U.S. v. Ospina
| Decision Date | 03 August 1987 |
| Docket Number | No. 86-3140,86-3140 |
| Citation | 823 F.2d 429 |
| Parties | 23 Fed. R. Evid. Serv. 998 UNITED STATES of America, Plaintiff-Appellee, v. Luis Alberto OSPINA, Luis Alfredo Ramos, Cornelio Valencia-Mena, Luis Miranda Barrios, George Allen, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Ernst Mueller, Asst. U.S. Atty., Jacksonville, Fla., for U.S.
David Rothman, (Court-appointed), Thornton Rothman & Moreno, Miami, Fla., for Allen.
Appeals from the United States District Court for the Middle District of Florida.
Before RONEY, Chief Judge, EDMONDSON, Circuit Judge, and TUTTLE, Senior Circuit Judge.
Luis Alberto Ospina, Cornelio Valencia-Mena, Luis Alfredo Ramos, Luis Miranda Barrios, and George Allen appeal their convictions for knowingly possessing and causing to be possessed marijuana on board a vessel of the United States and on board a vessel subject to the jurisdiction of the United States, with intent to distribute a quantity of marijuana in excess of 50 kilograms in violation of the Marijuana on the High Seas Act of 1980, 21 U.S.C.A. Secs. 955a(a), 960, and 18 U.S.C.A. Sec. 2. On appeal, all five defendants argue that a mistrial should have been granted because of an alleged variance between the indictment and the evidence adduced at trial. Defendants Ospina, Valencia-Mena, Ramos and Barrios allege two additional errors of the district court: (1) denial of their motions in limine to exclude other acts evidence under Fed.R.Evid. 404(b), and (2) denial of their motions for judgment of acquittal for insufficient evidence pursuant to Fed.R.Crim.P. 29. We affirm.
On October 1, 1985, the United States Coast Guard cutter TANEY intercepted in international waters, approximately 300 miles off the coast of Cape Hatteras, the tug SEA MAID I and the barge GUZZETTA 100, which was connected to the tug by a 200-yard towline. The Coast Guard officers boarded the SEA MAID I on October 3, with consent of the master, defendant Allen, who said that the tug was of Honduran registry. The TANEY sought verification, through Coast Guard and diplomatic channels, of the SEA MAID I's asserted Honduran registry. The Honduran Government refuted the tug's registry based on the registration numbers that Allen had provided. The following day, the Coast Guard officers boarded both vessels without consent, treating the vessels as stateless. The Coast Guard officials who boarded the barge found documentation indicating its United States registry and approximately 165,000 pounds of marijuana contained within the GUZZETTA 100's hold. No contraband was found aboard the tug.
The indictment on which the defendants were tried charges them with possession of marijuana "on board a vessel subject to the jurisdiction of the United States." 1 The district court instructed the jury that in a section 955a case, a vessel is subject to the jurisdiction of the United States if it is without nationality or the government of foreign registration has consented to the assertion of United States jurisdiction.
A Honduran official testified on the third day of trial that the SEA MAID I was Honduran and that the Government of the Honduras consented to the prosecution. The defendants argue that this is a section 955a, subsection (a) indictment, a separate crime from a subsection (c) case which involves consent. Thus, they contend: (1) the consent evidence constituted a "constructive amendment" of the indictment resulting in conviction for an uncharged offense, namely, 21 U.S.C.A. Sec. 955a(c), in violation of the Fifth Amendment right to be tried on the charges presented by the Grand Jury, and (2) the consent evidence altered the jurisdictional element pleaded in the indictment, i.e., the tug was "stateless," resulting in a prejudicial variance from the indictment, which denied them a fair trial. The defendants claim prejudice because their defense to the stateless vessel charge was that the SEA MAID I was a Honduran registered vessel, not a stateless vessel "subject to the jurisdiction of the United States" under section 955a(a).
Subsection (a) of 21 U.S.C.A. Sec. 955a, refers to a vessel "subject to the jurisdiction of the United States":
(a) 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 on the high seas, to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance.
Subsection (c) of 21 U.S.C.A. Sec. 955a, refers to "any vessel within the customs waters of the United States":
(c) It is unlawful for any person on board any vessel within the customs waters of the United States to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance.
A vessel "subject to the jurisdiction of the United States" is further defined as including "a vessel without nationality." 21 U.S.C.A. Sec. 955b(d). Nations may designate "customs waters of the United States" around a specific vessel by "treaty or other arrangement," including informal consent. 19 U.S.C.A. Sec. 1401(j).
This Court has consistently held that the subsections of 21 U.S.C.A. Sec. 955a state separate offenses. See United States v. Luis-Gonzalez, 719 F.2d 1539, 1547-48 (11th Cir.1983) (); United States v. Vidal-Hungria, 794 F.2d 1503, 1510 (11th Cir.1986) (). In these cases, the Court has relied on Congress' purpose in enacting section 955a "to prohibit all acts of illicit trafficking in controlled substances on the high seas which the United States can reach under international law." H.R.Rep. No. 96-323, 96th Cong., 1st. Sess. 11 (1979). See Luis-Gonzalez, 719 F.2d at 1547; Vidal-Hungria, 794 F.2d at 1510. Thus, 21 U.S.C.A. Sec. 955a is broadly construed in order to effectuate its purpose. United States v. Correa, 750 F.2d 1475, 1480 (11th Cir.1985).
The decision in this case is controlled by United States v. Gonzalez, 776 F.2d 931 (11th Cir.1985). In Gonzalez, this Court held that "[i]t is misleading ... to consider that consent [is] an element of the offense; rather, it is a diplomatic requisite illustrating the international partnership that ensures the rule of law on the high seas." Id. at 940 (emphasis in original). Finding that "Congress likely believed that obtaining consent would not unduly hinder enforcement efforts," id., the Gonzalez Court further held that consent does not create a notice problem. Id. at 941. In so holding, the Court stated:
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.
Assuming, without specifically so deciding, that the defendants here have standing to challenge the admission of the consent evidence, see United States v. Williams, 617 F.2d 1063, 1090 (5th Cir.1980) (en banc ) (); Gonzalez, 776 F.2d at 940 n. 14 (), we hold that the convictions here are not constitutionally infirm. The district court acted within its discretion in admitting the evidence of the Honduran Government's consent and in denying the defendants' motions for mistrial.
First, the defendants' "constructive amendment" argument is unavailing. Gonzalez clearly establishes that consent is not an element in a section 955a case. Therefore, defendants cannot prevail under the argument that a defendant has the "substantial right to be tried only on charges presented in an indictment returned by a grand jury," Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960), and that a conviction obtained on an "extraneous element" defeats this substantial right. United States v. Bizzard, 615 F.2d 1080, 1082 (5th Cir.1980), cert. denied, 459 U.S. 973, 103 S.Ct. 305, 74 L.Ed.2d 286 (1982). See also United States v. Fitapelli, 786 F.2d 1461, 1463-64 (11th Cir.1986) ().
Second, since Gonzalez also holds that consent does not create a notice problem in a section 955a case, the defendant's variance argument cannot prevail. In United States v. Ramos, 666 F.2d 469 (11th Cir.1982), this Court stated:
A variance warrants reversal solely if it is prejudicial, meaning that it affects a defendant's substantial rights, 'either by insufficiently informing him of the charges against him such that he is taken by surprise and prevented from presenting a proper defense, or by affording him insufficient protection against reprosecution for the same offense.' United States v. Juarez, 573 F.2d 267, 278 (5th Cir.1978).
Id. at 477. Although it might be better practice for the Government to plead in the indictment each of the section 955a subsections where the vessel's registry is unclear, the convictions in this case must stand. See, e.g., United States v. Knight, 705 F.2d 432 (11th Cir.1983).
In any event, regardless of the registry of the SEA MAID I, a reasonable trier of fact could find that the barge GUZZETTA 100 was a "vessel of the United States" under 21 U.S.C.A. Sec. 955a(a). The marijuana was found on the barge. The defendants had constructive possession of the contraband aboard the GUZZETTA 100 and were constructively present on the barge for purposes of jurisdiction. See United States v. Knight, 705 F.2d 432 (11th Cir.1983); United States v. Brantley, 733 F.2d 1429 (11th Cir.1984...
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