Petition — Parks v. United States
Supreme Court brief1975
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Supreme Court.
of the
Qnited States
>. 74-1292
WILLIAM MICHAEL PARKS,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
MELVYN KESSLER, ESQUIRE
Attorney for Petitioner
1531 N.W. 15th Street Road
Miami, Florida 33125
(305) 324-4104
MIAMI REVIEW — 371-4853 — 377-3721
INDEX
Page
INTRODUCTION l
OPINIONS BELOW 1
JURISDICTION 2
QUESTIONS PRESENTED 2
CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED 2
STATEMENT OF THE CASE 3
REASONS FOR GRANTING THE WRIT 4
CONCLUSION 12
CERTIFICATE OF SERVICE 13
APPENDIX A
(a) Opinion of March 13, 1975 Affirming
Petitioner’s Conviction.
II
TABLE OF CITATIONS
Case Page
Boykin v. Alabama,
395 U.S. 238
5
Brady v. United States,
397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747
(1970) 5
Griffin v. Illinois,
351 U.S. 12, 20 (1956) 5
Hughes v. United States,
371 F.2d 694 (8th Cir. 1967) 4
Jackson v. Denno,
378 U.S. 368 (1964) 11
Jenkins v. Beto,
442 F.2d 1001 (5th Cir. 1971) 4
Johnson v. Zerbst,
304 U.S. 458 (1938) 5
McMann v. Richardson,
397 U.S. 759 (1970) 10, 11
People v. Lawson,
1 Cal. App.3d 730, 81 Cal. Rptr. 883 (1970) 7
Santobello v. New York,
404 U.S. 257 (1971) 11
United States v. Cook,
463 F.2d 123 (5th Cir. 1972) | 11
Ill
TABLE OF CITATIONS (cont.)
Case Page
United States v. Dorsey,
449 F.2d 1104, 1108 Note No. 18 (D.C. Cir.
1971) 8
United States v. Pate,
222 F. Supp. 998 (N. D. Ill. 1963) 9
United States v. Rosenberg,
458 F.2d 1183 (5th Cir. 1972) 11
United States ex rel. Rogers v. Warden of Attica
State Prison,
381 F.2d 209 (2nd Cir. 1967) 8
United States v. Sepe,
486 F.2d 1044 (5th Cir. en banc 1973)
Go
STATUTES
28 U.S.C. Section 2255 2
OTHER AUTHORITIES
20 A.L.R. 3d 724 : 6
9 Houston L. Rev. 305, 314 (1971) 6
Wright, Federal Practice and Procedure,
Criminal Section 175 8
A.B.A. Standard Relating to Criminal Appeals,
Section 1.3 ; 7
New York Code of Criminal Procedure,
Section 813-c ‘i 7
in the
Supreme Court
of the
United States
NO. .
WILLIAM MICHAEL PARKS,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
The Petitioner, WILLIAM MICHAEL PARKS, re-
spectfully prays that a Writ of Certiorari issue to review
the Judgment of the United States Court of Appeals for
the Fifth Circuit entered in this proceeding on March 13,
1975.
OPINION BELOW
The Court of Appeals affirmed with opinion Peti-
tioner’s conviction on March 13, 1975 in case number
73-2236. (See Appendix A hereto) A Petition for rehearing
was not filed in this cause.
2
JURISDICTION
The Judgment of the United States Court of Appeais
for the Fifth Circuit was entered on March 13, 1975.
Jurisdiction of this Court is invoked under Title 28, United
States Code, §1254(1) and Rule 19/1) (b), United States
Supreme Court Rules.
QUESTIONS PRESENTED
I,
WHETHER THIS HONORABLE COURT
SHOULD SANCTION THE PROCEDURE
WHEREBY A FEDERAL DEFENDANT,
AFTER PLEADING GUILTY OR NOLO CON-
TENDERE IN THE FEDERAL COURT, MAY
STILL PRESERVE FOR APPEAL ADVERSE
PRETRIAL RULINGS ON NONJURISDIC-
TIONAL ISSUES?
CONSTITUTIONAL PROVISIONS
AND STATUTES INVOLVED
United States Constitutior,
Amendment Five:
“No person ... shall be compelled in any
criminal case to be a witness against himself, nor
be deprived of life, liberty, or property, without
due process of law. .. .”
3
STATEMENT OF THE CASE
On March 14, 1973 the Petitioner was indicted for
various violations of the Federal Narcotics Laws. After
Petitioner entered his plea of not guilty, his trial counsel
filed a motion to suppress evidence alleging that the con-
traband which formed the basis of the prosecution, was
seized illegally. Following a denial of this motion to sup-
press, the Petitioner was granted a motion to withdraw
his previously entered plea of not guilty and to substitute
a plea of nolo contendere to Count I of the indictment. The
Petitioner was sentenced to three (3) years of imprison-
ment with an additional parole term of two (2) years.
The United States Court of Appeals for the Fifth
Circuit refused to hear the merits of the Petitioners sup-
pression motion stating that he was foreclosed from raising
said issue based upon the Fifth Circuit’s decision in the
case United States v. Sepe, 486 F.2d 1044 (5th Cir. en bane
1973) wherein it was held that a defendant, after entering
a plea of nolo contendere or guilty, may only appeal the
jurisdictional defects in the proceedings below. It was
further held that the practice whereby a district court
accepted a plea sanctioning an agreement between the
prosecution and defense under which the defendant would
be allowed to raise nonjurisdictional defects on appeal was
expressly disapproved.
4
REASONS FOR GRANTING THE WRIT
The decision below would be reviewed by the Court
for the following reason:
I.
THIS HONORABLE COURT SHOULD SANC-
TION THE PROCEDURE WHEREBY A FED-
ERAL DEFENDANT, AFTER PLEADING
GUILTY OR NOLO CONTENDERE IN THE
FEDERAL TRIAL COURT, MAY STILL PRE-
SERVE FOR APPEAL ADVERSE PRE-TRIAL
RULINGS ON NONJURISDICTIONAL
ISSUES.
The traditional view states that a plea of guilty or
nolo contendere waives all non-jurisdictional issues so that
an appeal therefrom is unavailable. Hughes v. United
States, 371 F.2d 694 (8th Cir., 1967); Jenkins v. Beto,
442 F.2d 1001 (5th Cir., 1971). However, the reasoning
underlying this view is subject to much criticism. The
prevailing rationale is that a conviction following an ad-
mission of guilty is based solely and entirely upon the
admission and not upon any evidence which may have
been acquired by the prosecuting authorities. This state-
ment created a legal fiction. A criminal defendant is not
likely to confine his judgment as to whether to plead guilty
merely upon the allegations in the indictment but rather
said defendant ‘vill look at the strength of the govern-
ment’s case, including the tangible evidence, statements
of witnesses, statements of the accused, and many other
relevant factors. To declare that a criminal defendant
pleads guilty because he is guilty, is to ignore the obvious.
5
The Supreme Court has recognized that, “The decision to
plead guilty before the evidence is in, frequently involves
the making of difficult judgments . . .” Brady v. United
States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747
(1970).
Another argument advanced in support of the tradi-
tional view is that if a defendant is permitted to challenge
evidence which has never been introduced against him,
the appellate court must decide questions in the abstract
without the benefit of a record showing the significance
of that evidence. This argument ignores the fact that a
record of the transcript of proceedings at a hearing on
defendant’s motion to suppress more than adequately
forms a record upon which an appellate court can deter-
mine whether the evidence was seized legally. Moreover,
an appellate court can readily discern the significance of
evidence if said evidence serves as a basis of the prosecu-
tion.
The concept of waiver is the foundation of the tradi-
tional view regarding guilty pleas. In the landmark case
of Johnson v. Zerbst, 304 U.S. 458 (1938) the Supreme
Court announced that a waiver of a constitutional right
must be an intentional relinquishment or abandonment of
a known right or privilege. To be valid, a waiver must be
knowingly, intentionally, and voluntarily made. Although
the right to direct appellate review in a criminal case is
not a specific guarantee of the Constitution (Griffin v.
Illinois, 351 U.S. 12, 20 (1956)), it has, nonetheless, es-
tablished itself firmly in the American system of juris-
prudence. Courts scrutinize very carefully any waiver
that occurs during a criminal proceeding. Boykin v. Ala-
bama, 395 U.S. 238. For a defendant to plead guilty and
6
thereafter forfeit his right to appeal on non-jurisdictional
issues works havoc with the accepted principles relating
to waiver when it is assumed that the right to appeal is of
the same status as cther important procedural and sub-
stantive rights. One iegal writer has stated that since a
plea of guilty waives all objections a defendant may have
as to evidence in the hands of the prosecution, it should
be incumbent upon the trial judge to affirmatively warn
the defendant as to this waiver. 20 A.L.R. 3d 724, “Plea of
guilty as waiver of claim of unlawful search and seizure.”
The question of what “non-jurisdictional” entails
escapes exact definition. One writer has stated:
“The jurisdiction of a court equals its power over
the subject matter. If there were a constitutional
violation, any indictment or information founded
on that violation should be a nullity since the
State brought the accused into custody through
illegal means. If so, then the alleged offense
should not be brought to trial if discovered
through a fourth amendment violation. If it can-
not be proven that a crime was committed, the
indictment cannot charge an offense. This con-
tention amounts to no jurisdiction . . . This
reasoning should apply to any conviction result-
ing from alleged constitutional overreaching.
Whether it be an illegal search, coerced confes-
sion, or inadequate counsel, the issue is jurisdic-
tional since it goes io the very roots of why the
accused is in custody. Jurisdictional defects were
never intended to be waived. 9 Houston L. 305,
314 (1971).
Vet le TR
7
This view is reasonable in light of judicial disfavor of
waiver of essential rights.
The entire question of allowing appeals on non-
jurisdictional issues following a plea of guilty or nolo
contendere must ultimately be decided upon a consideration
of judicial policy. In the forefront of advocating change
from the traditional view is the American Bar Associa-
tion’s standards relating to criminal appeals. Section 1.3
of these standards states:
1.3 — Limitations on defendant’s appeal: Final
judgments and interlocutory appeals. (a) A de-
fendant should have the right to seek review of
any final judgment adverse to him, including:
(i) A conviction followed by a sentence or
probation, or
(ii) A conviction followed by a sentence
suspended as to imposition or execution, or
(ili) A conviction based upon plea of
guilty or nolo-contendere.
The commentary accompanying this standard urges that
“It is wasteful to force a defendant to stand trial in order
not to have a forfeiture of appellate review.”
Both the State of New York and California' have
adopted statutory provisions permitting appeal on non-
jurisdiction.) issues notwithstanding a plea of guilty
or nolo contendere. Section 813-c of the New York Code
of Criminal Procedure states:
‘People v. Lawson, | Cal. App. 3d 730, 81 Cal. Rptr. 883 (1970).
a
8
If the motion (to suppress) is denied, the order
denying such may be reviewed on appeal from a
judgment of conviction notwithstanding the fact
that such judgment of conviction is predicated
upon a plea of guilty.’
Professor Wright in his treatise on the Federal Courts
has commented approvingly on the New York procedure
by stating:
“A similar procedure of the Federal Courts,
either adopted by statute or, if it is within the
rule making power, by amendment to the rules,
would be highly desirable.” Wright, Federal Prac-
tice and Procedure, Criminal section 175. See
also: United States v. Dorsey, 449 F.2d 1104,
1108 note No, 18 (D.C. Cir. 1971)
Judge Irving Kaufman, speaking for the Second Cir-
=. Acute 4
Sdils > tty dA
9
recognizes that unless he succeeds in suppressing
the evidence seized, the State will have little diffi-
culty in proving the charges filed against him.
A defendant may well have no desire to go to trial
once his pre-trial suppression motion has been
denied, and thereafter may lose heart for any
defense to the charges. If, however, the defendant
is confronted with State law which decrees that
a plea of guilty bars him from appealing the
denial of his motion, then he will be presented
with a fait accompli and be forced to proceed to
trial just so that he can preserve his right to
appeal. Section 813-c is an enlightened statute
and was designed to alleviate this undesirable
and archaic end which can only result in clutter-
ing trial calendars. The guilty plea in such
circumstances is merely a procedural step which
permits review of the defendant’s constitutional
claims without the necessity of a trial that would
cuit, made the following comment in United States ex. be a waste of time, money and manpower.
rel. Rogers v. Warden of Attica State Prison, 381 F.2d )
209 (2nd Cir. 1967) : |
In addition, the protections of the Fourth Amendment
are indirectly impeded by disallowing appeals from guilty
pleas. In United States v. Pate, 222 F.Supp. 998 (N.D.
Ill., 1963) in dictum it was stated:
New York has thus provided a specific statutory |
exception to the general rule that a plea of guilty |
bars the defendant from raising on appeal alleged |
non-jurisdictional defects. And, we are quite easily |
able to discern legitimate and powerfully compell-
ing reasons for establishing such an exception.
The decision which denies to one who pleads guilty
the opportunity thereafter to challenge a constitu-
tional violation seems to me to weaken that
In the greater number of cases, the present one security from harassment for they encourage
being illustrative, a defendant in a criminal case police officers to invade privacy and conduct in-
, terrogation in the hope of obtaining incriminat-
See: 9 Houston R. Rev. 305, 317 (1971) for statistics on impact ing evidence, confessions and ultimately guilty
of this provision on New York’s Appellate system. pleas.
Pease oem: «
ee 6
10
The practicalities of permitting an appeal after a
plea of guilty or nolo contendere cannot be ignored. There
is no escaping the fact that at times a criminal case hinges
entirely upon certain tangible evidence. If this evidence
were seized illegally, the government cannot put on a case.
After the trial judge makes a ruling on the defendant’s
pre-trial motion to suppress, if it be adverse to the defend-
ant, there is little left for the government to do but per-
functorily present its case.
With the crowded condition of many trial courts
dockets many avenues have been explored in an attempt to
relieve the congestion. Plea bargaining has become an
everyday necessity. It appears that a logical extension
from plea bargaining, would be to permit appeals on non-
jurisdictional issues after pleas of guilty. By this means,
a defendant can have those essential issues litigated pre-
trial with subsequent appellate review without having a
jury impaneled to hear the case in its entirely. The ad-
vantages to be derived from this procedure easily lay to
rest any objections to its use in the Federal courts.
Another aspect of the problem which requires con-
sideration is a possibility of a motion pursuant to 28 U.S.C.
Section 2255 based upon an alleged invoiuntary guilty plea
in that the plea was a product of evidence seized illegally.
At first glance it would appear that McMann v. Richard-
son, 397 U.S. 759 (1970) would be dispositive of this issue.
In McMann it was argued that since the confession which
had induced the guilty plea was involuntarily made, the
guilty plea was also involuntarily made. The Supreme
Court rejected this position relying heavily on the fact
that the defendant was competently advised by counsel.
Further the court stated that the choice of the defendant
ai aie ia
11
might have been based upon a misassessment of the
government’s case and/or an error in legal judgment. The
McMann case can be read as standing for the broad propo-
sition that when a defendant’s plea of guilty is based upon
reasonably competent advice it is an intelligent and vol-
untary plea, not open to atack. However, the McMann
case involved an allegedly coerced confession. If the pre-
trial motion to suppress this confession were denied by
the trial judge, all is not lost for under the procedure as
outlined in Jackson v. Denno, 378 U.S. 368 (1964) the
jury can still make a determination as to voluntariness
and subsequently not use the confession during its consid-
eration. There then is some advantage for proceeding to
trial since the determination of the trial judge as to the
confession is not final. That is not the situation when
dealing with an illegal search and seizure claim. The trial
judge’s determination is final. The jury will ultimately
be presented with the seized evidence in support of the
government’s case. Once the trial judge makes the deter-
mination as to the legality of the seizure, nothing that
occurs at trial is likely to disturb this decision. It readily
follows that a guilty plea can very well be the product of
illegally seized evidence.
Parenthetically, it would appear that under the hold-
ing of Santobello v. New York, 404 U.S. 257 (1971) that
any agreement between the defense and prosecution as to
the preservation of appellate review would require said
review upon the entry of a plea. United States v. Cook,
463 F.2d 123 (5th Cir. 1972) ; United States v. Rosenberg,
458 F.2d 1183 (5th Cir. 1972).
12
CONCLUSION
Logic dictates that it is foolish to require a defendant
to complete a criminal trial, with a jury, merely to be
afforded an appeal on an issue that was litigated and
determined at pre-trial. Judicial time, money and man-
power, currently at a premium, can be best conserved by
adopting the procedure herein.
For the foregoing reasons, the Petition for Certiorari
should be granted and the judgment of the Court of
Appeals reversed.
Respectfully submitted,
s/ Melvyn Kessler
MELVYN KESSLER ~
Attorney for Petitioner
1531 N.W. 15 Street Road
Miami, Florida 33125
es
13
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy
of the above and foregoing Petition for Writ of Certiorari
was mailed to the United States Attorney’s Office, 300
Ainsley Building, 14 N.E. 1st Avenue, Miami, Florida
33132 and to the Solicitor General of the United States,
United States Department of Justice, Washington, D.C.
20530.
/s/ Melvyn Kessler
MELVYN KESSLER
APPENDIX A
United States Court of Appeals,
Fifth Circuit.
No. 73-2236.
UNITED STATES of America,
Plaintiff-Appellee,
v.
Aston WINTER, Howard Charles Towne, Stanton Davis
and Williarn Michael Parks,
Defendants-Appellants.
March 13, 1975.
Defendants, two American citizens, two Jamaican
nationals and a Bahamian national, were convicted, on
their pleas of nolo contendere, before the United States
District Court for the Southern District of Florida, Charles
B. Fulton, Chief Judge, of conspiracy to import marijuana,
a schedule I controlled substance, into the United States.
The defendants appealed. The Court of Appeals, Brown,
Chief Judge, held that the appeals were limited to attacks ®
on jurisdictional defects in view of the nolo contendere
pleas; that the Jamaican nationals were charged with
crime over which the district court had jurisdiction even
though they were arrested beyond the territory of the
United States and had not been within the United States
during the pendency of the conspiracy where al] the overt
acts alleged in the indictment were related to conduct
within the United States of an American citizen; neither
App. 2
the nonresident alien defendants nor the American de-
fendants were entitled to challenge the District Court’s
jurisdiction over their persons on the ground that they
were unlawfully brought within the court’s territorial
jurisdiction following an illegal arrest by the Coast Guard:
and that none of the defendants were misled into believing
they would be permitted to appeal nonjurisdictional aspects
of the denial of their motion to suppress if they entered
no contest pleas.
Affirmed.
1. Criminal Law —1026
Where defendants had entered voluntary pleas of nolo
contendere, on appeal they were limited to attack on jur-
isdictional defects.
2. Criminal Law —275
Record established that there was ample underlying
factual basis to support trial court’s acceptance of pleas of
nolo contendere to indictment charging defendants with
conspiring to import 1,130 pounds of marijuana into the
United States. Fed.Rules Crim.Proc. rule 11, 18 U.S.C.A.;
Comprehensive Drug Abuse Prevention and Control Act of
1970, $$ 1002(a), 1013, 21 U.S.C.A. §§ 952(a), 968,
3. Criminal Law —97
The district court has jurisdiction over a conspiracy
and all those proved to be conspirators if the conspiracy
is designed to have criminal effects within the United
States and if there is sufficient proof that ai least one of
oe
App. 3
the conspirators committed an overt act in furtherance of
the conspiracy within the territorial juurisdiction of the
district court.
4. Conspiracy —24, 27
Essence of crime of conspiracy is agreement and not
commission of crime which is object of the conspiracy and
it is immaterial to commission of crime of conspiracy
whether object of conspiracy is achieved; there must be an
overt act done in pursuance of the conspiracy, but such
act need not constitute the very crime which is object of the
conspiracy.
5. Conspiracy —27
An overt act, seemingly innocent in itself yet in fur-
therance of the conspiracy, is sufficeint to support convic-
tion of conspiracy. 18 U.S.C.A. § 371.
6. Criminai Law —98
Where one conspirator committed overt act within
the territorial jurisdiction of the United States in further-
ance of conspiracy to import marijuana into the United
States, the district court had jurisdiction over two Jamai-
can nationals who participated in the conspiracy by acting
as crew members even though the two Jamaicans were
arrested on the high seas and they had not entered the
United States prior to the arrest. Fed.Rules Crim.Proc.
rule 11, 18 U.S.C.A.; Comprehensive Drug Abuse Preven-
tion and Control Act of 1970, § 1013, 21 U.S.C.A. § 963.
App. 4
7. Criminal Law —97
Where another conspirator had committed overt acts
within the territorial jurisdiction of United States in
furtherance of conspiracy to import marijuana, district
court had jurisdiction of offense charged against an Amer-
ican cititen who participated in the conspiracy although
he was svt alleged to have committed an overt act in fur-
therance of the conspiracy within the United States. Fed
Rules Crim.Proe. rule 11, 18 U.S.C.A.: Comprehensive
Abuse Prevention and Control Act of 1970. §
U.S.C.A. § 963. » § 1013, 21
8. Criminal Law —99
A defendant in a federal criminal trial, whether citi-
zen or alien, whether arrested within or beyond the terri-
tory of the United States may not successfully challenge
district court’s jurisdiction over his person on the ground
that his presence before the court was unlawfully secured.
9. Criminal Law —99
Mere errors or the exertion of action by government
agents beyond the strict territorial limits does not make
the government conduct so outrageous as to deprive the
court of jurisdiction of the defendant’s person,
10. Criminal Law —98
District court had jurisdiction over person of Ameri-
can citizen arrested by coast guard officers at a point on
the high seas approximately 35 miles from the coast of
Florida and 11.9 miles from the nearest island of the
ed
ee
App. 5
Bahamas. Comprehensive Drug Abuse Prevention and
Control Act of 1970, §§$1002(a), 1013, 21 U.S.C.A.
$$ 9521a), 963.
11. Criminal Law —98
District court had jurisdiction over persons of Ja-
maican nationals who were arrested by coast guard officers
on the high seas approximately 35 miles from the coast
of Florida and 11.9 miles from the nearest island of the
Bahamas and brought into the jurisdiction of the United
States where no treaty was violated and the vessel which
was bozded was an American vessel.
12. Aliens —3
In certain contexts, resident aliens are entitled to the
same rights as American citizens.
13. Criminal Law —1026
While a defendant who enters a guilty or nolo con-
tendere plea may preserve a challenge to the court’s jur-
isdiction on appeal, a defendant who has pleaded under
such a court-approved reservation may not renew a motion
to suppress on appeal simply by invoking the magic words
“jurisdictional-defect” and phrasing his argument as a
challenge to the arresting officer’s jurisdiction to search
or arrest.
14. Criminal Law —99
Where defendant, who was arrested when he was dis-
covered hiding aboard seized vessel after it had been seized
App. 6
35 miles off the coast of Florida and 11.9 miles from the
nearest island in the Bahamas and brought into Miami,
had already been identified by the owner of the vessel as
a conspirator and he could be connected with the marijuana
smuggling enterprise regardless of the contraband found
aboard another vessel seized at the same time, the district
court was not deprived of jurisdiction over the defendant
on theory that his arrest was the “fruit of the poisonous
tree” of an alleged illegal boarding in Bahamian waters.
15. Criminal Law —275
Record established that none of defendants who en-
tered pleas of nolo contendere to indictment charging con-
spiracy to import marijuana into the United States were
misled into believing that they would be permitted to
appeal nonjurisdictional aspects of the district court’s
denial of motion to suppress. Comprehensive Drug Abuse
Prevention and Control Act of 1970, §§ 1002(a), 1013, 21
U.S.C.A. §§ 952 (a), 963.
Appeals from the United States District Court for the
Southern District of Florida.
Before BROWN, Chief Judge, and GODBOLD and
SIMPSON, Circuit Judges.
JOHN R. BROWN, Chief Judge:
On March 8, 1973, at a point on the high seas approxi-
mately 35 miles from the coast of Florida and 11.9 miles
from the nearest island of the Bahamas,' United States
Coast Guard officers boarded the American owned M/V
Big L which at the time was being towed by the American
'The distances were a matter of stipulation in the District Court.
nase
Pr ed Ce _
App. 7
owned M/V Adventurer III and promptly located over a
half a ton of marijuana which they knew to be aboard. The
four members of the MV Big L’s crew, appellants Winter
and Davis (both Jamaican nationals), appellant Towne
(an American citizen) and co-defendant Saunders’ (a
Bahamian national) were immediately arrested and
brought into the Southern District of Florida. Appellant
Parks (an American citizen) was arrested the following
morning when he was found concealed aboard M/V Ad-
venturer III in Miami.
Appellants entered pleas of nolo contendere to an in-
dictment pursuant to 21 U.S.C.A. §§ 952(a)*> and 963*
charging them with conspiring to import 1,130 pounds of
marijuana, a schedule I controlled substance, into the
United States. *
[1] Appellants are before us challenging alleged
defects in the trial court’s jurisdiction over their persons
*Saunders entered a plea of nolo contendere, received a sentence of
18 months imprisonment and chose not to appeal.
*§ 952.
(a) It shall be unlawful to import into the customs territory of
the United States from any place outside thereof (but within the
United States), or to import into the United States from any place
outside thereof, any controlled substance in schedule I or II of sub-
chapter I of this chapter, or any narcotic drug in schedule III, IV.
or V of subchapter I of this chapter.
*§ 963. Attempt and conspiracy
Any person who attempts or conspires to commit any offense
defined in this subchapter is punishable by imprisonment or fine or
both which may not exceed the maximum punishment prescribed for
the offense, the commission of which was the object of the attempt or
conspiracy.
‘A. J. Moreno, who allegedly helped put the load together in
Jamaica, was also indicted but has never been arrested.
App. 8
and over the crime.’ Through separate briefs and oral
argument, appellants raise a variety of theories each in-
corporated by reference by the rest.’
Essentially, however, the following challenges of sig-
nificance are presented.
(1) Were the Jamaican nationals, Winter and Davis,
charged with a crime over which the District Court had
jurisdiction assuming that they were arrested beyond the
territory of the United States, were not alleged to have
been within the United States during the pendency of the
conspiracy and all the overt acts alleged in the indictment
related solely to the conduct within the United States of
appellant Parks, an American citizen?
(2) May either the Jamaican appellants or the
Americans challenge the District Court’s jurisdiction over
the persons on the ground that they were unlawfully
brought within the Court’s territorial jurisdiction follow-
ing an illegal arrest by the Coast Guard?
(3) Were any of the appellants, most particularly
Parks, misled into believing that they would be permitted
to appeal non-jurisdictional aspects of the District Court’s
denial of the motion to suppress in contradiction to our
decisions in United States v. Sepe, 5 Cir., 1973, 486 F.2d
‘These appeals are necessarily limited to attacks on jurisdictional
defects in light of our recent decisions in United States v. Sepe. 5
Cir.. 1973, 486 F.2d 1044 (en banc) affirming 47! F.2d 781; and
United States v. Mizell, 5 Cir.. 1973, 488 F.2d 97. See note 8. infra.
"While each appellant incorporates all the helpful theories of his
co-appellants as a matter of course, differences in factual circum-
stances such as nationality or situs of arrest occasionally call for
separate treatment which we indicate.
App. 9
1044 (en bane) affirming 474 F.2d 784; United States v.
Mizell, 5 Cir., 1973, 488 F.2d 97?*
After indictment, appellants entered pleas of not guilty
and moved to dismiss the indictment for a lack of jurisdic-
tion over their persons and the crime and to suppress the
contraband seized aboard M/V Big L. The facts we set out
were adduced by stipulation and testimony at the hearings
before the District Court on the motions to dismiss for
want of jurisdiction and to suppress and upon the entry
of the pleas.
Smuggling By The High Seas
On January 3, 1973 an individual named “Dave” and
Michael Force (aka Michael Parks) approached Roy War-
ren in Miami and offered to pay him $15,000.00, $2,500.00
in advance, for the use of his boat M/V Adventurer III to
import a load of marijuana into the United States from
Jamaica. Shortly thereafter, Warren contacted the Bureau
of Narcotics and Dangerous Drugs (BNDD) and informed
them of the offer. The BNDD advised Warren to co-
‘In Sepe we held that after entering a plea of nolo contendere or a
plea of guilty, a defendant may only appeal jurisdictional defects in
the proceeding below, such as the failure of the indictment to state a
crime, the unconstitutionality of the statute underlying the indictment,
the expiration of the statute of limitations or necessarily the District
Court's lack of jurisdiction over the subject matter or the persons of
the defendants. Furthermore, we disapproved the practice whereby a
District Court accepted a plea sanctioning an agreement between
prosecution and defense under which the defendant would be allowed
to raise non-jurisdictional defects on appeal. In Mizell we vacated and
remanded with orders to allow the defendant to determine whether to
replead, in view of the presence of the type of agreement disapproved
in Sepe. See also United States v. Mendoza, 5 Cir., 1974, 491 F.2d
534; Haynes v. United States, 5 Cir., 1967, 372 F.2d 651 reversed on
other grounds, 1968. 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923;
United States v. Cash, 5 Cir., 1973, 486 F.2d 295.
App. 10
operate, assisted him in making necessary alterations’ to
his boat and provided him with certain navigational equip-
ment required by the enterprise. Not content with assisting
in the role of one who victuals and supplies, the Govern-
ment engaged in manning, cf. 46 U.S.C.A. § 186, by supply-
ing two BNDD undercover agents to accompany Warren
on the voyage as members of the crew.
The Scene Shifts To Land
Once in Jamaica, Warren met Parks and accompanied
him into the hills where he was introduced to a number of
Jamaicans, including an individual known as “Louis”
(aka Stanton Davis), who was allegedly involved in “put-
ting the load together.” During the course of the enter-
prise, Warren kept in close contact with supervisory
officials of the BNDD. Warren relayed the message that
the boat was loaded and ready to go.'®
Back To The High Seas
On Monday, March 5, BNDD agent Cooke received
another call from Warren from Grand Cayman in the
Bahamas, informing him that they were proceeding with
one and one-half to two tons of marijuana on board as well
as with “Louis” and another Jamaican who were returning
with them to the United States.'' Warren further in-
_ °*The alterations were financed by the advance payment. The
BNDD provided Warren with $500.00 to cover the expenses of the
trip to Jamaica.
_ _'®At the hearing on appellant’s motion to suppress. BNDD agent
Cooke so testified.
''Apparently the Jamaicans anticipated entering the United States
covertly to visit relatives. Warren indicated that Parks might possibly
owe the Jamaicans some money as a result of the transactions.
App. 11
formed Cooke that after refueling on Wednesday or Thurs-
day, M/V Adventurer III would rendezvous at dusk with
a 38 foot fishing vessel from Ft. Lauderdale called M/V
Big L in the vicinity of Riding Rocks’? and that the
marijuana would be transfered to that vessel."’
Seagoing Surveillance And Boarding
From time to time on the 7th and the 8th, the BNDD
maintained aerial surveillance of both vessels while they
were tracked by radar from C/G cutter Dauntless. Be-
tween 7:30 and 9:30 on the 8th, Warren informed the
BNDD agents aboard C/G Dauntless by radio that the
contraband and the two Jamaicans had been transferred
to M/V Big L. Approximately 30 minutes later, Warren
radioed that M/V Big L had developed engine trouble and
had been taken under tow by M/V Adventurer III.
Shortly thereafter the C/G Dauntless accosted the
vessels. By stipulation, the position of the vessels at the
time of the encounter was 35 miles from the closest point
on the Florida coast and 11.9 miles from North Cat Cay,
the closest point in the Bahamas."*
Upon boarding M/V Big L, the Coast Guard officers
and BNDD agents ordered the four individuals aboard to
move toward the afterend of the boat. In the process of
'2Riding Rocks is at approximately 25° 15’ N; 79° 9’ W, approxi-
mately 24 miles S.E. of the point of boarding (note 1, supra).
'3Reminiscent of prohibition days, see United States v. Ingham, 5
Cir.. 1974, 502 F.2d 1287, 1288, M/V Adventurer III was a hovering
vessel, see 19 U.S.C.A. § 1101(n), note 23, infra.
4It was fixed at 25° 29° 3” N., 79° 29 2” W., based on a
sighting off control lights in Miami and Bimini harbors made from
C/G Dauntless at the time and recorded in the vessel’s log.
App. 12
checking the hold for further crew members, a BNDD
agent, to no one’s great surprise, located the contraband.
The Conspiracy Terminates
The four individuals found aboard M/V Big L were
immediately placed under arrest,'’ Parks was arrested the
following morning aboard M/V Adventurer III, and all
were thereafter indicted in the Southern District of Flor-
ida. The enterprise was ended.
Plea Bargaining
Defendants’ motions to dismiss and suppress were
denied. The government disclosed that it intended to use
three confidential informers and agreed to make them
available to defense counsel for questioning. Apparently
after having interviewed at least one of these informers,
defense counsel entered into plea negotiations with the
government.
[2] Ata hearing before the Court on April 23, 1973
all defendants agreed to enter pleas of nolo contendere. In
exchange the government promised to make specific sen-
tencing recommendations to the Court. Before accepting
the pleas, the District Court carefully instructed the de-
fendants that while a plea of nolo contendere would con-
stitute a waiver of all non-jurisdictional defects, challenges
to the Court’s jurisdiction could still be pursued on appeal."
'SSee text accompanying note 2, supra.
'6The record shows that the District Court scrupulously followed
the requirements of ¥.R.Crim.P. 11 in accepting the pleas. The
extensive hearings on the motions to dismiss and suppress, coupled
with the stipulations and hearings upon entering the pleas, provided
the District Court with a more than ample underlying factual basis
to support the pleas.
App. 13
After accepting the pleas, the Court sentenced Parks to
three years, Davis to 18 months, Towne to 9 months,
Winter to 6 months, and Saunders to 18 months."
Jurisdiction Over The Crime
The Jamaican appellants, Winter and Davis, were
arrested on the high seas 35 miles from the coast of Florida
aboard a small vessel carrying over a half ton of mari-
juana. We will assume, as contended by these appellants,
that the boarding and arrests occurred beyond the terri-
torial boundaries of the United States.'’ There has been
no contention that either the contraband or the alien de-
fendants were present within the territorial limits of the
United States prior to the involuntary termination of the
conspiracy. All three overt acts alleged in the indictment
related solely to the conduct of American appellant Parks
within the state of Florida which took place prior to the
events on the high seas."’
Under these circumstances did the indictment and
stipulated facts state a crime against the United States
over which the District Court had jurisdiction in regard
to Jamaican nationals Winter and Davis? A survey of the
precedent compels us to answer affirmatively.
"The government had recommended two years for Parks and
Davis. 18 months for Saunders, 18 months for Winter, and 9 months
for Towne. Again with scrupulous regard for the rights of each accused,
the District Court. prior to accepting the ples». advised the defendants
that it was under no obligation to accept the government’s recom-
mendations but that it would allow any defendant who received a
sentence in excess of that recommended to withdraw his plea if he
so desired.
This is not to assume that they occurred beyond the Coast
Guard's jurisdiction to arrest.
See note 22. infra.
App. 14
In Strassheim v. Daily, 1910, 221 U.S. 280, 31 S.Ct.
558, 55 L.Ed. 735, the Court was faced with the question
of whether Daily of Chicago, Illinois was properly ex-
traditable to Michigan as a fugitive from justice, having
been indicted in Michigan for bribery and obtaining money
from the state on false pretenses. Acting in concert with
Michigan state officials, Daily was alleged to have sold
old machinery to the state, while willfully misrepresenting
it was new. Assuming at the outset that Daily had not
personally committed any pertinent act within the territory
of Michigan, Justice Holmes, writing for a unanimous
court, observed that:
If a jury should believe the evidence, and find that
Daily did the acts that led Armstrong to betray his
trust, deceived the board of control, and induced by
fraud the payment by the state, the usage of the
civilized world would warrant Michigan in punish-
ing him, although he never had set foot in the state
until after the fraud was complete. Acts done out-
side a jurisdiction, but intended to produce and pro-
ducing detrimental effects within it, justify a state
in punishing the cause of the harm as if he had been
present at the effect, if the state should succeed in
getting him within its power.
221 U.S. at 284-85, 31 S.Ct. at 560, 55 L.Ed. at 738.
In Ford v. United States, 1927, 273 U.S. 593, 47
S.Ct. 531, 71 L.Ed. 793, the principle was applied to facts
more closely resembling those we confront. The defendants
were indicted and convicted for conspiring to import liquor
into the United States in violation of the prohibition laws.
Appellants had been arrested with the contraband aboard
App. 15
a British vessel on the high seas. The jurisdiction of the
District Court was challenged on the ground that some
of the co-conspirators were never present within the
territory of the United States during the pendency of the
conspiracy. The Court dismissed this argument noting
that:
The conspiracy was continuously in operation between
the defendants in the United States and those on the
high seas adjacent thereto, and of the four overt acts
committed in pursuance thereof, three were completed
and took effect within the United States, and the
fourth failed of its effect only by reason of the in-
tervention of federal officers. In other words, the
conspiring was directed to violation of the United
States law within the United States, by men within
and without it, and everything done was at the pro-
curation and by the agency of each for the other in
pursuance of the conspiracy and the intended illegal
importation. Ia such a case all are guilty of the offense
of conspiring to violate the United States law whether
they are in or out of the Country.
273 U.S. at 620, 47 S.Ct. at 540, 71 L.Ed. at 805.
This Circuit has applied the same principle recently on
several occasions. In Marin v. United States, 5 Cir., 1965,
352 F.2d 174 the Court relied on Ford in affirming a
conviction under 21 U.S.C.A. § 174 for conspiring to
smuggle heroin into the United States despite the fact that
the defendant had not set foot within the United States
during the pendency of the conspiracy, but a co-conspirator
had committed overt acts within the United States.
App. 16
In Rivard v. United States, 5 Cir., 1967, 375 F.2d
882, cert. denied sub nom. Groleau v. United States, 389
U.S. 884, 88 S.Ct. 151, 19 L.Ed.2d 181, four Canadians
had been convicted of conspiring to smuggle heroin into
the United States although only one had entered the
country during the pendency of the conspiracy. Recogniz-
ing that the United States subscribes to the objective view
of the territorial principle of jurisdiction—that is “juris-
diction extends over all acts which take effect within the
sovereign even though the author is elsewhere,” 375 F.2d
at 886°" — we sustained the lower court’s jurisdiction over
the conspiracy count pointing out that “[t]here is thus no
doubt that the object of the conspiracy was to violate the
narcotics laws of the United States; that the conspiracy
was carried on partly in and partly out of this country:
and that overt acts were committed within the United
States by co-conspiraters.” 375 F.2d at 886.*' Further-
more, since heroin had actually been smuggled into the
United States by one of the co-defendants, the Court af-
firmed the conviction of another co-defendant as a prin-
cipal on a substantive count of smuggling although the
latter had not entered the United States prior to the
completion of the crime.
And even more recently we upheld jurisdiction over
acts of possession, forgery and passing of United States
Social Security checks which took place wholly within
2°See Restatement of Foreign Relations Law of the United States
2d (1965) § 10 ‘Basis of Jurisdiction), § 17 (Jurisdiction to Prescribe
With Respect to Conduct, Thing, Status, or Other Interests Within
The Territory), $18 (Jurisdiction to Prescribe With Respect to Effect
Within Territory). §38 (Territorial Interpretation of United States
Law).
2!See also Yenkichi Ito v. United States, 9 Cir., 1933, 64 F.2d 73;
United States v. Canta-La Luz. 9 Cir.. 1971, 443 F.2d 413.
App. 17
Mexico since the actions were “intended to produce and
producing detrimental effects within” the United States.
United States v. Fernandez, 5 Cir., 1974, 496 F.2d 1294.
(3| The case law clearly establishes that the District
Court has jurisdiction over a conspiracy and all] th se
proved to be conspirators if the conspiracy is designed to
have criminal effects within the United States and if
there is sufficient proof that at least one of the con-
spirators committed an overt act in furtherance of the
conspiracy within the territorial jurisdiction of the District
Court.
The indictment in the instant case alleged that co-
conspirator Parks committed three seemingly innocuous
overt actes in furtherance of the conspiracy within the
territorial jurisdiction of the United States.”
2=OVERT ACTS
1. On or about January 21, 1973 William Michael Parks boarded
the vessel ADVENTURER III at Watson’s Island, Miami, Florida.
2. On or about January 28, 1973 William Michael Parks arrived
at the pier behind the vessel) ADVENTURER II! on Watson’s Island,
Miami, Florida.
3. On or about March 1, 1973 William Michael Parks entered
the Royal Castle at Biscayne Boulevard and 10th Street. Miami,
Florida.
All in violation of Title 21, United States Code. Section 963.
Since the case never went to trial, the government did not have
occasion to prove any of the three alleged overt acts of Parks. We
do not understand appellants to contest the government's ability to
prove these acts. But in any event there was an adequate showing
of jurisdictional facts to satisfy F.R.Crim.P. 11.
During the hearing on the motion to dismiss for lack of jurisdic-
tion, BNDD agent Cooke testified that Warren had contacted the
BNDD and informed it that Parks had approached him in Miami and
offered to rent his boat to carry marijuana from Jamaica to the United
States. The parties further entered a stipulation to the same effect.
This in itself is of course evidence of an overt act in furtherance of
the conspiracy within the United States.
App. 18
Admittedly in Ford, Marion, and Rivard the unlawful
importation of contraband into the United States actually
occurred and was thus among the overte acts established.
Here the conspiracy was cut short by the long arm of the
law before the actual importation could take place. This
is a distinction without significance, however.
[4] As we recently observed in United States v.
Carlton, 5 Cir., 1973, 475 F.2d 104, 106:
The essence of the crime of conspiracy is the agree-
ment and not the commission of the crime which is
the object of the conspiracy. United States v. Rabino-
wich, 238 U.S. 78, 35 S.Ct. 682, 59 L.Ed. 1211. It is
immaterial to the commission of the crime of con-
spiracy whether the object of the conspiracy is
achieved. Rabinowich, supra'; Castro v. United States,
supra [296 F.2d 540 (5th Cir.)]; and Williams v.
United States, 179 F.2d 644 (5th Cir.). There must
of course be an overt act done in pursuance of the
conspiracy, but such act need not constitute the very
crime which is the object of the conspiracy, Rabino-
wich, supra.”
[5] An overt act, seemingly innocent in itself yet in
furtherance of the conspiracy, is sufficient under the law
of conspiracy. We see no reason why it should be any
23See United States v. Morello, 2d Cir., 1957, 250 F.2d 631, 635
where the Court explicitly recognized under 21 U.S.C.A. §§ 173 and
171 of the old Narcotic Drugs Import and Export Act and 18 U.S.C.A.
$371 (the general federal conspiracy provision) that “the substantive
crime of unlawful importation was not essential to prove the crime of
conspiracy as charged.”
App. 19
different for jurisdictional purpose,” to the extent that
proof of an overt act is required.”
[6, 7] Since appellants were clearly charged with
conspiring to engage in conduct designed to have criminal
effects within the United States and since an overt act
in furtherance of the design was properly alleged in the
indictment,” a crime was stated over which the United
244 different question might be presented had these foreign na-
tionals been charged with the substantive offense of unlawful im-
portation or attempt to import. In that event, the Court, in the
absence of a showing of agency, aider or abettor, etc., would likely
have to determine whether Congress intended the statute in issue to
have an extraterritorial effect. See United States v. Bowman, 1922,
260 U.S. 94, 43 S.Ct. 39, 67 L.Ed. 149; Yenkichi Ito v. United States,
1933, 9 Cir., 64 F.2d 73; United States v. Vicars, 5 Cir., 1972, 467
F.2d 452, 456. Cf. Rocha v. United States, 9 Cir., 1961, 288 F.2d 545.
25The indictment in the instant case was brought under 21 U.S.C.
§ 963 the “built-in” conspiracy provision of the Controlled Substance
Import and Export Act, which, unlike 18 U.S.C.A. § 371, does not
explicitly require proof of an overt act.
While the Ninth Circuit has held that proof of an overt act was
unnecessary to prove conspiracy to smuggle under 21 US.C.A.
§ 1761a) (§2 of the old Narcotic Drugs Import and Export Act),
Ewing v. United States, 9 Cir., 1967, 386 F.2d 10. we need not
resolve the question of whether proof of an overt act is required
under $963 either as a matter of criminal law or for jurisdictional
purposes since the indictment in the instant case contains such an
allegation.
26In addition to reliance on the overt acts of Parks alleged in the
indictment, the government asserts that it could readily prove overt
acts in furtherance of the conspiracy within United States territory
hy each defendant if necessary. This arguments proceeds from the
fact that all the defendants but Parks were seized along with the
contraband aboard M/V Big L, and American owned and registered
vessel, coupled with the often employed fiction that for purposes of
criminal jurisdiction. a vessel is deemed to be part of the territory of
the sovereign whose flag it flies. See Lauritzen v. Larsen, 1953, 345
U.S. 571, 585, 73 S.Ct. 921, 97 L.Ed. 1254; United States v. Flores,
1933. 289 U.S. 137, 155-59. 53 S.Ct. 580, 77 L.Ed. 1086; 18 U.S.C.A.
§ 7. Since we find the overt acts of Parks sufficient, we need not
reach this question.
App. 20
States and the District Court had jurisdiction.”
Jurisdiction Over The Person
Appellants challenged the District Court’s jurisdiction
over their persons, contending that they were illegally
arrested and unlawfully brought before the Court. Ap-
pellants contest the legality of the arrests on the following
theories.”
(1) By arresting appellants 35 miles from the Florida
coast, the Coast Guard exceeded its jurisdiction to arrest
as prescribed by statute”’ and treaty which at a maximum
27Our disposition precludes an attack on the Court’s jurisdiction
over the crime by American citizen Towne on the basis that he was
not alleged to have committed an overt act in furtherance of the
conspiracy within the United States. Of course Parks is in no position
to join in these challenges since he is an American citizen alleged
to have committed three overt acts in furtherance of the conspiracy
within the United States.
28In restating appellants’ theories, we express no opinion as to
their merit nor as to the validity of any of the underlying inferences
or assumptions (particularly those that attempt to define the juris-
dictional or territorial limitations of the United States or any other
sovereign state).
2914 U.S.C.A. § 2 declares that:
The Coast Guard shall enforce or assist in the enforcement of all
applicable Federal laws upon the high seas and waters subject to
the jurisdiction of the United States.
The Coast Guard’s enforcement authority is more specifically
prescribed by 14 U.S.C.A. §89(a) which provides:
(a) The Coast Guard may make inquiries. examinations. inspec-
tions, searches, seizures, and arrests upon the high seas and waters
over which the United States has jurisdiction, for the prevention,
detection, and suppression of violations of laws of the United
States. For such purposes, commissioned, warrant, and petty of-
ficers may at any time go on board of any vessel subject to the
jurisdiction, or to the operation of any law, of the United States,
address inquiries to those on board, examine the ship’s docu-
ments and papers, and examine, inspect, and search the vessel
App. 21
extends to the high seas within 12 miles of the United
States coast.*°
(2) By arresting appellants within 11.9 miles of the
coast of the Bahamas, and hence allegedly within the ex-
and use all necessary force to compel compliance. When from
such inquiries, examination, inspection, or search it appears that
a breach of the laws of the United States rendering a person
liable to arrest is being, or has been committed, by any person,
such person shall be arrested or, if escaping to shore, shall be
immediately pursued and arrested on shore, or other lawful and
appropriate action shall be taken; or, if it shall appear that a
breach of the laws of the United States has been committed so as
to render such vessel, or the merchandise, or any part thereof, on
board of. or brought into the United States by, such vessel, liable
to forfeiture, or so as to render such vessel liable to a fine or
penalty and if necessary to secure such fine or penalty, such
vessel or such merchandise, or both, shall be seized. (Emphasis
added).
There is little, if any current authority, construing the jurisdic-
tional prerequisites of the statute. Rather, most of the case law regard-
ing enforcement authority dates from the days of prohibition and
arose either pursuant to the jurisdictional provisions of the former
Customs statutes authorizing boarding, search, seizure and arrest
aboard any vessel within four marine leagues of the United States
coast or pursuant to bilateral prohibition enforcement treaties which
allow the Coast Guard (or predecessor) to board, search and arrest on
a vessel of the party state within an hour’s sailing distance of the coast
(measured by the vessel’s sailing speed). See. e. g.. Ford v. United
States (The Quadra). 1927, 273 U.S. 593. 47 S.Ct. 531. 71 L.Ed.
793: United States v. Lee, 1927, 274 U.S. 559, 47 S.Ct. 716, 71 L.Ed.
1202: Maul v. United States (The Underwriter), 1927, 271 U.S. 501,
47 S.Ct. 735, 71 L.Ed. 1171; Cook v. United States (The Mazel Tov).
1933. 288 U.S. 102. 53 S.Ct. 305. 77 L.Ed. 641: Gillam v. United
States (The Vinces), 4 Cir., 1928, 27 F.2d 296: Olson v. United States
(The Atlantic), 2 Cir., 1933, 68 F.2d 8: The Rosalie M.. S.D.Tex..
1925, 4 F.2d 815.
Appellants urge that the term “high seas and waters over which
the United States has jurisdiction” limits the Coast Guard’s enforce-
ment authority to a maximum of 12 miles from the United States
coast. Appellants reach this conclusion largely in reliance on Article 24
of The Convention on the Territorial Sea and Contiguous Zone, 1958,
(Footnote continued on next page)
App. 22
clusive territory of another sovereign foreign state, the
Coast Guard violated its jurisdiction as prescribed by
statute, treaty and customary international law.”'
(Footnote continued from previous page)
15 U.S.T. 1606. T.1.A.S. No. 5639, 516 U.N.T.S. 205, to which the
United States is a party and which provides that a coastal state may
exercise control over an area contiguous to its territorial sea but not
extending beyond 12 miles from its coast for the purpose of preventing
and punishing infringements of its customs, fiscal immigration and
sanitary regulations.
To a lesser extent, appellants rely on Article 6 of the treaty that
allows a state to define the limits of its own territorial sea (presumably
within the 12 mile maxir-um provided for the contiguous zone) in
which it may exercise ex~ usive control. The United States has long
claimed a three mile territorial sea. See Statement of the Law of
Foreign Relations of the United States 2d (1969) § 15, Reporters
Note 1. See also United States v. Louisiana, 1959, 363 U.S. 1, 80 S.Ct.
961, 4 L.Ed.2d 1025.
The government replies that the Coast Guard may board and
arrest on an American vessel at any point on the high seas or even
within the foreign territorial waters in its efforts to enforce laws
enacted pursuant to the “special maritime and territorial jurisdiction
of the United States” which 18 U.S.C.A. §7 defines as:
(1) The high seas, any other waters within the admiralty and
maritime jurisdiction of the United States and out of the jurisdic-
tion of any particular State, and any vessel belonging in whole or
in part to the United States or any citizen thereof, or to any
corporation created by or under the laws of the United States, or
of any State, Territory, District, or possession thereof. when such
vessel is within the admiralty and maritime jurisdiction of the
United States and out of the jurisdiction of any particular State.
*‘'Appellants base their claim that the vessel was in Bahamian
waters on the fact that the United Kingdom (of which the Bahamas
were a part at the time of the arrest) was a party to the Convention
on the Territorial Sea and Contiguous Zone, note 30, supra, and thus
under Article 21, the Bahamas were entitled to exercise limited control
over the Contiguous Zone extending to a distance of 12 miles from
its coast.
The government counters that the Coast Guard was not precluded
from arresting at the point in controversy since like the United States,
the United Kingdom claims only a three mile territorial sea subject
to its exclusive control. See Territorial Waters Jurisdiction Act. 1878.
41 & 42 Victoria, C. 73.
App. 23
(3) By arresting appellants by self-help within the
territory of the Bahamas, the Coast Guard violated the
United States treaty of extradition with the United
Kingdom.
(4) Acting in its capacity as an arm®™ of either the
BNDD or the Customs Authority,*» the Coast Guard
violated the regulations governing those agencies by ex-
ceeding their jurisdiction to arrest.
These challenges to the Coast Guard’s jurisdiction to
arrest raise interesting and perhaps difficult questions of
law, largely unresolved by federal precedent.
3214. U.S.C.A. § 89(b) provides:
(b) The officers of the Coast Guard insofar as they are engaged,
pursuant to the authority contained in this section, in enforcing
any law of the United States shall:
(1) be deemed to be acting as agents of the particular
executive department or independent establishment charged with
the administration of the particular law; and
(2) be subject to all the rules and regulations promulgated by
such department or independent establishment with respect to
the enforcement of that law.
3Officers of the Customs are granted special authority to seize,
search and board vessels. 19 U.S.C.A. § 1581 provides:
(a) Any officer of the customs may at any time go on board
of any vessel or vehicle at any place in the United States or within
the customs waters or, as he may be authorized, within a customs-
enforcement area established under sections 1701 and 1703-1711
of this title, or at any other authorized place, without as well as
within his district, and examine the manifest and other documents
and papers and examine, inspect, and search the vessel or vehicle
and every part thereof and any person, trunk, package, or cargo
on board, and to this end may hail and stop such vessel or vehicle,
and use all necessary force to compel compliance.
* * *
(e) If upon the examination of any vessel or vehicle it shall
appear that a breach of the laws of the United States is being or
has been committed so as to render such vessel or vehicle, or the
(Footnote continued on next page)
App. 24
[8] We do not find it necessary to decide these ques-
tions at this time, however, since we are convinced that
under well established case law of the Supreme Court and
this Circuit, a defendant in a federal criminal trial
whether citizen or alien, whether arrested within or be-
yond the territory of the United States may not success-
fully challenge the District Court’s jurisdiction over his
person on the grounds that his presence before the Court
was unlawfully secured.
(Footnote continued from previous page)
merchandise. or any part thereof, on board of, or brought into the
United States by, such vessel or vehicle, liable to forfeiture or to
secure any fine or penalty. the same shail be seized and any person
who has engaged in such breach shall be arrested.
(f) It shall be the duty of the several officers of the customs to
seize and secure any vessel, vehicle, or merchandise which shall
become liable to seizure. and to arrest any person who shall
become liable to arrest, by virtue of any law respecting the
revenue, as well without as within their respective districts. and
to use all necessary force to seize or arrest the same.
ig) Any vessel, within or without the customs waters, from
which any merchandise is being. or has been, unlawfully intro-
duced into the United States by means of any boat belonging to,
or owned, controlled, or managed in common with. said vessel.
shall be deemed to be employed within the United States and, as
such, subject to the provisions of this section.
th) The provisions of this section shall not be construed to
authorize or require any officer of the United States to enforce
any law of the United States upon the high seas upon a foreign
vessel in contravention of any treaty with a foreign government
enabling or permitting the authorities of the United States to
board. examine. search, seize. or otherwise to enforce upon said
vessel upon the high seas the laws of the United States except as
such authorities are or may otherwise be enable or permitted
under special arrangement with such foreign government.
19 U.S.C.A. § 1401:
(1) The term “officer of the customs” means any officer of the
Customs Service or any commissioned, warrant, or petty officer
of the Coast Guard, or agent or other person authorized by law
or by the Secretary of the Treasury, or appointed in writing by a
collector. to perform the duties of an officer of the Customs
Service.
App. 25
Although Ker-Frisbie has been severely criticized,™
and the Second Circuit, in an extreme case of outrageous
governmental conduct of physical and emotional brutality
and indignity,** has held, on the basis of post-1960 due
im) The term “customs waters” means, in the case of a foreign
vessel subject to a treaty or other arrangement between a foreign
government and the United States enabling or permitting the
authorities of the United States to board, examine, search, seize,
or otherwise to enforce upon such vessel upon the high seas the
laws of the United States, the waters within such distance of the
coast of the United States as the said authorities are or may be
so enabled or permitted by such treaty or arrangement and, in
the case of every other vessel, the waters within four leagues of
the coast of the United States.
(n) The term “hovering vessel” means any vessel which is
found or kept off the coast of the United States within or without
the customs waters, if, from the history, conduct, character, or
location of the vessel, it is reasonable to believe that such vessel is
being used or may be used to introduce or promote or facilitate
the introduction or attempted introduction of merchandise into the
United States in violation of the laws respecting the revenue.
See Dickinson, Jurisdiction Following Seizure or Arrest in Viola-
tion of International Law, 28 Am.J.Int.L. 231 (1934); Allen. Due
Process and State Criminal Procedures: Another Look. 48 Nw.L. Rev.
16, 27-28 (1948); Scott. Criminal Jurisdiction of a State Over a De-
fendant Based Upon Presence Secured By Force or Fraud, 37 Minn.L.
Rev. 91 (1953): Fairman. Ker v. Illinois Revisited, 47 Am.J.Int.L.
678 (1953) for earlier articles: and Pitlar, “The Fruit of the Poisonous
Tree”: Revisited and Shepardized, 56 Calif.L.Rev. 579, 600 (1968)
which followed significant post-Frishie Fourteenth Amendment due
process decisions in the area of arrest, search and seizure, see, e. g..
Mapp v. Ohio, 1961. 367 U.S. 643, 81 S.Ct. 1684, 6 L.Fd.2d 1081;
Beck v. Ohio. 1961, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 which
some assert raise doubts as to the current vitality of the Ker-Frisbie
concept. See Judge Friendly’s comments in United States v. Edmons,
2 Cir., 1970. 132 F.2d 577, 583. But see United States v. Cotten. 9
Cir.. 1973. 471 F.2d 744.
See also cases cited by Judge Mansfield in United States v. Tos-
canino, 2 Cir. 1974. 500 F.2d 267, 272-3.
SUnited States v. Toscanino, 2 Cir., 1974, 500 F.2d 267. en banc
rehearing denied (Mulligan & Timbers, JJ., dissenting). See United
States v. Herrera. 5 Cir.. 1974. 501 F.2d 859. 860.
App. 26
process decisions, that Ker-Frisbie bends,** in such situa-
‘Indeed, with the ink scarcely dry on Toscanino, in the unsuccess-
ful effort to have it reheard en banc, the Second Circuit in an
opinion by Chief Judge Kaufman, Lujan v. Gengler, 2 Cir., 1975, —
F.2d —, has limited Toscanino to outrageous situations.
In circumstances that show much more in the way of government
excesses or so-called high-handed treatment on the high seas, they
declined to extend Toscanino to these situations not involving degrad-
ing, egregious, outrageous and flagrant indignities to human _ per-
sonality.
The conduct found insufficient to warrant dismissal was described
by the Court:
Lujan, a licensed pilot, was hired in Argentina by one Duran
to fly him to Bolivia. Although Duran represented that he had
business to transact there with American interests in Bolivian
mines, he in fact had been hired by American agents to lure
Lujan to Bolivia. When Lujan landed in Bolivia on October 26,
1973, he was promptly taken into custody by Bolivian police who
were not acting at the direction of their own superiors or govern-
ment, but as paid agents of the United States. Lujan was not
permitted to communicate with the Argentine embassy, an attor-
ney, or any member of his family.
On the following day the Bolivian police . . . took Lujan . . .
to La Paz, where he was held until November 1. 1973. . . . Boli-
vian police, acting together with American agents, brought Lujan
to the airport and placed him on a plane bound for New York .. .
at Kennedy Airport Lujan was formally arrested by federal agents.
Lujan, supra, F.2d at . The Court described Toscanino
7 pe “conduct of the most outrageous and reprehensible
sind...” Id.
Yet in recognizing that Ker and Frishie no longer provided a
carte blanche to government agents bringing defendants from
abroad to the United States [by the use of torture, brutality and
similar outrageous conduct, we did not intend to suggest that any
irregularity in the circumstances of a defendant's arrival in the
jurisdiction would vitiate the proceedings of the criminal court.
In holding that Ker and Frisbie must yield to the extent they were
inconsistent ‘th the Supreme Court’s more recent pronounce-
ments, we scarcely could have meant to eviscerate the Ker-Frisbie
rule, “hich the Supreme Court has never felt impelled to disavow. ]
Id. at - . However, the Court continued by stating that the out-
rageous treatment inflicted on Toscanino “brought [this] case within
the Rochin [Rochin v. California, 312 U.S. 165, 72 S.Ct. 205, 96
L.Ed. 183] principle and demanded * * * a remedy.” Id., —— FP.2d
at ——.
App. 27
tions the Supreme Court has not receded from Ker’’ or
Frisbie, ** and neither has this Court.’
But the same cannot be said of Lujan. It requires little argu-
ment to show that the government conduct of which he complains
pales by comparison with that alleged by Toscanino . . . which
sinks to a violation of due process. * * *
Id.
7In Ker v. Illinois, 1886, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed.
421, a United States citizen was forcibly removed from Peru for trial
in an IJlinois state court. The Court held that a defendant who has been
convicted in a state court may not challenge the indictment or a
conviction thereunder on the ground that he was improperly brought
within the Court’s jurisdiction in violation of his Fourteenth Amend-
ment right to due process of law. The Court further held that since
the treaty of extradition between the United States and Peru did not
confer a right to asylum on the defendant, he could not object to the
fact that the state of Illinois had acquired custody over him through
self-help rather than legal process.
Eleven years later in Ex Parte Johnson, 1897, 167 U.S. 120, 17
S.Ct. 735, 12 L.Ed. 103, the Court clearly indicated that the Ker
doctrine was equally applicable to p+ aw ow in federal criminal
proceedings.
8In Frisbie v. Collins, 1952, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed.
541, the Supreme Court reconsidered and unanimously reaffirmed the
continuing viability of the Ker doctrine. Rejecting the claim that abduc-
tion and transfer of the defendant was itself a federal kidnapping, the
Court, through Mr. Justice Black, declared:
This Court has never departed from the rule announced in Ker
v. Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 229, 30 L.Ed. 421, that the
power of a court to try a person for crime is not impaired by the fact
that he had been brought within the court’s jurisdiction by reason of
a “forcible abduction.” No persuasive reasons are now presented to
justify overruling this line of cases. They rest on the sound basis that
due process of law is satisfied when one present in court is convicted
of crime after having been fairly apprized of the charges against him
and after a fair trial in accordance with constitutional procedural
safeguards. There is nothing in the Constitution that requires a court
to permit a guilty person rightfully convicted to escape justice because
he was brought to trial against his will. 312 U.S. at 522. 72 S.Ct.
at 511.
%In our recent case of United States v. Vicars, 5 Cir.. 1972, 167
F.2d 452. we stated this summary of the law.
(Footnote continued on next page)
App. 28
{9} Indeed, just recently, we rejected the Second
Circuit’s approach in Toscanino* and held Ker-Frisbie
applicable to a non-resident alien claiming unlawful ab-
duction from Peru:
[Herrera] also urges a loss of jurisdiction by rea-
son of the failure of the United States to follow the
orderly processes of extradition under the treaty be-
tween the United States and Peru.
It is settled by both Supreme Court decisions and
decisions of this court that these contentions are with-
(Footnote continued from previous page )
Even if. as Gonzales claims, he was illegally arrested in the
Panama Canal Zone and brought to the United States, this is not
grounds for requiring that the trial court release and discharge him
without trial. E. g.. Frisbie v. Collins, 342 U.S. 519, 522. 72 S.Ct.
509, 511, 96 L.Ed. 541, 515 (1952) (“This Court has never departed
from the rule . . . that the power of a court to try a person for crime
is not impaired by the fact that he has been brought within the
court’s jurisdiction by reason of a ‘forcible abduction.’ ”); Stamphill
v. Johnston. 136 F.2d 291, 292 (9th Cir.) cert. denied, 320 U.S. 766.
61 S.Ct. 70. 88 L.Ed. 457 (1943) (“The personal presence of a de-
fendant before a District Court gives that court complete jurisdiction
over him. regardless of how his presence was secured, whether by
premature arrest . . . wrongful seizure beyond the territorial jurisdic-
tion of the court . . . false arrest . . . [or extradition arising out of
an offense other than the one for which he is being tried]”): United
States ex rel. Voigt v. Toombs. 67 F.2d 714 (5th Cir. 1933), petition
for cert. dismissed, 291 U.S. 686, 54 S.Ct. 142. 78 L.Ed. 1072 (1934)
(“It is well settled in the courts of the United States that jurisdiction
once acquired in a criminal case is not impaired by the manner in
which the accused is brought before the court.”).
467 F.2d at 455-6.
Note: The bracketed portion is of doubtful validity in view of United
States v. Rauscher. 1886, 119 U.S. 407. 7 S.Ct. 234, 30 L.Ed. 425.
See also United States v. Caramian. 5 Cir.. 1972. 168 F.2d 1370.
*°United States v. Herrera. 5 Cir.. 1971. 504 F.2d 859. and 507
F.2d 143 (1975). where we reincarnate United States v. Farias, 5 Cir..
1971. 488 F.2d 852 (en banc) and Amaya v. United States Bd. of
Parole. 5 Cir.. 1973. 486 F.2d 910.
App. 29
out merit. Ker v. Illinois, 1886, 119 U.S. 436, 444,
7 S.Ct. 225, 30 L.Ed. 421; Frisbie v. Collins, 1952,
342 U.S. 519, 522, 72 S.Ct. 509, 96 L.Ed. 541; United
States v. Caramian, 5 Cir., 1972, 468 F.2d 1370,
1371; United States v. Vicars, 5 Cir., 1972, 467 F.2d
452, 455; United States v. Cotten, 9 Cir., 1973, 471
F.2d 744, 748; Hobson v. Crouse, 10 Cir., 1964, 332
F.2d 561.
United States v. Herrera, 5 Cir., 1974, 504 F.2d 859, 860.
Bound as we are by Herrera, we think that as the Second
Circuit recognized in Lujan, mere errors or the exertion
of action by agents beyond the strict territorial limit does
not make the conduct so outrageous as to invoke these
more drastic remedies.
Despite strenuous efforts by appellants to distinguish
Ker and its progeny, we are convinced that they are con-
trolling as to all appellants.
{10} On its own facts, Ker precludes an attack on
the District Court’s jurisdiction over the American citizens
Towne and Parks*' since Ker himself was an American
citizen forcibly abducted out of another foreign sovereign
state and returned to the United States to stand trial.
Ker-Frisbie and Nonresident Aliens
[11] The Jamaican appellants Winter and Davis
argue that Ker-Frisbie does not preclude nonresident aliens
illegally seized outside of the territory of the United States
*'We give separate consideration to Parks’ challenge to the Court's
jurisdiction over his person. See notes 16 and 47, infra, and accom-
panving text.
App. 30
and forcibly brought before a federal District Court from
challenging its jurisdiction over their persons despite the
fact that American citizens similarly seized would quite
clearly be precluded from successfully raising such a
defense. We have not discovered any precedent in which
the Courts have directly confronted this issue.*
In Ford, the defendants were seized aboard a British
vessel 25 miles from the United States coast and brought
into the United States where they were indicted and con-
victed for conspiring to violate the prohibition laws. The
United States and Britain had entered into a treaty which
permitted the United States to board any British vessel
within an hour’s sailing distance of the United States coast
and make searches and arrests necessary to the enforce-
ment of the prohibition laws. Since the S/S Quadro was
clearly beyond an hour’s sailing distance of the coast, the
Court was willing to conclude that the boarding officers
had exceeded their jurisdiction to arrest.
With that background it considered the challenge to
the trial court’s jurisdiction over the persons of the de-
fendants, but ultimately sustained the convictions.*
**Frequently. the opinions which have found Ker controlling fail
to state whether the defendants alleging illegal arrest or abduction are
American citizens or aliens, See, e. g.. United States v. Vicars, supra;
United States v. Caramian, supra.
These appellants place great weight on three prohibition-era cases
to distinguish Ker. Ford v. United States, 1927. 273 US. 593, 47
S.Ct. 531, 71 L.Ed. 793: United States v. Schouweiler, S.D.Cal.. 1927,
19 F.2d 387: United States v. Ferris, N.D.Cal.. 1927. 19 F.2d 925.
*3The Court stated:
The Solicitor General answers, on the authority of Ker v. Illinois,
119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421, that an illegal seizure
would not have ousted the jurisdiction of the court to try the
defendants. But the Ker case does not apply here. It related to a
App. 31
In Schouweiler and Ferris, the defendants were
arrested aboard Panamanian vessels well beyond an hour's
sailing distance of the coast and brought into the United
States where they were indicted for conspiring to violate
the prohibition laws. The United States and Panama had
entered into a treaty similar to the one involved in Ford.
Faced with a timely plea to the Court’s jurisdiction over
the persons of the defendants, the District Courts for the
Northern and Southern Districts of California dismissed
the indictment in reliance on Ford.
Despite certain factual] similarities, we do not be-
lieve that Ford will suffice to rescue the alien defendants
from the preclusive grasp of Ker-Frisbie. Ford, Ferris and
Schouweiler all emphasized that the arrests in issue were
in clear violation of a treaty limiting the right of the
United States to board the vessels of another sovereign
trial in a state court, and this court found that the illegal seizure
of the defendant therein violated neither the federal Constitution,
nor a federal law, nor a treaty of the United States, and so that
the validity of their trial after alleged seizure was not a matter of
federal cognizance. Here a treaty of the United States is directly
involved, and the question is quite different.
But there is a reason why this assignment of error cannot
prevail. The issue whether the ship was seized within the pre-
scribed limit did not affect the question of the defendants’ guilt
or innocence. It only affected the right of the court to hold their
persons for trial. It was necessarily preliminary to that trial.
The proper way of raising the issue of fact of the place of seizure
was by a plea to the jurisdiction. A plea to the jurisdiction must
precede the plea of not guilty. Such a plea was not filed. The
effect of the failure to file it was to waive the question of the
jurisdiction of the persons of defendants.
273 U.S. at 605-06, 47 S.Ct. at 535, 71 L.Ed. at 799.
App. 32
nation. Our case by contrast involves neither the violation
of a treaty* nor a reproach to the vessels of another power.
We doubt that Ford is at all applicable in the absence
of these operative factors.
In addition, the continuing viability of Ford may
well have been significantly undermined even on its own
facts, by Frisbie. Ford’s treatment of the challenge to
jurisdiction of the person based on a violation of treaty
appears consonant with Ker’s reluctance to find a violation
of due process “unless there was some positive provision
of the constitution or of the laws of this country violated
in bringing him into court. . ..” 119 U.S. at 440, 7 S.Ct.
at 227, 30 L.Ed. at 423 (‘emphasis added). In Ford the
violation of the treaty constituted such a violation of a
positive provision of federal law.
In Frisbie, however, the Court was willing to assume
a violation of the federal Kidnapping Act—clearly a posi-
tive provision of federal law—and yet still find the Ker
doctrine dispositive.
“The articles of the treaty referred to, note 30, supra, speak in
terms of the right of the adjacent power to control and regulate
limited governmental activities within the area specified. They do not
deal with that more sensitive matter of one sovereign obtaining from
another permission to board and if necessary arrest foreign nationals
on a vessel of such foreign nation, an act which, in the absence of a
treaty, would be a violation of freedom of the High Seas. (See, for
example, how scrupulous the United States was to distinguish between
control and exploitation of the seabed and its resources from any claim
of comparable exclusivity over the International High Seas above the
seabed. Outer Continental Shelf Lands Act, § 3, 43 U.S.C.A. § 1332.
Rodrigue v. Aetna Casualty & Surety Co.. 1969, 395 U.S. 352. 89
S.Ct. 1835. 23 L.Ed.2d 360, 1969 AMC 1082.) ,
App. 38
[12] We conclude that Ker-Frisbie applies to the
nonresident aliens as well.*
The Separate Claims Of Parks
Due to the individual circumstances of Parks’ arrest**
he undertakes to assert different attacks from those of his
unsuccessful co-appellants.
(13] Parks through his very knowledgeable counsel
attempts to lay out a course in the tortuous waters be-
tween Scylla and Charybdis. Recognizing that on the
porthand, as an American having been arrested within
the territorial limits of the United States, he cannot
challenge the District Court’s jurisdiction over his person
based on the illegal arrest of others on the high seas,*’
*SWith the Ford treaty theory rejected, we can perceive no rational
basis for drawing any distinction between citizens and nonresident
aliens. Under the Equal Protection Clause, the Courts have held that
in certain contexts resident aliens are entitled to the same rights as
American citizens. See, e. g., Takahashi v. Fish and Game Commission,
1948, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (state statute deny-
ing fishing license to resident aliens unconstitutional); Graham v.
Richardson, 1971, 403 U.S. 365, 91 S.Ct. 1818, 29 L.Ed.2d 534 (state
statute denying assistance benefits to resident alien unconstitutional) ;
In re Griffiths, 1973, i113 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910
(state statute denying resident alien opportunity to take bar exam
unconstitutional). We are unaware of any context, however, in which
an alien has greater rights under law in our Courts than an American
citizen. Indeed, such a circumstance might in itself raise serious
questions of equal protection.
*6Parks was arresied in Miami harbor after he was discovered
hiding aboard M/V Adventurer III following the arrests of the other
appellants aboard M/V Big L.
*7In view of Ker, Frisbie and Vicars, Parks’ counsel was careful
not to phrase his theory in terms of a challenge to the Court’s jurisdic-
tion over the person.
App. 34
and, on the starboard hand under Sepe* the validity of a
search and seizure cannot ordinarily escalate to a reserved
“jurisdictional” issue, he tries by dead reckoning to steer
a middle course. Divining it as best we can, Parks argues
that the Coast Guard illegally boarded and searched the
vessel, discovered the contraband and then made the
arrests, and consequently the arrest of co-appellants aboard
M’V Big L, as well as Parks’ own arrest aboard M/V
Advanturer III in Miami, were fruits of an illegal search.*°
**United States v. Sepe, 5 Cir., 1973, 486 F.2d 1044 (en banc).
While Sepe permits a defendant to enter a guilty or nolo plea and
yel preserve a challenge to the Court’s jurisdiction (whether personal
or subject matter) on appeal, a defendant who has pleaded under
such a court approved reservation may not renew a motion to suppress
on appeal simply by invoking the magic words “jurisdictional-defect”
and phrasing his argument as a challenge to the arresting officer's
jurisdiction to search or arrest.
Both court and counsel were aware of the limitations on a Sepe
nolo plea. Parks’ attorney was fully aware of Sepe and its implica-
tions since he had been counsel both at trial and on appeal in Sepe
as well as in United States v. Caraway, 5 Cir.. 1973, (en banc). 183
F.2d 215 (dismissed as moot) vacating 474 F.2d 25, the two cases in
this Circuit in which the issue had then arisen.
The District Court was well acquainted with the panel decision in
Sepe (subsequently affirmed en banc) and time and again warned
counsel that it simply would not accept a plea reserving the right to
appeal defects other than challenges to the Court’s jurisdiction. At one
point during the hearing on the pleas, the Court stated emphatically:
With respect to the motion to dismiss, and the motion for the
suppression of the evidence, to the extent that the jurisdiction of
the Court is involved in the latter motion. I will accept a plea of
no contest and it may be sent up to the Court of Appeals on the
stipulated facts and the sentences that are imposed, but with
respect to any other defense that is ordinarly waived by a plea of
guilty, I will not accept a plea of no contest.
**Parks challenges the search and seizure on the grounds that the
Coast Guard (i) acting as an arm of the BNDD or Customs Authority
(pursuant to 141 U.S.C.A. 89(b)(1) and (2)) exceeded its authority
in that the search was not a legitimate border search (see notes 32
and 33. supra, and accompanying text); (ii) the vessel searched was
hevond the jurisdiction of the Coast Guard and within the exclusive
jurisdiction of another sovereign state (see note 31, supra, and accom-
panying text).
App. 35
[14] But this theory founders on either the left or
right and if—and it is a big if—the Odyssean (after
Odysseus) course is a “jurisdictional” one then it stands
on the merits. In the circumstances of this case—which
like Mizell, supra, proves again the wisdom of Sepe’s
limitations—we decline to transplant the roots of the
poisonous tree to the 460 fathom deep seabed westward of
the Great Bahama Bank.® As to the so-called internation-
ally illegal boarding and “search” of M/V Big L, Parks,
on the kind of record Sepe permits, cannot begin to show
that his identity or connection with the enterprise was
due to the operation “High Seas.’ He had already been
tagged by the owner of Adventurer III, whose reliability
was sufficiently established by his continuous contact with
the agents spelling out exact times, places, loading, de-
parture and planned rendezvous. To connect Parks with
the enterprise did not depend on what was found aboard
M ’V Big L.
At the least, for a Sepe plea-showing this confirmed
the existence of the plan—facts which, independent of the
half ton of contraband, could have been proved by the
presence of the “planted” crew members and the close
surveillance of hovering agents aloft and aboard C/G
Dauntless—so close in fact, as to have precipitated all
these International law problems with the admittedly High
Seas but a tenth of a mile off.
59See C&GS chart 1112 in evidence.
App. 36
Need For Repleading
{15} As each of the “jurisdictional” issues asserted
by each appellant have been found wanting, we have given
full faith to the District Court’s agreement on the nolo
plea. No one has been misled. The bargain has been kept
on all sides. The conditions of the provisional pleas have
been fully respected. There is therefore no basis for re-
manding for repleading.
Affirmed.
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