U.S. v. Postal

• Decision Date: 15 February 1979
• Docket Number: No. 77-5354,77-5354
• Citation: 589 F.2d 862
• Parties: 4 Fed. R. Evid. Serv. 277 UNITED STATES of America, Plaintiff-Appellee, v. Robert Morris POSTAL, Salem L. Forsythe, and George A. Chitty, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 862

589 F.2d 862

4 Fed. R. Evid. Serv. 277

UNITED STATES of America, Plaintiff-Appellee, v. Robert Morris POSTAL, Salem L. Forsythe, and George A Chitty, Defendants-Appellants.

No. 77-5354.

United States Court of Appeals, Fifth Circuit.

Feb. 15, 1979.

Eugene E. Hines, Washington, D. C., for Forsythe, Postal and Chitty.

Jack V. Eskenazi, U. S. Atty., Michael P. Sullivan, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

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

Before WISDOM, TJOFLAT and VANCE, Circuit Judges.

TJOFLAT, Circuit Judge:

This case presents a consequential issue of international and domestic law that has been noted in this circuit but not yet authoritatively decided: whether a court of the United States can assert jurisdiction over persons arrested aboard a foreign vessel seized beyond the twelve-mile limit in violation of a particular provision of a treaty to which the United States and the foreign country are parties. ¹ We hold that such a violation does not divest the court of jurisdiction over the defendants.

The defendants in this case were convicted in a joint bench trial of conspiring to import marijuana into the United States, in violation of 21 U.S.C. § 963 (1976), and of conspiring to possess marijuana with intent to distribute, in violation of 21 U.S.C. § 846 (1976). In addition to questioning the jurisdiction of the district court over their persons, the defendants, all of whom appeal, make numerous arguments for reversal, which we shall address in due course. We find none of them persuasive. Therefore, we affirm as to all defendants.

I. FACTS

Because the facts in this case are significant and somewhat bizarre, we set them forth in detail. Except as otherwise noted, they appear as related by Lt. Beardsworth, Commanding Officer of the Coast Guard cutter Cape York.

The Cape York first sighted the defendants' vessel La Rosa, a fifty-one foot Morgan sailboat, in the morning of September 15, 1976, as the La Rosa sailed southwesterly at a point approximately 8.5 miles ² southeast of Upper Matecumbe Key, the nearest of the Florida Keys. ³ Since the La Rosa displayed no flag and exhibited neither name nor home port on her stern, the Cape York approached within twenty-five yards, and Lt. Beardsworth inquired as to the origin and destination of the defendants' voyage and the nationality of their ship. This approach occurred some 8.75 miles from the coast.

Two of the defendants held up a flag that was later identified as that of the Grand Cayman Islands, although at the time "there was some doubt as to exactly which country it was." Record, vol. 2, at 55. Defendant Postal responded that his crew was Australian, that the vessel was of Grand Cayman registry, and that they were en route from the Bahamas to Belize, British Honduras.

At this point, the Cape York circled the La Rosa and withdrew a short distance, where Lt. Beardsworth and Chief Petty Officer Lewis discussed the situation. Lt. Beardsworth decided to call Coast Guard Headquarters Operations Center in Miami, Florida, and he "informed them of the situation that was developing." Id. at 61. The Cape York again came alongside the La Rosa, and Lt. Beardsworth made the same general inquiries. After this exchange, Lt. Beardsworth decided that the La Rosa should be boarded to verify her documentation papers, and he ordered her to heave to and stand by for boarding.

Postal refused to allow the boarding. Lt. Beardsworth informed his superiors at the Operations Center, who directed that the boarding be conducted. At approximately this time, Lt. Beardsworth saw Postal holding what he thought to be a pistol. ⁴ Postal was again ordered to heave to for boarding, and this time Lt. Beardsworth explained that the boarding was for "violation of international agreements in that the name and the home port were not on the stern." Id. at 65. Postal then agreed to receive one boarding officer.

Shortly after this dialogue, the La Rosa began to maneuver erratically, apparently to make boarding more difficult. At this time, papers were observed being jettisoned from the La Rosa. The crew of the Cape York retrieved the papers and discovered that they were pieces of charts and of what appeared to be a ship's log. These scraps revealed that approximately one month previously the La Rosa had been in the southern Caribbean near Aruba and at points in South America. See note 42 Infra. They also made reference to a "contact having been made and so many days more to go." Id. at 70.

Before Lt. Beardsworth closely examined these papers, however, CPO Lewis had boarded the La Rosa. This boarding took place approximately 10.5 miles from the coast. ⁵ CPO Lewis testified that he asked Postal for the La Rosa's documentation and the defendants' identifications. CPO Lewis related that Postal agreed to produce the documents but refused to show identification.

CPO Lewis's further testimony revealed that before the documents were produced, Postal asked him the rather startling question "Can you be bought?" Id. at 182. CPO Lewis responded that he could not, but Postal persisted, continuing that he had been in the Coast Guard himself but had "found a better way to make a living," and he repeated the previous offer, which was again refused. CPO Lewis asked the defendants, "You guys are not Australians." They jokingly replied, "Why, don't we sound like them?" Id. at 171. CPO Lewis also noted that the La Rosa's hatches, which had been open before his boarding, were now closed and that Chitty was sitting on the forward hatch. Id. at 170. At sometime during this boarding, one of the defendants asked, "Aren't we outside of the 12-mile limit?" Id., vol. 3, at 218.

The documents were produced, and among them was a registry from the Grand Cayman government. CPO Lewis radioed the information concerning the La Rosa's registry to the Cape York, after which he was ordered to return to the Cape York. At no time during this boarding were the defendants given Miranda warnings.

During the ten to fifteen minutes that CPO Lewis was aboard the La Rosa, the Cape York had been in constant contact with the Operations Center in Miami. The information relating to the documents was relayed to Miami, and CPO Lewis was ordered to return because the La Rosa's registry was verified. Upon his return, CPO Lewis related the events that had transpired while he was aboard the La Rosa. He told Lt. Beardsworth, "I think these guys are dirty." Id., vol. 2, at 176. By this he meant, of course, that he believed the La Rosa to be transporting contraband.

These circumstances were also reported to Coast Guard officials at the Operations Center in Miami, and they ordered the Cape York to maintain overt surveillance of the La Rosa. Immediately after CPO Lewis returned to the Cape York, the La Rosa changed from her initial course of 235o (approximately southwest by west) to one varying between 235o and 200o (approximately south by southwest), thus taking her from a course roughly parallel to the coast to one up to 35o away from the coast. Id. at 84, 114-17. This somewhat erratic course was maintained throughout the surveillance period.

Lt. Beardsworth conferred with the Operations Center at some length as to the proper course of action to be taken. Eventually, the decision was made to board the La Rosa and conduct a customs search, at which time general quarters was sounded and the La Rosa was approached under a show of force. She was boarded for the second time some two and one-half to three hours after the first boarding. By this time the La Rosa's course had taken her outside the twelve-mile limit, and the second boarding transpired perhaps some 16.3 miles from the nearest United States coastline. ⁶

The second boarding party consisted of CPO Lewis, who was armed with a .45 calibre pistol, and two other Coast Guardsmen, one of whom ported a shotgun. CPO Lewis testified that he read the defendants their Miranda rights immediately upon this boarding. The defendants, who had been sampling their wares and imbibing spirits in the interim, were in a rather odd mood. ⁷ As the rights were being read, Postal exclaimed, "Hey, he's reading us our rights. Gather around." Id., vol. 3, at 200. After the rights were read, Postal asked, "What does that mean?" Id. The rights were read again, and the defendants refused to waive them. Postal, sighting Lt. Beardsworth on the wing of the bridge, yelled to him, "Congratulations. This will help your career." Id. Defendant Chitty then said, "Let's quit hassling, they're only doing their job." Id. at 204. Defendant Forsythe walked to the forward hatch, and, opening it, disclaimed, "Let it be known that I didn't say I was Australian." Id. at 205. Postal added, "Oh, does that mean you want to see the pot?" Id.

CPO Lewis peered into the hatch and saw numerous bales "of what looked like marijuana," one of which was open. Id. at 205. He inquired how much there was, and Postal responded, "About eight thousand pounds . . . . About two and a half million dollars." Id. at 206. The defendants were then arrested, after which they offered CPO Lewis a drink and proclaimed, "We're celebrating, first time we've been busted." Id. at 233. At this point, CPO Lewis asked Forsythe whether he was "really going to Belize?" Forsythe responded only, "No." Id. at 209.

The defendants were removed to the Cape York, and the La Rosa was taken in tow. Shortly thereafter, Lt. Beardsworth readvised each of the defendants of his Miranda rights, and each declined to make any statement at this time other than to give his name and address. CPO Lewis proceeded to search the La Rosa, and photographs were taken. He noted that there was little food on board and that what meat there was, was putrefied.

Most of the remaining significant events were related at trial by Chief Machinery Technician Gaskill, who was watching over the defendants after they had been...