US v. Rasheed

• Decision Date: 23 July 1992
• Docket Number: Cr. No. 91-01329 ACK.
• Citation: 802 F. Supp. 312
• Parties: UNITED STATES of America, Plaintiff, v. Abdul RASHEED, et al., Defendants.
• Court: U.S. District Court — District of Hawaii

802 F. Supp. 312

UNITED STATES of America, Plaintiff, v. Abdul RASHEED, et al., Defendants.

Cr. No. 91-01329 ACK.

United States District Court, D. Hawaii.

July 23, 1992.

COPYRIGHT MATERIAL OMITTED

Daniel Bent, Stu Gasner, Sharon Takeuchi, U.S. Attys. Office, Honolulu, Hawaii, for plaintiff.

Robert Rau, Honolulu, Hawaii, J. Tony Serra, James Bustamante, Serra, Perelson, Lichter, Daar & Bustamante, San Francisco, Cal., for Abdul Rasheed.

Jeffrey T. Arakaki, Honolulu, Hawaii, for Muhammad Ahmed Tarif Khan.

Karen S.S. Ahn, Honolulu, Hawaii, for Mohammad Waheedullah Khan.

Lunsford Dole Phillips, Honolulu, Hawaii, for Muhammad Rafiq.

Lane Takahashi, Honolulu, Hawaii, for Muhammad Yousuf.

Wayne Tashima, Honolulu, Hawaii, for Mohammad Afzal.

Samuel P. King, Jr., Honolulu, Hawaii, for Haji Saleem.

Ignacio Garcia, Honolulu, Hawaii, for Fnu Ismail.

Richard S. Kawana, Honolulu, Hawaii, for Muhammad Hanif.

William Harrison, Honolulu, Hawaii, for Farid Ahmed.

Richard Pafundi, Honolulu, Hawaii, for Ghazanfar Ali.

Thomas D. Collins, III, Honolulu, Hawaii, for Mohammad Ali.

Robert Finlay, Honolulu, Hawaii, for Abdul Karim.

Richard Ney, Federal Public Defender, for Muhammad Saleem.

ORDER DENYING DEFENDANTS' MOTIONS TO DISMISS AND TO SUPPRESS EVIDENCE AND QUASH ARREST

KAY, Chief Judge.

Multiple Defendants bring several motions in which other Defendants join. Since all Defendants will stand or fall together, this Order consolidates all motions and does not indicate in whose pleadings the issues are raised. This Order considers each of the two major motions in turn: A. the motions to dismiss, and B. the motion to quash arrest and suppress evidence.

I. FACTS

On October 24, 1991, the United States of America ("United States" or the "government") filed a three count superseding indictment charging fourteen Defendants with violations of the Maritime Drug Law Enforcement Act, 46 U.S.C.App. § 1903 ("§ 1903") and 18 U.S.C. § 2.¹ The charges arise from actions taken by a St. Vincent registered vessel, the Lucky Star, upon which all Defendants in this case were aboard.

In May 1991, Dennis Feroce ("Feroce") and Jack Hayden ("Hayden"), neither of whom are defendants in this case, sought a captain and crew to rendezvous with a mother ship carrying hashish on the high seas.² On May 8, 1991, Feroce and Hayden met in Hawaii with two undercover U.S. Customs Service agents, Mike Gillion ("Gillion") and Brian Rockam ("Rockam"). Feroce also had other meetings with Customs agents including meetings with Rockam in Port Townsend, Washington and San Francisco, California. At these two meetings, Feroce discussed and planned to have the undercover agents rendezvous with the Lucky Star and off-load the hashish. A third undercover agent, Paul DeCotiis ("DeCotiis"), had numerous meetings and telephone conversations, most of which occurred in the United States, with Feroce and his alleged co-conspirator Charlie Sotirkys ("Sotirkys"). Many of these conversations also focused on the logistics of the off-load operation. Rockam and Gillion received over $200,000 and 225,000 Swiss francs as advanced payment for the off-load operation.

The plan regarding where to deliver the hashish after it was off-loaded from the Lucky Star was flexible. The original plan was for the undercover agents to deliver the hashish to the Queen Charlotte Islands on the Canada-United States border. The backup plan was to deliver the hashish to ports near Eureka, California or to a port in Alaska, referred to by Feroce, Sotirkys, and Hayden as "B-ports." During the discussions on the plan, Feroce and Hayden said the ultimate destination of the hashish was the "East Coast" or "New York."

On June 23, 1991, Gillion, Rockam, and other undercover agents from the Customs Service and the FBI (collectively "Agents") met the Lucky Star some 1200 miles west of the US. The Agents were aboard the "Pandora." For the purposes of this operation, however, the name of the ship had been changed to the "Barbara H." The Barbara H. flew an American flag and displayed San Diego, California as its home port. Although the seas were rough, the Lucky Star transferred approximately 2.5 tons of hashish to the Pandora. All of the Defendants in this case were aboard the Lucky Star. Everyone on the Lucky Star is a citizen of Pakistan, except David McNelly (15) ("McNelly") who is a resident of Hawaii.³ During and after the off-load, the alleged mainland conspirators, several of whom were American citizens, monitored the progress of the operation from United States soil by radio and telephone. Indeed, the evidence adduced at the hearing established that Sotirkys and Feroce controlled the Lucky Star from the mainland United States by relaying messages to the crew through undercover agent DeCotiis.

On July 1, 1991, the U.S. Coast Guard, assisted by the U.S. Navy,⁴ made radio contact with the Lucky Star. The master of the Lucky Star, Defendant Rasheed (01), consented to the boarding. The Coast Guard, accompanied by Navy personnel, boarded and searched the Lucky Star. The search revealed over 70 tons of hashish in the unlocked cargo hold.

Pursuant to § 1903, the Coast Guard, in coordination with the Justice Department, sought the consent of the Lucky Star's flag nation, St. Vincent, to apply United States law to the vessel. While awaiting consent from St. Vincent, the boarding party remained on board the Lucky Star, however, the crew members were not placed under arrest. During this time, the Coast Guard asked for and received Rasheed's permission to head towards Honolulu. Indeed, at all times, the Coast Guard obeyed Rasheed's directions as to the course the ship would take.⁵ On July 11, 1991, as the Lucky Star and its escorts were approaching Honolulu, the St. Vincent government consented to the application of United States law to the Lucky Star. The Coast Guard then formally arrested the Defendants and seized the vessel.

After the seizure of the Lucky Star, its crew, and its contraband, the conspiracy to import Lucky Star's hashish continued. Feroce and Hayden met several times with Gillion and Rockam to plan the delivery of the 2.5 tons of hashish off-loaded from the Lucky Star on June 23, 1991. On September 18, 1991, Hayden and Stanley received the 2.5 tons of hashish in Clearlake, California.

II. DISCUSSION

A. MOTIONS TO DISMISS

Defendants move to dismiss the indictment on several grounds, raising a number of issues. These issues are as follows: 1. Whether § 1903 as applied to Defendants violates the Due Process Clause of the U.S. Constitution; 2. Whether St. Vincent's consent to the enforcement of United States law to the Lucky Star was valid; 3. Whether St. Vincent's consent was obtained in violation of international law; and, 4. Whether the Navy's involvement in the operation violated the Posse Comitatus Act. For the reasons discussed below, the Court denies the motions to dismiss.

Section 1903: The Maritime Drug Law Enforcement Act Section 1903 provides,

It is unlawful for any person on board ... a vessel subject to the jurisdiction of the United States ... to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance.

46 U.S.C.App. § 1903(a). A vessel "subject to the jurisdiction of the United States" includes, inter alia,

a vessel registered in a foreign nation where the flag nation has consented or waived objection to the enforcement of the United States law by the United States.

46 U.S.C.App. § 1903(c)(1)(C).

1. Constitutional Restrictions on Applying § 1903 to Defendants: Due Process.

a. Due Process and Nexus: Application of § 1903 to Defendants is not Arbitrary or Fundamentally Unfair.

Defendants contend that § 1903, as applied to them in this case, is unconstitutional under the standard discussed in United States v. Davis, 905 F.2d 245 (9th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 753, 112 L.Ed.2d 773 (1991); accord, United States v. Aikins, 946 F.2d 608 (9th Cir.1990); United States v. Peterson, 812 F.2d 486 (9th Cir.1987). In Davis, the Ninth Circuit articulated a two part test for determining if application of § 1903 violates due process. In order to be constitutionally applied, a statute punishing conduct outside United States territory must meet both prongs of the Davis test. First, Congress must make clear its intent to give the statute extraterritorial effect. Davis, 905 F.2d at 248. Second, the statute must not violate due process. To comport with due process, there must a "sufficient nexus" between the defendant and the United States such that the application of the statute would not be arbitrary or fundamentally unfair. Id. at 248-9.

Congress intended to give § 1903 extraterritorial effect. 46 U.S.C.App. § 1903(h) ("This section is intended to reach acts of possession, manufacture, or distribution committed outside the territorial jurisdiction of the United States." Id.); Davis at 248. Accordingly, the only issue under the Davis test in this case is whether there was a sufficient nexus between the crew of the Lucky Star and the United States so that their prosecution in the United States would not be arbitrary or fundamentally unfair.

The Davis Court noted that "where an attempted transaction is aimed at causing criminal acts within the United States, there is a sufficient basis for ... jurisdiction." Id. at 249 (quoting United States v. Peterson, 812 F.2d 486, 493 (9th Cir.1987). As the Court's language indicates, a finding that a defendant engaged in an activity which was aimed at causing criminal acts in the United States is sufficient, but not necessary, for an adequate nexus. See also, Note, Survey of the United States Jurisdiction over High Seas Narcotics Trafficking, 19 Ga.J. Int'l & Comp.L. 119, 124-5 (1989) (Section 1903 "proscribes possession with intent to distribute, but does not require an intent to distribute in the United States." Id. at 124 (emphasis in...