U.S. v. Passos-Paternina
| Decision Date | 12 January 1990 |
| Docket Number | ESTUPINAN-PAREDE,PASSOS-PATERNIN,ESPINOSA-SANCHE,D,AREVALO-NAVARR |
| Citation | 918 F.2d 979 |
| Parties | UNITED STATES of America, Appellee, v. Emiro Miguelefendant, Appellant. UNITED STATES of America, Appellee, v. Orlandoefendant, Appellant. UNITED STATES of America, Appellee, v. Jose Gilbertoefendant, Appellant. UNITED STATES of America, Appellee, v. Oscarefendant, Appellant. UNITED STATES of America, Appellee, v. Ricardoefendant, Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Judith Berkan, Santurce, P.R., by Appointment of the Court, for defendant, appellant Oscar Estupinan-Paredes.
Enrique Velez-Rodriguez, Hato Rey, P.R., by Appointment of the Court, for defendant, appellant Jose Gilberto Arevalo-Navarro.
Thomas R. Lincoln, San Juan, P.R., by Appointment of the Court, for defendant, appellant Emiro Miguel Passos-Paternina.
Armando Rivera Carretero, Hato Rey, P.R., by Appointment of the Court, on brief, for defendant, appellant Orlando Espinosa-Sanchez.
Lydia Lizarribar-Masini, Old San Juan, P.R., by Appointment of the Court, on brief, for defendant, appellant Ricardo Estupinan-Paredes.
Jose R. Gaztambide, Asst. U.S. Atty., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief, for the U.S.
Before SELYA, ALDRICH and CYR, Circuit Judges.
The five defendants were discovered in highly incriminating proximity to a half ton of cocaine aboard the vessel SHEME on the high seas off Puerto Rico a few months before they were tried and convicted under the Maritime Drug Law Enforcement Act. Their appeals raise a surfeit of issues fathoming the sufficiency of the evidence and the fairness of their trials. As we see no insufficiency and no unfairness, we affirm their convictions.
The night of September 3, 1988 was dark and stormy as United States Coast Guard Cutter NUNIVAK went about a routine patrol of the Caribbean waters in and around the Virgin Islands. 1 Several miles south of the island of St. John, a lookout on the NUNIVAK sighted the lights of a vessel some seven miles distant. As the NUNIVAK approached, the lights of the other vessel could no longer be seen, though radar contact was maintained except when obstructed by rising swells in the worsening storm. Approximately forty minutes later the NUNIVAK's searchlight serendipitously illuminated a flagless vessel, her stern bearing the name SHEME but no homeport designation. NUNIVAK attempted radio contact in Spanish and English, but no response penetrated the stormy ether. Instead, the SHEME changed course and began criss-crossing NUNIVAK's bow, nearly occasioning a collision.
Finally, the voice of SHEME's master was heard over NUNIVAK's radio: "Llamando el barco Americano"--"Calling the American ship." Lieutenant Donovan, deck watch officer aboard the NUNIVAK, asked for the official name of the vessel, its last port of call, its next port of call, the number of persons on board, and the type of cargo. The master responded that SHEME's last port of call had been Barranquilla, Colombia, five persons were on board, all Colombian citizens, and that SHEME carried no cargo, as she was en route to Tortola, in the British Virgin Islands, for sale to a new owner. When Lt. Donovan requested SHEME's registration number, the master responded that he was not its owner and would not be able to provide the registration number until he contacted his agent in Colombia the next morning. The master refused to consent to boarding. Lt. Donovan testified that at some point during their radio communications the master stated that the SHEME was a Colombian vessel.
Around midnight the NUNIVAK received permission from Coast Guard headquarters in San Juan to board the SHEME without its consent. The SHEME refused to respond to Lt. Donovan's entreaties to heave to so as to permit a safe boarding in the stormy seas. The NUNIVAK sounded general quarters, manned its guns, and fired across SHEME's bow. The SHEME hove to.
Prior to the boarding, Lt. Donovan instructed SHEME to muster all personnel at her stern. The master stated that SHEME was a Panamanian vessel, again advising that he did not consent to the boarding and wished to contact his agent in Barranquilla in the morning.
The Coast Guardsmen proceeded to board. As Lt. Donovan and five armed seamen came over the gunwales, SHEME's crew was nowhere to be seen. As the boarding party cautiously began to explore the vessel, they came upon four crew members in the cabin wiping copious quantities of grease from their bodies. There were two flags--Colombian and Panamanian--in the cabin. The master was in the pilothouse, near the radio. The master presented Lt. Donovan with an expired Panamanian vessel registration, giving Barranquilla as its homeport, and papers identifying each crew member as a Colombian citizen.
A preliminary search disclosed no contraband. The vessel was shipshape throughout, except for the grease-covered inspection plates on the fresh-water drinking tanks. The boarding party proceeded to open one of the inspection plates and found that the tanks were filled with water. While removing the plate, however, the Coast Guardsmen noticed another inspection plate, previously overlooked, located on a bulkhead originally believed to be the inner wall of the SHEME's transom. The plate was heavily laden with grease, several bolts were loose and several were missing. The removal of the inspection plate exposed a hidden storage compartment, containing nearly four hundred styrofoam containers wrapped in green tape; some had been opened and emptied. The white crystalline contents from one package field-tested as cocaine. Later chemical analysis indicated that the entire cocaine cargo consisted of 386.2 kilograms of 94 percent pure cocaine.
It is unlawful for any person "on board a vessel subject to the jurisdiction of the United States ... to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance." 46 U.S.C.App. Sec. 1903(a). It is an essential element of the offense criminalized under section 1903(a) that the vessel be shown to have been "subject to the jurisdiction of the United States." United States v. Maynard, 888 F.2d 918, 926 (1st Cir.1989). A "vessel subject to the jurisdiction of the United States" includes:
(A) a vessel without nationality; 2(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;
....
46 U.S.C.App. Sec. 1903(c)(1).
As SHEME was not "a vessel without nationality" under section 1903(c)(1)(A), we consider whether there was sufficient evidence adduced to demonstrate that she was a "vessel assimilated to a vessel without nationality," within the meaning of 46 U.S.C.App. Sec. 1903(c)(1)(B) and article 6, p 2 of the 1958 Convention on the High Seas. The 1958 Convention on the High Seas, to which section 1903(c)(1)(B) refers, provides that "[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 vessel without nationality." Convention on the High Seas, art. 6(2), opened for signature April 29, 1958, 13 U.S.T. 2312, T.I.A.S. No. 5200.
Although we are presented with an issue of first impression in this Circuit, on several occasions the Eleventh Circuit construed former 21 U.S.C. Sec. 955a, the predecessor to section 1903. See, e.g., United States v. Marino-Garcia, 679 F.2d 1373, 1378 n. 3 (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); United States v. Batista, 731 F.2d 765, 767 (11th Cir.1984) (); United States v. Matute, 767 F.2d 1511, 1513 (11th Cir.1985) (); United States v. Gonzalez, 810 F.2d 1538, 1542 (11th Cir.1987) ().
The vessel SOMAPE IV was considered "stateless," United States v. Ayarza-Garcia, 819 F.2d 1043 (11th Cir.), cert. denied, 484 U.S. 969, 108 S.Ct. 465, 98 L.Ed.2d 404 (1987), in circumstances very similar to the present. The Coast Guard initiated contact with SOMAPE IV through a cardboard loudhailer. There was conflicting evidence as to whether SOMAPE IV had made a claim of Colombian registry or, as appellants urged, merely asserted that the crew was Colombian. A search of the vessel disclosed Panamanian registration papers. The Eleventh Circuit viewed the evidence in the light most favorable to the government and concluded that SOMAPE IV was "assimilated to a vessel without nationality." Id. at 1047-48.
In United States v. Potes, 880 F.2d 1475, 1480 n. 3 (1st Cir.1989) (quoting Ayarza-Garcia, supra ), we intimated receptivity to construing article 6(2) of the 1958 Convention on the High Seas in this fashion; we now make our position explicit. We agree with the Eleventh Circuit that the clear purport of article 6(2) of the 1958 Convention on the High Seas requires that a vessel which sails under the authority of two or more nations be considered "assimilated to a vessel without nationality." Furthermore, in the circumstances of the present case, we hold that the...
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