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United States v. Quemener

April 28, 1986

UNITED STATES OF AMERICA, APPELLEE,
v.
PATRICK QUEMENER, YANN RAYMOND BOEDEC, STEVEN SEWARD, DEFENDANTS-APPELLANTS



Appeal from judgments of conviction entered in the United States District Court for the District of Connecticut (Clarie, J.) following a jury trial in which appellants were convicted of violating 21 U.S.C. §§ 955a(d), 955c. Appellants contend that marijuana and other evidence found on board a vessel was seized in violation of the fourth amendment and two international agreements, and that jurisdiction was lacking because the seizure occurred outside the territory of the United States. Affirmed.

Author: Miner

Before: MANSFIELD, PIERCE, and MINER, Circuit Judges.

MINER, Circuit Judge :

Patrick Quemener, Yann Boedec and Steven Seward appeal from judgments of conviction entered in the United States District Court for the District of Connecticut (Clarie, J.) following a jury trial in which they were convicted of possessing and conspiring to possess marijuana with the intention of unlawfully importing it into the United States in violation of 21 U.S.C. §§ 955a(d), 955c. Appellants contend, inter alia, that Judge Clarie erred in denying their motions to suppress physical evidence and to dismiss the indictment for lack of jurisdiction. Finding no error, we affirm.

I. BACKGROUND

On September 25, 1984, a Coast Guard patrol plane advised the Coast Guard vessel EVERGREEN that a forty-foot sailboat, later identified as the MARGIE, was heading north approximately 216 miles from the southeast tip of Nantucket Island and 236 miles from Chatham, Massachusetts. The EVERGREEN's patrol orders were to intercept vessels "heading in a general east to northeast direction, which appeared not to be fishing and were under 300 feet in length." Commander Gregory Shaw, the EVERGREEN's skipper, was suspicious of the MARGIE's northerly course, since most pleasure boats traveled down the coast toward the Caribbean in the fall. In fact, during the EVERGREEN's twelve-day patrol, no other pleasure vessels had been observed heading north except for a few boats sailing in Block Island Sound.

Commander Shaw first observed the MARGIE at about 4:15 p.m. from a distance of approximately 800 yards. He noted it to be heavily ladened and down in the bow and generally to be riding low in the water. This was unusual, since the MARGIE's bow was designed for living quarters and not for carrying heavy cargo. The MARGIE radioed the EVERGREEN, seeking technical advice concerning certain oil-line engineering problems. In response to an inquiry by Shaw, appellant Seward identified himself as the MARGIE's Master. He stated that he was a British citizen and that his home port was Rhode Bay, Anguilla, in the British West Indies.*fn1 He also advised Shaw that his last port of call had been Tortola and that his next port of call was to be St. John's, Newfoundland.*fn2 Commander Shaw then inquired as to the nationality of the MARGIE's crew. Seward replied that he thought they were French, but that he had not spoken to either of them very much during the nine days they had been sailing together. When Commander Shaw asked the purpose of the voyage, Seward claimed to be transporting the boat to St. John's, Newfoundland, for a friend who owned the boat; although he was not certain, Seward thought the boat had been sold and would be traveling from St. John's to Mystic, Connecticut.

Commander Shaw testified that his suspicions were aroused by the fact that Seward did not seem to know much about his crew members after making a nine-day voyage with them in a relatively small boat, that Seward was vague as to the details of the MARGIE's intended delivery, and that the MARGIE was approximately 70 degrees off course for its claimed destination of Newfoundland.

At about 7:00 p.m. that evening, Shaw directed one of his officers, Lieutenant McPherson, to radio the MARGIE and obtain the full names, birthdates and addresses of all aboard. When that information was provided, the EVERGREEN forwarded it to the El Paso Criminal Intelligence Center ("EPIC"). The EPIC check proved negative as to the MARGIE itself and appellants Boedec and Quemener; Seward; however, was reported to have been involved in cocaine smuggling in the Caribbean in early 1984 using a vessel similar to the MARGIE.

Later that evening, Shaw requested permission from the Atlantic Area Operations Commandant to board the MARGIE if she came within 150 miles of the Atlantic coast of the United States. The EVERGREEN continued to follow the MARGIE at a distance of between 700 and 1000 yards throughout the night. The MARGIE continued to bear closer to the mainland on a course which, according to Shaw, eventually would have put her along the Gulf of Maine. At approximately 11:40 a.m. on September 26th, the EVERGREEN received authorization from the Atlantic Area Operations Center to board the MARGIE. The boarding was accomplished without incident at approximately 12:00 noon. At that point, the MARGIE was located approximately 141.5 miles from the southeast tip of Nantucket Island, and 159 miles from Chatham, Massachusetts, the nearest mainland coastal point.

On boarding, Lieutenant McPherson detected the aroma of marijuana. As McPherson entered the cockpit, he observed a number of burlap-covered bales. A field test indicated that the bales contained marijuana. In all, 180 bales were discovered, each weighing between forty and fifty pounds. The MARGIE was then seized and its crew arrested.

A search of the vessel revealed some minimal provisions as well as a large number of navigational charts. Specifically, the MARGIE possessed detailed coastal charts from Cape Hatteras to Charlestown, Cape Canaveral to Key West, the east coasts of Florida and South Carolina, Charlestown Light to Cape Canaveral, the Leeward Islands, the West Indies, the Dominican Republic, the Virgin Islands, Jamaica, the Passage to Mona and the Gulf of Mexico and Tortola. She also possessed detailed coastal charts from Block Island Sound and eastern and mid-Long Island Sound. While there were no detailed coastal charts for any area north of Cape Cod, there were two charts showing Canadian points; one was a general chart showing St. John's, Newfoundland, but covering the immense area from Newfoundland in the north to Surinam, off South America, to the south. That chart also depicted the coasts of North and South America to the west and the coasts of Europe and Africa to the east. The second chart was also a rather general one, showing St. John, New Brunswick, covering the area between Nova Scotia to the north and Cape Hatteras, off North Carolina, to the south. Coast Guard personnel testified that these were not the type of charts that a prudent mariner would use for navigating in coastal waters, since "there is not enough definition on the charts . . . to do an accurate positioning, a fixing along the beach, or to pick out the particular dangers to navigation, rocks in the water, shoal areas." A defense expert testified, however, that, in his opinion, a sailor would have been able to sail from Tortola to Canada using the charts found aboard the MARGIE.

All of this evidence was admitted at trial, in addition to certain expert navigational testimony. The government's expert testified, and the defense expert agreed, that if the MARGIE maintained the heading she was on and the speed she was making when first spotted by the Coast Guard plane, she would have reached land in the United States. The defense expert, however, also testified that if one considered instead the MARGIE's course between the first sighting by the plane and the second sighting an hour and one-half later, she was heading toward the Canadian peninsula of Nova Scotia.

II. DISCUSSION

A. The Suppression Motion

Appellants' principal argument on appeal is that the district court erred in denying their motion to suppress the evidence seized when the MARGIE was boarded. The predicate for this contention is severalfold. First, appellants claim that the seizure of the MARGIE occurred more than 150 miles off the Atlantic coast of the United States, in violation of an agreement between the United States and Great Britain. The agreement provides that the British government

will not object to the boarding by the authorities of the United States, outside the limits of the territorial sea and contiguous zone of the United States and within the areas described in paragraph 9 below, of private vessels under the British flag in any case in which those authorities reasonably believe that the vessel has on board a cargo of drugs for importation into the United States in violation of the laws of the United States.

Agreement on Narcotic Drugs: Interdiction of Vessels, Nov. 13, 1981, United States-Great Britain, T.I.A.S. No. 10296, at 2 ("USGB Agreement" or "Agreement"). Paragraph 9 of the Agreement defines the agreed upon areas to "compromise the Gulf of Mexico, the Caribbean Sea, that portion of the Atlantic Ocean West of longitude 55 degrees West and South of latitude 30 degrees ...


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