US v. Medjuck, CR-91-0552 EFL.

• Decision Date: 17 June 1996
• Docket Number: No. CR-91-0552 EFL.,CR-91-0552 EFL.
• Citation: 937 F. Supp. 1368
• Parties: UNITED STATES of America, Plaintiff, v. Michael MEDJUCK, and Arthur John Jung, aka Charles Peter Sotirkys, Defendants.
• Court: U.S. District Court — Northern District of California

937 F. Supp. 1368

UNITED STATES of America, Plaintiff, v. Michael MEDJUCK, and Arthur John Jung, aka Charles Peter Sotirkys, Defendants.

No. CR-91-0552 EFL.

United States District Court, N.D. California.

June 17, 1996.

Lewis Davis, Mary Pougalis, U.S. Attorney's Office, San Francisco, CA, for plaintiff.

John Markham, San Francisco, CA, Doron Weinberg, San Francisco, CA, Arthur Wachtel, San Francisco, CA, for defendants.

AMENDED MEMORANDUM OPINION^*

LYNCH, District Judge.

I. INTRODUCTION

This case charges the defendants with a maritime conspiracy spanning several years and various nations. The object was to import 70 tons of hashish from Pakistan to North America aboard a freighter called the Lucky Star. The 70-ton load of hashish made its way to the middle of the Pacific Ocean. Over two tons of hashish were transferred from the Lucky Star to an offload vessel and taken to California, where a number of the conspirators were arrested. The maritime drug conspiracy ended after the United States Navy interdicted the Lucky Star and its 68 remaining tons of hashish on the high seas.

Defendants Michael Medjuck and Charles Peter Sotirkys¹, along with defendants Dennis Feroce, Jack Hayden, Raymond Ainge, Barry Shantz, and Larry Stanley, were charged in a 23-count superseding indictment with, inter alia, three counts of violating the Maritime Drug Law Enforcement Act, ("MDLEA"), 46 U.S.C.App. § 1903, relating to the 70 tons of hashish on board the Lucky Star.² The MDLEA prohibits the possession, manufacture, or distribution of controlled substances on board a vessel subject to the jurisdiction of the United States. 46 U.S.C.App. § 1903.³

This Court initially ruled that the government did not have the burden of showing a nexus between the defendants and the United States in order to proceed with this prosecution. The Court also ruled that, as a matter of law, the Lucky Star was a vessel subject to the jurisdiction of the United States. On April 16, 1993, defendant Medjuck entered a conditional plea of guilt, reserving the right to appeal the Court's ruling on the issue of nexus. On April 29, 1993, a jury returned a verdict of guilt on the three MDLEA counts against defendant Sotirkys.⁴ Following the verdict against Sotirkys, on August 30, 1993, this Court issued an Order of clarification holding that there was sufficient evidence of nexus, including both evidence that the conspiracy was conducted in part in the United States, and evidence "from which a reasonable jury could conclude that the hashish was intended for distribution in the United States." Defendants Medjuck and Sotirkys both appealed.

In United States v. Medjuck, 48 F.3d 1107 (9th Cir.1995), the Ninth Circuit ruled that this Court erred "by not submitting to the jury the question whether the Lucky Star was `a vessel subject to the jurisdiction of the United States.'" Medjuck, 48 F.3d at 1110. Medjuck held that the statutory jurisdictional requirement of the MDLEA is an element of the offense and therefore a question for the jury. Id. The Medjuck court also ruled a prosecution pursuant to the MDLEA required a showing that it did not violate due process. Id. at 1110-11. The court held that "due process is not offended as long as there is a sufficient nexus between the conduct condemned and the United States." Id. at 1111. Medjuck held that this Court "erred by ruling as a matter of law that the government need not demonstrate nexus in this case." Id. The court held that "the government has the burden of demonstrating such a nexus and that the defendants should have the opportunity for rebuttal on remand." Id. The matter was reversed and remanded.

A number of issues regarding nexus have been raised, including whether nexus is an issue for the Court or for the jury, the applicable standard of proof, and the appropriate definition of nexus. The Court held an evidentiary hearing on nexus on February 27 and 28 and April 3, 1996. In an Order dated April 4, the Court memorialized the oral ruling it made on these issues prior to the nexus hearing. The Court found that the government had borne its burden of showing nexus with respect to defendant Sotirkys, but at Medjuck's request, deferred its ruling on nexus until his Rule 29 motion. The Court also denied defendant Sotirkys' motion to dismiss the indictment on double jeopardy grounds, but permitted him to file an interlocutory appeal. The Court severed defendants Medjuck and Sotirkys, and Medjuck's trial began on April 10, 1996. Medjuck was convicted of Counts 1, 2, and 3 of the superseding indictment and acquitted of the charges relating to the offloaded 2.4 tons.

In this opinion, the Court explains its reasoning on nexus issues. The Court holds that nexus is a question for the Court rather than for the jury, and that the government has the burden of showing nexus by a preponderance of the evidence. The Court also defines nexus, which is a due process requirement, as a connection between the criminal conduct and the United States sufficient to justify the United States' pursuit of its interests. Finally, the Court finds that nexus has been shown as to defendant Medjuck and defendant Sotirkys.

II. LEGAL ANALYSIS

A. Who Decides Nexus?

The first question the Court addresses is that of who decides nexus, namely, whether it is a question for the Court or for the jury. Following the decision in Medjuck, all parties appeared to have assumed, as did this Court, that nexus was a matter for the Court to determine following an evidentiary hearing. In keeping with that assumption, an evidentiary hearing was scheduled. During the course of briefing regarding the hearing, defendants cited United States v. Amparo, 68 F.3d 1222 (9th Cir.1995). In Amparo, a decision about whether possession of an unregistered sawed-off shotgun was, as a matter of law, a "crime of violence," the Ninth Circuit stated:

in Medjuck, we held that whether a vessel is within the jurisdiction of the United States — an element of a maritime drug statute — required a factual determination as to whether there was a nexus between the United States and the defendants. The court erroneously made that determination as a matter of law. It should have instructed that the jury must find nexus in order for the court to have jurisdiction.

Id. at 1226.

In addition, while the nexus hearing was being held, the Ninth Circuit's decision in the appeal of Raymond Ainge was rendered. Ainge, one of Medjuck's co-defendants, was convicted of, inter alia, the 3 MDLEA counts of the superseding indictment. In an unpublished, per curiam opinion, the Ninth Circuit stated:

We reversed in Medjuck because the district court failed to instruct the jury to establish the statutory and constitutional jurisdictional requirements for conviction under the MDLEA by finding that the Lucky Star was a vessel subject to the jurisdiction of the United States, and that a sufficient nexus existed between the conduct condemned and the United States.

United States v. Raymond Sander Ainge, No. 94-10589 slip op. at 2, 1996 WL 155137 (9th Cir. Apr. 2, 1996).

Amparo and Ainge opened up the question of who decides the issue of nexus, and this question has been thoroughly briefed and argued. The statements in these two cases interpreting Medjuck as requiring that the question of nexus be submitted to the jury has given this Court serious pause, particularly in light of the fact that one Ninth Circuit judge heard the appeals of both Medjuck and Ainge.⁵ However, the Court has carefully reviewed the Medjuck opinion, has analyzed the MDLEA and the case law interpreting it, and has reviewed the meaning of the due process requirement of nexus. In light of this analysis, and for the reasons set forth in greater detail infra, the Court is compelled to conclude that the statements in Amparo and Ainge are both dicta and inaccurate. For a number of reasons, the Court finds that it, rather than the jury, should determine nexus.

1. Medjuck Decision

In making this determination, the Court first looks to the Ninth Circuit's decision in Medjuck. There, the Ninth Circuit analytically separated the statutory and constitutional requirements of jurisdiction. In section 1 of its discussion, titled "Jurisdiction", the Medjuck court noted that "defendants contend that the district court erred by determining as a matter of law that the statutory and constitutional requirements for assertion of subject matter jurisdiction were satisfied in this case." In subsection a, captioned "Statutory Requirements", the Court held that whether a vessel is "subject to the jurisdiction of the United States" "is an element of the crime charged and therefore must be decided by the jury." Medjuck, 48 F.3d at 1110. The Ninth Circuit explicitly held that it was error "not to submit the jurisdictional element to the jury." Id.⁶ In subsection b, titled "Constitutional Requirements", the Ninth Circuit turned to the constitutional element of jurisdiction and held that the Due Process Clause of the Fifth Amendment required the government to demonstrate "a sufficient nexus between the conduct condemned and the United States." Id. at 1110-11. In its discussion of the constitutional requirements of jurisdiction, the Ninth Circuit did not say that the question of nexus was a question for the jury, as it explicitly held in discussing the statutory requirement that a vessel be subject to the jurisdiction of the United States. Instead, the Ninth Circuit held "neither defendant has had the opportunity to rebut the evidence relied upon by the district court in its clarification order." Id. at 1111. The Ninth Circuit did not state that it was error for the Court, rather than the jury, to make this determination, but rather found that it was error to do so in the absence of an opportunity for rebuttal by the defendants. It appears that if the Ninth Circuit were holding that the question of nexus was one for the jury, it would have expressly...