United States v. Hernando Robinson, United States of America v. Jorge Robinson, United States of America v. Roberto Robinson

On June 3, 1986, the United States Coast Guard stopped a Panamanian ship, the M/V JUAN ROBINSON, as it sailed about 500 nautical miles east of North Carolina. Coast Guard officers, boarding with the master’s consent, looked around the ship, became suspicious, obtained Panama’s permission to proceed further, and eventually found about 20 tons of marijuana hidden in a fake fuel tank. Subsequently, a jury convicted the appellants Hernando and Jorge Robinson of unlawfully possessing marijuana with intent to distribute it, 21 U.S.C. § 955a(c) (1982) (amended, recodified at 46 U.S.C. § 1903(a) and (c) (Supp. IV 1986)) and 18 U.S.C. § 2 (1982), and, along with appellant Roberto Robinson, of conspiring to do so. 21 U.S.C. § 955c (1982) (amended, recodified at 46 U.S.C. § 1903(j) (Supp. IV 1986)). All three appellants argue that principles of international, and of constitutional, law prevent the government from applying United States drug law to them; two appellants also question the sufficiency of the evidence. After examining the record and the relevant legal authorities, we conclude that their convictions are lawful.

I

Appellants’ most important arguments focus upon 21 U.S.C. § 955a(c), a statute that, in part, forbids offshore drug possession. At first glance the statute does not seem to apply to the high seas, for it says that no “person on board any vessel within the customs waters of the United States” may knowingly “manufacture or distribute, or ... possess with intent to ... distribute, a controlled substance.” (Emphasis added.) But a different statute, 19 U.S.C. § 1401(j) (1982), defines “customs waters” in a special way. With respect to any “foreign vessel” on the high seas, “customs waters” include “waters” within which “a foreign government” may “enable] or permit[] the authorities of the United States to board, examine, search, seize, or otherwise to enforce ... the laws of the United States,” as long as there is a “treaty or other arrangement” between the foreign government and the United States granting this permission. (See Appendix.) That is to say, if a foreign government “by treaty or other arrangement” permits the United States “to enforce [its laws] upon ... [a] vessel upon the high seas” the waters around the vessel become “customs waters,” and 21 U.S.C. § 955a(c) then forbids drug possession. See, e.g., United States v. Alomia-Riascos, 825 F.2d 769, 770-71 (4th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 715, 98 L.Ed.2d 665 (1988); United States v. Peterson, 812 F.2d 486, 492-93 (9th Cir.1987); United States v. Gonzalez, 776 F.2d 931, 935-37 (11th Cir.1985); United States v. Bent-Santana, 774 F.2d 1545, 1549-50 (11th Cir.1985); United States v. Loalza-Vasquez, 735 F.2d 153, 157 (5th Cir.1984); United States v. Vouloup, 625 F.Supp. 1266, 1267-68 (D.P.R.1985); see also United States v. Charris, 822 F.2d 1213, 1216-17 (1st Cir.1987) (validity of ad hoc arrangement assumed).

Appellants claim that this effort to extend the United States’ criminal jurisdiction outside the boundaries of the United States violates international law; they add that Congress did not intend to exceed the bounds of international law; and they conclude that we must interpret the statute so that it does not apply to them. See S.Rep. No. 855, 96th Cong., 2d Sess. 2 (1980), U.S.Code Cong. & Admin.News 1980, p. 2785 (§ 955a would give Justice Department “the maximum prosecutorial authority permitted under international law”) (emphasis added); H.R.Rep. No. 323, 96th Cong., 1st Sess. 9, 11 (1979) (“[statute] eliminates any possible conflict with international law by limiting the scope ... to situations where the United States has *3 clear jurisdiction”; “prohibits] all acts of illicit trafficking in controlled substances on the high seas which the United States can reach under international law ”) (emphasis added); see also Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118, 2 L.Ed. 208 (1804) (Marshall, Ch.J.) (“an act of congress ought never to be construed to violate the law of nations, if any other possible construction remains”); Restatement (Second) of Foreign Relations Law of the United States § 3(3) (1965) (same). They also claim that, regardless, the ex post facto clause of the federal constitution, art. I, section 9, clause 3, prohibits their convictions.

A

Appellants’ “international law” argument rests upon the fact that, so far, most courts have found jurisdictional authority for applying § 955a(c) on the high seas in international law’s “protective principle,” a principle that “permits a nation to assert jurisdiction over a person whose conduct outside the nation’s territory threatens the nation’s security or could potentially interfere with the operation of its governmental functions.” United States v. Romero-Galue, 757 F.2d 1147, 1154 (11th Cir.1985); see also Alomia-Riascos, 825 F.2d at 771; Peterson, 812 F.2d at 493-94; Gonzalez, 776 F.2d at 938-40; Restatement (Revised) of Foreign Relations Law of United States § 402 comment f (Tent. Draft No. 6, 1985) (hereinafter Restatement (Revised)). But see Loalza-Vasquez, 735 F.2d at 157. Appellants make the forceful argument that these courts are wrong.

Appellants concede that the “protective principle” allows the United States to forbid extraterritorial conduct aimed at its “security” or “against other important state interests,” such as “conspiracy to violate the ... customs laws.” Restatement (Revised) § 402 comment f; see, e.g., United States v. Birch, 470 F.2d 808 (4th Cir.1972) (forgery of military papers), cert. denied, 411 U.S. 931, 93 S.Ct. 1897, 36 L.Ed.2d 390 (1973); United States v. Pizzarusso, 388 F.2d 8 (2nd Cir.) (falsification on visa application), cert. denied, 392 U.S. 936, 88 S.Ct. 2306, 20 L.Ed.2d 1395 (1968); Rocha v. United States, 288 F.2d 545 (9th Cir.) (fraudulent entry to United States), cert. denied, 366 U.S. 948, 81 S.Ct. 1902, 6 L.Ed. 2d 1241 (1961). But, they ask, how can this principle justify prohibiting foreigners on foreign ships 500 miles offshore from possessing drugs that, as far as the statute (and clear proof here) are concerned, might be bound for Canada, South America, or Zanzibar? See Restatement (Revised) § 402(3) (protective principle gives state power to prescribe law protecting itself from actions taken abroad that harm it)', id., comment f (protective principle “based on the effect ... [of an offshore] act upon or in a state’s territory ”) (emphasis added). But see 46 U.S.C. § 1902 (Supp. IV 1986) (finding in act amending § 955a that drug trafficking threatens security of United States).

Moreover, any assertion of jurisdiction under the protective principle must be “reasonable.” See Restatement (Revised) § 403; Brown, “Protective Jurisdiction,” 34 Am.J.Int’l L. 112, 114 (1940). How is it reasonable, they ask, to assert jurisdiction under these circumstances, particularly once one realizes that the “protective principle,” as interpreted by the courts, might allow the United States to act even without the consent of the flag state. See Alomia-Riascos, 825 F.2d at 771; Gonzalez, 776 F.2d at 938; Romero-Galue, 757 F.2d at 1154.

Appellants go on to point out that the Convention on the Territorial Sea and the Contiguous Zones, opened for signature April 29, 1958, art. 24, 15 U.S.T. 1606, T.I.A.S. No. 5639 (entered into force Sept. 10, 1964), which the United States has signed, allows states to assert customs and immigration interests in a contiguous zone 12 miles offshore, not 500 miles offshore. See also Convention on the High Seas, opened for signature April 29, 1958, art. 6, 22, 23, 13 U.T.S. 2312, T.I.A.S. No. 5200 (entered into force Sept. 30, 1962) (describing limits of law enforcement on high seas); Restatement (Second) §§ 21, 22, 34 (same); Restatement (Revised) § 522 (same); I. Brownlie, Principles of Public International Law 254-55 (1979) (same). And, *4 they add, recently codified international law does not consider drug dealers to be like pirates, slave traders, or pirate broadcasters, against whom that law says any nation can assert its laws wherever they are found. See Convention on the High Seas, art. 22; Restatement (Second) § 34 & reporters’ note 2; Restatement (Revised) §§ 404, 521 reporters’ note 1, 522 & comment d & reporters’ note 4 (drug ship can be seized only pursuant to formal or informal agreement).

In our view, however, appellants’ arguments are beside the point, for there is another, different, but perfectly adequate basis in international law for the assertion of American jurisdiction. Panama agreed to permit the United States to apply its law on her ship. Panama’s Director General of Consular and Shipping Affairs certified that on June 3, 1986, after the Coast Guard stopped the JUAN ROBINSON, the Panamanian government gave its “authorization” not only “to board, inspect, search, seize and escort the vessel to the United States,” but also “to prosecute the persons aboard the vessel.” It is clear, under international law’s “territorial principle,” that a “state has jurisdiction to prescribe and enforce a rule of law in the territory of another state to the extent provided by international agreement with the other state.” Restatement (Second) § 25; Vermilya-Brown Co. v. Connell, 335 U.S. 377, 383-85, 69 S.Ct. 140, 143-45, 93 L.Ed. 76 (1948) (describing executive agreements transferring jurisdiction to United States); United States v. Shiroma, 123 F.Supp. 145 (D.Haw.1954) (American criminal jurisdiction over sovereign Japanese territory transferred by treaty); see also Ex Parte Crow Dog, 109 U.S. 556, 3 S.Ct. 396, 27 L.Ed. 1030 (1883) (United States can apply its pre-existing law to Indian nation by treaty without any further congressional action). Panama and the United States could agree to apply United States drug laws, say, in Panama City, should both nations wish to do so. See, e.g., Dizon v. Philippines-Ryukus Command, 81 Phil. Reports 286 (1948) (criminal jurisdiction over United States army base on Philippine territory can be ceded to United States by agreement); Miquiabas v. Philippines-Ryukus Command, 80 Phil. Reports 262 (1948) (same). Similarly, they can agree to apply American law on a Panamanian ship.

Of course, the “agreement” here does not take the form of a treaty. But, nations may agree through informal, as well as formal, means. See Restatement (Second) § 115 & comment a (international agreement exists if manifest intention to define relationships under international law); Restatement (Revised) § 522 reporter’s note 4 (“[a] ship suspected of [drug] traffic ... may be visited, inspected or seized by a foreign law enforcement ship ... pursuant to a formal or informal agreement”). In our view, the Panamanian statement giving the United States the right not only to board but “to prosecute” persons aboard the ship constitutes such an agreement. Panama, the only party who could object if the agreement was not so intended, see United States v. Hensel, 699 F.2d 18, 30 (1st Cir.), cert. denied, 461 U.S. 958, 103 S.Ct. 2431, 77 L.Ed.2d 1317 (1983), has not indicated otherwise. These well-established principles, together with Panama’s statement of agreement, are a sufficient answer to appellants’ “international law” objections.

B

Appellants’ ex post facto argument is more difficult. In light of our concession that Panama’s consent was necessary to apply American law, that law did not apply until sometime on June 3, 1986, sometime after the appellants’ acts of possessing the marijuana were complete. Appellants argue that to apply American law to these previously completed acts violates the ex post facto clause of the Constitution, a clause which forbids Congress to enact any law “ ‘which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.’ ” Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981) (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26, 18 L.Ed. 356 (1867)); see also Dobbert v. Florida, 432 U.S. 282, 292-301, 97 *5 S.Ct. 2290, 2297-2302, 53 L.Ed.2d 344 (1977); Hopt v. Utah, 110 U.S. 574, 588-90, 4 S.Ct. 202, 209-10, 28 L.Ed. 262 (1884). They say that American drug law imposes a worse punishment than Panamanian drug law, for it requires imprisonment far from home, see Ex Parte Crow Dog, 109 U.S. at 571, 3 S.Ct. at 406 (special injustice in trying Indian defendant according to “white man’s” law), and it applies suddenly, after the event. Appellants’ arguments have force; we have examined them carefully; yet ultimately they have failed to convince us for several reasons:

1. We have first considered the argument in light of the specific harms the ex post facto clause seeks to avoid. The Supreme Court summarized those harms in Weaver:

Through [the ex post facto ] ... prohibition, the Framers sought to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed. The ban also restricts governmental power by restraining arbitrary and potentially vindictive legislation.

450 U.S. at 28-29, 101 S.Ct. at 964 (citations omitted). We have not found these harms present here.

Plaintiffs cannot say that § 955a(c) fails to give them adequate legal notice. Enacted well in advance of their voyage, the Act makes clear that possession of drugs upon foreign flag vessels violates American law if the flag nation enters into an “arrangement” permitting the United States to “enforce” its laws “upon such vessel." Case-law makes equally clear that an “arrangement” can include the Coast Guard’s ad hoc request for permission. See, e.g., Peterson, 812 F.2d at 492-93; Bent-Santana, 774 F.2d at 1549-50; Loalza-Vasquez, 735 F.2d at 157; see also United States v. Marsh, 747 F.2d 7, 9 (1st Cir.1984) (19 U.S.C. § 1581(h) “arrangement”); United States v. Green, 671 F.2d 46, 50-52 (1st Cir.) (same), cert. denied, 457 U.S. 1135, 102 S.Ct. 2962, 73 L.Ed.2d 1352 (1982); United States v. Williams, 617 F.2d 1063, 1077, 1089-90 (5th Cir.1980) (19 U.S.C. § 89 “arrangement”). Nor, if one looks to the particular facts of the case, can appellants claim that the circumstances in which the statute applies are unusual: Coast Guard stops and “sweeps” of vessels traveling in the Atlantic or Caribbean en route from South to North America are frequent and routine. H.R.Rep. No. 323 at 3, 4 (“now-familiar pattern” of Coast Guard drug stops and seizures occur “almost every other day” from Gulf of Mexico through Caribbean and north along Atlantic to Maine), and many of those stops involve Panamanian ships. See, e.g., Bent-Santana, supra; United States v. Beltran, 761 F.2d 1 (1st Cir.1985); Romero-Galue, supra; Loalza-Vasquez, supra; United States v. Streifel, 665 F.2d 414 (2nd Cir.1982); Williams, supra.

Nor can appellants claim they did not know drug possession was unlawful. Possessing drugs is as illegal under the laws of Panama as it is under the laws of the United States. Codigo Penal de Panama, tit. VII, ch. V, art. 255-58. In short, we cannot find any element of the crime of which appellants lacked legal notice in advance.

Neither can we find, as far as advance notice is concerned, any fundamental unfairness of a sort that the Constitution’s “due process” clause might prohibit. In respect to warning, one might say that defendants freely embarked on a course of conduct that they knew could lead to criminal consequences under United States law. They loaded almost 20 tons of marijuana onto a ship registered in Panama, where they knew (or had legal notice) that such possession was prohibited, and they set forth on the high seas, an area where they knew (or had legal notice) that § 955a(c) applied and that forces out of their control —the Panamanian consul and United States law enforcement officers — might take mutual action “enabling or permitting the authorities of the United States ... to enforce upon ... [their] vessel ... the laws of the United States.” (The term “customs waters,” by definition, represents precisely the concerted decision of the United States and Panama to prosecute drug traffickers under American law.)

*6 The statute told defendants about the risk of prosecution, and how the decision to prosecute would be made (the “arrangement” granting consent); prior practice told them that the United States would obtain foreign consent where possible. How then do these defendants differ from other criminal defendants who know that completing certain acts (here, embarking upon the high seas between Latin America and the United States, where agreement between Panama and the United States could bring the criminal consequences set forth in the American statute to bear) will make them liable to prosecution? Here, the manner of deciding who will prosecute the appellants is unusual. But, that is so for reasons of international law. That unusual method is written into the statute and does not affect “fair notice.” Cf. United States v. Starr, 27 F.Cas. No. 16, 379 (C.C.D.Ark.1846) (extension of criminal jurisdiction «mlawful where no pre-existing “prosecution-by-consent” arrangement). Of course, appellants could not tell, in advance, which legal authority would prosecute them or whether they would receive higher (U.S.) or lower (Panamanian) penalties. But their predicament in this respect is more like that of a defendant potentially subject to prosecution by several jurisdictions or uncertain of just what sentence a judge will impose than that of persons unaware that what they do at the time is unlawful or subject to particular penalties. That is to say, given the prior existence of statute and practice, we cannot find a “fair warning” problem sufficient to invoke ex post facto strictures.

Neither can we find any basis for a claim of a “vindictive” or “arbitrary” application of law. Weaver, 450 U.S. at 29, 101 S.Ct. at 964. The law was passed before the ship left port. It applies evenhandedly to all ships within its scope. It sets forth a clear procedure which the Executive must follow to enforce a clearly defined law, and there is no indication that the Executive has been enforcing that law in any arbitrary way. Statutes that make allowance for changing circumstances are not per se unlawful. Cf. Assimilative Crimes Act, 18 U.S.C. § 13 (1982); United States v. Sharpnack, 355 U.S. 286, 78 S.Ct. 291, 2 L.Ed.2d 282 (1958) (changes in state criminal law made after the passage of the ASA may be “assimilated” into federal law, without further federal action). Nor is there anything unlawful about the Executive taking action to enlarge jurisdiction. See, e.g., Vermilya-Brown, supra; Ex Parte Crow Dog, supra; Fleming and Marshall v. Page, 50 U.S. (9 How.) 603, 614, 13 L.Ed. 276 (1850) (United States can extend boundaries “by the treaty-making power” or “legislating authority”).

2. We have not found any other fundamental conceptual principle of fairness that application of the statute here violates. Appellants argue that their conduct became unlawful under American law after it was too late for them to change. But, when otherwise fair, the Constitution’s ex post facto and due process clauses do not automatically prohibit the application of pre-existing law to conduct known to be criminal simply because application of a particular law turns on a matter unknown to an offender or beyond his control. The passage of a gun in interstate commerce, for example, even before the enactment of the statute in question, can make a felon’s receipt of that gun, later and without knowledge of or involvement in its previous interstate journey, illegal. See 18 U.S.C. App. § 1202(a) (1982); United States v. Hopkins, 529 F.2d 775, 777 (8th Cir.1976) (interstate transport before passage of Act by unrelated individual sufficient to convert felon’s possession into federal crime), cert. denied, 431 U.S. 965, 97 S.Ct. 2920, 53 L.Ed.2d 1060 (1977). The Travel Act makes certain violations of state law into federal offenses as soon as an offender trips an interstate connection, regardless, according to a number of courts, of the intent or knowledge of the offender in respect to federal law. See 18 U.S.C. § 1952 (1982 & Supp. IV 1986); United States v. Sellaro, 514 F.2d 114, 120-21 (8th Cir.1973) (knowing receipt of interstate telephone calls unnecessary for liability), cert. denied, 421 U.S. 1013, 95 S.Ct. 2419, 44 L.Ed.2d 681 (1975). Similarly, a stolen vehicle must travel in interstate commerce *7 before its receipt can constitute a federal crime — but an in-state receiver need not have any knowledge of or connection with the vehicle’s movement to be federally liable. See 18 U.S.C. § 2313 (1982 & Supp. II 1984); Overton v. United States, 405 F.2d 168, 169 (5th Cir.1968).

Consider, moreover, how the occurrence of an injury or death can make negligent conduct manslaughter, see 32 J. Nolan, Massachusetts Practice § 201 (1976) (gathering common law authorities); how the fact of age (even when unknown to a defendant) can create a statutory rape or convert a legal sale of alcohol into a prohibited sale to a minor, see Mass.Gen. Laws ch. 265 §§ 22A, 23 (1986); Roberge v. Burnham, 124 Mass. 277 (1878) (conviction under St. 1875, ch. 99, § 15, now replaced by Mass.Gen. Laws ch. 138 §§ 34, 34B); or, how a coconspirator can be liable for the actions of a colleague, a co-felon for the murder committed by a partner. See, e.g., Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946); Commonwealth v. Leavey, 359 Mass. 744, 269 N.E.2d 209 (1971).

Consider new laws that prohibit possession of firearms by those convicted or dishonorably discharged before the law was passed, 18 U.S.C.App. § 1202(a), and note that Congress can enhance sentences for repeat offenders, even though doing so is, in a sense, to enhance the penalty for the first crime that took place before the enhancement statute was enacted. Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683 (1948).

In all of these instances, facts outside defendant’s knowledge or control can “complete” a crime, by contributing an essential element necessary for the offense. But in these instances, the courts have considered it fair, or at least not “unfair,” constitutionally speaking, to find criminal liability. Once it is conceded that “fairness” is the issue, the law here is not unconstitutional, for, given prior notice and the basic unlawfulness (i.e., under Panamanian law) of the appellants’ primary (drug possessing) conduct, we cannot say, constitutionally speaking, that it is “unfair” to apply § 955a(c) to them.

3. We have also looked for authoritative legal descriptions of the ex post facto clause to see whether those descriptions, if taken literally, might render the statute unlawful irrespective of the fact that it creates no specific ex post facto harm. The Weaver Court wrote:

In accord with these purposes, our decisions prescribe that two critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.

Weaver, 450 U.S. at 29, 101 S.Ct. at 964 (footnotes omitted). The statute here is not “retrospective.” It does not apply to “events occurring before its enactment.” Nor does § 955a(c) “impose[ ] a punishment for an act which was not punishable at the time it was committed,” Weaver, 425 U.S. at 28, 101 S.Ct. at 964 (quoting Cummings, 71 (4 Wall.) U.S. at 325-26, 18 L.Ed. 356), or “change the ingredients of the offense,” Hopt v. Utah, 110 U.S. at 590, 4 S.Ct. at 210 any more than, say, the Hobbs Act, 18 U.S.C. § 1951 (1982), which makes punishable a grocery store robbery that subsequently affects interstate commerce. See, e.g., United States v. Caldarazzo, 444 F.2d 1046, 1049 (7th Cir.), cert. denied sub nom. Delegge v. United States 404 U.S. 958, 92 S.Ct. 328, 30 L.Ed.2d 276 (1971). Indeed, if one wishes to meet literalism with literalism, the crime here includes possession that continued after Panama gave its consent and American law applied. The real objection appellants raise is not to the failure to comply with the literal language of Weaver but rather to the “unfairness” of applying a law only when it is likely too late to change a course of conduct. But, for reasons pointed out above, we do not find significant unfairness in that fact here.

For these reasons, whether we consider the matter literally, conceptually, or in terms of the specific harms the ex post *8 facto clause seeks to prevent, we cannot find a violation of the Constitution.

II

Two of the appellants, Jorge and Roberto Robinson, argue that the evidence was not sufficient to warrant their convictions for possession of marijuana and conspiracy. They concede that the Coast Guard found almost 20 tons of marijuana hidden in one of the vessel’s fuel tanks; that someone had cut the fuel lines leading from the tank and capped them from inside the bulkhead; that someone had recently welded the tank closed and painted it; and that the Coast Guard found cans of matching paint on the ship and recently used welding equipment under the bunk of their codefendant Her-nando Robinson. But, they say they knew nothing about any of this and that a reasonable juror could not conclude the contrary beyond a reasonable doubt. They point to cases holding that a person’s “mere presence” on a ship containing drugs is insufficient evidence to support conviction, United States v. Luciano Pacheco, 794 F.2d 7, 10 (1st Cir.1986); United States v. Quejada-Zurique, 708 F.2d 857, 859 (1st Cir.), cert. denied sub nom. Morejon-Ortega v. United States, 464 U.S. 855, 104 S.Ct. 173, 78 L.Ed.2d 156 (1983); United States v. Smith, 680 F.2d 255, 260 (1st Cir.1982), cert. denied, 459 U.S. 1110, 103 S.Ct. 738, 74 L.Ed.2d 960 (1983), and they add that most of our recent cases finding the evidence sufficient involved marijuana odors that the ship’s crew likely smelled. Charris, 822 F.2d at 1215; Luciano Pacheco, 794 F.2d at 11; United States v. Guerrero-Guerrero, 776 F.2d 1071, 1074 (1st Cir.1985), cert. denied sub nom. Mosquera v. United States, 475 U.S. 1029,