.S.C.App. Sec. 1903(a), (c), and (f), on the grounds, inter alia, that their vessel was not subject to the jurisdiction of the United States when the Coast Guard boarded and searched it. We reverse the convictions for lack of jurisdiction.

I. BACKGROUND

A. The Undisputed Facts

On February 16, 1988, the United States Coast Guard Cutter Vashon was conducting a routine patrol along the south coast of Puerto Rico, when it sighted a 30 foot sailing vessel, the Carpe Diem, approximately 20 nautical miles south of Ponce, Puerto Rico. There is a conflict in the testimony about the flag the vessel was flying which we discuss in detail infra. The Vashon maneuvered alongside the sailboat and the commanding officer of the Vashon, William L. Ross, indicated that he wanted to converse with the sailboat's occupants on the VHF marine radio. In the ensuing radio conversation, the master of the Carpe Diem, codefendant Errol Maynard, stated that they were sailing from Venezuela to Barbuda, but did not identify the port of departure. Ross requested Maynard's consent to board the sailing vessel. Maynard consented to the boarding, and complied with Ross' request to douse the sails and stop the vessel.

A four-man armed boarding party, commanded by Lieutenant Michael Emerson, was launched from the Vashon in a small boat, and it circled the Carpe Diem. Permission to board the Carpe Diem was verbally confirmed by Maynard. The boarding party observed three persons aboard the Carpe Diem, codefendants Errol Maynard, Glen Petersen, and Austin Caines. Upon boarding, the coast guard smelled marijuana, conducted a security sweep, in which each interior compartment was examined, and found bales of what appeared to be marijuana in the cabin. Two chemical field tests were conducted on the spot and the bales were tested positive for marijuana. The boarding party also found: other nations' flags inside the chart table and lockers; two radio licenses with United States Virgin Islands' registration numbers; a passport belonging to Maynard which indicated that he was a British citizen from the British Virgin Islands; and a driver's license belonging to Petersen which indicated that he also was a citizen of the British Virgin Islands.

Emerson reported, via the radio, to Ross, who had remained on the Vashon, that because marijuana was present on the Carpe Diem and because no evidence of registration or documentation of nationality for the Carpe Diem had been found, he recommended that the Carpe Diem be considered a stateless vessel. Ross requested and received, via telephone and teletype circuits, from his operational commander in San Juan, who in turn had contacted the Commandant of the United States Coast Guard in Washington, D.C., a statement of no objection to declaring the Carpe Diem a stateless vessel and seizing it. Both Ross and Emerson testified at trial that to their knowledge, at no time was Great Britain or the British Virgin Islands asked for a statement of "no objection" to board the Carpe Diem; nor was there any evidence that anybody made such a request. ¹ The three codefendants were then arrested and the Carpe Diem seized.

On February 24, 1988, the three codefendants were charged with a one count indictment of possession of approximately 660 kilograms of marijuana with intent to distribute, in violation of 46 U.S.C.App. Sec. 1903(a), (c), and (f), and 18 U.S.C. Sec. 2. The defendants entered a plea of not guilty, and on March 15, 1988, filed a motion for suppression of evidence, claiming that the United States lacked jurisdiction to board and search the vessel. The motion was denied, and a two-day jury trial commenced on April 20, 1988. The defendants' motion for suppression of evidence was renewed and preserved during the trial. The defendants' Rule 29 motion for a judgment of acquittal, on the grounds that the Coast Guard had no jurisdiction at the time it boarded the Carpe Diem, was denied at the close of the government's case and again at the close of all the evidence.

During the trial, the defendants maintained that possession of the marijuana had been forced upon them by the people who had hired them to transport the Carpe Diem from Venezuela to Barbuda, and that at the time that they had agreed to transport the vessel they had no intention of possessing or distributing drugs. The defendants testified that a few hours after they had set sail, a speedboat carrying the people who had hired them, intercepted them and forced them at gunpoint to take the marijuana, and that they had intended to notify the authorities of what happened when they docked. It was the government's position that the defendants were intentionally possessing with intent to distribute the marijuana. Its case was based essentially on the following facts: that marijuana was found on board the Carpe Diem; that the vessel was 250 miles off course from its purported route; that the crew did not name a port of departure; that there was no registration or proper documentation on board; and that flags of nations other than the one the Carpe Diem was flying were found inside the cabin. A guilty verdict was returned by the jury on April 21, 1988.

The basis of defendants' jurisdictional appeals is that no effort was made to obtain a "no objection" statement from Great Britain, the claimed country of registry.

B. The Disputed Facts

The testimony bearing on what flag the Carpe Diem was flying was as follows. Captain Ross testified that the name of the boat, Carpe Diem, was painted on the stern of the vessel, but did not show a home port or registration numbers, that prior to boarding, a courtesy flag was observed flying on the Carpe Diem, but that it was not identified as a British Virgin Islands' flag until after the Coast Guard boarded the Carpe Diem. The government's other witness, Lieutenant Emerson, the commander of the boarding party, also testified that the name Carpe Diem was painted on the stern, but, in contrast to Ross' testimony, Emerson testified that the flag that was flying on the Carpe Diem was identified as a British Virgin Islands' courtesy flag by the Coast Guard crew before they boarded the Carpe Diem. Emerson further testified that the Carpe Diem's captain, Maynard, had stated during the initial radio conversation, prior to boarding, that he was a citizen of the British Virgin Islands and that the nationality of the Carpe Diem was British. The 7th Coast Guard District Law Enforcement Checklist, prepared by Lieutenant Emerson after the interception of the Carpe Diem, corroborates Emerson's testimony of the events. A checklist is a document which is routinely prepared by the Coast Guard for use in future criminal trials. ² It is a record of the substance and time of the events arising from Coast Guard interceptions of vessels at sea. The checklist specifically stated: that the British Virgin Islands' flag was observed five minutes after the Carpe Diem was first sighted by the Vashon; that during the initial radio contact with the Carpe Diem, before the boarding, Maynard had stated to Captain Ross that his nationality was British; that the vessel was registered under the British flag; and that a British Virgin Islands' flag was on board. ³

II. JURISDICTION

A. The Statute

46 U.S.C.App. Sec. 1903, is the amended and recodified version, effective November 10, 1986, of 21 U.S.C. Sec. 955a. It deals with the issue of which vessels are subject to the jurisdiction of the United States. The relevant parts of the statute are the following:

(a) Vessels of United States or vessels subject to jurisdiction of United States

It is unlawful for 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, to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance.

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(c) "Vessel subject to the jurisdiction of the United States" and "vessel without nationality" defined; claim of nationality or registry

(1) For purposes of this section, a "vessel subject to the jurisdiction of the United States" includes:

(A) a vessel without nationality;

(B) a vessel assimilated to a vessel without nationality, in accordance with paragraph (2) of article 6 of the 1958 Convention on the High Seas (C) a vessel registered in a foreign nation where the flag nation has consented or waived objection to the enforcement of United States law by the United States;

(D) a vessel located within the customs waters of the United States; and

(E) 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.

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(2) For purposes of this section, a ...