U.S. v. McRary

• Decision Date: 11 January 1982
• Docket Number: No. 80-5689,80-5689
• Citation: 665 F.2d 674
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clifford McRARY, Defendant-Appellant. . Unit B *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 674

665 F.2d 674

UNITED STATES of America, Plaintiff-Appellee, v. Clifford McRARY, Defendant-Appellant.

No. 80-5689.

United States Court of Appeals, Fifth Circuit.

Unit B ^*

Jan. 11, 1982.

Thomas M. Sherouse, Miami, Fla., court appointed, for defendant-appellant.

Sonia Escobio O'Donnell, Asst. U. S. Atty., Miami, Fla., John F. Murray, Acting Asst. Atty. Gen., Michael L. Paup, Chief, Appellate Section, Tax Div., Dept. of Justice, Washington, D. C., for the U. S.

Appeal from the United States District Court for the Southern District of Florida.

Before HILL, Circuit Judge, SMITH ^**, Judge, and HENDERSON, Circuit Judge.

HENDERSON, Circuit Judge:

In this appeal we are faced with a novel legal issue growing out of an unique factual situation which began as a routine kidnapping prosecution.

On July 21, 1974, the appellant, Clifford McRary, met with Earl Widener, captain of the sport fishing boat "Spook," and made arrangements for a boat trip from Key West to the Dry Tortugas. Early the next morning, McRary, his wife Patricia and their two children met Captain Widener and First Mate Mollie DeWitt aboard the "Spook" and set out for the Dry Tortugas. About 8.5 miles from the Florida coast, McRary and his wife produced guns and demanded that they be transported to Cuba. Captain Widener changed course and the "Spook" sailed into Havana harbor later that evening. After some delay, Captain Widener and DeWitt were subsequently permitted to return to the United States in the "Spook." McRary was arrested by Cuban authorities and convicted of Contra Las Seguridad Del Estado (apparently a catch-all phrase for any crime against Cuba). After serving a prison sentence in Cuba, McRary returned to the United States in 1978 and was arrested and charged with kidnapping. His first conviction was reversed by this court because he was not afforded a sufficient opportunity to assert an insanity defense. United States v. McRary, 616 F.2d 181 (5th Cir. 1980). McRary was retried and again convicted, and now raises two issues for our consideration on appeal. For reasons we explain later, we reverse.

McRary's first assignment of error deals with the federal jurisdictional basis of his indictment and conviction. The kidnapping statute, in relevant part, reads as follows:

(a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by a parent thereof, when

(1) the person is wilfully transported in interstate or foreign commerce; (or)

(2) any such act against the person is done within the special maritime and territorial jurisdiction of the United States;

shall be punished for any term of years or life.

18 U.S.C. § 1201. The indictment, tracking the language of 18 U.S.C. § 1201(a) (1), alleged that McRary unlawfully caused the captain and crew of the "Spook" to be "transported in foreign commerce." ¹ McRary's counsel objected to transportation in foreign commerce as a means of obtaining federal jurisdiction before the trial and renewed the objection at the close of the government's case. Record, vol. 6 at 7, 107. He also specifically challenged the judge's charge to the jury that jurisdiction was predicated on 18 U.S.C. § 1201(a)(1) (foreign commerce) and submitted a request to instruct the jury in the language of 18 U.S.C. § 1201(a)(2) (high seas jurisdiction). ² The district court, apparently relying on the testimony of Captain Widener that Florida territory extends approximately 10.5 miles (three Spanish leagues) out to sea, Record, vol. 6 at 88, 89, overruled the motions and instructed the jury that in order to convict they must find that McRary transported the crew in foreign commerce. ³ On appeal, McRary complains that the instruction was erroneous and that the judge's refusal to use the "high seas" jurisdictional basis in his charge requires reversal. We agree.

In order for McRary to prevail, he must overcome two hurdles. First, he must show that the jurisdictional grounds alleged in the indictment and charged to the jury were incorrect and second, that such an error affected his substantial rights and requires reversal. Fed.R.Crim.P. 52(a); see, e. g. United States v. Hughes, 658 F.2d 317 (Former 5th Cir. 1981). In response, the government contends that the jurisdictional premise alleged and charged was proper and, in the alternative, that the basis for federal jurisdiction is not an element of the offense, so any error was harmless.

Federal jurisdiction could not be predicated here on transportation in foreign commerce. Contrary to the belief of Captain Widener and, apparently, the trial judge, the territorial jurisdiction of the United States extends only three miles from this country's shores. United States v. Louisiana, 363 U.S. 1, 80 S.Ct. 961, 4 L.Ed.2d 1025 (1960). Cunard Steamship Co. v. Mellon, 262 U.S. 100, 43 S.Ct. 504, 67 L.Ed. 894 (1923); United States v. Warren, 578 F.2d 1058, 1064 n. 4 (5th Cir. 1978) (en banc); 4 M. Whiteman, International Law 1-14 (1965); W. Bishop, International Law: Cases and Materials 589-597 (1962). ⁴ It is undisputed that the kidnapping occurred 8.5 miles from shore and, hence on the high seas. This court has held, in facts similar to these, that there can be no transportation in foreign commerce where the would-be kidnappers contrive a plan in the United States to entice their victim into Mexico so that he may be abducted there by a Mexican national. United States v. McInnis, 601 F.2d 1319 (5th Cir. 1979). In reaching its decision in McInnis, the court noted that:

In contrast to the cases cited to this court where the interstate transportation followed some illegal activity, (the defendants) did not contemplate any unlawful act before (the victim) crossed the international boundary. It is true that (the defendant) attempted to "decoy" (the victim) into Mexico, but, prior to his arrival in Mexico, no unlawful interference with (the victim's) actions was intended. ⁵

601 F.2d at 1326. The government is correct, however, in pointing out that McInnis did not present the precise issue confronted here. There, the plan originated in the United States, but the act necessary for federal jurisdiction to attach would not have transpired until the intended victim had crossed into Mexico. Consequently, there was no federal jurisdiction. The problem here is slightly different. We must determine whether "transports in foreign commerce" means merely forcing a kidnapped person to enter a foreign State or whether there is a requirement of a forced departure from the United States and a subsequent involuntary entry in a foreign State. We believe that the Congress intended the latter predicate for jurisdiction.

The purpose behind the federal kidnapping law was to prevent kidnappers from evading capture by moving from one jurisdiction to another. Chatwin v. United States, 326 U.S. 455, 66 S.Ct. 233, 90 L.Ed. 198 (1946). As originally enacted in 1932, Act of June 22, 1932, Ch. 271, §§ 1, 3, 47 Stat. 326, the Lindbergh law contained the following definition of "interstate or foreign commerce":

Sec. 2. The term "interstate or foreign commerce," as used herein, shall include transportation from one State, Territory, or the District of Columbia to another State, Territory, or the District of Columbia, or to a foreign country; or from a foreign country to any State, Territory, or the District of Columbia.

It is obvious that Congress meant both interstate and foreign commerce to include transportation from one state to another state or foreign country. The word "commerce" is consistently preceded in the statute by "interstate or foreign" without any hint that "commerce" should have separate meanings for each. ⁶ In addition, Congress expressly provided for the case such as the one here, a kidnapping on the high seas, by enacting § 1201(a)(2) (high seas jurisdiction). That section invokes federal jurisdiction for an unlawful seizure "within the special maritime and territorial jurisdiction of the United States." Section 7 of Title 18, in turn, includes the high seas in the definition of special maritime and territorial jurisdiction of the United States but necessarily restricts its reach to vessels owned in whole or part by United States citizens. If we adopt the government's view and construe "foreign commerce" to include acts committed on any vessel on the high seas after the vessel enters foreign waters, the restriction in § 1201(a)(2) (high seas) to vessels with a nexus to the United States would be in conflict with § 1201(a)(1) (foreign commerce). ⁷ Furthermore, the United States would be extending its jurisdiction to include acts committed in international waters even if there were no connection between the vessel and the United States. Such an expansion of domestic jurisdiction to vessels on the high seas with no attachment to the sovereign would be a clear violation of international law. ⁸ United Nations Conference on the Law of the Sea-Convention on the High Seas, Apr. 29, 1958, Multilateral, 450 U.N.T.S. 82, T.I.A.S. No. 5200, 13 U.S.T. 2312, Art. 2, 5, 6; see United States v. Rodgers, 150 U.S. 249, 14 S.Ct. 109, 37 L.Ed. 1071 (1893); United States v. Louisiana, 363 U.S. 1, 80 S.Ct. 961, 4 L.Ed.2d 1025 (1960); United States v. Perez-Herrera, 610 F.2d 289 (5th Cir. 1980); United States v. Reagan, 453 F.2d 165 (6th Cir. 1971); United States v. One (1) 43-Foot Sailing Vessel, 405 F.Supp. 879 (S.D.Fla.1975). We therefore hold that the foreign commerce jurisdictional basis mandates that the kidnapping take place in the United States and that the victim be subsequently transported to a foreign State. Since it is uncontroverted that the kidnapping here occurred outside the United States, the trial court erred in instructing the jury on foreign commerce as the only jurisdictional element of the offense.

The government, having lost the battle, seeks to win the war by asserting...