U.S. v. Pinto-Mejia

Citation720 F.2d 248
Decision Date15 February 1984
Docket NumberO,D,1191,1190,1204 and 1195,Nos. 1189,1162,1203,PINTO-MEJI,1193,1192,1194,1213,s. 1189
Parties14 Fed. R. Evid. Serv. 705 UNITED STATES of America, Plaintiff-Appellee, v. Gsaac Gorgerlando Espinosa Sanchez, Jorge Eliecer Cordoba- Lezcano, Luis Ancizar Castenad-Garjales, Luis Alfonso Barker-Michel, Carlos Osorio-Alvarez, Luis Francisco Mayorga, Jose Felix Angulo-Quinones, Roberto Nunez-Riasco, Blas Enrique Vargas-Rios, Euclidez Vello-Garcia, Defendants- Appellants. ockets 82-1412 to 82-1417, 82-1421 to 82-1424 and 82-1433.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

John N. Villios, Asst. U.S. Atty., Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty., E.D.N.Y., Jane Simkin Smith, Asst. U.S. Atty., Brooklyn, N.Y., on brief), for plaintiff-appellee.

Lawrence Hilliard Levner, New York City, for defendant-appellant Pinto-Mejia.

Edward J. Quinn, Brooklyn, N.Y., for defendant-appellant Sanchez.

Michael F. Grossman, New York City, for defendant-appellant Cordoba-Lezcano.

Allen Lashley, Brooklyn, N.Y., for defendant-appellant Castenad-Garjales.

Lawrence J. Gross, Elmhurst, N.Y., for defendant-appellant Barker-Michel.

Richard I. Rosenkranz, Brooklyn, N.Y., for defendant-appellant Osorio-Alvarez.

Joel B. Rudin, New York City (Rudin & Levitt, New York City, on brief), for defendant-appellant Mayorga.

Raphael F. Scotto, Brooklyn, N.Y., for defendant-appellant Angulo-Quinones.

Robert A. Ugelow, Brooklyn, N.Y., for defendant-appellant Nunez-Riasco.

Phylis Skloot Bamberger, New York City (The Legal Aid Society, Federal Defender Services Unit, New York, on brief), for defendant-appellant Vargas-Rios.

Philip Katowitz, Brooklyn, N.Y., for defendant-appellant Vello-Garcia.

Before KEARSE, PIERCE and PECK, **, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Gsaac Gorge Pinto-Mejia and ten codefendants appeal from judgments entered in the United States District Court for the Eastern District of New York, Henry Bramwell, Judge, convicting them of one count of possessing with intent to distribute approximately twenty tons of marijuana on board a vessel subject to the jurisdiction of the United States on the high seas, in violation of 21 U.S.C. Sec. 955a(a) (Supp. V 1981). The judgments were entered following defendants' agreement, consented to by the government and the court, to plead guilty on that count on the condition that they be allowed to challenge on appeal the lawfulness of the seizure by the United States Coast Guard of the marijuana from the hold of the vessel. 1 The defendants contend

here that the judgments should be reversed and the indictment dismissed because (1) the vessel was not subject to the jurisdiction of the United States, and hence the district court lacked subject matter jurisdiction, and (2) the Coast Guard's boarding, search, and seizure of the vessel violated defendants' rights under the Fourth Amendment to the Constitution. Although we find no merit in the second ground, we conclude that a question remains as to the jurisdictional ground and we remand for further proceedings.

I. BACKGROUND

Pinto-Mejia and his codefendants are Colombian nationals who were members of the crew of the RICARDO, a vessel intercepted by the Coast Guard on the high seas, some 200 miles off the point of Montauk. Most of the material facts as to the interception, presented to the district court largely through affidavits and testimony at a suppression hearing, are undisputed.

A. The Interception, Boarding, and Search of the RICARDO

On June 26, 1982, the Coast Guard cutter DUANE, an ocean-going ship, was engaged in a cadet training cruise and a routine law enforcement patrol in an area approximately 100 miles southeast of Nantucket, Massachusetts. At approximately 8:10 a.m., deck officer Ensign Thomas Willis detected by radar a vessel headed on a southwesterly course toward the United States mainland. The course of the DUANE was then altered so that the vessel could be intercepted and its identity determined. At about 9:15 a.m., Willis sighted the vessel through high-powered binoculars from a distance of about seven miles and observed that it appeared to be a fishing boat some 70 to 80 feet long, traveling at a speed of about 9 knots. The vessel, which was not flying a flag, was then on a southeasterly course headed away from the mainland. As the DUANE drew closer to the fishing boat, Willis noticed that the name "RICARDO" was crudely painted on the stern of the boat, that there was a large quantity of running rust on the hull, that the boat's block and tackle were in a state of disrepair, and that the RICARDO carried no fishing gear such as would normally be carried by an active fishing vessel. Willis also noted that the waterline on the RICARDO appeared to be freshly painted and to be higher than the level of the boat's natural waterline. Based on these observations and his Coast Guard experience with other vessels exhibiting similar characteristics, Willis concluded that the RICARDO might be smuggling narcotics. A check of the DUANE's computer revealed that on April 29, 1982, the RICARDO had been seen in Barranquilla, Colombia, a known drug exporting port.

As the DUANE approached the RICARDO, the Coast Guard attempted to contact the RICARDO by radio, by the ship's public address system, and by bullhorn in both Spanish and English, requesting that the RICARDO call the DUANE by radio. No response was received, but a half-hour later a member of the RICARDO's crew raised a Venezuelan flag. The Coast Guard continued its requests for radio contact and broadcast a message that the DUANE was attempting to contact the Venezuelan government for permission to board the RICARDO.

During the afternoon of June 26, as the DUANE followed the RICARDO at a distance of some 200 to 300 yards, Lieutenant Thomas Haas, the officer in charge of cadet training, detected from his position on the deck of the DUANE the odor of marijuana drifting back from the RICARDO. 2 Haas testified, without objection from the defendants, that the operations officer and commanding officer also had smelled the odor of marijuana.

The DUANE continued to follow the RICARDO and to try to establish communication with it throughout June 26 and on June 27. On the afternoon of June 27, the Once on board the RICARDO, Willis was informed 4 by one member of the crew, later identified as defendant Roberto Nunez-Riasco, that the captain of the RICARDO had sailed away in a small boat three days earlier, seeking food and water, and had taken the RICARDO's registration papers and other documentation with him. Nunez-Riasco stated that he did not know from where the RICARDO was coming or where it was going, and that the captain had told the crew to steer a 180-degree course until he returned. Willis requested and received from Nunez-Riasco permission to look around the vessel and to open its compartments. Willis and members of the boarding party then opened the main hold and discovered what turned out to be approximately 20 tons of marijuana. Upon searching the rest of the vessel, Willis found, among other things, four flags under a mattress, including flags of Ecuador and the Dominican Republic. A crew member stated that the boat was of Venezuelan nationality.

                Coast Guard repeatedly sought permission to board the RICARDO, and eventually one of the crew members of the RICARDO came onto the deck and directed a thumbs-up signal toward the DUANE, which the Coast Guard interpreted as permission to board. 3   Following the thumbs-up signal, the Coast Guard broadcast a request that the RICARDO stop, which it promptly did.  Five Coast Guardsmen boarded the RICARDO, with Ensign Willis in charge.  Consistent with Coast Guard policy, all members of the boarding party were armed, but their weapons were neither aimed at the RICARDO's crew nor carried in such a manner as to give the impression that force was being used
                

Notwithstanding discovery of the marijuana, the Coast Guard informed the RICARDO's crewmen that they were not under arrest, that the Coast Guardsmen were guests on board, and that the crewmen need not accede to requests by the Coast Guardsmen. A member of the crew gave permission for the Coast Guard to pilot the RICARDO in a northwesterly direction. Eventually, on June 28 at about 7:00 p.m., the crewmen were informed that they were under arrest by authority of the United States government.

B. The Indictment and the Ensuing Proceedings

Each member of the RICARDO's crew was charged in a two-count indictment with violating 21 U.S.C. Sec. 955a(a) and with conspiring to violate that provision, in violation of 21 U.S.C. Sec. 955c. Section 955a(a) makes it unlawful for "any person on board a ... vessel subject to the jurisdiction of the United States on the high seas" to possess a controlled substance with the intent to manufacture or distribute it. In 21 U.S.C. Sec. 955b(d), "vessel subject to the jurisdiction of the United States" is defined to "include[ ] a vessel without nationality or a vessel assimilated to a vessel without nationality, in accordance with paragraph (2) of article 6 of the Convention on the High Seas, 1958." Article 6 of the Convention on the High Seas, opened for signature April 29, 1958, 13 U.S.T. 2312, T.I.A.S. No. 5200 Article 6: 1. Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in these articles, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry.

("Convention on the High Seas"), provides as follows:

2. 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...

To continue reading

Request your trial
78 cases
  • United States v. Ahmed, 12-CR-661 (SLT) (S-2)
    • United States
    • U.S. District Court — Eastern District of New York
    • March 24, 2015
    ...respect to conduct outside the United States, in excess of the limits posed by international law.'") (quoting United States v. Pinto-Mejia, 720 F.2d 248, 259 (2d Cir. 1983)). Even assuming that the material support statute reaches conduct outside of the United States in excess of limits pos......
  • U.S. v. Kapordelis, No. 07-14499.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 1, 2009
    ...without power to enact 18 U.S.C. § 2251(a) or that the application of § 2251(a) would violate due process. See United States v. Pinto-Mejia, 720 F.2d 248, 259 (2d Cir. 1983) (Congress may apply its penal statutes to extraterritorial acts unless application would violate due process). Thus, ......
  • U.S. v. Aguilar
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 30, 1989
    ...law ... [;i]f it chooses to do so, it may legislate [contrary to] the limits posed by international law." United States v. Pinto-Mejia, 720 F.2d 248, 259 (2d Cir.1983), modified on other grounds, 728 F.2d 142 (2d For appellants' argument to have any coherence, they must contend that the Exe......
  • United States v. Feola
    • United States
    • U.S. District Court — Southern District of New York
    • January 12, 1987
    ...of the search and seizure. See, e.g., United States v. Salvucci, 448 U.S. at 86-87, 100 S.Ct. at 2550; United States v. Pinto-Mejia, 720 F.2d 248, 255 (2d Cir.1983), reh. denied 728 F.2d 142 (2d Cir.1984); United States v. Streifel, 665 F.2d 414, 419 n. 6 (2d Cir.1981), cert. denied sub nom......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT