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June 11, 1992

OLAF JUDA, et al., Defendants.

The opinion of the court was delivered by: CHARLES A. LEGGE

 Defendants have filed motions which present issues about unsettled areas of law; that is, the constitutional authority of the United States to investigate, intercept and prosecute drug activities occurring outside the United States.


 The six defendants in this case were on board a vessel, the Malekula, headed from Southeast Asia to Canada. As a result of extensive international cooperation and investigative work, Malekula was intercepted in international waters off the coast of Canada by a United States Coast Guard ship. Defendants' vessel was loaded with hashish. When Malekula was intercepted by the Coast Guard, it was set on fire -- allegedly by one of the defendants. Defendants abandoned the vessel and were rescued by the Coast Guard; the Coast Guard also retrieved some of the cargo of hashish.

 Defendants were arrested and this indictment was brought against them in this court. All six defendants are charged with violations of 46 U.S.C. § 1903(a) (persons on board a vessel possessing a controlled substance with intent to distribute), and 46 U.S.C. § 1903(j) (conspiracy to commit that offense). Defendants Juda and Van Der Hoeven are also charged with assault and arson arising from the interception of Malekula by the Coast Guard.


 Defendants move to dismiss the indictment on the ground of lack of jurisdiction. In the event that motion is unsuccessful, defendants also move to suppress the evidence resulting from an alleged illegal entry onto Malekula, which occurred in a foreign country and which resulted in a beeper being placed in the vessel. An evidentiary hearing was held on the motions and they have been submitted for decision.


 One ground for the motion to dismiss is that the interception of Malekula was allegedly done by United States Customs and the Drug Enforcement Administration (DEA), and not by the Coast Guard. The significance of that distinction is based upon United States v. Sarmiento , 750 F.2d 1506 (11th Cir. 1985). In that case, customs officers boarded a vessel, seized the cargo and made arrests on the high seas. The district court dismissed the indictment, and the dismissal was affirmed on appeal. The dismissal was upon the ground that the acts of United States Customs were in violation of the jurisdictional statutes granting authority to that agency; 19 U.S.C. §§ 1581(a) and 1401(j).

 However, defendants' motion here must be denied for both legal and factual reasons. The Sarimiento decision dealt only with the powers of United States Customs; but as the opinion indicates, there is separate statutory authority granted to the United States Coast Guard, 14 U.S.C. § 89(a); 750 F.2d at 1507. In a decision of this circuit, United States v. Aikins , 923 F.2d 650 (9th Cir. 1990), the arrest was a combined operation of United States Customs, the DEA and the Coast Guard; but the court of appeals did not upset the conviction because of the participation of Customs or DEA. Id. at 652-53.

 The court finds as a matter of fact, by a preponderance of the evidence, that the interception was under the control of the Coast Guard. The Coast Guard was statutorily authorized to do so. The court therefore denies defendants' motion to dismiss the indictment on the ground that the operation was conducted by United States Customs outside the scope of the statutory jurisdiction of that agency.


 The other ground for defendants' motion to dismiss is more substantial. That is, is it a violation of due process for the United States to prosecute defendants since they were on a vessel in international waters headed for a foreign country? Defendants contend that the due process clause of the constitution requires a nexus between their activities and the United States, and that the required nexus must be that the hashish be destined for the United States.


 Several decisions in this circuit, including a decision of this court, have considered variations on this issue. United States v. Aikins , 923 F.2d 650 (9th Cir. 1990); 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 below.

 In United States v. Peterson, the Ninth Circuit discussed the so-called protective principle of jurisdiction, as a constitutional basis for exercising jurisdiction over defendants in international waters without any showing of an actual affect on the United States. 812 F.2d 493 at 493-94 . In reliance on the discussion in Peterson, this court in United States v. Biermann, considered the defendants' arguments regarding nexus, but concluded that a showing of nexus was not required because jurisdiction could constitutionally be exercised under the protective principle. 678 F. Supp. at p. 1444. However, in United States v. Davis, the appeal of the Biermann case, the Ninth Circuit held that due process required a nexus. And the court found nexus primarily from evidence of the intention of the defendants to bring the drugs into the United States. In United States v. Aikens, this circuit followed Davis, reaffirmed the requirement of a nexus, and found nexus because the marijuana was destined for the United States. 923 F.2d at 655.

 Based upon the Davis court's discussion on pp. 248-49, and particularly footnote 2, this court concludes that the circuit has rejected the protective principle discussed in Peterson and Biermann as being an independent ground for jurisdiction, and instead requires a constitutionally sufficient nexus.

 Article I, Section VIII, clause 10 of the constitution does give congress the power to "define and punish . . . felonies on the high seas." And by enacting Section 1903(a), congress exercised that power and intended that the United States' drug laws apply in international waters. Davis, 905 F.2d at 248. However, in order for Section 1903 to be applied to a particular vessel or a particular defendant, the decisions of this circuit require a nexus between the defendant and the United States.


 The government seeks to avoid the requirement of nexus on the ground that Malekula was a "stateless" vessel. The government argues that occupants of stateless vessels may be prosecuted by any country, without any requirement of nexus with the prosecuting country.

 Malekula was owned and captained by defendant Juda. At the time of acquiring the vessel, he made several attempts to register it in foreign jurisdictions. However, those attempts were unsuccessful. During its voyage to Canada and at the time of the interception, Malekula was a "stateless" vessel.

 There is some authority for the government's argument that nexus is not required between a stateless vessel and the country seeking to exercise jurisdiction. In United States v. Rubies, 612 F.2d 397, 403 (9th Cir. 1979), the Ninth Circuit said, "with regard to stateless vessels, no question of comity nor of any breach of international law can arise, if there is no state under whose flag the vessel sails." However, that decision only goes so far. That is, the court was discussing comity and rules of international law; it was not considering the requirements of the United States Constitution. Even if stateless vessels are ones as to which the United States owes no obligations to another country, that does not mean that persons on those vessels do not have the protection of the constitution in a prosecution by the United States.

 Decisions of other circuits have noted that distinction. In United States v. Batista, 731 F.2d 765 (11th Cir. 1984), the Eleventh Circuit stated that there need not be a nexus between a stateless vessel and the country seeking to exercise its jurisdiction. However, the issue of due process under the United States Constitution was not raised. Accord, United States v. Marino-Garcia, 679 F.2d 1573 (11th Cir. 1972). In United States v. Alvarez-Mena, 765 F.2d 1259 (5th Cir. 1985), the Fifth Circuit held that no nexus was required by statute or international law. The court discussed only international law and congressional intent, and noted that there was no basis for a claim of due process violation in that case. Id. at 1266. In United States v. Pinto-Mejia, 720 F.2d 248 (7th Cir. 1983), the Second Circuit held that no nexus was required for the assertion of jurisdiction over a stateless vessel under international law. That court recognized that congress has the power to legislate in excess of the jurisdiction defined by international law. When Congress changed former 21 U.S.C. § 955(a) into the present 46 U.S.C. § 1903, it added a provision that the failure to comply with international law should not divest a court of jurisdiction. Section 1903(d). But the court also noted that a federal court would not be bound to follow that congressional direction if "this would violate the due process clause of the Fifth Amendment." 720 F.2d at 259. And in United States v. Howard-Arias, 679 F.2d 373 (4th Cir. 1982), the Fourth Circuit held that stateless vessels were not protected by international law, and would be governed by federal statutes "to the extent permitted by the due process clause of the Fifth Amendment." 679 F.2d at 371. In summary, the above cases dealt only with principles of statutory construction and international law. They were not decisions on the extent that United States criminal laws can be applied as a matter of due process.

 In contrast, the holdings of the Ninth Circuit in Davis and Aikens, and perhaps in Peterson, were not limited to international law considerations. Those decisions were constitutional in nature; that is, defining the constitutionally permissible scope of acts of congress over international waters.

 This court therefore concludes that the constitutional requirement of nexus applies to stateless vessels. While such vessels may have no rights to object to jurisdiction under international law, the due process clause of the Fifth Amendment, as interpreted by the Ninth Circuit, requires a sufficient nexus between defendants and the United States for the United States to prosecute them.


 What is the nexus that is required? In the Davis and Aikens cases, the drugs were bound for the United States and the court of appeals determined that was a sufficient nexus. However that nexus is absent in this case. The declarations, including those of defendants and the United States, demonstrate that the drugs were bound for Canada. There is no substantial evidence that the drugs were destined, even ultimately, for the United States. If the only permissible nexus is that the drugs be destined for the United States, there is an absence of nexus in this case.

 Can there be connections between defendants and the United States, other than the intended destination of the drugs, which are a ...

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