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T & N v. Pennsylvania Ins. Guar. Ass'n

filed: November 29, 1994.

UNITED STATES OF AMERICA
v.
MARCO ANTONIO COPETE ROSERO, APPELLANT IN NO. 93-7600; UNITED STATES OF AMERICA V. MORENO-MENA, LUIS ALBERTO CARLOS ALBERTO MORENO-VALENCIA, A/K/A LUIS ALBERTO MORENO-MENA, APPELLANT IN NO. 93-7601; UNITED STATES OF AMERICA V. JORGE ANTONIO TOVAR, APPELLANT IN NO. 93-7602; UNITED STATES OF AMERICA V. GABRIEL DE JESUS PINEDA, A/K/A RICHARDO CORRALES RAMIREZ, APPELLANT IN NO. 93-7603; UNITED STATES OF AMERICA V. SIMON DE JESUS MOUSSA-AVILA, APPELLANT IN NO. 93-7604



ON APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS. (D.C. Crim. No. 93-00068-2). (D.C. Crim. No. 93-00068-3). (D.C. Crim. No. 93-00068-4). (D.C. Crim. No. 93-00068-5). (D.C. Crim. No. 93-00068-6).

Before: Stapleton, Alito, and Weis, Circuit Judges.

Author: Alito

Opinion OF THE COURT

ALITO, Circuit Judge :

These are appeals by five defendants who were convicted under 46 U.S.C. App. § 1903(a) for the possession, while on a vessel subject to the jurisdiction of the United States, of a large quantity of marijuana with the intent to distribute it. The government's theory at trial was that the vessel was subject to United States jurisdiction because it was "without nationality" or stateless under 46 U.S.C. App. § 1903(c)(1)(A) and (2). Because the district court gave an erroneous instruction to the jury on the meaning of this statutory element, we reverse the defendants' convictions and remand for a new trial.

I.

At approximately 12:30 a.m. on the morning of December 27, 1992, radar on the United States Coast Guard Cutter GALLATIN detected a vessel a short distance south of Saba Island, which is part of the Netherlands Antilles and is located east of St. Croix. An officer on the GALLATIN then sighted this vessel and observed that it had no lights except for a flashing light that it appeared to be using to signal another vessel. The GALLATIN, which was operating without lights for law enforcement purposes, approached to within 400 yards of the other vessel and illuminated its search light. Two vessels, a small open boat and a larger vessel, were then seen heading in opposite directions. The smaller boat headed west toward St. Croix, and the GALLATIN pursued the larger vessel, a 45-foot fishing boat, for about 30 or 40 minutes. During this time, the fishing vessel engaged in various evasive maneuvers and failed to respond to numerous requests to stop that were transmitted in English, Spanish, and French by radio and by means of the GALLATIN's "loudhailer," which can be heard for a quarter of a mile. The fishing vessel also failed to respond to the international signal to stop that was transmitted using the GALLATIN's whistle. During the chase, persons on board the fishing boat were seen throwing something overboard.

When the fishing boat eventually stopped, all of those on board came out of a cabin and sat on a lifeboat on the ship's bow. A boarding party from the GALLATIN then approached the fishing boat. Two nameplates bearing the name TUTO and the number CP-3891A were affixed on either side of the cabin of the fishing vessel by means of wire strung through bolt holes. This vessel, which we will call the TUTO, did not bear the name of any port or country and was not flying any flag. After the vessel was later seized and taken to St. Croix, the flags of three nations, Colombia, Honduras, and Brazil, were discovered on board.

When the boarding party neared the TUTO, an officer from the GALLATIN asked who was in charge, but the TUTO crew members did not respond. The officer asked for permission to board, and the TUTO crew members motioned for the GALLATIN party to come on board. Members of the boarding party detected a strong smell of marijuana, and they observed numerous large bales on the TUTO's deck.

Through an interpreter, an officer from the GALLATIN asked if the master of the TUTO was on board, and the six members of the TUTO's crew responded in unison that he had departed in the smaller vessel. The officer then asked the TUTO crew members the nationality of their ship, and they answered, again in unison, that they and their ship were Colombian. When the officer asked if their vessel had any documentation, one of the crew members answered, and the officer was directed to the cabin, where Colombian registration papers for a vessel named the EDGAR were found. These papers bore a registration number, CP-3-189-A, that was similar to but different from that on the TUTO'S nameplates, and the papers contained an expiration date of September 2, 1990.

Based on what he had seen, the officer in charge of the GALLATIN boarding party concluded that the TUTO was a stateless vessel, but because the crew had said that the vessel was Colombian, a decision was made to seek a "statement of no objection" or "SNO" from the Colombian government. Therefore, at about 10 a.m., the GALLATIN party returned to their ship to await the SNO. A short time later, the GALLATIN was told that an SNO had been received. According to the declaration of a State Department official, officials of the Colombian government, "after being advised of a claim of Colombian registry for M/V TOTU (sic)," had stated that they could not confirm that the vessel was registered under the laws of Colombia and "agreed that the M/V TUTO was a stateless vessel." At about 11:15 a.m., the GALLATIN party again boarded the TUTO, arrested the crew, and seized the vessel and its cargo of 200 bales of marijuana.

The six TUTO crew members were subsequently taken to St. Croix and were indicted for one count of possession, while on a vessel subject to the jurisdiction of the United States, of approximately 10,000 pounds of marijuana with the intent to distribute it, in violation 46 U.S.C. App. § 1903(a). In addition to filing other pretrial motions, the defendants moved for dismissal of the indictment on the ground that the TUTO was not stateless. A magistrate Judge recommended that the question of the TUTO'S status as a stateless vessel not be decided before trial but that the defendants be given the opportunity to move for judgments of acquittal on this basis at the close of the prosecution's case. The district court took this approach.

One of the defendants pled guilty, but the other five went to trial before a jury.*fn1 The court rejected the defendants' argument that the indictment should be dismissed because the TUTO was not stateless. The court stated that "the Prosecution had presented sufficient evidence that the seized vessel was stateless under 46 U.S.C. App. ยง 1903 to allow the question of statelessness to be submitted to the jury." This question was submitted to the jury pursuant to jury instructions that we will discuss below, and ...


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