U.S. v. Robinson

• Decision Date: 04 November 1987
• Docket Number: Nos. 86-2124,s. 86-2124
• Citation: 843 F.2d 1
• Parties: UNITED STATES of America, Appellee, v. Hernando ROBINSON, Defendant, Appellant. UNITED STATES of America, Appellee, v. Jorge ROBINSON, Defendant, Appellant. UNITED STATES of America, Appellee, v. Roberto ROBINSON, Defendant, Appellant. to 86-2126. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

843 F.2d 1

UNITED STATES of America, Appellee, v.Hernando ROBINSON, Defendant, Appellant.

UNITED STATES of America, Appellee, v.Jorge ROBINSON, Defendant, Appellant.

UNITED STATES of America, Appellee, v.Roberto ROBINSON, Defendant, Appellant.

Nos. 86-2124 to 86-2126.

United States Court of Appeals First Circuit.

Heard Nov. 4, 1987.

Decided March 18, 1988.

Carmin C. Reiss, by Appointment of the Court, with whom S. Elaine McChesney and Bingham, Dana & Gould, Boston, Mass., were on brief, for defendant, appellantHernando Robinson.

Robert L. Hernandez, Malden, Mass. by Appointment of the Court, for defendant, appellantJorge Robinson.

Roxana Marchosky, Boston, Mass., by Appointment of the Court, for defendant, appellantRoberto Robinson.

Mitchell D. Dembin, Asst. U.S. Atty., with whom Frank L. McNamara, Jr., Acting U.S. Atty., Boston, Mass., was on brief, for appellee.

Before CAMPBELL, Chief Judge, BREYER and TORRUELLA, Circuit Judges.

BREYER, Circuit Judge.

On June 3, 1986, the United States Coast Guard stopped a Panamanian ship, the M/V JUAN ROBINSON, as it sailed about 500 nautical miles east of North Carolina.Coast Guard officers, boarding with the master's consent, looked around the ship, became suspicious, obtained Panama's permission to proceed further, and eventually found about 20 tons of marijuana hidden in a fake fuel tank.Subsequently, a jury convicted the appellants Hernando and Jorge Robinson of unlawfully possessing marijuana with intent to distribute it, 21 U.S.C. Sec. 955a(c)(1982)(amended, recodified at 46 U.S.C. Sec. 1903(a) and (c)(Supp. IV 1986)) and 18 U.S.C. Sec. 2(1982), and, along with appellantRoberto Robinson, of conspiring to do so. 21 U.S.C. Sec. 955c(1982)(amended, recodified at 46 U.S.C. Sec. 1903(j)(Supp. IV 1986)).All three appellants argue that principles of international, and of constitutional, law prevent the government from applying United States drug law to them; two appellants also question the sufficiency of the evidence.After examining the record and the relevant legal authorities, we conclude that their convictions are lawful.

I

Appellants' most important arguments focus upon 21 U.S.C. Sec. 955a(c), a statute that, in part, forbids offshore drug possession.At first glance the statute does not seem to apply to the high seas, for it says that no "person on board any vessel within the customs waters of the United States" may knowingly "manufacture or distribute, or ... possess with intent to ... distribute, a controlled substance."(Emphasis added.)But a different statute, 19 U.S.C. Sec. 1401(j)(1982), defines "customs waters" in a special way.With respect to any "foreign vessel" on the high seas, "customs waters" include "waters" within which "a foreign government" may "enabl[e] or permit[ ] the authorities of the United States to board, examine, search, seize, or otherwise to enforce ... the laws of the United States," as long as there is a "treaty or other arrangement" between the foreign government and the United States granting this permission.(See Appendix.)That is to say, if a foreign government "by treaty or other arrangement" permits the United States "to enforce [its laws] upon ... [a] vessel upon the high seas" the waters around the vessel become "customs waters," and 21 U.S.C. Sec. 955a(c) then forbids drug possession.See, e.g., United States v. Alomia-Riascos, 825 F.2d 769, 770-71(4th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 715, 98 L.Ed.2d 665(1988);United States v. Peterson, 812 F.2d 486, 492-93(9th Cir.1987);United States v. Gonzalez, 776 F.2d 931, 935-37(11th Cir.1985);United States v. Bent-Santana, 774 F.2d 1545, 1549-50(11th Cir.1985);United States v. Loalza-Vasquez, 735 F.2d 153, 157(5th Cir.1984);United States v. Vouloup, 625 F.Supp. 1266, 1267-68(D.P.R.1985);see alsoUnited States v. Charris, 822 F.2d 1213, 1216-17(1st Cir.1987)(validity of ad hoc arrangement assumed).

Appellants claim that this effort to extend the United States' criminal jurisdiction outside the boundaries of the United States violates international law; they add that Congress did not intend to exceed the bounds of international law; and they conclude that we must interpret the statute so that it does not apply to them.SeeS.Rep. No. 855, 96th Cong., 2d Sess. 2(1980), U.S.CodeCong. & Admin.News 1980, p. 2785(Sec. 955a would give Justice Department "the maximum prosecutorial authority permitted under international law ")(emphasis added);H.R.Rep. No. 323, 96th Cong., 1st Sess. 9, 11(1979)("[statute] eliminates any possible conflict with international law by limiting the scope ... to situations where the United States has clear jurisdiction"; "prohibit[s] all acts of illicit trafficking in controlled substances on the high seas which the United States can reach under international law ")(emphasis added);see alsoMurray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118, 2 L.Ed. 208(1804)(Marshall, Ch.J.)("an act of congress ought never to be construed to violate the law of nations, if any other possible construction remains");Restatement (Second) of Foreign Relations Law of the United StatesSec. 3(3)(1965)(same).They also claim that, regardless, the ex post facto clause of the federal constitution, art. I, section 9, clause 3, prohibits their convictions.

A

Appellants' "international law" argument rests upon the fact that, so far, most courts have found jurisdictional authority for applying Sec. 955a(c) on the high seas in international law's "protective principle," a principle that "permits a nation to assert jurisdiction over a person whose conduct outside the nation's territory threatens the nation's security or could potentially interfere with the operation of its governmental functions."United States v. Romero-Galue, 757 F.2d 1147, 1154(11th Cir.1985);see alsoAlomia-Riascos, 825 F.2d at 771;Peterson, 812 F.2d at 493-94;Gonzalez, 776 F.2d at 938-40;Restatement (Revised) of Foreign Relations Law of United StatesSec. 402 comment f (Tent. DraftNo. 6, 1985)(hereinafter Restatement (Revised)).But seeLoalza-Vasquez, 735 F.2d at 157.Appellants make the forceful argument that these courts are wrong.

Appellants concede that the "protective principle" allows the United States to forbid extraterritorial conduct aimed at its "security" or "against other important state interests," such as "conspiracy to violate the ... customs laws."Restatement (Revised)Sec. 402 comment f;see, e.g., United States v. Birch, 470 F.2d 808(4th Cir.1972)(forgery of military papers), cert. denied, 411 U.S. 931, 93 S.Ct. 1897, 36 L.Ed.2d 390(1973);United States v. Pizzarusso, 388 F.2d 8(2nd Cir.)(falsification on visa application), cert. denied, 392 U.S. 936, 88 S.Ct. 2306, 20 L.Ed.2d 1395(1968);Rocha v. United States, 288 F.2d 545(9th Cir.)(fraudulent entry to United States), cert. denied, 366 U.S. 948, 81 S.Ct. 1902, 6 L.Ed.2d 1241(1961).But, they ask, how can this principle justify prohibiting foreigners on foreign ships 500 miles offshore from possessing drugs that, as far as the statute(and clear proof here) are concerned, might be bound for Canada, South America, or Zanzibar?SeeRestatement (Revised)Sec. 402(3)(protective principle gives state power to prescribe law protecting itself from actions taken abroad that harm it );id., comment f (protective principle "based on the effect ... [of an offshore] act upon or in a state's territory ")(emphasis added).But see46 U.S.C. Sec. 1902(Supp. IV 1986)(finding in act amendingSec. 955a that drug trafficking threatens security of United States).

Moreover, any assertion of jurisdiction under the protective principle must be "reasonable."SeeRestatement (Revised)Sec. 403; Brown, "Protective Jurisdiction,"34 Am.J.Int'l L. 112, 114(1940).How is it reasonable, they ask, to assert jurisdiction under these circumstances, particularly once one realizes that the "protective principle," as interpreted by the courts, might allow the United States to act even without the consent of the flag state.SeeAlomia-Riascos, 825 F.2d at 771;Gonzalez, 776 F.2d at 938;Romero-Galue, 757 F.2d at 1154.

Appellants go on to point out that the Convention on the Territorial Sea and the Contiguous Zones, opened for signature April 29, 1958, art. 24, 15 U.S.T. 1606, T.I.A.S. No. 5639(entered into force Sept. 10, 1964), which the United States has signed, allows states to assert customs and immigration interests in a contiguous zone 12 miles offshore, not 500 miles offshore.See also Convention on the High Seas, opened for signature April 29, 1958, art. 6, 22, 23, 13 U.T.S. 2312, T.I.A.S. No. 5200(entered into force Sept. 30, 1962)(describing limits of law enforcement on high seas);Restatement (Second)Secs. 21, 22, 34(same);Restatement (Revised)Sec. 522(same);I. Brownlie, Principles of Public International Law 254-55 (1979)(same).And they add, recently codified international law does not consider drug dealers to be like pirates, slave traders, or pirate broadcasters, against whom that law says any nation can assert its laws wherever they are found.See Convention on the High Seas, art. 22;Restatement (Second)Sec. 34 & reporters' note 2;Restatement (Revised)Secs. 404, 521 reporters' note 1, 522 & comment d & reporters' note 4 (drug ship can be seized only pursuant to formal or informal agreement).

In our view, however, appellants' arguments are beside the point, for there is another, different, but perfectly adequate basis in international law for the assertion of American jurisdiction.Panama agreed to permit the United States to apply its law on her ship.Panama's Director General of Consular and Shipping Affairs certified that on June 3, 1986, after the Coast Guard stopped the JUAN ROBINSON, the Panamanian government gave its "authorization" not only "to board, inspect, search, seize and escort the vessel to the United States," but also ...