US v. Biermann
Decision Date | 09 February 1988 |
Docket Number | No. CR-87-0473-CAL.,CR-87-0473-CAL. |
Citation | 678 F. Supp. 1437 |
Parties | UNITED STATES of America, Plaintiff, v. Wayne BIERMANN, Peter Malcolm Davis, Birgit Ursula King, and Steven Preston King, Defendants. |
Court | U.S. District Court — Northern District of California |
Leida S. Schoggen, Asst. U.S. Atty., San Francisco, Cal., for plaintiff.
Stephen J. Heiser, San Francisco, Cal., for Wayne Biermann.
Michael Stephanian, San Francisco, Cal., for Peter M. Davis.
Nancy Roscoe, San Francisco, Cal., for Birgit U. King.
William L. Osterhoudt, San Francisco, Cal., for Steven P. King.
This case involves the Coast Guard's search and seizure on the high seas of a vessel registered in the United Kingdom and operated by citizens of four different countries. The vessel contained several tons of marijuana and its occupants were indicted for possession of marijuana with intent to distribute it.
Defendants have moved for (1) dismissal of the indictment, on the ground of lack of jurisdiction; (2) suppression of the evidence which was obtained from the search and seizure of their vessel; (3) an evidentiary hearing on those motions; and, (4) the production of additional evidence by the government for the purpose of that evidentiary hearing. The government has opposed all of the motions.
By stipulation, this case has been designated as a complex case for purposes of the Speedy Trial Act, under 18 U.S.C. § 3161(h)(8)(B)(ii). The government has produced to defendants most of the discovery previously requested by them. Defendants then made these pending motions.
This court initially granted defendants' request for an evidentiary hearing. However, on the motion of the government, the court is reconsidering whether an evidentiary hearing is necessary and is addressing the legal issues raised by defendants' motions. The court has received supplemental briefs and declarations from defendants and the government. The court has reviewed the record, the moving and opposing papers, and the applicable authorities.
The court concludes, for the reasons of law discussed below, that defendants' motion to dismiss for lack of jurisdiction and motion for suppression of evidence must be denied. Because these rulings are made as a matter of law based upon the uncontested record, an evidentiary hearing is not necessary and the further production of evidence by the government is not necessary.
For purposes of this motion, the relevant facts are uncontested in the record.
The Myth of Ecurie ("Myth") is a sailing vessel registered in the United Kingdom and flying the flag of the United Kingdom. The boat's home port in the United Kingdom was displayed on the stern. One of the defendants is a United Kingdom citizen, one is a Bermuda citizen, one is a German citizen, and one is a United States citizen.
Defendants sailed the Myth from Hong Kong, across the Pacific to the west coast of the United States. On June 15, 1987 a United States Coast Guard cutter encountered the Myth about thirty-five nautical miles southwest of Point Reyes, California. The Myth was headed for San Francisco. Upon the approach of the cutter, the Myth's master and the Coast Guard engaged in radio conversation. The Coast Guard requested permission to conduct a consensual boarding of the Myth. The request was denied. The master of the Myth asserted that the Coast Guard had no jurisdiction, since the Myth was a boat of United Kingdom registry sailing in international waters.
The Coast Guard made certain observations about the Myth. Then apparently acting in compliance with procedures established in a 1981 agreement between the United States and the United Kingdom, the captain of the cutter requested from the government of the United Kingdom a statement that the United Kingdom did not object to the Coast Guard boarding the Myth. The United Kingdom replied by teletype that it would not object to the boarding, search and seizure of the Myth by the Coast Guard under the terms of that agreement.
On June 16, the Coast Guard boarded the Myth. At the time of the boarding, the Myth was located over 100 miles west of the California coast. The Coast Guard boarding officer smelled marijuana when he came aboard the Myth. The master of the Myth and boarding officer went below to obtain any weapons. The boarding officer there saw numerous bails of material in plain view and noticed the heavy smell of marijuana. When the boarding officer asked the master what was in the bails, the master replied that it was marijuana. The Myth and defendants were then brought to the Coast Guard station on Yerba Buena Island in San Francisco Bay and were placed under arrest. The marijuana aboard the Myth totaled over 7,000 pounds, stored in 236 bails.
While certain other evidence regarding the Myth, the cutter, and the dealings between them are in dispute and are mentioned later, those disputes need not be resolved for purposes of ruling upon defendants' motions. The above record is uncontested and is all that is necessary for the rulings of law on jurisdiction and suppression.
On June 24, 1987 a federal grand jury indicted defendants. Count one charges a violation of 46 U.S.C. § 1903(a), the knowing and intentional possession, with the intent to distribute, of in excess of three tons of marijuana. Count two charges a violation of 46 U.S.C. § 1903(j), a combination, conspiracy and agreement among defendants and others to possess marijuana with the intent to distribute it. The indictment does not charge defendants with importation or the intent to import.
Defendants' principal motion is that the indictment should be dismissed for lack of jurisdiction. Their argument is that those criminal statutes of the United States cannot apply to persons on foreign vessels outside of the territory of the United States.
Defendants also move to suppress the evidence obtained from the search and seizure of the Myth. Their arguments in that regard are primarily two. One is that the Coast Guard's request to the United Kingdom for permission to board and search the Myth was not in compliance with the 1981 agreement between the United States and the United Kingdom. The second is that the search and seizure were in violation of the Fourth Amendment of the United States Constitution. As stated, defendants also request an evidentiary hearing on those issues and have requested the further production of evidence by the government in that regard.
The court will discuss each of those issues in order.
Do these criminal statutes of the United States, 46 U.S.C. § 1903(a) and (j), apply to persons on a foreign flag vessel in international waters?
46 U.S.C. § 1903 is part of Chapter 38 of the Shipping Code. That chapter expressly deals with "Maritime Drug Law Enforcement." (emphasis added). The statute was originally passed in 1980, then as Section 955c of Title 21, regarding food and drugs. The section was enacted to fill a void left by the Comprehensive Drug Abuse Prevention and Control Act of 1970, which superseded prior drug enforcement legislation but inadvertently omitted to replace the provision under which drug offenders apprehended on the high seas were prosecuted. See S.Rep. No. 855, 96th Cong., 2d Sess., reprinted in 1980 U.S. Code Cong. & Admin.News 2785.
The section was amended in 1986 and restated as Section 1903 of the Shipping Code. The Senate Report pertaining to that amendment stated that, under the statute before its amendment, some defendants had successfully resisted prosecution by "relying heavily on international jurisdictional questions as legal technicalities." S.Rep. No. 530, 99th Cong., 2d Sess., reprinted in 1986 U.S.Code Cong. & Admin.News 5986, 6000. The amendment therefore included a provision prohibiting individual defendants from relying as a defense on the government's failure to comply with international law.
In subsection (c)(1) Congress specifically defined a "vessel subject to the jurisdiction of the United States" as including:
Thus, the term includes the location of any vessel upon the high seas, so long as the United States government has obtained authorization, by way of treaty or other arrangement, from the vessel's flag nation.
Section 1903(j), the...
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...United States v. Davis, 905 F.2d 245 (9th Cir.1990); United States v. Peterson, 812 F.2d 486 (9th Cir.1987); United States v. Biermann, 678 F.Supp. 1437 (N.D.Cal.1988). A brief discussion of the development of the law by these cases is necessary to the conclusions which this court states In......
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...evidence obtained based on anticipated consent that never materialized would have to be excluded. Id. See also, United States v. Biermann, 678 F.Supp. 1437, 1441-3 (N.D.Cal.1988), aff'd, 905 F.2d 245 (9th Cir. 1990) (defendants lacked standing to challenge procedural requirements of § 1903)......
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U.S. v. Davis
...of jurisdiction and a motion to suppress evidence obtained from the Myth. The district court denied both motions. United States v. Biermann, 678 F.Supp. 1437 (N.D.Cal.1988). On July 26, 1988, the district court found Davis guilty on stipulated facts. Davis timely appealed. We have jurisdict......