U.S. v. Ricardo, 79-5358
| Decision Date | 25 June 1980 |
| Docket Number | No. 79-5358,79-5358 |
| Citation | 619 F.2d 1124 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Francisco RICARDO, Maximillano Periera Torres, Pedro Pablo Pemienta Garcia, Orlando Rodriquez-Marino, Rosendo Conrado, Sidney Albert Neuman and Daniel Hartwell Durrange, Defendant-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Mark Vela, Houston, Tex. (Court-Appointed), for Conrado, Ricardo, Torres, Garcia and Rodriguez.
Sherman A. Ross, Fred T. Bennett, Houston, Tex., for Neuman and Durrange.
James R. Gough, John M. Potter, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.
Appeals from the United States District Court for the Southern District of Texas.
Before VANCE and SAM D. JOHNSON, Circuit Judges, and THOMAS *, District Judge.
Appellants were convicted of two marijuana counts, 1 stemming from the seizure of a shrimp boat, the SINCERE PROGRESS I, in the Gulf of Mexico, on the late evening and early morning of November 4-5, 1978. Following their convictions, appellants Ricardo, Torres, Garcia, and Rodriquez-Marino were sentenced to three and one-half (3 1/2) years imprisonment with a special parole term of five (5) years on each of Counts I and II, to run concurrently. Due to their increased involvement in the drug transaction, appellants Conrado, Durrange, and Neuman received ten (10) years. In addition, Durrange and Neuman received $15,000 consecutive fines on Counts I and II. All of the appellants are Colombian, with the exception of Durrange and Neuman, who are American. In order to understand the nature of appellants' arguments, a recital of the factual setting is necessary.
On November 4, 1978, a Coast Guard cutter, the POINT HOPE, was instructed to proceed southeast from Galveston, Texas, to a point approximately 125-150 miles from the American coast, in order to search for a fishing boat of unknown nationality. The vessel was reported to be without power and was drifting in a northerly direction with the assistance of a makeshift sail. Several hours later, a vessel was sighted which fit the radio description. Approaching the vessel from the stern, the crew from the cutter noticed tobacco-like sweepings 50-100 yards astern. The cutter then proceeded to circle the vessel in order to determine the vessel's nationality and rating. There was no visible markings, either on the stern or the bow of the vessel, and no flag was being flown. It was determined from the side of the deckhouse that the vessel's name was the SINCERE PROGRESS I.
Radio contact could not be established with the SINCERE PROGRESS but shortly after the initial approach, one of the defendants (Neuman) appeared on deck. From an account of the subsequent conversation with Coast Guard officers, the following facts were ascertained: There were two Americans on board (Neuman and Durrange), and five Colombians (Ricardo, Torres, Garcia, Rodriquez-Marino, and Conrado), none of whom could speak English. The Americans were allegedly on board because their sailboat had sunk off the coast of Florida and they had been rescued by the Colombians. However, when asked about specifics, neither American could remember the name or registration number of their "lost" sailboat.
While Neuman and Lieutenant Veselka were conversing, objects were thrown overboard from the SINCERE PROGRESS. The cutter retrieved the objects, which were later examined and determined to be nautical charts. These charts had markings on them, indicating that the SINCERE PROGRESS's probable destination was a point approximately sixty miles off the coast of Matagorda, Texas. The charts also indicated that the SINCERE PROGRESS began its journey in Colombia and proceeded through the Caribbean Sea and Yucatan Channel into the Gulf of Mexico.
Without the assistance of an interpreter, communication with the Colombians was difficult. The POINT HOPE, which had been maintaining radio contact with the New Orleans headquarters, received instructions to board the SINCERE PROGRESS, ostensibly for the purpose of determining nationality and registry. A boarding party of three crew members was dispatched to retrieve this information. Once on board, papers reflecting registry of the vessel were requested, but none could be produced. Appellant Neuman stated that all the vessel's papers and logs were washed overboard in a storm. The engine room main beam was then examined for registry information, but none could be found. A nameplate on the wheelhouse gave the manufacturer's insignia, "Atlantic Marine, 1969." Finally the hold of the ship was examined, and it was here that the marijuana was discovered.
The two Americans requested that they be allowed to return to port on board the POINT HOPE. This request was granted upon the condition that they be placed under arrest and read their Miranda rights. The other defendants remained on the PROGRESS, and, due to high seas, were given towing assistance into the Galveston port. The two vessels arrived in Galveston on the night of November 5, 1978. At that time, the Americans were again read their Miranda rights and then questioned by a Federal agent with the Drug Enforcement Agency (DEA). Appellant Neuman said that he built a sailboat in Florida which later sunk off the coast in a trial run. This allegation ties in with his story about being rescued by the SINCERE PROGRESS and explains why he could not remember the sailboat's name or registration number. Appellant Durrange told a similar story. In addition, both appellants stated that they knew marijuana was on board the PROGRESS.
The Colombians were not placed under arrest until November 7, 1978. At that time they were advised of their constitutional rights but none of them would answer questions about the marijuana. The day before (November 6), appellant Conrado was interviewed by Immigration Investigator Lee Prejean concerning citizenship and alien matters. At that time, Conrado volunteered several incriminating statements without the benefit of a Miranda warning. He stated that the crew of the SINCERE PROGRESS was hired by two unknown Cubans who gave them coordinates to follow through the Yucatan Channel and into the Gulf of Mexico. There, the SINCERE PROGRESS was to rendezvous about sixty miles off the Texas coast with another vessel for the purpose of transferring the marijuana cargo. In order to corroborate his story, he produced a chart indicating similar coordinates to the charts previously thrown overboard and retrieved by the Coast Guard cutter.
Several issues are raised on appeal. We deal separately with the jurisdictional challenge, the issues relating to the exclusion of certain evidence, the effect of trial publicity on the jury, and the sentences imposed on appellants Durrange and Neuman.
Appellants' initial challenge concerns the district court's jurisdiction over the case. Their argument is based in part on the premise that in order for extraterritorial acts to be in violation of the laws of the United States, there must be some nexus to the United States. The argument follows that there were no acts committed within the territorial jurisdiction of the United States and that, as a result, jurisdiction is improper.
The circumstances of the case reveal that the plan commenced outside the United States. Charts confiscated during the investigation indicate that the voyage originated in Colombia. According to the Americans, they left in their sailboat from Miami, Florida. Assuming their version is correct, 2 the only nexus to the United States is indirect because they were not the masterminds behind the scheme. When the PROGRESS was intercepted, it was approximately 125-150 miles from the Texas Coast. From these facts alone, it is apparent that the Government failed to prove the existence of an overt act committed within the United States. The Government did prove, however, that the PROGRESS intended to rendezvous with another vessel off the coast of Texas, in order to unload their cargo. Given this proof, along with the proximity to the United States coast and the general heading of the ship, we are convinced that the object of appellants' plan had consequences within the United States. Under these circumstances, the question we now address is whether, pursuant to either conspiracy statute, a territorial act must be committed within the United States and in furtherance of the conspiracy before jurisdiction attaches.
Under the conspiracy statutes in question, §§ 846 and 963, it is not incumbent upon the Government to allege or prove an overt act in order to obtain a conviction. See United States v. Mann, 615 F.2d 668 (5th Cir. 1980); United States v. Rodriguez, 612 F.2d 906, 919 n. 37 (5th Cir. 1980) (en banc ). While it is now settled law that proof of an overt act is not required under the conspiracy statutes, the jurisdictional requisites are not settled. The United States and this Circuit have traditionally adhered to the objective principle of territorial jurisdictional, which attaches criminal consequences to extraterritorial acts that are intended to have effect in the sovereign territory, at least where overt acts within the territory can be proved. United States v. Postal, 589 F.2d 862, 885 (5th Cir.) and cases cited therein. Implicit in these statutes is the notion that the prescribed prohibitions apply extraterritorially. See United States v. Cadena, 585 F.2d 1252, 1259 (5th Cir. 1978). It seems somewhat anomalous, however, that Congress intended these statutes to apply extraterritorially, but that jurisdiction attaches only after an act occurred within the sovereign boundaries. Thus, even though the statutes were designed to prevent one type of wrong ab initio, under the traditional approach, the courts were without power to act. This dichotomy directly contravenes the purpose of the enabling legislation.
As a result, it is now settled in this Circuit that when ...
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