U.S. v. Mena

• Decision Date: 23 January 1989
• Docket Number: No. 87-5333,87-5333
• Citation: 863 F.2d 1522
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Concepcion MENA, Alfredo Brack-Brack, Nurberto Diaz-Zabaleta, Esteban Angulo Perez, Regulo Cuesta Cogollo, Manuel Medina-Tellez, Wilfredo Aurela-Zuniga, Humberto Tellez-Molina, Defendants- Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1522

863 F.2d 1522

UNITED STATES of America, Plaintiff-Appellee, v. Concepcion MENA, Alfredo Brack-Brack, Nurberto Diaz-Zabaleta, Esteban Angulo Perez, Regulo Cuesta Cogollo, Manuel Medina-Tellez, Wilfredo Aurela-Zuniga, Humberto Tellez-Molina Defendants- Appellants.

No. 87-5333.

United States Court of Appeals Eleventh Circuit.

Jan. 23, 1989.

Kathy Hamilton, Coconut Grove, Fla., for Mena.

Richard C. Klugh, Jr., Asst. Federal Public Defender, Miami, Fla., for Brack-Brack.

Michael Catalano, Miami, Fla., for Diaz-Zabaleta, Tellez-Molina.

Blas E. Padrino, Miami, Fla., for Perez.

Jose R.E. Batista, Diaz & Batista, P.A., Hialeah, Fla., for Cogollo.

Calianne P. Lantz, Miami, Fla., (court-appointed), for Zuniga.

Sonia Escobio O'Donnell, Linda Collins Hertz, Asst. U.S. Attys., for U.S.

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

Before KRAVITCH and EDMONDSON, Circuit Judges, and HOFFMAN ^*, Senior District Judge.

KRAVITCH, Circuit Judge:

Unanswered questions under the Maritime Drug Law Enforcement Act continue to arise. These eight defendants ¹ appeal the convictions and sentences they received for possessing with the intent to distribute more than one thousand kilograms of marijuana, and for conspiring to do the same, in violation of 21 U.S.C. Secs. 955a & 955c, as amended by Pub.L. No. 99-570, hereinafter referred to as (and now codified at) 46 U.S.C.App. Sec. 1903. We affirm the convictions and the sentences.

I.

On November 21, 1986, the United States Coast Guard cutter Cape Upright arrested the Honduran vessel Don Yeyo as it sailed in international waters east of the Bahamas. The Coast Guard had observed the sixty or seventy-foot ship riding low in the water and had signalled for it to stop. The vessel appeared to change course when approached and did not heed the Coast Guard's initial request; the Coast Guard therefore enlisted the aid of a nearby United States Navy ship to induce the Don Yeyo to stop. As they drew near the vessel, Coast Guard crewmen began to smell marijuana.

With the permission of the master, defendant Brack-Brack, the Coast Guard boarded the vessel. The boarding party searched the Don Yeyo and found in the cargo holds thirty-five thousand pounds of baled marijuana. The officers then arrested all eight persons aboard the Don Yeyo, who were unarmed; but the officers did not inform the sailors of their Miranda rights. After contacting the Honduran government and receiving permission to enforce United States law aboard the Don Yeyo, the Coast Guard officers escorted the eight defendants to Miami. There, after receiving Miranda warnings, the defendants gave statements to federal drug-enforcement agents.

At a joint trial, a Coast Guard officer identified the defendants as the persons he observed aboard the Don Yeyo. Only two of the defendants testified before the jury. Defendant Aurela-Zuniga stated that he was hired in Colombia as a crewman aboard a vessel sailing for Bermuda. According to his testimony, he was transported to the vessel, some sixty miles offshore, where he boarded without looking into the cargo hold. He smelled nothing unusual at that time, nor did he look into the hold during the voyage. Defendant Brack-Brack testified that he had been asked to master an empty vessel from Colombia to Bermuda; although he later discovered that the vessel contained marijuana, he was forced at gunpoint and by threats to his family to pursue the scheme. Aurela-Zuniga also testified that Brack-Brack was threatened with a gun.

II.

The defendants assign several points of error. ² First, they insist that the trial court erroneously denied a motion to dismiss their indictment. Second, defendants submit that a suppression motion was denied improperly. Third, Brack-Brack argues that the trial court erred in denying his request that a drug-enforcement agent produce notes of his confession. Fourth, defendants allege that the evidence adduced was insufficient to prove their guilt beyond a reasonable doubt. Fifth, defendants argue that jurisdiction over the vessel is an element of the crime with which they were charged, and assert that the jury had before it no admissible evidence tending to show that the United States had such jurisdiction. Sixth, several of the defendants object that counsel for Brack-Brack, during closing argument, referred to the fact that some defendants chose not to testify, and further claim that Brack-Brack's lawyer suggested to the jury that the other defendants had criminal records. Seventh, defendants argue that the jury was not given correct instructions. Finally, defendants complain that they were improperly sentenced.

A. The motion to dismiss

The defendants were indicted on December 3, 1986, for a crime committed on November 21, 1986. The indictment charged them with violations of 21 U.S.C. Secs. 955a & 955c, as amended by Pub.L. 99-570 on October 27, 1986. They argue that 21 U.S.C. Secs. 955a & 955c did not exist as of the date of the indictment, claiming that these sections were repealed by Pub.L. 99-570. This argument is without merit. Public Law 99-570 revised 21 U.S.C. Secs. 955a & 955c, but did not repeal those sections. Those sections were originally part of Pub.L. 96-350. Section 3202 of Pub.L. 99-570 provides that "... Public Law 96-350 ... is amended by striking all after the enacting clause and inserting in lieu thereof the following ..." (emphasis supplied). 100 Stat. 3207-95 (1986). Sections 955a and 955c, after amendment by Pub.L. 99-570, are now codified at 46 U.S.C.App. Sec. 1903.

The defendants argue that 46 U.S.C.App. Sec. 1903 is unconstitutional on its face because it proscribes conduct that has no "meaningful relationship" to the United States. Although several cases in our circuit and other circuits uphold the constitutional validity of the enactment under which the defendants were convicted, we need not rehearse their reasoning now, for the defendants have simply failed even to suggest "that no set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987). Such is the defendant's burden in a case challenging the facial validity of a congressional enactment on other than first-amendment grounds; that 46 U.S.C.App. Sec. 1903 "might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid." Id.

The defendants also suggest that section 1903 is void for vagueness because it fails to give defendants fair notice of what activity is prohibited; specifically, the defendants argue that the phrase "vessel subject to the jurisdiction of the United States" is an "inadequately define[d] esoteric and technical term[ ]." The due-process clause of the fifth amendment requires that a statute be declared void if it is so vague that "men of common intelligence must necessarily guess at its meaning and differ as to its application." Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). Statutory language must convey "sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices." Jordan v. De George, 341 U.S. 223, 231-32, 71 S.Ct. 703, 708, 95 L.Ed. 886 (1951). We considered and rejected an argument asserting the vagueness of the predecessor of section 1903, 21 U.S.C. Sec. 955a, in United States v. Gonzalez, 776 F.2d 931 (11th Cir.1985). Finding our conclusions in Gonzalez equally applicable to 46 U.S.C.App. Sec. 1903, we reaffirm them:

There is nothing vague about the statute. Congress has provided clear notice of what conduct is forbidden: any possession of marijuana on the high seas with intent to distribute. The United States will enforce this law to the full extent of its ability under international law.... Those embarking on voyages with holds laden with illicit narcotics, conduct which is contrary to laws of all reasonably developed legal systems, do so with the awareness of the risk that their government may consent to enforcement of the United States' laws against the vessel.

776 F.2d at 940-41. Similarly, we find nothing unduly vague in the phrase "vessel subject to the jurisdiction of the United States." Congress provided a rather detailed, though non-exhaustive, definition of this term in 46 U.S.C.App. Sec. 1903(c)(1). The fact that the defendants in their brief suggest a few potential interpretational difficulties ³ hardly justifies a conclusion that the language is unconstitutionally vague. ⁴

Finally, as we concluded in Gonzalez, the statute does not operate ex post facto. To be sure, defendants were subject to arrest only after Honduras gave its consent to the enforcement of United States law. The conduct prohibited by the statute, however, was clearly defined before the defendants embarked on their voyage. Defendants accepted the risk that Honduras would consent. 776 F.2d at 938-41.

B. The motion to suppress

Defendants assert that no witness ever testified to the reasonableness of the Coast Guard's suspicion that the Don Yeyo was being used to smuggle contraband into the United States. Therefore, defendants argue, the marijuana should have been suppressed as the fruit of an illegal search. Alternatively, defendants claim they were entitled to a suppression hearing.

Record testimony reveals that the vessel sailed within striking distance of the Florida coast, was riding very low in the water, seemed to change course when approached, did not stop when requested, and smelled of marijuana prior to the Coast Guard's boarding. These factors, viewed together, were sufficient to induce a reasonable suspicion of violation of United States law. United States v. Pearson, 791 F.2d 867, 870 (11th Cir.), cert. denied, 479 U.S. 991, 107 S.Ct. 590, 93 L.Ed.2d 591 (1986); United States v. Reeh, 780 F.2d 1541, 1547 (11th Cir.1986); United States v. Williams, 617 F.2d...