Appeals from judgments entered in the United States District Court for the Eastern District of New York, Henry Bramwell, Judge, convicting defendants of possessing, with intent to distribute, a controlled substance on board a vessel subject to the jurisdiction of the United States on the high seas, in violation of 21 U.S.C. § 955a(a)(Supp. V 1981).
Kearse, Pierce and Peck,*fn* Circuit Judges.
Defendant Gsaac Gorge Pinto-Mejia and ten codefendants appeal from judgments entered in the United States District Court for the Eastern District of New York, Henry Bramwell, Judge, convicting them of one count of possessing with intent to distribute approximately twenty tons of marijuana on board a vessel subject to the jurisdiction of the United States on the high seas, in violation of 21 U.S.C. § 955a(a) (Supp. V 1981). The judgments were entered following defendants' agreement, consented to by the government and the court, to plead guilty on that count on the condition that they be allowed to challenge on appeal the lawfulness of the seizure by the United States Coast Guard of the marijuana from the hold of the vessel.*fn1 The defendants contend here that the judgments should be reversed and the indictment dismissed because (1) the vessel was not subject to the jurisdiction of the United States, and hence the district court lacked subject matter jurisdiction, and (2) the Coast Guard's boarding, search, and seizure of the vessel violated defendants' rights under the Fourth Amendment to the Constitution. Although we find no merit in the second ground, we conclude that a question remains as to the jurisdictional ground and we remand for further proceedings.
Pinto-Mejia and his codefendants are Colombian nationals who were members of the crew of the RICARDO, a vessel intercepted by the Coast Guard on the high seas, some 200 miles off the point of Montauk. Most of the material facts as to the interception, presented to the district court largely through affidavits and testimony at a suppression hearing, are undisputed.
A. The Interception, Boarding, and Search of the RICARDO
On June 26, 1982, the Coast Guard cutter DUANE, an ocean-going ship, was engaged in a cadet training cruise and a routine law enforcement patrol in an area approximately 100 miles southeast of Nantucket, Massachusetts. At approximately 8:10 a.m., deck officer Ensign Thomas Willis detected by radar a vessel headed on a southwesterly course toward the United States mainland. The course of the DUANE was then altered so that the vessel could be intercepted and its identity determined. At about 9:15 a.m., Willis sighted the vessel through high-powered binoculars from a distance of about seven miles and observed that it appeared to be a fishing boat some 70 to 80 feet long, traveling at a speed of about 9 knots. The vessel, which was not flying a flag, was then on a southeasterly course headed away from the mainland. As the DUANE drew closer to the fishing boat, Willis noticed that the name "RICARDO" was crudely painted on the stern of the boat, that there was a large quantity of running rust on the hull, that the boat's block and tackle were in a state of disrepair, and that the RICARDO carried no fishing gear such as would normally be carried by an active fishing vessel. Willis also noted that the waterline on the RICARDO appeared to be freshly painted and to be higher than the level of the boat's natural waterline. Based on these observations and his Coast Guard experience with other vessels exhibiting similar characteristics, Willis concluded that the RICARDO might be smuggling narcotics. A check of the DUANE's computer revealed that on April 29, 1982, the RICARDO had been seen in Barranquilla, Colombia, a known drug exporting port.
As the DUANE approached the RICARDO, the Coast Guard attempted to contact the RICARDO by radio, by the ship's public address system, and by bullhorn in both Spanish and English, requesting that the RICARDO call the DUANE by radio. No response was received, but a half-hour later a member of the RICARDO's crew raised a Venezuelan flag. The Coast Guard continued its requests for radio contact and broadcast a message that the DUANE was attempting to contact the Venezuelan government for permission to board the RICARDO.
During the afternoon of June 26, as the DUANE followed the RICARDO at a distance of some 200 to 300 yards, Lieutenant Thomas Haas, the officer in charge of cadet training, detected from his position on the deck of the DUANE the odor of marijuana drifting back from the RICARDO.*fn2 Haas testified, without objection from the defendants, that the operations officer and commanding officer also had smelled the odor of marijuana.
The DUANE continued to follow the RICARDO and to try to establish communication with it throughout June 26 and on June 27. On the afternoon of June 27, the Coast Guard repeatedly sought permission to board the RICARDO, and eventually one of the crew members of the RICARDO came onto the deck and directed a thumbs-up signal toward the DUANE, which the Coast Guard interpreted as permission to board.*fn3 Following the thumbs-up signal, the Coast Guard broadcast a request that the RICARDO stop, which it promptly did. Five Coast Guardsmen boarded the RICARDO, with Ensign Willis in charge. Consistent with Coast Guard policy, all members of the boarding party were armed, but their weapons were neither aimed at the RICARDO's crew nor carried in such a manner as to give the impression that force was being used.
Once on board the RICARDO, Willis was informed*fn4 by one member of the crew, later identified as defendant Roberto Nunez-Riasco, that the captain of the RICARDO had sailed away in a small boat three days earlier, seeking food and water, and had taken the RICARDO's registration papers and other documentation with him. Nunez-Riasco stated that he did not know from where the RICARDO was coming or where it was going, and that the captain had told the crew to steer a 180-degree course until he returned. Willis requested and received from Nunez-Riasco permission to look around the vessel and to open its compartments. Willis and members of the boarding party then opened the main hold and discovered what turned out to be approximately 20 tons of marijuana. Upon searching the rest of the vessel, Willis found, among other things, four flags under a mattress, including flags of Ecuador and the Dominican Republic. A crew member stated that the boat was of Venezuelan nationality.
Notwithstanding discovery of the marijuana, the Coast Guard informed the RICARDO's crewmen that they were not under arrest, that the Coast Guardsmen were guests on board, and that the crewmen need not accede to requests by the Coast Guardsmen. A member of the crew gave permission for the Coast Guard to pilot the RICARDO in a northwesterly direction. Eventually, on June 28 at about 7:00 p.m., the crewmen were informed that they were under arrest by authority of the United States government.
B. The Indictment and the Ensuing Proceedings
Each member of the RICARDO's crew was charged in a two-count indictment with violating 21 U.S.C. § 955a(a) and with conspiring to violate that provision, in violation of 21 U.S.C. § 955c. Section 955a(a) makes it unlawful for "any person on board a . . . vessel subject to the jurisdiction of the United States on the high seas" to possess a controlled substance with the intent to manufacture or distribute it. In 21 U.S.C. § 955b(d), "vessel subject to the jurisdiction of the United States" is defined to "include a vessel without nationality or a vessel assimilated to a vessel without nationality, in accordance with paragraph (2) of article 6 of the Convention on the High Seas, 1958." Article 6 of the Convention on the High Seas, opened for signature April 29, 1958, 13 U.S.T. 2312, T.I.A.S. No. 5200 ("Convention on the High Seas"), provides as follows:
Article 6: 1. Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in these articles, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry.
2. A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality.
Eight defendants promptly moved to dismiss the indictment on the ground that the RICARDO was not subject to the jurisdiction of the United States. All defendants moved to suppress, inter alia, the marijuana seized from the RICARDO on the ground that the Coast Guard's boarding, search, and seizure had violated their Fourth Amendment rights.
1. The Denial of the Jurisdictional Motions
Prior to holding an evidentiary hearing, the district court, after hearing argument and considering the above events as described in the parties' papers, denied defendants' motion to dismiss for lack of subject matter jurisdiction. The court found that (1) when first observed by the Coast Guard, the RICARDO was flying no flag and was headed toward the United States mainland; (2) the RICARDO changed course away from the mainland and hoisted a Venezuelan flag as the DUANE neared; (3) the RICARDO was found to be carrying flags of several other states; and (4) although the RICARDO claimed Venezuelan nationality, its registration with that country had expired more than two years before the seizure occurred. On the basis of these findings, the court ruled that the RICARDO was a vessel subject to the jurisdiction of the United States because "at the very least, . . . when seized, [it] was a vessel 'assimilated to a stateless vessel,' and at best, . . . was a vessel without nationality." (Sept. 30, 1982 Transcript ("9/30 Tr.") at 30.)
For its finding that the RICARDO's registration had expired, the court initially relied on the government's assertion in its brief that it had obtained a certificate from the Venezuelan Ministry of Transportation and Communications, Bureau of Maritime Transportation and Traffic (the "Certificate"), stating that the RICARDO had been registered in Venezuela, but that the registration had expired as of May 21, 1980, and no record of a renewal or reinstatement could be found. Some weeks later, at the evidentiary hearing on defendants' motions to suppress, the government offered in evidence the Venezuelan Certificate itself. The Certificate, which is set out in full in the margin,*fn5 stated in part that the RICARDO had been registered in Venezuela; that it had "evidently sailed clandestinely" from a Venezuelan port and had last been heard from on May 21, 1979; and that "failing to have any further news from it since that date, May 21, 1979, the Maritime Authority has found grounds for the expiration of its registration. . . ." The Certificate concluded as follows:
Therefore, the motor boat "Ricardo", originally registered in the Harbor Master's Office of Las Piedras, in view of the expiration of its registration, as of May 21, 1980, could not invoke the Venezuelan nationality to protect its status under any ...