On Appeal from the District Court of the Virgin Islands (Division of St. Croix). (D.C. Criminal No. 92-00043-2).
Before: Greenberg, Scirica, and Garth, Circuit Judges.
GREENBERG, Circuit Judge.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant-appellant Nicomedes Martinez-Hidalgo appeals from the judgment of conviction and sentence entered on October 20, 1992, following his conviction at a jury trial in the District Court of the Virgin Islands for possession of cocaine on the high seas with intent to distribute and conspiracy on the high seas to distribute cocaine in violation of the Maritime Drug Law Enforcement Act, 46 U.S.C. app. §§ 1903(a) and (j) (Supp. 1992). Martinez, a Colombian national, and the other members of the crew of his vessel were arrested in international waters after the Coast Guard boarded his vessel and found that it contained eight burlap bags of cocaine, later determined to weigh 282 kilos. He contends, as he did in the district court, that the Maritime Drug Law Enforcement Act does not apply to him because he was a nonresident alien on a foreign vessel sailing outside United States territorial waters and there was an insufficient nexus between his activities and the United States to sustain the district court's jurisdiction. In addition, for the first time he now advances the contention that the Coast Guard searched and seized his vessel in violation of the Fourth Amendment. We will affirm.
The facts in the case are not complicated nor, insofar as material to the issues raised on this appeal, in dispute. On December 12, 1991, the USS Hercules, a navy vessel with four Coast Guard members on board, was on patrol at a point approximately 60 miles southwest of St. Croix and 80 miles south of Puerto Rico. The Coast Guard command in San Juan had warned the Hercules crew to be on the alert for a drug drop. At that time the Hercules encountered a 26-foot flagless boat without name or numbers. This boat was constructed of wood and fiberglass and was difficult to detect on radar because of the unusually small amount of metal used in its construction. An officer on the Hercules contacted the boat's crew through a bull horn and asked their nationality, the place of origin of their voyage, and if they had documentation. The crew responded that they and their boat were Colombian but that they had sailed from Venezuela without documentation. The crew also claimed to have been looking for another boat in distress which had been adrift for about a week. The Coast Guard then radioed for a statement of no objection (SNO) from the Colombian government so that the Hercules crew could check the 26-foot boat for documentation. For the next 12 to 14 hours the two vessels remained within 1000 feet of each other while the Coast Guard awaited a response from Colombia.
Early the following morning the Colombian government issued a SNO authorizing the Coast Guard to board the boat to check for documentation. This SNO was forwarded by radio to the Hercules, which then sent a boarding party to the boat. When the party boarded, it found that the boat's crew consisted of Martinez, Captain Roberto Benitz-Zatas, and Fredi Guzman-Barrio. The boarding party observed in plain view several burlap bags which they suspected contained drugs. One of the members of the party asked the boat's crew if they had documents or registration for the boat and was given a negative response. The Hercules party then unsuccessfully searched for documentation.
The Coast Guard then started a process to obtain a second SNO. But before the Coast Guard obtained this second SNO, the boarding party tested the contents of one of the bags and determined that it was cocaine. Shortly thereafter the Coast Guard received a second SNO from the Colombian government rejecting the claim of registry and indicating that the boat should be considered stateless. The boarding party then arrested the crew and searched the boat. While searching, the party found a chart of the Caribbean and Gulf of Mexico with coordinates indicating a route leading ultimately towards Puerto Rico and St. Croix.
A grand jury in the District of the Virgin Islands indicted Martinez, Benitz, and Guzman for violating 46 U.S.C. app. §§ 1903(a) and (j). Benitz pleaded guilty, while Martinez and Guzman pleaded not guilty and were tried together before a jury. Following the close of the government's case, Martinez and Guzman moved for a judgment of acquittal pursuant to Fed. R. Crim. P. 29 on the ground that the proof was insufficient to establish that they intended the drugs to land in the United States. The district court denied the motion.*fn1 Benitz then testified on behalf of Martinez and Guzman that he told them that the purpose of the trip was to meet another boat in distress and that they were not aware of the cocaine cargo at the outset of the voyage.
In its charge, the court told the jury that the "ultimate destination of the cocaine" was "not in issue in this case" and that there was "no requirement" that the government prove that the cocaine "would have entered the United States." While this statement of the law was inconsistent with Martinez's legal position, he did not object to it for, as he explained at oral argument before us, he considered that the nexus issue was a jurisdictional matter which the court had resolved against him when it denied his Rule 29 motion for acquittal. Martinez and Guzman were convicted on both counts. The court sentenced Martinez to a custodial term of 235 months and he then appealed.*fn2
1. May the government prosecute Martinez under the Maritime Drug Law Enforcement Act?
Martinez contends that the government did not show that he intended that the drugs eventually would reach the United States. Thus, in his view, the district court did not have jurisdiction and he could not be prosecuted under 46 U.S.C. app. §§ 1903 (a) and (j). However, Martinez's contention is legally inadequate because the Maritime Drug Enforcement Act ...