Valencia v. U.S.

• Decision Date: 12 January 1990
• Docket Number: No. 89-1648,89-1648
• Parties: Jesus Geles VALENCIA, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 917

923 F.2d 917

Jesus Geles VALENCIA, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.

No. 89-1648.

United States Court of Appeals, First Circuit.

Heard Jan. 12, 1990.

Decided Jan. 23, 1991.

Steven A. Feldman, by Appointment of the Court, with whom Feldman and Feldman, Long Beach, N.Y., was on brief, for petitioner.

Jorge E. Vega-Pacheco, Asst. U.S. Atty., Criminal Div., San Juan, P.R., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief, for U.S.

Before SELYA, ALDRICH and CYR, Circuit Judges.

CYR, Circuit Judge.

Jesus Geles Valencia petitioned for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2255, challenging the validity of the judgment of conviction and sentence entered by the United States District Court for the District of Puerto Rico on Geles' guilty plea to the crime of possessing, with intent to distribute, a Schedule I controlled substance aboard a vessel subject to the jurisdiction of the United States. The district court dismissed the petition. Petitioner appealed. We vacate the dismissal order and remand for further proceedings.

I

On the morning of November 20, 1986, Coast Guard personnel aboard the Cutter USS McCLOY spotted the M/V SEE WONDERER in international waters. SEE WONDERER was flying no flag. Her master claimed that SEE WONDERER was of Honduran registry, and that she was en route to Aruba with a cargo of electronic parts. A Honduran flag was raised aboard SEE WONDERER, and the master refused permission to board.

Honduran officials advised that SEE WONDERER was not registered in Honduras. When the Coast Guard again was refused permission to board, SEE WONDERER was ordered to stop and prepare for boarding. SEE WONDERER finally stopped her engines after she was hosed with water from the McCLOY. After boarding SEE WONDERER, Coast Guard personnel discovered marihuana in her hold. The nine men on board SEE WONDERER, including petitioner Geles Valencia, were arrested and transferred to the USS McCLOY.

On November 26, 1986, an indictment was returned against petitioner and the eight others arrested aboard the SEE WONDERER. The indictment charged that the defendants, "[o]n November 20, 1986, on the high seas on board a vessel subject to the jurisdiction of the United States, that is the M/V See Wonderer ... aiding and abetting each other, did unlawfully, knowingly and intentionally possess with intent to distribute approximately 98,325 pounds (gross weight) of marihuana a Schedule I Controlled Substance ... in violation of Title 18, United States Code, Section 2 and Title 21, United States Code, Sections 955a(a) and 955a(f)."

All defendants moved to dismiss the indictment on the grounds that it failed to charge a crime and that the court lacked subject matter jurisdiction. Defendants asserted, inter alia, that SEE WONDERER, being of Honduran registry, was not a "stateless" vessel and, therefore, was not "subject to the jurisdiction of the United States." Defendants contended that the initial failure to obtain confirmation of her Honduran registry was due to the expiration of SEE WONDERER's registration.

After hearing, the district court denied the motion to dismiss. The court determined that SEE WONDERER was subject to the jurisdiction of the United States District Court for the District of Puerto Rico, even if she was not "stateless," because Honduras had consented to her boarding. Petitioner soon informed the court that he intended to plead guilty. At the change of plea hearing, see Fed.R.Crim.P. 11, petitioner entered an unconditional guilty plea, which was accepted by the district court. The district court sentenced petitioner to a term of imprisonment of twenty years.

Thereafter, petitioner commenced the present habeas corpus proceeding under 28 U.S.C. Sec. 2255, contending that (i) his guilty plea was involuntary (a) by reason of ineffective assistance of counsel and (b) because he was not aware of "the essential elements of [the] offense," (ii) the district court was without subject matter jurisdiction as SEE WONDERER was not "stateless," and (iii) the sentence imposed on petitioner was disproportionately severe in violation of the Fifth Amendment to the United States Constitution.

The United States magistrate recommended dismissal of the habeas petition. The magistrate's report discussed petitioner's jurisdictional, ineffective assistance, and fifth amendment claims, but did not consider the involuntary plea claim based on petitioner's contention that he was never informed of the essential elements of the offense. The petitioner interposed timely objection to the magistrate's recommended disposition, but only to its treatment of the ineffective assistance claim. The district court, sua sponte, addressed the issue of subject matter jurisdiction as well, but did not consider whether petitioner's guilty plea was knowing and intelligent. The district court accepted the magistrate's recommendation and dismissed the petition.

II

The indictment charged petitioner, and eight others, with aiding and abetting the possession of 98,325 pounds of marihuana, with intent to distribute, in violation of 18 U.S.C. Sec. 2 and 21 U.S.C. Secs. 955a(a) & 955a(f). Section 955a(a), since superseded, provided that:

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

(Emphasis added.)

Prior to November 20, 1986, the date of these offenses, however, section 955a(a) had been amended and recodified at 46 U.S.C.App. Sec. 1903(a), ¹ which provides in relevant part that:

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

(Emphasis added.)

Although both section 1903(a) and superseded section 955a contain the same term--"subject to the jurisdiction of the United States," section 1903 defines the term more broadly than did section 955a(a), ² as including inter alia, "a vessel registered in a foreign nation where the flag nation has consented or waived objection to the enforcement of United States law by the United States," 46 U.S.C.App. Sec. 1903(c)(1)(C). See United States v. Doe, 878 F.2d 1546, 1549 (1st Cir.1989).

Petitioner challenges the district court ruling that petitioner, though indicted under superseded section 955a(a), was nevertheless lawfully convicted under successor section 1903(a) as he was aboard a vessel "subject to the jurisdiction of the United States" since Honduras consented to SEE WONDERER's boarding. Petitioner invites particular attention to the very similar circumstances presented in United States v. Doe, 878 F.2d 1546, and United States v. Potes, 880 F.2d 1475 (1st Cir.1989), where the defendants, like petitioner, were charged under superseded section 955a(a) rather than successor section 1903(a).

Doe and Potes rejected contentions that flag nation consent was sufficient to sustain convictions under indictments alleging violations of superseded section 955a(a). As we said in Doe, 878 F.2d at 1549-1550:

One reading it would simply think that the indictment charged the crime of possessing drugs on an American or a Stateless vessel, not on a foreign vessel. And, as we have specifically held, the two crimes are different.... [G]iven the fact that a defendant reading the indictment would find it impossible to know that the Government was charging a 'foreign vessel/with permission' drug crime, we cannot say this mistake was 'harmless,' or that defendants were not 'misled to their prejudice.'

(Citations omitted.)

See also Potes, 880 F.2d at 1479 ("since appellants were indicted not under 46 U.S.C.App. Sec. 1903(a) but under former 21 U.S.C. Sec. 955a(a), the indictment did not inform them that they would be tried for the offense of possessing marihuana on a foreign vessel whose flag nation had provided its consent").

It would be a mistake to conclude, however, that our primary concern in Doe and Potes was with the lack of notice provided by the indictment, since our citations to Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960), make clear that we considered the government to have effected constructive amendments of those indictments, which "destroyed the defendant's substantial right to be tried only on charges presented in an indictment returned by a grand jury." See Doe, 878 F.2d at 1550 (citing also United States v. Miller, 471 U.S. 130, 138-139, 105 S.Ct. 1811, 1816, 85 L.Ed.2d 99 (1984), and United States v. Santa-Manzano, 842 F.2d 1, 2-3 (1st Cir.1988) (both holding it unlawful to convict a defendant "of an offense not charged in the indictment")). "Deprivation of such a basic right is far too serious to be treated as nothing more than a variance and then dismissed as harmless error." Stirone, 361 U.S. at 217, 80 S.Ct. at 273; see also Doe, 878 F.2d at 1549-50.

While Doe and Potes precluded petitioner's conviction under section 1903 merely on evidence of flag nation consent, the present case involves significant variations from the theme in those cases. First, petitioner pled guilty and did not put the government to its proof at trial. Second, it is not clear that the government could not have established that SEE WONDERER was a "stateless" vessel.

It is well settled that a valid guilty plea waives all non-jurisdictional defects in the indictment. See, e.g., United States v. Chantal, 902 F.2d 1018, 1020 (1st Cir.1990); Gioiosa v. United States, 684 F.2d 176 (1st Cir.1982). "[A] defendant who pleads guilty may not later contest the factual and theoretical foundations of the indictment to which he has pled." United States v. Rivera Ramos, 856 F.2d 420, 423 (1st Cir.1988).

A valid guilty plea does not waive...