Petition — Conroy v. United States
Supreme Court brief1979
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Supreme Court, U. &
eee Ba.
, MAY 19 |
in the 12 1979
MICHAEL RODAK, JR., CLERK
Supreme Court ;
of the
United States
OCTOBER TERM 1978
_CASENO. 78-1700
ROBERT CONROY, RAYMOND DAHL,
FREDERICK JACOBS AND
WALTER K. SCHUBERT,
Petitioners,
US.
UNITED STATES OF AMERICA,
Respondent.
CONSOLIDATED
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
MELVYN KESSLER, Esquire
and
ARTHUR W. TIFFORD, Esquire
Co-Counsel for Petitioners
1531 N.W. 15 Street Road
Miami, Florida 33125
(305) 324-4104
‘
y
TABLE OF CONTENTS
Page
TEE Oe 2
Jurisdiction ....... Peukcae kee E eek sas Rieck eacixenes 2
EE Sr 2
eek 5 5 sub knacescce seca 3
Cee scl as oven ds seacseeses. 3
Reasons for Granting the Writ..................... 7
ES RE SE 20
Appendix A — Opinion of Court Below ......... App. 1
Appendix B — Judgment Below............... App. 48
Appendix C — Order on Petition for
EEE SE a App. 50
Appendix D — 21 U.S.C. Sec. 952 ............ App. 52
Appendix E — 21 U.S.C. 963 .................. App. 55
EE Oe, App. 56
Appendix G — 14 U.S.C. 89................... App. 59
TABLE OF CONTENTS (Continued )
Appendix H — 15 U.S.T. 1608, 1610,
Convention on the Territorial Sea and
the Contiguous Zone, Article 14
Page
TABLE OF CITATIONS
Bovd v. United States,
116 U.S. 616, 630, 6 S.Ct. 524, 532,
29 L.Ed. 746, 751 (1886) .............006.
Dalia v. United States,
U.S. . S.Ct. ;
___L.Ed.2d , 25 Cr L 3022 (1979) ....
Harris v.C.1.R.,
340 U.S. 106, 71 S.Ct. 181, 95 L.Ed. 111
CE Ne Shad cae snes ec sakxnbaspaedsesbeens
Irvane v. California,
347 U.S. 365, 505, 511-512 (1961) ..........
Lopez v. United States,
373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed. 462
CREE dN ccc d sakes d arenes th icedexabunenees
Maul v. United States,
274 U.S. 501, 47 S.Ct. 735, 71 L.Ed. 1171
SEUEE Se dele ccda¥ralveseh envasteaasl bas ek kas
McGill v. Environmental Protection Agency,
F.2d (5th Cir. Slip Op.
76-4353 decided April 20, 1979) ...........
Silverman v. United States,
365 U.S. 505, 511, 512 (1961) ..............
iii
Page
TABLE OF CITATIONS (Continued)
Page
United States v. Holmes,
521 F.2d 859 (5th Cir. 1975), affirmed
537 F’.2e 237 (OR Uae. Te on cadenncsevenseues 5, 17
United States v. Hillstrom,
538 F.90 S00 (th et. WAS 6k 13
United States v. Katz,
353 U.S. 353, 88 S.Ct. 512, 19 L.Ed.2d 583..... 17
United States v. Odom,
536 F.3d SOB(Gth Gir. BOGE so sci cklsccvacenes .
United States v. One 43' Sailing Vessel,
538 F.Det GG (Geis Civ. TIGRE ic cdc dcvdvavexascs. 13
United States v. Spelar,
338 U.S. 217, 70 S.Ct. 10, 94 L.Ed. 3(1949).... 15
United States v. White,
401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 .. 5, 17
United States v. Winter,
508 F.3d 975 (Sthe Cie. 1OTGD . cis. és ckcncd ends fe
iv
OTHER AUTHORITIES
Page
Constitutional Provisions
Fourth Amendment to the United States
ee etary aKa Se kG Gh ptmiaed as wou. Paes 2, 4
Statutes
anid) cera kane Rees Lhe AOS 7
EEE hh caidas hick huis a wee ae 2, ,3, 7, 9, App 56
RMA SN iin ccd aces seas vans 2, 3, 4, 7, 9, App 59
NE aR. wenennns Gawedeekaeeene ys 10
RANE 6 Fad Jud ok TiN Kae cae cukuoenewsn 10
OE MENEED o a sce en aes Xeatcetan aes 3, App 52
ti Cab 3, App 55
os ERS ee ee ne corr 3, App 60
Treatises
4 Whitman, Digest of International Law 417 (1965) 16
Webster’s New Collegiate Dictionary (1960) ....... 16
in the
Supreme Court
of the
United States
OCTOBER TERM 1978
CASE NO.
ROBERT CONROY, RAYMOND DAHL,
FREDERICK JACOBS AND
WALTER K. SCHUBERT,
Petitioners,
US.
UNITED STATES OF AMERICA,
Respondent.
CONSOLIDATED
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Petitioners, ROBERT CONROY, RAYMOND
DAHL, FREDERICK JACOBS AND WALTER K.
SCHUBERT, pray that a writ of certiorari issue to
review the judgment of the United States Court of Ap-
peals for the Fifth Circuit, entered in the above-styled
case on February 23, 1979.
OPINIONS BELOW
The opinion of the Court of Appeals, printed in Ap-
pendix A hereto, infra (pp. Al-A20) is reported at
___F.2d____ (5th Cir. 1979).
JURISDICTION
The judgment of the Court of Appeals was entered
on February 23, 1979, Appendix B, infra (p. A21). A
timely petition for rehearing was denied on April 12,
1979. Appendix C, infra (p. A22). The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1) and Rule 22,
Rules of the United States Supreme Court.
QUESTIONS PRESENTED
1. Whether the United States Coast Guard has
law enforcement jurisdiction to enforce or assist in en-
forcing the Federal laws of the United States in foreign
territorial waters, contrary to the specific language in 14
U.S.C. 2 and 89, when members of a Coast Guard vessel
forcibly detained, boarded and searched a vessel in con-
cededly Haitian waters?
2. Whether the trial court erred to the substantial
prejudice of the Petitioners and contravened their
Fourth Amendment protections against unreasonable
2
searches and seizures when it denied the Petitioners’
motion to suppress evidence obtained by federal
authorities through electronic surveillance based upon a
warrantless, surreptitious installation of a “beeper”
device upon a vessel while that vessel was moored within
the continental limits of the United States?
STATUTES INVOLVED
The Federal statutory provisions involved, 21
U.S.C. 952 (a) and 963 are set forth in Appendix D and
E, infra (App. 52-App. 55). The statutory authorization
and jurisdictional limits for the United States Coast
Guard, 14 U.S.C. 2, and 89, are set forth in Appendix F
and G, infra (App. 56-App. 59). The Convention on the
Territorial Sea and the Contiguous Zone, entered into
force in 1964, 15 U.S.T. 1606, T.I.A.S. No. 5639 1958,
Section III, Article 14, is set forth in Appendix H, infra
(pp. A).
STATEMENT OF FACTS
This is a prosecution under statutes familiarly
known as the Controlled Substances Act, 21 U.S.C. 952
(a), and the conspiracy provisions of that act, 21 U.S.C.
963. The Petitioners were indicted on a multi-count in-
dictment with one (1) other defendant for conspiracy to
devise and the devising of a violation of the Controlled
Substances Act by knowingly and intentionally im-
porting it to the United States from a place outside
thereof 7000 pounds of marijuana, a Schedule I con-
trolled substance. The Petitioners were also charged
with the substantive offense of importing into the
United States that marijuana. The trial was held in the
United States District Court for the Southern District of
Florida (Roettger, D.J.). The Petitioners were found
guilty and sentenced thusly: Petitioner DAHL to thirty
(30) months confinement followed by a three (3) year
special parole term; Petitioner CONROY to fifty-four
(54) months confinement plus a fifty-four (54) month
special parole term; Petitioner SCHUBERT to sixty
(60) months confinemeni plus a sixty (60) month special
parole term; Petitioner JACOBS to a period of treat-
ment and supervision pursuant to the Federal Youth
Corrections Act, 18 U.S.C. 5010 (b). Petitioners CON-
ROY and SCHUBERT were also sentenced to pay a
$5,000 and $15,000 fine, respectively.
On appeal, the United States Court of Appeals for
the Fifth Circuit affirmed the conviction of the
Petitioners. See Al-A20. The Court (Roney, Rubin and
Vance, JJ.) concluded, as to the first question pre-
sented, that while the Fourth Amendment protects
citizens wherever they may be in the world from un-
reasonable searches and the mere consent of foreign
authorities to a seizure that would be unconstitutional
in the United States does not dissipate its illegality un-
der United States law, rc cent case decisions sufficiently
interpreted 14 U.S.C. 89 (a) to include legislatively con- '
veved authority to the United States Coast Guard to ex-
ecute civilian law enforcement activities in foreign
waters. That is to say, that the expression, ‘‘upon the
high seas and waters over which the United States has
jurisdiction . . .”” was not intended to be restrictive, and
therefore the United States Coast Guard had implicit
statutory authority to forcibly board and search an
American vessel in foreign territorial waters even in the
absence of express statutory authority. The Court con-
cluded as to the second question presented that
although the law of the Fifth Circuit held that the in-
stallation of a beeper on an automobile was a search
within the meaning of the Fourth Amendment because
it defeats the expectation of privacy of the automobile’s
occupant(s), and therefore requires the obtaining of a
warrant or the demonstration of a sufficient basis for the
failure to obtain such before the installation of such a
device would be reasonable United States v. Holmes,
521 F.2d 859 (5th Cir. 1975), affirmed 537 F.2d 227 (5th
Cir. 1976), and although there is at least as great an ex-
pectation of privacy in vessels, such as that at bar, the
installation of the electronic beeping device is not an in-
vasion of privacy, analogizing the electronic beeping
with the decision of this Court in United States uv.
White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed 2d 453
(1971).! The premise of White, said the Fifth Circuit,
was that a participant to a conversation has no legal
right to protect his erroneous belief that those with
whom he confides will safeguard the secrets he divulges.
(See A. ).
Based upon oral communications received from a
paid informant, Buzal, DEA agents “‘suggested”’ to the
latter that he surreptiously install two (2) “beepers”
which thev would supply to him on board the vessel
NAHOA. The informant was requested to turn on the
‘““heepers” when the NAHOA was loaded with whatever
controlled substance the group sailing the vessel was to
obtain. No warrant was obtained to install either of the
heepers and, contrary to DEA internal regulations, no
“prior written authorization” was obtained by the
'In United States v. White, supra, the plurality of this Court
held that there is no privacy invasion when a confidential informant
wears a recording device and surreptiously transmits his own con-
versations with unknowing law breakers.
agents before their agent, Buzal, installed either of the
beepers. The NAHOA sailed from Fort Lauderdale,
Florida several weeks later. Anticipating that the
NAHOA would proceed to Jamaica in an attempt to
smuggle marijuana into the United States, the DEA re-
quested Coast Guard assistance in sweeping and
blockading the Windward Passage, a required route of
return for the vessel. Several days later a DEA pilot,
while flving over Jamaica, identified the beeper signal
on his monitoring equipment and radioed the DEA who
immediately advised the Coast Guard’s Seventh Dis-
trict Headquarters. The Seventh District Headquarters
immediately radioed the cutter DAUNTLESS directing
the cutter to resume the barrier patrol she had originally
begun several days earlier in the Windward Passage.
The radio communications were necessitated because
the DAUNTLESS did not have equipment necessary to
monitor the DEA’s beeper.
By the time the DAUNTLESS seized and boarded
the NAHOA in Haitian territorial waters the Coast
Guard’s “. . . sole concern with the vessel and hull was
(not) a document check,” but rather to intercede a load
of narcotics which the Coast Guard “‘. . . had informa-
tion to believe ... was bound for the United
States ...”’ candidly the DAUNTLESS’ officer
conceded that when he ‘* ... boarded it (the
NAHOA)...” he did so, **. . to check documenta-
tion and to do a search; yes, sir.”’ (Sr. 129).
The seizure, boarding and search of the NAHOA all
occurred in Haitian territorial waters. The search of the
vessel eventually lead to the discovery of approximately
7,000 pounds of marijuana.
As indicated above, the Court of Appeals for the
Fifth Circuit affirmed Petitioners’ convictions, basing
that affirmance on the grounds that although the Coast
Guard enabling statute, 2 U.S.C. Section 289, per se
would not authorize the Haitian search, a reading of
statutory language in conjunction with certain inter-
national law, the Convention of the Territorial Sea and
the Contiguous Zone entered into in 1964, supra, to
which Haiti is also a party, expands the jurisdictional
authorization of the United States Coast Guard as set
forth in the Code, supra, so as to permit it to conduct
civil law enforcement activities in foreign territorial
waters.
REASONS FOR GRANTING THE WRIT
1. Whether the United States Coast Guard has
law enforcement jurisdiction to enforce or assist in en-
forcing the Federal laws of the United States in foreign
territorial waters, contrary to the specific language in 14
U.S.C. 2 and 89, when members of a Coast Guard vessel
forcibly detained, boarded and forcibly searched a vessel
in concededly Haitian waters?
The first question presented concerns a fundamen-
tal question of the jurisdiction of United States
authorities in foreign territories, including foreign
territorial waters. It involves the interpretation of the
enabling statute, 14 U.S.C. Sections 2 and 89, which
must be strictly construed, and the review of the Fifth
Circuit’s speculation as to the congressional intent
behind the amendment to the enabling statute following
this Court’s opinion in Maul v. United States, 274 U.S.
501, 47 S.Ct. 735, 71 L.Ed 1171 (1927). Although 52
vears old, Maul represents this Court’s most recent,
7
definitive language dealing with the express statutory
authorization for the Coast Guard to seize domestic
vessels as part of the civil law enforcement activities.
This question also goes to the ability of the Circuit
Courts of Appeal, in this case the Fifth Circuit, to
speculate on the intent of the Congress in amending
legislation following this Court’s decision in Maul v. Un-
ited States, supra, when the enabling statutes involved,
14 U.S.C. Sections 2 and 89 carefully delineate the
jurisdictional parameters of the authority of the Coast
Guard in enforcing or assisting in the enforcement of the
civil laws of the United States. This is an area of law
relatively new (the treaty upon which the Fifth Circuit
predicates its interpretation of the statute having been
entered into force in 1964) but the decisional authority
in this regard, 52 years old, strongly contravenes the in-
terpretation of the statutes whether read by itself or in
conjunction with the treaty. With particular emphasis
taken by the Government at the Fifth Circuit and as ap-
proved substantially by that court — that the tandum
effect of the enabling statute and the treaty authorizes
civil law enforcement activities by the Coast Guard in
Foreign territorial waters — is a question to which this
Court has never addressed itself. Moreover, the Fifth
Circuit’s conclusion that Congress’ silence on a subject
ahout which no one had suggested a need to speak
should not be interpreted as reflecting an intent either
to grant or deprive the Coast Guard of authority to
proceed in foreign territorial waters to enforce American
law (A.____), directly conflicts with other recent Fifth
Circuit decisions which concl:de that “it would be
sophistry for the Court of Appeals to divine a con-
gressional intent, on a subject Congress did not con-
sider.”’ McGill v. Environmental Protection Agency,
___._ F.2d ___ (5th Cir. Slip Op. 76-4353, decided April
20, 1979).
A. THE ENABLING STATUTE, 14 U.S.C. 2 AND
89 SPECIFICALLY LIMIT THE JURISDIC-
TIONAL AUTHORITY OF THE COAST
GUARD IN ENFORCING OR ASSISTING
THE ENFORCEMENT OF CIVIL LAW TO
THE TERRITORIAL WATERS OF THE
UNITED STATES AND ‘“‘THE HIGH SEAS.”’
Since no statute expressly authorizes the Coast
Guard to effect the boarding or searching of American
vessels or otherwise enforce or assist in the enforcement
of Federal law in foreign territorial waters, the Coast
Guard lacked jurisdiction to do so and to seize the con-
tents of the NAHOA. 14 U.S.C. Section 2 states:
“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.”’
Section 89 (a), Code, supra, further provides in perti-
nent part:
“The Coast Guard may make inquiries, ex-
aminations, inspections and searches, seizures
and arrests upon the high seas and waters of
which the United States has jurisdiction for
which the prevention, detection and suppres-
sion of violations of the laws of the United
States. For such purposes, commissioned,
warrant or petty officers may at any time go on
board of any vessel subject to the jurisdiction,
or the operation of any law, of the United
States, address inquiries, to those on board, ex-
amine the ship’s documents and papers, and
examine, inspect and search the vessel and use
all necessary force to compel compliance. ***”’
18 U.S.C. Section 7, defines the ‘‘special maritime and
territorial jurisdiction of the United States,” thusly:
(1) The high seas, and any waters within the
admiralty and maritime jurisdiction of the
United States and out of the jurisdiction of any
particular state, and any vessel belonging in
whole or in part to United States or any citizen
thereof... when such vessel is within the ad-
miralty and maritime jurisdiction of the
United States and out of jurisdiction of any
particular state.’’ (emphasis added)
“(m) The terms ‘custom’s waters’ means in
the case of a foreign vessel subject to a treaty or
other arrangements between a foreign govern-
ment and the United States enabling or per-
mitting 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.”’ (emphasis added)
That no precise statutory language exists empower-
ing the Coast Guard to board and. search vessels in
19 U.S.C. Section 1581, granting “Officers of the foreign territorial waters is conceded by the Govern-
Customs” special authority to seize, search or board ment. Only recently, the Fifth Circuit said in United
vessels states in pertinent part: States v. Winter, 509 F.2d 975, 984 (5th Cir. 1975) foot-
(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
custom’s waters . . . 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 that end
may hail and stop such vessel or vehicle, and
use all necessary force to compel compliance.
* * *
10
note 30:
“There is little, if any, current authority con-
struing the jurisdictional prerequisites of the
statute. Rather, most of the case law regarding
enforcement authority dates from the days of
prohibition and arose either pursuant to the
jurisdictional provisions of the former custom’s
statutes authorizing boarding, search and
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
11
vessel of the parties-state within an hour’s sail-
ing distance of the coast (measured by the
vessel’s sailing speed). (citations omitted)”
And the Fifth Circuit went on to say in the same deci-
sion at page 985,
“(t)hese challenges to the Coast Guard’s
jurisdiction to arrest raise interesting and
perhaps difficult questions of law largely un-
resolved by federal precedent. . .”’
hefore expressly declining to decide such questions at
that time.
This Honorable Court in Maul v. United States,
‘supra, specifically addressed the then existing statutory
authority of the Coast Guard to (a) board and search as
well as (b) seize vessels beyond four leagues of the coast
of the United States. It determined that the statutory
construction and an analysis of the predecessor statutes
created a distinction: that the authority of the Coast
Guard to board and search a vessel was limited to the
territorial waters and high seas within twelve (12) miles
of the United States’ coast; that the authority of the
Coast Guard to seize ‘‘on the high seas” was not so
geographically limited and thus could occur anywhere
“on the high seas.” Maul, 274 U.S. at 507. This
Honorable Court also concluded that the Coast Guard
as “officers of the customs,” possessed statutory
authority to seize on the high seas beyond the twelve
(12) mile coastal limit. Jd., supra at 510 = 511. Neither
Maul on the one hand and any subsequent decision of
this Court on the other hand, nor any federal appellate
court decisions since Maul answered the two (2) fun-
12
damental questions raised herein: the authority of the
Coast Guard to (a) search and (b) board either on the
high seas or foreign territorial waters.”
The Fifth Circuit’s speculation as to the intent of
Congress of expanding Coast Guard civil law enforce-
ment jurisdiction to foreign territorial waters in the ab-
sence of such language in the enabling statutes and the
legislative history thereto is especially curious since it is
inconsistent with other holdings of the Court. In McGill
v. Environmental Protection Agency, supra, that court
(Judges Morgan, Fay and Rubin), one of whom presided
on the panel deciding the decision on which review is
now sought, said at page 4334 of its slip opinion:
“All parties to this litigation have vigorously
presented their respective interpretations of
Congress’ failure to deal with the question
presented. The debate concerning the
significance of congressional silence is almost
as difficult to resolve as Bishop Berkeley’s
famous question concerning whether there is
noise when a tree falls in a forest and no one is
present to hear it. It would be sophistry for us
to divine a congressional intent on a subject it
“United States v. Odom, 526 F. 2d 339 (5th Cir. 1976), United
States v. One 43' Sailing Vessel, 538 F. 2d 694 (5th Cir. 1976) and
United States v. Winter, supra, did not decide the questions of (a)
searches on the high seas and (b) boardings, searches or seizures in
foreign territorial waters. Neither does United States v. Hillstrom,
533 F. 2d 209 (5th Cir. 1976), cert. denied 97 S.Ct. _ (1977).
Moreover, United States v. Winter, supra, the only federal ap-
pellate authority that could be found on this point, hold as con-
stitutional Section 89(a) Code, supra, only with respect to a search
if such search is a valid safety inspection.
13
did not consider. Nor would it be permissible
for us simply to withhold judgment on the basis
that there is no law to apply. Instead we must
attempt, at least in part. intuitively, to deter-
mine how we think Congress would have voted
had the question been raised legislatively.”
It seems difficult to conceive of a proposed legislation
authorizing the armed incursion into foreign territorial
waters hy vessels which are labeled ‘ships of war” to
civilly enforce or assist the enforcement of federal
domestic law.
B. THE TANDUM CONSIDERATION OF IN-
TERNATIONAL LAW, INCLUDING THE
CONVENTION ON THE TERRITORIAL SEA
AND CONTIGUOUS ZONE, DOES NOT EX-
PAND THE CONGRESSIONALLY CREATED
JURISDICTIONAL PARAMETERS OF THE
COAST GUARD.
That which is not set forth in enabling legislation is
not conferred and may not be presumed to have been
conferred. Harris v. C.I.R., 340 U.S. 106, 71 S.Ct. 181, 95
L.Ed 111 (1950). The jurisdictional expansion condoned
by the Fifth Circuit was never conferred by the Congress
in any of the four (4) amendments to the pertinent
statutes since this Court’s decision in Maul. See 1950
U.S. Code Cong. Serv., p. 2306. The Fifth Circuit’s deci-
sion also gives extra-territorial effect to the police power
conferred upon the Coast Guard in the enabling statute,
a precedent which contravenes the mandate of this
Court that the general presumption is that a statute is
not intended to have extra-territorial effect without con-
14
cise expressions of such. United States v. Spelar, 338
U.S. 217, 70S.Ct. 10, 94 L.Ed 3 (1949).
To do that which has specifically been forbidden by
this Court the Fifth Circuit interpreted Articles 14 of the
Convention in tandum with the enabling statute, con-
cluding that the two, when combined, sanctioned the
Coast Guard’s armed incursion into foreign territorial
waters for civil law enforcement activities. The Conven-
tion, however, does not support the conclusion.
The only incursion to foreign territorial waters en-
visioned by the Convention is that which the treaty
labels “innocent passage,’’ more fully set forth in Article
XIV of the Convention. It states, in pertinent part,
‘1. Subject to the provisions of these articles,
ships of all states, whether coastal or not, shall
enjov the right of innocent passage through the
territorial sea.
“2. Passage means navigation through the
territorial sea for the purpose either of travers-
ing that sea without entering internal waters,
or of proceeding to internal waters, or of mak-
ing for the high seas from internal waters.
‘“*3. Passage includes stopping and anchoring,
but only insofar as the same are incidental to
ordinary navigation or are rendered necessary
bv force majeure or by distress.
‘“‘4. Passage is innocent so long as it is not pre-
judicial to the peace, good order, or security of
the coastal state. Such passage shall articles
and with other rules of international law.”
4 Whitman, Digest of International Law, 417 (1965),
defines the term ‘‘passage”’ to include, ‘‘where rendered
necessary by ordinary incidence of navigation or the
stress of weather or damage, the right to stop and weigh
anchor.” Webster's New Collegiate Dictionary, (1960)
defines “‘passage”’:
“1. The act of passing: transit from one place
to another. 2. A means of passing; a way,
channel or course ... 4. right, liberty or
permission to pass...”
The intentional, police-oriented armed incursion
into foreign territorial waters for the express purpose of
pursuing, forcibly detaining, boarding, searching and
thereafter seizing the NAHOA is anything but “‘inno-
cent passage,” whether that term is defined by the dic-
tionary or the precise treaty on which the Fifth Circuit
based its conclusion.
The conclusion of the Fifth Circuit is based upon
standards never before considered by this Court.
Meanwhile, the Court of Appeals herein concerned is
trivializing the standards of “territorial waters” and
“upon the high seas’’ established by this Court in Maul
and not since discussed in these past 52 years. All of this
is to the detriment of the Petitioners who seek the same
standard of law being applied to the executive
authorities of the United States as they would apply to
them and call upon this Court in this period when
thoughtful people are seriously concerned about fun-
damental fairness and the excesses of authority
16
operating under color of law, to review the events and
rulings of which review is herein sought, all of which
they contend certainly warrant the attention of this
Court.
2. Whether the trial court erred to the substantial
prejudice of the Petitioners and contravened their
Fourth Amendment protections against unreasonable
searches and seizures when it denied the Petitioner’s
motion to suppress evidence obtained by federal
authorities through electronic surveillance based upon a
warrantless, surreptitious installation of a “beeper”
device upon a vessel while that vessel was moored within
the continental limits of the United States?
As recently as April 18, 1979 this Court reaffirmed
the plurality decision in Jrvane v. California, 347 U.S.
128 (1954) and the majority decision in Silverman v.
United States, 365 U.S. 505, 511 - 512 (1961) that a
federal officer may not, without a warrant and without
consent, physically entrench into a man’s office or home
electronic surveillance and thereby secretly observe
or listen. Dalia v. United States, U.S. ;
S.Ct. i L.Ed 2d____, 25 Cr L 3022 (1979). At
bar, the warrantless, surreptitious placement of the
beeper devices constituted an illegal electronic sur-
veillance within the meaning of the Fourth Amendment.
Accord as to electronic surveillance: United States v.
Holmes, 521 F.2d 839 (5th Cir. 1975), petition for rehear-
ing denied, 537 F.2d 227 (5th Cir. 1976). In its decision
below the Fifth Circuit irreconcilably conflicts with its
own decision in Holmes and the mandates of this Court
in Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524,
532, 29 L. Ed 746 751 (1886) and United States v. Katz,
353 U.S. 353, 88 S.Ct. 512, 19 L.Ed 2d 583. This is es-
17
pecially so with this Court’s standard that the normal
expectation of privacy at the time of the initial intrusion
. must be the test in determining violations of the Fourth
Amendment proscription against unreasonabie searches
and seizures. This being so, there is, as the Fifth Circuit
said in its Holmes decision:
"“No rational basis occurs for us where dis-
tinguishing the violation of the expectation of
privacy involved in the installation of a
“beeper” on a car, in order to trace its move-
ments, from the placement of a tape on the out-
side of a telephone booth in order to overhear
and record conversations, Kaiz, supra...”
Moreover, the “consent”? which the Fifth Circuit es-
tablishes in order to allign its decision with that of this
Court in United States v. White, 401 U.S. 745, 91 S.Ct.
1122, 28 L.Ed 453 (1971) and Lopez v. United States,
373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed2d 462 (1963) totally
misses the mark and trivializes the standards mandated
by this Court. In Lopez and White the “consenting
party” were the constant inherent participants to the
conversation. At the worst, the Lopez and White
conversations were semi-private in nature. This was not
the situation by placing the beeper on board the
NAHOA. There the beeper, once activated, con-
tinuously emitted electronic signals. Equating the
“beeper” with an electronic ‘‘bug”’ or listening device
renders apparent the difference in the ‘“‘consent” stan-
dard established by this Court in Lopez and White and
that to which it has been stretched in the Fifth Circuit
below. Had the beeper been in fact a “‘bugging” device,
once activated, it would have electronically transmitted
every conversation within listening distance, whether
18
the informant/agent who planted the device was a par-
ticipant of that conversation or not. Under such cir-
cumstances one can hardly say that “consent” as
sanctioned by this Court in White and Lopez was the
same as that which the Fifth Circuit considered.
The evil which has been condoned by the decision
below is plain. The Petitioners seek no more than fun-
damental fairness in the application of the mandates of
this Court in its interpretation of the Fourth Amend-
ment as this Court itself would render. No less is expec-
ted within the federal criminal process. Because of the
error as outlined above and the reasons for granting this
writ, this petition is deserving of review by this “surt.
19
CONCLUSION
For each and all of the foregoing reasons, it is
respectfully submitted that a writ of certiorari should be
granted by this Court.
Respectfully submitted,
MELVYN KESSLER, Esquire APPENDIX
and
ARTHUR W. TIFFORD, Esquire
1531 N.W. 15 Street Road
Miami, Florida 33125
305-324-4104
Co-Counsel for Petitioners
BY
MELVYN KESSLER, ES-
QUIRE
APPENDIX A
UNITED STATES of America,
Plaintiff-Appellee,
i
Robert CONROY, Raymond Dahl,
Frederick Jacobs and Walter K. Schubert,
Defendants-Appellants.
UNITED STATES of America,
Plaintiff-Appellee,
v.
Leonard A. WALKER, a/k/a “‘Silver’’,
Defendant-Appellant.
Nos. 77-5436, 77-5444.
United States Court of Appeals,
Fifth Circuit.
Feb. 23, 1979.
Defendants were convicted before the United States
District Court for the Southern District of Florida, at
Fort Lauderdale, Norman C. Roettger, Jr., J., of either
conspiracy or both conspiracy and attempting to import
App. 1
marijuana into the United States. The Court of Appeals,
held, in an opinion by Alvin B. Rubin, Circuit Judge,
that: (1) installation by paid informant for the Drug En-
forcement Administration of an electronic beeper on
vessel used by defendants in their attempt to import
marijuana into the United States was not an invalid
warrantless search; (2) Coast Guard’s search of
American vessel in Haitian waters was not invalidated
by lack of authority to make search; (3) flight of vessel
upon approach of Coast Guard created exigent cir-
cumstances that, coupled with antecedent probable
cause to believe that vessel was engaged in smuggling,
justified subsequent warrantless search of vessel by
Coast Guard; (4) evidence was sufficient to warrant con-
clusion beyond a reasonable doubt that a particular
defendant had requisite knowledge and intent to be
found guilty of conspiracy to import marijuana into the
United States; (5) district court did not abuse its discre-
tion in refusing to ask questions on voir dire examina-
tion in precise form requested by defendant, and (6)
where trial court, in reviewing Jencks Act material,
failed even to look at complete materials, thereby ab-
dicating its responsibility to government counsel,
reviewing court had no choice but to vacate judgment
and remand for an appropriate examination.
Convictions of four defendants affirmed; judgment
of conviction of fifth defendant vacated and case re-
manded for further proceedings as directed.
Alvin B. Rubin, Circuit Judge, dissented in part
and filed opinion.
App. 2
1. Searches and Seizures — 7(10)
Installation by paid informant for the Drug En-
forcement Administration of an electronic beeper on
vessel used by defendants in their attempt to import
marijuana into the United States from Jamaica did not
constitute an invalid warrantless search, since paid in-
formant was under no legal obligation to conceal his
whereabouts and thus transmission of signals on vessel
was not an invasion of privacy of others, informant had
right to be on board vessel and thus there was no
trespass at time that beeper was installed, and there was
probable cause to believe that vessel would be used to
transport contraband. U.S.C.A.Const. Amend. 4.
2. Searches and Seizures — 7(10)
Holmes decision that installation of a beeper on an
automobile is a search within meaning of Fourth
Amendment because it defeats expectation of privacy of
automobile’s occupant and is therefore prohibited
unless a warrant is obtained or there is sufficient basis
for failure to obtain a warrant to render act reasonable
cannot be restricted to automobiles, because there is at
least as great an expectation of privacy in vessels.
U.S.C.A. Const. Amend. 4.
3. Criminal Law — 386
A participant in a conversation has no legal right to
protect his erroneous belief that those in whom he con-
fides will safeguard secrets he divulges, and, likewise, if
informant may reveal conversation at a later time, he
mav contemporaneously transmit it to third persons.
App. 3
4. Searches and Seizures — 7(10)
Although paid informant for the Drug Enforcement
Administration who conspired with defendants to im-
port marijuana into the United States from Jamaica was
not vessel owner, he had a right to go aboard vessel and
his placement of electronic beepers on vessel rather than
on his person did not render its introduction invalid.
U.S.C.A. Const. Amend. 4.
5. Searches and Seizures — 7(10)
Fourth Amendment not only protects al! within
bounds of the United States; it also shelters citizens
wherever they may be in the world from unreasonable
searches by the United States Government. U.S.C.A.
Const. Amend. 4.
6. Searches and Seizures — 7(27)
Mere consent of foreign authorities to a seizure that
would be unconstitutional in the United States does not
disipate its illegality even though search would be valid
under local law. U.S.C.A. Const. Amend. 4.
7. Shipping — 9
Although statute authorizing Coast Guard to make
searches and seizures upon the high seas and waters over
which the United States has jurisdiction for prevention,
detection and suppression of violations of !aws of the
United States did not per se authorize search in
territorial waters of another nation, phrase ‘“‘upon the
high seas and waters over which the United States has
App. 4
jurisdiction” was not intended to be restrictive, and
Coast Guard has implicit power to search an American
vessel in foreign waters even in absence of express
statutory authority. 14 U.S.C.A. § 89(a).
8. United States — 40
Powers that Congress gives agencies in executive
branch are better when they are explicit, since statute
that is express and unequivocal is least likely to be mis-
understood or violated either by neglect or zealous
overuse; however, authority may be granted by in-
ference as well, and Congress, in its relationship with ex-
ecutive branch, is not bound by strictures that apply to
criminal law and require such statutes to be explicit.
9. International Law — 2
International law is part of domestic law of the
United States.
10. Armed Services — 29
Law of nations classifies Coast Guard vessels as
warships; such vessels belong to state, are under direc-
tion of a military commander and manned by a military
crew, and legally bear ensign of national navy.
11. International Law — 7
At least between parties to the Convention on the
Territorial Sea and the Contiguous Zone, such as the
United States and Haiti, a warship of one nation may
enter territorial waters of the other without first giving
notification and receiving authorization.
App. 5
12. International Law — 7
Ratification by the United States of the Convention
on the Territorial Sea and the Contiguous Zone
manifested implicit authorization for its warships to do
what warships of other nations might do.
13. International Law — 7
In Coast Guard’s search of an American vessel in
Haitian waters, there was a conjunction of implicit
recognition by the United States Government of power
of its warship to make search, and explicit approval of
search by Haitian government, even though presumably
no consent by Haitian authority was required under
terms of the Convention on the Territorial Sea and the
Contiguous Zone.
14. International Law — 7
Redress for improper seizure in foreign waters is not
due to owner or crew of vessel involved, but to foreign
government whose territoriality has been infringed by
action. U.S.C.A. Const. Amend. 4.
15. Shipping — 9
Defendants, who were respectively charged with
conspiracy or both conspiracy and attempting to import
marijuana into United States, could not assail legality
of seizure of their vessel by Coast Guard in Haitian
waters. U.S.C.A. Const. Amend. 4; Comprehensive
Drug Abuse Prevention and Control Act of 1970,
§ 1002(a), 21 U.S.C.A. § 952(a).
App. 6
16. Searches and Seizures — 7(1)
Mere existence of statutory authority to make a
search does not obviate need for Fourth Amendment
compliance. U.S.C.A. Const. Amend. 4.
17. Shipping — 9
Flight of defendants’ vessel upon approach of Coast
Guard in Haitian waters of itself created exigent cir-
cumstances that, coupled with antecedent probable
cause to believe that vessel was engaged in s:nuggling,
justified Coast Guard’s subsequent warrantless search
of vessel. U.S.C.A. Const. Amend. 4.
i8. Criminal Law — 1159.2(7)
On appeal from conviction, duty of the Court of Ap-
peals was to determine whether a reasonable jury could,
after hearing all evidence, conclude that defendant was
guilty of specific crimes charged beyond a reasonable
doubt; it would not suffice to show that beyond perad-
venture he was engaged in some other criminal act.
19. Conspiracy — 44'2
To achieve a conviction on charge of willfully con-
spiring to commit offense against the United States,
Government had burden of proving an agreement
among defendants, intended purpose of which was a
violation of United States law.
App. 7
20. Conspiracy — 24
. Essence of conspiracy is agreement; nobody is liable
in conspiracy except for fair import of concerted purpose
or agreement as he understands it.
21. Conspiracy — 40.1
It is not necessary that members of conspiracy know
all details of plan, but they must be aware of essential
nature and scope of enterprise and intend to participate;
such knowledge must be clear and unequivocal, but it
can be inferred from circumstances and conduct of par-
ties involved.
22. Conspiracy — 28(3)
Conspiracy to import a controlled substance into
the United States requires proof of an agreement to
commit every element of that substantive offense. Com-
prehensive Drug Abuse Prevention and Control Act of
1970, § 1002(a), 21 U.S.C.A. § 952(a).
23. Conspiracy — 44'2
Just as a defendant cannot be convicted of a con-
spiracy to import a controlled substance into the United
States without knowledge that substance he was carry-
ing was controlled, or without knowledge that he was
transporting some substance, so the Government must
meet burden of showing that conspiracy to import was
directed at the United States. Comprehensive Drug
Abuse Prevention and Control Act of 1970, § 1002(a), 21
U.S.C.A. § 952(a).
App. 8
24. Conspiracy — 28(3)
Assuming that defendant, who was charged with
conspiring to import a controlled substance into the
United States, planned only to cooperate in smuggling
of inarijuana to Canada, rather than the United States,
there was no criminal intent on his part cognizable in an
American court and no federal interest involved. Com-
prehensive Drug Abuse Prevention and Control Act of
1970, § 1002(a), 21 U.S.C.A. § 952(a).
25. Conspiracy — 47(12)
Evidence was sufficient to warrant conclusion
bevond a reasonable doubt that defendant had requisite
knowledge and intent to be guilty of conspiracy to im-
port marijuana into the United States Comprehensive
Drug Abuse Prevention and Control Act of 1970,
§ 1002(a), 21 U.S.C.A. § 952(a).
26. Jury — 131(10)
It is not an abuse of discretion for trial judge to
choose to conduct voir dire examination himself. Fed.
Rules Crim. Proc. rule 24(a), 18 U.S.C.A.
27. Jury — 131(15)
In prosecution for conspiracy to import marijuana
into the United States, trial court did not abuse its dis-
cretion in its refusal to ask questions on voir dire ex-
amination in precise form requested by defendant.
Comprehensive Drug Abuse Prevention and Control Act
of 1970, § 1002(a), 21 U.S.C.A. § 952(a).
App. 9
28. Jury — 131(15)
In prosecution for conspiracy to import marijuana
into the United States, it was proper for trial judge, dur-
ing voir dire examination, to fail to give questions re-
quested by defense counsel, which merely asked whether
jury would, as required, fulfill its duty to decide case ac-
cording to the law and the evidence, which were not
designed to elicit any particular source of potential
prejudice, and which were adequately covered in court’s
instructions. Comprehensive Drug Abuse Prevention
and Control Act of 1970, § 1002(a), 21 U.S.C.A. § 952(a).
29. Jury — 131(8)
In prosecution for conspiracy to import marijuana
into the United States, it was not improper for trial
court, during voir dire examination, to fail to ask re-
quested question as to whether fact that defendant was
involved in procuring marijuana would prejudice jury in
any manner against defendant. Comprehensive Drug
Abuse Prevention and Control Act of 1970, § 1002(a), 21
U.S.C.A. § 952(a).
30. Criminal Law — 627.8(6)
Although objection to Government exclusions from
certain material produced under Jencks Aci was pur-
sued by defense only after Government informant left
stand, it was raised immediately following direct ex-
amination by Government and was therefore not un-
timely. 18 U.S.C.A. § 3500.
App. 10
31. Criminal Law — 627.7(1)
Task of determining whether statements relate to
prosecution testimony, for purposes of disclosure under
Jencks Act, is vested in trial court, not in Government.
18 U.S.C.A. § 3500.
32. Criminal Law — 627.8(4)
Jencks Act, which requires Government to produce
any statement in its possession relating to subject mat-
ter of testimony of a witness who has taken stand for
Government, does not mandate that trial judge examine
voluminous material without assistance from govern-
ment counsel and court need only review those sections
that Government seeks to withhold; however, court
should accomplish this by studying portions proposed to
be expunged in their proper context as parts of complete
document, and if court then determines that Govern-
ment’s expurgation is proper, defense has no further
cause for complaint. 18 U.S.C.A. § 3500.
33. Criminal Law — 1181
Where court, in reviewing Jencks Act material,
failed even to look at complete materials, thereby ab-
dicating its responsibility to government counsel,
reviewing court had no choice but to vacate judgment
and remand for an appropriate examination. 18
U.S.C.A. § 3500.
34. Criminal Law — 914
If trial judge concluded on remand that production
of some or all of alleged Jencks Act materials was un-
App. 11
justly denied, in prosecution for conspiring to import
marijuana into the United States, it would then become
its duty to accord defendant a new trial unless it con-
cluded that failure was harmless under Goldberg test. 18
U.S.C.A. § 3500.
35. Criminal Law — 770(2)
Defendant in a criminal prosecution is entitled to
have court instruct jury on defense ‘‘theory of the case,”
assuming that theory has foundation in evidence and
legal support.
36. Conspiracy — 48.2(2)
Drugs and Narcotics — 132
In prosecution for conspiracy or attempting to im-
port marijuana into the United States, substance of
defense theory was conveyed by trial court’s instruction
that to establish requisite specific intent Government
was required to prove that defendant knowingly did an
act which law forbids, purposely intending to violate
law, and that proof of specific intent required proof that
defendant knew that marijuana was destined for the
United States, and thus a new trial was not required,
despite trial court’s failure to instruct jury in language
requested by defendant; however, if a new trial were or-
dered because of expurgations from Jencks Act
materials, then a more complete exposition would be ap-
propriate. 18 U.S.C.A. §3500.
Appeals from the United States District Court for
the Southern District of Florida.
Before RONEY, RUBIN and VANCF, Circuit
Judges.
App. 12
ALVIN B. RUBIN, Circuit Judge:
If the Coast Guard cutter DAUNTLESS is not
otherwise recorded in history, her forays to protect
coasts of the United States from illicit imports will be
commemorated in decisions of the Fifth Circuit.' The
defendants, convicted of either conspiracy or both con-
spiracy and attempting to import marijuana,’ charge
that the zeal of her lieutenant exceeded his statutory
authority and led him to violate their constitutional
rights by boarding their American vessel in Haitian
waters. Having recently attempted to chart the rules
concerning coast guard authority with respect to
domestic vessels in coastal waters" as well as on the high
'See United States v. Cadena, 5 Cir. 1978, 585 F.2d 1252;
United States v. Rodriguez, 5 Cir. 1978, 585 F.2d 1234; United
States v. One (1) 43 Foot Sailing Vessel “Winds Will’’, 5 Cir. 1976,
538 F.2d 694; United States v. Winter, 5 Cir. 1975, 509 F.2d 975,
cert. denied, 423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41.
“Schubert was sentenced to five years imprisonment on each
count, running concurrently, and an equal special parole term on
the conspiracy count, and was fined $30,000. Conroy, who was con-
victed only on the conspiracy count, was sentenced to four and one-
half vears imprisonment and an equal special parole term, and was
fined $5,000. Dahl was sentenced to two and one-half years im-
prisonment and a special parole term of three years on each count,
running concurrently. Jacobs was sentenced pursuant to the
Federal Youth Corrections Act. Walker, who was also convicted
only on the conspiracy count, was sentenced to three and one-half
vears and a four vear special parole term, and was fined $5,000.
‘See, e. g., United States v. Freeman, 5 Cir. 1978, 579 F.2d 942;
United States v. Caraballo, 5 Cir. 1978, 571 F.2d 975.
App. 13
seas,' we now explore the same questions in the un-
charted foreign domain.
I,
Once upon a time there was an informer, most of
these tales begin. In this instance he was Flemming Lar-
son Budal, a Danish citizen who was residing in the
United States, had been an informer for several months,
had worked on a number of other cases, and had been
paid $200 a week by the Drug Enforcement Administra-
tion.
In December, 1975, Budal began a series of conver-
sations with two of the defendants, Schubert and Con-
roy, in New England, and together they formulated a
plan to smuggle a boatload of marijuana from Jamaica.
During this time Budal was in constant communication
with a special agent of the DEA.
Schubert obtained a 58-foot Gulfstar sailboat in Ft.
Lauderdale. Soon afterwards Budal flew to Ft. Lauder-
dale where he was met by Dahl and Schubert, and
another indictee who was separately tried. They were
later joined by a fourth defendant, Jacobs, and together
lived on the* vessel, the NAHOA, until September 3
1976, when they weighed anchor for Jamaica. Conroy
remained in New England, allegedly to await the return
of the other defendants with their cargo.
‘See, e. g., United States v. Warren, 5 Cir. en ban 78, 57
F -2d 1058; United States v. One (1) 43 Foot Sailing Vessel “Winds
Will”, 5 Cir. 1976, 538 F.2d 694; United States v. Hillstrom, 5 Cix
1976, 533 F.2d 209 cert. denied, 1977, 429 U.S. 1038, 97 S.Ct 734 50
L.Ed.2d 749; United States v. Odom, 5 Cir. 1976, 526 F.2d 339.
App. 14
The DEA agent had furnished Budal two electronic
detection devices of the kind known as beepers, one of
which was to be turned on when the vessel was loaded.
This device emits a signal by means of which its location
can be determined by other electronic equipment.
Rather then keep either on his person, Budal concealed
one in the engine room and the other in an air vent on
the NAHOA.
When the NAHOA was about 40 miles from
Jamaica, the crew met the fifth defendant, Walker, who
came out from the island on a small motorboat. Walker
made four trips to the NAHOA ferrying marijuana.
The DAUNTLESS, under the command of Lieu-
tenant Robert Council, was on border patrol in the
Windward Passage between Haiti and Cuba, on guard
for the NAHOA. When a DEA plane flying over nearby
waters received an electronic signal from one of Budal’s
beepers, the DAUNTLESS attempted to establish a
barrier patrol in the Windward Passage.
A day later the master of the DAUNTLESS
recognized a radar beep on his scope as a vessel located
about nine miles southwest of Haiti. He set his course
for the vessel, and soon sighted her; it was, as an-
ticipated, the NAHOA. He attempted to communicate
with the vessel by radio, flag, and flashing lights, all
signaling her to heave to. Nevertheless, those aboard the
vessel set course straight for Haiti, and entered that na-
tion’s territorial waters. -
Oral approval, later confirmed in writing, to enter
Haitian waters and search the NAHOA was obtained
App. 15
from the Haitian Chief-of-Staff, and the DAUNTLESS
continued in pursuit. When on further signals, the
NAHOA did not halt, the flag Sierra Quebec III was
raised: this signifies ‘“‘stop or we’ll shoot.”” The NAHOA
then hove to, and Lieutenant Council pulled alongside
her in a small boat. He smelled marijuana, and asked
permission to board. Schubert denied his request, but
Lieutenant Council went on the vessel and requested the
ship’s papers. Schubert prevented him from entering
the ship’s cabin; the lieutenant ordered a search, and
found 7000 pounds of marijuana.
Defendants Conroy, Schubert, Dahl and Jacobs
contend that in this dramatic encounter the Coast
Guard were little better, legally, than pirates. The in-
stallation of the beeper was an illegal search; the
boarding of the vessel in Haitian waters exceeded the
statutory authority of the Coast Guard and violated
their constitutional rights because it was unreasonable
.and warrantless. In addition, defendant Walker, who
was separately tried, alleges that there was insufficient
evidence to convict him of conspiracy, and that
procedural errors denied him a fair trial.
II. INSTALLATION OF THE BEEPER
[1, 2} A panel of this court has held that the in-
stallation of a beeper on an automobile is a search
within the meaning of the Fourth Amendment because
it defeats the expectation of privacy of the automobile’s
occupant; it is, therefore, prohibited unless a warrant is
obtained or there is sufficient basis for the failure to ob-
tain a warrant to render the act reasonable. United
States v. Holmes, 5 Cir. 1975, 521 F.2d 859. En banc, the
App. 16
court again affirmed the district court on the issue, but
only by an evenly divided vote, 5 cir. 1976, 537 F.2d 227.
For present purposes, we assume that the Holmes panel
establishes the law of the circuit.’ Compare United
States v. Abel, 5 Cir. 1977, 548 F.2d 591, cert. denied,
431 U.S. 956, 97 S.Ct. 2678, 53 L.Ed.2d 273; United
States v. Emery, 1 Cir. 1977, 541 F.2d 887; United
States v. Hufford, 9 Cir. 1976, 539 F.2d 32, cert. denied,
429 U.S. 1002, 97 S.Ct. 533, 50 L.Ed.2d 614; United
States v. Frazier, 8 Cir. 1976, 538 F.2d 1322, cert.
denied, 1977, 429 U.S. 1046, 97 S.Ct. 751, 50 L.Ed.2d
759.
[3] Nonetheless we note that here, unlike Holmes,
there was no trespass® when the beeper was installed for
Budal had the right to be on board the vessel; moreover,
there was probable cause to believe that the NAHOA
‘As has been pointed out, see Note, Tracking Katz: Beepers,
Privacy, and the Fourth Amendment, 86 Yale L.J. 1461 (1977),
Holmes represents a relatively restricted view of permissible police
conduct with respect to beepers; this approach may be warranted
because information vielded by beepers would not normally be ac-
cessible to the reasonably curious person. Certainly Holmes cannot
he restricted to automobiles, because there is at least as great an ex-
pectation of privacy in vessels.
‘See Holmes, supra, 521 F.2d at 865 (‘‘In addition, of course,
the ‘beeper’ installation was accomplished by an actual trespass.’’)
App. 17
would be used to transport contraband.’ However,
validity of the installation of the electronic device does
not rest only on these distinctions: the transmission of
the signals was not, under the circumstances, an inva-
sion of the privacy of others, for Budal was under no
legal obligation to conceal his whereabouts. Thus the
case is controlled by the decision in United States uv.
White, 1971, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d
453, in which a plurality of the court held that there is
no privacy invasion when a confidential informant wears
a recording device and surreptitiously transmits his own
conversations with unknowing lawbreakers. That deci-
sion was based on the premise that a participant in a
conversation has no legal right to protect his erroneous
belief that those in whom he confides will safeguard the
secrets he divulges. See also Lopez v. United States,
1963, 373 U.S. 427, 83 S.Ct. 1381, 10 L.ED.2d 462. If the
informant may reveal the conversation at a later time,
he may contemporaneously transmit it to third persons.
Accordingly, in Abel, supra, we upheld, on the basis of
the owner’s consent, the warrantless installation of an
electronic device on an airplane.
"In Holmes, supra, 521 F.2d at 866, the court rejected the
probable cause basis, saying:
The district judge determined otherwise because the
agents, at the time of the installation had no information
that the van had ever been used to transport contraband
and no information that it would be so used in the instant
transaction . . . He considered their actions as based only
upon an unfounded suspicion, not confirmed until Holmes
called agent Cox one and a half days later, on August 5, to
sav that the van would be used because of the large quan-
tity of marijuana to be delivered.
App. 18
[4] Here, Budal was not the vessel owner, but he
had a right to go aboard, and his placement of the
devices on the vessel rather than on his person does not
render its introduction invalid.* See also United States
v. Cheshire, 5 Cir. 1978, 569 F.2d 887, cert. denied,
U.S. ___, 98 S.Ct. 3097, 57 L.Ed.2d 1138 (consent by
owner to installation on a plane he had rented to the
defendant).
Appellants suggest that the beepers may have been
installed without prior written authorization as required
by the Internal Regulations of the DEA. Although the
issue was fleetingly discussed during the trial court’s
hearing on the motion to suppress, there is no evidence
in the record of noncompliance with the regulations.
The regulations upon which the claim is based are not
cited; in the absence of evidence establishing the ex-
istence of such a requirement and its breach, we do not
reach the issue whether noncompliance, if shown, would
require suppression of evidence obtained as a result of
the improper installation. See United States v. Caceres,
9 Cir. 1976, 545 F.2d 1182, 1187, cert. granted, 1978, 436
U.S. 943, 98 S.Ct. 2843, 56 L.Ed.2d 784; United States v.
Leahey, 1 Cir. 1970, 434 F.2d 7, 11.
‘In this connection, we note that the beepers did not transmit
private conversations. We have no occasion to consider whether a
distinction might be drawn had a recording or transmitting device
been placed that would intercept conversations in which Budal did
not participate. Cf. Irvine v. California, 1954, 347 U.S. 128, 74S.Ct.
381, 98 L.Ed. 561, decided prior to the application of the ex-
clusionary rule to the states in Mapp v. Ohio, 1961, 367 U.S. 643, 81
S.Ct. 1684, 6 L.Ed.2d 1081.
App. 19
Ill. THE SEIZURE IN FOREIGN WATERS
[5, 6} The Fourth Amendment not only protects
all within our bounds; it aiso shelters our citizens
wherever they may be in the world from unreasonable
searches by our own government. Reid v. Covert, 1957,
354 U.S. 1, 5-6, 77 S.Ct. 1222, 1225, 1 L.Ed.2d 1148,
1157. See Note, The Applicability of the Exclusionary
Rule in Federal Court to Evidence Seized and Confes-
sions Obtained in Foreign Countries, 16 Colum. J.
Transnat’! L. 495 (1977). The mere consent of foreign
authorities to a seizure that would be unconstitutional
in the United States does not dissipate its illegality even
though the search would be valid under local law.° In-
deed the United States does not here contend that those
aboard the NAHOA were beyond the shield of the
Fourth Amendment. The issue is whether the search
was invalid because it was made without a warrant and
by a federal agency, the Coast Guard, that lacked ex-
press statutory authority to conduct it.
°Cases admitting evidence seized by foreign authorities on the
basis of insufficient American law enforcement involvement to
warrant exclusion include: United States v. Morrow, 5 Cir. 1976,
537 F.2d 120, cert. denied, 1977, 430 U.S. 956, 97 S.Ct. 1602, 51
L.Ed.2d 806; Stonehill v. United States, 9 Cir. 1968, 405 F.2d 738,
cert. denied, 1969, 395 U.S. 960, 89 S.Ct. 2102, 23 L.Ed.2d 747;
Brulay v. United States, 9 Cir. 1967, 383 F.2d 345, cert. denied, 389
U.S. 986, 88 S.Ct. 469, 19 L.Ed.2d 478; Birdsell v. United States, 5
Cir. 1965, 346 F.2d 775, cert. denied, 382 U.S. 963, 86 S.Ct. 449, 15
L.Ed.2d 366. Compare United States v. Mundt, 10 Cir. 1974, 508
F.2d 904 dgert. denied, 1975, 421 U.S. 949, 95 S.Ct. 1682, 44 L.Ed.2d
103. The case applying the most restrictive role to federal use of
evidence obtained by foreign authorities is United States v. Jordan,
1975, 23 C.M.A. 525, 50 C.M.R. 664, on reh. 1976, C.M.A., 19 Crim.
L.Rep. 2025, a Court of Military Appeals decision.
App. 20
A. Statutory Authority
[7] In United States v. Warren, 5 Cir. en banc
1978, 578 F.2d 1058, we held that the Coast Guard has
authority under 14 U.S.C. §89(a)'° to board American
vessels on the high seas beyond the twelve-mile limit not
only to inspect for safety and documentation but also to
‘look for obvious customs and narcotics violations.” 578
F.2d at 1065. In United States v. Cadena, 5 Cir. 1978,
585 F.2d 1252, we gave the same statutory provision,
Section 89(a), a reading broad enough to cover the stop
on the high seas of foreign vessels subject to ex-
traterritorial application of domestic law. That statute
14 U.S.C. §89(a) provides in part:
The Coast Guard may make inquiries, examinations, in-
spections, searches, seizures, and arrests upon the high
seas and waters over which the United States has jurisdic-
tion, for the prevention, detection, and suppression of
violations of laws of the United States. For such purposes,
commissioned, warrant, and petty officers 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 documents
and papers, and examine, inspect, and search the vessel
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 ren-
dering a person liable to arrest is being, or has been com-
mitted, by any person, such person shall be arrested. . .;
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 . . . such vessel or such merchandise, or both,
shall be seized.
App. 21
in terms, however, would not reach the territorial waters
of another nation for it relates only to ‘‘the high seas and
waters over which the United States has jurisdiction.””!!
Conceding that the statute per se would not
authorize the Haitian search, the government urges that
the phrase, “upon the high seas and waters over which
the United States has jurisdiction,” was not intended to
be restrictive, and that the Coast Guard has implicit
power to search an American vessel in foreign waters
even in the absence of express statutory authority. We
agree,
The legislative history of the present form of the
statute leads to the conclusion that the high-seas phrase
was not intended to be restrictive. Before it was
amended to incorporate that phrase, the statutory
authority of the Coast Guard was examined in Maul v.
United States, 1927, 274 U.S. 501, 47 S.Ct. 735, 71
L.Ed.1171. The majority opinion searched specific
statutes to find express statutory authorization for the
Coast Guard to seize domestic vessels on the high seas in
enforcing the revenue laws. Mr. Justice Brandeis, with
whom Mr. Justice Holmes joined, concurring, would not
have rested on an interpretation of specific statutory
authority because of his apprehension that “the con-
struction adopted by the court may have in other cases
‘Cf, United States v. Pringle, 5:Cir. 1978, 576 F.2d 1114, up-
holding a warrantless border search of mail by customs officials
pursuant to statutory authority in 19 U.S.C. §1582, and United
States v. Freeman, 5 Cir. 1978, 579 F.2d 942, similarly approving
customs officers warrantless search of a vessel in customs waters
(within four leagues of shore) pursuant to authority in 19 U.S.C.
§1581(a).
App. 22
far-reaching and regrettable results.”’ 274 U.S. as 512, 47
S.Ct. at 739, 71 L.Ed. at 1176. He added that,
notwithstanding what he perceived as lack of express
statutory language, “authority [to seize American
vessels beyond the territorial waters] exists because it is
to be implied as an incident of the police duties of ocean
patrol which Congress has imposed upon the Coast
Guard.” Id.
Thereafter, Congress amended Section 89(a) to in-
corporate the high-seas phrase in the hope of avoiding
the problem foreseen by Mr. Justice Brandeis. The act
was designed to overturn the Maul majority’s strict in-
terpretation of the laws governing the conduct of the
Coast Guard, and the House Committee report quoted
Mr. Justice Brandeis at length. H.R. Rep. No. 2452,
74th Cong., 2d Sess. 3-4 (1936). lt cited with approval
his view that “the Coast Guard is authorized to arrest
American vessels subject to forfeiture under our law, no
matter what the place of seizure and no matter what the
law violated.” Jd. at 3. In sunporting the new legislation
governing the Coast Guard, the Committee observed,
‘In the future it is possible that, based upon some ex-
pressions in the majority opinion [in Maul], the conten-
tion will be made that express authority of law is
necessary to secure enforcement by the Coast Guard of
some laws and also to give jurisdiction to enforce those
laws bevond the 12-mile limit.” Jd. at 2-3. The proposed
legislation was intended “‘to prevent those possible ‘far-
reaching and regrettable results.’ ’’ Jd. at 3.
The language adopted by Congress in enacting
what is now Section 89(a) was adequate to deal with the
precise situation presented in Maul, a search of an
App. 23
American vessel on the high seas. However, while af-
firmatively empowering the Coast Guard to engage in
law enforcement activities on the high seas and in
American territorial waters, the resultant statute was
silent as to the role of the Coast Guard elsewhere. The
reason for the omission is apparent: the authority of the
Coast Guard to proceed in foreign territorial waters sim-
ply was not a matter entertained by Congress while
deliberating upon the statute.
Here, once again, as Chief Judge Brown has ob-
served, we are asked “‘to determine what Congress would
have thought about a “*‘yect about which it never
thought ... and ore » ot which we have never
thought nor any other © » t nas thought.” Wirth Ltd. v.
S/S Acadia Forest, 5 Cir. :°"6, 537 F.2d 1272, 1276. Con-
gress’s silence on a subject about which no one had
suggested a need to speak should not be interpreted as
reflecting an intent either to grant or deprive the Coast
Guard of authority to proceed in foreign territorial
waters to enforce American law.
[8] Because neither mandate nor prohibition of
search can be divined from Section 89(a), the Coast
Guard’s authority, if it exists, must be, as Mr. Justice
Brandeis said, an incident of its other powers. The
powers that Congress gives agencies in the executive
branch are better when — as is usually the case — they
are explicit. The statute that is express and unequivocal
is least likely to be misunderstood or violated either by
neglect or zealous overuse. Yet authority may be
granted by inference as well; in its relationship with the
executive branch, Congress is not bound by the stric-
tures that apply to the criminal law, and require such
App. 24
statutes to be explicit.'* The pattern of legislation from
1790 to 1927 traced by Mr. Justice Brandeis and the sub-
sequent congressional action’ we have here discussed,
make it clear that, in the absence of objection by the
sovereign power involved, Congress intended the Coast
Guard to have authority to stop and search American
vessels on foreign waters as well as on the high seas and
in territorial waters even though it never said so with un-
equivocal didacticism.
B. International Law
[9] . Our statutory interpretation of Coast Guard
authority, premised on the concurring opinion of Mr.
Justice Brandeis in Maul, is implicitly supported by
principles of international law that justify law enforce-
ment activities by the Coast Guard in foreign waters. In-
ternational law is part of our domestic law. The Paquete
Habana, 1900, 175 U.S. 677, 700, 20 S.Ct. 290, 299, 44
L.Ed. 320, 328. The possible application of the law of na-
tions to supplement the statute is consistent with the
statement in the House of Representatives report, ‘“The
powers conferred by this act are not to be construed to
affect any other powers conferred by existing law.”’
H.R.Rep. No. 2452, at 4.
[10] The law of nations classifies Coast Guard
vessels as warships. Such vessels belong to the State, are
under the direction of a military commander and
manned by a military crew, and legally bear the ensign
of the national navy. See II C. Hyde, International Law
‘See, e.g., Bell v. United States, 1955, 349 U.S. 81, 75 S.Ct.
620, 99 L.Ed. 905; United States v. Bridges, 5 Cir. 1974, 493 F.2d
918, 922; Simpson v. Simpson, 5 Cir. 1974, 490 F.2d 803, 809, cert.
denied, 419 U.S. 897, 95 S.Ct. 176, 42 L.Ed.2d 141.
App. 25
395 (1922): Convention on the High Seas, 450 U.N.T.S.
82, 13 U.S.T. 2312, T.I.A.S. No. 5200, art. 8.
Early interpretations of the law of nations denied
the right of innocent passage to warships; it was thought
that armed vessels did not “enjoy an absolute legal right
to pass through a state’s territorial waters any more
than an army may cross the land territory,”’ P. Jessup,
The Law of Territorial Waters and Maritime Jurisdic-
tion 120 (1927), and prior permission had to be obtained.
Until 1959, a regulation issued by the United States Of-
fice of the Chief of Naval Operations provided, ‘‘Naval
vessels should not be navigated in or near such claimed
territorial waters without having obtained prior
authorization from higher authority.”” 4 Whiteman,
Digest of International Law 417 (1965).!"
The United-Nations-sponsored Convention on the
Territorial Sea and the Contiguous Zone entered into
force in 1964; the United States Senate had previously
ratified the Convention in 1960, and the President had
signed it in 1961. 15 U.S.T. 1606, T.I.A.S. No. 5639
(1958). Haiti is also a party to the Convention. Thus the
Convention represents existing U.S. policy, at least with
respect to other party nations.
‘Indeed, on one occasion in 1957, the commanding officer of an
American naval vessel was reprimanded for entering Mexican
territorial waters without prior permission from the Mexican
government. The purpose of the entry was to investigate a fishing
vessel in Mexican waters believed to be of American Registry. The
reprimand followed a protest of the entry by the Mexican govern-
ment. 4 Whiteman, supra, at 6-7.
App. 26
After much debate, the draftsmen of the mul-
tilateral treaty rejected any requirement of previous
authorization by a coastal state for the entry of a foreign
warship into its territorial waters. See 4 Whiteman,
supra, at 415-16. Article 14(1) of the Convention on the
Territorial Sea and the Contiguous Zone states simply,
“Subject to the provisions of these articles, ships of all
States, whether coastal or not, shall enjoy the right of in-
nocent passage through the territorial sea.” 15 U.S.T. at
1610. Article 16(1) provides that the coastal state may
take ‘‘the necessary steps in its territorial sea to prevent
passage which is not innocent.” No distinction is made
between warships and other vessels.
[11-13] At least between parties to the Conven-
tion, such as the United States and Haiti, a warship of
one nation may enter the territorial waters of the other
without first giving notification and receiving authoriza-
tion.'4 Ratification of the convention by the United
States manifests implicit authorization for its warships
to do what the warships of other nations might do. The
DAUNTLESS was not, of course, on a hostile mission.
Indeed, it bears emphasis again that, despite the fact
that presumably no consent by Haitian authority was
required under the terms of the treaty, permission was
in fact obtained. Therefore, in the ensuing search, there
was a conjunction of implicit recognition by the United
‘Some nations, all from the communist bloc, adopted the Con-
vention with a reservation declaring that they believed that a
coastal state had the right to establish procedures for the authoriza-
tion of passage of foreign warships through territorial waters. 4
Whiteman, supra, at 416. Haiti is a party to the Convention
without such a reservation. Treaties in Force, January 1, 1978,
p. 327.
App. 27
States Government of the power of its warship to make
the search, and explicit approval of the search by the
Haitian government.
[14, 15] Even had we been provided no guidance
by the implicit authorization granted warships under
the treaty, we would still be compelled to conclude that
the defendants can not assail the legality of the seizure
of their vessel in Haitian waters. Since 1815 it has been
established that redress for improper seizure in foreign
waters is not due to the owner or crew of the vessel in-
volved, but to the foreign government whose
territoriality has been infringed by the action. In The
Richmond, 1815, 13 U.S. (9 Cranch) 102, 3 L.Ed. 670,
the Court rejected a challenge similar to the one we face
here to the seizure of an American registered vessel in
the territorial waters of Spain. Chief Justice Marshall
explained, ‘The seizure of an American vessel, within
the territorial jurisdiction of a foreign power, is certainly
an offense against that power, which must be adjusted
between the two governments. This court can take no
cognisance of it.”” 13 U.S. at 103, 3 L.Ed. at 671. Here,
where nut even the foreign government complains of the
American assertion of sovereignty over its own vessel,
defendants have no basis for complaint unless the
seizure was improper on some other grounds.
C,. Absence of a Warrant
116, 17] We have dealt with other issues before
reaching the constitutional question. Having concluded
that the search was not invalidated by lack of authority
to make it, we must consider whether the Coast Guard
was required by the Fourth Amendment to obtain a
warrant before proceeding. It is almost too obvious to re-
App. 28
quire reiteration that the mere existence of statutory
authority to make a search does not obviate the need for
Fourth Amendment compliance.'® This constitutional
issue was involved both in Warren, supra, and in
Cadena, supra. In each of these cases there was a
warrantless search by the Coast Guard. The Warren
majority, whom we have already quoted, recognized in
Section 89(a) a grant of plenary authority to stop and
board United States vessels on the high seas for either a
safetv-and-document inspection or to check for obvious
customs and narcotics violations. Once aboard, if
probable cause arises to suspect the presence of nar-
cotics, a search can then be made of the vessel. Judge
Fay dissented from the suggestion he found in the
opinion that the statute gives plenary authority to
search; nevertheless he began:
No one can question that the Coast Guard may
stop and search an American vessel on the high
seas when it has probable cause to believe a
crime has been or is being committed. [578
F.2d at 1079. ]
“See, e.g., Almeida-Sanchez v. United States, 1973, 413 U.S.
266, 95.S.Ct. 2535, 37 L.Ed.2d 596. The U.S. Attorney may wish to
draw to the attention of the Congress that, apparently, it has never
given authority to any magistrate to issue warrants outside the con-
fines of a judicial district. Rule 41(a), F.R. Cr.P. authorizes
issuance of a warrant by a judicial officer “within the district
wherein the property sought is located.” Cf. Berlin Democratic
Club v Rumsfeld, D.D.C.1976, 410 F.Supp. 144, 160. (“The court's
authority over federal officials is sufficient to require an official to
present for approval in the United States a warrant for a wiretap
overseas’).
App. 29
Neither opinion speaks directly to the question whether
probable cause alone justifies the warrantless search of
an entire vessel as compared to boarding for purposes of
a safety-and-document inspection and a check for ob-
vious customs and narcotics violations.
In Cadena a foreign vessel was intercepted on the
high seas pursuant to Section 89(a) authority. The
vessel’s subsequent flight created probable cause to
search without regard to any prior knowledge of the
Coast Guard of the vessel’s activities.
We find Cadena persuasive precedent. Here, as in
Warren and Cadena, the Coast Guard had plenary
authority to stop and board the ship. The DAUNTLESS
was indeed lying in wait for the NAHOA. There was
previously existing probable cause to beiieve the vessel
was engaged in smuggling; we may assume, arguendo,
that a warrant would have been necessary had the
NAHOA docilely continued on its course, approached
the DAUNTLESS and, upon being hailed, submitted to
a search.'® However, the NAHOA’s flight of itself
created exigent circumstances that, coupled with the
antecedent probable cause, justified the subsequent
warrantless search of the vessel.!'
'6See United States v. Cadena, 5 Cir. 1979, 588 F.2d 100 (denial
of petition for rehearing).
"For a discussion of statutory and constitutional authority for
searches of vessels, written prior to Warren and Cadena, see Car-
michael, At Sea With the Fourth Amendment, 32 U.Miami L.Rev.
51 (1977).
App. 30
IV. SUFFICIENCY OF THE EVIDENCE
AS TO WALKER
All of the defendants were charged in an indictment
alleging that they ‘‘did wilfully . . . conspire. . . to com-
mit offenses against the United States... . It was part of
said conspiracy that the defendants would knowingly
and intentionally import into the United States from a
place outside thereof, a controlled substance %
Although defendant Walker concedes that he loaded
marijuana aboard the NAHOA, he contends, first, that
there was insufficient evidence to establish that there
was a conspiracy to import marijuana into the United
States; moreover, even if the other defendants joined in
such a scheme, there was no evidence whatsoever to es-
tablish that he had knowledge that the plot was directed
at the United States. He maintains that he believed the
NAHOA was bound for a rendezvous with a Canadian
trawler off George’s Bank when it was apprehended by
United States Coast Guard authorities.
[18] Walker was convicted of conspiracy to violate
21 U.S.C. § 952(a) which makes it illegal ‘“‘to import into
the United States from any place outside thereof, any
controlled substance . . .”” Our duty here is to determine
whether a reasonable jury could, after hearing all the
evidence, conclude that the defendant was guilty of the
specific crime charged beyond a reasonable doubt.
United States v. Restrepo-Granda, 5 Cir. 1978, 575 F.2d
524, 527; United States v. Alonzo, 5 Cir. 1978, 571 F.2d
1384, 1387; United States v. Warner, 5 Cir. 1971, 441
F.2d 821, 825, cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30
L.Ed.2d 58. It would not suffice to show that beyond
peradventure he was engaged in some other criminal
act.
App. 31
[19-21] To achieve a conviction on the conspiracy
count, the government had the burden of proving an
agreement among the defendants including Walker, the
intended purpose of which was a violation of United
States law. The essence of conspiracy is agreement;
‘‘(nJobody is liable in conspiracy except for the fair im-
port of the concerted purpose or agreement as he under-
stands it.’ United States v. Peoni, 2 Cir. 1938, 100 F.2d
401, 403 (L. Hand, J.). See also United States v. Borelli,
2 Cir. 1964, 336 F.2d 376, 384, cert. denied, 1965, 379
U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555; United States v.
Andolschek, 2 Cir. 1944, 142 F.2d 503, 507. It is not
necessary that the members of the conspiracy know all
the details of the plan, but they must be aware of the es-
sential nature and scope of the enterprise and intend to
participate. United States v. Rosenblatt, 2 Cir. 1977,
554 F.2d 36, 38; Stanley v. United States, 6 Cir. 1957,
245 F.2d 427, 430; Duke v. United States, 5 Cir. 1956,
233 F.2d 897, 901. Such knowledge must be clear and
unequivocal, but can be inferred from the circumstances
and conduct of the parties involved. United States v.
Addonizio, 3 Cir. 1971, 449 F.2d 100, 102, cert. denied,
1972, 404 U.S. 1058, 92 S.Ct. 737, 30 L.Ed.2d 746;
United States v. Gallishaw, 2 Cir. 1970, 428 F.2d 760,
763; United States v. Fellabaum, 7 Cir. 1969, 408 F.2d
220, 224, cert. denied, 396 U.S. 818, 858, 90 S.Ct. 55, 125,
24 L.Ed.2d 69, 109.
[22,23] Conspiracy to import a controlled sub-
stance into the United States requires proof of an agree-
ment to commit every element of that substantive of-
fense. Just as a defendant cannot be convicted of such a
conspiracy without knowledge that the substance he was
carrving was controlled, see, e. g., United States v.
App. 32
Restrepo-Granda, supra, 575 F.2d at 529, or without
knowledge that he was transporting some substance,
see, e. g., United States v. Jones, 9 Cir. 1975, 518 F.2d
64, 67; United States v. Jiminez, 5 Cir. 1973, 484 F.2d
91, 92, so the government must meet the burden of
- showing that the conspiracy to import was directed at
the United States. Cf. Ingram v. United States, 1959,
360 U.S. 672, 677-78, 79 S.Ct. 1314, 1319, 3 L.Ed.2d 1503
(“It is fundamental that a conviction for conspiracy...
cannot be sustained unless there is ‘proof of an agree-
ment to commit an offense against the United States.’
Pereira v. United States, [1954,]| 347 U.S. 1, 12, 74 S.Ct.
358, 364, 98 L.Ed. 435.’’); United States v. Bright, 5 Cir.
1977, 550 F.2d 240, 241 (“‘The essential elements of a
criminal conspiracy are an agreement among the con-
spirators to commit an offense against the United States
attended by an overt act of one of them in furtherance of
the agreement’’). See also United States v. Barrera, 5
Cir. 1977, 547 F.2d 1250, 1256; United States v. Isaacs, 5
Cir. 1975, 516 F.2d 409, 410, cert. denied, 423 U.S. 936,
96 S.Ct. 295, 46 L.Ed.2d 269.
The requirement that Walker know the destination
of the cargo to be convicted of conspiracy to import
marijuana into the United States in no way contradicts
‘he holding of the Supreme court in United States v.
Feola, 1975, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541.
Feola concerned merely the interpretation of a con-
spiracy statute in order to divine and effectuate con-
gressional intent. The Court concluded that a person
who joins in a conspiracy to assault someone can be con-
victed of conspiracy to assault a federal officer even
though the conspirator had no knowledge that the vic-
tim was a federal agent. “‘[I]n order to effectuate the
congressional purpose of according maximum protection
App. 33
to federal officers by making prosecution for assaults
upon them cognizable in the federal courts, [18 U.S.C.]
§ 111 cannot be construed as embodying an unexpressed
requirement that an assailant be aware that his victim is
a federal officer. All the statute requires is an intent to
assault, not an intent to assault a federal officer.” /d.,
420 U.S. at 684, 95 S.Ct. at 1264, 43 L.Ed.2d at 552. This
interpretation was followed by us in United States v.
Bell, 5 Cir. 1978, 577 F.2d 1313, in determining the
statutory elements of a conspiracy to violate the Dyer
Act, 18 U.S.C. §§ 2312-2313, prohibiting interstate
transportation of stolen motor vehicles.
[24.25] In Feola, the Court further noted that the
defendant’s state of mind may, however, be a relevant
consideration; ‘‘[t]he statute does require a criminal in-
tent,’ 420 U.S. at 686, 95 S.Ct. at 1264, 43 L.Ed.2d at
553. Here, if it be assumed that Walker indeed planned
only to cooperate in the export of marijuana to Canada,
there would be no criminal intent on his part cognizable
in an American court and no federal interest involved.
The importation of marijuana into Canada may or may
not violate Canadian law. Even if it does, the question
might be raised whether the Congress has the power, as
a matter of due process, to make criminal a conspiracy
entered into abroad directed only against another
foreign country. We need not reach that question here
for Congress has shown no intention even by remote im-
plication to punish a person who in some other nation
conspires against the laws of a third nation. Therefore,
Walker’s conviction on the conspiracy count necessarily
must be supported by proof that he knew the marijuana
was destined for the United States.
App. 34
The government demonstrated the existence of an
agreement involving marijuana smuggling, and showed
continual activities related thereto, terminating only
upon the capture of the NAHOA. There was testimony
by the government informant, later contradicted by
defendant Schubert on the witness stand, that the ship
was bound for Connecticut or elsewhere on the eastern
coast of the United States. The ship’s name was written
in English, and its master and all of the crew save Budal
were Americans. There was also uncontroverted
testimony by the government informant, Budal, that
Schubert made phone calls to Walker in Jamaica during
the course of the conspiracy, and that Walker joined the
other defendants on board the NAHOA after the mari-
juana had been loaded. Had there been no testimony on
behalf of the defense, Walker would not have been en-
titled to a directed verdict. The circumstantial evidence
was sufficient to warrant his conviction.
The defense did offer Schubert’s testimony
regarding Walker’s knowledge of the ship’s destination.
Schubert, it will be recalled, was one of the original
planners. He testified unequivocally that the NAHOA
was bound for George’s Bank, and that Walker was the
only one aboard the vessel to whom Schubert divulged
the plan. Walker was apprised of the destination
because “he had a financial interest in it.”” The defense
sought to corroborate this by showing that the vessel did
have a detailed chart of northern waters but none of the
waters of the southern United States where the NAHOA
was apprehended.
Clearly Walker joined in a plan to ship marijuana
and he admittedly participated actively in efforts to
consummate it. The jury might have believed
App. 35
Schubert's account, or it might have found it adequate
to create reasonable doubt that Walker knew the
destination of the cargo. Yet, it might also have refused
to believe Schubert when he identified the destination of
the cargo as Canada and sought to exonerate Walker.
Under the circumstances we cannot find that there was
insufficient evidence to warrant the conclusion beyond a
reasonable doubt that Walker had the requisite
knowledge and intent to be guilty of conspiracy to im-
port marijuana into the United States.
V. WALKER’S OTHER CLAIMS
A. Voir Dire
[26] It is no abuse of discretion for the trial judge
to choose to conduct the voir dire himself. U/nited States
v. Wertis, 5 Cir. 1974, 505 F.2d 683, cert. uenied, 1975,
422 U.S. 1045, 95 S.Ct. 2662, 45 L.Ed.2d 697; United
States v. Fruge, 5 Cir. 1974, 492 F.2d 1163, cert. denied,
419 U.S. 856, 95 S.Ct. 101, 42 L.Ed.2d 88; Hawkins v.
United States, 5 Cir. 1970, 434 F.2d 738; see F.R.Cr.P.
24(a).
[27] Although defendants assert error in the dis-
trict court’s failure to ask specifically requested ques-
tions on voir dire, Judges Roney and Vance have con-
cluded that the voir dire examination conducted by the
trial judge was adequate and fair. The trial court asked
questions during voir dire designed to disclose any pre-
judice on the part of the venire panel. There was no
abuse of discretion in its refusal to ask the questions in
the precise form requested by defendant. United States
v. Ochoa, 5 Cir. 1976, 543 F.2d 564.
App. 36
The questions requested by Walker's counsel in full
were:
Mr. Walker is charged with conspiring and
attempting to import marijuana into the
United States. Mr. Walker admits that he was
on board the vessel ““NAHOA” which con-
tained a large quantity of marijuana. Mr.
Walker further admits that he procured the
marijuana that was on board the vessel
“NAHOA”. ‘Two of the essential elements of
these offenses are that the marijuana found on
the vessel ‘“‘NAHOA” was destined for the
United States and that the defendant Walker
knew that the marijuana was destined for the
United States.
(a) If the Government fails to prove beyond a
reasonable doubt that the marijuana found
on the vessel ‘‘NAHOA” was destined for the
United States, would you hesitate to return a
verdict of Not Guilty?
(b) If the Government fails to prove beyond a
reasonable doubt that the defendant Walker
knew that the marijuana found on the vessel
“NAHOA” was destined for the United
States, would you hesitate to return a verdict
of Not Guilty?
(c) Would the fact that Mr. Walker was in-
volved in procuring the marijuana prejudice
vou in anv mater against Mr. Walker?
App. 37
[28! It was proper for the trial judge not to put
parts (a) and (b) of the request to potential jurors. These
sections merely ask whether the jury will, as required,
fulfill its duty to decide the case according to the law
and the evidence. They are not designed to elicit any
particular source of potential prejudice and were ade-
quately covered in the court’s instructions. Counsel does
not complain of their omission.
{29] The third requested question, the denial of
which is claimed as error, was:
Would the fact that Mr. Walker was involved
in procuring the marijuana prejudice you in
any manner against Mr. Walker?
Judges Roney and Vance conclude that it was not
improper to refuse to ask this question. They reason that
whether or not Mr. Walker procured the marijuana was
certainly relevant to the precise crimes here charged and
such evidence could be expected to be prejudicial to a
contrary contention. Counsel may have intended to ask
if the marijuana procurement would so influence a juror
that an objective consideration could not be made of the
critical question whether Walker knew the destination
of the marijuana. As the question was phrased, however,
a “ves” answer would not have revealed this informa-
tion; a “no” answer could neither be expected nor be
consistent with the juror’s promise to decide the case on
the evidence and instructions. A majority of this Court
thus deciding there was no abuse of discretion in the
failure to ask the requested questions on voir dire, the
trial court’s decision is affirmed.
App. 38
<n
Judge Rubin dissents from this conclusion and will
assign his reasons separately.
B. The Jencks Act Material
Under the Jencks Act, 18 U.S.C. §3500, the govern-
ment must produce any statement in its possession
relating to the subject matter of the testimony of a
witness who has taken the stand for the government.
Upon motion, Walker’s counsel received the statements
relating to testimony by the informant Budal. However,
parts of the materials were incomplete. The government
had cut off parts of the pages and excised paragraphs of
others. In addition, the date of each statement or report
had been deleted.
(30) When defense counsel moved for in camera
examination of the complete materials,'* the govern-
ment agreed to allow the court to read the file in its en-
tiretv; however, the court declined to look at the thick
set of materials, noting ‘‘] have got better things to do
than referee discovery.”’ The government informed the
court that all excised portions of the materials were, in
its opinion, not discoverable under the Jencks Act, and
the motion for in camera examination was then denied.
— a
‘Although the objection to the government excisions was pur-
sued by the defense only after Budal had left the stand, it was -
raised immediately following direct examination by the govern-
ment and was therefore not, as the government suggests, untimely.
Moreover, Budal was still available and could have been recalled by
the defense for further cross-examination in light of the revealed
Jencks Act materials.
App. 39
The Jencks Act requires that decisions about the
discoverability of documents under its provisions be
made by the trial court. 18 U.S.C. §3500(c) provides, in
part,
If the United States claims that any statement
ordered to be produced under this section con-
tains matter which does not relate to the sub-
ject matter of the testimony of the witness, the
court shall order the United States to deliver
such statement for the inspection of the court
in camera. Upon such delivery the court shall
excise the portions of such statement which do
not relate to the subject matter of the
testimony of the witness. With such material
excised, the court shall then direct delivery of
such statement to the defendant for his use.
As the Supreme Court held in Palermo v. United States,
1959, 360 U.S. 343, 354, 79 St.Ct. 1217, 1225, 3 L.Ed.2d
1287, 1296:
[W]hen it is doubtful whether the production
of a particular statement is compelled by the
statute, we approve the practice of having the
Government submit the statement to the trial
judge for an in camera determination. Indeed,
any other procedure would be destructive of the
statutory purpose.
[31-33] The task of determining whether state-
ments relate to prosecution testimony is thus vested in
the trial court, not in the government. Scales v. United
States, 1961, 367 U.S. 203, 258, 81 S.Ct. 1469, 1501, 6
L.Ed.2d 782, 817. The duty may be onerous and unplea-
App. 40
sant, but so, indeed, are many of the duties that judges
assume. The Act does not, of course, mandate that the
trial judge examine voluminous material without
assistance from government counsel. The court need
only review those sections that the government seeks to
withold; but it should accomplish this by studying the
portions proposed to be expunged in their proper context
as parts of the complete document. If the court then
determines that the government’s expurgation is proper,
the defense has no further cause for complaint. See, e.g.,
Holmes v. United States, 4 Cir. 1960, 284 F.2d 716, 720.
But where the court fails even to look at the complete
materials, thereby abdicating its responsibility to
government counsel, the reviewing court has no choice
but to vacate the judgment and remand for an ap-
propriate examination. United States v. Cleveland,
7 Cir. 1973, 477 F.2d 310; United States v. O’Brien, 7
Cir. 1971, 444 F.2d 1082, 1086-87; Bary v. United States,
10 Cir. 1961, 292 F.2d 53, 58.
[34] If the trial judge determines that no part of
the expunged materials need be produced, he should en-
ter a new judgment. Walker may then have the record
sealed and transmitted to this court for review of the
trial court’s determination. If, on the other hand, the
trial judge concludes that production of some or all of
the reports was unjustly denied, it would then become
his duty to accord the defendant a new trial unless he
concludes that the failure was harmless under the test
set forth in Goldberg v. United States, 1967, 425 U.S. 94,
96 S.Ct. 1338, 47 L.Ed.2d 603. See also discussion in
United States v. Beasley, 5 Cir. 1978, 576 F.2d 626.
App. 41
C. Refusal to Give Requested Jury Instruction
(35, 36] The defendant in a criminal prosecution
is entitled to have the court instruct the jury on the
defense “theory of the case’’, assuming that the theory
has foundation in the evidence and legal support.
United States. v. Cullen, 7 Cir. 1971, 454 F.2d 386, 390;
United States v. Vole, 7 Cir. 1971, 435 F.2d 774; Strauss
v. United States, 5 Cir. 1967, 376 F.2d 416. The defense
here proffered the following instruction:
It is the position of the defense that the mari-
juana found on the vessel ““NAHOA” was not
destined for the United States to the defendant
Walker’s knowledge but was rather destined for
Canada.
Unless you find that the Government has
proven beyond and to the exclusion of a
reasonable doubt that the marijuana was
destined for the United States and that the
defendant Walker knew that the marijuana
was destined for the United States you must
return a verdict of Not Guilty for Mr. Walker.
The trial court declined to give the second
paragraph of this tendered instruction, but did instruct
the jurv that “[t]o establish specific intent [needed to
convict the defendant of conspiracy or attempt] the
Government must prove that the Defendant knowingly
did an act which the law forbids, purposely intending to
violate the law. Proof of specific intent requires proof
that the Defendant knew the marijuana was destined for
the United States.” This instruction conveyed the sub-
stance of the defense theory, even if not in the exact
App. 42
language requested. No more was indispensable. If a
new trial is not required because of the expurgations
from Jencks Act materials, then a new trial on this issue
is not warranted. If, however, a new trial is ordered, a
more complete exposition would be appropriate.
For these reasons, the convictions of Conroy,
Schubert, Dahl, and Jacobs are AFFIRMED. The judg-
ment of conviction of Walker is VACATED and his case
remanded for further proceedings as directed above.
ALVIN B. RUBIN, Circuit Judge, dissenting as to
defendant Walker only:
I regret that I must differ with my brethren con-
cerning whether the trial judge abused the very wide dis-
cretion he is allowed in conducting voir dire. | recognize
that some of my colleagues think voir dire is an ap-
propriate adversary function, e. g., United States v.
Ledee, 5 Cir. 1977, 549 F.2d 990, 993, cert. denied, 434
U.S. 902, 98 S.Ct. 297, 54 L.Ed.2d 188, and that my
brethren on this panel are disposed to leave the question
entirely to the discretion of the trial judge. Because,
however, of my firm belief in court-conducted voir dire,
my dissent on this issue may appear anomalous. For this
reason, I expand my views.
As a trial judge, I personally conducted voir dire in
every case tried before me for eleven years, and I con-
tinue to believe that when the trial judge is diligent in
the scope of his inquiry and responsive to counsel’s
suggestions, this method of examining potential jurors
has many advantages over counsel-conducted question-
ing. In most cases, advocates seek by voir dire not to ob-
tain impartial jurors but to enlist persons already
App. 43
predisposed in their favor. The trial judge is objective;
his desire to achieve justice will be communicated to the
jurors by his manner of conducting voir dire and by the
phrasing of his questions. Therefore, his election to con-
duct a careful voir dire will usually better assure that
the jury impanelled is fair and impartial and will, in ad-
dition, save time and invest the process with the ap-
pearance of integrity that it warrants.
If he assumes the task of conducting voir dire, the
trial judge also takes on the responsibility of acting on
behalf of both parties in determining whether any mem-
ber of venire harbors possible prejudice however covert.
The court must not only allow counsel to suggest ques-
tions that might identify potential prejudice, but must
also put at least the substance of those inquiries to
prospective jurors. See Silverthorne v. United States, 9
Cir. 1968, 400 F.2d 627, 638; United States v. Lewin, 7
Cir. 1972, 467 F.2d 1132.
My brethren have fully stated the entire series of
voir dire questions requested by Walker’s counsel. |
agree with them that the trial judge did not err in failing
to put parts (a) and (b). However, part (c) cannot be
considered in isolation. Propounded alone and answered
simply “‘ves”’ or “‘no,”’ the question might not seem par-
ticularly enlightening. But as the full text of defense
counsel’s request shows, Walker admitted having
procured the marijuana and being on board the
‘““NAHOA”; his sole defenses were that the destination
of the cargo was not the United States, but, if it was, he
didn’t know it. Under these circumstances, it was
critical for defense counsel to know whether Walker’s
admitted complicity in a plot to ship marijuana (which
he claimed was directed at Canada rather than the
App. 44
United States) would prejudice any potential juror
against him. The substance of the proposed question
was calculated to elicit from potential jurors a clue as to
whether they harbored any predisposition to convict
Walker merely because he was engaged in international
marijuana dealing rather than because he was guilty of
the precise crimes charged. If any juror answered “‘Yes”’,
he would assuredly have been challenged for cause. An
equivocal answer or even the manner in which a
negative answer was delivered might have induced
counsel to exercise a peremptory challenge. No ex-
perienced trial lawyer would have wished to try Walker’s
case without this information.
In connection with requests for jury charges, we
have repeatedly ruled that the trial judge may not refuse
to charge a jury because the request is phrased in-
artfully. Dahlgren v. United States, 5 Cir. 1977, 553 F.2d
434, 440; Ullman v. Overnite Transportation Co., 5 Cir.
1975, 508 F.2d 676, 677 n.2d; Messer v. L.B. Foster Co.,
5 Cir. 1958, 254 F.2d 412, 414. See also Wilson v. Crouse-
Hinds Co., 8 Cir. 1977, 556 F.2d 870, 874 n.8, cert.
denied, 434 U.S. 968, 98 S.Ct. 513, 54 L.Ed.2d 455:
Posttape Associates v. Eastman Kodak Co., 3 Cir. 1976,
937 F.2d 751, 757; Chavez v. Sears, Roebuck and Co., i0
Cir. 1975, 525 F.2d 827, 830; Honeycutt v. Aetna In-
surance Co., 7 Cir. 1975, 510 F.2d 340, 349 n.11, cert.
denied, 421 U.S. 1011, 95 S.Ct. 2416, 44 L.Ed.2d 679;
Weekes v. Michigan Chrome & Chemical Co., 6 Cir.
1965, 352 F.2d 603, 611; Montgomery v. Virginia Stage
Lines, Inc., 1951, 89 U.S.App.D.C. 213, 191 F.2d 770,
772. See generally 9 C. Wright & A. Miller, Federal
Practice and Procedure: Civil §2552 at 631 & n.25
(1971). If the substance of the request is clear, it is his
obligation to give a correct charge.
App. 45
A similar principle has been recognized in connec-
tion with voir dire. The trial court has, of course, very
broad discretion in conducting voir dire, e.g., United
States v. Rojas, 5 Cir. 1976, 537 F.2d 216, 219, cert.
denied, 1977, 429 U.S. 1061, 97 S.Ct. 785, 50 L.Ed.2d
777; United States v. Wertis, 5 Cir. 1974, 505 F.2d 683,
684, cert. denied, 1975, 422 U.S. 1045, 95 S.Ct. 2662, 45
L.Ed.2d 697; United States v. Gassaway, 5 Cir. 1972,
456 F.2d 624, 626, but “subject to the essential demands
of fairness.’ Aldridge v. United States, 1931, 283 U.S.
308, 310, 51 S.Ct. 470, 471, 75 L.Ed. 1054, 1056. The
procedure used for testing prospective juror impartiality
must create ‘a reasonable assurance that prejudice
would be discovered if present.” United States v.
Dellinger, 7 Cir. 1972, 472 F.2d 340, 367, cert. denied,
1973, 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706. Thus,
refusal to inquire into a particular subject which affects
the basic fairness of the trial is not acceptable. United
States v. Eastwood, 5 Cir. 1973, 489 F.2d 818, 820.
The trial judge need not ask evevy question re-
quested by counsel, or put the inquiry to any particular
form. Ham v. South Carolina, 1973, 409 U.S. 524, 527,
93 S.Ct. 848, 850-51, 35 L.Ed.2d 46, 50. “It is enough if
the court covers the substance of the necessary areas of
its own questions.”’ United States v. Nell, 5 Cir. 1976,
526 F.2d 1223, 1230 n.9. Broad, general inquiries into
potential bias do not satisfy the court’s duty in ‘his
regard. Once counsel had made the judge aware of the
need to ascertain whether prospective jurors might be
biased against Walker on the basis of his admitted in-
volvement in marijuana smuggling, the judge had the
obligation to put the substance of that question fairly.
App. 46
After deliberating, the jury convicted Walker of
conspiracy, but acquitted him of attempt. Because the
only issue Walker contested at trial was his knowledge of
the destination of the shipment, the verdicts appear to
he inconsistent; the verdict of guilty on a single count
may have been the result of a “bargain” to resolve a
deadlock.
/ I would conclude that Walker was prejudiced by the
failure to inquire into possible prejudgment of his guilt
hased merely on moral turpitude, and would grant hima
new trial.
App. 47
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
October Term, 19
No. 77-5436
D. C. DOCKET NO. 76-6098-CR-NCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
é
versus
ROBERT CONROY, RAYMOND DAHL,
FREDERICK JACOBS and
WALTER K SCHUBERT,
Defendants-Appellants.
Appeals from the.Jnited States District Court
for the Southern District of Florida
Before RONEY, RUBIN and VANCE, Circuit Judges.
App. 48
i rte sin bts ce ° ca mserin oie
JUDGMENT
This cause came on to be heard on the transcript of
the record from the United States District Court for the
Southern District of Florida, and was argued by counsel;
ON CONSIDERATION WHEREOF, It is now here
ordered and adjudged by this Court that the convictions
of appellants Conroy, Schubert, Dahl and Jacobs in this
cause be, and the same are hereby, affirmed.
February 23, 1979
App. 49
APPENDIX C CC: Mr. Melvyn Kessler
Mr. Michael P. Sullivan
Ms. Barbara Schwartz
UNITED STATES COURT OF APPEALS Mr. David K. Kelley
FIFTH CIRCUIT
*filed on behalf of appellants Conroy, Dahl Jacobs and
OFFICE OF THE CLERK Schubert
April 12, 1979
TO ALL PARTIES LISTED BELOW:
NO. 77-5436-U.S.A. v. ROBERT CONROY ET AL.
NO. 77-5444-U.S.A. v. LEONARD A. WALKER Etc.
Dear Counsel:
This is to advise that an order has this day been en-
tered denying the petition(s) for rehearing, and no mem-
ber of the panel nor Judye in regular active service on
the Court having requested that the Court be polled on
rehearing en banc (Rule 45, Federal Rules of Appellate
Procedure; Local Fifth Circuit Rule 16) the petition( )
for rehearing en banc has also been denied.*
. ee
See Rule 41, Federal Rules of Appellate Procedure
for issuance and stay of the mandate.
Very truly yours,
EDWARD W. WADSWORTH,
Clerk
By /s/Sally Hayward
Deputy Clerk
ny ee ee ;
App. 50 : App. 51
APPENDIX D
§952. Importation of controlled substances — Con-
trolled substances in schedules I or II and nar-
cotic drugs in schedules III, IV, or V; exceptions
(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 subchapter I of
this chapter, or any narcotic drug in schedule III, IV, or
V of subchapter I of this chapter, except that —
(1) such amounts of crude opium and coca
leaves as the Attorney General finds to be
necessary to provide for medical, scientific, or
other legitimate purposes, and
(2) such amounts of any controlled sub-
stance in schedule I or II or any narcotic drug in
schedule III, [V, or V that the Attorney General
finds to be necessary to provide for the medical,
scientific, or other legitimate needs of the
United States —
(A) during an emergency in which
domestic supplies of such substance or drug
are found by the Attorney General to be in-
adequate, or
(B) in any case in which the Attorney
General finds that competition among
domestic manufacturers of the controlled
App. 52
no Feri wate Pe teterene Fy Aas Cr -
wih Piety Sabina Dale eS
Biers ca:
substance is inadequate and will not be ren-
dered adequate by the registration of ad-
ditional manufacturers under section 823 of
this title,
mav he so imported under such regulations as the Attor-
nev General shall prescribe. No crude opium may be so
imported for the purpose of manufacturing heroin or
smoking opium,
Nonnarcotic controlled substances in
schedules III, [V, or V
(b) 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
nonnarcotic controlled substance in schedule III, IV, or
V, unless such nonnarcotic controlled substance —
(1) is imported for medical, scientific, or
other legitimate uses, and
(2) is imported pursuant to such notifica-
tion or declaration requirements as the Attor-
nev General may by regulation prescribe, ex-
cept that if a nonnarcotic controlled substance
in schedule III, IV, or V is also listed in
schedule I or Ul of the Convention on Psy-
chotropic Substances it shall be imported pur-
suant to such import permit requirements,
prescribed by regulation of the Attorney
General, as are required by the Convention.
App. 53
Coca leaves
(c) In addition to the amount of coca leaves
authorized to be imported into the United States under
subsection (a) of this section, the Attorney General may
permit the importation of additional amounts of coca
leaves. All cocaine and ecgonine (and all salts,
derivatives, and preparations from which cocaine or
ecgonine may be synthesized or made) contained in such
additional amounts of coca leave8 imported under this
subsection shall be destroyed under the supervision of
an authorized representative of the Attorney General.
Pub.L. 91-513, Title Il, §1002, Oct. 27, 1970, 84 Stat.
1285.
App. 54
ae ETE apc ses
APPENDIX E
§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.
Pub.L. 91-513, Title III, §1013, Oct. 27, 1970, 84 Stat.
1291.
App. 55
APPENDIX F
TITLE 14
COAST GUARD
CHAPTER 1.—ESTABLISHMENT AND DUTIES
§2. Primary duties
The Coast Guard shall enforce or assist in the enfor-
cement of all applicable Federal laws on and under the
high seas and waters subject to the jurisdiction of the
United States; shall administer laws and promulgate
and enforce regulations for the promotion of safety of life
and property on and under the high seas and waters sub-
ject to the jurisdiction of the United States covering all
matters not specifically delegated by law to some other
executive department; shall develop, establish, main-
tain, and operate, with due regard to the requirements
of national defense, aids to maritime navigation,
icebreaking facilities, and rescue facilities for the
promotion of safety on, under, and over the high seas
and waters subject to the jurisdiction of the United
States; shall, pursuant to international agreements,
develop, establish, maintain, and operate icebreaking
facilities on, under, and over waters other than the high
seas and waters subject to the jurisdiction of the United
States; shall engage in oceanographic research on the
high seas and in waters subject to the jurisdiction of the
United States; and shall maintain a state of readiness to
function as a specialized service in the Navy in time of
war.
App. 56
Dita.
As amended Oct 5, 1961, Pub.L. 87-396, §1, 75 Stat. 827;
June 12, 1970, Pub.L. 91-278, §1(1), 84 Stat. 304; Dec.
12, 1974, Pub.L. 93-519, 88 Stat. 1659.
Library references: Shipping — 11; C.J.S. Shipping §5.
1974 Amendment. Pub.L. 93-519 added the provision requir-
ing the Coesi Guard to develop, establish, maintain and operate,
pursuant to international agreements, icebreaking facilities in
waters other than those subject to the jurisdiction of the United
States.
1970 Amendment. Pub.L. 91-278 improved and clarified the
text, substituting ‘‘on and under” for ‘‘upon”’ in clause preceding
first semicolon; inserting ‘‘and under”’ after “‘life and property on”
and deleting ‘‘on ” after ‘the high seas and’’ in clause preceding
second semicolon; and substituting ‘“icebreaking” for ‘“‘ice-
breaking”’ and inserting “under,” after “promotion of safety on” in
clause preceding third semicolon, respectively.
1961 Amendment. Pub.L. 87-396 required the Coast Guard
to engage in oceanographic research on the high seas and in waters
subject to the jurisdiction of the United States.
Legislative History: For legislative history and purpose of
Pub.L. 87-396, see 1961 U.S. Code Cong. and Adm.News. p 3339.
See, also. Pub.L. 91-278, 1970 U.S. Code Cong. and Adm.News, p.
3249; Pub. L. 93-519, 1974 U.S.Code Cong. and Adm. News, p. 6452.
App. 57
Index to Notes
Generally 2
Due care |
Rescue operations 2
‘4, Generally
United States Coast Guard was exclusive and sole authority for
determining navigational needs on, near or about sewer pipe in-
stalled in bay by city and city had no authority to alter, correct,
prescribe or otherwise take measures warn-
App. 58
APPENDIX G
$89. Law enforcement
(a) The Coast Guard may make inquiries, ex-
aminations, inspections, 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 officers 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 documents and papers, and
examine, inspect, and search the vessel and use all
necessarv 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,
bv anv person, such person shall be arrested or, if escap-
ing 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
hoard 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
hoth, shall be seized.
(b) The officers of the Coast Guard insofar as they
are engaged, pursuant to the authority contained in this
section, in enforcing anv law of the United States shall:
App. 59
(1) be deemed to be acting as agents of the
particular executive department or indepen-
dent establishment charged with the ad-
ministration of the particular law; and
(2) be subject to all the rules and regula-
tions promulgated by such department or in-
dependent establishment with respect to the
enforcement of that law.
(c) The provisions of this section are in addition to
anv powers conferred by law upon such officers, and not
in limitation of any powers conferred by law upon such
officers, or anv other officers of the United States. Aug.
4, 1949, C. 393, § 1, 63 Stat. 502; Aug. 3, 1950, c. 536, § 1,
64 Stat. 406.
APPENDIX H
CONVENTION ON THE TERRITORIAL SEA
AND THE CONTIGUOUS ZONE
(15 UST 1606)
‘The States Parties to this Convention
Have agreed as follows:
Part I
TERRITORIAL SEA
Section III. Right of Innocent Passage
Sub-Section A. Rules Applicable to
All Ships
App. 60
Article 14
1. Subject to the provisions of these articles, ships
of all States, whether coastal or not, shall enjoy the right
of innocent passage through the territorial sea.
2. Passage means navigation through the
territorial sea for the purpose either of traversing that
sea without entering internal waters, or of proceeding to
internal waters, or of making for the high seas from in-
ternal waters.
3. Passage includes stopping and anchoring, but
onlv in so far as the same are incidental to ordinary
navigation or are rendered necessary by force majeure or
bv distress.
4. Passage is innocent so long as it is not prej-
udicial to the peace, good order or security of the
coastal State. Such passage shall take place in con-
formitv with these articles and with other rules of
international law.
5. Passage of foreign fishing vessels shall not be
considered innocent if thev do not observe such laws and
regulations as the coastal State may make and publish
in order te prevent these vessels from fishing in the
territorial sea.
6. Submarines are required to navigate on the sur-
face and to show their flag.
App. 61
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.