U.S. v. Rubies, s. 78-3003
| Decision Date | 10 September 1979 |
| Docket Number | 78-3007,Nos. 78-3003,s. 78-3003 |
| Citation | 612 F.2d 397 |
| Parties | 5 Fed. R. Evid. Serv. 1243 UNITED STATES of America, Plaintiff-Appellee, v. Roman Ferrer RUBIES, and Pedro Vera, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Daniel H. Smith, Smith, Kaplan, Withey, Theiler & Sowa, Seattle, Wash., Stewart P. Riley, Paul, Johnson, Paul & Riley, Seattle, Wash., on brief for appellant.
J. Ronald Sim, Asst. U. S. Atty., Seattle, Wash., argued and on brief, for appellee.
Appeal from the United States District Court for the Western District of Washington.
Before KENNEDY and TANG, Circuit Judges, and BELLONI, * District Judge.
Appellants were convicted by jury verdicts of conspiracy and attempt to import marijuana into the United States. Both appellants are foreign citizens and were aboard a "stateless" vessel, the HELENA STAR, that was carrying a large quantity of marijuana. She was boarded and seized by the United States Coast Guard about 150 miles off the coast of Washington. We affirm.
The YOCONA is a 213 foot United States Coast Guard cutter. On April 15, 1978, she left from Astoria, Oregon, on a general law enforcement patrol. She was scheduled to patrol the Washington coast varying her distance from the coast as circumstances dictated.
During the evening of April 15, a lookout aboard the YOCONA spotted to his west what appeared to be a small airplane that was flying low to the water. At this time the YOCONA was proceeding in a northerly direction and was twelve to fifteen miles offshore, near Grays Harbor, Washington.
The commander of the YOCONA, Commander Charles W. Morgan, was notified of the sighting. Commander Morgan testified that this sighting was unusual, especially because the plane was so near the water. He suspected the plane was looking for a ship, perhaps one engaged in smuggling.
Because of the sighting, Commander Morgan diverted from his original plans to go further offshore and instead continued in a generally northerly direction.
At approximately noon of the following day, April 16, Commander Morgan was called to the bridge because a vessel, subsequently identified as the HELENA STAR, was picked up on the radar screen. At this time, the YOCONA was approximately fifty miles off the coast of Washington. The HELENA STAR was then also approximately fifty miles offshore but was proceeding in an easterly direction toward the mouth of the Strait of Juan de Fuca. This strait is located between northwestern Washington and Vancouver Island, B.C.
The HELENA STAR did not display any flag. Commander Morgan raised her by radio and inquired of her nationality and destination. Someone with a Spanish accent replied in English that the HELENA STAR was British and was headed for Victoria, B.C. Victoria, B.C. is located on Vancouver Island, B.C.
Shortly after this radio contact, the YOCONA, which had maintained her northerly course, passed the stern of the HELENA STAR about a quarter mile distant. It was then that Commander Morgan could clearly read her name "HELENA STAR" and purported home port of "ROAD HARBOUR." ROAD HARBOUR is a small port in the British Virgin Islands. Commander Morgan also noticed a more permanently affixed name, "FRATERNITE," which was welded to her stern, was painted over with green hull paint. The names, HELENA STAR and ROAD HARBOUR, were simply painted in white paint over the green hull paint.
After passing behind the HELENA STAR, the YOCONA relayed the information regarding the sighting to her headquarters and took up a position seven or eight miles astern of the HELENA STAR and proceeded to follow her in her easterly direction for about two hours. The YOCONA then turned to the north to check some fishing vessels in that area.
About 6:30 p. m. that evening, the YOCONA again sighted the HELENA STAR. At this time she was fifteen to eighteen miles off the coast of Washington; but she was then proceeding outbound in a generally westerly direction. The YOCONA took up a position approximately ten miles astern and began to follow her through the night. As darkness fell the HELENA STAR did not turn on her navigation lights.
The following morning at about 10:00, the Coast Guard headquarters in Seattle notified Commander Morgan that the HELENA STAR was not registered in Great Britain and that the Canadian government did not expect her arrival. The Seattle headquarters further stated that because of these facts and because of her unusual behavior the YOCONA was directed to board her to determine nationality, identification and recent activities. The HELENA STAR was then hailed to stop and was boarded. It was an armed boarding and occurred at approximately noon April 17 at a location approximately 150 miles from the coast of Washington.
Upon boarding, the boarding officer, Lieutenant Commander Walter John, asked appellant Rubies to see the ship's papers. Rubies had identified himself as captain. He produced a stack of papers. One document was a provisional registration certificate from the British government which expired by its own terms on June 22, 1977, unless the owner of the vessel perfected permanent registration. Permanent registration had not been perfected. Other papers indicated the HELENA STAR may have once been known under the name "FRATERNITE." In fact many of the papers had been altered by handwriting the name "HELENA STAR" after the name "FRATERNITE" had been crossed out.
Rubies indicated the provisional British registry was the only registration paper on board and further indicated that the vessel did not have a log or a cargo manifest. After an examination of the papers presented, Commander John was still not satisfied as to the true identity of the HELENA STAR and therefore asked to be shown the main beam number. The main beam number is recognized by many, if not all, maritime nations as positive identification of a vessel. Rubies first responded that the ship did not have a main beam number and then stated that his crew was unwilling to open the securely fastened hatch covers leading to the main hold. After repeated requests, Commander John directed his own crew to begin opening the hatch covers which Rubies had indicated was the only route into the main hold. About fifteen minutes later, an easily opened alternative route was discovered.
Shortly after entering the hold through the alternative route, the marijuana was discovered. Commander Morgan was informed of the discovery and directed that the crew be placed under arrest and the vessel seized. This was done. Commander John read Rubies the Miranda warning and directed that he translate the warning into Spanish for his crew. This was also done.
Various items suggesting the crew of the HELENA STAR had been in contact with the United States were found on board. For example, items of food products and packages of apparent American origin, including a carton of Olympia beer, were found. Additionally, a note written in Spanish upon a Panamanian Holiday Inn stationery was found in Rubies cabin. This note had a drawing of a high-masted sailing ship with the words "azul jolly" written below the drawing. The note also contained radio frequencies, estimates of travel time, and instructions for off-loading the marijuana. The note is important because "azul" translates into "blue" and one of the other indicted co-conspirators (not before this court at this time) owned a blue 61 foot sailing sloop named "JOLI." This co-conspirator also owned some secluded waterfront property along the northwestern coast of Washington. There was other evidence of connections with the United States, but reciting them here would be unnecessary for purposes of this opinion.
Finally, after the crew was arrested and all but Rubies transferred to the YOCONA, the HELENA STAR was escorted to Seattle and there turned over to other authorities.
The HELENA STAR was an unidentified vessel. She flew no flag and her claimed country of registration and port of destination were both false. For all intents and purposes, she was a vessel without a country.
In such circumstances, the United States Coast Guard had not only the right but the duty to determine her true identity by whatever reasonable means necessary. Even though no British flag was shown, when the HELENA STAR claimed British registry the YOCONA did not then deny this claim and board her, but rather allowed her the right of free navigation accorded all foreign flag ships. The radical change of course, coupled with the flight through the night without lights in violation of the rules of maritime navigation and the lack of British registry, combined to give the Coast Guard ample cause to board the HELENA STAR to determine her true identity and recent activities.
The United States Coast Guard is empowered, among other things, to search and seize any vessel on the high seas that is subject to the jurisdiction of the United States. 14 U.S.C. § 89(a). 1 This statute has been held to be constitutional. United States v. Warren, 578 F.2d 1058, 1064 (5th Cir. 1978). The HELENA STAR was subject to the jurisdiction of the United States.
Under international law, foreign flag vessels are generally accorded the right of undisturbed navigation on the high seas. 2 This right is often embodied in treaties. 3 It is the duty of the flag nation to control its vessels. If another nation should wish to board a foreign flag vessel, the other nation would generally seek authorization to do so from the nation whose flag the vessel flies. A foreign flag vessel is thereby protected by her country of registration. See United States v. Postal, 589 F.2d 862 (5th Cir. 1979). An unregistered or "stateless" vessel, however, does not have these rights and protections. The Fifth Circuit noted in the case of United States v. Cortes, 588 F.2d 106 (5th Cir. 1979):
"As stated in I. Oppenheim,...
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